Nimbus 4 Pty Ltd v Gregory Abood as delegate of the Natural Resources Access Regulator

[2019] NSWLEC 1469

Land and Environment Court

New South Wales

Medium Neutral Citation:	Nimbus 4 Pty Ltd v Gregory Abood as delegate of the Natural Resources Access Regulator [2019] NSWLEC 1469
Hearing dates:	Conciliation conference on 6 September 2019
Date of orders:	04 October 2019
Decision date:	04 October 2019
Jurisdiction:	Class 1
Before:	Bish C
Decision:	The Court orders: (1) The proceedings are dismissed.
Catchwords:	ORDERS – conciliation conference – agreement between the parties – orders
Legislation Cited:	Interpretation Act 1987 Land and Environment Court Act 1979 Water Management Act 2000
Category:	Principal judgment
Parties:	Nimbus 4 Pty Ltd (Applicant) Gregory Abood as delegate of the Natural Resources Access Regulator (Respondent)
Representation:	Counsel: P Lane (Applicant) N Hammond (Respondent) Solicitors: Gadens (Applicant) NSW Department of Industry (Respondent)
File Number(s):	2018/392133
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against a Direction to Protect a water Source made by the Natural Resources Access Regulator (NRAR) regarding redirection of a drain to its natural pathway on Lots 29 and 38 DP 755988, also known as ‘Careunga’, Foxes Lane, Moree (the site).

2. The direction for works to the drain identified on the site which are designed to protect an access road are made by NRAR, pursuant to s 333(2) of the Water Management Act2000 (WM Act) and dated 22 November 2018.

3. This Class 1 appeal is made under s 17(c) of the Land and Environment Court Act 1979 (LEC Act). The Court is required to make a determination, pursuant to s 340C of the WM Act and has power under s 39(2) of the LEC Act. The power to revoke an order, as sought by the parties, is derived from s 43 of the Interpretation Act 1987.

4. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held onsite on 6 September 2019. I have presided over the conciliation conference. There were no objections raised by third parties at this conciliation.

5. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision is that the Respondent will revoke the Direction the subject of these proceedings on the basis that the Applicant, without admissions, undertakes certain actions to be formalised by way of an enforceable undertaking under s 336E of the WM Act. The appeal is to be dismissed on this basis.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 34(3) to repeal the orders for the stop work order to the network of channels as so identified.

7. The parties stated that there were no jurisdictional impediments to the making of this agreement.

8. I am therefore satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act and consistent with s 43(2) of the Interpretation Act 1987. I hereby repeal the direction made pursuant to s 368 of the WM Act.

9. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision.

10. The Court orders:

1. The proceedings are dismissed.

…………………….

Sarah Bish

Commissioner of the Court

**********

Decision last updated: 09 October 2019