Minister for Sustainability, Environment and Conservation v Zander

The appeal concerned the interpretation of clause 5.2.14 of the Barossa Water Allocation Plan, a statutory instrument made under the *Natural Resources Management Act 2004* (SA). The parties were the Minister for Sustainability, Environment and Conservation (the Minister) and the Zander family, who held a licence to take underground and surface water for irrigating their vineyard. The dispute arose from the conversion of the Zanders' historical "area based" water licence, which did not limit the volume of water taken, to a new "volumetric" licence.

The central legal issue before the Full Court of the Supreme Court of South Australia was the proper construction of clause 5.2.14 of the Water Allocation Plan. Specifically, the court had to determine whether the Minister, in converting an area-based licence to a volumetric one where water was drawn from multiple sources, was permitted to assign a portion of the total volumetric allocation to each resource in a way that allowed the licensee discretion in choosing the source, provided the aggregate volume did not exceed the total allocation.

The Full Court reasoned that the Barossa Water Allocation Plan, as a statutory instrument, should be interpreted using the same principles as statutes. It held that the language of clause 5.2.14 was "intractable" and did not permit the flexibility contemplated by the lower court. The court found that the obligation to "assign" the volumetric allocation to various resources meant allotting a fixed share to each, and that these assigned shares, in aggregate, must not exceed the overall volumetric allocation. Therefore, the Minister could not assign a portion to surface water and a portion to underground water such that the sum of those portions exceeded the total annual allocation, even if the licensee was ultimately limited to the total volume.

The Full Court allowed the appeal, concluding that the judge's construction of clause 5.2.14 was inconsistent with the scheme of the statutory instrument. The preliminary question was answered in the negative.