Sinclair v Chief Executive, Department of Natural Resources and Water

In the case of Sinclair v Chief Executive, Department of Natural Resources and Water, the appellants, who are seeking a water licence, challenged the decision of the Chief Executive under section 22 of the Water Resources (Moreton) Plan 2007. The key issue in the case was the interpretation of the phrase "average volume of water available to be taken in the Plan area" within section 22 of the Plan. The appellants argued that this phrase referred to the average volume of water from a specific period as calculated by a particular computer program, while the Chief Executive maintained that it referred to water legally made available through some statutory process. The court examined the language of the Plan and the relevant sections of the Water Act, concluding that section 22(1) applied to the appellants' application for a water licence. The court also found that section 22(2)(b) did not exempt the appellants' licence application from the effect of section 22(1), as the term "water permit" referred to a different type of water permit than the one sought by the appellants.

The court further analysed the meaning of "available water" within section 22 and concluded that it referred to water that had been legally made available through some statutory process, rather than observable water. The court also considered the effect of the Water (Transitional) Amendment Regulation (No. 1) 2002, which provided for the allocation of water from certain dams and rivers. The court observed that the allocation of water made in 2002 was still in effect, as it had not been replaced by a water licence, water entitlement, interim resource operations licence, resource operations licence, or distribution operations licence. The court found that the company allocation was subject to certain conditions, including a maximum volume of water that could be taken from the North Pine Dam in a year.

In conclusion, the court held that section 22(1) of the Water Resources (Moreton) Plan 2007 precluded the Chief Executive from dealing with the application by the appellants for a water licence. The court found that the appellants' submission that the phrase "average volume of water available to be taken in the Plan area" meant the annual average taken from the simulation period as calculated by the IQQM computer program for all allocated and unallocated water within the plan area was incorrect. The court held that the phrase referred to water that had been legally made available through some statutory process, and that the 345,000 ML/a allocated to the company continued today. The court also found that the company allocation was subject to conditions imposed by section 4 of the Water (Transitional) Amendment Regulation (No. 1) 2002, including a maximum volume of water that could be taken from the North Pine Dam in a year.