Price v Water Administration Ministerial Corporation of New South Wales

[2002] NSWLEC 147

Land and Environment Court

of New South Wales

CITATION:	Price v Water Administration Ministerial Corporation of New South Wales [2002] NSWLEC 147
PARTIES:	APPELLANT: Michael Robert Price RESPONDENT: Water Administration Ministerial Corporation
FILE NUMBER(S):	30107 of 2001
CORAM:	Lloyd J
KEY ISSUES:	Water Rights :- appeal against refusal to grant water licence
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 111 Water Act 1912 s 11(4)
CASES CITED:
DATES OF HEARING:	11/07/2002
EX TEMPORE JUDGMENT DATE :	07/11/2002
LEGAL REPRESENTATIVES:	APPELLANT: In person SOLICITORS: N/A RESPONDENT: Mr M W Hadley (barrister) SOLICITORS: Paul Percival Esq Department of Land and Water Conservation

JUDGMENT:

5

MICHAEL ROBERT PRICE

Appellant

v

WATER ADMINISTRATION MINISTERIAL CORPORATION

OF NEW SOUTH WALES

Respondent

EXTEMPORE JUDGMENT

HIS HONOUR:

1. This is an appeal under s 11(4) of the Water Act 1912 against the decision of the respondent to refuse an application for a licence to take water from the Numeralla River (“the river”).

2. The relevant facts may be briefly described as follows. On 6 May 1994 Mr J R A Tett the then owner of a property known as lot 1 in deposited plan 803270, locality Chakola, Parish Callaghan, County Beresford, adjoining the river, made an application for licence under s 10 of the Water Act to operate a pumping work and to pump water from the river for the purpose of irrigation. The Department of Land and Water Conservation (“the Department”) upon the notification of the application for licence received an objection from New South Wales Fisheries objecting to the grant of the licence.

3. The Department was desirous of carrying out a survey of the Numeralla River catchment. Rather than grant the application for the licence the Department issued a temporary permit under s 181 of the Water Act to Mr Tett to pump water from the Numeralla River for a period of twelve months commencing on 26 October 1994. This permit was issued on the basis that a survey of the catchment would be carried out in order for the Department to fully assess the water resource capabilities of the river catchment and to assess its ability to sustain further development involving water extraction.

4. The temporary permit was renewed by the Department for a further period of twelve months in October 1995 as a result of the insufficiency of the necessary data. In 1998 Mr Tett transferred his property to his sister, Ms J A Tett, who then sold it to Mr M R Price, the present appellant, and at the same time Mr Tett assigned to the appellant, Mr Price, his water irrigation licence.

5. On 6 September 1999 Mr Price wrote to the Minister for Agriculture and the Minister for Land and Water Conservation, Mr R A Amery MP, seeking his assistance in relation to his application for a licence. On 10 November 1999 the Minister replied by letter in which he referred to the fact that there is now a complete embargo in place on the issue of new licences; and even before existing applications may be processed determinations have to be made as to whether individual sub-catchments are able to accommodate additional extraction. The Minister also pointed out that, to complicate Mr Price’s situation, there was an objection by New South Wales Fisheries. The Minister’s letter continues:

The Department’s action in this regard will largely depend upon the outcome of the catchment survey.

6. On 11 April 2001 the Department of Land and Water Conservation wrote to Mr Price referring to the support of the New South Wales Government in 1995 to the introduction of the Murray/Darling basin cap on surface water extractions. The letter explains that the cap was introduced by the governments of New South Wales, Victoria, South Australia, Queensland and the Commonwealth because of significant concerns about continually reducing levels of reliability for existing water users and concerns about the health of the Murray/Darling River system generally. The letter continues:

The continuing growth of water diversions was judged to be significantly affecting the rights of all downstream users in terms of their levels of reliability. The cap is now acknowledged as essential to protect the water rights and business investments of existing water users who have licences to cover the totality of their water needs.

7. The letter also states that there was also very clear evidence that the increased use of water from the Numeralla River was causing growth in the environmental stress of the river. The letter concludes that for these reasons it will not be possible to grant approval to Mr Price’s application for a licence. Mr Price was invited to withdraw his application. When that was not done his licence application was formally refused by the Department in its letter dated 26 September 2001.

8. As was indicated in the Department’s letter to Mr Price, in July 1995 the New South Wales Government supported the introduction of the Murray/Darling basin cap on surface water extractions. In October 1998 the Minister imposed a “s 22(BA) embargo” on the issue of new licences and that precluded all applications for irrigation.

9. Evidence has been adduced from Mr S F Webb, the Resource Access Manager of the Department, who in addition to referring to these facts said that he is aware of numerous complaints that have been received from the users of Numeralla River regarding low flows of the river in summer. In his opinion, based on his experience and knowledge of the area, any additional extraction of the water from the river by way of a new licence will further exacerbate the shortfall of available water resource and impinge on in-stream flow needs.

10. Evidence has been adduced from Mr M J Foreman, Regional Hydrologist employed by the Department, who has measured the river flows and has produced a comprehensive report which sets out in detail his findings. His report notes that as demand is negligible at high flows, it is the lower flows that are important when determining how much development a catchment can sustain. The report shows that if full activation of currently issued licences occur then extractions from the river are likely to be greater than the flow in the river. This indicates to him that the Numeralla River catchment may not be able to support all the current licence holders let alone any additional extraction. The report concludes that the issuing of any additional entitlement to take water from the river on top of those already existing is likely to exacerbate severe environmental and equity problems.

11. It is clear from the evidence of Mr Webb, however, that significantly less than 100 per cent of the licences that have been issued are activated. According to him the number of licence holders who have not utilised their entitlement are a little over half of those who have current licences to extract water from the river.

12. Mr Price, who appears for himself, has raised three principal arguments in support of his application. Firstly, he says that rainfall in the vicinity of his property was not taken into consideration by the Department and that in turn effects demand upon the water in the river. The greatest impact from the grant of licence on the river is during the summer months when water flows are low, yet according to him, rainfall at the nearest rainfall station at Cooma shows that summer is a high rainfall period, that accordingly he would not draw upon the river for his water needs at that time, and that his need for a licence is simply to top up the rainfall when there are periods of low rainfall.

13. Secondly,

he says that it is unreasonable to assume in refusing the grant of licence that all licensees would in fact utilise their entitlements together. I must say that there is some force in this submission. It is supported by the fact that only a little more than half of all current licence holders utilise their entitlement.

14. Thirdly,

he states that the data upon which the Department relies in refusing the grant of licence is taken from a low point in the long-term weather cycle and is not truly representative of either rainfall or the river flows in the area.

15. In considering the matter generally I am mindful of the fact that the Court is required by s 111 of the Environmental Planning and Assessment Act 1979 to take into account the environmental impact of any activity, including the proposed activity here. That in turn requires consideration of the principles of ecologically sustainable development and the precautionary principle incorporated therein.

16. As to the argument that it is not reasonable to assume that all licensees would utilise their entitlements, it seems to me that there is a number of answers to that submission. First of all it is said by Mr Webb that the river is already under stress in the summer months, despite the fact that only a little more than half of licence holders utilise their entitlement. It is suggested that one of the reasons why not all licence holders use their entitlement is because the river’s flow is not available during the summer months. Next, as Mr Webb has pointed out, whilst the current occupiers may not utilise their entitlement, purchasers from them may. Next, Mr Webb has said in his evidence that if none of the inactive licensees utilise their entitlement the river would still be under stress; and at the same time they would have an expectation to be able to utilise their licences if they saw fit.

17. The approach of Mr Foreman, who states that the Numeralla River catchment may not be able to support all the current licence holders should they wish to utilise their licence, suggests a cautious approach having regard to the precautionary principle to which I have referred.

18. I am also mindful of the objection by New South Wales Fisheries. That objection refers to the fact that the streams in the catchment including the Numeralla River and the flora and fauna that reside within them are already severely stressed; and allowing further extraction of water from the river for irrigation purposes will only serve to increase the stress levels that may result.

19. All of these considerations suggest to me that, notwithstanding Mr Price’s reasonable expectation when he bought the property in the light of the temporary licence that had been granted, it would be inappropriate to grant the licence in this case. Accordingly the appeal is dismissed. The exhibits may be returned.

I hereby certify that the preceding 19 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

Associate