Piper v The Minister for Water, Property and Housing, (The Minister Administering the Water Management Act 2000)

[2024] NSWLEC 1654

Land and Environment Court

New South Wales

Medium Neutral Citation:

Piper v The Minister for Water, Property and Housing, (The Minister Administering the Water Management Act 2000) [2024] NSWLEC 1654

Hearing dates:

Conciliation conference on 22 March 2024; 20 May 2024; 17 June 2024; 1 & 22 July 2024; 2 & 30 August 2024; 1 & 4 October 2024

Date of orders:

16 October 2024

Decision date:

16 October 2024

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Approval is granted to application no. A027942 for an amendment to Flood Work Approval 90FW833762, being for the flood works on the farm known as Auburn located at Wee Waa, New South Wales, as depicted in the Plan attached as Annexure A, and subject to the conditions attached as Annexure B.

Catchwords:

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

Legislation Cited:

Land and Environment Court Act 1979, s 34

Water Management Act 2000, ss 5(6), 95, 100

Texts Cited:

Floodplain Management Plan for the Lower Namoi Valley Floodplain 2020

Category:

Principal judgment

Parties:

Corie Piper (First Applicant)
Nicole Louise Piper (Second Applicant)
The Minister for Water, Property and Housing, (The Minister Administering the Water Management Act 2000) (Respondent)

Representation:

Counsel:
S Horton (Solicitor) (Applicants)
E Hall (Solicitor) (Respondent)

Solicitors:
Horton Rhodes Legal Pty Ltd (Applicants)
Clayton Utz (Respondent)

File Number(s):

2023/449607

Publication restriction:

Nil

JUDGMENT

1. These proceedings arise following an appeal against the refusal by the delegate of the Minister for Water, Property and Housing, (The Minister Administering the Water Management Act 2000) to grant approval to an application for an amendment to a flood work approval (no. A027942) under s 95 of the Water Management Act 2000 (WM Act) (the application). The application relates to the property known as Auburn located near Wee Waa, New South Wales.

2. The application was refused on 30 November 2023 by reason of its claimed non-compliance with the requirements of clauses 44(4)(a)(i) and 44(4)(d) of the Floodplain Management Plan for the Lower Namoi Valley Floodplain 2020 (FMP) and because it was claimed that the works the subject of the application did not relevantly avoid or minimise land degradation or rehabilitate the land within the area of the works in accordance with the water management principle set out in s 5(6) of the WM Act.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was first held on 22 March 2024 and reconvened over an extended period. I presided over the conciliation conferences.

4. Following receipt of further information from the applicants at the s34 conference, I am advised that the Minister has formed the opinions required by clauses 44(4)(a)(i) and 44(d) of the FMP and is now satisfied that s 5(6) of the WM Act is complied with and that the application complies with the FMP and the WM Act and can be approved.

5. Having resolved the contentions, 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 s34 agreement dated 11 October 2024 which annexes a final agreed plan of works as Annexure A, and an agreed suite of conditions that may be imposed on the approval pursuant to s 100 as Annexure B.

6. After considering the parties’ jurisdictional submissions, I am satisfied that the Court, exercising the function under s 95 of the WM Act, has power to grant approval to the application subject to the agreed conditions in Annexure B.

7. In forming that view, I accept that:

• the final plan of works is compliant with the FMP;

• the Minister has formed the opinions required by clauses 44(4)(a)(i) and 44(4)(d) of the FMP; and

• the Minister is satisfied that the application is compliant with the water management principle set out in s 5(6) of the WM Act.

8. 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.

9. The Court notes that each party is to bear its own costs.

10. The Court orders:

1. The appeal is upheld.

2. Approval is granted to application no. A027942 for an amendment to Flood Work Approval 90FW833762, being for the flood works on the farm known as Auburn located at Wee Waa, New South Wales, as 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 (779154, pdf)

Annexure B (132356, pdf)

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Decision last updated: 16 October 2024