Ramsay v Minister for Lands and Water - [2023] NSWCA 299

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ramsay v Minister for Lands and Water; Hospitality and Racing, The Minister administering the Water Management Act 2000 [2023] NSWCA 299
Hearing dates: 24 November 2023
Date of orders: 12 December 2023
Decision date: 12 December 2023
Before: Bell CJ at [1];
Payne JA at [75];
Adamson JA at [76].
Decision:
Appeals dismissed with costs.

Catchwords:
ENVIRONMENT AND PLANNING – jurisdiction of Land and Environment Court to hear Class 1 appeals – ss 368(1)(a) and (c) of the Water Management Act 2000 (NSW) – where floodplain harvesting (regulated river) access licence not granted in relation to share component said to have been sought – whether determinations of Minister to grant licences with lower share components than had been sought amounted to refusals to grant access licences – whether decision as to share component for access licence constituted imposition of a discretionary condition

Legislation Cited:
Land and Environment Court Act 1979 (NSW) s 17(c)
Water Management Act 2000 (NSW) ss 3, 45, 56, 57, 57A, 61, 63, 66, 67, 68, 68A, 368, Sch 9 cl 98
Water Management Amendment Act 2014 (NSW)
Uniform Civil Procedure Rules 2005 (NSW) r 13.4
Water Management (General) Regulations 2018 (NSW) regs 23A-23L
Water Management (Application of Act to Certain Water Sources) Proclamation 2022
Water Sharing Plan for the Macquarie and Cudgegong Regulated Rivers Water Source 2016 (NSW)

Cases Cited:
Australian Building and Construction Commission v Construction, Farming, Mining and Energy Union (2018) 262 CLR 157; [2018] HCA 36
Knight v FP Special Assets (1992) 174 CLR 178; [1992] HCA 28
PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301; [1995] HCA 36
Roy Morgan Research Centre Pty Ltd v Commission of State Revenue (Vic) (2001) 207 CLR 72; [2001] HCA 49
The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404; [1994] HCA 54

Texts Cited:
P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Law Book Co)

Category: Principal judgment
Parties:
In 2023/229215:

David Burnett Ramsay (Appellant)
The Minister for Lands and Water; Hospitality and Racing, the Minister administering the Water Management Act 2002 (NSW) (Respondent)

In 2023/229221:
Alexander David Ramsay (First Appellant)
Annette Yvonne Ramsay (Second Appellant)
The Minister for Lands and Water; Hospitality and Racing, the Minister administering the Water Management Act 2002 (NSW) (Respondent)
Representation:
Counsel:

C Ireland with B Jackson (Appellants)
Z F Heger with S Hoare (Respondent)

Solicitors:
Horton Rhodes Legal (Appellants)
NSW Department of Planning and Environment (Respondent)

File Number(s): 2023/00229215; 2023/00229221
Publication restriction: N/A
Decision under appeal

Court or tribunal:

Land and Environment Court of New South Wales

Jurisdiction:

Class 1

Citation:

[2023] NSWLEC 66

Date of Decision:

26 June 2023

Before:

Pain J

File Number(s):

2023/57189; 2023/58427

HEADNOTE

[This headnote is not to be read as part of the judgment]

The Appellants, Mr Alexander and Mrs Annette Ramsay and Mr David Ramsay, are the owners…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWCA 299
Decision Date: 12 December 2023

CaseChat Overview and Summary

The Land and Environment Court of New South Wales, constituted by Bell CJ, Payne and Adamson JJA, considered an appeal concerning the jurisdiction of the Court to hear Class 1 appeals under sections 368(1)(a) and (c) of the *Water Management Act 2000* (NSW). The dispute arose from the Minister for Lands and Water's decisions regarding applications for floodplain harvesting (regulated river) access licences. The applicants contended that the Minister's determinations to grant licences with lower share components than had been sought constituted refusals to grant the licences as applied for, and that the decision as to the share component amounted to the imposition of a discretionary condition.

The central legal issues before the Court were whether the Minister's decisions to grant access licences with reduced share components were, in substance, refusals to grant the licences sought, thereby attracting the jurisdiction of the Land and Environment Court under section 368(1)(a) of the Act. Additionally, the Court had to determine whether the Minister's decision regarding the share component of an access licence constituted the imposition of a discretionary condition, which would also engage the Court's appellate jurisdiction under section 368(1)(c).

The Court reasoned that the *Water Management Act 2000* contemplates that the Minister has a discretion in determining the share component of an access licence. The Act does not mandate that a licence must be granted with the exact share component applied for. Therefore, a decision to grant a licence with a lower share component than sought was not a refusal to grant the licence, but rather an exercise of the Minister's statutory discretion in determining the terms of the licence. Consequently, such a decision did not fall within the ambit of section 368(1)(a) as a refusal, nor did it constitute the imposition of a discretionary condition in a manner that would attract the Court's jurisdiction under section 368(1)(c). The Court found that the Minister had acted within their statutory powers.

The appeals were dismissed with costs.

Orders

Orders of the court

Appeals dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Ramsay v Minister for Lands and Water; Hospitality and Racing, The Minister administering the Water Management Act 2000 [2023] NSWCA 299
Hearing dates:	24 November 2023
Date of orders:	12 December 2023
Decision date:	12 December 2023
Before:	Bell CJ at [1]; Payne JA at [75]; Adamson JA at [76].
Decision:	Appeals dismissed with costs.
Catchwords:	ENVIRONMENT AND PLANNING – jurisdiction of Land and Environment Court to hear Class 1 appeals – ss 368(1)(a) and (c) of the Water Management Act 2000 (NSW) – where floodplain harvesting (regulated river) access licence not granted in relation to share component said to have been sought – whether determinations of Minister to grant licences with lower share components than had been sought amounted to refusals to grant access licences – whether decision as to share component for access licence constituted imposition of a discretionary condition
Legislation Cited:	Land and Environment Court Act 1979 (NSW) s 17(c) Water Management Act 2000 (NSW) ss 3, 45, 56, 57, 57A, 61, 63, 66, 67, 68, 68A, 368, Sch 9 cl 98 Water Management Amendment Act 2014 (NSW) Uniform Civil Procedure Rules 2005 (NSW) r 13.4 Water Management (General) Regulations 2018 (NSW) regs 23A-23L Water Management (Application of Act to Certain Water Sources) Proclamation 2022 Water Sharing Plan for the Macquarie and Cudgegong Regulated Rivers Water Source 2016 (NSW)
Cases Cited:	Australian Building and Construction Commission v Construction, Farming, Mining and Energy Union (2018) 262 CLR 157; [2018] HCA 36 Knight v FP Special Assets (1992) 174 CLR 178; [1992] HCA 28 PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301; [1995] HCA 36 Roy Morgan Research Centre Pty Ltd v Commission of State Revenue (Vic) (2001) 207 CLR 72; [2001] HCA 49 The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404; [1994] HCA 54
Texts Cited:	P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Law Book Co)
Category:	Principal judgment
Parties:	In 2023/229215: David Burnett Ramsay (Appellant) The Minister for Lands and Water; Hospitality and Racing, the Minister administering the Water Management Act 2002 (NSW) (Respondent) In 2023/229221: Alexander David Ramsay (First Appellant) Annette Yvonne Ramsay (Second Appellant) The Minister for Lands and Water; Hospitality and Racing, the Minister administering the Water Management Act 2002 (NSW) (Respondent)
Representation:	Counsel: C Ireland with B Jackson (Appellants) Z F Heger with S Hoare (Respondent) Solicitors: Horton Rhodes Legal (Appellants) NSW Department of Planning and Environment (Respondent)
File Number(s):	2023/00229215; 2023/00229221
Publication restriction:	N/A
Decision under appeal	Court or tribunal: Land and Environment Court of New South Wales Jurisdiction: Class 1 Citation: [2023] NSWLEC 66 Date of Decision: 26 June 2023 Before: Pain J File Number(s): 2023/57189; 2023/58427