Rowe v Lindner - [2006] SASC 176

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
ROWE v LINDNER & ORS
[2006] SASC 176
Judgment of The Full Court
(The Honourable Justice Sulan, The Honourable Justice Anderson and The Honourable Justice Layton)
15 June 2006
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - MATTERS FOR CONSIDERATION OF CONSENT AUTHORITY - CONSIDERATION OF PARTICULAR PLANNING MATTERS - ENVIRONMENTAL MATTERS
Appeal against a judgment of the Environment, Resources and Development Court – applicant received provisional development plan consent from the council to build a feedlot on his property – the decision was reversed by the Environment, Resources and Development Court – whether the Environment, Resources and Development Court had sufficient regard to the statutory regimes and powers which address issues relevant to the Development Plan – whether the Environment, Resources and Development Court considered the objectives of the Development Plan as a whole – whether there was enough evidence before the Environment, Resources and Development Court to support the finding that water use is environmentally unsustainable – whether the precautionary principle is applicable when assessing a development application under the Development Act – appeal allowed, remitted to the Environment, Resources and Development Court for further hearing and determination.
Development Act 1993 s 3, s 32, s 33(1)(a), s 34(1)(a); Natural Resources Management Act 2004 s 7, s 7(1), s 7(1)(c), s 7(2), s 7(3), s 9(5), s 74, s 75(3)(a), s 75(3)(f), s 123(7)(a), s 123(7)(b), s 123(12)(c), s 124(1), s 124(2), s 124(3)(a), s 124(3)(b)(ii)(A), s 125, s 193(3), s 193(9)(a), s 193(9)(b), s 194, s 195, Ch 9 Pt 1, Ch 9 Pt 2, referred to.
Lindner & Whetstone v Regional Council of Goyder & Ors [2005] SAERDC 115; Tuna Boat Owners Association of SA Inc v Development Assessment Commission & Anor (2000) 77 SASR 369, considered.

ROWE v LINDNER & ORS
[2006] SASC 176
Full Court: Sulan, Anderson & Layton JJ

SULAN J: This is an appeal from a judgment of the Environment, Resources & Development Court (“the ERD Court”).
Mr Rowe, the appellant, applied for provisional development plan consent under the Development Act 1993 to establish a feedlot on the Princess Royal Station (“the Station”) which is located near Burra in South Australia. The proposed feedlot would enable the appellant to operate an integrated farming process, the aim of which is to add value to the beef, cattle and sheep farming practices at the Station.
On 15 March 2005, the Regional Council of Goyder (“the Council”) granted provisional development plan consent to the application, subject to certain conditions. Since the land, that is the subject of the feedlot proposal, is in the General Farming Zone, a feedlot is an acceptable land use so long as it does not have an unreasonable adverse impact upon other land users in the area. Mr Lindner and Mr Whetsone, the first and second respondents each opposed the application on the basis that the feedlot would use an excessive quantity of water to the prejudice of adjoining and other landowners, who are dependent upon obtaining water from the Burra Creek Catchment.
The respondents appealed to the ERD Court. The ERD Court considered whether the taking of groundwater in the quantities needed for the feedlot would have a deleterious effect upon ground and surface water flows. The Court concluded that the proposal threatened the long-term reliability of existing water resources and, therefore, failed to comply with Objective 40 of the Goyder (Regional Council) Development Plan (“the Development Plan”). The Court determined that a development which potentially aggravates existing risks to the continuance of a natural water supply to the environment and to the existing users should not be approved.
The Court reversed the Council’s decision and refused the development application.
Background Facts
The appellant is a director of Ilira Pty Limited (“Ilira”) and Sihero Pty Limited (“Sihero”) which trade as Princess Royal Station.
The Station is a farming and grazing property. It is one of the largest properties in the Burra area, being approximately 8,900 hectares. The proposed feedlot would occupy an area of 6.43 hectares of the Station. The proposed feedlot would be 900 metres from Burra Creek and more than 200 metres from the nearest watercourse.
The Burra Creek Catchment is a narrow valley from Hallet in the north to the watershed of the Alleluia Hills in the South. The creek flows for some 50km from Burra in a narrow channel and then spreads out on the flood plain for the next 35km. Eventually, if there is enough water, it enters the River Murray. The Station is an important area for catchment and recharge for this system.
The Station runs about 800 cows which are used to breed calves. Also, there are about 3000-4000 lambs kept on the property each year. The lambs are not bred at the Station, but are purchased from various sources. The calves are kept at the station until they weigh about 300-400 kilograms and then transferred to a feedlot in Clare, which is leased by the Station. The calves are eventually sold to an abattoir.
It is commercially beneficial for the Station to run an integrated farm that is as self-reliant as possible, integrating its breeding and feedlot process, rather than selling the calves to a third party. The Station can make larger profits if they feed their own calves for sale to the abattoir. The price difference between a weaner and a fully-grown cow can increase by about $150 - $300 per head once it is put through the feedlot.
Ilira and Sihero are also joint owners of a property called Mackerode which is located approximately 10 kilometres north of Burra and is also a cattle and farming property. Mackerode was purchased early in 2005 and is approximately 3,500 acres. Approximately 2,200 acres of the property is utilised as farming land and 1,300 as grazing land. It is proposed that the cattle grazed at Mackerode could also be transferred to the feedlot at the Station, ‘fed up’ and then sold.
In early 2004 the appellant commissioned the design of the proposed feedlot. A development application was submitted to the Council. The initial application proposed that a feedlot be built near the existing transit yard. This application was opposed by a number of local residents, including the respondents, on the grounds that it would use excessive amounts of water to the detriment of other users of water resources. The Environment Protection Authority (“the EPA”) inspected the site and considered that it was too close to the Burra Creek and proposed an alternate feedlot site. The appellant then issued a fresh application proposing the site that the EPA had recommended. The EPA attended the Station and approved the application under certain specified conditions.
The proposed feedlot will cost approximately $600,000 to $750,000 to build. It will have the capacity to accommodate 1,500 head of cattle or 1,350 cattle together with 1,000 lambs at any one time.
Submissions to ERD Court
Appellant
The appellant submitted to the ERD Court that the reason that the feedlot site was chosen was because the EPA approved of the location and because it had met all of the requirements of the Guideline for the Establishment and Operation of Cattle Feedlots in South Australia (“the Guidelines”).
The appellant argued that the Station had complied with a number of the conditions placed on the development by the EPA. The Station had agreed to remove some of the existing cattle yards that were currently near the Burra Creek and had constructed contour banks above the existing cattle yards.
The appellant engaged two ‘water diviners’ to find a location for the bore. One location was tested and shown to run at 96,000 gallons per day. The feedlot would use 10,000 gallons of water per day. The appellant submitted that all of the necessary tests confirmed that there is more than adequate water for the feedlot. The appellant disputed the contention of the respondent, Mr Whetstone, whose property is more than 8 km from the proposed feedlot, that his bore had dried up. The appellant gave evidence that he was unaware of any problems with groundwater flows in the area.
The appellant highlighted the significant economic benefits to the local area if the feedlock is built. It was submitted that if the feedlot application was rejected, three or four jobs would be lost. If it was approved, not only will these jobs be preserved but additional jobs will be created for people in the local area. The economic benefit to the township was highlighted.
Mr Howe, an expert hydrogeologist, gave evidence for the appellant. Mr Howe reported:
… the proposed groundwater abstractions required to support the feedlot development represent a small component of the overall available sub-catchment water balance, and should be sustainable into the future.
In summary the appellant submitted to the ERD Court that every precaution had been taken to ensure that there will be no detrimental impact on the local environment and Burra Creek. The appellant highlighted the economic and employment benefits to the area.
Respondents
The respondents submitted that the quantity of water in the Burra Creek would be reduced and severe damage to the environment of the area could result if the proposal was approved.
Dr Muller, an expert natural resources manager, gave evidence that the Upper Burra Creek Subcatchment is presently in a state of unsustainable water use. She referred to the significant existing use of the water resource in the Upper Burra Creek Subcatchment, the high risk to the area that was dependent on the water resource and the significant gaps in the available data. Dr Muller’s opinion was that the available information at the time showed that the use of the water resource is likely to be unsustainable. If the proposal were to go ahead, it would likely have a further detrimental effect upon the water resource. Dr Muller concluded:
In my opinion, the cattle and lamb feedlot proposed … has a high potential to cause irreversible damage to the surface and ground water resources of the Burra Creek catchment and in so doing has the potential to irreversibly damage the social, economic and ecological assets dependent upon the Burra Creek catchment water and compromise existing and future catchment water uses. Of primary concern is the total water use proposed for the site which is likely to exceed the sustainable yield for this ephemeral catchment and will compound impacts of existing water use and limit future use.
Dr Muller explained that there was insufficient data to do a thorough assessment of water use sustainability and therefore the precautionary principle should be applied. The precautionary principle is that where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
Judgment of the ERD Court
Approach to Assessment
Section 32 of the Development Act specifies that any development must be approved under the Act. Section 33 (1) (a) of the Development Act provides:
(1)A development is an approved development if, and only if, a relevant authority has assessed the development against, and granted a consent in respect of, each of the following matters (insofar as they are relevant to the particular development):
(a) the provisions of the appropriate Development Plan (provisional development plan consent);
For the purpose of the application, the Council is the relevant authority.[1]
[1] Section 34(1)(a), Development Act 1993.
The objects of the Development Act are set out in s 3 and include:
s 3The object of this Act is to provide for the proper, orderly and efficient planning and development in the State and, for that purpose –
…
(c) to provide for the creation of Development Plans –
(i)to enhance the proper conservation, use, development and management of land and buildings; and
(ii)to facilitate sustainable development and the protection of the environment; and
(iia)to encourage the management of the natural and constructed environment in an ecologically sustainable manner; and
(iii)to advance the social and economic interests and goals of the community; and
…
The ERD Court had regard to the Development Plan of the Council. The objective which the ERD Court specifically focused upon was Objective 40 which is:
Protection of all water resources from pollution or excessive usage which would threaten the long-term reliability of the existing resources.
The Court considered other objectives in the Development Plan including economic and social imperatives. The Court found these objectives short-term in nature and therefore attributed them significantly less weight than Objective 40 which it considered has long-term implications.
The Court referred to the Natural Resources Management Act 2004 (“the Act”). The Act provides a legislative scheme to monitor and regulate water use. The Court observed that:
The existence of a system for allocating water under the Natural Resources Management Act does not prevent consideration of the potential environmental effect of the taking of water for a proposed development when provisional development plan consent is applied for.[2]
[2] Lindner & Whetstone v Regional Council of Goyder & Ors [2005] SAERDC 115, [13].
The ERD Court accepted that the Department of Water Land and Biodiversity Conservation and the River Murray Catchment Water Management Board were undertaking studies to determine the sustainable yield of the Burra Creek Catchment. The Court noted that this kind of information may be used by the Minister when considering whether or not to recommend that water resources be ‘prescribed’ under the Act.[3] Other than acknowledging this research and its potential use by the Minister, the Court had no further regard to it.
[3] Natural Resources Management Act 2004, s 125.
Assessment of water use sustainability
In assessing whether Objective 40 would be complied with, the ERD Court noted that it did not have any water level recording data from observation wells in the area, this being the accepted means of determining long-term trends in groundwater levels. The Court relied upon anecdotal evidence of local property owners in the Burra Creek area concerning groundwater levels and surface flows.
Mr Phillips, whose property is located downstream from the Station, gave evidence that he observed Burra Creek ceasing to flow past his property during winter over recent years. He gave evidence that in 1986, the well yielded 600 gallons per hour and in 2005 he was forced to lower the pump 15 feet as the well had ceased to flow. His evidence was not challenged.
Mr Strachan, whose property is located in the Lower Burra Creek Subcatchment approximately 400 km downstream of the Station, gave evidence that one well on this property began to show a declining yield in the early 1980’s and is no longer used. A second well has been declining in yield over the last six years. A third well is operating satisfactorily.
The ERD Court also considered the evidence that the cattleyard bore on the Station has shown an increase in depth to standing water from 8.2 metres when drilled, to 10.4 metres in April 2005. The Court took the view that this was likely to reflect a lowering of the groundwater level of 2.2 metres at this site.
Mr Brandle, a scientific officer with the Department for Environment and Heritage, gave evidence that, from a survey he conducted in 1991, a significant amount of decline in the river red gum vegetation in the creek floodplain had occurred. He considered that this was a result of increased salinity levels. He was unsure of the cause of the salinity level increase.
The Court noted that the original opinion of Mr Howe, an expert who gave evidence for the respondent, was based on inadequate information. Mr Howe’s water balance calculations were based on the period from 1974 to 1992, this period containing 8 of the largest 10 annual runoff events. The additional data from the period of 1993-2004, produced by Dr Muller, displayed the effects of the recent drought on the flows in Burra Creek. Mr Howe gave evidence that this additional data did not alter his opinion.
The Court preferred the expert evidence of Dr Muller to that of Dr Howe concerning the state of the catchment and the likely impact of the proposed development. The Court found that Dr Muller’s evidence was that available information at this time shows the use of water resources cannot be sustained.
The Court was concerned about the reliance that the Council placed on the EPA to obtain information about water use in the region. The Court observed that water use is not an area that the EPA addresses. Instead, these issues are dealt with by the Department of Water Land and Biodiversity Conservation and the Minister for Environment and Conservation, neither of whom the Council consulted.
The Court concluded that the proposal failed to comply with Objective 40. The Court reversed the Council’s decision. The Court concluded:
This proposal failure to comply with Objective 40 is fatal to it. A development which potentially aggravates existing risks to the continuance of a natural water supply to the environment and to the existing users should not be approved.[4]
The Appeal
Appellant’s submissions
[4] Lindner & Whetstone v Regional Council of Goyder & Ors [2005] SAERDC 115,6.
Natural Resource Management Act
The appellant submitted that the ERD Court failed to consider or give sufficient weight to the Act. Further, the Court failed to consider or give adequate weight to the provisions of the Development Plan as a whole. Counsel submitted that the evidence before the ERD Court did not justify the finding of the Court that water use in the Burra Creek Catchment is unsustainable.
Counsel argued that water management is comprehensively dealt with under the Act. Pursuant to the Act, the Minister has powers to prescribe or restrict water use if the Minister considers it necessary. It was submitted that the Burra Creek Catchment is not a prescribed watercourse under the Act and the appellant is therefore entitled to take water without restriction. It was only because the building of a feedlot requires development approval that the issue of water sustainability came before the ERD Court.
Counsel submitted that Objective 40 should be viewed in light of the comprehensive nature of the Act and the powers it confers on the Minister. The appellant submitted that the weight to be attributed to objectives in the Development Plan must be considered in conjunction with relevant statutory regimes which overlap with objectives in the Development Plan. The appellant submitted that the Court was in error in deciding that failure to comply with Objective 40 was fatal to the application.
The appellant submitted that the ERD Court had failed to have adequate regard to the legislative scheme for managing water. Counsel argued that the Court had placed too great an emphasis upon the effect of the feedlot on groundwater levels and surface flows.
Objectives in Development Plan
Counsel further submitted that the ERD Court failed to consider the objectives of the Development Plan as a whole. He argued that the Court erred in giving little or no relevance to the economic and social objectives referred to in the Development Plan. Accepting that the Court was entitled to take long and short-term benefits into account when considering different objectives, the appellant submitted that the Court inappropriately limited itself exclusively to considering Objective 40.

The appellant submitted that the Development Plan is arranged in a manner that identifies general objectives which apply throughout the council area. The appellant submitted that some of the objectives in the Development Plan are public objectives which refer to the council’s vision for the region as a whole and are not specifically directed towards the control of private development. It was submitted that Objective 40 is an example of this. The Development Plan also outlines principles of development control. Counsel submitted that the principles of development control provide relevance and context to the objectives when assessing a private development application. Counsel submitted that the Court erred in not relating the relevant development control principles to the objectives. Counsel argued that the correct approach when assessing a private development application is to consider the Development Plan as a whole and make an assessment having regard to the relevant objectives and principles of development control.
General Farming Zone – Livestock grazing
Counsel contended that the ERD Court failed to consider the principles of development control which apply specifically to the General Farming Zone. The principle of development control that relates to livestock grazing in the General Farming Zone states:
1Development should be primarily for agricultural production and livestock grazing on large land holdings, with aquaculture, horticulture and commercial forestry activities occurring where there is suitable land capacity, drainage, aspect and availability of groundwater.
It was submitted that the structure of the Development Plan promotes the use of land for agricultural purposes. The relevant principles of development control do not address the issue of excessive water use on a long-term basis. Counsel submitted that the ERD Court erred in not having regard to the specific provisions of the plan which relate to the general farming zone and grazing livestock. Further, the appellant argued that the ERD Court should have assessed whether there was enough water available to sustain the development and should not have examined the effect of water use on the overall catchment both presently and in the future. These issues, it was argued, are comprehensively dealt with in the Act.
Water use not sustainable
It was submitted that the ERD Court erred in accepting Dr Muller’s evidence that water use in the Burra Creek Catchment is not sustainable.
In addition to the evidence of Dr Muller the Court relied on the evidence of Mr Phillips, Mr Strachan, Mr Falkenberg and Mr Brandle. The Court concluded:
When considered collectively, all of this evidence indicates that the water resources within the Burra Creek system are in a state of significant decline and the current rates of water use are not sustainable.
Counsel argued that the anecdotal evidence of these witnesses neither individually nor collectively supports the findings. The broad indicators relied on by the Court to support a finding of unsustainable water use, such as vegetation decline and trees drying, could arguably be caused by many other factors.
Counsel referred to the evidence of each witness, and submitted that the anecdotal evidence could not establish that water resources within the Burra Creek Catchment are in significant decline and that water use is unsustainable.
The respondents, Mr Lindner, Mr Whetstone and the Regional Council of Goyder, were not represented at the appeal, and made no submissions to the Court. Counsel for the fourth respondent, the EPA, advised the Court that she was instructed to make no submissions.
Relationship Between Legislative Regimes
A number of the submissions of the appellant focus on the relationship between the various legislative regimes, namely, the Natural Resource Management Act, the Development Act and the Objectives specified in the Development Plan, notably Objective 40.
It was accepted by both parties that to determine the weight to be given to Objective 40 when assessing the development application, regard must be had to the Act. The issue concerns the weight which should be given to Objective 40. Section 7 of the Act outlines the objects of the Act. Section 7 (1) (c) of the Act provides:
(1)The objects of this Act include to assist in the achievement of ecologically sustainable development in the State by establishing an integrated scheme to promote the use and management of natural resources in a manner that -
(c) provides for the protection and management of catchments and the sustainable use of land and water resources and, insofar as is reasonably practicable, seeks to enhance and restore or rehabilitate land and water resources that have been degraded;
Both subsections 7(1) and (2) of the Act provide that ecologically sustainable development seeks to promote the use, conservation, development and enhancement of natural resources in a way that will enable people and their communities to provide for their economic, social and physical well-being, while also sustaining and protecting the life-supporting capacities of natural resources and their ability to meet the reasonably foreseeable needs of future generations. Regard must be had to avoiding, remedying or mitigating any adverse effects of activities on natural resources.[5] The Act also outlines the principles that should be taken into account in connection with achieving ecologically sustainable development and refers to the precautionary principle and the long-term and short-term effects of development.[6]
[5] Natural Resource Management Act 2004, s 7 (1) (2).
[6] Natural Resource Management Act 2004, s 7 (3).
The Act imposes a general statutory duty on any person to use natural resources in a reasonable manner. Section 9 of the Act states:
(1)A person must act reasonably in relation to the management of natural resources within the State.
The appellant therefore is required to act in a reasonable manner in relation to the management of water resources. If a person does not act ‘reasonably’ there are a number of possible consequences of non-compliance.
A person who fails to comply with the Act can be required to prepare and implement an action plan.[7] The action plan must set out in detail the measures that the person proposes to take to address any breach of the general statutory duty, and to comply with the general statutory duty in the future and the period or periods within which those measures are proposed to be taken.[8] Failure to comply with a notice under this section or failure to implement an action plan in accordance with its terms would render the person guilty of an offence and liable to a penalty not exceeding $20,000.[9]
[7] Natural Resource Management Act 2004, s 9 (5).
[8] Natural Resource Management Act 2004, s 123 (7) (a) & (b).
[9] Natural Resource Management Act 2004, s 123 (12) (c).
Secondly, compliance with the statutory duty may be enforced by the issuing of a protection order.[10] Section 193 (2) (d) outlines the requirements that might be reasonably imposed in a protection order:
[10] Natural Resource Management Act 2004, Ch 9 Part 1.
(i)a requirement that the person discontinue, or not commence, a specified activity indefinitely or for a specified period or until further notice from an NRM authority or State authorised officer;
(ii)a requirement that the person not carry on a specified activity except at specified times or subject to specified conditions;
(iii)a requirement that the person take specified action in a specified way, and within a specified period or at specified times or in specified circumstances;
(iv)a requirement that the person enter into a bond in such sum and subject to such terms and conditions specified in the order, or enter into some other arrangement specified in the order (which may include payment of a sum of money into an approved account), to ensure that money is available to address the costs of any damage, or threatened damage, to specified natural resources;
(v)a requirement that the person taken action to prevent or minimise any damage to specified natural resources, or to control any specified activity;
(vi)requirement that the person comply with any specified code or standard prepared or published by a body or authority referred to in the notice;
(vii)a requirement that the person undertake specified tests or monitoring;
(viii)a requirement that the person furnish to the Minister specified results or reports;
(ix)a requirement that the person appoint or engage a person with specified qualifications to prepare a plan or report or to undertake tests or monitoring required by the order.
A person who breaches a protection order is liable to a penalty of up to $50,000.[11] In addition, if the order is not complied with, it can be enforced by a relevant authority entering upon the land.[12] An emergency protection order may also be issued if urgent action is required for the protection of a particular natural resource, including in this instance the preservation of water sustainability in the Burra Creek Catchment.[13] In addition, an order may be made by the ERD Court in respect of non-compliance.[14]
[11] Natural Resource Management Act 2004, s 193 (9) (a) & (b).
[12] Natural Resource Management Act 2004, s 194.
[13] Natural Resource Management Act 2004, s 193 (3).
[14] Natural Resource Management Act 2004, Ch 9 Part 2.
If a person is found to have caused harm to water resources, a reparation order or reparation authorisation may be issued.[15] The reparation order can require a person to take specified action within a specified period to make good any resulting damage to the natural resource or make a payment into an approved account to enable action to be taken to address any resulting damage to the natural resource.
[15] Natural Resource Management Act 2004, s 195.
The Act also requires that a State Natural Resource Management (“NRM”) Plan be prepared and maintained.[16] The State NRM Plan sets out principles and policies for achieving the objects of the Act throughout the State. The plan is specifically focused on the preservation of natural resources in the State through ecologically sustainable development. The Act also provides for the creation of Regional NRM plans which are to be prepared and maintained by the regional NRM boards. The regional plan must include information such as the natural resources within the relevant region, the state and condition of the natural resources and relevant trends and environmental, social, economic and practical considerations relating to the use, management, conservation, protection improvement and, if relevant, rehabilitation, of the natural resources within the relevant region.[17]
[16] Natural Resource Management Act 2004, s 74.
[17] Natural Resource Management Act 2004, s 75 (3) (a).
Pursuant to the Act, the regional NRM plan must also identify any policies reflected in the relevant Development Plan that should be reviewed under that Act in order to promote the objects of the Act or to improve the relationship between the policies in the Development Plan and the policies reflected in the NRM board’s plan.[18] It follows that Objective 40 would be considered in the regional NRM plan for the region that the Burra Creek Catchment falls within.
[18] Natural Resource Management Act 2004, s 75 (3) (f).
Importantly, the Act provides a system for the management and protection of water resources. Section 125 of the Act provides that the Governor may, by regulation made on the recommendation of the Minister, declare that a watercourse, lake or well is a prescribed watercourse, lake or well thereby precluding the drawing of water from any wells or bores. The Act provides that an occupier of land is entitled to take water from a well that is on his or her land[19] provided it is not ‘prescribed’ by the Minister[20] and does not detrimentally affect the enjoyment of the amenity of water in the watercourse by the adjoining occupier of land.[21]
[19] Natural Resource Management Act 2004, s 124 (1) & (2).
[20] Natural Resource Management Act 2004, s 124 (3) (a).
[21] Natural Resource Management Act 2004, s 124 (3) (b) (ii) (A).
The existence of a system for allocating water under the Act does not prevent consideration of water sustainability under the Development Act. This issue was addressed in Tuna Boat Owners Association of SA Inc v Development Assessment commission & Anor[22] where Doyle CJ said:
It cannot be said that the question of ecological sustainability was not a matter properly the concern of a planning authority under the DP, and is properly the exclusive concern of another statutory authority. The most that can be said is that ecological sustainability is properly the concern of each of them.[23]
[22] (2000) 77 SASR 369.
[23] (2000) 77 SASR 369, 377.
Water resources and its sustainability are properly the concern of both the planning authority and statutory authority. However, the weight to be given to Objective 40 on a development application is to be considered in light of the legislative regime of the Act. The ERD Court should have assessed the objectives of the Development Plan having regard to the scope and applicability of the relevant legislative regime. In Tuna Boat Owners Association Doyle CJ referred to the relationship between the objectives of the Development Plan and the relevant statutory powers. He said:
In assessing the proposed development against the DP, the ERD Court was required to consider whether the proposed development was ecologically sustainable. It was entitled to have regard to powers available to other authorities under legislation, and it was appropriate for it to do so.[24]
[24] (2000) 77 SASR 369, 377.
The ERD Court did not adopt this approach. Whilst, the Court concluded that it was not prohibited from having regard to water sustainability in light of the legislative regime, it did not however give adequate consideration to the legislative regime and its scope in regulating water use and hence its interrelationship with the Development Act. The Act comprehensively covers the issue of water sustainability, providing mechanisms to carefully monitor water sustainability, avenues for enforcing compliance with ecologically sustainable standards, penalties if compliance is not carried out and the prescription of land if water use is unsustainable.
The Court did not give adequate consideration to the extent to which the Act and its operation comprehensively deals with the protection of natural resources, including water and that it provides a detailed system of monitoring and controlling activities. It is necessary that each of these factors are adequately considered when assessing an application. The ERD Court failed to have sufficient regard to the Act when assessing the importance and weight to be given to Objective 40 and was in error in concluding that the failure to comply with Objective 40 was fatal to the application.
Assessment of Evidence
The Court relied on the evidence of Dr Muller in making its findings. In regards to her evidence, the Court said:
… Her evidence was clear. Dr Muller believes that the Upper Burra Creek subcatchment is presently in a state of unsustainable water use.
…
Dr Muller’s opinion was that the approval for the feedlot should be refused since the available information at this time shows the use of water resource cannot be sustained.
…
After considering the approaches of the two experts, the Court prefers the opinions of Dr Muller in relation to the state of the catchment and the likely impact of the proposed development. We agree with her that sufficient evidence is available to establish that there is real and substantial danger that the present use of water from the system is not environmentally sustainable, and that the extraction of a further 25 megalitres per annum for the feedlot from a single well will aggravate that situation.[25]
[25] Lindner & Whetstone v Regional Council of Goyder & Ors [2005] SAERDC 115, 5.
The Court erred in finding that Dr Muller’s evidence was that water use in the Burra Creek Catchment was unsustainable. Dr Muller’s evidence did not support such a conclusion; her evidence was that there was insufficient data to make a determination about water sustainability and that a precautionary approach should therefore be adopted by the Court. In examination-in-chief Dr Muller said:
… from the data we’ve got we can’t determine whether the aquifers in the Burra catchment are a series of small buckets of water if you like with very steep gradients or whether they are large buckets of water with very shallow gradients, and that’s pretty critical for determining water balance and sustainable yield, you need to know the characteristics of the aquifer and we don’t have that data to hand.[26]
…
there is not the data available to be able to assess whether or not the proposed additional water use would be sustainable or not.[27]
[26] Transcript of Proceedings, Lindner & Whetstone v Regional Council of Goyder & Ors (Environment, Resources & Development Court, Judge Cole and Commissioner Botting, 19 October 2005) 118.
[27] Transcript of Proceedings, Lindner & Whetstone v Regional Council of Goyder & Ors (Environment, Resources & Development Court, Judge Cole and Commissioner Botting, 19 October 2005) 112.
When cross-examined, Dr Muller said:
All I can say is there is evidence that the catchment is showing signs of water related stress. That to me means that you need to do further investigations to determine whether current water use is sustainable.[28]
…
I refer back to the criteria for the precautionary principle which I think Burra meets all four criteria. One is that there’s limited knowledge, there’s significant knowledge gaps in all parts of the sustainability equation. We have significant existing use, high risks and a variable resource, so they’re the four criteria for invoking the precautionary principle, and so therefore I would invoke the precautionary principle in that instance.[29]
…
… I found there’s limited knowledge to be able to do the sustainability yield.[30]
[28] Transcript of Proceedings, Lindner & Whetstone v Regional Council of Goyder & Ors (Environment, Resources & Development Court, Judge Cole & Commissioner Botting, 19 October 2005) 128.
[29] Transcript of Proceedings, Lindner & Whetstone v Regional Council of Goyder & Ors (Environment, Resources & Development Court, Judge Cole & Commissioner Botting, 19 October 2005) 138-139.
[30] Transcript of Proceedings, Lindner & Whetstone v Regional Council of Goyder & Ors (Environment, Resources & Development Court, Judge Cole & Commissioner Botting, 19 October 2005) 139.
In addition, the indicators relied on by the Court to established unsustainable water use such as red gums dying on the plains and permanent pools drying up in both the upper and lower parts of the catchment could be the result of a number of factors. Dr Muller was asked in re examination whether, in the absence of hard data, it is an appropriate technique to turn to indicators to gauge whether a system is under stress. She said:
Yes, provided that you have enough information to determine what the trends are associated with that indicator, and why. You still need to know the rationale behind why that indicator is indicating something. It can be a robust technique if you understand a catchment well and if you understand the relationships between activities and impacts that gave rise to that indicator.[31]
[31] Transcript of Proceedings, Lindner & Whetstone v Regional Council of Goyder & Ors (Environment, Resources & Development Court, Judge Cole & Commissioner Botting, 19 October 2005) 149-150.
For indicators to be an appropriate technique to gauge whether a system is under stress, the rationale behind those indicators and other factors such as climate change, climate variability and water extraction must also be considered. The ERD Court erred in making a conclusive determination about water sustainability without considering these factors. There was insufficient evidence for the Court to arrive at such a conclusion.

The anecdotal evidence alone does not support a finding that water resources within the Burra Creek system are in a state of significant decline and that current rates of water use are not sustainable. As Dr Muller explained:
…we need to remember that this is a very data-poor catchment; this is pretty-well all anecdotal evidence, there’s been very little quality data collected in this catchment.[32]
[32] Transcript of Proceedings, Lindner & Whetstone v Regional Council of Goyder & Ors (Environment, Resources & Development Court, Judge Cole & Commissioner Botting, 19 October 2005) 116.
The evidence before the Court indicated that water sustainability may well be an issue. However, there was insufficient evidence to make a conclusive determination. The Act provides a scheme to ensure that water resources are carefully and regularly monitored and appropriate steps are taken to preserve water resources. The Burra area is currently pending investigations by the Minister to determine whether a moratorium is required. The Court did not have before it evidence of the results of such investigation. There was insufficient evidence before the Court for it to determine the issue of water sustainability in the relevant catchment area.
Precautionary Principle
In making her findings, Dr Muller refers to the precautionary principle. As previously indicated, Dr Muller gave evidence that there is insufficient data to make a judgment as to whether water use in the region is sustainable and that an approach which errs on the side of caution should be adopted.
Although it was correctly identified by the ERD Court that the precautionary principle referred to in the Act in its strict terms is only relevant to processes under that Act,[33] it does not follow that the concept underlying the precautionary principle is inapplicable when determining an application under the Development Act: Tuna Boat Owners Association of SA Inc v Development Assessment Commission.[34]
[33] Including its predecessor the Water Resources Act1997 and the State Water Plan 2000 which contained the specific criteria used by Dr Muller. See Transcript of Proceedings, Lindner & Whetstone v Regional Council of Goyder & Ors (Environment, Resources & Development Court, Judge Cole & Commissioner Botting, 19 October 2005) 121, 125, 138-9, 150.
[34] (2000) 77 SASR 369, 373-375.
When the objectives of the Development Plan and the relevant statutory regimes are assessed, it may be that a lack of information and alternate statutory oversight justifies the application of the precautionary approach. Insufficient data may lead an authority to the conclusion that there is insufficient evidence to confirm or deny that water use in the region is sustainable and, therefore, to protect water sustainability the application should be rejected. In this instance, however, the Act provides a comprehensive regime to investigate, monitor and control water sustainability. The ERD Court erred in that it relied upon the evidence of Dr Muller and gave undue weight to the precautionary principle, without giving sufficient regard to the other factors to which I have referred.
Development Plan Objectives and Principles
The ERD Court also failed to have sufficient regard to other relevant objectives in the Development Plan besides Objective 40. The Court said:
It is necessary, when assessing a proposal such as this, to take a medium to long term view. Mr Rowe emphasised the social and economic benefits of his proposal – the employment opportunities it would create, and the efficiencies for the industry. These are relevant matters, but those benefits may be short lived indeed if Objective 40 is not complied with.[35]
[35] Lindner & Whetstone v Regional Council of Goyder & Ors [2005] SAERDC 115, 3.
This is the only reference the Court had to objectives other than Objective 40. It is not sufficient for the Court to identify objectives as short-term and, therefore, dismiss their relevance. The Court is required to consider the objectives and principles of development control in the Development Plan as a whole, in light of statutory regimes that may overlap with these objectives and principles. The Court may attribute different weight to objectives according to long and short-term benefits. However, in this case the Court did not give any weight to the economic and social benefits that might flow from the proposal.
Further, the Principles of Development Control for areas adjacent to the Burra township set out in the General Farming Zone in the Development Plan are also matters which require appropriate consideration to the extent of their relevance.
Conclusion
When determining whether to approve a development application the authority assessing the application must weigh up and consider a number of factors. These factors include the Objectives and Principles of the Development Plan as a whole, relevant legislative regimes and the evidence before it. In this instance, the ERD Court did not have sufficient regard to the Act did not consider the Objectives and Principles of the Development Plan as a whole, and it made a finding that water use is unsustainable on insufficient evidence.
I would allow the appeal and remit the appeal from the decision of the Council to the ERD Court for further hearing and determination, in accordance with these reasons.
ANDERSON J I agree with the reasons of Sulan J and I agree that the appeal should be allowed and the matter remitted to the ERD Court for further hearing and determination in accordance with his Honour’s reasons.
LAYTON J: Having had the opportunity of reading the reasons of Sulan J, I agree that the appeal should be allowed for the reasons he has given. I agree the matter should be remitted to the ERD Court for further hearing and determination in accordance with the reasons of Sulan J.