Randren House Pty Ltd v Water Administration Ministerial Corporation

[2020] NSWCA 14

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Randren House Pty Ltd v Water Administration Ministerial Corporation [2020] NSWCA 14

Hearing dates:

26, 27 November 2019

Decision date:

19 February 2020

Before:

Basten JA at [1];
Leeming JA at [17];
Emmett AJA at [204].

Decision:

1. Leave refused to extend the time within which to appeal.

 

2. Notice of appeal dismissed as incompetent.

 3. The appellants pay the respondents’ costs.

Catchwords:

APPEALS - time for commencing appeal - orders made dismissing applicants’ claims - costs orders made months later - whether time for appeal only ran from costs orders - whether applicants should have an extension of time - whether applicants had sufficiently explained delay - extension of time for appeal refused

JUDICIAL REVIEW – applicants’ land claimed to be affected by Minister’s plan made under Water Management Act 2000 (NSW) - applicants brought judicial review proceedings challenging numerous decisions including making of the Minister’s plan - proceedings dismissed as not brought within 3 months as required by s 47 - application to reopen after judgment reserved refused - all bases of judicial review rejected - whether primary judge erred in finding proceedings statute-barred - whether Minister entitled to make decisions to make a plan at “high level” - whether Minister had duty to classify water sources of the State - whether first applicant should have been issued with a licence expressed in terms of unregulated water - whether error in refusing application to adduce further evidence - extension of time for appeal refused

Legislation Cited:

Acts Interpretation Act 1901 (Cth), s 15A
Civil Procedure Act 2005 (Cth), ss 56, 65
Interpretation Act 1987 (NSW), s 32(2)
Land and Environment Court Act 1979 (NSW), ss 25B, 58
Uniform Civil Procedure Rules, rr 14.14(3), 51.2, 51.18(1)(e), 51.36(2), 59.10(4)
Water Act 1912 (NSW), s 12
Water Management Act 2000 (NSW), ss 3, 5-9, 15, 17, 20, 35, 47-50, Ch 3 Pts 2-3, ss 336, 393, Sch 10
Water Sharing Plan for the Murrumbidgee Regulated River Water Source 2003
Water Sharing Plan for the Murrumbidgee Unregulated and Alluvial Water Sources 2012
Water Sharing Plan for the Murrumbidgee Regulated River Water Source 2016

Cases Cited:

Banque Commerciale SA v Akhil Holdings Ltd (en liqn) (1990) 169 CLR 279; [1990] HCA 11
Baulkham Hills Shire Council v O’Donnell (1988) 66 LGRA 367
Bropho v Western Australia (1990) 171 CLR 1; [1990] HCA 24
Broughton v Leslie [2019] NSWSC 827
Burwood Council v Ralan Burwood Pty Ltd (No 2) [2014] NSWCA 179
Carr v Finance Corp Ltd (1981) 147 CLR 246; [1981] HCA 20
Castle v Director General State Emergency Service [2008] NSWCA 231
Hicks v Ruddock (2007) 156 FCR 574; [2007] FCA 299
ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140; [2009] HCA 51
Margarula v Northern Territory of Australia (2016) 257 FCR 226; [2016] FCA 1018
Minister Administering the Water Management Act 2000 v Sharkey [2017] NSWCA 319
Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10
Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513; [1997] HCA 38
Olsen v Mentink [2019] NSWCA 279
Paciocco v Australia and New Zealand Banking Group Ltd (2015) 236 FCR 199; [2015] FCAFC 50
Randren House Pty Ltd v Water Administration Ministerial Corporation (No 5) [2019] NSWLEC 63 Randren House Pty Ltd v Water Administration Ministerial Corporation (No 4) [2019] NSWLEC 5
Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) (2016) 95 NSWLR 157; [2016] NSWCA 379
Skalkos v T & S Recoveries Pty Ltd (2004) 65 NSWLR 151; [2004] NSWCA 281
Spence v State of Queensland [2019] HCA 15; 93 ALJR 643 at [294]
The King v The Governor of the State of South Australia (1907) 4 CLR 1497; [1907] HCA 31
The Movie Network Channels Pty Ltd v Optus Vision Pty Ltd [2009] NSWSC 132
Tubbo Pty Ltd v Minister Administering the Water Management Act 2000; Harvey v Minister Administering the Water Management Act 2000 [2008] NSWCA 356
Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422
Zippoz Pty Ltd v National Australia Bank Ltd [2013] NSWCA 113

Texts Cited:

M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, LawBook Co, 2017)

 

J Braithwaite, “Rules and Principles: A Theory of Legal Certainty” (2002) 27 Aust J Leg Phil 47

 

E Campbell and M Groves, “Polycentricity in Administrative Decision-Making”, in Law and Government in Australia, ed M Groves (The Federation Press, 2005)

 

R Creyke, M Groves, J McMillan and M Smyth, Control of Government Action: Text, Cases and Commentary (5th ed, Lexis Nexis Butterworths, 2019)

 

Lon L Fuller, “The Forms and Limitations of Adjudication” (1978) 92 Harvard L Rev 353

 

J Getzler, “A History of Water Rights at Common Law” (Oxford University Press, 2004)

  E Lees, Interpreting Environmental Offences: The Need for Certainty (Bloomsbury, London, 2015), ch 3 “Legal Certainty”

Category:

Principal judgment

Parties:

Randren House Pty Ltd (First Appellant)
Paul Andrew Andrews (Second Appellant)
Water Administration Ministerial Corporation (First Respondent)
State of New South Wales (Second Respondent)
Minister Administering Water Management Act 2000 (NSW) (Third Respondent)

Representation:

Counsel:
P E King (Appellants)
J Davidson (Respondents)

  Solicitors:
Andrews & Associates (Appellants)
Crown Solicitor’s Office (Respondents)

File Number(s):

2019/181067

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Land and Environment Court

Jurisdiction:

Class 4

Citation:

[2019] NSWLEC 5

Date of Decision:

15 February 2019

Before:

Molesworth AJ

File Number(s):

2016/161999

Judgment

1. BASTEN JA: For the reasons given by Leeming JA, I agree that the proper course in this case is to refuse the extension of time required for the proposed appeal. It follows that the applicants must pay the costs of the respondents in this Court.

2. The following observations address two issues. First, and by way of an immaterial qualification to the approach of Leeming JA, a number of concerns are identified with respect to ground 11C, concerning the operation of s 47 of the Water Management Act 2000 (NSW). Secondly, it is suggested that the proposed grounds relating to errors committed by the Minister reflect a failure to appreciate the particular problems with respect to judicial review of polycentric decision-making.

Water Management Act, s 47

3. The critical provisions of s 47 of the Water Management Act are as follows:

47   Validity of management plans and exercise of plan-making functions

(1)   The validity of a management plan may not be challenged, reviewed, quashed or called into question before any court in any proceedings, other than before the Land and Environment Court in proceedings commenced within the judicial review period.

(2)   The judicial review period in respect of a management plan is—

(a)   the period of 3 months after the date the plan was published on the NSW legislation website ….

(3)   The judicial review period cannot be extended by the Land and Environment Court or any other court, despite any other Act or law.

4. The trial judge (Molesworth AJ) concluded, with respect to the 2016 Regulated Water Sharing Plan, published on the NSW Legislation website on 1 July 2016, that the Court had no jurisdiction because proceedings to challenge the validity of the plan had not been commenced within the three month period permitted under s 47, namely by 1 October 2016. [1] The judge concluded that because the applicants before him had not sought to review the plan within the judicial review period, the Court had no jurisdiction to hear the claim, which should be struck out. [2] The steps by which the judge reasoned to this conclusion were as follows:

1. the proceedings having been commenced by summons, prior to the publication of the 2016 plan, required either an amendment to the existing summons (or a fresh summons) to challenge the plan;

2. no further summons was issued; the only amendment to the existing summons made after 1 July 2016 occurred 16 months later on 13 November 2017;

3. an amendment to the points of claim, filed on 21 September 2016, did not directly refer to the 2016 plan, but referred to a decision made in July 2016 “varying and extending the water sharing plan”, which was not language apt to include the approval and publication of an entirely new plan.

   1. Randren House Pty Ltd v Water Administration Ministerial Corporation (No 4) [2019] NSWLEC 5 (Randren House) at [519].

   2. Randren House at [527].

5. The judge also noted that, although the respondents had taken issue with respect to other challenges on the basis that they were statute barred, s 47 had not been pleaded with respect to any challenge to the 2016 plan. Nevertheless, being satisfied that the Court had no jurisdiction, the judge said he would have dismissed the challenge on that basis. [3] However, he proceeded to consider the merits of the challenges to the validity of the 2016 plan and held that the challenge should, in any event, be dismissed. [4]

   3. Randren House at [527].

   4. Randren House at [528].

6. As explained by Leeming JA, orders having been made on 15 February 2019 dismissing the proceedings, that was the “material date” for calculating the period within which notice of intention to appeal was to be given, or a notice of appeal lodged. That did not happen. The first notice of appeal was filed on 14 August 2019, but contained no express challenge to the finding under s 47 of the Water Management Act. Ground 11C, which did challenge this finding, first appeared in an amended notice of appeal dated 26 September 2019. The ground did not identify the basis upon which the finding was challenged.

7. The written submissions, also dated 26 September 2019, identified the ground as procedural unfairness in determining the issue in circumstances where the respondents had not pleaded a limitation defence, nor had the issue been addressed in submissions.

8. The appeal submissions were unsatisfactory in three respects. First, there being no express pleading as to the invalidity of the 2016 plan, the applicants could hardly complain that the respondents failed to defend such a challenge by reference to the limitation period (or otherwise). Secondly, where jurisdiction is in issue and was understood to be in issue by the trial judge, it would generally be a sufficient answer to a claim of procedural unfairness that the judge had raised the issue with the applicants and sought submissions. According to the respondents, such an exchange took place in the present case. In oral argument on the appeal, counsel for the applicants denied that assertion, but did not put before the Court the relevant parts of the transcript in the Court below. On that basis alone, they failed to make good a claim of procedural unfairness. Thirdly, there was no substantive argument presented in this Court in support of the proposition that the Land and Environment Court had jurisdiction to hear the challenge. Ground 11C was therefore without merit and the amendment to insert the ground, out of time, should be refused. No separate order is necessary because the general order refusing to extend time to appeal has the same effect.

9. One further matter should be noted in relation to the operation of s 47. In a footnote to written submissions filed in the Land and Environment Court, counsel for the respondents stated that “there may be a question as to whether s 47 could validly oust review for jurisdictional error”. [5] That suggestion elided the effect of s 47 in limiting the jurisdiction of the Land and Environment Court with its entirely separate effect in limiting the jurisdiction of this Court. There can be no tenable suggestion that the jurisdiction conferred on a specialist statutory court such as the Land and Environment Court is constitutionally protected. No issue arose before the trial judge as to the exercise of this Court’s supervisory jurisdiction.

   5.    Written submissions, 26 July 2018, footnote 106.

10. In principle, this Court should be slow to find error on the part of a trial judge in concluding that an applicant has failed to establish that the lower court had jurisdiction to determine a claim, on the basis that the applicant had no reasonable opportunity to address that issue, in the absence of clear evidence of a denial of such an opportunity.

The nature of polycentric decisions

11. The second principal error identified on the appeal was founded on statements by the trial judge that decisions under the Act are made at a “high level” and not by reference to specific circumstances of individual landowners. This approach was illustrated by reference to the following passages in the judgment below:

“[554]   I consider it essential that it be kept in mind that, when determining compliance with the Act in the context of the 2016 Regulated WSP, the plan covers a vast area and seeks to manage a great number of water sources in accordance with the principles. …

[555] Given the emphasis in the legislation to apply the water management principles in the priority order in which they appear in s 5(3) of the Water Management Act, and the clear intent of the 2016 Regulated WSP to adhere to that same emphasis …, when considering a decision in the context of that priority given to the water management principles, is the Court to accept that because one small water body (the water body in the Lake Paddock) and its unnamed linking channel have suffered from inundation, that the Minister’s Decision 8 was flawed in an administrative law sense? No, is the answer. In short, the Court believes that decisions under the Act are made at a ‘high level’ as a matter of necessity. Although the Applicants’ counsel accused the Respondents of improperly asserting a ‘high level duty’ approach to decision-making, which in fact was an overstatement of the Respondents’ propositions which were restricted to the definition of ‘water source’ under the Water Management Act, I am of the view that, for the legislation to function, of necessity many decisions under that Act have to made at a ‘high level’, rather than at the closer detail level contended by Mr King for the Applicants.”

12. Although the label of “high level” decision-making may not be entirely apt, it is tolerably clear that the trial judge was grappling with an issue which is identified in the literature as polycentricity in administrative decision-making. [6] The nature of the problem was succinctly stated in a comparable statutory context by Spigelman CJ (Allsop P and Sackville AJA agreeing) in Tubbo Pty Ltd v Minister Administering the Water Management Act 2000, [7] a case involving water licence entitlements under a water sharing plan for ground water in the lower Murrumbidgee:

    6.    See, eg, E Campbell and M Groves, “Polycentricity in Administrative Decision-Making”, in Law and Government in Australia, ed M Groves (The Federation Press, 2005), ch 10, pp 213-240; R Creyke, M Groves, J McMillan and M Smyth, Control of Government Action: Text, Cases and Commentary (5th ed, Lexis Nexis Butterworths, 2019), at 7.42; M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, LawBook Co, 2017) at 7.170 and 7.190.

    7. Tubbo Pty Ltd v Minister Administering the Water Management Act 2000; Harvey v Minister Administering the Water Management Act 2000 [2008] NSWCA 356.

“[66]   In the present case the basic interests deserving of protection were the pre-existing Water Act 1912 entitlements. The principal impact upon these interests of the appellants was the adoption of policies for reducing those entitlements. …

…

[69]   It is of significance to note that the appellants make no complaint about these two ‘criteria’ (ie reduction to sustainable levels and the history of extraction principle) which had the principal and primary impact upon their pre-existing rights. These two ‘criteria’ were clearly polycentric policy decisions of a political character affecting a large number of persons to which procedural fairness had no application.

…

[73]   In the context of the statutory scheme as a whole and the circumstances of the case, in my opinion, fairness did not require the appellants to be given a hearing with respect to the decision to grant the indulgence to some but not others, whether by the adoption of the so called ‘criterion’ for inclusion or in the determination of whether the ‘criterion’ applied to a particular licence holder.

[74] The nature of the statutory decision-making process was fully analysed by Justice Jagot …. I agree with her Honour’s identification of the critical features of the legislative scheme, save in the respect to which I referred at [56] above. In this regard I particularly emphasise the following features of the scheme:

•   The statutory power is to be exercised in the public interest, for purposes of serving a wide range of broadly expressed policy objectives of a character that overlap, conflict and are incommensurable with each other;

•   Alteration of any component part of the framework carries with it a potential effect on each other component part;

•   The particular component about which the appellants complain involves a subsidiary element of a complex decision-making process;

•   Even with respect to this subsidiary element, the decision necessarily affected the conflicting interests of a large number of entitlement holders, not merely the more limited range of entitlement holders to whom the characterisation of ‘special circumstances’ was capable of applying;

•   The very structure of the formula … necessarily meant that every inclusion in Sch 5, reduced the entitlements of virtually every other licence holder.

[75]   In this context, the directly relevant ‘criterion’ was the broad principle of ‘special circumstances’. This, in itself, invokes the full range of policy objectives required to be addressed and the full scope and intensity of the conflicting interests required to be reconciled when formulating a plan or an amended plan. In this context no individual component of the decision-making process – including the process of identifying what ‘special circumstances’ would be accepted – can be severed from the entirety of the decision-making process. In any event, the selection of the criterion, considered separately, itself gives rise to the same polycentric decision affecting numerous persons in a context of conflicting interests.

…

[79]   … The present is a case in which the multiplicity of considerations, together with the broad range of interconnected, conflicting and incommensurable interests, is such that the decision-making process involved in a particular component part is simply overwhelmed by the whole. The elements of policy involved in the exercise of a power directed to achieving the public interest, in a context affecting numerous interests, is entitled to significant weight in the present context.”

13. Polycentric decisions come in various kinds; they may involve allocation of limited resources among a class of individuals, or the siting of public infrastructure, such as an airport or highway, for the public benefit, albeit at the expense of interests of individual landholders in the vicinity, including loss of land or loss of amenity. As explained by Professor Lon L Fuller in a seminal article in 1978: [8]

“We may visualise this kind of situation by thinking of a spider web. A pull on one strand will distribute tensions after a complicated pattern throughout the web as a whole. … This is a ‘polycentric’ situation because it is ‘many centred’ – each crossing of strands is a distinct centre for distributing tensions ….”

8.    Lon L Fuller, “The Forms and Limitations of Adjudication” (1978) 92 Harvard L Rev 353 at 396 (quoted by Creyke et al at 407).

14. Fuller considered that such characteristics would, at some point, render a dispute no longer a proper subject for judicial adjudication. That may be accepted: a decision to pursue a public purpose, such as the construction of an airport, is ordinarily not justiciable, despite the consequences for individual landowners and local residents. More relevantly, as considered in Tubbo and in Castle v Director-General State Emergency Service, [9] polycentricity may affect the scope of statutory duties to consult or accord procedural fairness, with respect to particular forms of decision-making.

    9. [2008] NSWCA 231 at [6].

15. In the present case, this analysis has two kinds of consequence. First, it will significantly affect the construction of statutory provisions expressing, for example, “the duty of all persons exercising functions under this Act”, in s 9(1) of the Water Management Act. Secondly, it will affect the content of specific procedural obligations, such as a duty to take into account mandatory considerations. For example, where a person is entitled to a protection visa if he or she has a well-founded fear of persecution on Convention grounds, a decision to refuse a visa without considering credible and material evidence of such a fear may well be invalid. By contrast, the fact that the adoption of a water sharing plan may cause or continue to cause degradation of an area of land, to the knowledge of the Minister, is not a fact that need be given any particular weight in determining whether to adopt a proposed plan. As explained by Leeming JA, the submissions for the applicants failed to construe the statutory language in the context described above.

16. A failure to recognise the nature of the power to make a water sharing plan underlay the difficulties faced by the applicants in attempting to formulate appropriate relief in a manner which would protect the legitimate interests of persons not party to the proceedings. The same elements of polycentricity may explain the strict time limit on the limited forms of judicial review which may be available, pursuant to s 47 of the Water Management Act.

17. LEEMING JA: The first appellant, Randren House Pty Ltd, owns land known as “Somerset Park” on both sides of Yanco Creek in southern New South Wales. Yanco Creek is a tributary of the Murrumbidgee River. The second appellant, Mr Paul Andrew Andrews, is the occupier and manager of Somerset Park. His father, Mr Andrew Andrews, established an olive oil enterprise on parts of the property to the south of Yanco Creek. The issues in this litigation are entirely unrelated to a licence which permits water to be taken from the Creek to supply the olive trees. Rather, the focus is upon “Lake Paddock” – an area of some 450 hectares on the northern side of Yanco Creek.

Overview of appeal

18. Randren and Mr Paul Andrews have purported to appeal as of right. Although, as will be seen below, they require an extension of time, it is simplest to refer to them as the appellants.

19. The appellants claim that Lake Paddock is adversely affected by water regulated under a Minister’s plan made in 2016 pursuant to the Water Management Act 2000 (NSW). They claim that Lake Paddock is a “dependent ecosystem” within the meaning of the Act, which has been damaged by the operation of the plan. They also claim that Randren’s licence which authorises water to be diverted from Yanco Creek onto Lake Paddock should be subject to different conditions.

20. The appeal is brought from orders made on 15 February 2019 accompanied by extensive reasons of some 236 pages, comprising 603 paragraphs and 305 endnotes after a trial occupying some 11 days in July, August and September 2018: Randren House Pty Ltd v Water Administration Ministerial Corporation (No 4) [2019] NSWLEC 5. There were many issues at trial which are not raised on appeal. The primary judge identified at [105] no fewer than eight decisions, made during a 25 year period dating from 1990 until 2015, of which the applicants sought judicial review. No challenge is made to the first seven of those decisions on appeal. The primary judge also addressed, and rejected, a challenge based upon s 100 of the Commonwealth Constitution at [561]-[580]. That challenge has not been renewed on appeal.

21. The orders sought in this appeal are confined to so-called “Decision 8”, the decision made in June 2016 by the third respondent Minister to make the “Water Sharing Plan for the Murrumbidgee Regulated River Water Source 2016”, pursuant to s 50 of the Water Management Act 2000 (NSW). Speaking in very general terms, the appellants say that the 2016 plan is invalid, to the extent that it applies to them and their land (in particular Lake Paddock), on a suite of administrative law grounds. Those submissions represented the principal component of the appeal, although only a small portion of the reasons of the primary judge.

The grounds of appeal

22. Leave was granted at the hearing, by consent, to rely upon a further amended notice of appeal, which contains the following 15 grounds:

Ground 1: The primary judge erred in declining to admit the further evidence of Mr Purcell and Mr Paul Andrews and in relation thereto in finding that the Appellants were aware of the Respondents’ proposal to prevent inundation damage along Yanco Creek prior to the meeting of users of the water resources along the Creek with Government on 8 August 2018, when no such issue was put to them in cross-examination.

[Ground 2 was abandoned.]

Ground 3: The primary judge erred in proceeding to decide the matter on the basis that the Court believes that decisions under the Act are made at a “high level” as a matter of necessity.

Ground 4: The primary judge erred in holding that Water Management Act 2000 does not impose any duty on the Respondents to classify the water sources of the State at risk, or subject to stress, or as to their conservation value, or otherwise manage the State’s water rights.

Ground 5: The primary judge erred in holding that duties of the Minister under the Act were not mandatory although so expressed but arose only at a “high level” and/or erred in holding that the Court’s interpretation negating any duty on the Minister and the Department is consistent with the purposes of the Water Management Act 2000, including its objects set out in section 3 including (a) and (b) and s 33 of the Interpretation Act 1987.

Ground 6: The primary judge erred in the construction and application of Water Management Act 2000 Chapter 2, Parts 1 to 3 sections 5, 7, 9, 16, 18 and 20, Divisions 8 to 11 and Part 4 section 50.

Ground 7: The primary judge erred in the construction and application of Water Management Act 2000 Chapter 7 Part 1 sections 335 and 336.

Ground 8: The primary judge erred in the construction and application of Water Management Act 2000 Chapter 9 sections 392 and 393.

Ground 9: The primary judge erred in the construction and application of Water Management Act 2000 schedules 10 and 11.

Ground 10: The primary judge erred in refusing to grant relief by way of judicial review and in particular injunctive relief and mandamus.

Ground 11: The primary judge erred in not adopting or applying the solutions to the water management issues of inundation and damage on and to the Appellant’s farming operation on Yanco Creek caused by the exercise by the Respondents of the State’s water rights by flooding and other use, as proposed by Mr Jim Purcell.

Ground 11A: The primary judge erred in holding that the Appellants’ failure to construct a sill or regulator on the unnamed watercourse into Lake Paddock excused the Respondents’ duties provided for by Water Management Act 200[0] sections 5, 7, 9, 20 and 50 and/or warranted refusal of relief.

Ground 11B: The primary judge erred in not finding or incorrectly finding facts identified as necessary to the Court’s exercise of jurisdiction under the Class 4 proceedings.

Ground 11C: The primary judge erred in holding that the Appellant’s claims were time-barred under Water Management Act 200[0] section 47 or Rule 59.10(2) and/or should be refused on grounds of delay in commencing action.

Ground 11D: The learned acting judge erred in holding that there is no material differential when it comes to the environmental protection concerns expressed by the Applicants and/or with respect to obligations applying to decision-makers under the Water Management Act whether the water source concerned is within a regulated or unregulated system.

Ground 12: The Appellant has been denied the possibility of a successful outcome occasioned by a substantial wrong or miscarriage within the meaning of Uniform Civil Procedure Rules rule 51.53(1).

23. Some of those grounds failed to comply with the obligation in UCPR r 51.18(1)(e) to state “briefly, but specifically, the grounds relied upon in support of the appeal”. Grounds that merely record an unidentified error of “construction and application”, such as Grounds 6, 7, 8 and 9, are deficient. A ground of appeal should specify what the error is said to be. In a judgment as long as that from which this appeal is brought, it is also desirable for the ground to identify where the error is said to have been made. Further, Ground 11B was not elucidated by a statement of the findings which were impugned, the facts which the appellants asked this Court to find, and the evidentiary references which bore upon those facts; cf UCPR r 51.36(2). This is significant given the length of the trial and the fact that most of the record is not reproduced in the appeal books.

24. Further, the grounds do not mention, and the written submissions only obliquely mentioned, an issue which was arguably implicit in Grounds 9 and 11D but which loomed large in oral submissions. The appellants advanced a complex submission concerning the status of the licences and approvals granted under the Water Act 1912 and the Water Management Act 2000. In its current form, an access licence known as WAL 33313 is held by Randren and includes a “share component of 1000 units”, which (speaking very generally) translates to a qualified entitlement to divert up to 1000 megalitres of water annually onto Lake Paddock. The current licence and approval derive from a licence granted in 1986 pursuant to the Water Act 1912 (NSW) authorising water to be taken and certain works to be constructed and maintained in Lake Paddock. The licences and approvals were affected by the changing legislative regime, including transitional provisions, and an agreement compromising separate litigation between the parties in 2012.

25. The point may be summarised as follows. The conditions attaching to the current licence and approval refer to “unregulated” water. The appellants submitted that Randren should be entitled to regulated water. What followed from that conclusion was that there should be, so it was said, a consequential effect on the bulk access regime under the 2016 plan. The distinction between regulated and unregulated water turns on the two different plans (explained below) which apply to the area.

26. It may be seen that the appeal presents the following broad topics (rearranged into what I regard as a logical order).

1. Whether the primary judge erred in finding that the claims were time-barred (Ground 11C).

2. Whether the primary judge erred in determining the application on the basis that the Minister made decisions at a “high level” (Grounds 3, 5 and 6).

3. Whether the primary judge erred in failing to find the Minister had breached a duty to classify the water sources of the State (Ground 4).

4. Whether the primary judge erred in relation to regulated and unregulated water (Ground 11D).

5. Whether there was error in issuing a licence to Randren with a condition expressed in terms of unregulated water (arguably implicit in Grounds 9 and 11D).

6. Whether the primary judge erred in dismissing the application to adduce further evidence after judgment was reserved (Ground 1).

27. Brief submissions were also made in support of Grounds 7, 8 and 11A. I did not understand that the remaining grounds (Grounds 10, 11B and 12) amounted to free-standing grounds of appeal. Ground 2 was not pressed.

28. There is also a dispute whether the appeal is commenced within time, and, if it was not, whether leave should be granted to extend time.

The orders sought by the appellants

29. I shall deal with all those issues in turn. However, it is convenient immediately to address a larger issue.

30. The ordinary consequence of the judicial review of executive action is an order setting aside the decision or determination. The 2016 plan affects many users, and has done so for more than three years. Users will have used or traded entitlements to water pursuant to that plan in the past, and will have planned to conduct their affairs in the future on the basis of it. This has large consequences for the exercise of discretion, in the event that any ground for judicial review is made out, not to mention the entitlement of users whose legal interests are potentially affected by the challenge to be heard (see for example the regime ordered in Burwood Council v Ralan Burwood Pty Ltd (No 2) [2014] NSWCA 179).

31. Doubtless with this in mind, the appellants proffered the following orders (as amended during their submissions in reply) in the event their challenge was successful:

“2. ORDER pursuant to Land and Environment Court Act 1979 section 58(2)(a) reversing Order 6 of the Land and Environment Court made 15 February 2019 and Orders 1 to 3 made 16 May 2019.

3. DECLARE that the Minister’s Plan for Murrumbidgee River Regulated Water Source [the instrument] dated 1 July 2016 made by the Third Respondent [the Minister] is invalid to the extent of its application to the following persons, subject-matters or circumstances in accordance with section 32(2) Interpretation Act 1987 namely to Parts 1 to 10 and Schedule 4 excluding from the bulk access regime in relation to the Yanco System classification of the risks and harm to the dependent ecosystem of Yanco Creek known as Lake Paddock, as well as Yanco Creek as it passes through Somerset Park, the protection and restoration thereof, and WAL 33313, such that otherwise the instrument is valid with the intent that the remainder of the instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected.

4. DECLARATION that the condition of WAL 33313 and approval 40CA 412879 allocating the licence to an unregulated entitlement is void and of no effect.

5. ORDER in the nature of mandamus that the Minister perform his duty with respect to the Minister's Plan dated 1 [July] 2016 under Water Management Act 2000 sections 5, 7, 9 and 50 by the making of a further such instrument or by amendment thereof.

6. ORDER that pending the making of the further instrument referred to in paragraph 3 that the Respondents take all reasonable steps either:

a. to restore the natural drying and wetting cycles for the dependent wetland ecosystem in Lake Paddock on Somerset Park owned by the Appellants; or

b. to establish by a dedicated irrigation canal a bypath around Somerset Park for regulated flows formerly flowing down Yanco Creek from the offtake at the Murrumbidgee River.”

32. That circumscribed relief seeks to confine the plan’s invalidity to its operation on Somerset Park. The appellants suggested that this Court return to the form of the orders, permitting the parties to be heard further, in the event that any of their grounds were successful.

33. The proposed orders as reformulated are problematic. If, as the appellants contend, the Minister’s exercise of power making the 2016 plan should be set aside in its operation to Somerset Park because the Minister misconceived the law, or failed to take into account relevant considerations, or for any of the other bases advanced by way of judicial review, how could the plan survive in its application to every other water user but be invalid in its application to the appellants? And how could the Minister be compelled to take the reasonable steps mentioned in the proposed order 6, the gravamen of which was the expenditure of public funds to redirect water around Somerset Park?

34. Early on the first day, the Court raised these matters:

“BASTEN JA: You’ve got to find invalidity before you talk about remedial measures and the remedial measure will be to have the Minister reconsider the plan. I do not see how at the moment (a) you can set aside a plan which has been in operation and has been implemented over a number of years; (b) you can do so in the absence of dozens of people who will be affected if you do; and (c) what matters would then be put before the Minister if the plan were reconsidered?”

35. On the view I take, questions of relief do not arise. But as presently advised I fail to see how the large hurdles mentioned above (including those going to parties, the nature of the challenge to the exercise of power, and discretion) can be sidestepped by confining the relief in the manner proposed by the appellants.

36. If the exercise of power by the Minister when making the 2016 plan was vitiated because he misunderstood the law, or failed to take into account a mandatory relevant consideration (the damage to Lake Paddock as a dependent ecosystem), or any other of the bases upon which judicial review is sought, then the plan is not invalid merely in its application to part of the land owned by the appellants. It is invalid. That is how judicial review of a decision which applies over an area of land operates. The effect of judicially reviewable error is not to deny legal efficacy to a decision only insofar as it applies to the applicants who have brought proceedings.

37. Those principles may of course be modified by statute. For example, s 25B of the Land and Environment Court Act 1979 (NSW) provides for a court-ordered regime which, if it is complied with, may lead to the validity of a development consent which otherwise would be invalid. That section is not applicable, but Mr King placed reliance on s 32(2) of the Interpretation Act 1987 (NSW) and the relief which issued in Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513; [1997] HCA 38 where the High Court declared that certain proclamations were “invalid to the extent that [they] effected acquisitions of property from Newcrest other than on just terms”.

38. Section 32(2) of the Interpretation Act provides:

“(2) If any provision of an instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the power conferred by the Act under which it is made:

(a) it shall be a valid provision to the extent to which it is not in excess of that power, and

(b) the remainder of the instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected.”

39. Mr King submitted that:

“KING: ... s 32(2) is designed to give effect to an outcome which reflects the law, the principle of legality, I suppose, and at the same time to conserve the ongoing scheme to the fullest extent possible.

BASTEN JA: I think the principle of legality can mean almost anything you want it to mean, but I don’t think it means that.”

40. I interpolate that the so-called “principle of legality” was treated in Bropho v Western Australia (1990) 171 CLR 1 at 18; [1990] HCA 24 as being but one aspect of a more general rule of construction that clear words were required before legislation would be construed to achieve a particular result (most commonly, derogating from a “fundamental” common law rule). As Basten JA said, with the agreement of Macfarlan JA and me, in Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) (2016) 95 NSWLR 157; [2016] NSWCA 379 at [39], “[t]he label ‘principle of legality’ is apt to mislead”, even when the issue is one of the construction of statutes. The term has no application to reading down an instrument such as a plan.

40. Still further, it is to be borne in mind that the Water Management Act unequivocally alters the position at common law concerning water, by s 393:

“393 Abolition of common law riparian rights

Any right that the owner of riparian land would, but for this section, have at common law with respect to the flow of any river, estuary or lake through or past the land, or to the taking or using of water from any such river, estuary or lake, is hereby abolished.”

42. That reflects a distinctively Australian approach, quite different from what occurred in England and the United States, summarised in Broughton v Leslie [2019] NSWSC 827 at [62]-[65]. It is difficult to see how a principle of construction relating to interference with common law rights could have application to other provisions of the statute in light of s 393.

43. The respondents submitted that the plan was not severable in the way sought by the appellants. In part this was because of the nature of the plan, but it was also a consequence of the fact that there were two plans, one dealing with regulated water, the other dealing with water to which the other plan did not apply:

“DAVIDSON: ... there’s also a problem with it insofar as the 2016 plan doesn’t apply to the water access licence 33313. It’s expressly, and your Honours have seen this, in respect of the unregulated system, nor does the regulated plan apply to Somerset Park or to Lake Paddock specifically within Somerset Park insofar as that’s within the unregulated system and, to the extent that what is said is that the plan would be invalid in respect of the portion of Yanco Creek that passes through Somerset Park, that presents a significant problem of severability in circumstances where the portion of Yanco Creek that passes through Somerset Park has both upstream and downstream reaches. So this is simply not a plan that’s capable of severability in the way that’s proposed in proposed [order] 3.”

44. The appellants’ approach to severance is not supported by Newcrest. The High Court declared that proclamations which added a large area of land to Kakadu National Park in the Northern Territory were invalid to the extent that they effected acquisitions of mining tenements held by Newcrest other than on just terms. The appellants correctly observed that Newcrest was a case where a limitation on power led to a partial invalidity of an instrument. But that is not sufficient.

45. No reasons were given in Newcrest dealing with severance. Indeed, in litigation where a great deal was in contest, it appears so far as I can see that no issue was taken with the orders proposed. Certainly, the Court was not taken to any reasoning directed to the point. Decisions are only authority for what they decide, as opposed to what was held without argument. As Edelman J said in Spence v State of Queensland [2019] HCA 15; 93 ALJR 643 at [294], by reference to authority, “[Precedents] sub silentio without argument are of no moment”.

46. There may well have been good reason on the particular facts of Newcrest to take that course. The question was whether a proclamation which added lands known as “Stage 3” to Kakadu was valid in its application to certain mining tenements held by Newcrest. The area comprising Stage 3 was defined by reference to other existing mining tenements. It presumably comprised numerous individual parcels of land. Notoriously, the national park entirely surrounds the Jabiru township and the Ranger uranium mine (the history of which may be seen in Margarula v Northern Territory of Australia (2016) 257 FCR 226; [2016] FCA 1018 at [11]ff).

47. I see no reason why s 15A of the Acts Interpretation Act 1901 (Cth) (which is similar to s 32(2) of the Interpretation Act) should not have been regarded as uncontroversially applicable in the Newcrest litigation. It is one thing to limit the area of land which may well comprise numerous individual parcels of land, and which is already delineated by existing mining tenements. It is another thing entirely to so in relation to a water source. It is difficult to see how one could invalidate the plan insofar as it applies to Lake Paddock, while leaving it operative in relation to the same body of water both upstream and downstream of Lake Paddock (disregarding at this point the problem that the plan did not address the unregulated water flooding Lake Paddock).

48. On one view, the difficulties concerning relief are a complete answer to the appeal. There is much to be said for taking a streamlined approach to resolving the balance of the appellants’ submissions, especially in light of the fact that (as will be seen immediately below) they require an extension of time and their justification is deficient. Nonetheless, having heard full argument on the grounds of appeal, I shall address those grounds on their merits.

Extension of time for the appeal

49. Orders dismissing the appellants’ claims were made when reasons for judgment were delivered on 15 February 2019. Costs were disputed and were ultimately resolved, after an exchange of submissions and a hearing on 14 May 2019, and on 16 May 2019: Randren House Pty Ltd v Water Administration Ministerial Corporation (No 5) [2019] NSWLEC 63.

50. A notice of appeal was filed on 14 August 2019. It purported to be brought as of right, a notice of intention to appeal having been filed on 11 June 2019. Both of those documents identified 16 May 2019 as a “material date”. If that were the material date, then the appeal would have been brought in time.

51. In written and oral submissions in this Court, the appellants maintained that no extension of time was needed, because they brought a non-colourable appeal and it was, so it was said, only the final order as to costs which resolved the proceedings. They placed reliance upon Baulkham Hills Shire Council v O’Donnell (1988) 66 LGRA 367 (an appeal from an interlocutory injunction which was regarded as a step in the proceedings leading to a final judgment) and Carr v Finance Corp Ltd (1981) 147 CLR 246; [1981] HCA 20 (a decision on the finality of an order). The respondents maintained that an extension of time was required, and opposed any such extension being granted.

52. The right of appeal is conferred by s 58 of the Land and Environment Court Act 1979 (NSW). The time within which an appeal may be commenced is governed by Pt 51 of the Uniform Civil Procedure Rules. The rules define the “material date”, relevantly, as “the date on which the decision is pronounced or given”: r 51.2.

53. Mr King pointed to the form of the primary judge’s order, “The Applicants’ claims with respect to all the Impugned Decisions the subject of these proceedings are dismissed”, and submitted that while the claims were dismissed, the proceedings remained extant. The distinction does not assist the appellants. The right of appeal created by s 58 is from the order or decision of the Land and Environment Court with which the appellants are dissatisfied. Orders dismissing all claims, including the challenge to Decision 8, were made on 15 February 2019. The appeal necessarily sought to set aside that order insofar as it extended to Decision 8.

54. The deferral of the question of costs altered neither the timing nor the character of the order dismissing the proceedings. It was a final order. After that date, the only outstanding issue was costs. The authorities concerning interlocutory orders on which the appellants relied are not to the point.

55. The 28 day period within which to file a notice of appeal commenced on 15 February 2019. It was open to the appellants to extend that time to a total of three months, by filing and serving a notice of intention to appeal within 28 days (the rules permitting that to occur are summarised in Olsen v Mentink [2019] NSWCA 279 at [5]-[12]). But the appellants did not exercise their right of appeal until August 2019. By that time they were some five months out of time.

56. Against the possibility that they required an extension, the applicants made an application in the alternative. They read an affidavit from their solicitor, Mr John Andrew Andrews. Conspicuous by its absence from that affidavit was any explanation of why no steps were taken in the three months after 15 February 2019, save to say that “[a]t all material times the Appellants believe that they had complied with the rules regarding commencement of the Appeal in a timely manner” and that “the costs issue was important to the Appellants because they wished to focus on that and have it resolved before finally deciding whether or not to appeal”. No objection was taken to the form of the evidence.

57. Taking the most charitable view of the position, Mr John Andrew Andrews, when he stated that at all material times the appellants believed they had complied with the rules regarding commencement of the appeal, was implicitly conveying that both he and his clients wrongly thought that time had not started to run until costs orders had been made. It is to be emphasised that the onus lies upon the applicant seeking an extension of time to explain why the extension has come to be needed, and that the explanation should be provided candidly, rather than being left to implication. There is no evidence as to when, if at all, Mr John Andrew Andrews advised his clients that time did not commence until the costs orders were made. It is also less than satisfactory that no evidence was provided from the appellants themselves concerning the desire to resolve costs before determining whether to appeal; cf Skalkos v T & S Recoveries Pty Ltd (2004) 65 NSWLR 151; [2004] NSWCA 281 at [11]. There is force in the respondents’ submissions that an extension should not be granted in the absence of a satisfactory justification for the delay: Zippoz Pty Ltd v National Australia Bank Ltd [2013] NSWCA 113 at [25].

58. That said, I did not understand the respondents to point to any prejudice consequent upon the additional time required within which to appeal, and the respondents correctly accepted that it was necessary in the exercise of the discretion to extend time to examine the prospects of the appeal. It will be seen that there may be merit in one of those grounds (Ground 11C), although success on that ground would not of itself be sufficient to affect the outcome.

The Water Management Act 2000 (NSW)

59. The Water Management Act is important, complex legislation directed to a variety of ends. In order to address the grounds of this appeal, it is necessary to summarise much of Chapters 1 and 2.

The power to make a Minister’s plan

60. The reasons of the primary judge, and the parties’ submissions on appeal, were directed to the provisions which, directly or indirectly, bore upon the power conferred in Part 4 of Chapter 2 to make a “Minister’s plan”.

61. Chapter 2 is titled “Water management planning”. The only provision in Part 4 of Chapter 2 is s 50, which was in 2016 in the following terms (this section and the legislation reproduced below are in the form taken in July 2016):

“50 Minister’s plan

(1) The Minister may, by order published on the NSW legislation website, make a plan (a Minister’s plan):

(a) for any part of the State that is not within a water management area, or

(b) for any water management area or water source, or part of a water management area or water source, for which a management plan is not in force, or

(c) for any water management area or water source, or part of a water management area or water source, for which a management plan is in force, but only so as to deal with matters not dealt with by the management plan.

(1A) A Minister’s plan may be made for more than one water management area or water source or for parts of more than one water management area or water source.

(2) A Minister’s plan must in general terms deal with any matters that a management plan is required to deal with, and may also deal with any other matters that a management plan is authorised to deal with, other than matters that are already dealt with by a management plan.

(2A) Part 3 (except sections 15 and 36–41) applies to a Minister’s plan. However, the Minister:

(a) may adopt any of the provisions of sections 36–41 in a particular case, and

(b) may dispense with a particular requirement of Part 3 in the case of a Minister’s plan referred to in subsection (1A).

(3) Before making a Minister’s plan, the Minister must obtain the concurrence of the Minister for Climate Change and the Environment to the making of the plan.

(4) Except to the extent to which this Act otherwise provides, a Minister’s plan has the same effect as a management plan.

(5) The Minister may decide whether to make a Minister’s plan or a management plan in respect of any matter (whether or not any draft management plan has been submitted to the Minister).”

62. “Water source” was defined in the Dictionary to mean:

“the whole or any part of:

(a) one or more rivers, lakes or estuaries, or

(b) one or more places where water occurs on or below the surface of the ground (including overland flow water flowing over or lying there for the time being),

and includes the coastal waters of the State.”

63. It will be seen that the power conferred by s 50 was qualified in part by reference to many of the provisions of Part 3, which dealt with management plans, and as to part by the diluted obligation in s 50(2) to deal “in general terms” with matters that a management plan was required to deal with. The power extended to authorising a plan which dealt with any other matter which may have been dealt with in a management plan. Subject to the statute, a Minister’s plan had the same effect as a management plan. In that qualified way, most of the provisions of Part 3 were applicable to s 50.

Chapter 1 of the Act - objects

64. Chapter 1 comprised ss 1-4A and contained an objects provision in s 3:

“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.”

Chapter 2 of the Act

65. Parts 1 and 2 of Chapter 2 were relatively short. Part 1 (ss 5-10) was titled “General” and Part 2 (ss 11-14) was titled “Management committees”. Sections 5, 6, 7 and 8 were prominent in the parties’ submissions.

66. Section 5 was as follows:

“5 Water management principles

(1) The principles set out in this section are the water management principles of this Act.

(2) Generally:

(a) water sources, floodplains and dependent ecosystems (including groundwater and wetlands) should be protected and restored and, where possible, land should not be degraded, and

(b) habitats, animals and plants that benefit from water or are potentially affected by managed activities should be protected and (in the case of habitats) restored, and

(c) the water quality of all water sources should be protected and, wherever possible, enhanced, and

(d) the cumulative impacts of water management licences and approvals and other activities on water sources and their dependent ecosystems, should be considered and minimised, and

(e) geographical and other features of Aboriginal significance should be protected, and

(f) geographical and other features of major cultural, heritage or spiritual significance should be protected, and

(g) the social and economic benefits to the community should be maximised, and

(h) the principles of adaptive management should be applied, which should be responsive to monitoring and improvements in understanding of ecological water requirements.

(3) In relation to water sharing:

(a) sharing of water from a water source must protect the water source and its dependent ecosystems, and

(b) sharing of water from a water source must protect basic landholder rights, and

(c) sharing or extraction of water under any other right must not prejudice the principles set out in paragraphs (a) and (b).

(4) In relation to water use:

(a) water use should avoid or minimise land degradation, including soil erosion, compaction, geomorphic instability, contamination, acidity, waterlogging, decline of native vegetation or, where appropriate, salinity and, where possible, land should be rehabilitated, and

(b) water use should be consistent with the maintenance of productivity of land in the long term and should maximise the social and economic benefits to the community, and

(c) the impacts of water use on other water users should be avoided or minimised.

(5) In relation to drainage management:

(a) drainage activities should avoid or minimise land degradation, including soil erosion, compaction, geomorphic instability, contamination, acidity, waterlogging, decline of native vegetation or, where appropriate, salinity and, where possible, land should be rehabilitated, and

(b) the impacts of drainage activities on other water users should be avoided or minimised.

(6) In relation to floodplain management:

(a) floodplain management must avoid or minimise land degradation, including soil erosion, compaction, geomorphic instability, contamination, acidity, waterlogging, decline of native vegetation or, where appropriate, salinity and, where possible, land must be rehabilitated, and

(b) the impacts of flood works on other water users should be avoided or minimised, and

(c) the existing and future risk to human life and property arising from occupation of floodplains must be minimised.

(7) In relation to controlled activities:

(a) the carrying out of controlled activities must avoid or minimise land degradation, including soil erosion, compaction, geomorphic instability, contamination, acidity, waterlogging, decline of native vegetation or, where appropriate, salinity and, where possible, land must be rehabilitated, and

(b) the impacts of the carrying out of controlled activities on other water users must be avoided or minimised.

(8) In relation to aquifer interference activities:

(a) the carrying out of aquifer interference activities must avoid or minimise land degradation, including soil erosion, compaction, geomorphic instability, contamination, acidity, waterlogging, decline of native vegetation or, where appropriate, salinity and, where possible, land must be rehabilitated, and

(b) the impacts of the carrying out of aquifer interference activities on other water users must be avoided or minimised.”

67. It will be seen that the water management principles were expressed in language which fell short of mandated rules. Thus s 5(2) commenced with the qualifying adverb “generally”, and each of the eight principles were expressed as aims which “should” be achieved. The same pattern of objectives expressed in less than mandatory language may be seen in subsections (3)-(5).

68. It may also readily be seen that some of the principles point in different directions. For example, while on the one hand “the cumulative impacts of water management licences and approvals and other activities on water sources and their dependent ecosystems, should be considered and minimised” (s 5(2)(d)), on the other hand “the social and economic benefits to the community should be maximised” (s 5(2)(g)).

67. The water management principles are thus aptly defined as “principles”, rather than rules. This reflects the fact that principles will inform the exercise of the discretionary powers conferred by the Act (including the powers to make plans) which in turn may confer rights and impose obligations on users. The distinction is familiar in regulation, where there is a large body of literature on point: see for example E Lees, Interpreting Environmental Offences: The Need for Certainty (Bloomsbury, London, 2015), ch 3 “Legal Certainty”. An influential Australian contribution is J Braithwaite, “Rules and Principles: A Theory of Legal Certainty” (2002) 27 Aust J Leg Phil 47, contending and illustrating with examples that in moderately complex areas, more abstractly worded principles (or standards) will contribute to greater certainty than mere reliance upon prescriptive rules. This is consistent with Allsop CJ’s observation: “[N]o sophisticated legal system, or society, seeks intellectual refuge in the proposition that rules alone are the guardians of the security of certainty”: Paciocco v Australia and New Zealand Banking Group Ltd (2015) 236 FCR 199; [2015] FCAFC 50 at [266].

68. For present purposes, it will be important to bear in mind that much of the language in the principles was not expressed to be mandatory, in the sense of being crisply stated rules which could either be obeyed or disobeyed. This directly bears upon the legal consequences of some of the appellants’ submissions, which were directed to identifying a “breach” of a “duty” in either the water management principles per se, or else in other sections of the statute, which are now addressed.

69. Sections 6, 7 and 8 provided as follows:

“6 State Water Management Outcomes Plan

(1) The Governor may, by order published in the Gazette, establish a State Water Management Outcomes Plan for the development, conservation, management and control of the State’s water resources in furtherance of the objects of this Act.

(2) The objects of a State Water Management Outcomes Plan are as follows:

(a) to set the over-arching policy context, targets and strategic outcomes for the management of the State’s water sources, having regard to:

(i) relevant environmental, social and economic considerations, and

(ii) the results of any relevant monitoring programs,

(b) to promote the water management principles established by this Act,

(c) to give effect to any State government policy statement in relation to salinity strategies.

(3) The State Water Management Outcomes Plan must be consistent with:

(a) government obligations arising under any inter-governmental agreement to which the government is a party, such as the Murray-Darling Basin Agreement referred to in the Murray-Darling Basin Act 1992, and

(b) government obligations arising in connection with any international agreement to which the government of the Commonwealth is a party, and

(c) State government policy, including State government policy in relation to the environmental objectives for water quality and river flow.

(4) For the purposes of this section, State government policy includes such matters as are declared by the regulations to be State government policy.

(5) The regulations may make provision for or with respect to the public consultation procedures to be complied with in relation to the establishment or amendment of a State Water Management Outcomes Plan.

(6) A State Water Management Outcomes Plan has effect for the period of 5 years commencing on the date on which it is published in the Gazette.

7 Classification of water sources

(1) The Minister may, by order published in the Gazette, classify water sources for the purposes of this Act.

(2) Such an order may only be made with the concurrence of the Minister for Climate Change and the Environment.

(3) Water sources are to be classified as follows:

(a) as to the extent to which they are at risk (that is, the extent to which harm to the water source or its dependent ecosystems is likely to occur),

(b) as to the extent to which they are subject to stress (that is, the extent to which harm to the water source or its dependent ecosystems has occurred or is occurring),

(c) as to the extent of their conservation value (that is, the extent to which their intrinsic value merits protection from risk and stress).

(4) It is the intention of Parliament that, within 12 months after the date of assent to this Act:

(a) the water sources of the State be classified in accordance with this section, and

(b) bulk access regimes be established for such of those water sources as are classified high risk, high stress or high conservation value.

(5) A bulk access regime referred to in subsection (4) (b) is to be established by means of a Minister’s plan made, in the case of a water source that is within a water management area for which a management committee has been established, in consultation with that committee.

(6) A bulk access regime referred to in subsection (4) (b) has effect for 10 years from the date on which it is established, but may be varied under section 45 as if it had been established by a management plan, in which case section 87 applies accordingly.

(7) The regulations may prescribe rules in accordance with which water sources are to be classified for the purposes of this Act.

8 Environmental water

(1) For the purposes of this Act, environmental water comprises the following:

(a) water that is committed by management plans for fundamental ecosystem health or other specified environmental purposes, either generally or at specified times or in specified circumstances, and that cannot to the extent committed be taken or used for any other purpose (planned environmental water),

(b) water (licensed environmental water) that is:

(i) committed by an adaptive environmental water condition under section 8B, 8C, 8D or 63B, or

(ii) taken or permitted to be taken under a licence of an environmental subcategory, or

(iii) taken or permitted to be taken under a licence of a class prescribed by the regulations for the purposes of this paragraph.

(1A) A management plan is to commit water as planned environmental water in at least 2 of the following ways (whether by 2 separate ways or a combination of 2 ways):

(a) by reference to the commitment of the physical presence of water in the water source,

(b) by reference to the long-term average annual commitment of water as planned environmental water,

(c) by reference to the water that is not committed after the commitments to basic landholder rights and for sharing and extraction under any other rights have been met.

(2) A management plan must contain provisions for the identification, establishment and maintenance of planned environmental water (environmental water rules). The environmental water rules relating to a water source do not need to specify that a minimum quantity of water is required to be present in the water source at all times.

(3) Environmental water rules are to be established for all of the water sources in the State as soon as practicable after the commencement of this section.

(4) (Repealed)”

72. Those provisions are central to Grounds 3, 4, 5 and 6 of the appeal.

73. It will be seen that ss 6(1) and 7(1) empowered the Governor and the Minister respectively, by order published in the Gazette, to establish a State Water Management Outcomes Plan and to classify water sources across the State. The former had as one of its objects the promotion of the water management principles articulated in s 5.

74. There was no express obligation to make a State Water Management Outcomes Plan pursuant to s 6 at all. (In fact a State Water Management Outcomes Plan was made on 18 December 2002, and was in evidence.) In contrast, s 7(4) rather unusually stated an “intention of Parliament” that the water sources of the state be classified, and bulk access regimes be established for water sources classified as high risk, high stress or high conservation value, within 12 months after assent is given to the Act.

75. The parties were at issue as to the nature of the duty, if any, upon the Minister to classify the State’s water sources pursuant to s 7. This in turn gave rise to a subsidiary issue as to whether this should have been pleaded at trial and the extent to which it was in issue before the primary judge.

76. Section 8A-8F may be passed over. Division 3 of Part 1 comprised ss 9 and 10, of which the appellants attached importance to s 9:

“9 Act to be administered in accordance with water management principles and State Water Management Outcomes Plan

(1) It is the duty of all persons exercising functions under this Act:

(a) to take all reasonable steps to do so in accordance with, and so as to promote, the water management principles of this Act, and

(b) as between the principles for water sharing set out in section 5 (3), to give priority to those principles in the order in which they are set out in that subsection.

(2) It is the duty of all persons involved in the administration of this Act to exercise their functions under this Act in a manner that gives effect to the State Water Management Outcomes Plan.”

77. The parties were divided as to the effect of s 9, which imposed a “priority” between the water management principles and, unlike the sections preceding it, refered in terms to a “duty”. It will be necessary to return to this below.

Part 3 of the Act

78. Part 3 comprised ss 15-49A, which dealt with management plans. Like s 8 mentioned above, those provisions indirectly informed the power to make a Minister’s plan conferred by s 50 in Part 4, and some were at the forefront of the appellants’ submissions.

79. Section 15 conferred power upon the Minister to direct a management committee to prepare a draft management plan, and if that did not occur, s 15(3) authorised the Minister to make a Minister’s plan in respect of the matter. Section 16 required the management plan to be consistent with, relevantly, the State Water Management Outcomes Plan. Section 17 provided as follows:

“17 Provisions applicable to all management plans

A management plan may, in respect of a water management area or water source to which it applies, contain the following kinds of provisions:

(a) provisions with respect to the preservation and enhancement of the quality of water,

(b) provisions with respect to the kinds of monitoring and reporting requirements that should be imposed as conditions of approvals,

(c) provisions with respect to the conditions to which access licences and approvals are to be subject (mandatory conditions),

(d) provisions indicating the circumstances in which, the matters in respect of which and the extent to which the management plan may be amended by the Minister during the period for which it is in force,

(e) provisions with respect to such other matters as may be authorised by the regulations.”

80. Thereafter Divisions 2, 3, 4, 5, 6 and 7 dealt respectively with water sharing, water use, drainage management, floodplain management, controlled activities and aquifer interference activities and environmental protection, identifying matters which may or must be within a management plan. In particular, s 20 provided as follows:

“20 Core provisions

(1) The water sharing provisions of a management plan for a water management area or water source must deal with the following matters:

(a) the establishment of environmental water rules for the area or water source,

(b) the identification of requirements for water within the area, or from the water source, to satisfy basic landholder rights,

(c) the identification of requirements for water for extraction under access licences,

(d) the establishment of access licence dealing rules for the area or water source,

(e) the establishment of a bulk access regime for the extraction of water under access licences, having regard to the rules referred to in paragraphs (a) and (d) and the requirements referred to in paragraphs (b) and (c).

(2) The bulk access regime referred to in subsection (1) (e):

(a) must recognise and be consistent with any limits to the availability of water that are set (whether by the relevant management plan or otherwise) in relation to the water sources to which the regime relates, and

(b) must establish rules according to which access licences are to be granted and managed and available water determinations to be made, and

(c) must recognise the effect of climatic variability on the availability of water, and

(d) may establish rules with respect to the priorities according to which water allocations are to be adjusted as a consequence of any reduction in the availability of water, and

(e) may contain provisions with respect to the conditions that must (as mandatory conditions) be imposed on access licences under section 66 (1), including conditions providing for the variation, from time to time, of the share and extraction components of access licences, and

(f) must be consistent with the water management principles.

(3) The rules referred to in subsection (2) (d) must comply with the priorities established under section 58.

(4) The access licence dealing rules established under subsection (1) (d):

(a) must comply with the access licence dealing principles, and

(b) must not deal with any matter for which the access licence dealing principles may make provision under section 71Z (2), and

(c) subject to paragraph (b) and the access licence dealing principles, may regulate or prohibit any dealing under Division 4 of Part 2 of Chapter 3.”

81. Division 8 dealt with the procedures for making management plans. Section 35(1) dealt with the format of a plan:

“35   Format of management plan

(1) A management plan must include the following components:

(a) a vision statement,

(b) objectives consistent with the vision statement,

(c) strategies for reaching those objectives,

(d) performance indicators to measure the success of those strategies.”

82. Sections 36-40 dealt with the process by which a management plan was made, and s 41 empowered the Minister to make a plan by order published on the NSW legislation website. The plan could be amended in accordance with s 42 and could last for some 10 years pursuant to s 43.

83. Section 47, in Division 11 (Miscellaneous) was as follows:

“47 Validity of management plans and exercise of plan-making functions

(1) The validity of a management plan may not be challenged, reviewed, quashed or called into question before any court in any proceedings, other than before the Land and Environment Court in proceedings commenced within the judicial review period.

(2) The judicial review period in respect of a management plan is:

(a) the period of 3 months after the date the plan was published on the NSW legislation website, except as provided by paragraph (b), or

(b) in relation to a provision of the plan that was inserted by an amendment of the plan (other than an amendment under section 45 (1) (c)), the period of 3 months after the date that the amendment was published on the NSW legislation website.

A judicial review period does not arise as a result of the extension of the duration of a management plan.

(3) The judicial review period cannot be extended by the Land and Environment Court or any other court, despite any other Act or law.

(4) Without limiting subsection (1), the exercise by a designated person of any plan-making function may not be:

(a) challenged, reviewed, quashed or called into question before any court in any proceedings, or

(b) restrained, removed or otherwise affected by any proceedings,

other than before the Land and Environment Court in proceedings commenced within the judicial review period.

(5) The provisions of or made under this Act and the rules of natural justice (procedural fairness), so far as they apply to the exercise of any plan-making function, do not place on a designated person any obligation enforceable in a court (other than in the Land and Environment Court in proceedings commenced within the judicial review period).

(6) Accordingly, no court (other than the Land and Environment Court in proceedings commenced within the judicial review period) has jurisdiction or power to consider any question involving compliance or non-compliance, by a designated person, with those provisions or with those rules so far as they apply to the exercise of any plan-making function.

(7) This section is not to be construed as applying the rules of natural justice to the exercise of plan-making functions for the purposes of proceedings instituted within the judicial review period.

(8) In this section:

court includes any court of law or administrative review body.

designated person means the Minister, a management committee, the Secretary or any person or body assisting or otherwise associated with any of them.

exercise of functions includes the purported exercise of functions and the non-exercise or improper exercise of functions.

judicial review period—see subsection (2).

management plan includes purported management plan.

plan-making function means:

(a) a function under this Act relating to the making of a management plan (including relating to the amendment, replacement or repeal of a management plan or the extension of the duration of a management plan), or

(b) a function under section 46 of this Act relating to the statement of the purpose for which any provision of a management plan has been made.

proceedings includes:

(a) proceedings for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, and

(b) without limiting paragraph (a), proceedings in the exercise of the inherent jurisdiction of the Supreme Court or the jurisdiction conferred by section 23 of the Supreme Court Act 1970.”

84. Sections 48 and 49 imposed obligations upon the Minister and public authorities when a plan had been made:

“48 Effect of management plans on exercise of Minister’s functions

When exercising functions under this Act, the Minister must take all reasonable steps to give effect to the provisions of any management plan and, in particular, to ensure that any environmental water rules established by the plan are observed.

49 Consideration of management plans by public authorities

(1) When exercising its functions, a public authority must have regard to the provisions of any management plan to the extent to which they apply to the public authority.

(2) For the purposes of this section, a management plan may be expressed so as to apply:

(a) to a specified public authority, to a specified class of public authorities or to public authorities generally, and

(b) to a specified function, to a specified class of functions or to functions generally.

(3) This section neither restricts a public authority’s statutory discretions nor authorises a public authority to do anything inconsistent with its statutory or other legal obligations.”

Minister’s plans on the Murrumbidgee Regulated and Unregulated Water Sources

85. There were no management plans in evidence. There were three Minister’s plans:

1. the Water Sharing Plan for the Murrumbidgee Regulated River Water Source 2003 (“2003 plan”),

2. the Water Sharing Plan for the Murrumbidgee Regulated River Water Source 2016 (“2016 plan”), and

3. the Water Sharing Plan for the Murrumbidgee Unregulated and Alluvial Water Sources 2012 (“2012 plan”).

86. At first instance, but not on appeal, review was sought of “Decision 4” and “Decision 5”, both of which concerned the 2012 plan. Those decisions were the making of that plan, and the inclusion of Lake Paddock within that plan as a “wetland” within a specified geographic area. To anticipate what follows, upon the making of the 2012 plan, the licence issued under the Water Act 1912 was converted into an approval and a water allocation licence under the Water Management Act by reason of cl 3 of Schedule 10 of that Act.

87. The 2016 plan succeeded the 2003 plan. The latter expired on the earlier of 1 July 2016 and the commencement of a replacement management plan (following an extension made by the Minister on 19 May 2015). The latter applied to the entirety of the water source to which the former applied, which was defined in cl 4 of the 2003 plan thus:

175. The Minister submitted that:

1. the Proclamation had the effect of making Parts 2 and 3 of Chapter 3 of the Water Management Act applicable to Randren’s licence on the “appointed day”, namely, 4 October 2012;

2. on 4 October 2012, Randren’s licence which had issued in later September 2012 was a licence under the Water Act which entitled Randren “to take a specified quantity of water” within the meaning of cl 3(1)(a), and

3. the result was that from 4 October 2012, Randren’s licence was taken to have been replaced by an access licence and an approval under the Water Management Act, but in each case, the new access licence and approval were “subject to such of the conditions of the [previous licence] as are applicable” to the access licence and approval respectively.

177. That was reflected in the documents which thereafter issued. As it was put in the respondents’ oral submissions:

“So the effect of the conversion was that, given that the Water Management Act applied now and that there was a difference between water access licences and approval, there was the approval that has the number 40CA412879, and your Honours see a statement of that reflecting the date of issue, being 4 October 2012 at p 670 of the blue book. That was printed in 2016 but there’s no suggestion that there was an alteration in the relevant time period. It’s difficult to read but in the left-hand column “Date of Issue” is 4 October 2012 and the approval is stated to be in respect of the Murrumbidgee unregulated and alluvial water sources that you see at about point J. ... But there was then separately the water access licence and its number is 33313 and your Honours see a version of that as at 2018 on p 643, and my friend took you to that yesterday.”

178. The respondents’ submissions explaining the above result were in response to assertions by the appellants that the condition should be deleted and replaced with an entitlement to regulated water. Because the point is not without complexity and was seemingly regarded as being of significance, I have reproduced the analysis fully.

179. It must be said that this aspect of the appeal was less than satisfactorily presented. There was force in the respondents’ complaint:

“As to what my friend referred to as the licence issue, that is not, in my submission, the subject of any ground of appeal. It was raised for the first time orally yesterday.”

180. But having set out at some length the factual background to this aspect of the appeal, it is easiest to resolve it on its merits.

181. First, “Decision 3” which was challenged before the primary judge but not part of the appeal, was a raft of challenges to the issue in September 2012 of the licence with the volumetric condition. It was paragraph 9A of the Second Further Amended Points of Claim. That decision was not challenged in this Court.

182. Secondly, the effect of the transitional provisions upon that licence is as set out above, which reflects the respondents’ submissions. In reply, Mr King said this at the conclusion of his submissions in reply:

“Finally, your Honours would, of course, appreciate that there’s nothing in the submissions that have been put in relation to the operation of sch 10 in this Court, and it is in our written submissions: see orange 41K to P, 43F to M, 52H to M, 53L to K, especially at 54H, and in the reply submissions it’s 84H to W. And below the Sharkey case and the sch 10 case was put, albeit, it’s true, late in the piece after most of the pieces of the puzzle had been put in the manner that I’ve just explained to your Honour which is referred to by the learned judge.”

183. Neither in the individual passages to which Mr King directed the Court’s attention, nor anywhere else in the written submissions, is there any response to the effect of Schedule 10 upon the licence.

184. The appellants sought to rely on Minister Administering the Water Management Act 2000 v Sharkey [2017] NSWCA 319, which also concerned the conversion of a water licence. The particular question was the proper construction of the expression “the upper limit of the storage of Hume Dam” in the Murray Water Management Area Regulated River Order (Murray). I do not see how anything in that decision detracts from the analysis set out above, or otherwise assists the appellants.

185. I would reject the submission that Randren is entitled to a condition that is expressed in terms of regulated water.

The application to reopen so as to adduce further evidence (Ground 1)

186. Judgment in the Court below was reserved on 2 August 2018. By notice of motion filed on 14 September 2018, the applicants applied to reopen, so as to adduce further evidence from Mr Paul Andrews and a further (fifth) report from Mr Purcell. The report referred to a document on a government website titled “Improved Flow Management Works at the Murrumbidgee River – Yanco Creek Offtake” and expressed the view that if the works contemplated in that document took place (including constructing a new regulator and fishway across the entrance to Yanco Creek from the Murrumbidgee River), then that would address most if not all of the inundation to Lake Paddock of which the appellants complained. The document was dated March 2017, and referred to a series of steps to be taken over the ensuing 12 months, including public consultation by the Murray Darling Basin Authority in late October 2017. Mr Andrews said that he first learnt of the proposal at a meeting on 8 August 2018, and Mr Purcell said he first learnt of it when Mr Andrews brought it to his attention.

187. The respondents filed evidence in response, opposing reopening. There was a further hearing before the primary judge on 28 September 2018, who reserved on the application. In his substantive judgment, the primary judge addressed this at [80]-[97] and refused the application.

188. The primary judge exercised a discretion in refusing the application. He reproduced and applied principles collected in The Movie Network Channels Pty Ltd v Optus Vision Pty Ltd [2009] NSWSC 132, informed by s 56 of the Civil Procedure Act, and summarised by asking whether the evidence was “credible, highly probative and not previously obtainable by reasonable diligence”. It was not said that there was any error in the formulation of principle.

189. His Honour was of the view that it had not been established that the Minister was aware of the new material so as to make it probative, and was satisfied that the applicants’ witnesses should have been capable of being aware of the material, which had been publicly available more than a year earlier: at [96].

190. The appellants’ written submissions were silent on this point. Orally, they raised two issues on appeal:

“One is that it was relevant because the evidence demonstrated and confirmed the ongoing damage, the cause of the damage and the remedial measures that were available to remediate those issues. The second reason, which we say that the learned judge erred is because he principally put it on the basis that it was too late, because we should have looked it up on the internet or could have looked it up on the internet, where neither Mr Purcell nor - that is the government website in the department or for the department, when neither of them did that. We say that that was inappropriate to proceed on that basis and that that was the error.”

191. Some aspects of this ground were unsatisfactory. The affidavits whose rejection was the subject of the ground were included in the appeal books with nothing to indicate they had been rejected. There were no transcript references for the argument on 28 September 2018. Indeed, none of the written or oral submissions made in support of the application were included in the appeal books. Notwithstanding that omission, it was put from the Bar table that “it was never put in cross examination to either Mr Purcell or Mr Andrews that they were aware of the material”, such that the trial judge’s findings were not open. The respondents (whose counsel did not appear at trial) accepted that the deponents had not been cross-examined on 28 September. There is force in what emerged from the following exchange:

“BASTEN JA: We don’t know what the affidavit said, for a start. It’s a little hard for us to even assess the substance of the complaint when we--

DAVIDSON: I confess I hadn’t understood that that was a ground of appeal that was being pursued because it wasn’t dealt with in any way in the written submissions of the appellants, so I’m afraid I can’t take that further.”

192. Notwithstanding those deficiencies in the way this aspect of the appeal was developed, it may be resolved concisely.

193. There is nothing in the first aspect of this ground. The fact that a document brought into existence in the year after the impugned decision (the making of the 2016 plan) may be confirmatory of damage to (inter alia) Lake Paddock and proposed works to mitigate that damage does not make it highly probative of any matter in issue. It was at best corroborative of the claims that there was damage to Lake Paddock, and conceivably relevant to the mandatory injunction sought in the event that a breach of the Act was made out. That falls well short, in the circumstances of this litigation, of evidence which is highly probative.

194. Nor is there anything in the second basis of this ground. The test for re-opening does not turn on subjective knowledge. There was no challenge to the formulation of principle to the effect that the exercise of the discretion turned on whether the evidence had been obtainable by reasonable diligence. As was pointed out during the hearing in this Court, that is an objective test. It was amply open to the primary judge to find that those assisting the appellants ought with reasonable diligence to have learned of the public process, instituted a year before the trial commenced, to consider construction works at the entrance of Yanco Creek.

195. Indeed, the burden lay on the appellants to establish not only that they were not aware of the March 2017 document but also why it was not obtainable with reasonable diligence. So far as the materials relating to this application have been reproduced in the appeal books disclose, they did not attempt to address this.

Remaining grounds

196. Other aspects of the appeal were not advanced in any detail, and may be addressed concisely.

197. The appellants’ complaint that the primary judge had erred in the construction and application of ss 335 and 336 (Ground 7) was not advanced orally. It was not separately advanced in writing (the appellants’ written submissions referred to “Grounds 1 to 8, 10 to 12”). But in any event the availability of remedial orders is premised upon a breach, and none has been established.

198. From time to time submissions were made on the position at common law, which might be regarded as bearing upon Ground 8. The ways in which the common law, as developed in England and the United States, addressed water in rivers is of considerable interest to comparative lawyers and legal historians, as may be seen in J Getzler, “A History of Water Rights at Common Law” (Oxford University Press, 2004). However, New South Wales took a different course in the 19th century, and abrogated private rights. Section 393 is reproduced above, and in light of it I did not understand how the common law was said to affect the outcome of the appeal. The history of statutory regulation of water in New South Wales, and the resultant divestment of any common law rights, is considered in ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140; [2009] HCA 51. The passages at [71]-[73], [144], [146] and [194]-[196] in the reasons of all members of the Court confirm the absence of rights at common law.

199. There are a number of reasons why the failure to apply the engineering solutions propounded by the appellants in Ground 11 is not a valid ground of appeal, but it suffices once again to point to the absence of any breach of the Act being established.

200. The primary judge was critical (at [597]) of the appellants’ failure to comply with condition 7 of the licence in constructing a regulator on the diversion channel, describing it as a “persuasive argument” against the exercise of discretion in favour of the appellants. However, this was not dispositive of the litigation, the appellants having failed at a stage anterior to discretion. There was no notice of contention. Ground 11A accordingly does not arise.

Orders

201. For those reasons, there is no basis for granting the requisite extension of time within which to permit the appellants to appeal. The notice of appeal filed out of time should be dismissed as incompetent.

202. The only proposed ground which might enjoy any merit is Ground 11C, in respect of s 47, as to which the respondents did not seek to defend the reasoning at first instance. Otherwise the appellants have failed. Costs should follow the event.

203. I propose that leave be refused to extend the time within which to appeal, the notice of appeal dismissed as incompetent, and that the appellants pay the respondents’ costs.

204. EMMETT AJA: These proceedings are concerned with the validity of a decision made on 29 June 2016 by the third respondent, the Minister Administering the Water Management Act 2000 (NSW) (the Minister), to make a Water Sharing Plan for the Murrumbidgee Regulated River Water Source 2016 (the Plan). The decision was made pursuant to s 50 of the Water Management Act 2000 (NSW) (the Water Act). The appellant, Randren House Pty Ltd (Randren), contends that the decision to make the Plan was invalid.

205. Randren owns land known as “Somerset Park” situated on both sides of Yanco Creek in southern New South Wales. Yanco Creek is a tributary of the Murrumbidgee River. The second appellant, Mr Paul Andrew Andrews, a principal of Randren, is the occupier and manager of Somerset Park. His father, Mr Andrew Andrews, established an olive oil enterprise on parts of Somerset Park to the south of Yanco Creek. A licence permits water to be taken from the Creek to supply the olive trees. The issues in these proceedings focus on the effect that the Plan is alleged to have in relation to “Lake Paddock”, an area of some 450 hectares on the northern side of Yanco Creek. Lake Paddock is part of Somerset Park.

206. By its further amended notice of appeal filed pursuant to leave granted at the hearing, Randren raises some 15 grounds of appeal. However, it is difficult to discern from the grounds of appeal the precise complaints made by Randren. The final form of the notice of appeal fails to comply in many respects with the requirements of Uniform Civil Procedure Rules 2005 (NSW), r 51.18(1)(e) to state briefly, but specifically, the grounds relied upon in support of the appeal.

207. The first respondent is the Water Administration Ministerial Corporation (the Corporation) and the second respondent is the State of New South Wales (the State). The appeal is brought from orders made by a judge of the Land and Environment Court of New South Wales (the primary judge) on 15 February 2019. On that day, the primary judge made orders dismissing all of the claims made by Randren and Mr Andrews in the proceedings brought in the Land and Environment Court. However, costs were reserved for further argument and the question of costs was resolved by orders made by the primary judge on 16 May 2019.

208. A notice of intention to appeal was filed on 11 June 2019 and a notice of appeal was filed on 14 August 2019. If 16 May 2019 was the material date, the appeal was brought in time. However, the substantive orders from which the appeal is brought, being the orders made on 15 February 2019, were final orders disposing of all of the claims made by Randren and Mr Andrews in the Land and Environment Court. The time for filing a notice of appeal therefore began to run from that date. It follows that proceedings were commenced out of time. All respondents opposed the grant of an extension of time.

209. The only evidence relied on by the appellants in support of an extension of time consisted of an affidavit sworn by Mr John Andrews, the solicitor for the appellants, asserting, in a form that would probably have been rejected had objection been taken, that the appellants believed that, because the question of costs had not been resolved, time did not begin to run until 16 May 2019. The affidavit also asserted that the appellants wished to have the question of costs resolved before making a final decision as to whether or not to appeal from the orders made on 15 February 2019. The case for an extension of time was certainly not a strong one. On the other hand, none of the respondents pointed to any particular prejudice arising from the failure to file a notice of appeal or notice of intention to appeal in time. Accordingly, if there were any substance in any of the grounds of appeal, I would be disposed to extend the time for filing the notice of appeal.

210. A further impediment in the way of success for the appeal is to be found in the relief sought by the appellants. The normal consequence for success in judicial review of an administrative decision such as the decision of the Minister that is the subject of these proceedings is that the decision would be set aside. The impugned decision concerns the making of the Plan in 2016. The Plan affects many water users who have used or traded entitlements to water pursuant to the Plan and must be presumed to have planned and conducted their affairs on the basis of the Plan. However, no other person whose rights have been affected by the Plan was a party to the proceedings in the Land and Environment Court or in this Court.

211. In order to overcome that impediment, the appellants intimated that the relief that they sought would be limited to a declaration that the Plan was invalid to the extent of its application to the appellants in relation to Lake Paddock, such that the remainder of the Plan and its application to other persons would not be affected. However, if the exercise of the power to make a plan by the Minister was invalid, the Plan could not stand. It would be quite impractical for the Plan to be treated as valid as regards some citizens but invalid as regards other citizens. If any of the substantive grounds of appeal were to be established it would be impossible to formulate relief as proposed by the appellants.

Grounds of Appeal

212. One of the grounds relied on by Randren is that the primary judge erred in concluding that the appellants were time barred. There may be some substance in that ground. However, unless one of the other grounds of complaint made by the appellants is established, any error in that regard is of no consequence.

213. In the course of his reasons, the primary judge observed that the requirement in the Water Act, to apply water management principles in the priority order in which they appear in s 5 of the Act, did not require the Court to accept that, because one small water body and its unnamed linking channel had suffered from inundation, the relevant decision was flawed in an administrative law sense. His Honour considered that decisions under the Water Act are “made at a ‘high level’ as a matter of necessity”. His Honour considered that for the legislation to function many decisions under the Water Act had, “of necessity”, to be made at a “high level” rather than at the closer detail level contended for by the appellants. The principal submission relied on by the appellants was that the primary judge erred in determining the proceedings on the basis that the Minister made decisions at a “high level”.

214. Section 9 of the Water Act provides that “it is the duty of all persons exercising functions” under the Act:

• to take all reasonable steps to do so in accordance with and so as to promote, the water management principles of the Act; and

• as between the principles for water sharing set out in s 5, to give priority to those principles in the order in which they are set out in s 5(3).

Section 9 also provides that “it is the duty of all persons involved in the administration” of the Water Act to exercise their functions in a manner that gives effect to the State Water Management Outcomes Plan. However, s 9 does not give rise to a directly enforceable duty of the character contended for by the appellants. I agree with Leeming JA that no directly enforceable duty flows from the water management principles themselves. Rather, the provision imposes a precondition to the exercise of a power.

215. The reference by the primary judge to the making of decisions at a “high level” may not be a particularly apt use of language. However, it is clear enough that his Honour was adverting to the nature of the decision under consideration. That is to say, the decision was in the nature of a political decision in so far as it was intended to benefit the community as a whole albeit that it might be to the detriment of a significant group of individuals. To that extent, the decision is not justiciable and is not subject to judicial review in the manner in which judicial review may be directed to an administrative decision that affects only a specific individual. The ground is not established.

216. The appellants also asserted that the primary judge erred in failing to find that the Minister had breached a duty to classify the water sources of the State. Section 7(4) includes unusual wording concerning the “intention of Parliament” in relation to the classification of water sources. I agree with Leeming JA that the provision conveys an expectation that, if the relevant Ministers failed in the expectation expressed by Parliament, they would be accountable to Parliament. The provision does not give rise to any obligation enforceable by a private citizen.

217. The appellants raised arguments concerning differences between regulated and unregulated water under the Water Act. They asserted that there was error in issuing a licence to Randren with a condition expressed in terms of unregulated water. The primary judge found that whether the relevant waters are regulated or unregulated, there was no material differential when it comes to the environmental protection concerns expressed by the appellants. His Honour found that there was no material differential with respect to obligations applying to decision-makers whether the water source concerned is within a regulated or unregulated system. There was no error in that reasoning.

218. Judgment by the primary judge was reserved on 2 August 2018. By notice of motion filed on 14 September 2018, the appellants applied to reopen so as to adduce further evidence. The reopening was opposed by the respondents. After a further hearing on 28 September 2018, the primary judge refused the application. His Honour considered that the proposed additional material was publicly available and that the appellants’ witnesses should have been aware of it. No basis has been established for demonstrating that there was error on the part of the primary judge in the exercise of the discretion as to whether to permit a reopening.

219. I have had the advantage of reading in draft form the proposed reasons of Basten JA and Leeming JA for concluding that there is, ultimately, no substance in any of the other grounds pressed by the appellants. In those circumstances, I consider that the application for extension of time should be refused. It follows that the appeal should be dismissed as incompetent. The appellants should pay the respondents’ costs of the appeal.

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Endnotes

Decision last updated: 19 February 2020