PRESTIDGE and DEPARTMENT OF WATER AND ENVIRONMENTAL REGULATION - [2023] WASAT 9

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: RIGHTS IN WATER AND IRRIGATION ACT 1914 (WA)
CITATION:   PRESTIDGE and DEPARTMENT OF WATER AND ENVIRONMENTAL REGULATION [2023] WASAT 9
MEMBER:   MS C BARTON, MEMBER
HEARD:   1, 2 AND 3 NOVEMBER 2022
DELIVERED          :   24 FEBRUARY 2023
FILE NO/S:   DR 4 of 2022
BETWEEN:   DEAN BRIAN PRESTIDGE
Applicant
AND
DEPARTMENT OF WATER AND ENVIRONMENTAL REGULATION
Respondent

Catchwords:

Water licensing - Licence to take water - Licence condition - Farm dam - Watercourse - Bypass flows - Winter take period - Whether condition consistent with water allocation plan - Whether condition practical to comply with - Annual water entitlement - Whether condition restricts taking of annual water entitlement - Sustainable diversion limit - Sustainable yield - Transitional flows - Shoulder flows - Ecological water requirements - River ecology - Ecological values - Social and cultural values - Downstream environment - Recreational users - Ecologically sustainable - Environmentally acceptable - Government policy-making - Application of policy - Consistently applied policy - Current and future needs for water - Public interest - Community consultation - Stakeholder engagement - Licence duration

Legislation:

Evidence Act 1906 (WA)
Rights in Water and Irrigation Act 1914 (WA), s 2, s 2(1), s 3(1), s 4, s 4(1), s 4(3), s 5C, s 5C(1)(d), s 5C(3), s 26GG(1)(c), Sch 1, cl 6(2), cl 6(3), cl 6(4), cl 7(1)(d), cl 7(2), cl 7(2)(a), cl 7(2)(b), cl 7(2)(c), cl 7(2)(e), cl 7(2)(g), cl 7(5), cl 12, cl 15(2), cl 22, cl 22(2), cl 22(3)(b), cl 24, cl 25
Rights in Water and Irrigation Act Amendment Bill 1999 (WA)
State Administrative Tribunal Act 2004 (WA), s 17, s 18, s 27, s 27(1), s 28, s 29(3), s 32(1), s 32(2)(a), s 32(2)(b)

Result:

Application allowed in part

Category: B

Representation:

Counsel:

Applicant	:	Mr K Taylor (Acting as agent)
Respondent	:	Ms C Ide

Solicitors:

Applicant	:	N/A
Respondent	:	State Solicitor's Office

Case(s) referred to in decision(s):

Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; (1979) 2 ALD 60
Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98
Koltasz Smith & Partners v Western Australian Planning Commission (2000) 23 SR (WA) 266
Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100
Marsh and Commissioner of Police [2018] WASAT 139
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
More and Water and Rivers Commission [2006] WASAT 112
Ord Irrigation Cooperative Ltd and Department of Water and Environmental Regulation (2020) 100 SR(WA); [2020] WASAT 68
Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83
Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR (WA) 1
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Save Beeliar Wetlands (Inc) v Jacob [2015] WASC 482

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The applicant, Mr Dean Prestidge (applicant), is the holder of licence SWL65625 to take surface water (licence) granted by the Minister for Water on 10 December 2021 (Minister's decision) pursuant to s 5C of the Rights in Water and Irrigation Act 1914 (WA) (RIWI Act).
The respondent is the Department of Water and Environmental Regulation (respondent/DWER/Department).
The applicant takes water for horticultural purposes by way of an onstream dam which intercepts the Lefroy Brook, located in the Upper Lefroy subarea identified in the Warren Donnelly Surface Water Allocation Plan (Water Allocation Plan).
On 6 January 2022, the applicant commenced proceedings in the Tribunal pursuant to s 26GG(1)(c) of the RIWI Act to review the Minister's decision in respect of condition 2 of his licence which provides (condition 2/WTP condition):
2.The licensee shall only take water from the watercourse to fill the dam between 15 June and 15 October each year, or as otherwise directed by the Department of Water and Environmental Regulation.
Whilst the applicant is aggrieved by condition 2, the respondent says there are sound environmental reasons to only permit the taking of surface water from Lefroy Brook between 15 June and 15 October each year (winter take period/WTP).
Prior to the Minister's decision, the applicant's licence had been subject to a condition that required him to bypass all flows in the watercourse between 1 December and 30 April (5-month bypass). Consequently, the applicant could take water for seven months of the year and that right has been reduced to four months because of the imposition of condition 2.
The applicant seeks an order from the Tribunal that the original 5month bypass condition (original bypass condition) is reinstated and that his licence is granted on an indefinite basis.
In the circumstances of this case, and for the reasons that follow, I have concluded that the WTP is an appropriate condition to be imposed on the applicant's licence and that his licence should be granted for a period of 10 years.

The issues for determination

The key issues that arise for determination, as generally identified by the parties, are as follows:
1)What conditions should be applied to the licence? Specifically, what is an appropriate WTP having regard to:
a)the Water Allocation Plan for the subarea;
b)the significance of transitional flows to the environment; and
c)river ecology and the social and cultural values of the Lefroy Brook and recreational users.
2)Is the original by-pass condition ecologically sustainable and environmentally acceptable?
3)Have any environmental or other studies been undertaken to show that the WTP is necessary to protect the environment in Lefroy Brook?
4)Is the WTP condition practical to comply with?
5)Will the WTP condition affect the applicant's ability to take his full annual water entitlement (AWE)?
6)Was appropriate consultation carried out by DWER on the introduction of the WTP condition?
7)What should be the duration of the licence?
The respondent's role in government policy-making and, if the WTP is a policy, whether there is a cogent reason or sound basis to depart from its application in the circumstances of this case, are also matters that I will address.

The Tribunal's review jurisdiction

By reason of s 17 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the application falls within the Tribunal's review jurisdiction. In exercising its review jurisdiction, the Tribunal is to deal with a matter in accordance with the SAT Act and the RIWI Act, (the latter referred to as the 'enabling Act' for the purposes of the Tribunal's review jurisdiction), which may modify the operation of the SAT Act in relation to the matter.[1]
[1] SAT Act, s 18.
Where a condition of a licence is the subject of the application for review, as is the case in these proceedings, the Tribunal will not generally embark on a review of the respondent's decision to grant the licence.[2] The Tribunal's review of the condition imposed by the respondent is by way of a hearing de novo for the purposes of producing the correct and preferable decision on the basis of the information and evidence before it.[3]
[2] See Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98 at [10]; Koltasz Smith & Partners v Western Australian Planning Commission (2000) 23 SR (WA) 266 at 274.
[3] SAT Act, s 27.
The Tribunal is not bound to apply the Evidence Act 1906 (WA), the rules of evidence, or any practices and procedures of courts of record[4] but is bound by the rules of natural justice unless authorised expressly or by implication to depart from those rules by the SAT Act or the enabling Act.[5]
[4] SAT Act, s 32(2)(a).
[5] SAT Act, s 32(1).
The Tribunal is not limited to the material before the respondent as the original decision-maker but may consider new material.[6] The Tribunal is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities.[7] Section 29(3) of the SAT Act confers specific power on the Tribunal to make any order that it considers appropriate, including an order to set aside the original decision, affirm that decision or vary that decision.

Expert evidence

[6] SAT Act, s 27(1).

[7] SAT Act, s 32(2)(b).

The respondent relied on the evidence of four departmental officers as follows:
1)Mr Adam Green, Program Manager, Regulatory Integration. Mr Green has been an employee of DWER for 14 years and holds a Bachelor of Science degree in natural resource management, majoring in land and water management, from the University of Western Australia. Mr Green prepared a witness statement dated 26 August 2022.
2)Mr Michael Braccia, Senior Engineer in the Water Allocation Planning Branch. Mr Braccia holds a Bachelor of Civil Engineering degree and a graduate diploma in law, policy and governance from the University of Western Australia. He has 14 years' experience in water management, hydraulics and hydrologic modelling. Mr Braccia prepared a witness statement dated 30 August 2022.
3)Mr Michael McKenna has been employed with DWER and its predecessors since July 2021. Mr McKenna is currently Manager of the Bunbury and Manjimup Water Licensing Program. Mr McKenna holds a Bachelor of Science degree (environmental science) and a post graduate diploma in natural resource management (water resources). Mr McKenna prepared a witness statement dated 26 August 2022.
4)Mr Adam Maskew has held the position of South-West Regional Manager since 2014. Mr Maskew holds a Bachelor of Science degree majoring in environmental science, zoology and marine biology from the University of Western Australia, and a Master of Aquaculture from Deakin University, in addition to a TAFE diploma of management. Mr Maskew, has been the chair of the Warren Donnelly Water Allocation Advisory Committee (Water Advisory Committee) as the departmental appointee since 2015. Mr Maskew prepared a witness statement dated 25 August 2022.
The applicant did not rely on any expert evidence and did not file any witness statements. At the final hearing, the applicant was given the opportunity to adjourn the proceedings to adduce evidence in support of his position but he chose not to give evidence or call any expert witnesses.

Factual background

Certain factual matters were not in dispute between the parties. I make the findings set out in this paragraph in relation to those matters.
1)The Warren River and tributaries surface water area (proclaimed in 1959) and the Donnelly River System surface water area (proclaimed in 1968) are water courses located in the south-west of Western Australia to which s 5C of the RIWI Act applies.[8]
[8] Exhibit 2, page 372.
2)The applicant is the joint registered proprietor of Lot 2 and Lot 3 on Diagram 58880 being the whole of the land in Certificate of Title Volume 1943, Folio 568 and Folio 567 respectively (property).[9]
[9] Exhibit 1, page 89; Exhibit 2, pages 40 and 84.
3)The property is intersected by the Upper Lefroy, which is one of sixteen subareas of the Warren River Basin identified in the Water Allocation Plan.[10] The Upper Lefroy is a fully allocated subarea.
[10] Exhibit 2, page 374.
4)On 18 June 2008, the applicant was granted a permit (PMB150710(4)) for the construction of a dam with total capacity not exceeding 200,000 kilolitres. The conditions of the permit required the installation of a 150 millimetre diameter flow pipe and control valve, to enable the release of water into the watercourse at all reservoir levels without pumping or syphoning (bypass).[11]
5)On 18 June 2008, the applicant was also granted a licence (SWL65625(6)) to take an AWE of 110,000 kilolitres for the purpose of 'storage of surface water'.[12] The licence was granted for the period 18 June 2008 to 31 May 2011 and required the applicant to 'bypass all flows in the watercourse between 1 December and April 30 next'. The applicant applied for amendments to this licence and, on 11 March 2009, was granted licence SWL65625(7) which differed to SWL65625(6) only in its 10 year term and in the stipulation that taking be permitted for horticultural purposes.[13]
6)The applicant completed the construction of the dam on the property in or around January or February 2010.[14]
7)The applicant's dam intercepts the Upper Lefroy at Lefroy Brook. Located on the tributaries of the Upper Lefroy is the Channybearup gauge (Channybearup) and the Rainbow Trail gauge.[15]
8)Between 8 July 2011 and 7 July 2021, the applicant held a licence to take water (SWL65625(10)) for horticultural purposes which was subject to several conditions including a condition that the 'licensee shall bypass all flows in the watercourse between December 1 and April 30 next'.[16] The licence was subject to an AWE of 220,000 kilolitres.
9)On 10 May 2021, the applicant sought to renew his licence by way of an application for a licence to take water under cl 22 of Sch 1 to the RIWI Act.[17]
10)On 10 December 2021, the applicant was granted a licence to take water (SWL65625(11)) from 10 December 2021 to 9 December 2031 for horticultural purposes and for the storage of surface water.[18] The licence is subject to an AWE of 220,000 kilolitres and certain terms, conditions and restrictions, including condition 2.
11)The horticultural purposes for which the applicant takes water pursuant to his licence include irrigated forage crops for cattle grazing and potatoes.[19]

The statutory framework

[11] Exhibit 2, page 71.

[12] Exhibit 2, page 50.

[13] Exhibit 2, page 62.

[14] Respondent's Statement of Issues Facts and Contentions (SIFC) para 7; Exhibit 1, page 21.

[15] Exhibit 1, page 118.

[16] Exhibit 1, page 72.

[17] Exhibit 2, page 73.

[18] Exhibit 1, page 24.

[19] ts 217, 2 November 2022.

I will next outline the statutory framework under the RIWI Act that applies to licensing decisions by the Minister for Water (Minister), including the Minister's power (and the power of the Tribunal on review) to renew a licence and impose licence conditions.

The statutory requirement for a licence to take water

The management, use and protection of water resources within the State is regulated by the provisions of the RIWI Act. The right to the use and control of water in any watercourse, wetland or underground water source is vested in the Crown except as allocated under the RIWI Act or another written law.[20]
[20] RIWI Act, s 5A.
Relevantly, a 'watercourse' is defined in s 3(1) of the RIWI Act to mean any river, creek, stream or brook in which water flows, and any collection of water (including a reservoir) into, through, or out of which those surface waters flow. The definition extends to any place where water flows that is prescribed to be a watercourse. It is immaterial that a watercourse has been diverted from its natural course or may have been artificially improved or altered.[21]
[21] RIWI Act, s 3(2)(c).
It is an offence to take water from any watercourse except under, and in accordance with, a licence granted by the Minister under s 5C(1)(d) of the RIWI Act (s 5C licence), or a right conferred by the RIWI Act or another written law. The term 'take' is defined in s 2(1) of the RIWI Act as follows:
take, in relation to water, means to remove water from, or reduce the flow of water in, a watercourse, wetland or underground water source, including by —
(a)pumping or siphoning water; or
(b)stopping, impeding or diverting the flow of water; or
(c)releasing water from a wetland; or
(d)permitting water to flow under natural pressure from a well; or
(e)permitting stock to drink from a watercourse or wetland,
and includes storing water during, or ancillary to, any of those processes or activities[.]
Section 4(3) of the RIWI Act requires that the Minister ensure that the objects listed in s 4(1) of the RIWI Act are achieved when exercising a function under Part III of the RIWI Act, including a decision whether to grant or refuse a 5C licence and, if granted, the terms, conditions and restrictions to be included in the 5C licence. Section 4 of the RIWI Act provides:
(1)The objects of this Part are —
(a)to provide for the management of water resources, and in particular —
(i)for their sustainable use and development to meet the needs of current and future users; and
(ii)for the protection of their ecosystems and the environment in which water resources are situated, including by the regulation of activities detrimental to them;
and
(b)to promote the orderly, equitable and efficient use of water resources; and
(c)to foster consultation with members of local communities in the local administration of this Part, and to enable them to participate in that administration; and
(d)to assist the integration of the management of water resources with the management of other natural resources.
(2)The reference to use and development in subsection (1)(a)(i) includes use and development for domestic, commercial, recreational, cultural and navigational purposes.
(3)The Minister is to seek to ensure that the objects stated in subsection (1) are achieved, and other persons are to do so to the extent that they have relevant functions under this Part.
Section 5C(3) of the RIWI Act provides that Sch 1 to the RIWI Act has effect to make provision for a 5C licence.

The Minister's power to renew a licence and impose conditions

Relevantly, Div 5 of Sch 1 to the RIWI Act governs the renewal of a 5C licence. Where there is an application to renew a 5C licence, the Minister must renew the licence unless certain circumstances prevail.[22] Where the Minister proposes to renew the licence subject to the inclusion of a term, restriction or condition that the Minister thinks is inconsistent with the application for renewal, the applicant must be afforded an opportunity to make submissions in respect of the proposed decision, and the Minister must have regard to any submissions made.[23]
[22] RIWI Act, Sch 1, cl 22(2).
[23] RIWI Act, cl 6(2)-(4), cl 22(3)(b).
The renewal of a licence under cl 22 of Sch 1 to the RIWI Act is not an extension of the term of the renewed licence, but rather, the grant of a new licence for an additional period.[24] Consequently, renewal of a licence might be on different terms, conditions and restrictions than those contained in an expiring licence.[25] The matters to which licence, terms, conditions or restrictions may relate are contained in the Appendix to Sch 1 to the RIWI Act and, relevantly, include the use, management, protection and enhancement of any water resource and its ecosystem, or the environment in which the water resource is situated.[26]
[24] Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83 at [64] (OIC).
[25] RIWI Act, Schedule 1, cl 22(3)(b) of Schedule 1; OIC at [68].
[26] RIWI Act, Appendix to Sch 1, item 2.
The power to include any term, condition or restriction on the renewal of a licence is found in cl 15(2) of Sch 1 to the RIWI Act and subject to consideration of the mandatory relevant considerations identified in cl 7(2) of Sch 1 to the RIWI Act. Clause 7(2) of Sch 1 to the RIWI Act provides:
…
(a)are in the public interest; or
(b)are ecologically sustainable; or
(c)are environmentally acceptable; or
(d)may prejudice other current and future needs for water; or
(e)would, in the opinion of the Minister, have a detrimental effect on another person; or
(f)could be provided for by another source; or
(g)are in keeping with —
(i)local practices; or
(ii)a relevant local by‑law; or
(iii)a plan approved under Part III Division 3D Subdivision 2; or
(iv)relevant previous decisions of the Minister;
or
(h)are consistent with —
(i)land use planning instruments; or
(ii)the requirements and policies of other government agencies; or
(iii)any intergovernmental agreement or arrangement.

Otherwise, the decision-maker is to have regard to all matters it considers relevant.[27]

The Tribunal's consideration

[27] RIWI Act, Sch 1, cl 7(2); OIC [66].

Before addressing the matters in cl 7(2) of Sch 1 to the RIWI Act, and the issue of what is an appropriate WTP, I will briefly outline the significance of environmental flow to water-dependent ecosystems, such as those located in the Lefroy Brook subarea, and the importance of setting an allocation limit to ensure the sustainable diversion of water for consumptive use.

The Lefroy Brook catchment and ecological water requirements

The Lefroy Brook catchment is located approximately 208 kilometres south-west of Perth. The catchment has an area of approximately 360km²and an exceptionally high level of farm dam development.[28] The Lefroy Brook joins the Warren River approximately 25 kilometres upstream of the Warren River estuary. A locality map and a map of the Lefroy Brook catchment is provided in Annexure A to these reasons.
[28] Exhibit 1, page 253.
The ecological water requirement (EWR) of a river, also known as the environmental flow, refers to the flow regime (quantity and timing of flows) as well as the water levels and water quality required to sustain water-dependent ecosystems.[29] EWR is the water regime needed to maintain current ecological values at a low level of risk.[30] Understanding the requirements of species to complete their life cycle (or life history requirements) is one of the key components of determining EWRs.[31]
[29] Exhibit 2, page 471.
[31] >
Mr Green provided the following explanation of EWRs in the context of Western Australia's south-west rivers:[32]
EWRs determined for rivers across the south-west aim to preserve the historical timing and duration of the no flow period by defining a low flow range (from the daily flow record of a nearby gauging station) where no water can be taken, without risk to ecological values of the system. These flow periods have shaped the river channels and habitats present today and native species have adapted to low or no flow periods at particular times of the year[.]
[32] Exhibit 1, page 256-257.
In 2010, when DWER assessed the applicant's request for an additional allocation of 110,000 kilolitres per year, an EWR had not been determined for Lefroy Brook.[33] Rather, EWR studies had been conducted at a number of sites throughout the south-west of Western Australia, and the results were used in the development of the proposed allocation limit for the Upper Lefroy subarea.[34] The allocation limit represents the total volume of water that can be reliably taken annually (as storage or diversion) from each subarea for consumptive use (allocation limit).[35] DWER's assessment of the applicant's request at this time provided that '[e]cological sustainability should not be at risk if allocation remains within the proposed allocation limit'.[36]

What is an appropriate winter take period?

[33] Exhibit 2, page 100.

[34] Exhibit 2, page 99.

[35] Water Allocation Plan, cl 3.1; Exhibit 2, page 384.

[36] Exhibit 2, page 100.

Condition 2 only permits the applicant to take surface water from Lefroy Brook between 15 June and 15 October each year.
I will next consider whether condition 2 is appropriate having regard to the provisions of the Water Allocation Plan, river ecology, the social and cultural values of Lefroy Brook, and recreational users. The expert witnesses described the importance of transitional flows or 'shoulder periods' to river ecology, being the flows that occur each year between 1 May to 14 June, and 16 October to 30 November (transitional flows). Consequently, I will consider the significance of the transitional flows in determining whether condition 2, which limits the take of water to four months a year, imposes an appropriate winter take period.

The Water Allocation Plan

The purpose of the Water Allocation Plan is to ensure that water is allocated in a way that maintains a reliable water supply to irrigators and to support the social and environmental values of the rivers in the area.[37]
[37] Exhibit 2, page 368.
The Water Allocation Plan establishes an allocation limit for the Warren-Donnelly area of 72,866 megalitres per year (ML/year).[38] The setting of an allocation limit ensures that there is sufficient water in a watercourse to maintain social and ecological values and to carry water to downstream dams.[39]
[38] Exhibit 2, page 369.
[39] Water Allocation Plan, cl 3.1; Exhibit 2, page 384.
The Upper Lefroy subarea has an allocation limit of 6,975 ML/year and is fully allocated.[40] The Water Allocation Plan sets out how the allocation limits were set for different subareas. It provides that in subareas important for agriculture, the ecologically sustainable yield method (ESY method) was applied to determine the allocation limit.[41] The Water Allocation Plan provides:[42]
The department used the ecologically sustainable yield method to determine the amount of water that needs to stay in the river and the extra water, in addition to the current level of use, that could be taken. In subareas important for irrigated agriculture, the allocation limit was set at the March 2010 level of use plus the extra water calculated through the ecologically sustainable yield method. Figure 5 provides a conceptual model of a river cross section of this approach.

[40] Water Allocation Plan, Table 2; Exhibit 2, page 386.

[41] Water Allocation Plan, cl 3.3; Exhibit 2, page 390.

[42] Water Allocation Plan, cl 3.3; Exhibit 2, page 390-391.

The water resource objective for irrigated subareas, such as the Upper Lefroy, is to provide flow regimes that supply licence entitlements in almost all years. This includes leaving sufficient water in rivers to reach downstream users and to meet minimal environmental needs in dry years.[43]
[43] Water Allocation Plan, cl 2.2; Exhibit 2, page 381.
Local licensing policies for the Warren-Donnelly area provide additional guidance for managing licences in the area.[44] Relevantly, policy 2.1.2 of Table 3 of the Water Allocation Plan provides (Bypass Policy):
The department may impose conditions on licences that state the times in the year when flows must be allowed to bypass dams.
[44] The local licensing policies apply either because the local issues are not addressed in the state-wide policy, or because an alternative approach is needed to better manage the local issue. Where a local policy differs from a state-wide policy, the local policy is applied: cl 4.5, Water Allocation Plan.
Policy 4.1.3 and policy 4.1.4 of Table 3 of the Water Allocation Plan provide, in relation to environmental impact management:
4.1.3At licence renewal, where practical, the department may require licensees with an existing on-stream dam to construct a flow bypass system to allow summer flows to bypass the dam, and/or structures that allow the migration of aquatic species.
4.1.4The department will not approve new applications proposing to take surface water (including by direct pumping) from a watercourse in periods of low flow (generally in summer) unless the ecological needs of the system can still be met.
(Emphasis added).
The applicant contends that the WTP is inconsistent with the water resource objective for the Upper Lefroy subarea because it restricts the taking of water in every year irrespective of the flow.[45] The applicant further contends that the original bypass condition satisfies policy 4.1.3 of the Water Allocation Plan because it allowed 'summer' flows to bypass the dam.[46] The applicant is concerned that the respondent has not amended the Water Allocation Plan to remove policy 4.1.3 and replace it with a policy that is consistent with its practice to impose the WTP condition.[47]
[45] Applicant's SIFC, para 2.20; Exhibit 1, page 39.
[46] Applicant's SIFC, para 2.22 and para 2.23.
[47] ts 287, 3 November 2022.
In contrast, it is the respondent's position that a condition imposing a WTP is consistent with the provisions of the Water Allocation Plan and its longstanding practice to seasonally regulate the take of water.[48] In support of its position, the respondent relied on the evidence of Mr Braccia. Mr Braccia considers that the WTP meets the objective of the Water Allocation Plan for the Upper Lefroy. In his opinion, adjusting the WTP by allowing abstraction before 15 June or after 15 October poses a risk of not meeting minimum environmental needs in dry years.[49] Further, in Mr Braccia's opinion, the use of the word 'summer' in policy 4.1.3 of the Water Allocation Plan is referring to a period of low flow.[50]
[48] Respondent's SIFC, para 62 and para 63; Exhibit 1, page 103.
[49] Witness statement of Michael Martin Braccia dated 30 August 2022, para 85 and para 88; Exhibit 1, pages 136-137.
[50] Witness statement of Michael Martin Braccia dated 30 August 2022, para 92; Exhibit 1, page 138.
The applicant says that the WTP is inconsistent with the ESY method because the allocation limit for the Upper Lefroy subarea was set based on the March 2010 level of use, which incorporated licences that bypassed water for five months.[51] The applicant says that the original bypass condition is consistent with the ESY method,[52] a method considered best practice following peer review.[53]
[51] Applicant's SIFC, para 2.9; Exhibit 1, page 37.
[52] Applicant's SIFC, para 2.10; Exhibit 1, page 37.
[53] Applicant's SIFC, para 2.7; Exhibit 1, page 37; Exhibit 3, page 140.
However, the respondent says that the WTP, which is derived from the sustainable diversion limit method (SDL method), is supported by streamflow gauge data and endorsed by a panel of experts.[54]
[54] ts 301, 3 November 2022.
The SDL method is considered in further detail below.

The SDL method

In 2008, the Department of Water (now DWER) (DoW) initiated a project to develop a method for rapidly and conservatively estimating the winterfill diversion potential for unregulated (and generally ungauged) streams in the south-west of Western Australia (SKM 2008).[55] The diversion potential represents 'an upper diversion limit beyond which there is an unacceptable risk that additional extractions may degrade the riverine environment' (SDLs).[56] The key outcome of the DoW's project was a method which allows SDLs to be determined using regional data, avoiding the need for site-specific assessments.[57]
[55] Approach for Determining Sustainable Diversion Limits for South West Western Australia, 19 August 2008, Sinclair Knight Mertz (SKM 2008); Exhibit 2, page 762.
[56] SKM 2008, page 1; Exhibit 2, page 768.
[57] SKM 2008, page 3; Exhibit 2, page 770.
Rules for defining SDLs were based on a winterfill period over which extractions can occur, a minimum flow threshold below which extractions should cease, a maximum extraction rate, and an annual licensed volume associated with a specified reliability of supply.[58] The winterfill period recommended by the SDL method is 15 June to 15 October inclusive.
[58] SKM 2008, page 1; Exhibit 2, page 768.
Whilst Mr Braccia acknowledged that the SDL was based on regional data, in his opinion the application of the WTP condition to the applicant's licence is appropriate because it was based on observed streamflow data[59] and approved by appropriately qualified experts. Mr Braccia provided the following evidence about DWER's implementation of the WTP:[60]
SKM 2009[8] [sic] proposed a winter-take period from 15 June to 15 October as part of the South West Sustainable Diversion Limits (SDL) project. This date range was derived from streamflow monitoring sites across the South West of Western Australia and including sites in the Warren Donnelly Region. The date range was also endorsed by a panel of experts including researchers and practitioners with knowledge of stream ecology, water quality, geomorphology, hydrology, wetlands and catchment management.
[59] ts 144, 2 November 2022.
[60] Witness statement of Michael Martin Braccia dated 30 August 2022, para 44; Exhibit 1 page 123.
In 2019, DWER undertook a review of the WTP to assess its suitability with streamflow data up to 2019 (DWER review).[61] Mr Braccia said that the DWER review found that, on average, most of the streamflow occurs in the region between 15 June to 15 October with generally small inconsistent flows occurring outside this period.[62] At Channybearup, which is downstream of the applicant's property, most of the annual flow occurs in July, August and September, followed by June and October.[63]
[61] Document 102, Exhibit 2, page 957.
[62] Witness statement of Michael Martin Braccia dated 30 August 2022, para 45; Exhibit 1 page 123.
[63] ts 144, 2 November 2022; Exhibit 2, page 964.
Mr Braccia does not agree with the applicant's contention that the WTP is inconsistent with the ESY method that underpins the allocation limit because the WTP serves a different purpose. In Mr Braccia's opinion, the ESY method identifies the annual total volume of water that can be abstracted from a watercourse, whilst the SDL method on which the WTP is based regulates when it is acceptable to abstract water.[64] He observed that an allocation limit alone does not ensure the way in which licensees capture water will be sustainable.[65] Consequently, Mr Braccia did not view the decision not to use the SDL method in setting the allocation limit precludes the use of the WTP derived from the SDL method as a condition in a s 5C licence.[66]
[64] ts 141, 2 November 2022. Witness statement of Michael Martin Braccia dated 30 August 2022, para 63; Exhibit 1 page 129.
[65] Witness statement of Michael Martin Braccia, dated 30 August 2022, para 74; Exhibit 1 page 133.
[66] Witness statement of Michael Martin Braccia, dated 30 August 2022, para 77; Exhibit 1 page 134.
Mr Braccia acknowledged that the allocation limit for the Upper Lefroy subarea was set based on the March 2010 level of use. However, in his opinion, the calculation of the allocation limit only considered dam capacity but not how much water was being used from dams, the volume of water stored in dams, or whether dams were bypassing water. On this basis, Mr Braccia did not agree with the applicant's contention that, in setting the allocation limit, the Department considered licences that bypassed water for five months of the year.[67]

River ecology and the significance of transitional flows to the environment

[67] Witness statement of Michael Martin Braccia, dated 30 August 2022, para 66; Exhibit 1 page 130.

The applicant observed that the allocation limit in the Water Allocation Plan included additional ecologically sustainable yield (beyond the existing use) which was determined over the year as illustrated in Figure 17 of the Warren-Donnelly Surface Water Allocation Plan Methods Report, Department of Water, April 2012 (Methods Report).[68] On this basis, the applicant contends that the ESY method clearly recognised that additional ecologically sustainable yield occurred over more than four months of the year as set by the WTP.[69] Figure 17 of the Methods Report is reproduced below.
Figure 17 Environmental flow and environmentally sustainable yield for Lefroy Brook in 2000
[68] Exhibit 2, page 496.
[69] Applicant's SIFC, para 2.9; Exhibit 1, page 37.
In reply to the applicant's contentions, the respondent argued that the ESY method and Figure 17 of the Methods Report (reproduced above) indicate that some water is available outside the WTP (15 June to 15 October) if taken proportionally to the daily flow experienced upstream of the abstraction point. However, a fixed storage dam is unable to capture water proportionally to the flow regime upstream. The respondent says that farm dams intercept transitional flows which shortens the flow season for the downstream environment and increases the length of time that species are subjected to the stresses of the dry season.[70] Consequently, the respondent says that maintaining transitional flows is important to river ecology.[71] The seasonal impact of farm dams is shown in Figure 5-3 of the SKM report entitled, Impacts of Farm Dams on Streamflow, November 2008 (SKM Farm Dams report) which is reproduced below.[72]
[70] Respondent's SIFC para 66; Exihibit 1, page 103.
[71] Respondent's SIFC para 66; Exihibit 1, page 103.
[72] Exhibit 2, page 876.
In support of its contentions, the respondent relied on the evidence of Mr Green. Mr Green said that, from an ecological perspective, the purpose of bypassing flows is to match the incoming flow regime with the needs of aquatic species.[73] In the context of Figure 17 of the Methods Report, Mr Green explained:[74]
… The Lefroy Brook EWR study (Donohue et al 2009) where this figure is taken from, indicates that in the year 2000, the environment should receive between 50 to 100% of inflow outside of the WTP (Table 3). Depending on the pattern and seasonality of flows year to year, the proportion of water able to be taken outside the WTP varies down to a daily scale, something fixed storage farm dams are unable to do. The Lefroy Brook EWR study and EWR studies for other southwest rivers, highlight the importance of water needs for the environment during transitional 'shoulder' periods where farm dam capture has the greatest impact to the downstream flow regime. The 15 June to 15 October WTP ensures that farm dams do not capture all of the upstream flow in these shoulder periods and that the period where they are capturing water, will be shorter and have less of an impact on downstream ecological values.
[73] ts 107, 2 November 2022.
[74] Witness statement of Adam Zachary Green dated 26 August 2022, para 121; Exhibit 1, page 292.
In his written statement, Mr Green identified the ecological values of the Lefroy Brook catchment that are protected by water resource management decisions, such as the WTP. Whilst Mr Green acknowledged that all water-dependent ecological values of streams are important, he said that the requirements of fish and crayfish are of particular importance due to their dependence on permanent water and because they provide an integrated measure of ecological condition.[75] A list of species that have historically been collected from different areas of the catchment is provided in the following table.[76]
[75] Witness statement of Adam Zachary Green dated 26 August 2022, para 34; Exhibit 1, page 260.
[76] Witness statement of Adam Zachary Green dated 26 August 2022, para 33; Exhibit 1, page 260.

Native species (common name)

Surface water management subarea

Lefroy Brook East Brook
Four Mile Brook / Big

Brook
Upper Lefroy

Nightfish

Western Minnow

Western Pygmy

Perch

Freshwater

Cobbler

Smooth Marron

Restricted

Gilgie

Gilgie

Koonac

Mud minnow

Pouched
lamprey

Carter̕ s
freshwater mussel

Further, it is the respondent's position, supported by the evidence of Mr Green and Mr Braccia, that abstraction outside the WTP poses a particular risk to river ecology in low rainfall years where farm dams intercept a higher proportion of streamflow.[77] Mr Green explained as follows:[78]
In the Mediterranean climate of south-west Western Australia, key aspects of the flow regime include the summer low flows, the timing and predictability of winter flow and recession of flow in spring (Donohue et al. 2009; Green et al. 2010; Beatty et al. 2014; Green & Donohue 2015). All three aspects can be impacted by farm dam interception, with the level of impact decreasing when the farm dams are intercepting flow during the key winter flow period. This is because flows are of a consistently of higher volume and dams are able to fill and spill quicker, reducing the amount of time for the downstream flow regime to return to its predictable state. Maintaining this predictable state is important in south-west river systems due to many native species being dependent on the predictable timing and magnitude of seasonal flows in our Mediterranean climate (Donohue et al. 2009; Green et al. 2010; Beatty et al. 2014; Green & Donohue 2015). Native fish in particular, respond to environmental cues such as light availability, day length and water temperature. They congregate downstream of barriers under certain environmental conditions in expectation of approaching flow conditions that will achieve water levels that drown out barriers or provide connectivity through different stream sections. Flow alteration due to dams delaying these flows, reduces this predictability, leaving species vulnerable to predation and preventing them access to upstream areas for foraging and breeding. If changes to the flow regime happen gradually over time, species can adapt, however if the changes are abrupt (e.g. dam interception in a low flow year preventing flow reaching downstream areas till much later in the year), there will be ecological consequences ranging from reduced breeding success to loss of species. This is a particular concern for river ecosystems below self-supply farm dams catchments in the southwest, where farm dam volumes are a constant, and will intercept a higher proportion of streamflow due to climate change, particularly in dry years.
[77] Respondent's SIFC, para 68; Exhibit 1. Page 103. Witness statement of Michael Martin Braccia dated 30 August 2022, para 61; Exhibit 1 page 123. Witness statement of Adam Zachary Green dated 26 August 2022, para 118; Exhibit 1, page 291.
[78] Witness statement of Adam Zachary Green dated 26 August 2022, para 89; Exhibit 1, page 276.

Consequently, in Mr Green's opinion, the WTP is critical for maintaining the river environment below the applicant's dam to ensure that water quality will be sufficient following a long dry season to sustain downstream aquatic species.[79]

Social and cultural values of Lefroy Brook

[79] ts 106, 2 November 2022.

The respondent contends that there are social benefits of flows in the river for recreational uses such as canoeing and recreational fishing, as well as many cultural benefits, including the needs of the Nyungar people through their spiritual connection with the waterways.[80]
[80] ts 28, 1 November 2022.
In support of its position, the respondent relied on the evidence of Mr Green. It is Mr Green's evidence that maintaining the flow regime that meets the ecological needs of a stream is commonly linked to maintaining its social and cultural values.[81] He observed that water assets are places of spiritual significance to the Nyungar community and provide resources needed for their daily existence.[82] He also identified the importance of water resources in the Warren-Donnelly area to recreational users. Mr Green observed:[83]
Canoeing, marroning and fishing are social activities that benefit through the maintenance of seasonal shoulder period flows by ensuring that variable flow volumes (when present in upstream areas) are being provided to stream channels downstream of self-supply farm areas. Recreational fishing is a popular activity in south-west river systems, particularly the Warren and Donnelly river catchments[.]
[81] Witness statement of Adam Zachary Green dated 26 August 2022, para 83; Exhibit 1, page 273.
[82] Witness statement of Adam Zachary Green dated 26 August 2022, para 84; Exhibit 1, page 274.
[83] Witness statement of Adam Zachary Green dated 26 August 2022, para 85; Exhibit 1, page 274.
In contrast, it is the applicant's position that the capture of streamflow during the October/November shoulder period has occurred in the Warren-Donnelly over a long period of time and is a common part of dam and irrigation system operation.[84] If the WTP prevents the taking of water in October/November, the applicant says that his dam would dry out by the end of April if his full annual water entitlement is taken.[85] Consequently, the applicant says that capturing flows in October/November is extremely important for providing water security for the subsequent irrigation seasons if a drought occurs the following winter.[86]

Findings - appropriate winter take period

[84] Applicant's SIFC, para 5.18; Exhibit 1, page 62.

[85] Applicant's SIFC, para 5.15; Exhibit 1, page 62.

[86] Applicant's SIFC, para 5.17; Exhibit 1, page 62.

There was no dispute, and I find, that the Water Allocation Plan sets out how the Department will allocate and licence surface water in the Warren and Donnelly Basins, including the Upper Lefroy subarea. The Water Allocation Plan provides that the Department may impose conditions on licences that state the times in the year when flows must be allowed to bypass dams. However, the policies specific to surface water licensing in the Water Allocation Plan do not stipulate the period when flows are to be bypassed, other than a reference in policy 4.1.3 of the Water Allocation Plan to bypassing 'summer flows' (Policy 4.1.3). Notably, in 2009, the expression 'summer flow' was used by DoW, in the context of Lefroy Brook, to describe the period from December to April.[87]
[87] See Ecological water requirement for Lefroy Brook, Department of Water, January 2009, Exhibit 2, page 894.
I find that Policy 4.1.3 relates to environmental impact management and, specifically, the construction of systems to allow flows to bypass dams. It is not a policy that deals with the times in the year when those flows should bypass dams. In any event, based on the evidence before me, I am not satisfied that the expression 'summer flows' in Policy 4.1.3 (and the reference to 'low flow (generally in summer)' in policy 4.1.4 of the Water Allocation Plan) should be interpreted to mean flows occurring only between December to April, particularly given the Department's broad power pursuant to cl 7(5) of Sch 1 to the RIWI Act to impose conditions on licences that relate to the use, management, protection and enhancement of any water resource and its ecosystem. For these reasons, I am satisfied that the WTP is not inconsistent with Policy 4.1.3.
I accept the uncontested evidence of Mr Braccia, and I find, that the ESY method identifies the annual total volume of water that can be abstracted from a watercourse, whilst the SDL method (from which the WTP is derived) regulates when it is acceptable to abstract water. Based on Mr Braccia's evidence, which I accept, I find that the respondent's reliance on the ESY method in setting the allocation limit does not preclude the use of the WTP as a licence condition. Further, having regard to Mr Braccia's evidence, I am not satisfied that the Department set the allocation limit based on licences that bypassed water for five months of the year.
In relation to the impact of farm dams on transitional flows, I find that a fixed storage dam is unable to capture water proportionality to the flow regime upstream. I accept the evidence of Mr Green, and I find, that farm dams intercept water early in the flow season and that, in low flow years, the dams take longer to fill, extending the period in which they are intercepting low flows. Consequently, based on Mr Green's evidence, which I accept, I find that farm dams intercept transitional flows which shortens the flow season for the downstream environment.
Based on the evidence before me, I find that the WTP helps ensure that farm dams do not capture all transitional flows, particularly in low flow years where the impact of dams on the downstream ecological values would be greater. Consequently, I am satisfied that the WTP is consistent with the objective of the Water Allocation Plan to leave sufficient water in rivers to reach downstream users and to meet minimal environmental needs in dry years notwithstanding the applicant's contention that it restricts the taking of water to four months every year irrespective of flow.
Finally, based on the uncontested evidence of Mr Green, which I accept, I find that maintaining the ecological values of a stream through appropriate flow conditions, is inextricably linked to its cultural importance and creates social benefits for recreational users.

Is the original bypass condition ecologically sustainable and environmentally acceptable?

In determining the conditions and restrictions to be included in a s 5C licence, the Minister (and the Tribunal on review) must have regard to the matters listed in cl 7(2) of Sch 1 to the RIWI Act. Those matters include whether the proposed taking and use of water are ecologically sustainable and environmentally acceptable. The applicant contends that, at the time the Water Allocation Plan was adopted, the original bypass condition satisfied all the requirements of cl 7(2) of Sch 1 to the RIWI Act and was found to be ecologically sustainable and environmentally acceptable.[88]
[88] Applicant's SIFC, para 3.48; Exhibit 1, page 54.
It is the applicant's position that the original bypass condition must be considered ecologically sustainable and environmentally acceptable because SKM 2008 does not provide a justification for replacing it with the WTP. In support of its position, the applicant observes that SKM 2008, on which the SDL method (and ultimately the WTP) is based, was not intended to provide specific licensing rules for individual catchments because it provides that SDLs should be applied for broad regional planning or preliminary design purposes only.[89]
[89] Applicant's SIFC, para 3.8 and para 3.9; Exhibit 1, page 46.
The applicant further observes that the SKM Farm Dams report was available to the Department at the time the Water Allocation Plan was prepared but it does not find the original bypass condition to be ecologically unsustainable or make any recommendation for the WTP.[90] Rather, the applicant notes that the SKM Farm Dams report recommended further study to 'examine strategies for implementation of low flow bypasses, to ensure that the right dams are targeted and the maximum benefit is derived in terms of flow impacts'.[91]
[90] Applicant's SIFC, para 3.13; Exhibit 1, page 46-47.
[91] ts 287, 3 November 2022; Exhibit 2, page 879.
In relation to the impact of a drying climate, the applicant contends that the increased frequency of low rainfall years was anticipated and considered in the preparation of the Water Allocation Plan, on which the original bypass condition was based.[92] The Water Allocation Plan relevantly provides:[93]
… While the frequency of dry years may increase with a drying climate, by basing allocation limits on a benchmark dry year, reliability can be maintained for most years. If there are years dryer than the benchmark year, or consecutive dry years, impacts on reliability would be subject to location of dams and distribution of rainfall and streamflow[.]
[92] Applicant's SIFC, para 3.40; Exhibit 1, page 53.
[93] Exhibit 2, page 391.
In reply to the applicant's contentions, the respondent argues that the WTP is required to maintain transitional flows for the reasons identified by Mr Green.[94] Even if the original bypass condition was considered ecologically sustainable at the time the applicant's licence was granted in 2011, the respondent says it does not follow that it is the case today. The respondent, relying on the evidence of Mr Green, points to the impact of a drying climate as a reason for the change in its licensing practices.[95]
[94] ts 9, 1 November 2022.
[95] ts 34, 1 November 2022; ts 110-111, 2 November 2022.
There was no dispute, and I find, that the applicant's licence was granted in 2011 subject to conditions that satisfied the matters in cl 7(2) of Sch 1 to the RIWI Act. Consequently, I find that the original bypass condition was ecologically sustainable and environmentally acceptable at that time. However, I do not consider that the imposition of a condition on a s 5C licence in 2011 should prevent the Department from granting licences on different terms and conditions if circumstances change.
In determining the conditions and restrictions to be included in a s 5C licence, the Minister (and the Tribunal on review) must have regard to all matters it considers relevant when exercising its discretion under cl 7(2) of Sch 1 to the RIWI Act. I find, based on the evidence before me, that the impact of a drying climate on streamflow in the south-west is a matter that is relevant to determining whether the WTP should be imposed as a condition on the applicant's licence. For the reasons at [64] and [65] above, I find that the WTP assists in maintaining transitional flows in the Upper Lefroy, particularly in a drying climate when streamflow may be less predictable.
I will next consider whether there have been any environmental or other studies undertaken to show that the WTP condition is necessary to protect the ecological values of Lefroy Brook.

Have any environmental or other studies been undertaken to show that the WTP is necessary to protect Lefroy Brook?

The applicant contends that there have not been any environmental or other studies since the grant of his licence in June 2011 to justify inclusion of the WTP in lieu of the original bypass condition.[96] He says that the Department has not provided any analysis to show that his licensed abstraction of water from Lefroy Brook is not ecologically sustainable or environmentally acceptable.
[96] Applicant's SIFC, para 3.49; Exhibit 1, page 54.
The purported lack of analysis is of concern to the applicant because the Methods Report provides that the SDL method (from the SKM 2008 on which the WTP is based) is not suitable for application to highly developed catchments such as the Upper Lefroy.[97] The applicant referred the Tribunal to the following passage from the Methods Report:[98]
The SDL method incorporates some general ecological principles (e.g minimum flow threshold) but these are not site specific. As a regional scale yield method, it is intended to be used in the absence of local scale ecological information gathered during site-specific environmental studies.
The SDL method is better suited to assessing flow variability than a mean annual flow approach. However, the method is not suited for determining surface water yields in resources that have a high level of development and water use, such as the Upper Lefroy, Manjimup Brook and East Brook subareas.
[97] Applicant's SIFC, paras 3.10, 3.11, and 3.38; Exhibit 1, page 46.
[98] Exhibit 2, page 497.
The respondent relies on the evidence of Mr Green in relation to the interpretation of SKM 2008.[99] Mr Green said that the SDL method and WTP were developed cognisant of EWRs of south-west rivers and the impact water abstraction has on river ecology in different seasons and at different flow volumes.[100] Mr Green explained:[101]
127[The WTP] would have been an appropriate condition to include as a local policy in the WDSWAP [Water Allocation Plan] however the approach to set allocation limits on a minimum flow year from historical flow records (typically 1987) was considered a low risk to the reliability of water supply and environmental values at the time.
…
129… The importance of incorporating the WTP defined in the SKM (2008a) approach into the water licensing strategy in Warren-Donnelly has been heightened by the impacts of climate change since 2010 and will be important in helping ensure EWRs are met as rainfall continues to decline into the future and farm dams intercept a high proportion of streamflow.
[99] ts 9, 1 November 2022.
[100] Witness statement of Adam Zachary Green dated 26 August 2022, para 127; Exhibit 1, page 295.
[101] Witness statement of Adam Zachary Green dated 26 August 2022, paras 127-129; Exhibit 1, pages 295 296.
I find, based on the evidence before me, that the respondent has not conducted a site-specific environment or other study to determine if the WTP is required to protect the ecological values of Lefroy Brook. Nevertheless, I accept the uncontested evidence of Mr Green, and I find, that the WTP helps to ensure the EWRs for Lefroy Brook are met because it prevents farm dams from intercepting a higher proportion of transitional flows, particularly as rainfall continues to decline in the south-west due to a changing climate.
I will next consider whether it is practical for the applicant to comply with the WTP condition.

Is the WTP condition practical to comply with?

It is the applicant's contention that the WTP is not reasonably practical to comply with and would result in him being regularly in breach of his licence.[102]
[102] Applicant's SIFC, para 4.22; Exhibit 1, page 58.
The applicant's permit to construct the on-stream dam required him to install a 150 millimetre diameter underwall flow pipe and control valve for the release of water into the watercourse.[103] The applicant observed that it is an offence to take water from a watercourse other than in accordance with a s 5C licence, with an offence attracting a maximum penalty of $10,000 and a daily penalty of $1,000.[104] He pointed to the definition of 'take' in s 2 of the RIWI Act, which includes 'stopping, impeding or diverting the flow of water' and says that, due to the diameter of the flow pipe, streamflow would be 'taken' outside the 4month WTP. In support of his position, the applicant relied on flow readings taken at Channybearup from 1 May 2021 to 30 April 2022 which he says show that streamflow in May/June and October/November would result in water being taken from the watercourse and filling his dam even with the outlet pipe (control valve) open.[105] Consequently, the applicant says that he would be in breach of his licence because the WTP requires that water only be taken from the watercourse to fill the dam between 15 June and 15 October each year.[106]
[103] Applicant's SIFC, para 4.1; Exhibit 1, page 55; Exhibit 2, page 71.
[104] RIWI Act, s 5C(1)(d).
[105] Applicant's SIFC, para 4.8; Exhibit 1, page 56.
[106] Applicant's SIFC, para 4.8; Exhibit 1, page 56.
The applicant referred the Tribunal to DWER's Warren-Donnelly Water Update, published in October 2019, in which the Department acknowledged the practical limitations of enforcing compliance with the WTP, particularly for older dams:[107]
The Department acknowledges the practical limitations of the older dams to bypass flows outside the Winter Take Period with more recent dams, and amendments to existing dams required to demonstrate their ability to do so. As a consequence the Department will take a practical and reasonable approach to determine compliance against this condition for these older dams with audits likely to be undertaken applying a riskbased approach to the management of the resource, in response to complaints, or during visits related to other purposes[.]
[107] Exhibit 2, page 1050.
In reply, the respondent says that its enforcement regime is reasonable, and a proportional response, given the significance of the issue.[108] It further says that the applicant's underwall pipe is of a diameter that is sufficient to manage bypass flows.[109] The respondent observed that flows at Channybearup do not necessarily correlate with flows experienced at the property.[110]
[108] ts 33, 1 November 2022.
[109] ts 32, 1 November 2022.
[110] ts 33, 1 November 2022
The respondent relies on the evidence of Mr McKenna in support of its position. Mr McKenna attended the property on 28 July 2022 and determined that the underwall pipe is 200 millimetres in diameter.[111] Based on his site inspection, Mr McKenna is of the opinion that the applicant is able to comply with the requirement to bypass flows.[112] Mr McKenna provided the following uncontested evidence:[113]
During the site visit I also identified an upstream sump area which discharges into the main body of the dam through a dedicated relief in the separating bund wall. This provides what is in my view a reasonable location to estimate inflows in the watercourse entering the dam. Water was be [sic] flowing at the time of inspection. I consider that the observed flows from the upstream sump into the tail of the dam at that time (28 July 2022) could be reasonably replicated and exceeded, if required, by further opening the underwall bypass valve given the observed discharge and small opening of the pipe at that time. Given this flow was observed in the middle of winter, late transitional seasonal flows that may be occurring in late October and November could reasonably be bypassed using existing infrastructure supported by other options, as required and necessary.
[111] Witness statement of Michael Robert McKenna dated 26 August 2022, para 59; Exhibit 1, page 237.
[112] ts 226, 2 November 2022; Witness statement of Michael Robert McKenna dated 26 August 2022, para 63; Exhibit 1, page 238.
[113] Witness statement of Michael Robert McKenna dated 26 August 2022, para 60; Exhibit 1, page 237.
Mr McKenna accepts that there are practical limitations with older dams to bypass flows outside the WTP.[114]
[114] Witness statement of Michael Robert McKenna dated 26 August 2022, para 64; Exhibit 1, page 238.
I consider that the applicant's concern about compliance with the WTP condition, as presently drafted, is a valid one. If the applicant could not practically bypass transitional flows, he would be 'taking' water outside the four month WTP in contravention of his licence because the RIWI Act defines 'take' to include stopping, impeding or diverting the flow of water. However, based on the uncontested evidence of Mr McKenna, which I accept, I find that it is possible for the applicant to reasonably bypass transitional flows using existing infrastructure at the property supported by other options, as required and necessary. For example, Mr McKenna observed during his site inspection that the applicant had a small transportable pump (in addition to an existing mobile pump) that could be used to supplement flows when and if required.[115]
[115] Witness statement of Michael Robert McKenna dated 26 August 2022, para 49 and para 61; Exhibit 1, pages 233 and 237; ts 199, 2 November 2022.

I will next consider whether the WTP condition allows the applicant to take his full AWE.

Will the WTP condition allow the applicant to take his full annual water entitlement?

It is an objective of the Water Allocation Plan that flow regimes in irrigated subareas, such as the Upper Lefroy, should supply licence entitlements in almost all years.[116] The applicant contends that the WTP does not meet this objective because it will prevent him from taking his full water entitlement in any year and affect the amount of dam storage, with the dam potentially drying out in drought years.[117] The applicant referred to DWER's calculations which show that the reliability of filling his dam would drop from approximately 90% under the original bypass condition to approximately 80% under the WTP.[118] The applicant further contends that due to practical operating issues the WTP will prevent him from using his AWE of 220,000 kilolitres entirely or substantially for irrigation.[119]
[116] Water Allocation Plan, cl 2.2(a); Exhibit 2, page 381.
[117] Applicant's SIFC, para 5.2 and para 5.31; Exhibit 1, page 59 and pages 64-54.
[118] Applicant's SIFC, para 5.30; Exhibit 1, page 64; Exhibit 2, page 977.
[119] Applicant's SIFC, para 5.4; Exhibit 1, page 59.
The respondent acknowledged that the WTP will preclude the applicant from filling his dam in late October and November when, according to the applicant, he has drawn on dam water to irrigate crops.[120] However, the respondent says that the applicant's concerns do not arise because he will be able to take his full AWE despite the WTP. The respondent observed that the grant of 220,000 kilolitres AWE for storage and horticultural purposes is intended to include any water required for dam management and to account for matters such as seepage and evaporation.[121] The respondent further observed that the identification of 'storage' as a use on the licence was simply to ensure that any unused licensed water entitlements are not liable to recoupment under its policies.[122]
[120] Respondent's SIFC, para 75; Exhibit 1, page 104.
[121] Respondent's SIFC, para 77; Exhibit 1, page 105.
[122] Respondent's SIFC, para 77; Exhibit 1, page 105.
In support of its position, the respondent relied on the evidence of Mr Braccia and Mr McKenna. Mr Braccia observed that between 2009 and 2021 over 90% of the annual flow occurred between 15 June and 15 October. On this basis, it is Mr Braccia's opinion that that the WTP meets the objective of the Water Allocation Plan of providing 'flow regimes in irrigated subareas that supply licence entitlements in almost all years' because licensees capture flow when it most commonly occurs.[123] In relation to the reliability of the dam filling, Mr Braccia acknowledged that the applicant's storage would be lower in dry years compared with the original bypass condition.[124] However, he considered that the applicant could reliably fill his dam 9 out of 11 years under the WTP and, in his opinion, systems north of the Upper Lefroy subarea have a lower reliability than 80%.[125]
[123] Witness statement of Michael Martin Braccia dated 30 August 2022, para 87; Exhibit 1, page 137.
[124] ts 146, 2 November 2022.
[125] ts 146, 2 November 2022.
In Mr McKenna's opinion, the applicant could access a large proportion of water captured in the dam for irrigation, and take his full entitlement each year, subject to streamflow.[126] Mr McKenna observed that the practical operating issues identified by the applicant (including those related to 'dead storage')[127] are symptomatic of his existing choices in pump and pipe infrastructure and a reluctance to relocate that infrastructure to increase his draw from the dam capacity.[128] Mr McKenna provided the following evidence:[129]
I consider that the Applicant can potentially draw his dam to a water level consistent with the invert of the underwall pipe, thereby accessing the large proportion of water captured in the dam, by amending the outlet infrastructure and using a pump of appropriate capacity. The mobile pump identified on inspection could also be located close to the dam wall or set further into the dam than identified on the day to access deeper water using the existing suction pipe[.]
[126] Witness statement of Michael Robert McKenna dated 26 August 2022, para 52; Exhibit 1, page 234.
[127] 'Dead storage' is the portion of total storage capacity that is equal to the volume of water below the level of the lowest outlet (the minimum supply level). This water cannot be accessed under normal operating conditions: Applicant's SIFC, para 5.5; Exhibit 1, page 59.
[128] Witness statement of Michael Robert McKenna dated 26 August 2022, para 50; Exhibit 1, page 233.
[129] Witness statement of Michael Robert McKenna dated 26 August 2022, para 49; Exhibit 1, page 233.
I accept the uncontested evidence of Mr McKenna, and I find, that the applicant could improve his water security and satisfy his irrigation needs by utilising alternative infrastructure (or moving existing infrastructure) to access a greater proportion of his dam's storage capacity. The applicant also has the option of pumping water from the dam into an off-stream unregulated storage.[130] Further, based on the uncontested evidence of Mr Braccia, I am satisfied that the WTP meets the objective of the Water Allocation Plan of providing 'flow regimes in irrigated subareas that supply licence entitlements in almost all years'.

Was appropriate consultation carried out by DWER on the introduction of the WTP condition?

[130] Witness statement of Michael Robert McKenna dated 26 August 2022, para 52; Exhibit 1, page 234.

The applicant sought certain orders to address the level of public consultation on the WTP as it relates to other licensees and the broader community.[131] Whilst the jurisdiction of the Tribunal does not extend to matters that concern licensees who are not parties to review proceedings, the nature and extent of consultation on the WTP before it was imposed as a condition on the applicant's licence is a factor that is relevant to my determination. It is in this context that I will next consider the level of stakeholder engagement carried out on the WTP by the respondent.

Summary of the parties' contentions and evidence

[131] Exhibit 1, page 26.

The applicant contends that there was inadequate consultation prior to the imposition of the WTP as a condition on licence renewals.[132] The applicant further contends that the examples of consultation set out in the respondent's Statement of Issues, Facts and Contentions were information sessions held after it had already decided to introduce the WTP.[133] Whilst the applicant acknowledged that there is no statutory requirement to publicly consult unless a statutory management plan has been prepared, he says that the approach taken by the respondent is inconsistent with the object in s 4 of the RIWI Act to foster consultation with members of local communities.[134]
[132] Applicant's SIFC, para 6.5 and para 6.6; Exhibit 1, page 67.
[133] Applicant's SIFC, para 6.5 and para 6.9; Exhibit 1, page 68.
[134] Applicant's SIFC, para 6.54; Exhibit 1, page 74.
The respondent says that it complied with the statutory requirements under the RIWI Act for consultation with the applicant in relation to the imposition of the WTP condition before issuing his licence renewal. Consequently, the respondent does not accept that the issue of consultation (as it relates to the renewal of the applicant's licence) is relevant to whether the imposition of the WTP is the correct and preferable decision for the purposes of these proceedings.[135]
[135] Respondent's SIFC, para 82; Exhibit 1, page 105.
In relation to the respondent's decision to impose a WTP within the Warren-Donnelly catchment at licence renewal, the respondent says that it was not subject to any statutory requirement to consult (such as that contained in Pt III Div 3D of the RIWI Act for regional, subregional and local area management plans).[136] In the alternative, the respondent says that the WTP has a sound scientific basis and has been implemented by the respondent consistently for a long period of time. The respondent observed that the technical nature of the information on which the WTP is based means that it is not readily amenable to refinement by public consultation.[137] Despite this, the respondent says that it carried out public consultation during the period in which the WTP was being consistently imposed as a condition on licence renewals.[138]
[136] Respondent's SIFC, para 83; Exhibit 1, page 105.
[137] ts 12, 1 November 2022.
[138] Respondent's SIFC, para 87; Exhibit 1, page 106.
The Bypass Policy provides that the Department may impose conditions on licences that state the times in the year when flows must be allowed to bypass dams.[139] The respondent contends that the Bypass Policy provides a policy basis for the imposition of a bypass period and, as part of the Water Allocation Plan, was refined after a thorough process of public consultation. Whilst the respondent acknowledged that the Bypass Policy is not a statutory policy, it observed that bypass periods have been imposed on all of the applicant's licences to protect the ecological values of the Lefroy River.[140]
[139] Water Allocation Plan, Table 3, cl 2.1.2.
[140] Respondent's SIFC, para 85; Exhibit 1, page 106.
In support of its position on this issue, the respondent relied on the evidence of Mr Maskew and Mr McKenna.
Mr Maskew commented on the level and detail of consultation on the Water Allocation Plan in the context of the Department's 2011 guide to its water allocation process entitled, Water allocation planning in Western Australia. Mr Maskew expressed the following opinion:[141]
… In my experience the WDSWAP [Water Allocation Plan] is one of the most thoroughly consulted on allocation plans in terms of the timeframe and opportunity for stakeholders to be engaged. This is based on my experience and involvement with development of other allocation plans for areas such as lower Gascoyne River, Carnarvon Artesian Basin, Arrowsmith, Jurien and Myalup.
[141] Witness statement of Adam Andrew Maskew dated 25 August 2022, para 10; Exhibit 1, page 161.
Mr Maskew described the evolution of the WTP condition. He recalled that the Department had reviewed all licence conditions that applied State-wide as part of its REFOCUS program (which ran from 2012 to 2017) and determined that conditions that required licensees to bypass all flows during a specified period were not aligned with the RIWI Act because of the statutory definition of 'take' (which occurs when water is captured by a dam from a watercourse, or pumped directly from a watercourse into storage).[142] Mr Maskew provided the following evidence:[143]
It is my recollection that the outcomes of the REFOCUS review of licen[c]e conditions and the discussions and advice with the [Water Advisory] Committee in variable take licensing policy led to the then South West Regional Program Manager directing officers to implement a defined winter take period between 15 June and 15 October each year as a condition on new and renewed licen[c]es (that weren't variable take licences) in January 2016.
[142] Witness statement of Adam Andrew Maskew dated 25 August 2022, para 18 and para 19; Exhibit 1, page 162.
[143] Witness statement of Adam Andrew Maskew dated 25 August 2022, para 30; Exhibit 1, page 163.
Mr Maskew has been Chair of the Water Advisory Committee since 2015. He said that the Department had discussed the WTP with the Water Advisory Committee at a number of its meetings between 2016 and 2019, and during field trips and other events that were not formally minuted.[144] At a meeting held on 20 March 2018, the Water Advisory Committee was provided with a departmental memorandum from Mr McKenna outlining the development and implementation of the WTP. The memorandum provides that the Water Advisory Committee was advised at its meeting on 6 September 2016 'that the 15 June to 15 October take rule' would be placed on new and renewed licences.[145] The information in the memorandum was given to licensees in newsletter form.[146] In response to the memorandum, the Water Advisory Committee recommended that the WTP should be reviewed and adjusted if climate variability/change resulted in a shift in stream flows.[147]
[144] ts 248, 3 November 2022. Witness statement of Adam Andrew Maskew dated 25 August 2022, para 35; Exhibit 1, page 164.
[145] Witness statement of Adam Andrew Maskew dated 25 August 2022, para 38; Exhibit 1, page 164; Exhibit 2, page 985 (Document 106).
[146] Exhibit 2, page 987 (Document 107).
[147] Witness statement of Adam Andrew Maskew dated 25 August 2022, para 38; Exhibit 1, page 164; Exhibit 2, page 987 (Document 107).
Mr McKenna said that the Department intends to apply the WTP consistently across all licences and, as of 26 April 2022, 75% of licences in the Warren-Donnelly area and 80% of licences in the Upper Lefroy subarea had the condition.[148] As part of the progressive application of the WTP, Mr McKenna observed that licensees are provided with the opportunity to make a submission, which may include any practical limitations of complying with the bypass requirements.[149]
[148] Witness statement of Michael Robert McKenna dated 26 August 2022, para 71; Exhibit 1, page 240.
[149] Witness statement of Michael Robert McKenna dated 26 August 2022, para 72; Exhibit 1, page 241.
I will next consider the role of the respondent in policy-making and the status of the Water Allocation Plan and the WTP in that context.

Government policy-making

A policy is a non-statutory rule (other than delegated legislation) devised by government agencies to provide guidance to decisionmakers in administering legislation.[150] The development of policy guides the exercise of statutory discretion and has the benefit of aiding consistency in decision-making: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Re Drake) at 644. Brennan J, said in Re Drake:[151]
By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sends of satisfaction with the fairness and continuity of the administrative process.
[150] Robin Creyke et al, Control of Government Action Text, Cases & Commentary (LexisNexis Butterworths, 5^th ed, 2018) 768.
[151] Re Drake at 640.
The importance of policies, to guide the exercise of discretionary power is well recognised. For example, in Clive Elliott Jennings& Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 (Clive Elliot Jennings) Barker J referred to Re Drake, amongst other authorities, and stated:[152]
25Much has been written about the use of policy in administrative decision-making. Administrators do not act unlawfully in adopting policies to structure their discretionary powers. Indeed, courts have accepted that it is desirable that they should do so: British Oxygen Co Ltd v Minister of Technology [1971] AC 610; R v Eastleigh Borough Council; ex parte Betts [1983] 2 AC 613; Sawyer v Secretary to Department of Primary Industry (1998) 15 ALD 742.
[152] Clive Elliot Jennings at [25]-[26].
The parties agreed, and I find, that the Water Allocation Plan was not the subject of public consultation pursuant to Pt III Div 3D of the RIWI Act and, consequently, it is not a statutory management plan or a policy to which s 28 of the SAT Act applies. It is, however, a policy devised by the Department to ensure water is allocated in a way that maintains a reliable water supply to irrigators and to support the social and environmental values of the rivers in the Warren-Donnelly area.[153] Based on the evidence of Mr Maskew, which I accept, I find that the Water Allocation Plan, although not a statutory policy, has been the subject of significant stakeholder consultation.
[153] Exhibit 2, page 368.
The Bypass Policy provides that the respondent may impose conditions on licences that state the times in the year when flows must be allowed to bypass dams, but it does not specify the relevant times when flows should bypass dams. Pursuant to the Bypass Policy, the respondent determined, in its capacity as the State's water regulator, that flows should be permitted to bypass dams for five months of the year. However, since January 2016, the respondent has revised its approach and imposed the WTP on all new and renewed licences.
The respondent argued that the WTP is a non-statutory policy and, consequently, a policy that I should have regard to and apply unless the applicant can show that there is a cogent reason or sound basis to depart from it.[154] Whilst I accept that the WTP has the Water Allocation Plan as its foundation, I am not satisfied that the WTP is a policy. This is because the respondent, being the State agency with the statutory responsibility and power to regulate on-stream dams, may impose conditions on licences that state the times in the year when flows must be allowed to bypass dams (as provided for in the Bypass Policy). The WTP is one such condition that may be imposed and, having regard to the expert evidence I have heard, I find it is a condition based on sound technical principles.
[154] ts 39-40, 1 November 2022; See More and Water and Rivers Commission [2006] WASAT 112 at [33][36]; Ord Irrigation Cooperative Ltd and Department of Water and Environmental Regulation (2020) 100 SR(WA); [2020] WASAT 68 at [107]-[109].
If I am incorrect, and the WTP is a policy, I will next set out the principles relating to the application of policy and consider whether there is a cogent reason or sound basis to depart from the WTP in the circumstances of this case. Regardless of its status in administrative law, I observe that there is no published guidance on the WTP which may lead to stakeholder uncertainty and misunderstanding about its application and, consequently, increased compliance risk for the respondent.

Principles relating to the application of policy

The existence of a policy, formulated by the decision-maker whose decision is under review, is a factor to be taken into consideration by the Tribunal, but it cannot replace the exercise of discretion by the Tribunal.[155] The Tribunal's decision 'must be the result of an independent assessment of all the circumstances of the particular case and not the uncritical application of policy'.[156] That is, a policy cannot be inflexibly applied regardless of the merits of the case: Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196 at [37] citing Clive Elliott Jennings at [24]-[26] (Barker J). However, any departure from government policy must be cautious and sparing, occurring only where there are cogent reasons or a sound basis to do so.[157]
[155] See Save Beeliar Wetlands (Inc) v Jacob [2015] WASC 482 at [130] citing Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; (1979) 2 ALD 60 at 69-70.
[156] The Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 at 205207.
[157] Re Drake at 644-5; Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 at [182].
In Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100, the Tribunal adopted the criteria set out in Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR (WA) 1 at [51] for determining the weight to be given to a policy. The criteria includes whether the policy is based on sound principles, is public (as opposed to secret) and whether it was conceived after considerable public discussion. The length of time that the policy has been in operation and whether it has been continuously applied are also relevant criteria. In the decision of Marsh and Commissioner of Police [2018] WASAT 139 (Marsh), the Tribunal observed that the weight attached to a policy may be influenced by the extent of public consultation that preceded it and whether it originated from a political or departmental process.[158]
[158] Marsh at [27] and [38]-[39].

It follows from these authorities that I must have regard to policy in making my decision, but it cannot be applied inflexibly so as to fetter the exercise of my discretion. I am entitled to depart from the application of policy if there are cogent reasons or a sound basis to do so having regard to the circumstances of the case.
The Water Allocation Plan is a policy to which I must have regard. Although it is not a statutory management plan, it was advertised for public comment, and subject to stakeholder engagement, before it was finalised by the Department.[159] Because the Water Allocation Plan is not a statutory plan, the respondent says that there is no statutory obligation to publicly consult on the WTP, and that its technical nature makes it difficult to refine through public consultation in any event. In the alternative, the respondent argues that the WTP has been the subject of public consultation and stakeholder engagement. The applicant, amongst other contentions, says that the level of consultation on the WTP was inadequate and did not satisfy the object of the RIWI Act to foster consultation with members of local communities.
[159] Witness statement of Adam Andrew Maskew dated 25 August 2022, para 10; Exhibit 1, page 161.
Based on the uncontested evidence of Mr Maskew, which I accept, I find that the Water Advisory Committee had considered the WTP at a number of its meetings between 2016 and 2019 and had provided feedback to the respondent on it. I further find that the information about the WTP presented to the Water Advisory Committee was made available to stakeholders through a local newsletter. I am satisfied that these activities are consistent with the object of the RIWI Act to foster consultation with members of local communities. However, I do not accept the respondent's contention that the technical bases for the WTP should act as a disincentive to obtaining community input into it. I consider that facilitating community feedback on the practical consequences of a change to government policy is vital to ensuring public satisfaction with the fairness of the administrative process.
Whilst the WTP has not been subject to a formal statutory public consultation process, it has been adopted and applied consistently by the respondent since January 2016 on all new and renewed licences. I find that, as of 26 April 2022, 75% of licences in the WarrenDonnelly area and 80% of licences in the Upper Lefroy subarea had the WTP as a condition.
Because I have found that the WTP is based on sound technical principles and has been consistently applied to licences in the Upper Lefroy since January 2016, I am satisfied that it should only be departed from if there is a cogent reason or sound basis to do so having regard to the merits of the applicant's case.
For the reasons that follow, I find that there is no cogent reason or sound basis to depart from the application of the WTP in the circumstances of this case. First, I do not consider that the respondent's reliance on the SDL method in formulating the WTP is a cogent reason or sound basis to depart from it. As I found earlier, the WTP assists in maintaining transitional flows, which protect the ecological values of the Upper Lefroy on which the applicant's dam is located. Maintaining transitional flows is particularly important in a drying climate when streamflow may be less predictable. Second, whilst the applicant may be unable to reliably fill his dam in October and November if he bypasses transitional flows, I have found that the applicant could satisfy his irrigation needs by utilising alternative infrastructure, or moving existing infrastructure, to access a greater proportion of his dam's storage capacity. Third, in relation to the nature and extent of community consultation conducted by the respondent on the WTP, I have found that the respondent engaged with stakeholders, and obtained their feedback on the WTP, when it was first introduced as a licence condition. Since then, it has been consistently applied by the respondent in the Upper Lefroy subarea to new licences or on licence renewal. I am also satisfied that the respondent afforded the applicant an opportunity to provide feedback on the WTP at the time of his licence renewal in 2021.[160] Finally, the applicant did not adduce any independent expert or other witness evidence to demonstrate that the application of the WTP to his licence would produce an unjust result having regard to his particular circumstances.
[160] Exhibit 2, page 15.
I will next consider whether the applicant should be granted his licence for an indefinite term.

What should be the duration of the licence?

The licence, the subject of review, has been granted to the applicant for a period of 10 years. The applicant seeks a licence of an indefinite duration.
Pursuant to cl 12 of Sch 1 to the RIWI Act, a licence may be granted or renewed by the Minister (and the Tribunal on review) for a fixed period or an indefinite duration. It is the respondent's policy not to issue licences for longer than a period of 10 years (Licence Tenure Policy).[161]
[161] Respondent's SIFC, para 104; Exhibit 1, page 108. Section 5C licence tenure, DWER, October 2019.
The applicant contends that there is no sound reason not to issue the licence on an indefinite basis.[162] The applicant says that granting a perpetual licence is consistent with the National Water Initiative (NWI)[163] which is aimed at increasing the security of water entitlements to support investment in irrigation activities and water trading.[164] He also says that the making of statutory management plans under the RIWI Act should facilitate longer licence periods,[165] but that the respondent has not prepared any plans or progressed the introduction of long-term or indefinite period licences.[166]
[162] Applicant's SIFC 9.11; Exhibit 1, page 84.
[163] Intergovernmental Agreement on a National Water Initiative, COAG, 1994.
[164] Applicant's SIFC 9.1; Exhibit 1, page 83.
[165] Rights in Water and Irrigation Act Amendment Bill 1999 (WA), Clause Notes; Exhibit 3, page 88.
[166] Applicant's SIFC 9.4; Exhibit 1, page 83.
The respondent contends that s 5C licences of a 10 year duration, consistent with its Licence Tenure Policy, allows regular review of the appropriateness of the licence and the terms, conditions and restrictions to manage the changing nature of the water resource.[167] The respondent further contends that the applicant has not demonstrated a cogent reason to depart from the Licence Tenure Policy.[168] The respondent says it would be inconsistent with the object of the RIWI Act, to manage water resources sustainability, if a licence was granted to the applicant for more than 10 years, particularly in the context of a drying climate and decreasing streamflow in the Upper Lefroy. It also says it would be a departure from the treatment of other licence holders in the State, and from the duration of licences that the applicant has historically held, if the licence was granted for an indefinite period.[169]
[167] ts 12, 1 November 2022; Respondent's SIFC, para 104; Exhibit 1, page 108.
[168] Respondent's SIFC, para 105; Exhibit 1, page 108.
[169] Respondent's SIFC, para 105; Exhibit 1, page 108.
In support of its position, the respondent relied on the evidence of Mr McKenna. Mr McKenna considers that the 10 year licence term is a fair attempt to achieve the intent of the NWI to provide certainty to water users in Western Australia. He also observed:[170]
The Department uses the 10 year licence term as a trigger and opportunity to review and update the terms, conditions and restrictions of the licence in order to remove obsolete content and reflect contemporary circumstances, position, policy and legislation[.]
[170] Witness statement of Michael Robert McKenna dated 26 August 2022, para 69; Exhibit 1, page 239.
Based on the uncontested evidence before me, I am satisfied, in the circumstances of this case, that there are no cogent reasons to depart from the Licence Tenure Policy. I find that the purpose of implementing a 10 year licence period, as stated in the Licence Tenure Policy, is to ensure that the Department delivers an efficient water licensing program that maximises the use of available resources while protecting the State's water resources.[171] Whilst the respondent has broad powers to amend, suspend or cancel licences by written notice at any time,[172] I find that a 10 year licence duration provides the respondent with an appropriate trigger to review and, if necessary, amend the terms of the applicant's licence to protect the ecological values of the Upper Lefroy, particularly in the context of a drying climate and decreasing streamflow in the south-west.
[171] Section 5C licence tenure, DWER, October 2019, page 1.
[172] See cl 24 and cl 25 of Sch 1 to the RIWI Act.
Consequently, for these reasons, I find that the licence should be granted for a period of 10 years and not on an indefinite basis.

Conclusion

I am satisfied that the WTP is a matter to which a licence condition may relate for the purposes of item 2 of Appendix to Sch 1 to the RIWI Act, being a condition that relates to the use, management, protection and enhancement of the Lefroy Brook and its ecosystem, or the environment in which the watercourse is situated.
In determining the conditions on which a licence is to be renewed, I am required to consider the matters listed in cl 7(2) of Sch 1 to the RIWI Act. Otherwise, I can have regard to all matters that I consider relevant.
Having regard to cl 7(2)(b) and cl 7(2)(c) of Sch 1 to the RIWI Act, I have found that the purpose of the WTP condition is to ensure that the applicant's take is ecologically sustainable and environmental acceptable by maintaining transitional flows and, thereby, helping to protect the ecological values of the Lefroy Brook and downstream aquatic and riparian environments. The maintenance of transitional flows is particularly important to the downstream environment in low flow years because farm dams store the same volume of water as in high flow years but intercept a higher proportion of total streamflow.
The uncontested evidence before me demonstrates that the applicant will retain an acceptable level of water reliability and, consequently, for the purposes of cl 7(1)(d) of Sch 1 to the RIWI Act, I have found that his current and future needs for water allocated to him under his AWE will not be prejudiced. The applicant could improve the reliability of his water supply, particularly in dry years, by utilising alternative infrastructure (or moving existing infrastructure) to access a greater proportion of his dam's storage.
For the purposes of cl 7(2)(e) of Sch 1 to the RIWI Act, I have found that the bypass of transitional flows will not have a detrimental effect on other unregulated users, including members of the public using the watercourse for cultural and recreational purposes. The evidence before me demonstrates that protecting transitional flows is likely to be of benefit to users of Lefroy Brook and the downstream environment.
In relation to cl 7(2)(g) of Sch 1 to the RIWI Act, I have found that imposing the WTP condition on the applicant's licence is consistent with other decisions of the Department to impose it on licensees within the Upper Lefroy, and the Warren-Donnelly area more broadly, at the time of granting a new licence or at licence renewal.
For these reasons, I am satisfied that the WTP condition is in the public interest for the purposes of cl 7(2)(a) of Sch 1 to the RIWI Act, and achieves the objects set out in s 4 of the RIWI Act, in particular the sustainable management and use of water resources and the protection of ecosystems and the environment is which water resources are situated.
The applicant sought certain orders to address the nature and scope of the respondent's consultation on the WTP as it relates to other licensees and the broader community.[173] Because the jurisdiction of the Tribunal does not extend to matters that concern licence holders who are not parties to these proceedings, I am unable to grant the relief sought and, therefore, must decline to do so.
[173] Exhibit 1, page 26.
The respondent conceded that the words 'or as otherwise directed by the Department of Water and Environmental Regulation' should be deleted from the WTP condition.
Having regard to the relevant matters in cl 7(2) of Sch 1 to the RIWI Act, and weighing up my findings in respect of the issues for determination, I conclude that the correct and preferable decision is to allow the application in part and affirm the respondent's decision, save for condition 2 which is amended to read as follows:
2.The licence shall only take water from the watercourse to fill the dam between 15 June and 15 October each year.

Orders

The Tribunal orders:
1.The application for review is allowed in part.
2.The respondent's decision is affirmed, save for condition 2 of the licence which is amended to read as follows:
2.The licence shall only take water from the watercourse to fill the dam between 15 June and 15 October each year.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS C BARTON, MEMBER
24 FEBRUARY 2023

ANNEXURE A

Map of the Lefroy Brook catchment

Native species (common name)	Surface water management subarea
Lefroy Brook	East Brook	Four Mile Brook / Big Brook	Upper Lefroy
Nightfish
Western Minnow
Western Pygmy Perch
Freshwater Cobbler
Smooth Marron
Restricted Gilgie
Gilgie
Koonac
Mud minnow
Pouched lamprey
Carter̕ s freshwater mussel