Minister for Sustainability, Environment and Conservation v Zander

[2013] SASCFC 129

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

MINISTER FOR SUSTAINABILITY, ENVIRONMENT AND CONSERVATION v ZANDER & ANOR

[2013] SASCFC 129

Judgment of The Full Court

(The Honourable Justice Gray, The Honourable Justice Anderson and The Honourable Justice Blue)

22 November 2013

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY

ENERGY AND RESOURCES - WATER - WATER MANAGEMENT - WATER USAGE RIGHTS - WATER ALLOCATION - OTHER CASES

ENERGY AND RESOURCES - WATER - WATER MANAGEMENT - WATER MANAGEMENT PLANS

This is an application for permission to appeal to the Full Court.  The respondents are licence holders under the Water Allocation Plan for the Barossa Prescribed Water Resources Area.  A question arose regarding the interpretation of the Plan and, in particular, whether the plan permits the allocation of water to a licence holder so as to enable flexibility regarding the proportion of that allocation which could be taken from particular sources.  A Judge of the Environment, Resources and Development Court determined that the Plan does not permit such an allocation.  An appeal to a single Judge of this Court was allowed.  The Minister for Sustainability, Environment and Conservation has sought permission to appeal from that decision.  Whether the appeal raises a question of general principle of importance.

Held (granting permission to appeal):

(1)     Permission to appeal granted (at [8]).

(2)     Important questions arise as to the interpretation of the Water Allocation Plan (at [8]).

Natural Resources Management Act 2004 (SA), referred to.
Crawford Earthmovers Pty Ltd v Fitzsimmons (1972) 4 SASR 116; Bamford v Pozenel [2001] SASC 414, considered.

MINISTER FOR SUSTAINABILITY, ENVIRONMENT AND CONSERVATION v ZANDER & ANOR
[2013] SASCFC 129

Full Court:       Gray, Anderson and Blue JJ

THE COURT.

1. This is an application for permission to appeal to the Full Court.

2. The application concerns a dispute which arose between the parties in the Environment, Resources and Development Court of South Australia under the Water Allocation Plan for the Barossa Prescribed Water Resources Area made in June 2009 pursuant to the Natural Resources Management Act 2004 (SA). The Water Allocation Plan regulates the use of surface water, underground water and watercourse water in the Barossa area. This area is centred about 60 kilometres north-east of Adelaide and includes the townships of Tanunda, Lyndoch, Williamstown, Nuriootpa and Angaston.

3. Principle 5.2 of the Water Allocation Plan applies to the conversion of a water licence from an allocation based on area under irrigation to one based on volume of water.  The respondents’ previous area based licence permitted taking from surface water or underground water at their option.  In accordance with the Water Allocation Plan, the Minister converted this licence to a volumetric allocation of 42 megalitres.  Principle 5.2.14 governs such a case.  That principle provides:

   In the case of a single licence endorsed with an area based allocation which can be taken from more than one resource, the licence will be varied in accordance with the principles in section 5.2.  In addition the following principles will also apply:

   a)Allocations converted to a volume in accordance with section 5.2 will be assigned to a resource/s using the following hierarchy:

   ·       surface water, followed by

   ·       underground water, followed by

   ·       watercourse water.

   b)Surface water will be allocated first, up to a maximum of 70% of dam storage capacity.  Dam storage capacity is as defined in principle 9.

   c)The assignment of an allocation to a resource/s takes into account

   ·historical use of the resource; and

   ·any other information the Minister deems appropriate.

4. The Minister contended that, upon conversion of the licence, he was obliged to make a permanent allocation of the volume assigned to surface water and separately of the volume assigned to underground water.  The Minister assigned the respondents’ allocation equally between surface water and underground water.  The respondents contended that the Minister was entitled to allocate part of the total volume to be taken either from surface water or underground water at the option of the respondent.

5. The following preliminary question was determined in the negative by the Judge of the Environment, Resources and Development Court:

   Does the [Water Allocation Plan] (and Principle 5.2.14 in particular) permit the allocation of water on licence 3859 (subject to conditions) so that – 

   (a)each individual resource nominated on the licence has a maximum volume allocated to it/them; and

   (b)the total amount that may be taken from all or any resource in any water use year does not exceed 42 ML; but

   (c)the sum of the volumes nominated on the licence to each of the individual resources exceeds 42 ML?

6. An appeal to a single Judge of this Court was allowed.[1]  The Judge determined that the question should be answered in the affirmative.  It is from this decision that permission to appeal has been sought.

   [1]    Zander & Anor v Minister for Sustainability, Environment and Conservation [2013] SASC 149.

7. This Court’s practice is to grant permission to appeal only if a question of general principle arises.  Usually the Court considers whether there is reason to doubt the correctness of the decision under consideration.  According to that practice, a second appeal from a single judge to the Full Court should be restricted to cases which raise a question of general principle of importance.[2]  That principle is satisfied where the Full Court is requested to express a definitive view so that the principle has application well beyond the case under consideration.[3]  However, ultimately, the court must act in the interests of justice.

   [2]    Crawford Earthmovers Pty Ltd v Fitzsimmons (1972) 4 SASR 116, 122.

   [3]    Bamford v Pozenel [2001] SASC 414, [27].

8. In our view, important questions arise as to the interpretation of the Water Allocation Plan.  The Minister seeks to challenge the ruling of the Judge under appeal as to the meaning of the relevant aspects of the Water Allocation Plan.  The answer to the preliminary question, although not decisive of the proceeding in the Environment, Resources and Development Court, is important to its resolution.  In these circumstances, we grant permission to appeal to the Full Court.