Ramsay v The Minister for Lands and Water

[2023] NSWLEC 66

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ramsay v The Minister for Lands and Water; Hospitality and Racing, The Minister administering the Water Management Act 2000 [2023] NSWLEC 66

Hearing dates:

8 May 2023

Date of orders:

26 June 2023

Decision date:

26 June 2023

Jurisdiction:

Class 1

Before:

Pain J

Decision:

1 The Court makes the following orders in proceedings no. 2023/57189:

(1) The proceedings against the Respondent are dismissed pursuant to rule 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW).
(2) The Minister’s costs of the notice of motion dated 6 April 2023 are to be paid by the Applicants as agreed or assessed.

2 The Court makes the following orders in proceedings no. 2023/58427:

(1) The proceedings against the Respondent are dismissed pursuant to rule 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW).
(2) The Minister’s costs of the notice of motion dated 6 April 2023 are to be paid by the Applicants as agreed or assessed.

Catchwords:

QUESTION OF LAW – applications for summary dismissal of Class 1 proceedings - grant of floodplain harvesting (regulated river) access licence for lesser amount of unit shares of water than sought by landholder not a refusal of access licence – allocation of unit shares of water in floodplain harvesting (regulated river) access licence not a discretionary condition - Court lacks jurisdiction to determine purported Class 1 appeal made pursuant to s 368(1) of Water Management Act 2000 (NSW) – statutory construction of s 368(1) of Water Management Act 2000 (NSW) – costs order made in favour of successful respondent as legal issue determinative of proceedings not requiring assessment of merits

Legislation Cited:

Land and Environment Court Act 1979 (NSW), ss 16, 17

Land and Environment Court Rules 2007 (NSW), r 3.7

Uniform Civil Procedure Rules 2005 (NSW), r 13.4

Water Management Act 2000 (NSW), ss 3, 45, 56, 57, 57A, 58, 61, 62, 63, 66, 67, 68, 68A, 368

Water Management (General) Regulation 2018 (NSW), cll 23A, 23B, 23C, 23F, 23G, 23K, 23L

Water Sharing Plan for the Macquarie and Cudgegong Regulated Rivers Water Source 2016 (NSW), cll 28, 92

Water Sharing Plan for the Macquarie and Cudgegong Regulated Rivers Water Source Amendment Order 2022 (NSW)

Cases Cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Review (NT) (2009) 239 CLR 27; [2009] HCA 41

Clark v Robards [2010] NSWSC 522

Cosmos E-C Commerce Pty Ltd v Bidwell & Associates Pty Ltd [2005] NSWCA 81

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297

Dolton v Eurobodalla Shire Council [2020] NSWLEC 141

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69

Goode v Gwydir Shire Council [2019] NSWLEC 70

NA & J Investments Pty Ltd v Minister Administering the Water Management Act 2000; Arnold v Minister Administering the Water Management Act 2000 (2011) 181 LGERA 166; [2011] NSWLEC 51

House of Peace Pty Ltd & Anor v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44

Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101; 249 ALR 44; [2008] HCA 38

Norman v Central Coast Council [2022] NSWLEC 120

Owners of Ship Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336; [1975] HCA 28

Roden v Bandora Holdings Pty Ltd [2015] NSWLEC 191 Ltd [2015] NSWLEC 191

Scevola v Minister Administering National Parks and Wildlife [2017] NSWLEC 106

Sydney Seaplanes Pty Ltd v Page (2021) 393 ALR 485; [2021] NSWCA 204

Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9

Texts Cited:

D C Pearce and R S Geddes, Statutory Interpretation in Australia (8th ed, 2014, LexisNexis)

D Pearce and S Argument, Delegated Legislation in Australia (6th ed, 2023, LexisNexis)

Category:

Procedural rulings

Parties:

2023/57189-002
The Minister for Lands and Water; Hospitality and Racing, The Minister administering the Water Management Act 2000 (Applicant on the Motion)
Alexander David Ramsay (First Respondent on the Motion)
Annette Yvonne Ramsay (Second Respondent on the Motion)
2023/58427-002
The Minister for Lands and Water; Hospitality and Racing, The Minister administering the Water Management Act 2000 (Applicant on the Motion)
David Burnett Ramsay (Respondent on the Motion)

Representation:

Counsel:
H El-Hage (Applicant on the Motion)
C Ireland (Respondents on the Motion)
Solicitors:
Department of Planning & Environment (Applicant on the Motion)
Horton Rhodes (Respondents on the Motion)

File Number(s):

2023/57189-002; 2023/58427-002

JUDGMENT

1. The Minister for Lands and Water; Hospitality and Racing, The Minister administering the Water Management Act 2000 (NSW) (the Minister) has filed as the applicant two notices of motion on 6 April 2023 seeking summary dismissal of two Class 1 applications which name the Minister as the respondent.

2. The Class 1 applications were filed on 20 February 2023 by Mr A and Mrs A Ramsay in relation to the property they own known as ‘Flintrock’ (proceeding no. 2023/57189) and on 21 February 2023 by Mr D Ramsay in relation to the property he owns known as ‘Banchory’ (proceeding no. 2023/58427), collectively the Applicants (noting they are the respondents to the Minister’s notices of motion). Both Class 1 applications purport to be made pursuant to s 368(1) of the Water Management Act 2000 (NSW) (WM Act) appealing the two determinations of the Minister notified by Departmental letters dated 10 February 2023 to grant a floodplain harvesting (regulated river) access licence (FH licence) with 2,522 unit shares of water for Flintrock and a FH licence with 3,926 unit shares of water for Banchory (the Determinations).

3. Both properties are farming properties located in Warren NSW on a floodplain and are subject to the Water Sharing Plan for the Macquarie and Cudgegong Regulated Rivers Water Source 2016 (WSP 2016). The Applicants sought 8,000 unit shares of water in each FH licence application which was not the amount granted in either FH licence. The Applicants contend that the treatment of the applications for the FH licences constituted a refusal of the applications lodged by the Applicants enabling an appeal relying on s 368(1) of the WM Act.

4. The Minister submits that as there is no statutory right of appeal against the Determinations under s 368(1) of the WM Act the proceedings should be dismissed as no reasonable cause of action is identified in the Class 1 applications. The notices of motion rely on r 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) or in the alternative, r 13.4(1)(a).

5. By court order made on 19 April 2023 both notices of motion were listed together for hearing. The notices of motion seek the following relief in both Class 1 proceedings:

1 The proceedings against the Respondent are dismissed pursuant to rule 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW).

2 In the alternative, proceedings against the Respondent are dismissed pursuant to rule 13.4(1)(a) of the Uniform Civil Procedure Rules 2005 (NSW).

3   The Applicant to pay the Respondent’s costs of the Motion.

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Legislation

Water Management Act 2000 (NSW)

6. The relevant sections of the WM Act provide as follows:

Chapter 1 Preliminary

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3 Objects

The objects of this Act are to provide for the sustainable and integrated management of the water sources of the State for the benefit of both present and future generations and, in particular—

(a) to apply the principles of ecologically sustainable development, and

(b) to protect, enhance and restore water sources, their associated ecosystems, ecological processes and biological diversity and their water quality, and

(c) to recognise and foster the significant social and economic benefits to the State that result from the sustainable and efficient use of water, including—

(i) benefits to the environment, and

(ii) benefits to urban communities, agriculture, fisheries, industry and recreation, and

(iii) benefits to culture and heritage, and

(iv) benefits to the Aboriginal people in relation to their spiritual, social, customary and economic use of land and water,

(d) to recognise the role of the community, as a partner with government, in resolving issues relating to the management of water sources,

(e) to provide for the orderly, efficient and equitable sharing of water from water sources,

(f) to integrate the management of water sources with the management of other aspects of the environment, including the land, its soil, its native vegetation and its native fauna,

(g) to encourage the sharing of responsibility for the sustainable and efficient use of water between the Government and water users,

(h) to encourage best practice in the management and use of water.

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Chapter 2 Water management planning

Part 3 Management plans

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Division 9 Amendment of management plans by Minister

45 Minister may amend or repeal management plan

(1) The Minister may at any time, by order published on the NSW legislation website, amend a management plan—

(a) if satisfied it is in the public interest to do so, or

(b) in such circumstances, in relation to such matters and to such extent as the plan so provides, or

(c) if the amendment is required to give effect to a decision of the Land and Environment Court relating to the validity of the plan, or

(d) if satisfied that it is necessary to do so because of requirements arising under the Water Act 2007 of the Commonwealth.

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Chapter 3 Water management implementation

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Part 2 Access licences

Division 1 Preliminary

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56 Access licences

(1) An access licence entitles its holder—

(a) to specified shares in the available water within a specified water management area or from a specified water source (the share component), and

(b) to take water—

(i) at specified times, at specified rates or in specified circumstances, or in any combination of these, and

(ii) in specified areas or from specified locations,

(the extraction component).

(2) Without limiting subsection (1) (a), the share component of an access licence may be expressed—

(a) as a specified maximum volume over a specified period, or

(b) as a specified proportion of the available water, or

(c) as a specified proportion of the storage capacity of a specified dam or other storage work and a specified proportion of the inflow to that dam or work, or

(d) as a specified number of units.

(3) Shares in available water may be assigned generally or to specified categories of access licence.

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(5) For the purposes of this Act, an access licence may also be referred to as a water access licence or a WAL.

(6) (Repealed)

57   Categories of licence

(1)  There are the following categories of access licences—

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(k1) floodplain harvesting (regulated river) access licences,

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(l) such other categories of access licence as may be prescribed by the regulations.

(2) Subcategories of any category of access licence may be prescribed by the regulations.

57A Special provisions relating to floodplain harvesting access licences

(1) The regulations may make provision for or with respect to the conversion of actual or proposed floodplain water usage by landholders into any of the following categories or subcategories of floodplain harvesting access licences (replacement floodplain harvesting access licences)—

(a) floodplain harvesting (regulated river) access licences,

...

(2) Without limiting subsection (1), the regulations may make provision for or with respect to the following—

(a) the circumstances in which actual or proposed floodplain water usage by landholders will give rise to replacement floodplain harvesting access licences,

(b) the terms and conditions of replacement floodplain harvesting access licences,

(c) the share components of replacement floodplain harvesting access licences (including the process for the determination of such share components),

(3) Regulations made for the purposes of this section have effect despite any provisions of this Act (including Schedule 10) that are specified by the regulations.

(4) A floodplain harvesting (regulated river) access licence, or other category or subcategory of floodplain harvesting access licence, that nominates a regulated river water source is taken to authorise the taking of water from the floodplain for the river and, accordingly, any water taken under that licence from that floodplain is to be treated as having been taken from the regulated river water source for the purposes of this Act or any management plan that applies to the river.

(5) In this section—

floodplain water usage by landholders means the taking or use of water by landholders (whether or not under an approval, licence or other authority) from land that is, or is to become, a floodplain.

58   Priorities between different categories of licence

(1)  For the purposes of this Act, the following priorities are to be observed in relation to access licences—

(a)  local water utility access licences, major utility access licences and domestic and stock access licences have priority over all other access licences,

(b)  regulated river (high security) access licences have priority over all other access licences (other than those referred to in paragraph (a)),

(c)  access licences (other than those referred to in paragraphs (a), (b) and (d)) have priority between themselves as prescribed by the regulations,

(d)  supplementary water access licences have priority below all other licences.

(2)  If one access licence (the higher priority licence) has priority over another access licence (the lower priority licence), then if the water allocations under them have to be diminished, the water allocations of the higher priority licence are to be diminished at a lesser rate than the water allocations of the lower priority licence.

(3)  In relation to the water management area or water source to which it applies, a management plan may provide for different rules of priority to those established by subsection (1).

(4)  If a management plan so provides for different rules of priority, those different rules are taken to have been established by this section.

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Division 2 Granting of access licences

61 Applications for granting of access licences

(1) A person may apply to the Minister for an access licence if—

(a) the application is for a specific purpose access licence in circumstances where—

(i) the regulations provide, or a relevant management plan provides, that an application for the licence may be made, and

(ii) the application does not contravene any restriction on the making of such an application contained in a relevant management plan, or

(b) the application is for an access licence with a zero share component (as referred to in section 63 (5)), or

(c) the person has acquired the right to apply for the licence under section 65.

(2) (Repealed)

(3) In the case of an application under subsection (1) for an access licence—

(a) for water in an area that is not within a water management area, or

(b) for water in a water management area for which there is no water sharing management plan in force,

the Minister must cause the application to be advertised in accordance with the regulations.

(4) (Repealed)

(5) The Minister—

(a) may require an applicant for an access licence to provide additional information within a specified time if of the opinion that additional information would be relevant to consideration of the application, and

(b) may delay consideration of the application until the information is provided or, if the information is not provided within the time specified, may refuse to consider the application.

(6) The Minister may refuse to accept an application for an access licence if it appears to the Minister that the application is incomplete.

(7) An applicant for an access licence may, by notice in writing to the Minister, amend or withdraw the application for the access licence at any time before the application is determined.

62 Objections to granting of access licences

(1) Any person may, in accordance with the regulations, object to the granting of an access licence—

(a) for water in an area that is not within a water management area, or

(b) for water in a water management area for which there is no water sharing management plan in force.

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63 Determination of applications

(1) The Minister may determine an application for an access licence by granting or refusing to grant the licence.

(1A) An access licence may be granted unconditionally or subject to such conditions as are required or permitted to be imposed under Division 3.

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(4) An access licence must specify—

(a) in relation to its share component, the water management area or water source to which it relates, and

(b) in relation to its extraction component, the times, rates or circumstances in which, and the areas or locations from which, water may be taken under the licence.

(5) An access licence may be issued with a zero share component or zero extraction component (or both) but, even if it is issued with a zero share component, must still specify the water management area or water source to which it relates.

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Division 3 Conditions, duration and amendment of access licences

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66 Conditions of access licence generally

(1) An access licence is subject to such conditions as the Minister may from time to time impose—

(a) which must include such conditions as are required to be imposed on the licence by this Act or by any relevant management plan, and

(b) which may include such other conditions, such as—

(i) conditions to give effect to any agreement between an applicant and objector under section 62 (5), and

(ii) conditions relating to the protection of the environment,

as the Minister thinks fit (discretionary conditions).

(1AA) An access licence is subject to any mandatory conditions imposed by this Act or the regulations.

(1A) Mandatory conditions (other than conditions imposed by the regulations) do not have effect in relation to an access licence unless they are included in the terms of the licence.

(2) A mandatory condition prevails over a discretionary condition to the extent of any inconsistency between them.

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(5)  In this section, mandatory condition means a condition referred to in subsection (1) (a) or (1AA) or imposed under section 8E.

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(7) An access licence is to be in such form as the Minister may determine.

67 Imposition of conditions after access licence is granted

(1) The Minister may impose discretionary conditions on an access licence after it has been granted, but only if the Minister—

(a) has given written notice to the holder of the access licence that the Minister proposes to impose such conditions, and

(b) has given the holder of the access licence a reasonable opportunity to make submissions to the Minister with respect to the proposed conditions, and

(c) has taken any such submissions into consideration.

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68 Revocation of conditions

The Minister may at any time revoke any discretionary conditions to which an access licence is subject, whether or not on the application of the holder of the access licence.

68A Amendment of share or extraction components of access licences and other actions by Minister

(1) The Minister may amend the share component or extraction component of an access licence in accordance with this Act or the relevant management plan.

(1A) The Minister may amend the share component or extraction component (or both) of an access licence so as to alter the water management area or water source to which the share component of the licence relates, or the locations from which water may be taken in accordance with the extraction component of the licence.

(1B) An amendment may only be made under subsection (1A) if—

(a) the amendment is for the purpose of enabling the holder of the licence to take water from a different water source to that authorised by the licence because erroneous location data has resulted in the holder taking water from that different source, and

(b) at the time at which the granting of the access licence was recorded in the Access Register, an access licence could have been granted to the holder authorising the taking of water from that different water source.

(1C) The Minister may amend the share component of a specific purpose access licence.

(1D) An amendment may only be made under subsection (1C) if that part of the share component that is the subject of the amendment is no longer necessary for the purpose for which the specific purpose access licence was granted.

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Part 5 Legal proceedings and appeals

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Division 2 Appeals

368 Appeals to Land and Environment Court

(1) An appeal lies to the Land and Environment Court against any of the following decisions made by the Minister—

(a) a decision refusing to grant an access licence,

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(c) a decision imposing a discretionary condition on an access licence,

(d) a decision fixing the term of an access licence,

(e) a decision refusing consent to a dealing in an access licence,

(f) a decision suspending or cancelling an access licence,

(fa) a decision—

(i) in relation to the recording of any matter in the Access Register, or

(ii) in relation to the issue of any access licence certificate,

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(k)  a decision refusing to amend an approval in accordance with an application made by its holder,

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Dictionary

access licence means an access licence referred to in section 56.

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approval means a water use approval, a water management work approval or an activity approval.

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landholder, in relation to land, means—

(a) the owner of the land or (if the owner is not in occupation of the land) the lawful occupier of the land, or

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specific purpose access licence means—

(a) a major utility access licence, or

(b) a local water utility access licence, or

(c) a domestic and stock access licence, or

(d) an access licence of a subcategory of access licence, or

(e) an access licence of a type that is declared by the regulations to be a specific purpose access licence.

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7. The Class 1 applications refer to an appeal pursuant to s 368(1)(k) of the WM Act. In the course of the proceedings subs (1)(a) and (c) were relied on instead.

8. For completeness under s 57A(1) a FH licence is a category of replacement floodplain harvesting access licence. Replacement floodplain harvesting access licences are the subject of Pt 2A of the Water Management (General) Regulation 2018 (NSW) (WM Regulation). Special provisions relating to replacement floodplain harvesting access licences can be made by regulations as provided in s 57A. Under subs (1) the regulations can make provision for the conversion of actual or proposed floodplain water usage by landholders into replacement floodplain harvesting access licences which includes the FH licences issued to the Applicants.

Water Management (General) Regulation 2018 (NSW)

9. The WM Regulation provides relevantly as follows:

Part 2A Replacement floodplain harvesting access licences—the Act, s 57A

Division 1 Preliminary

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23A Definitions

In this Part—

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eligible landholder means a landholder eligible for a replacement floodplain harvesting access licence under clause 23B.

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landholder means the owner of land located on a floodplain who uses or used, or proposed to use, water from the floodplain.

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23B Eligibility for replacement floodplain harvesting access licences

(1) The Minister must determine if a landholder is eligible for a replacement floodplain harvesting access licence.

(2) A landholder is eligible if the Minister is satisfied that, on 3 July 2008, a water supply work capable of floodplain harvesting—

(a) was fully constructed on the landholder’s land and a relevant approval was in force that specified—

(i) the work, or

(ii) a related or connected work, or

(b) was fully constructed on the landholder’s land without a relevant approval and an approval under the Water Act 1912, Part 8 was not required to construct the work, or

(c) was fully or partially constructed, or proposed to be constructed, on the landholder’s land and an application for a relevant approval that specified the work was made but not determined.

(3) In determining whether or not a landholder is eligible, the Minister must consider relevant information provided by the landholder in relation to the water supply work.

(4) The Minister may determine that a landholder is not eligible only if—

(a) the landholder is given, whether under this clause or otherwise, written notice and 28 days in which to make submissions about the proposed determination of eligibility, and

(b) the Minister has considered submissions received from the landholder within the 28 days.

(5) If the Minister determines that a landholder is eligible for a replacement floodplain harvesting access licence under this clause, the Minister must determine the share component of the licence in accordance with Division 2.

(6) In this clause—

related or connected work means a work related or connected to the water supply work specified in the relevant approval that is—

(a) constructed on the land specified in the approval, and

(b) located within the footprint of the work specified in the approval.

relevant approval means—

(a) an approval under the Act, Chapter 3, Part 3, or

(b) a licence or permit within the meaning of the Water Act 1912, Part 2, or Part 8 as in force immediately before the repeal of that Part.

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Division 2 Determination of share component

23C Licences based on existing regulated and unregulated river access licences

(1) This clause applies to an eligible landholder if, on 3 July 2008, one of the following licences was in force in relation to the land on which the landholder’s eligible water supply work is located—

(a) a regulated river access licence without an unregulated river access licence,

(b) a regulated river access licence with an unregulated river access licence,

(c) a Barwon-Darling unregulated river access licence.

(2) The Minister must determine the share component of a replacement floodplain harvesting access licence by using the 3 models referred to in Division 3 that apply to the regulated river water source or the Barwon-Darling water source, as the case requires.

(3) In determining the share component of a replacement floodplain harvesting access licence for a landholder eligible under subclause (1)(b), the Minister must deduct the share component of the unregulated river access licence from the proposed share component of the replacement floodplain harvesting access licence.

(4) Despite subclause (3), the Minister—

(a) is not required to deduct the share component of the unregulated river access licence if satisfied there were no water supply works used in connection with the unregulated river access licence, and

(b) may deduct a proportion of the share component of the unregulated river access licence that corresponds with the amount by which the volume of water taken under the unregulated river access licence is less than the maximum volume specified for the licence.

(5) In this clause—

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regulated river access licence means an access licence that entitles the holder to shares of water from a regulated river.

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23F Final determination of share components

The Minister may determine the share component for a replacement floodplain harvesting access licence for an eligible landholder only if—

(a) the landholder is given, whether under this clause or otherwise, written notice and 28 days in which to make submissions about the proposed share component, and

(b) the Minister has considered submissions received from the landholder within the 28 days.

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Division 3 Models for determination of share components

23G Models for determination of share components

(1) The Minister must adopt the following models for a water source for the purposes of determining the share component of a replacement floodplain harvesting access licence under clause 23C for the water source—

(a) the current conditions model,

(b) the eligible water supply works scenario model,

(c) the plan limit compliance scenario model.

(2) The Minister must publish the following information in relation to the models on the Department’s website—

(a) a description of the model,

(b) the objectives for the model,

(c) the matters the model represents,

(d) the data the model relies on.

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Division 4 Miscellaneous

23K Issue of replacement floodplain harvesting access licences

(1) A replacement floodplain harvesting access licence takes effect, and the eligible landholder is taken to hold the licence, only after the Minister gives written notice to the landholder of—

(a) the category of the replacement floodplain harvesting access licence, and

(b) the final share component of the licence determined in accordance with Division 2.

(2) The categories of replacement floodplain harvesting access licence are—

(a) for an eligible landholder if, on 3 July 2008, a regulated river access licence was in force in relation to the land on which the landholder’s eligible water supply work is located—a floodplain harvesting (regulated river) access licence, and

(b) otherwise—a floodplain harvesting (unregulated river) access licence.

(3) A water supply work is taken to have been nominated under the Act, section 71W in relation to an eligible landholder’s replacement floodplain harvesting access licence if the work—

(a) is capable of floodplain harvesting, and

(b) is located on the eligible landholder’s land, and

(c) is specified in a water supply work approval.

23L Circumstances in which replacement floodplain harvesting access licences are not issued

Despite another provision of this Part, a landholder is not eligible for a replacement floodplain harvesting access licence and does not hold a licence if—

(a) the final share component for the licence is determined to be zero or less,

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Water Sharing Plan for the Macquarie and Cudgegong Regulated Rivers Water Source 2016 (NSW)

10. Made pursuant to s 45(1) of the WM Act, cll 28 and 92 of the WSP 2016, as amended by the Water Sharing Plan for the Macquarie and Cudgegong Regulated Rivers Water Source Amendment Order 2022 (NSW), provide relevantly as follows:

Part 6 Limits to the availability of water

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Division 2 Long-term average annual extraction limit

28 Calculation of the long-term average annual extraction limit

(1) Following the end of each water year, the Minister must calculate the long-term average annual extraction limit for the water source in accordance with this clause and clause 27.

(2) The long-term average annual extraction limit is the lesser of the following:

(a) long-term average annual extraction calculated based on the following:

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(vii) the level of development for floodplain harvesting that existed in the 1999/2000 water year in connection with extractions from a regulated river in the water source, excluding the collection of rainfall run-off from an irrigated field by a tailwater drain, except where another work on the land, other than a tailwater drain, takes overland flow water, as assessed by the Minister,

(b) long-term average annual extraction calculated under Cap baseline conditions as agreed under the Murray-Darling Basin Agreement that was in place at the commencement of the Water Sharing Plan for the Macquarie and Cudgegong Regulated Rivers Water Source 2003,

(3) For the purposes of subclause (2) the long-term average annual extraction limit is to be calculated over the duration of available climate records using the plan limit hydrological computer model approved by the Minister.

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Part 11 Mandatory conditions

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Division 2 Access licences

92 Mandatory conditions on access licences

(1) Each access licence must have mandatory conditions to give effect to the following:

(a) upon becoming aware of a breach of any condition of the access licence, the licence holder must:

(i) notify the Minister as soon as practical, and

(ii) if the notification under paragraph (i) is not in writing, confirm the notification

in writing within seven days of becoming aware of the breach,

(b) any other condition required to implement the provisions of this Plan.

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Land and Environment Court Act 1979 (NSW)

11. Sections 16(1) and 17(c) of the Land and Environment Court Act 1979 (NSW) (LEC Act) provide relevantly as follows:

Part 3 Jurisdiction of the Court

Division 1 General

16 Jurisdiction of the Court generally

(1) The Court shall have the jurisdiction vested in it by or under this or any other Act.

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17   Class 1—environmental planning and protection appeals

The Court has jurisdiction (referred to in this Act as “Class 1” of its jurisdiction) to hear and dispose of the following—

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(c) appeals under section 368 of the Water Management Act 2000,

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Land and Environment Court Rules 2007 (NSW)

12. Rule 3.7 of the Land and Environment Court Rules 2007 (NSW) (LEC Rules) provides relevantly as follows:

Part 3 Proceedings in Class 1, 2 or 3 of the Court’s jurisdiction

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3.7 Costs in certain proceedings

(1) This rule applies to the following proceedings:

(a) all proceedings in Class 1 of the Court’s jurisdiction,

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(2) The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances.

(3) Circumstances in which the Court might consider the making of a costs order to be fair and reasonable include (without limitation) the following:

(a) that the proceedings involve, as a central issue, a question of law, a question of fact or a question of mixed fact and law, and the determination of such question:

(i) in one way was, or was potentially, determinative of the proceedings, and

(ii) was preliminary to, or otherwise has not involved, an evaluation of the merits of any application the subject of the proceedings,

…

(d) that a party has acted unreasonably in the conduct of the proceedings,

…

(f) that a party has commenced or continued a claim in the proceedings, or maintained a defence to the proceedings, where:

(i) the claim or defence (as appropriate) did not have reasonable prospects of success, or

(ii) to commence or continue the claim, or to maintain the defence, was otherwise unreasonable.

…

Uniform Civil Procedure Rules 2005 (NSW)

13. Rule 13.4 of the UCPR provides relevantly as follows:

Part 13 Summary disposal

…

13.4 Frivolous and vexatious proceedings

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(a) the proceedings are frivolous or vexatious, or

(b) no reasonable cause of action is disclosed, or

…

the court may order that the proceedings be dismissed generally or in relation to that claim.

…

Evidence

Minister’s evidence

Flintrock

14. The Minister read the following affidavits in support of the notice of motion in Flintrock (proceeding no. 2023/57189-002).

15. Affidavit of Ms Yeatman solicitor affirmed 6 April 2023 (Yeatman #1), principally setting out the correspondence between the Minister and Mr A and Mrs A Ramsay following the Minister’s Determination of the FH licence application for Flintrock.

16. Affidavit of Ms Yeatman affirmed 24 April 2023 (Yeatman #4), principally setting out the correspondence between the Minister and Mr A and Mrs A Ramsay leading up to the Minister’s Determination of the FH licence application for Flintrock, and the independent reviews of the implementation of the NSW Floodplain Harvesting Policy conducted by Allevium, Barma Water Resources Consulting Pty Ltd and Fifteen 50 (Reports).

Banchory

17. The Minister read the following affidavits in support of the notice of motion in Banchory (proceeding no. 2023/58427-002).

18. Affidavit of Ms Yeatman affirmed 6 April 2023 (Yeatman #2), principally setting out the correspondence between the Minister and Mr D Ramsay following the Minister’s Determination of the FH licence application for Banchory.

19. Affidavit of Ms Yeatman affirmed 21 April 2023 (Yeatman #3), principally setting out the correspondence between the Minister and Mr D Ramsay leading up to the Minister’s Determination of the FH licence application for Banchory, and the independent review Reports of the implementation of the NSW Floodplain Harvesting Policy.

Applicants’ evidence

20. The Applicants read an affidavit of Mr Archer solicitor affirmed 27 April 2023 in each of the proceedings.

Flintrock

21. The Applicants tendered the following exhibits regarding Flintrock (proceeding no. 2023/57189-002).

1. Exhibit “NJA-1” to the affidavit of Mr Archer affirmed 27 April 2023 (Ex 1);

2. Class 1 Application for proceeding no. 2023/57189 filed 20 February 2023 (Ex 2); and

3. Statement of Facts and Contentions for proceeding no. 2023/57189 filed 15 March 2023 (Ex 3).

Banchory

22. The Applicants tendered the following exhibits regarding Banchory (proceeding no. 2023/58427-002).

1. Exhibit “NJA-1” to the affidavit of Mr Archer affirmed 27 April 2023 (Ex 1);

2. Class 1 Application for proceeding no. 2023/58427 filed 21 February 2023 (Ex 2); and

3. Statement of Facts and Contentions for proceeding no. 2023/58427 filed 20 March 2023 (Ex 3).

23. There is substantial overlap in the factual background of both matters.

Correspondence for floodplain harvesting access licences approvals

Flintrock

24. The Minister and the Applicants engaged in the following correspondence giving rise to the FH licence for Flintrock (proceeding no. 2023/57189-002).

25. On 27 May 2014 Western Land Planning submitted a registration of interest on behalf of Mr A and Mrs A Ramsay.

26. On 3 March 2015 the NSW Office of Water wrote to Mr A Ramsay confirming his eligibility for a floodplain harvesting access licence following the Office of Water’s inspection of Flintrock on 11 February 2015.

27. On 1 September 2020 the Department of Planning, Industry and Environment (the Department) sent email correspondence enclosing letters from the Natural Resources Access Regulator (NRAR) and the Department to Mr A and Mrs A Ramsay to provide information on the eligible floodplain harvesting works on Flintrock. The email invited him to a one on one telephone session to assist with understanding the information following which he could make a submission if he believed the information in the letter did not reflect the eligible works within 28 days.

28. On 8 September 2020 NRAR emailed Mr A Ramsay summarising the items discussed in the one on one telephone session and providing him an opportunity to make a submission within 28 days.

29. On 24 September 2020 Mr A and Mrs A Ramsay sent email correspondence to the Minister providing supporting information to be included in the flood modelling for Flintrock.

30. On 3 March 2021 the Healthy Floodplains Review Committee (Committee) sent a letter to Mr A and Mrs A Ramsay responding to their submission and setting out the recommendations the Committee made to the Department regarding eligible works and the floodplain harvesting modelling.

31. On 24 August 2021 Mr A and Mrs A Ramsay sent a letter to the Minister setting out their submissions.

32. On 17 June 2022 the Department sent a letter to Mr A and Mrs A Ramsay setting out the draft determination of the floodplain harvesting licensed entitlements for Flintrock of 2,883 unit shares (draft entitlements). Mr A and Mrs A Ramsay were given the opportunity to make submissions in response to the draft entitlements by 15 July 2022.

33. On 11 July 2022 Mr A and Mrs A Ramsay's solicitor sent a letter to the Minister with submissions in response to the draft entitlements issued on 17 June 2022.

34. On 8 September 2022 the Department sent a letter to Mr A and Mrs A Ramsay advising them of the revised draft entitlement of 2,522 unit shares following their submissions. Mr A and Mrs A Ramsay were given the opportunity to make submissions in response to the updated draft entitlements by 6 October 2022.

35. On 10 September 2022 Mr A and Mrs A Ramsay sent email correspondence to the Minister seeking clarification in relation to the updated draft entitlement issued by the Department on 8 September 2022.

36. On 20 September 2022 Mr A and Mrs A Ramsay's solicitor sent a letter to the NSW Office of Water in response to the Department’s letters dated 17 June, 8 September and 20 September 2022 inter alia, requesting an extension of time to make submissions and that the modelling data and analysis be provided to enable the making of submissions.

37. On 4 October 2022 Mr A and Mrs A Ramsay by letter from their solicitor to the Department sought a water allocation of 8,000 unit shares for Flintrock (referred to by the parties as the application).

24. On 6 October 2022 the Department sent a letter to Mr A and Mrs A Ramsay’s solicitor in response to his letter of 20 September 2022 and granting an extension to 31 October 2022 to make a submission.

25. On 19 December the NSW Office of Water sent a letter to Mr A and Mrs A Ramsay advising that it planned to issue a FH licence after final entitlements were determined by the Minister.

26. On 21 December 2022 the Department sent a letter to Mr A and Mrs A Ramsay's solicitor responding to their submissions dated 4 October 2022.

27. On 10 February 2023 the Department sent a letter advising that the Minister had considered the draft entitlement submissions received between 17 June and 6 October 2022 and it had been determined that the FH licence application for Flintrock would receive a share component of 2,522 unit shares, extracted below in [65].

28. On 17 February 2023 a statement of conditions for the FH licence was issued, extracted below in [66].

Banchory

43. The Minister and the Applicants engaged in the following correspondence giving rise to the FH licence for Banchory (proceeding no. 2023/58427-002).

44. On 27 May 2014 Western Land Planning submitted a registration of interest for a FH licence on behalf of Mr D Ramsay.

45. On 3 March 2015 the NSW Office of Water wrote to Mr D Ramsay confirming his eligibility for a FH licence following the Office of Water’s inspection of Banchory on 11 February 2015.

46. On 26 August 2020 the Department sent email correspondence enclosing letters from NRAR and the Department to Mr D Ramsay providing information on the eligible floodplain harvesting works on Banchory (draft eligible works). The email invited him to a one on one telephone session to assist with understanding the information following which he could make a submission if he believed the information in the letter did not reflect the eligible works on Banchory.

47. On 1 September 2020 the Department sent a letter to Mr D Ramsay outlining the floodplain harvesting model results for the draft eligible works on Banchory and inviting a submission in response to the results.

48. On 7 September 2020 the Minister corresponded with Mr D Ramsay via various emails in relation to the Department’s letter dated 1 September 2020 and the draft eligible works.

49. On 9 September 2020 NRAR emailed Mr D Ramsay summarising the concerns he had raised in a one on one telephone session and requesting that he make a submission within 28 days.

50. On 3 March 2021 the Minister sent a letter to Mr D Ramsay with the Department’s determination of the eligible works in respect of which a FH licence may be granted for Banchory.

51. On 3 May 2021 the Minister sent a letter to Mr D Ramsay responding to his submission and setting out the recommendations made.

52. On 17 June 2022 the Department sent a letter to Mr D Ramsay setting out the draft floodplain harvesting licence entitlements for Banchory of 4,041 unit shares (draft entitlements). Mr D Ramsay was given the opportunity to make a submission in response to the draft entitlements by 15 July 2022.

53. On 20 June 2022, 21 June 2022 and 15 July 2022, Mr D Ramsay provided various submissions in response to the Department's letter dated 17 June 2022.

54. On 8 September 2022 the Department sent a letter to Mr D Ramsay advising him of the revised draft entitlements for Banchory of 3,926 unit shares. Mr D Ramsay was given the opportunity to make a submission in response to the updated draft entitlements by 6 October 2022.

55. On 26 September 2022 Mr D Ramsay's solicitor sent a letter to the NSW Office of Water requesting an extension of time to make submissions and asking that the modelling data and analysis be provided to enable the making of a submission.

56. On 6 October 2022 Mr D Ramsay by letter from his solicitor to the Department sought a water allocation of 8,000 unit shares for Banchory (referred to by the parties as the application).

57. On 6 October 2022 the Department sent a letter to Mr D Ramsay's solicitor in response to his letter of 26 September 2022 granting an extension to 31 October 2022 to make a submission.

58. On 31 October 2022 and 21 December 2022 Mr D Ramsay's solicitor sent letters to the NSW Office of Water in response to the revised draft entitlement for Banchory.

59. On 1 December 2022 the Department sent a letter to Mr D Ramsay advising that it planned to issue a FH licence after final entitlements were determined by the Minister.

60. On 21 December 2022 the Department sent a letter to Mr D Ramsay's solicitor responding to his letters dated 6 and 31 October 2022.

61. On 10 February 2023 the Department sent a letter to Mr D Ramsay advising that the Minister had considered the draft entitlement submissions received between 17 June and 6 October 2022 and it had been determined that the FH licence application for Banchory would receive a share component of 3,926 unit shares, extracted below in [65].

62. On 17 February 2023 a statement of conditions for the FH licence was issued, extracted below in [66]

Determinations under Water Management Act of 10 February 2023

63. In both matters letters dated 10 February 2023 were sent from the Department headed ‘Notification of determination for a floodplain harvesting access licence’, Annexure “A” to Yeatman #1 and #2 extracted below. The letters are largely similar for both proceedings (except where otherwise indicated):

Notification of determination for a floodplain harvesting access licence

…

This letter is to notify you of the following determination for a floodplain harvesting access licence. This determination has been made in accordance with Part 2A of the Water Management (General) Regulation 2018.

This process is explained in section 2.1 of the Guideline for the implementation of the NSW Floodplain Harvesting Policy, available at

Draft entitlement submissions received between 7th June and 6th October 2022 have been considered by the Minister for Water.

It has been determined that you will receive a floodplain harvesting (regulated river) access licence with a share component of [2,522 (Flintrock)] [3,926 (Banchory)] unit shares.

When operational, this licence will entitle you to take water from the Macquarie and Cudgegong Regulated Rivers Water Source.

Next steps

You will receive a licence certificate from NSW Land Registry Services (LRS). In addition, a copy of the licence conditions statement (including mandatory measurement conditions) will be sent to you.

On 29 July 2022, the relevant rules for the licence commenced in the Water Sharing Plan for the Macquarie and Cudgegong Regulated Rivers Water Source 2016. It is anticipated that in March 2023, an allocation of 0.33 ML per unit share will be credited to your account via an available water determination. This allocation reflects that 8 months of the water year will have passed by 1 March and so an allocation of 1ML/unit share for the remaining 4 months is not appropriate. Water cannot be taken under the licence until this occurs.

Once your licence is issued, Water NSW will be responsible for the management of your licence in accordance with the applicable rules specified in the relevant water sharing plan. From that time enquiries regarding your floodplain harvesting (regulated) access licence, and associated water supply work approvals, should be directed to Water NSW. The department will work closely with Water NSW to ensure they have access to any relevant documentation that is associated with your licence and approvals.

Thank you for participating in the Healthy Floodplains Project and we wish you every success for the future.

…

64. The ‘Statement of Conditions’ dated 17 February 2023 extracted below is largely similar (except where otherwise indicated):

[Page 1]

Statement of Conditions

As at Friday, 17 February 2023

Issued under Water Management Act 2000

…

Contact for service of documents

…

All holders

…

Licence details

Water source      MACQUARIE AND CUDGEGONG REGULATED RIVERS WATER SOURCE

Water sharing plan    MACQUARIE AND CUDGEGONG REGULATED RIVERS WATER SOURCE 2016

Management zone   [GUM COWAL MANAGEMENT ZONE (Flintrock)] [LOWER MACQUARIE RIVER UPSTREAM MANAGEMENT ZONE (Banchory)]

Category       FLOODPLAIN HARVESTING (REGULATED RIVER)

Share component   [2,522 units (Flintrock)] [3,926 units (Banchory)]

Nominated work(s)   [80WA726708 (Flintrock)] [80WA726688 (Banchory)]

Tenure type      Continuing

[Page 2]

Conditions

The water access licence with Reference No [80AL726766 (Flintrock)] [80AL726768 (Banchory)] is subject to the following conditions:

Plan Conditions

Water sharing plan   Macquarie and Cudgegong Regulated Rivers Water Source 2016

Take of water

MW8022-00001   Water must not be taken under this access licence when the Minister has made an announcement which applies to this access licence that water must not be taken.

MW8020-00001   

A.   Water must only be taken under this access licence from uncontrolled flows if:

i.   the Minister has published an order on the Department's website authorising the holders of floodplain harvesting {regulated river) access licences to take water from uncontrolled flows that have not been credited to the water allocation accounts of the licences,

ii. the water from the uncontrolled flows is captured by means of a tailwater drain, and

iii. no other work, other than a tailwater drain, is taking overland flow water at the time. the tailwater drain is capturing uncontrolled flows.

B. This condition does not apply if an exemption from section 60A(l) and (2) of the Act is in force in relation to the taking of water from a tailwater drain for the purpose of collecting rainfall run-off from an irrigated field.

MW8021-00001   Water must only be taken under this access licence from overland flow if the Minister has announced that the taking of overland flow water is permitted.

MW8018-00003   Water must only be taken under this access licence from:

A. overland flow within the Macquarie Valley Floodplain, as declared under clause 252 of the Water Management (General) Regulation 2018, or

B.   uncontrolled flows.

Reporting

MW6983-00003   

A.   Once the water access licence holder becomes aware of a breach of any condition on this water access licence, the water access licence holder must notify the Minister as soon as practicable.

B.   If the initial notification was not in writing, written notice must be provided within seven days of becoming aware of the breach by emailing:

Other conditions

No other conditions applicable

[Page 3]

General Notes

All conditions on a water access licence require compliance. An appeal to the Land and Environment Court against a decision to impose certain conditions on an approval can be made within 28 days after the date the decision is made. Conditions identified with the first letter “D” are those than can be appealed during the appeal period.

Certain dealings and other matters relating to this water access licence or a holding in this water access licence must be registered in the Access Register in accordance with section 71A of the Water Management Act 2000.

Minister’s submissions

65. The Minister seeks orders for the dismissal of both Class 1 proceedings pursuant to r 13.4(1)(b) of the UCPR as no reasonable cause of action is disclosed or, alternatively, pursuant to subs (1)(a) the dismissal of proceedings for want of the Court’s jurisdiction. The principles applicable to summary dismissal were summarised in Cosmos E-C Commerce Pty Ltd v Bidwell & Associates Pty Ltd [2005] NSWCA 81 (Cosmos) at [37]-[38]. The principles were referred to in NA & J Investments Pty Ltd v Minister Administering the Water Management Act 2000; Arnold v Minister Administering the Water Management Act 2000 (2011) 181 LGERA 166; [2011] NSWLEC 51 at [14]-[18] (NA & J Investments) and Scevola v Minister Administering National Parks and Wildlife [2017] NSWLEC 106 (Scevola) at [69]-[70].

66. Rule 13.4(1)(b) of the UCPR or alternatively subs (1)(a) confer power on the Court to order summary dismissal, if there is no possibility of the facts pleaded giving rise to a cause of action, citing Clark v Robards [2010] NSWSC 522 (Harrison J) at [27], observing that there is a close analogy with the ‘triable issue’ concept in the sense discussed in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 (General Steel). In General Steel at 129 Barwick CJ stated:

The test to be applied has been variously expressed; “so obviously untenable that it cannot possibly succeed”; “manifestly groundless”; “so manifestly faulty that it does not admit of argument”; “discloses a case which the Court is satisfied cannot succeed”; “under no possibility can there be a good cause of action”; “be manifest that to allow them” (the pleadings) “to stand would involve useless expense”.

67. The proceedings do not disclose a reasonable cause of action and/or are manifestly untenable/groundless, citing Goode v Gwydir Shire Council [2019] NSWLEC 70 at [24] and Dolton v Eurobodalla Shire Council [2020] NSWLEC 141 at [54], as s 368 of the WM Act does not apply in these circumstances.

No refusal of FH licences

68. The Minister’s power to determine an application for an access licence arises under s 63 of the WM Act. ‘Share component’ is specified in ss 56(1), (2), (3). An access licence is subject to mandatory conditions specified under the WM Act or a relevant water management plan (s 61(1)(a)) and any other conditions imposed by the Minister in the exercise of his or her discretion pursuant to s 66(1)(b). Purporting to rely on s 368(1)(a), the Applicants’ characterisation of the Determinations as refusals of access licence applications is wrong. No decision to refuse to grant an access licence has been made and s 368(1)(a) is not applicable in these circumstances. Clause 23L of the WM Regulation provides a landholder is not eligible for and does not hold a FH licence if the final share component is determined to be zero. The Minister has granted a FH licence in both the Flintrock determination and the Banchory determination. The share components are the entitlements to water conferred by the licences.

Construction of s 368(1) of the Water Management Act

69. Section 368(1) must be considered in the context of the WM Act as a whole. Whilst a dictionary definition may be of assistance in confirming the ordinary and grammatical meaning of a word, consideration of context is the first step in construction. Section 368(1)(a) of the WM Act uses the indefinite article ‘an’ not ‘the’. The Minister’s construction of this section is not narrow as the Applicants submit below in [99].

70. The Applicants’ construction of s 368(1) seeks to impermissibly read words into the legislation and change the meaning of the provision. Norman v Central Coast Council [2022] NSWLEC 120 (Norman) at [44] citing Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 (Taylor) at [37]-[38] identifies that it is permissible to add words when interpreting legislation as opposed to correcting legislation in limited circumstances. Too great a correction would violate the separation of powers in the Australian Constitution, citing Taylor at [40].

71. The effect of the Applicants’ construction of s 368(1) is to ignore a fundamental concept of share components. Firstly, ‘share component’ is defined under s 56(1)(a) as ‘specified shares in the available water within a specified water management area or from a specified water source’ to which a holder of an access licence is entitled. Secondly, s 63(4)(a) provides that an access licence must specify its share component. Thirdly, ss 68A(1A), (1B) provides for the amendment of share components by the Minister. Under the Applicants’ construction of s 368(1), all of these sections would be rendered otiose. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (Project Blue Sky) at [69] stands for the proposition that all provisions of a statute must be given meaning. The Applicants’ construction of s 368(1) is also entirely inconsistent with s 68, as the result would be that the Minister would be conferred with the power to revoke share components at will.

Unit shares not a discretionary condition

72. A share component of a licence is not a condition of the licence. The power to determine a share component under cl 23K of the WM Regulations is separate from the power to impose conditions on a licence under s 66 of the WM Act. The Minister submitted in reply to the Applicants’ submissions relying on s 368(1)(c) that no discretionary conditions were imposed on the two FH licences. No conditions were imposed under ‘other conditions’ in the ‘Statement of Conditions’ extracted above in [66].

73. Access licences are subject to mandatory conditions under s 66(1)(a) of the WM Act and may also be subject to discretionary conditions imposed in the exercise of the Minister’s discretion pursuant to s 66(1)(b). Section 56 provides that an access licence entitles the holder to take water in accordance with the share component specified and may include other conditions to give the licence effect. A mandatory condition prevails over a discretionary condition where an inconsistency arises. Section 67 provides that a discretionary condition may be imposed after the granting of an access licence, provided that an opportunity has been provided by the Minister to an applicant to make a written submission. The licence may be revoked under s 68 irrespective of any application made. Section 68A deals with the amendment of share components. The definition of ‘specific purpose access licence’ does not include a FH licence.

74. The Statement of Conditions extracted above in [66] contains details such as the name of the holder and licence details, including the unit share component, on page 1. Under no view could details of the holder be considered as conditions. This is to be contrasted with the heading on page 2 titled ‘Conditions’, which is subservient to the larger heading of ‘Statement of Conditions’ which titles the document, rendering the Applicants’ submission that the unit shares of the licences should be regarded as discretionary conditions contextually incorrect.

75. Clause 92(1) of the WSP 2016 sets out the mandatory conditions for an access licence, extracted above in [12].

No universal right of merits appeal

76. The Applicants submit below in [100] that the Minister’s construction of s 368(1) would impermissibly result in a lack of a merits appeal right. It is incorrect to assume a universal right of merits review of decisions made under the WM Act should be provided and there is no public policy to that effect.

77. The purpose of s 368(1) is to confer rights of merits appeal regarding select decisions. Section 368(1)(c) provides rights of appeal regarding a component of the licence, such as a condition. Subsection (1)(d) provides a right of appeal regarding fixing a term. There are specific and express inclusions as to what decisions are conferred with a right of appeal under s 368(1) which do not include the share component.

78. The Applicants’ submission below in [104] regarding s 368(1)(c) is incorrect as the power to impose a share component falls under WM Regulation Pt 2A cl 23K, not s 66 of the WM Act which provides power to impose discretionary conditions.

79. No other provision in s 368(1) confers a right of merits appeal against the Minister’s determination of the share component that attaches to a licence and it follows that the Court does not have jurisdiction to hear either of the proceedings.

80. The Minister highlighted in passing the extensive consultation between the Minister and the Applicants evident in the correspondence summarised above in [26]-[64]. The Minister submits that judicial review proceedings are available to the Applicants.

81. In reply to the Applicant’s submission below in [107], the Minister’s construction of s 368(1)(a) is consistent with the objects of the WM Act as the determination of entitlements accounts for the impacts on other landholders and environmental impacts.

Court lacks jurisdiction

82. Section 17(c) of the LEC Act vests the Court with jurisdiction to ‘hear and dispose of’ appeals under s 368 of the WM Act. No such appeal exists and therefore the Court has no jurisdiction and the Class 1 applications should be dismissed.

Costs

83. The Minister seeks an order for costs if successful. Under rr 3.7(2) and (1)(c) of the LEC Rules power is conferred on the Court to make an order for costs when hearing proceedings in its Class 1 jurisdiction if it considers that it is fair and reasonable to do so.

84. The Minister submits that it is just and reasonable for the Court to make an order for costs as firstly, the proceedings involve a threshold question as to the Court’s jurisdiction. The resolution of that issue is not dependent on an assessment of the merits of the two Class 1 applications filed with the Court. Secondly, having regard to the Court’s lack of jurisdiction to hear the proceedings, the Applicants did not have reasonable prospects of success.

85. Thirdly, the Applicants acted unreasonably in maintaining such proceedings. The Minister submits that they promptly notified the Applicants of the jurisdictional issues and provided a detailed explanation for the lack of jurisdiction. The Applicants have not identified any basis for the Court having jurisdiction to hear the proceedings. Had the Applicants taken up the invitation to discontinue the proceedings made to them in the letter dated 16 March 2023 the Minister would have been spared the expense of filing the two notices of motion.

Applicants’ submissions

86. In any merits hearing in Class 1 proceedings the Applicants will contend that the hydrological computer model used by the Minister has not properly calculated the long term average extraction limit as the long term average diversion of rainfall runoff harvesting and overflow harvesting for the water storage as in use at Flintrock is over 9,000ml per annum, and for Banchory over 7,500ml per annum. Clause 28(3) of the WSP 2016 requires the long term average extraction limit to be calculated over the duration of available climate records using the plan limit hydrological computer model approved by the Minister. This has not been done with respect to either Flintrock or Banchory. When the model is properly applied to those records, the long term average diversion of rainfall runoff harvesting and overbank flow harvesting is at the levels contended for by the Applicants.

87. The Applicants submit that the Minister’s determinations of the FH licences granted for Flintrock and Banchory with materially different share components than those applied for on 4 October 2022 (Flintrock) and 6 October 2022 (Banchory) are in substance refusals of the FH licences sought. The Applicants seek a merits appeal of these determinations under s 368(1)(a) of the WM Act which provides the right of a merits appeal against a refusal to grant an access licence.

88. Alternatively, if the FH licence applications are construed as being granted, the Applicants submit that the Court is granted jurisdiction to entertain an appeal of the FH licences the subject of the Class 1 proceedings under s 368(1)(c), as the unit shares are a discretionary condition.

Applications for FH licences refused (s 368(1)(a))

89. The Applicants submit that the FH licences sought were not granted as a matter of fact. In Yeatman #1 and #2 the letter dated 10 February 2023 and ‘Statement of Conditions’ dated 17 February 2023 advise of unit shares being granted. The unit shares granted are not the unit shares applied for, as outlined in the two letters from Mr A and Mrs A Ramsay’s solicitor and Mr D Ramsay’s solicitor to the Department dated 4 October 2022 and 6 October 2022 respectively.

90. The FH licences granted are ‘another’ licence in the sense that another set of unit shares have been granted, being 2,522 unit shares for Flintrock and 3,926 unit shares for Banchory, rather than the 8,000 unit shares sought in each of the applications.

91. Section 368(1)(a) refers to an appeal against a decision refusing to grant an access licence and must be taken to use the terms ‘refuse’ and ‘grant’ consistently with their meaning in s 63, which confers the power of grant or refusal of applications on the Minister. There is no power to grant an access licence other than that which was the subject of the application. The legislative scheme attaches significance to the substance of an access licence application and confers a power on the Minister to make a determination either by way of grant of what is applied for unconditionally or with conditions under s 63(1A), or by way of a refusal under s 63(1). Section 61 contemplates a licence application can only be amended by an applicant. I note that ss 61 and 63 do not apply directly to the access licences sought by the Applicants, which were made pursuant to Pt 2A of the WM Regulation.

92. Section 56(1)(a) provides that an access licence entitles its holder to specified shares. The word ‘component’ used in the WM Act establishes that a share is a constituent of an access licence, a matter of substance, not form. Either the share component is an intrinsic or essential part of the access licence separate from the conditions, or alternatively it is a condition imposed on the access licence. The former construction reflects the reference to shares in the legislation as a ‘component’ or part of the access licence, separate to the matter of conditions.

93. Sections 368(1)(a) and (1)(c) also draw the distinction between ‘an access licence’ in its grant and the imposition of a ‘condition on an access licence’. If the share component is part of the licence itself as distinct from a condition imposed on it, then the appeal arises pursuant to s 368(1)(a). To interpret s 368(1)(a) as leaving a gap in the appellate jurisdiction of the Court such that a merits appeal against an absolute refusal is allowable but not against a refusal of the access licence applied for accompanied by the grant of a materially different licence with a lesser share component would give effect to no identifiable legislative purpose. Such an interpretation would run contrary to the purpose of s 368(1)(a) in conferring rights of review on an applicant affected by the determination of the licence application pursuant to the purposive principles of construction applied in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Review (NT) (2009) 239 CLR 27; [2009] HCA 41 (Alcan) at 46-47 extracted below in [116].

94. The Determinations of 10 February 2023 are properly characterised as refusals to grant an access licence within the meaning of s 368(1)(a), as the Determinations did not grant and refused to grant the access licence sought in the applications of 4 October 2022 and 6 October 2022.

Construction of s 368(1) of the Water Management Act

95. The Applicants submit that the ordinary meaning of ‘an’ should be applied when construing the phrase ‘an access licence’ in s 368(1) of the WM Act. The dictionary definition of ‘an’ is (1) ‘any at all’, as interpreted by the Minister so that the reference to the granting of an access licence would be taken to mean any licence at all, or (2) ‘some’, being an ‘indefinite singular of one of a class’. The Applicants rely on the second meaning.

96. A decision refusing to grant an access licence is not wiped away by the fact that that same decision grants another (any other) access licence.

97. The Applicants submit that the Minister seeks to read in a qualification in their construction of s 368(1) excluding decisions where an access licence ‘of any kind’ has been granted, to the effect that whatever determination is made by the Minister is deemed sufficient with no appeal permitted.

98. The construction contended for by the Minister would have unreasonable, even oppressive consequences as there would be no merits appeal right against a determination to grant a zero or materially lower share component than that actually sought. This would result in the Minister’s ability to nullify merits appeal rights against the decision to refuse to grant an access licence for the share component sought and reduce such rights to an administrative choice.

99. Contrary to the Minister’s submission above in [70] s 63(5) allows an access licence to be granted with zero shares. Instead of refusing to grant an access licence the Minister could grant it with a zero or nominal share component. On the Minister’s construction there would be no merits appeal right pursuant to s 368(1)(a) despite the fact that the substance of such a decision would amount to a refusal. The NSW Parliament cannot have intended to confer such insubstantial merits appeal rights open to avoidance by the decision maker as the first and principal avenue of appeal in s 368(1).

100. If one construction will do manifest injustice and the other will avoid unreasonable consequences, the latter construction should be adopted in accordance with the principle set out in Statutory Interpretation in Australia (8th ed, 2014, LexisNexis) at [2.39] citing Gibbs J in Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336; [1975] HCA 28 (Public Transport Commission) at 350:

Where two meanings are open… it is proper to adopt that meaning that will avoid consequences that appear irrational and unjust.

Unit shares a discretionary condition (s 368(1)(c))   

101. Alternatively, if the share component is not intrinsic to the access licence then it is necessarily a discretionary condition imposed upon it, not being a mandatory condition, in which case a merits appeal right is conferred by s 368(1)(c).

102. Section 66 provides that the terms of an access licence must include mandatory conditions (subs(1)(a)) and any discretionary conditions the Minister thinks fit (subs(1)(b)). The term of an access licence that stipulates the unit share is a discretionary condition, as evidenced by its inclusion in the Statement of Conditions issued by the Minister, extracted above in [66]. Although two examples of discretionary conditions are given in s 66(1)(b)(i) and (ii) namely ‘conditions to give effect to any agreement between an Applicant and objector under section 62(5)’ and ‘conditions relating to the protection of the environment’, s 66(1)(b) does not suggest that this is an exhaustive description of the discretionary conditions that may be imposed.

103. To the extent that a particular share component is construed as a condition rather than as a part of the access licence, it is not a mandatory condition which must be imposed by the relevant management plan, it is a discretionary condition.

104. Once the condition has been placed on an access licence that has been granted it provides the applicant to the licence the entitlement under the condition, for which Parliament has conferred a merits appeal right.

Right of merits appeal

105. Although the Minister has submitted that where there is no merits review, judicial review is available, the Applicants submit that Parliament has granted merits appeal rights under s 368 in these circumstances. The Minister’s construction of s 368(1)(a) amounts to a construction contrary to the objects of the WM Act pursuant to s 3(h) that ‘encourages best practice in the management and use of water’ as it would eliminate accountability in relation to ministerial decisions to allocate a lower share component to an access licence than that applied for. Judicial review does not allow a citizen to interrogate the merits of a decision. The Minister’s approach is contrary to public policy and deprives the Applicants of a merits appeal in a significant matter.

106. Section 61(1)(c) contemplates that a licence application will be for a licence with a particular share component. An application that is incomplete may not be accepted under s 61(6). Importantly, only the applicant for an access licence may amend the application in accordance with a procedure specified in the statute, being by way of notice in writing to the Minister and only prior to determination, under s 61(7).

107. In addition, as s 368(1) concerns the jurisdiction or powers of a court (namely, the Land and Environment Court) it is to be construed as liberally as its terms and context permit citing Owners of Ship Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404 (Shin Kobe Maru) at 421:

It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.

108. The principle applies here where the appeal provision in s 368(1)(a) is sought to be construed in a more limited way narrowly and non-purposively by the Respondent. Instead, the words ‘refuse to grant’ should be understood as including a refusal to grant the licence applied for, a construction that the plain words used clearly allows and extends to.

Costs

109. The Applicants submit that if they are unsuccessful and a construction of s 368 is adopted which is contrary to their submissions as regards both s 368(1)(a) and (c), there should be no order as to costs as the issue of jurisdiction is reasonably arguable and not the subject of any prior decision of the Court in relation to the points raised in this case. Applying the non-discouragement principle that governs the exercise of costs discretion in relation to merits appeals suggests it would be unreasonable and contrary to principle to order costs against the Applicants if the jurisdictional point goes against them.

110. If the Applicants are successful, it is appropriate that they be compensated for their costs incurred in ensuring the Court arrives at the correct construction. An applicant is entitled to expect the Minister to understand its governing legislation and not to incur unnecessary costs seeking to avoid legitimate appeals. The citizen should not be required to pay for that exercise or be out of pocket for it.

Consideration

111. By s 16(1) of the LEC Act the Court has jurisdiction vested in it by or under that Act or any other Act. Section 17(c) of the LEC Act provides that the Court has jurisdiction to hear and dispose of appeals under s 368 of the WM Act. At issue is whether the Applicants have commenced appeals to which s 368(1)(a) and (c) apply.

112. The principles applicable to applications for summary dismissal based on absence of jurisdiction were summarised in Cosmos at [37]-[38]. The principles were referred to in Scevola at [69]-[70] and NA & J Investments at 175-176 extracted below:

The principles to be applied when determining the Minister's application are not in dispute. The power to strike out a pleading on the basis that it discloses no reasonable cause of action is a power to be exercised sparingly and only where the absence of a reasonable cause of action is "plain and obvious" (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129).

The strictures attending an application summarily to dismiss proceedings have recently been reiterated by the High Court in Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 269 ALR 233. Although the court was there concerned with the provisions of s 31A of the Federal Court of Australia Act 1976 (Cth), authorising summary dismissal of proceedings where the court is satisfied that a party "has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding", the caution necessary to be exercised before striking out a pleading was emphasised in the joint judgment of French CJ and Gummow J where their Honours said (at [24]):

The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process.

…

When the jurisdiction of the Court to entertain a particular cause of action is challenged, the Court is required to satisfy itself that it has jurisdiction before proceeding further with the hearing of the proceedings (R v Federal Court of Australia and Adamson; Ex parte WA National Football League (Inc) [1979] HCA 6; (1979) 143 CLR 190 per Gibbs J at 215; National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 per Kirby P at 585. Moreover when that question is raised, it is incumbent upon the party invoking the Court's jurisdiction to demonstrate that such jurisdiction exists (Owners of the Ship "Shin Kobe Maru" v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404 at 426; Meehan v Commissioner of Police [1999] NSWCA 292; (1999) 47 NSWLR 284 at [4]).

113. The Applicants relied on Shin Kobe Maru at [421] to submit that the jurisdiction of a court should be liberally construed to the extent the terms conferring jurisdiction permit, there in the context of not imposing limitations which are not express. As will become clear below that circumstance does not arise given the express words of s 368(1).

Applications for FH licences not refused (s 368(1)(a))

114. The parties’ submissions require the statutory construction of the WM Act. The WM Act must be construed in accordance with well-established principles of statutory construction. These include that the document must be read as a whole so as to give effect to all sections wherever feasible: Project Blue Sky at 381-382. Where individual words require construction, their ordinary meaning must be considered in context: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 305 cited in Roden v Bandora Holdings Pty Ltd [2015] NSWLEC 191 at [42]; Sydney Seaplanes Pty Ltd v Page (2021) 393 ALR 485; [2021] NSWCA 204 at [25]-[41]. Words will not be added into the reading of a provision unless the words address simple, grammatical, drafting errors which would defeat the object of the provision if uncorrected: Taylor at 548. The principles of statutory construction are also applicable to the WM Regulation being delegated legislation: Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101; 249 ALR 44; [2008] HCA 38 at 110 cited in D Pearce and S Argument, Delegated Legislation in Australia (6th ed, 2023, LexisNexis) at 591. The consideration of context is discussed in Alcan at 46-47 extracted below:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

115. The necessary purposive statutory construction of s 368(1) must be undertaken in the context of the WM Act as a whole and considering the WM Regulation. Chapter 3 Water management implementation of the WM Act includes Pt 2 Access licences in which s 56 identifies a component of an access licence as entitling a holder to specified shares in available water from within a specified water management area inter alia. A share component can be expressed in various ways, identified in subs (2). Categories of access licences include FH licences as specified in s 57(k1). As identified in [10] above, special provisions relating to replacement floodplain harvesting access licences can be made by regulations as provided in s 57A. Under subs (1) the regulations can make provision for the conversion of actual or proposed floodplain water usage by landholders into replacement floodplain harvesting access licences which includes the FH licences issued to the Applicants. The circumstances in which actual or proposed floodplain water usage by landholders will give rise to FH licences, the terms and conditions for such licences and the share components and how these are determined can be specified in regulations (subs (2)). Under s 57A(4) a FH licence authorises the taking of water from the floodplain of the regulated river and the share component in a FH licence is an entitlement to that water.

115. Eligibility for a FH licence is considered under Pt 2A cl 23B of the WM Regulation. A landholder is eligible for a FH licence if the Minister is satisfied that on 3 July 2008 a water supply work capable of floodplain harvesting was constructed on their land with the relevant approval (subcl (2)(a)). In considering eligibility the Minister must consider relevant information provided by the landholder, pursuant to cl 23B(3). Under subcl (5) the Minister must determine the share component of the licence in accordance with Div 2 Determination of share component if a landholder is found to be eligible. Under Div 2 cl 23F the Minister may determine the final share component for a FH licence only if a landholder is given written notice and 28 days in which to make submissions about the proposed share component and the Minister considers those submissions.

116. Turning to consider the correspondence outlined in the evidence summarised above in [26]-[64] in light of the statutory scheme summarised immediately above, the Applicants having expressed their interest were informed they were eligible for FH licences on 3 March 2015. On 1 September 2020 (Flintrock) and 26 August 2020 (Banchory) the Department provided information on draft eligible works on the respective properties and invited submissions in response. Extensive consultation took place concerning the application of the relevant floodplain harvesting model (which models are applicable are specified in Div 3 of the WM Regulation) and submissions were made by the Applicants to the Department in relation to draft entitlements provided to them. The submissions received from the Applicants between 7 June and 6 October 2022 were considered by the Minister and determinations made about a final share component in the amounts identified in the Determinations of 10 February 2023. The Determinations issued reflect the process provided in Pt 2A of the WM Regulation. The Determinations in [65] above state that they are made in accordance with Pt 2A of the WM Regulation. The Statements of Conditions extracted above in [66] identify in the Licence details section that the Applicants are entitled to take water from the Macquarie and Cudgegong Regulated Rivers Water Source.

117. Firstly, considering the nature of an application for a FH licence in the statutory scheme, the Applicants submitted that the WM Act attaches significance to the substance of an application and should be construed as conferring on the Minister a power to grant or refuse the particular application made for unit share entitlements. The Applicants relied on a dictionary definition of ‘an’ at the outset of construing ‘a decision refusing to grant an access licence’ in s 368(1)(a) as the basis for this submission. The Applicants’ approach of immediately seeking to apply a dictionary definition to the word ‘an’ in s 368(1) on the basis this assisted in construing its ordinary meaning does not reflect the caution identified by Mason P in House of Peace Pty Ltd & Anor v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 at [28] in relation to the use of dictionary definitions:

A dictionary may offer a reasonably authoritative source for describing the range of meanings of a word, including obsolete meanings. Dictionaries recognise that usage varies from time to time and place to place. However, they do not speak with one voice, even if published relatively concurrently. They can illustrate usage in context, but can never enter the particular interpretative task confronting a person required to construe a particular document for a particular purpose…

119. The Applicants submitted that the dictionary meaning of ‘an’ as ‘some’ should be applied to ‘an access licence’ submitting that the Minister’s approach incorrectly adopted by inference the meaning of ‘any at all’. The consequence of the Minister’s approach was described as granting approval for any kind of access licence not the particular licences sought by the Applicants.

120. Only one application for a FH licence was made by each of the Applicants. The FH licences the Minister issued responded to those applications not any other application, the first indicator the Applicants’ submission on how the Minister considered the applications is incorrect.

121. The Applicants submitted any variation of the share component sought in their applications gives rise to a refusal of their application. The manner of making an application for a FH licence is not defined in the WM Act or the WM Regulation. No requirements for an application are specified such as for example that a particular amount of water units must be specified. The documents agreed by the parties to be the applications in these matters are letters sent by the Applicants’ solicitor to the Department on 4 October 2022 and 6 October 2022 respectively. While reliance was placed on s 63 which identifies that the Minister can grant or refuse a licence, and subs (5) allowing the issue of an access licence with a zero share component, that part of the WM Act deals with specific purpose access licences not including FH licences. The regime set out in s 57A of the WM Act and Pt 2A of the WM Regulation is directed specifically at FH licences, applies to the Applicants’ FH licences and is differently drafted. Under cl 23L of the WM Regulation a landholder cannot hold a FH licence with a zero share component. Reliance on the different terms of ss 61, 63 does not assist construction in a way that supports the Applicants. The WM Act and WM Regulation do not support a construction that the statutory scheme places particular significance on the content of an application by a landholder for a FH licence.

122. Secondly, the licences on their face are determinations to grant an entitlement to unit shares of water for the respective properties. It is not apparent why a dictionary definition is needed to undertake statutory construction of whether there have been refusals of the FH licences when on their face they purport to be the grant of a licence. To find there is a refusal in the circumstance here where two FH licences have been granted strains the ordinary meaning of refusal. This finding also means that there is no express right of appeal in s 368(1) in the Applicants’ circumstances and any right of appeal must therefore arise by implication.

123. Thirdly, the Applicant’s construction requires that additional words be added to s 368(1). In Taylor at 548 the High Court of Australia stated:

Consistently with this court’s rejection of the adoption of rigid rules in statutory construction, it should not be accepted that purposive construction may never allow of reading a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation. As the review of the authorities in Leys demonstrates, it is possible to point to decisions in which courts have adopted a purposive construction having that effect. And as their Honours observed by reference to the legislation considered in Carr v Western Australia, the question of whether a construction “reads up” a provision, giving it an extended operation, or “reads down” a provision, confining its operation, may be moot.

The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills “gaps disclosed in legislation” or makes an insertion which is “too big, or too much at variance with the language in fact used by the legislature”.

124. There is no drafting error or matter of clarification requiring additional words to be read into s 368(1) to enable its construction.

125. Fourthly, the context of the Minister’s decision-making under the WM Act and WM Regulation is also informative. As identified above under Pt 2A of the WM Regulation the Minister through the Department has to assess eligibility including the capacity of landholders to undertake floodplain harvesting with existing infrastructure such as water supply works on their land from a defined water source. This process was undertaken in relation to the Applicants as outlined above in [119]. Access to that water source will of necessity need to be shared between landholders and requires consideration of environmental consequences of using the water consistent with objects ss 3(a),(b),(e) and (f) inter alia of the WM Act. Once a landholder is determined to be eligible, the Minister must determine the share component of the licence in accordance with Div 2. The Department and the Applicants undertook extensive consultation including in response to draft water entitlements issued to the Applicants by the Department. The water modelling which must be applied by the Minister is specified in Div 3.

126. The complexity of the statutory scheme requires the Minister to assess eligibility of a landholder for a FH licence and the assessment of share unit entitlement including consultation with a landholder. The scheme requires the application of complex water modelling in order to address the capacity for a large number of landholders to obtain share unit entitlements from the same water source. These factors sound against a merits appeal being provided by inference, as the Applicants essentially have to submit in the absence of an express provision.

No universal right to merits appeals in WM Act/no manifest injustice in circumstances

127. Statutory construction of s 368(1)(a) is also informed by my findings on the Applicants’ submissions concerning the appropriateness of the universality of merits appeals under the WM Act and the related submission that the Minister’s construction gives rise to manifest injustice to the Applicants.

128. The Applicants submitted that the Minister’s construction would give rise to manifest injustice and such a consequence is to be avoided where there are two possible constructions available, citing Public Transport Commission per Gibbs J at 350. That approach is not called for in that I have concluded above that there are not two possible approaches to the construction of subs (1)(a). Seeking to characterise the Minister’s reduction of unit shares sought as an administrative means of avoiding appeal rights does not give any weight to the scheme in Pt 2A of the WM Regulation. In addition, no landholder can hold a FH licence for zero units, in contrast to a specific purpose access licence as identified in s 63(5) of the WM Act.

129. Related to submitting that manifest injustice arises is whether there is or should be universal merits appeal rights under the WM Act where substantive benefits (not rights as the Applicants submitted) are at stake. I accept that a reduction in share components of water from what is sought by a landholder has the potential to cause financial impact on a landholder. Further construction of the WM Act provisions particularly in s 368(1) is required.

130. Section 368 provides for appeal rights in defined circumstances in relation to access licences issued pursuant to s 56. The subsections of s 368(1) which refer to an access licence, in contrast to an approval (separately defined) are subss (a), (b), (c), (d), (e), (f) and (fa). Appeals are provided in relation to the refusal to grant an access licence (subs (a)), the imposition of a discretionary condition an access licence (subs(c)), a decision fixing the term of an access licence (subs (d)), a decision suspending or cancelling an access licence (subs (f)) and the recording of a matter in the Access Register or the issue of any access licence certificate (subs (fa)). These precise provisions regulating when aspects of an access licence can be appealed against and in what circumstances suggest that limited appeal rights have been provided deliberately as part of the overall statutory scheme in the WM Act. An express right to appeal a share component has not been included, in contrast to an appeal right in relation to fixing the term of an access licence (subs (1)(d)) or a decision to suspend or cancel an access licence (subs (1)(f)) inter alia. I note by way of further example that the Minister’s decision about whether a landholder is eligible for a FH licence at all under cl 23B of the WM Regulation is not subject to merits appeal rights in the WM Act or anywhere else. Such a decision will potentially also have financial ramifications for some landholders.

131. The Applicants’ submission that merits appeals must be widely available is no more than a submission as clearly there are not such universal rights provided under the WM Act in light of the paragraph immediately above. There is no inherent right based on the objects of s 3 of the WM Act extracted above in [8] which supports an inference being drawn about desirable public policy to support statutory construction in the manner contended for by the Applicants. There is no ‘gap’ in the legislative scheme in finding that no merits appeal is enabled by the WM Act in the Applicants’ circumstances and applying purposive construction principles to the statutory scheme as identified in Alcan inter alia does not suggest to the contrary.

132. While the Applicants relied on the well-known authority of Shin Kobe Maru cited above in [109] to the effect that provisions defining a court’s jurisdiction should not be seen to impose limitations that are not express, the circumstances concerning s 368(1) simply do not require such an approach to construction. The section is clear on its face, and my approach to its construction does not impose limitations that are not express.

133. For the various reasons articulated above in [120]-[134] the Applicants cannot rely on s 368(1)(a) to found a Class 1 appeal as no FH licences have been refused by the Minister.

Unit shares not a discretionary condition (s 368(1)(c))

134. The Applicants argued in the alternative that if they were unsuccessful on the application of s 368(1)(a) that the share entitlement conditions in their FH licences are discretionary conditions and s 368(1)(c) applies to found merits appeal rights.

135. The share component of an access licence is an entitlement pursuant to s 56(1)(a). As the Applicants submitted in the context of s 368(1)(a) above in [93]-[94] the significance of the share component is a matter of substance not form and is important context which suggests it is an essential part of a FH licence and therefore unlikely to be able to be a discretionary condition of an access licence. The WM Act identifies separately the ability to impose mandatory and discretionary conditions on an access licence. The power of the Minister to impose both is provided in Div 3 s 66(1)(a) and (b). Under subs (1)(a) mandatory conditions must include those required to be imposed by the WM Act or a relevant management plan. Under s 66(1AA) conditions imposed on an access licence are mandatory where imposed by the WM Act or the WM Regulation. Subsection (5) states that mandatory conditions are those referred to in s (1)(a) or (1AA) or imposed under section 8E (not applicable here). Mandatory reporting conditions are identified in cl 92 of the WSP 2016. Separately s 68A provides for the amendment of share components of an access licence so as to alter the water management area or water source to which a share component relates in specifically defined circumstances inter alia.

136. Discretionary conditions are provided for in s 66(1)(b) in relation to other matters the Minister thinks fit. Under s 67 the Minister may impose discretionary decisions on an access licence after it has been granted and under s 68 the Minister can revoke at any time any discretionary condition.

137. The Applicants’ approach arguing the share component is a discretionary condition is contrary to the statutory scheme in the WM Act whereby specified shares from a water source creates an entitlement in that water for the holder of the licence. It would be at odds with and act counter to the important benefit held by a licence holder for the amount of unit shares allocated in a licence to be discretionary and therefore subject to being varied unilaterally by the Minister under s 68. The separate provision in s 68A from the sections considering discretionary conditions suggests that the share component of a licence is treated separately to discretionary conditions. The Applicants’ construction is contrary to the Applicants’ interests as FH licence holders.

138. Considering the Statements of Conditions on their face set out above in [66], the first page has a heading Licence Details which includes the unit share entitlement to be taken from the specified water source. The second page headed ‘Conditions’ contains conditions for the taking of water and mandatory reporting requirements. Under the heading ‘Other conditions’ none are imposed, the most likely location for any discretionary condition. Construing the Statements of Conditions as a whole the unit share entitlements are not discretionary conditions.

139. Consequently the Applicants cannot rely on s 368(1)(c) of the WM Act.

In Conclusion

140. No appeal right exists under s 368(1)(a) or (c) of the WM Act in the circumstances giving rise to the two purported Class 1 proceedings filed by the Applicants. Mindful of the principles extracted above in [114] in relation to the summary dismissal of proceedings not being done lightly that finding is plain and obvious, and the result must be that the Applicants have no reasonable prospects of success. Another way of expressing this is no reasonable cause of action was disclosed by the Applicants. Consequently the orders sought in the notices of motion that each of the Class 1 proceedings be dismissed pursuant to r 13.4(1)(b) of the UCPR will be made.

141. Consequently, the Applicants cannot rely on s 368(1)(c) of the WM Act.

Costs

142. The usual costs rule in Class 1 proceedings is that each party should pay its own costs unless fair and reasonable in the circumstances as provided in cl 3.7(2) of the LEC Rules. Clause 3.7(3) of the LEC Rules extracted above in [14] identifies that in certain circumstances the Court may consider making a costs order in Class 1 proceedings. The circumstances identified are not exhaustive but in these matters the circumstances in subcll (a) and (f) can be seen to apply.

143. The Minister seeks costs in both proceedings if successful. For the first two reasons provided by the Minister I consider it is just and reasonable for the Court to make an order for costs in the Minister’s favour. Firstly, the proceedings involve a threshold question as to the Court’s jurisdiction. The resolution of that issue is not dependent on an assessment of the merits of the two Class 1 applications filed with the Court. Secondly, having regard to the Court’s lack of jurisdiction to hear the proceedings, the Applicants did not have reasonable prospects of success. I do not need to resolve whether the Applicants acted unreasonably in continuing the proceedings despite correspondence from the Minister (above in [87]). The Applicants have been unsuccessful on a threshold legal question and the Court lacks jurisdiction to consider these Class 1 appeals. That this is the first time such a question has arisen is not a reason not to make a costs order in the Minister’s favour.

144. The Applicants should pay the Minister’s costs of the notices of motion dated 6 April 2023.

Orders

Proceedings no. 2023/57189 (Flintrock)

145. The Court makes the following orders in proceedings no. 2023/57189:

1. The proceedings against the Respondent are dismissed pursuant to rule 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW).

2. The Minister’s costs of the notice of motion dated 6 April 2023 are to be paid by the Applicants as agreed or assessed.

Proceedings no. 2023/58427 (Banchory)

146. The Court makes the following orders in proceedings no. 2023/58427:

1. The proceedings against the Respondent are dismissed pursuant to rule 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW).

2. The Minister’s costs of the notice of motion dated 6 April 2023 are to be paid by the Applicants as agreed or assessed.

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Decision last updated: 27 June 2023