Simes v Minister for Environment and Conservation No. Scciv-03-1106

In the case of Simes v Minister for Environment and Conservation, the parties involved were Simes, the appellant, and the Minister for Environment and Conservation, the respondent. The dispute centred around the appellant's entitlement to a water allocation from a bore on his land, located in the Upper Willunga Catchment Area, following the declaration of the wells in the area as prescribed wells under the Water Resources Act. The Full Court of the Supreme Court of South Australia heard the appeal from the Environment, Resources and Development Court's decision.

The primary legal issue the court had to decide was whether the appellant was entitled to a water allocation under section 36 of the Water Resources Act. The appellant argued that he was an "existing user" within the meaning of section 36 and therefore entitled to a water allocation calculated in accordance with that section. The court had to examine the meaning of "existing user" and whether the appellant's failure to apply for a licence within six months of the well becoming a prescribed well precluded him from being considered an existing user.

The court concluded that the appellant was not an existing user within the meaning of section 36 at the time of his application for a licence and water allocation, as he had not applied within the specified time frame. The court rejected the appellant's argument that different functions of the term "existing user" within section 36 required varying interpretations of the time limit. The court held that the language of the Act allowed for only one construction, and the appellant's failure to apply within the specified time frame meant he was not an existing user and had no right to a water allocation calculated in accordance with section 36.

The court also dismissed the appellant's reliance on section 33 of the Environment, Resources and Development Court Act 1993, which allows the court to excuse a failure to comply with a requirement of any Act or other law. The court held that section 33 could not be used to change the substantive effect of the Water Resources Act, as it would require the Minister to consider the appellant's application under section 36 where the Act plainly required it to be considered under section 35. The appeal to the Supreme Court was dismissed, and the Environment, Resources and Development Court's decision was upheld.