Pechelba Pty Ltd v Minister administering the Water Management Act 2000

[2023] NSWLEC 1454

Land and Environment Court

New South Wales

Medium Neutral Citation:

Pechelba Pty Ltd v Minister administering the Water Management Act 2000 [2023] NSWLEC 1454

Hearing dates:

Conciliation conference on 14 August 2023

Date of orders:

14 August 2023

Decision date:

14 August 2023

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Approval is granted to the Application A018143 as amended by order of the Court dated 2 August 2023 for the flood works being flood management infrastructure (channels, levies and associated infrastructure) on Deer Park and Pechelba, depicted in the Plan attached as Annexure A, and subject to the conditions attached as Annexure B.

Catchwords:

APPEAL – flood work approval application – conciliation conference – agreement between the parties

Legislation Cited:

Land and Environment Court Act 1979, s 34

Water Management Act 2000, ss 95, 100

Category:

Principal judgment

Parties:

Pechelba Pty Ltd (First Applicant)
Pechelba Enterprises Pty Limited (Second Applicant)
Minister administering the Water Management Act 2000 (Respondent)

Representation:

Counsel:
C Ireland (Applicants)
J Clayton (Solicitor) (Respondent)

Solicitors:
hortonrhodes (Applicants)
Clayton Utz (Respondent)

File Number(s):

2022/234313

Publication restriction:

Nil

JUDGMENT

1. On 22 July 2023 the Minister refused the applicants’ application for flood work approval no. A018143 in respect of two properties within an area managed by the Floodplain Management Plan for the Gwydir Valley Floodplain 2016 (FMP), and known as Deer Park and Pechelba.

2. In short, the application was refused because it did not comply with the requirements of the FMP.

3. Following lodgement of the appeal, on 2 August 2023, the applicants sought and were granted leave to amend their application to include a final plan of works in Zones A, B and C which the Minister accepts satisfies the criteria in the FMP. The parties now seek resolution of the proceedings in accordance with the terms of a decision in the proceedings that would be acceptable to them, as set out in their filed s34 written agreement dated 9 August 2023 which annexes a final agreed plan of works as Annexure A (final plan of works), and an agreed suite of conditions that may be imposed on the approval pursuant to s 100 of the Water Management Act 2000 as Annexure B.

4. On 14 August 2023 the matter was allocated to me for a conciliation between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act). After a review of the amended application and a consideration of the parties’ written submission on jurisdiction, I am satisfied that the Court exercising the function under s 95 of the WM Act has power to grant approval to the amended application subject to the agreed conditions.

5. In forming that view I accept that the final plan of works is compliant with the FMP because the works depicted in that plan as works for which approval is sought (works) are in Zones A, B and C as designated in the FMP and satisfy the assessment criteria in the FMP for works in those zones for the reasons outlined below.

6. In that regard, I accept that the Minister has formed the opinions required by clauses 39 and 40 of the FMP to the extent that the works are within Zone A.

7. To the extent the works are within Zone B, the Minister has formed the opinion that those works are not required to be advertised pursuant to clause 41 of the FMP as, in accordance with the application in the form in which it is now before the Court, those works have a height of no more than 40cm above the natural surface level at any location.

8. The Minister has formed the opinions required by clause 42 of the FMP in respect of the works, to the extent required, noting the provisions of clause 42(6).

9. To the extent that the works are in Zone C, the Minister has formed the opinion that those works are existing works which were considered as part of the development of the matters identified in clause 43 of the FMP and, therefore:

1. Those works have been considered as part of the development of the FMP;

2. The Minister’s consideration of the application has had regard to these matters; and

3. Having regard to the Minister’s consideration of those matters, clause 43 has been satisfied in respect of those works.

10. As the parties’ decision is within power as required by s 34(3) of the LEC Act, I now dispose of the proceedings in accordance with their decision.

11. The Court orders:

1. The appeal is upheld.

2. Approval is granted to the Application A018143 as amended by order of the Court dated 2 August 2023 for the flood works being flood management infrastructure (channels, levies and associated infrastructure) on Deer Park and Pechelba, depicted in the Plan attached as Annexure A, and subject to the conditions attached as Annexure B.

……………………..

S Dixon

Senior Commissioner of the Court

Annexure A (730889, pdf)

Annexure B (149021, pdf)

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