NSW Office of Water, Department of Primary Industries (Applicant) ; Orange City Council ; (Respondent)

[2015] NSWCATAD 58

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

NSW Office of Water, Department of Primary Industries (Applicant) ; Orange City Council ; (Respondent) [2015] NSWCATAD 58

Hearing dates:

19 April 201015 December 2014

Decision date:

30 March 2015

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

P Boyce, Senior Member
R Thompson, Member
R Fragar, Member

Decision:

The Tribunal finds that subject to the conditions of grant set out in the Condition Statements tendered to the Tribunal with the applicant’s submissions and numbered 80SL09698 and 80SL096299, it is desirable to grant licences to Orange City Council for:

a) a weir, located on Blackmans Swamp Creek and a Pump Station No.1: and,

b) a Holding Dam (located on the tributary of Blackmans Swamp Creek) and Pump Station No.2.

Catchwords:

Inquiry into desirability of grant of licences under Water Act 1912

Legislation Cited:

Water Act 1912
Water Management Act 2000
Crown Lands Act 1989
Civil and Administrative Tribunal Act 2013

Cases Cited:

Swan Hill Corporation v Bradbury (1937) 56 CLR 746; Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492

Category:

Principal judgment

Parties:

NSW Office of Water, Department of Primary Industries (Applicant)
Orange City Council (Respondent)

Representation:

Counsel:
M Seymour (Respondent)
Solicitors:
B Cramer, NSW Office of Water (Applicant)
Crennan Legal (Respondent)

File Number(s):

1410091

Judgment

Application

1. This is an inquiry into the desirability of granting a licence under s10 of the Water Act 1912 (“WA”) to the applicant, Orange City Council (“the Council”) in respect of Blackmans Creek Water Harvesting Scheme to be carried out on Blackmans’ Swamp Creek at Orange.

2. Pursuant to section 11 of the Water Act a referral was made to the Local Land Board for the Land District of Orange by the Ministerial Corporation for Water for an inquiry into the desirability of granting of the licences sought.

3. The matter was listed before the Local Land Board on 19 April 2010 and was part heard on that day and adjourned for further hearing.

4. The matter was relisted for final hearing on 15 December 2015 before this Tribunal. The Tribunal now makes its recommendations into the granting of the licences.

Jurisdiction

5. Local land boards were tribunals of fact and law constituted pursuant to the Crown Lands Act 1989 (“CLA”).

6. Local land boards are included in the definition of “existing tribunals” in Clause 2 of Division 1 of Schedule 1 of the Civil and Administrative Tribunal Act 2013 (“CATA”).

7. Clause 3 of Division 1 of Schedule 1 of CATA abolished existing tribunals on 31 December 2013. That is, local land boards were abolished on 31 December 2013.

8. The savings, transitional and other provisions are set in Division 3 of Schedule 1 of the Civil and Administrative Tribunal Act 2013 (“CATA”) at clause 6. They provide that part heard proceedings means pending proceedings where a tribunal in which proceedings were instituted had begun to be heard before 1 January 2014.

9. Clause 7(2) of Division 3 of Schedule 1 provides that part heard proceedings of an existing tribunal are to continue to be heard and determined by the persons constituting the existing tribunal sitting as the Tribunal and may have regard for a record of any evidence taken in the proceedings before the existing tribunal. Clause 7(3) provides that the Tribunal has and may exercise all the functions that the existing tribunal had immediately before its abolition.

10. The Tribunal constituted by the members of the Local Land Board for the Land District of Orange now continues to hear and determine the referral to it by the Ministerial Corporation for Water.

Legislation

11. For the purposes of the WA Ministerial Corporation is the Office of Water formerly within the NSW Department of Water and Energy but now within the responsibility of Department of Primary Industries.

12. Section 10 of WA provides that any occupier of land may apply to the Ministerial Corporation to construct and use works which impound water, which affects the quantity or use of water in a river in NSW and affects the water taken and or the quantity of water flowing in, to or from such a river for the purpose of water conservation, irrigation, water supply or drainage.

13. Section 11 provides that if an application is made by an occupier of land for works under the WA, the Ministerial Corporation must give notice in the Gazette and a newspaper of the application in the district where the work is proposed. If objections are received within 28 days of the publication of the notice and the Ministerial Corporation decides to grant the licence for the works, then the Ministerial Corporation must apply to the Tribunal for an inquiry into the desirability of granting the application for a licence.

14. Section 11(6C) of the WA provides that in determining the desirability of granting the application for a licence the Tribunal must also consider the period terms, limitations and conditions to be applied to a licence.

15. Until 31 December 2014, S 4A of the WA included a local land board in the definition of “judicial body”. Amendments to the Act effective from 1 January 2014 removed the inclusion of local land boards from the definition of “judicial bodies” and in their stead placed the Civil and Administrative Tribunal (“the Tribunal”).

16. Section 4A of the WA sets out the matters that must be taken into account in the conduct of an inquiry as follows:

(1)  A judicial body is required, in carrying out any of its inquiry or appeal functions under this Act and in making any determination or recommendation with respect to any such inquiry or appeal, to take into account, and to have due regard to, the following matters:

(a) any relevant policy that concerns the subject-matter of the inquiry or appeal and that is brought to the attention of the judicial body,

(b) any State-wide water resource management objectives that are brought to the attention of the judicial body,

(c) any relevant inter-government agreement, treaty or arrangement relating to the management, preservation or sharing of the State’s water resources that is brought to the attention of the judicial body,

(d) the state of water resources, and the state of the environment generally, at a local, regional and State-wide level as brought to the attention of the judicial body,

(e) the impact that the judicial body’s determination or recommendation could or might have:

(i) on the allocation of water resources at a local, regional and State-wide level, and

(ii) on other persons who are entitled to take and use water (apart from those to whom the inquiry or appeal relates), and

(iii) on the state of water resources, and on the state of the environment generally, at a local, regional and State-wide level, and

(iv) in relation to the management, protection and enhancement of the State’s water resources.

(2)  In this section:

judicial body means the Land and Environment Court, the Civil and Administrative Tribunal or a Magistrate.

relevant policy means any governmental policy relating to the management, protection and enhancement of the State’s water resources.

(3) The Minister may certify, in writing, that a particular policy is, or was, a relevant policy in relation to a particular matter. The certificate is evidence of the relevant policy concerned.

17. Now repealed, but current at all relevant times, section 22A of the WA gives power to the Ministerial Corporation in times of emergency to permit any public authority to conserve or obtain water from a lake or river for the purpose of water supply for a town or village. Section 22A provides:

The Ministerial Corporation in any time of emergency or when there is an actual or threatened shortage of water may for such period and subject to such limitations and conditions as it may think fit authorise any public authority as prescribed to take such measures as may by the Ministerial Corporation be thought fit to conserve water in or obtain water from a river or lake for the purpose of supplying water or augmenting the supply of water for town or village water supply or other public purpose, and in the exercise of powers conferred by that authority the public authority may enter any land and construct and use any work to which this Part extends and it shall not be necessary for the public authority to obtain a licence or permit for any work constructed or used solely in respect of the authority so conferred by the Ministerial Corporation

Parties

18. The parties to the inquiry are:

1. The Ministerial Corporation being the NSW Office of Water, Department of Primary Industries.

2. The Applicant is the Orange City Council;

3. The First Objector is Summer Hill Creekcare Inc.

4. The Second Objector is Ophir Reserve Trust Board.

5. The Third Objector is Mirrabooka Farms Pty Ltd.

19. As to the objectors status, the objections by Cilla Kinross and Graham Sawyer, Summer Hill Creekcare Group Incorporated were dated 2 March 2009 and Richard White dated 5 March 2009, they were received by the Ministerial Corporation on 3 March 2009 and after 5 March 2009 respectively, being beyond the 28 days prescribed for making an objection. The parties acknowledged that those parties have been actively involved in a group of stakeholders held with the Ministerial Corporation and the Council in meetings and discussions prior to the referral to the Local Land Board. No objection to the late notice of objection was made by the Ministerial Corporation, Council or other objectors. If that defect is capable of remedy, then pursuant to Crown Lands Act 1989 the Chairperson of Local Land Board exercised the discretion allowed under Clause 3(n) and (o) of Schedule 2 and granted leave for the objections to be allowed notwithstanding the failure to be given within the time permitted under the WA.

Background

20. In and before 2007 the Council sought methods to complement its dwindling water supply. As at 12 November 2007 the City’s main supply of water, Suma Park Dam, held about 41% of its capacity.

21. By June 2008 the dam levels had dropped to 28% of capacity.

22. Council made submissions to the NSW Government for assistance and was granted $4.45 million in emergency drought relief funding to secure the City’s water supply.

23. On 17 July 2008 Orange City Council made an application pursuant to s22A of the Water Act 1912 to the Department of Water and Energy (“Ministerial Corporation”) for emergency approval to undertake water supply works as part of a scheme involving the construction of stormwater harvesting infrastructure to enable it to capture in excess of 2000 ML/a of stormwater runoff from Blackman’s Swamp Creek to augment Orange City’s main water supply storage at Suma Park Dam.

24. On 19 August 2008 Ministerial Corporation approved Councils request and that Stage 1 of the “Blackmans Swamp Creek Stormwater Harvesting-July 2008” could be constructed as follows:

1. One Pump Station (rated at 450L/s) on Blackmans Swamp Creek within Lot 2 DP 738478;

2. One 200ML By-wash Dam (holding pond) on unnamed watercourse within Lot 81 DP 1077737 and Lot 61 DP 790515;

3. One Pump Station (rated at 150L/s) located on the holding pond within Lot 81 DP 1077737 and Lot 61 DP 790515.

25. On 5 November 2008 Council sought from Ministerial Corporation approval for Stage 2 of the Blackmans Swamp Stormwater Harvesting Project to permit the construction of a weir with a maximum height of 2m fully contained within the existing creek section across Blackmans Swamp Creek. The pool to be created upstream of the weir would have a capacity of approximately 3ML.

26. On 19 November 2008 the Council made formal licence applications to the Ministerial Corporation for:

1. Application 1- a weir, located on Blackmans Swamp Creek and a Pump Station No.1: and,

2. Application 2- a Holding Dam (located on the tributary of Blackmans Swamp Creek) and Pump Station No.2.

27. On 1 December 2008 the Ministerial Corporation issued a replacement emergency approval for the Revised Stage 1 “Blackmans Swamp Creek Stormwater Harvesting-July 2008” to replace the emergency approval given on 19 August 2008 and licensed the Council to install and construct for a period of twelve months from the date of Stage 1 approval:

1. One Pump Station (rated at 450L/s) on Blackmans Swamp Creek within Lot 2 DP 738478;

2. One 200ML By-wash Dam (holding pond) on unnamed watercourse within Lot 81 DP 1077737 and Lot 61 DP 790515;

3. One Pump Station (rated at 150L/s) located on the holding pond within Lot 81 DP 1077737 and Lot 61 DP 790515.

4. A 3ML compacted earth and rock gabion harvesting weir on Blackmans Swamp Creek.

28. Pursuant to s10 of the Water Act notice of the applications were published in the NSW Government Gazette on 30 January 2009 and in the Western Magazine for the week commencing 2 February 2009 and calling for written objections to the applications from statutory authorities or local occupiers within the proclaimed local area under s 5(4) of the Act, being the Macquarie River Valley.

29. S 11(2A) of the Act requires objectors to lodge an objection within 28 days of publication of the notices with the Ministerial Corporation.

30. Objections were made by Denis and Ronda Marsh, Robert Pearce, Ian Pearce and Ross Pearce, directors of Mirrabooka Farms, DE & HM Zinga, the Ophir Reserve Trust Board, Cilla Kinross and Graham Sawyer, Summer Hill Creekcare Group Incorporated and Richard White.

31. On 24 December 2009 the Ministerial Corporation granted to the Council the emergency licenses for the holding dam and pumps (licence 80SL96298) and the harvesting weir and pumps (licence 80SL96299) contingent upon:

1. The withdrawal of all of the objections received; and,

2. No adverse response being raised in respect of the proposals by the NSW Native Title Services and the Aboriginal Land Council.

32. Pursuant to ss11(5) and (6) of the Act the Ministerial Corporation must apply to the Local Land Board for an inquiry into the desirability of granting the application for licence or licences within 28 days of objections being received.

33. On 16 January 2010 Summer Hill Creek Care Incorporated and Robert Pearce, Ian Pearce and Ross Pearce on behalf of Mirabooka Farms Pty Ltd confirmed their objection to the granting of the licences.

34. On 10 February 2010 the Council sought an extension of the emergency approval for the various structures comprising the Water Harvesting Scheme under s22A of the Act. The approval given by the Ministerial Corporation on 24 December 2009 included:

“Clause 6

The term of this approval shall expire on 16 February 2010. At cessation of this term the s22A application will be reassessed, and if circumstances warrant, an extension will be granted”

35. On 22 February 2010 the Ministerial Corporation granted the extension of emergency approval of Revised Stage 1 of the “Blackmans Swamp Creek Stormwater Harvesting-July 2008” for a further 6 months to 18 August 2010, to be revoked on the date that a permanent licence is granted. The approval was subject to additional conditions:

“1. Works referred to in Stage 1 of the REF titled “Blackmans Swamp Creek Stormwater Harvesting-July 2008” may be constructed and used under hte terms of this approval.

These works comprise of:

i. One Pump Station (rated at 450L/s) on Blackmans Swamp Creek within Lot 2 DP 738478;

ii. One 200ML By-wash Dam (holding pond) on unnamed watercourse within Lot 81 DP 1077737 and Lot 61 DP 790515;

iii One Pump Station (rated at 150L/s) located on the holding pond within Lot 81 DP 1077737 and Lot 61 DP 790515.

2. In addition to the above-mentioned works, a 3 ML compacted earth and rock gabion harvesting weir on Blackmans Creek as depicted in the drawing entitled “Harvesting Weir Layout & Typical Swamp Sections” (Drawing 04G_E30) may be constructed on Lot 2 DP 738478 and Lot 2 DP738366.

3. The crest of the harvesting weir will not exceed RL 842.000.

4. An unrestricted. 300mm diameter pipe will be installed through the harvesting weir with an upstream invert level of 839.980.

5. The works shall be operated in accordance with Operating Rules 1 to 9 as stated in the document entitled “Revised Harvesting Weir Operational Plan” and dated October 2009. This includes:

a. Pumping may only commence when the combined flow over the harvesting weir and through the unrestricted 300mm pipe exceed 1000Litres/second.

b. Cease to pump when the level of water stored behind the weir reaches a height of about 0.5 metres above the invert level of the 300mm pipe at RL 840.50 metres.

6. The term of this approval shall expire on 18 August 2010. At cessation of this term the s22A application will be re-assessed, and if circumstances warrant, an extension will be granted.

7. At such time as the NSW Office of Water considers the town supply emergency situation as having ceased to exist the subject works will need to be removed or rendered ineffective.

8. Where removal of a work is required, a period of 28 days will be allowed, however use/operation of the subject work will cease immediately.

9. The NSW Office of Water reserves the right to rescind or vary the terms and conditions of this approval at any time during its currency.

The approval DOES NOT EXTEND to the works or activities associated with revised stages 2 and 3 as stated in the document entitled ‘Revised Harvesting Weir Operational Plan’ and dated October 2008 or any other works”

36. On 26 February 2010 the Notice of Hearing of the inquiry before the Local Land Board was published in the NSW Government Gazette and the Central Western Daily to take place on 19, 20 and 21 April 2010 at Orange Court House.

37. On 8 April 2010 the Council, the applicant for the grant of the licences, gave notice to the Ministerial Corporation that it objected to the imposition of Condition 6 in each of the proposed Condition Statements for the grant of the licences.

Evidence

38. At the hearing before the Local Land Board on 19 April 2010 the Ministerial Corporation, the Council and the objectors, Ian Pearce and Ross Pearce, David Zinga , Leanne Spicer on behalf of the Ophir Reserve Trust Board and noting that Graham Marsh was away and could not appear at the hearing, Cilla Kinross on behalf of the Summer Hill Creekcare Group Incorporated appeared.

39. At the hearing the Ministerial Corporation tendered a bundle of documents that the Local Land Board admitted as Exhibit A as follows:

1. Councils submission to Minister for Energy Services and Minister for Water Utilities, The Hon. Nathan Rees, Proposal for Improving the Water Supply for Orange City Council dated 12 November 2007;

2. News Release Iemma Government delivers $4.45M Emergency Drought Relief for Orange dated 24 June 2008;

3. Application under s 22A of the Water Act 1912 for emergency approval to undertake water supply works dated 17 July 2008;

4. Letter from former Department of Water and Energy to Orange City Council advising decision to approve Stage 1 works under s 22A dated 19 August 2008;

5. Application for emergency approval amended weir structure dated 5 November 2008;

6. Licence applications dated 19 November 2008;

7. Letter from former Department of Water and Energy to Orange City Council advising decision to approve Stage 1 works and amended weir structure under s 22A dated 1 December 2008;

8. Advertisement of applications placed in NSW Government Gazette dated 30 January 2009;

9. Advertisement of applications placed in local print media (Western Magazine) dated 2 February 2009;’

10. Letters of objection from:

1. Denis and Rhonda Marsh dated 26 February 2009;

2. Robert S. Pearce, Ina R.S. Pearce and Ross C. Pearce dated 26 February 2009;

3. DE & HM Zinga dated 27 February 2009;

4. Ophir Reserve Trust Board dated 27 February 2009;

5. Cilla Kinross and Graham Sawyer dated 2 March 2009;

6. Summer Hill Creek Care Incorporated dated 2 March 2009;

7. Richard White dated 5 March 2009.

11. Request for extension of s 22A approval dated 14 July 2009;

12. Extension of s22A emergency approval of revised Stage 1 works dated 24 August 2009;

11. Letter of offer to Orange City Council regarding application and proposed conditions dated 24 December 2009;

12. Notice of Local Land Board hearing dated 15 January 2010;

13. Letters confirming objection from:

1. Summer Hill Creekcare Group Incorporated dated 16 January 2010;

2. Robert S Pearce, Ian R.S. Pearce and Ross C. Pearce dated 16 January 2010;

16. Request for further extension of s22A emergency approval of revised stage 1 works dated 22 February 2010;

17. Advertisements placed in the NSW Government Gazette and local print media (Central Western Daily) in relation to Local Land Board Inquiry dated 26 February 2010;

18. Letter from Orange City Councils solicitors dated 8 April 2010 objecting to condition 6 of both proposed licences.

40. The Council tendered a bundle of documents that the Local Land Board admitted as Exhibit 1 as follows;

a. A report by Geolyse dated July 2008, being a Review of Environmental Factors (“REF”) of Blackmans Swamp Creek Stormwater Harvesting.

a. The REF concludes that there are no specific guidelines in force under Clause 228(1) of the Environmental Planning and Assessment Regulation 2000 (“EPAR”) for the Blackmans Creek Swamp Creek stormwater harvesting scheme as proposed.

b. The REF identifies activities factors that must be taken into account concerning the impact on the environment as they relate to Clause 228

(2) of the EPAR, they are:

i. Any environmental impact on a community. The REF finds that there will be no adverse impact on the community. Only if too much water is taken by the system would downstream impacts be experienced by the community;

ii. Any transformation of a locality. The REF concludes that there would be no restriction on existing land uses;

iii. Any environmental impact on the ecosystems of the locality. The conclusion is that no significant impact will result on ecosystems in the locality. The scheme will be constructed on extensively modified lands, devoid of vegetation of conservation significance or quality habitat. The scheme will not effect:

1. any conservation agreement entered into under the National Parks and Wildlife Act 1974;

2. Any joint management agreement entered into under the Threatened Species Conservation Act 1995;

3. Any bio banking agreement entered into under Part 7A of the Threatened Species Conservation Act;

4. Any wilderness area within the meaning of the Wilderness Act 1987;

And; not likely to be a significant effect on threatened species, populations or ecological communities or those habitats.

iv. Any reduction of the aesthetic, recreational, scientific or other environmental quality or value of a locality. The REF concludes there will be no reduction of those elements.

v. Any effect on a locality, place or building having aesthetic, anthropological, archaeological, architectural, cultural, historical, scientific or social significance or other special value for present or future generations. The REF finds that the downstream environment “is prized for its recreational and nature conservation attributes, as well as its historical significance”. However, the scheme will not compromise the integrity of the resource.

vi. Any impact on the habitat of protected fauna within the meaning of the National Parks and Wildlife Act. There will be no impact on the habitat of protected fauna.

vii. Any endangering of any species of animal, plant or other form of life, whether living on the land, in the water or in the air. The REDF finds that there will be no resulting endangering of the considerations set out in these criteria.

viii. Any long term effects on the environment. The Operating Rules proposed by the Ministerial Corporation, including monitoring the water flows, will allow for the long term effects on the environment to be understood and that no such impact would present an irreversible impact.

ix. Any degradation of the quality of the environment. The quality of the environment will not be degraded.

x. Any risk to the safety of the environment. Adherence to the Operating Rules will avoid the risk of too much stormwater being extracted from the system at inappropriate times.

vixi. Any reduction in the range of beneficial uses of the environment. There will be none.

ix. Any pollution of the environment. There is minor potential for erosion or sedimentation impacts during construction and will be managed through the installation and monitoring of sedimentation controls. Noise impacts will be managed through effective consultation with neighbours. The Scheme will remove polluted water from the Blackmans Swamp Creek system with beneficial environmental outcome.

xii. Any environmental problems associated with the disposal of waste. The scheme will accumulate particulate matter recovered from the filtering of the raw stormwater. That material will be collected and disposed of at the Ophir Road Landfill. Gross pollutants will be trapped at Dalton Street and Margaret Stevenson Park and removed to landfill.

xiv. Any increased demands on resources (natural or otherwise) that are, or likely to become, in short supply. The stormwater harvesting scheme is a scheme designed to better utilise scarce resource of water. Construction will entail use of materials and equipment for which there is no shortage. The scheme will require the consumption of power and electricity.

xv. .Any cumulative environmental effect with other existing or likely future activities. Securing the water supply for Orange City will entail structural and non-structural efforts. The scheme is one of the measures to be taken. There will be an impact for the stormwater harvested; however, the impact will be adaptively managed.

41. Included in Exhibit 1 as its last page is a letter dated 1 July 2008 from the Land Housing Enterprise addressed to Geolyse in relation to “Blackman’s Swamp Creek Stormwater Harvesting –Orange City Council” stating that:

The Orange Local Aboriginal Land Council participated in the above site assessment on 2 separate days 16/4/2008 James Williams and 20/6/2008 Chad Morgan, with representatives of GEOLYSE.

Regarding the report sent to the OLALC sections5.3. The OLALC wishes to thank GEOLYSE for their involvement and consideration of cultural heritage factors that have been noted in the report.

42. At the inquiry on 15 December 2014 the Ministerial Corporation tendered a bundle of documents. The Tribunal admitted that bundle as Exhibit 2. Exhibit 2 included:

1. Exhibit 1;

2. Geolyse Report of April 2010 which concluded:

a. That it the first 12 months of operation of the emergency Blackmans Swamp Creek Stormwater Harvesting Scheme:

i. There were 46 harvesting events from 4 April 2009 to 3 April 2010; the total volume harvested from these events was 582.11 ML; this was in a below average rainfall year.

ii. . The harvesting scheme is performing almost as expected. Runoff volumes are less than expected which results in less harvested water. Modelling of the scheme has been revised to reflect this.

iii. Runoff and harvesting events are highly variable.

Iv The harvest pumps have only operated for 390.9 hours, or 4.5% of the time (year).

v.Raw Stormwater quality is variable, as expected. The treatment process is providing water quality that meets the scheme target and is predominately of better quality than the water in the main water supply dam.

vi 182 tonnes of gross pollutants were removed from Blackmans Swamp Creek.

43. b. Assessment of the scheme’s impact over the 12 moths concludes:

i. The scheme is operating as predicted in the REF and subsequent modifications. It only harvests from high flow events.

ii.The total volume harvested is abot 14.4% of the total run off volume generated from the catchment over the year. This is less than predicted I the REF which indicated an average of about 18%.

iii. The harvesting scheme still lets flushes down Summer Hill Creek. The number of flushes remains the same; the peak of most flushes is reduced by the amount harvested. The harvesting scheme still allows high flows through the system to flush it out. It also allows low flows to continue which help keep pools along the system topped up.

iv. The harvesting scheme does not impact on base flows, or low flows, in the Blackmans Swamp Creek or Summer Hill Creek System.

v. The REF indicated that the scheme would provide the potential for banking of environmental water for environmental purposes. In the drier than average year this was shown to be achievable and the revised Operating.

vi. Rules now allow for 250ML environmental water.

1. Report of Chris Devitt, Director of Technical Services Orange City Council dated 19 April 2010 describing the need for water supply augmentation for Orange City, setting out a strategy and proposing the Blackmans Swamp Creek Stormwater Harvesting Scheme as providing water supply security for Orange.

2. Statement of Issue provided by Mirrabooka Farms.

3. Joint Expert Report of Geolyse and Storm Consulting Pty Ltd, dated August 2013 setting recommendations as:

a. Orange City Council [“OCC”] invokes 4 environmental flow rules and the report of Entura, contingent upon approval of Stage 1 of the Blackmans Swamp Creek Stormwater Harvesting Scheme. The ability to use Stage 1 would be triggered whenever Suma Park Dam storage levels fell below 100% and would involve continues use of the existing 3 ML harvesting weir, the existing pumps with a maximum combined capacity of 450 L/s and a 300 mm diameter low flow pipe embedded in the weir.

.b. stakeholder group be formed to review the operation and effectiveness of the environmental flow rules. This group shall meet regularly as described [in section 3 of this joint report]. OCC may wish to use an independent facilitator to manage the stakeholder group meetings. Ideally this would be someone recommended by the Stakeholder Group.

c. OCC undertakes annual assessment of the health of Summer Hill Creek and develops adaptive management approach to creek health and environmental flows in accordance with Section 9.5.3 of the Entura Report. In the first instance if there is a decline in creek health then OCC may exercise its right to remedy the decline without altering the environmental flows. This would typically be the case if related to land management practices adjacent to the creek. If this is not successful in restoring the creek health then OCC agrees to either revise its operation or its flow rules to restore the creek health to baseline conditions in liaison with the stakeholder group.

d. Any amendments to the environmental flow rules above including cessation in part or all. Are subject to the approval of the proposed stakeholder group.

e. If Rule 4 is implemented and Rules 1,2 and 3 cease to operate, OCC shall undertake a thorough and detailed, independent review of all modelling work undertaken to date and update all models and the proposed IWCM strategy in light of any new or revised information.

4. Report prepared by Geolyse dated November 2013. The report provides a summary of the impact on Mirrabooka Farms by the operation of Stage 1 of Blackmans Swamp Creek Stormwater Harvesting Scheme:

a. The modelling results, including a detailed assessment of the influence of creek losses, show that there would be no detrimental impact on Mirrabooka Farms’ [water] extraction rights with the operation of Stage 1 of the Blackmans Swamp Creek Stormwater Harvesting Scheme.

b. The April 2009 to April 2010 operational data indicates that the harvesting Scheme operated as predicted.

c. There is no evidence in the April 2009 to April 2010 operational data indicates a detrimental impact on Mirrabooka Farms’ extraction rights.

d. Operation of Stage 1 of the Blackmans Swamp Stormwater Harvesting Scheme, as currently constructed and whenever Suma Park Dam storage levels fall below 100% would not have a significant adverse impact on the ability of Mirrabooka Farms to access their water entitlement.

e. With regard to the impact on Summer Hill Creek system the author says that the analysis presented by the report supports the assessment and findings that were presented in the REF. The report concludes that it is unlikely that the operation of Blackmans Swamp Stormwater Harvesting Scheme to result in adverse environmental impact.

5. Statement of Approval 80CA722752 issued under the Water Management Act 2000 by the Office of Water, Department of Primary Industries to Orange City Council for water supply works on the Summer Hill Creek Water Source including installation of pumps, overshot dam , town water supply and among other things permitting the raising of the level of the Suma Park Dam Wall.

6. Proposed Conditions Statement for Licence 80SL096298 being the holding dam and pump the subject of this inquiry.

7. Proposed Conditions Statement for Licence 80SL096299 being the weir and pump the subject of this inquiry.

8. A letter from Whitely, Ironside & Shillington, Solicitors for Mirrabooka Farms Pty Ltd dated 5 November 2014 withdrawing their client’s objection to the proposed granting of the licences the subject of this inquiry.

9. A letter from the Environmental Defenders Office, dated 10 November 2014 withdrawing the first and second objectors objections to the proposed licences 80SL096298 and 80SL096299, the subject of this inquiry.

10. Exhibit A.

Submissions

44. With the withdrawal of the objections, the only parties appearing at the hearing were the Ministerial Corporation and the applicant, Orange City Council. The submissions filed by the Objectors were not taken into evidence as the Objectors had withdrawn their Objections,

45. Orange City Councils submission:

1. Affirms that it seeks a finding form the Tribunal that it is desirable for licences to be granted to it under s12 of the WA in respect of Blackmans Creek Stormwater Harvesting Scheme and to determine that the licence should be granted subject to the agreed conditions.

2. Sets out the background that is referred to in the reports tendered to the Tribunal.

3. The application before the Tribunal for inquiry and report is in relation to the desirability for the licences for the permanent water harvesting scheme for the holding dam and pump and the weir and pump.

4. Until early November 2014, objectors maintained their objection to the proposed grant of the licences. The objectors having withdrawn their objections:

1. Mirrabooka Farms Pty Ltd on 5 November 2014 ;

2. Ophir Trust and Summer Hill Creekcare Inc on 10 November 2014; and,

3. no reservation or objection has been expressed or claimed from NSW Native Title Service or NSW Aboriginal Land Council.

5. By the withdrawal of the objections the Tribunal is at liberty to consider the desirability of granting the licences, the Ministerial Corporations condition precedent having now been fulfilled.

6. The applicant submits that the Tribunal in consideration of the granting of the licences may consider anything it considers to be relevant guide by the subject matter and the object and purposes of the Water Act: Swan Hill Corporation v Bradbury (1937) 56 CLR 746; Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492. As such, the expert evidence shows that the benefits of granting the licences will have little discernible effect on the environment or other users of the Creek system.

7. The applicant submits that there are three important factors supporting the desirability of granting the licences:

1. The Ministerial Corporation does not oppose the grant;

2. There are no remaining objections to the grants;

3. Expert evidence adduced establishes the merits of making the grants.

8. Had the objections not been made, then the Ministerial Corporation would have been empowered under the Act to grant the licences without the obligation to conduct an inquiry as is now undertaken: see s 12(1)(a) of the Act. Now without objections, considerable weight should be given by the Tribunal to the Ministerial Corporations support for the grant: Woolworths Limited v Pallas Newco Pty Limited [2004] NSWCA 422 at [88].

9. The expert evidence establishes that the proposed scheme involves the opportunistic harvesting of stormwater when Suma Park Dam falls below 100% capacity. The Tribunal has the benefit of the Geolyse Report of 2008 and the Report of 2010. The 2010 report provides evidence of the proposals in the 2008 report as achieving their intended outcomes and that the effect of the first 12 months of operation is that there was no impact of the high or low flows in the Blackmans Swamp Creek or Summer Hill Creek Systems.

10. The applicants urge the Tribunal to accept that unchallenged and unqualified statement as supportive of the grant of the licences.

11. Since the applications were made and listed before the Local Land Board, the Ministerial Corporation has granted to the applicant the relevant licences under the Water Management Act 2000 to raise the wall height of the Suma Park Dam by one meter. The joint report of the experts and Mirrabooka Farms agreed that the resulting flows provided by the Operational Rules would “meet the needs of downstream users and the environment” and this was “regardless of the proposed Stage 1 and 2 of stormwater harvesting of Blackmans Swamp Creek”.

12. The conditions proposed by the Ministerial Corporation are appropriate and satisfy the considerations of the Tribunal.

46. The Ministerial Corporation’s submissions are that the relevant considerations of the Tribunal should:

1. be what effect the granting of licences will have:

1. On the allocation of water resources at a local, regional and State wide level; and,

2. On other persons who are entitled to take and use water (apart from those to whom the inquiry or appeal relates); and,

3. On the state of water resources and on the state of the environment generally at a local regional and State-wide level; and,

4. In relation to the management, protection and enhancement of the State’s water resources.

On the allocation of water resources at a local, regional and State wide level

1. The Ministerial Corporation does not consider that the grant of the licences will have a significant impact on the allocation of water resources at a regional or State level. The allocation does not provide the applicants with any increase in volumetric entitlement. The works will provide Council with an alternate point for extracting its existing entitlement.

On other persons who are entitled to take and use water (apart from those to whom the inquiry or appeal relates)

1. Although there will be additional extraction from the Summer Hill Creek Sub-catchment, the REF concludes that the construction and operation of the Blackmans Swamp Stormwater Harvesting Scheme is unlikely to result in a significant adverse impact. The impact locally on the available water resource will be mitigated by the flow conditions, unrestricted bed level pipes, low overshot weir structure and the monitoring as set out in the proposed conditions statements to the licences. Those conditions are conservative and in keeping with the spirit of the original s22A approval and funding.

2. Existing licences for other users granted by the Ministerial Corporation include 3 irrigation, 2 stock and domestic licences on Summer Hill Creek downstream of the extraction point and there is one irrigation licence on Blackmans Swamp Creek downstream of the extraction weir. None of those licences have flow conditions attached to them.

3. A number of properties with frontage to Summer Hill Creek and Blackmans Swamp Creek downstream of the extraction point which may take water for stock and domestic purposes.

4. The Ministerial Corporation submits that since the commissioning of works under the s22A approval in 2008 “no complaints from any party have been received, including during relatively dry periods and gives some confidence that the impacts of the proposed licences on third parties is acceptable. This is supported by the evidence contained in the Geolyse Report of 2010.

On the state of water resources and on the state of the environment generally at a local regional and State-wide level

1. The purpose of the system is to supplement Orange City Council’s water storage. With such an increase in the storage the town water restrictions may be relaxed resulting in a negative in that greater water would be used and a positive in that there will be increased confidence in water security for the town and its occupants.

1. Greater water security may result in increased confidence for future investment and development within the City and region. Without the Scheme and if drought conditions continue then there will be constraints caused by the need to impose extreme water restrictions and availability.

2. The Ministerial Corporation submits that the proposed licences and works permitted will not have an impact on the state of water or the state of the environment generally at either a regional or State wide level.

In relation to the management, protection and enhancement of the State’s water resources

1. The Ministerial Corporation submits that operation of the Scheme is unlikely to impact in a significant adverse environment impact and that the operation of the Scheme is likely to enhance the City’s water resource but not necessarily the State’s. The expert opinion contained in the Geolyse Reports of 2008 and 2010 support this contention.

Findings

47. The Tribunal is satisfied that:

1. the applicant is an entity entitled to make an application pursuant to s10 of the WA for licences to carry out works;

2. The Ministerial Corporation has complied with s11(1) as to advertising the application;

3. The Objectors are entitled to make objection to the proposed grant of licences as they are persons whose interests may be affected by the grant of the licenses and they have complied with s11(2) and (2B).

4. The Ministerial Corporation on making its decision to grant the licences has complied with s11(5) for the Local Land Board to conduct an inquiry.

5. The Local Land Board had jurisdiction to undertake the inquiry and as its successor, the Tribunal has jurisdiction to complete the inquiry into the desirability of granting the application for the licences and determine whether the licences should be granted and, if so, the period, terms, limitations and conditions to be applied to the licence.

48. The Tribunal has considered the evidence tendered and the submissions made by the Ministerial Corporation and the applicant.

49. An issue was raised by the counsel appearing at the inquiry for both parties that if the objections had been withdrawn is the Tribunal required to complete its inquiry and make its report to the Minister.

50. Neither party made written submission in this regard.

51. The Tribunal notes that the objectors withdrew their objections shortly before the final hearing date.

52. S 11(5) imposed on the Minister an obligation to apply to the Local Land Board and now the Tribunal for an inquiry into the desirability of granting licences under the WA if an objection was made under s11(2) or (2A) and the Minister proposes to grant such licences.

53. There is no provision in the WA that permits such an inquiry to cease if the objections are withdrawn before the inquiry proceeds.

54. For the purposes of conducting this inquiry the Tribunal finds that as the Minister has applied for the inquiry it must be completed notwithstanding that the objections are withdrawn as the Tribunal must fulfil its statutory role and duty in considering the desirability of the grant of the licences and if it is found desirable what if any conditions should be imposed on the grant.

55. In considering the desirability of the grant of the licences, the Tribunal must consider those matters set out in s4A of the WA.

56. Any relevant policy that concerns the subject-matter of the inquiry or appeal and that is brought to the attention of the judicial body? There has been no policy drawn to the attention of the Tribunal.

57. Any State-wide water resource management objectives that are brought to the attention of the judicial body. There have been no State-wide water resources management objectives brought to the attention of the Tribunal.

58. Any relevant inter-government agreement, treaty or arrangement relating to the management, preservation or sharing of the State’s water resources that is brought to the attention of the judicial body. There have been no inter-government agreements, treaty or arrangement relating to the management, preservation or sharing of the State’s water resources brought to the attention of the Tribunal.

59. The state of water resources, and the state of the environment generally, at a local, regional and State-wide level as brought to the attention of the judicial body. These matters were addressed in the evidence of the applicant. The Tribunal has considered that evidence. The Tribunal is satisfied that the expert reports of Geolyse dated 2008 and 2010 set out the state of the water resources and the state of the environment generally in the locality of the proposed Scheme and find that the impact of the proposed licences will have minimal impact on the state of water resources and the environment locally. The state of the water resources and the environment regionally and State-wide has not been brought to the attention of the Tribunal.

60. The impact that the judicial body’s determination or recommendation could or might have:

1. on the allocation of water resources at a local, regional and State-wide level,

1. The Ministerial Corporation and the applicant both submit that evidence is that the grant of the licences will have a not have a significant impact on the allocation of water resources at a regional or State level.

2. The applicants will not receive any increase in volumetric entitlement. The works will provide Council with an alternate point for extracting its existing entitlement.

3. The Tribunal is satisfied on the evidence before it that there will be little impact on the allocation of water resources regionally and State-wide. The allocation of the water resources locally will be improved without burdening the overall water resources.

2. on other persons who are entitled to take and use water (apart from those to whom the inquiry or appeal relates),

1. The REF (Geolyse 2008) concludes that the construction and operation of the Blackmans Swamp Stormwater Harvesting Scheme is unlikely to result in a significant adverse impact. The impact locally on the available water resource will be mitigated by the flow conditions, unrestricted bed level pipes, low overshot weir structure and the monitoring as set out in the proposed conditions statements to the licences.

2. On the submission of the Ministerial Corporation the existing landholders upstream and downstream will be little affected by the Scheme. The conditions of the grant of the licences will provide sufficient protection against adverse events. Significantly, the Scheme has had the opportunity to be tested in the time since the installation of the emergency works. The Ministerial Corporation submits that since the commissioning of works under the s22A approval in 2008 “no complaints from any party have been received, including during relatively dry periods and gives some confidence that the impacts of the proposed licences on third parties is acceptable. This is supported by the evidence contained in the Geolyse Report of 2010.

3. The Tribunal is satisfied that there will be little impact on other persons entitled to take and use water from the water system.

3. on the state of water resources, and on the state of the environment generally, at a local, regional and State-wide level,

1. Greater water security may result in increased confidence for future investment and development within the City and region. Without the Scheme and if drought conditions continue then there will be constraints caused by the need to impose extreme water restrictions.

2. The Tribunal is satisfied that while the proposed licences and works permitted will have significant benefit for the supplementation of the water supply for Orange City, they will not have an impact on the state of water or the state of the environment generally at either a regional or State wide level.

4. in relation to the management, protection and enhancement of the State’s water resources.

1. The expert opinion contained in the Geolyse Reports of 2008 and 2010 support this contention that the operation of the Scheme is unlikely to have a significant adverse environmental impact and that the operation of the Scheme is likely to enhance the City’s water resource but not necessarily the State’s.

61. Significantly the Tribunal takes note of the applicant’s submissions. In particular, that the Ministerial Corporation does not oppose the grant, there are no remaining objections to the grants and expert evidence adduced establishes the merits of making the grants.

62. The Tribunal is satisfied that the proposed conditions set out in the condition statements for the licences attached to the applicant’s submission will adequately protect the other local users of the water resource and the environment. The environmental, other interested persons and the commercial users of the water resource concerns are satisfied by those conditions.

63. The Tribunal is satisfied of the desirability of the granting of both licences subject to the conditions of grant set out in the Condition Statements tendered to the Tribunal with the applicants submissions and numbered 80SL09698 and 80SL096299 and recommends that such licences be granted.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

09 April 2015 - Corrected case title and legal representatives for the parties in cover sheet.

Decision last updated: 09 April 2015