Stanley v The Minister Administering the Water Management Act 2000

[2022] NSWLEC 1715

Land and Environment Court

New South Wales

Medium Neutral Citation:

Stanley v The Minister Administering the Water Management Act 2000 [2022] NSWLEC 1715

Hearing dates:

Conciliation conference on 16 March 2022; 26 April 2022; 3 May 2022; agreement filed on 16 December 2022

Date of orders:

21 December 2022

Decision date:

21 December 2022

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Water Supply Works Approval Application A027199 for the existing dam at 150 Berry Farm Road, Upper Corindi NSW and 333 Sherwood Road, Upper Corindi NSW is approved in accordance with section 95 of the Water Management Act 2000, for a period of 10 years, subject to the terms and conditions outlined in Annexure A.

Catchwords:

APPEAL – water supply work approval – Water Management Act 2000 s 368 – conciliation conference – agreement between the parties – orders

Legislation Cited:

Land and Environment Court Act 1979, s 34

Water Management Act 2000, ss 5, 52, 90, 95, 97, 368

Texts Cited:

Water Sharing Plan for the Coffs Harbour Area Unregulated and Alluvial Water Sources 2022

Category:

Principal judgment

Parties:

Alan Bruce Stanley (First Applicant)
Ingrid Schmidt (Second Applicant)
Balvinder Kaur Virk (Third Applicant)
Harpal Singh Virk (Fourth Applicant)
Harbhajan Singh Husna (Fifth Applicant)
Jaswant Kaur Husna (Sixth Applicant)
Rajan Singh Husna (Seventh Applicant)
Sarabjeet Kaur Husna (Eighth Applicant)
The Minister Administering the Water Management Act 2000 (Respondent)

Representation:

Counsel:
M Horton (Solicitor) (Applicants)
B Warry (Solicitor) (Respondent)

Solicitors:
RBHM Commercial Lawyers (Applicants)
Maddocks (Respondent)

File Number(s):

2021/356526

Publication restriction:

Nil

Judgment

1. These proceedings are brought under s 368 of the Water Management Act 2000 (WM Act) following the respondent’s refusal of a water supply work approval application A027199 (application).

2. The site is located on Lots 16 and 17 in Deposited Plan 752820 known as 150 Berry Farm Road and 333 Sherwood Road, Upper Corindi NSW (land) and has a frontage to and forms part of the bank of the Corindi River which is a part of the Corindi River Water Source (Corindi Water Source).

3. The application, made under s 90(2) of the WM Act, seeks approval to use the existing dam (Bywash Dam) on the land for stock and domestic water supply purposes. It was initially refused consent because the respondent was not satisfied that adequate arrangements were in force to ensure that no more than minimal harm would be done to the Coridini Water Source or its dependent ecosystems, because of the construction or use of the Bywash Dam.

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 16 March, 26 April, 3 May and 16 December 2022. I presided over the conciliation conference. During the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to them.

5. The decision involves the Court exercising the function under s 95(1) of the WM Act, to grant approval to the application subject to agreed conditions. Before this function can be exercised the Court must be satisfied that it has the requisite jurisdiction.

6. The parties addressed the relevant jurisdictional prerequisites in a joint written submission filed with the s34 agreement.

7. In that regard, I note the following matters:

Requirement for approval

8. Approval is generally required for both ‘construction’ and ‘use’ of a water supply work, subject to any relevant exemptions under the WM Act, including the exemption provided for in s 52 for domestic and stock rights.

9. The application is for a water supply work approval under s 90(2) of the WM Act. A water supply work is defined in the WM Act (relevantly with respect to the Bywash Dam) as a work:

1. for the purpose of taking water from a water source; or

2. for the purpose of capturing or storing water.

10. Section 90(2) provides that a water supply approval authorises its holder to construct and use a specified water supply work at a specified location.

11. The definition of ‘construct’ in the WM Act includes the installation, maintenance, repair, alteration and extension of a work.

12. The definition of ‘use’ in relation to a water supply work in the WM Act is use for a purpose in (a) or (b) of the definition of a water supply work.

13. An approval is required under the WM Act to both construct and use the Bywash Dam to take water from the Corindi Water Source (it being an in-river dam that takes and captures water by virtue of being within the Corindi River).

14. Relevantly however, s 52 of the WM Act exempts the need for a water supply work approval where:

1. a landholder is taking water from a river that their land fronts;

2. the landholder constructs and uses the water supply work for that purpose; and

3. the use of the water taken is for domestic consumption and stock watering.

15. The Bywash Dam benefits from this exemption insofar as it is a work for the purpose of taking water from a water source (paragraph (a) of the definition of water supply work in the WM Act). However, the exemption provided for in s 52 of the WM Act does not apply when a subject work is used for the purpose of storing water (paragraph (b) of the definition of water supply work in the WM Act).

16. The Bywash Dam is a large dam, which stores water. Approval is therefore required for the ongoing use of the Bywash Dam, as a water supply work that “stores” water.

Water Management Principles

17. The principles set out in s 5(2)(a) and 5(2)(b) of the WM Act apply to the application. The parties agree that the imposition of the following conditions of approval will address these concerns, and ensure that the granting of an approval to the application, will be in accordance with, and serve to promote those principles, namely:

1. a requirement to construct a diversion bund;

2. the use of an existing bypass channel and a requirement to carry out minimal works to the bypass channel; and

3. a requirement to carry out works at the existing driveway crossing where the invert crossing would be equal to the natural bed of the bypass channel,

as shown on the Design Plans prepared by Floodman Engineering dated 23 October 2022, attached as Attachment A (Proposed Works).

Water Management Plans

18. The Water Sharing Plan for the Coffs Harbour Area Unregulated and Alluvial Water Sources 2022 (WSP), in particular Rules 8 (vision), 9 (objectives) and 42 apply to the application.

19. The parties agree that the imposition of a condition requiring the Proposed Works to be undertaken will ensure that the Corindi Water Source and their dependent ecosystems are protected, healthy, enhanced and restored in compliance with Rules 8(a) and 9(a) of the WSP.

20. Section 42(d) of the WSP prohibits approval being granted for the construction of an in-river dam on third order or higher streams in certain water sources, including the Corindi Water Source. However, this prohibition does not extend to the “use” of an in-river dam and the parties are agreed that the granting of the application, will not result in the contravention of this Rule or any other Rule of the WSP and will give effect to the WSP.

Harm to the environment

21. The Bywash Dam is an existing work that has been in operation for many years and the respondent is satisfied that the applicants will undertake the Proposed Works to address the ecological concerns raised by DPI Fisheries and WaterNSW. Therefore, it is satisfied that there will be no more than minimal harm to the dependent ecosystems of the Corindi Water Source, and s 97(2) of the WM Act does not arise or operate to prevent an approval to the application being granted.

Conditions of approval

22. Section 100 of the WM Act gives the respondent, and the Court exercising the functions of the respondent under the WM Act, broad powers to impose discretionary conditions on any water management work approval that is granted as the respondent thinks fit, including conditions which relate to the protection of the environment.

23. Section 100(3) also provides that conditions relating to the protection of the environment which may be imposed on a water management work approval include conditions relating to the carrying out of new words or making of alterations to existing works.

24. The parties have agreed on the conditions of the approval.

25. I accept that the parties’ decision is one that the Court could have made in the proper exercise of its functions, and as required by s 34(3) of the LEC Act make the following orders.

26. The Court orders:

1. The appeal is upheld.

2. Water Supply Works Approval Application A027199 for the existing dam at 150 Berry Farm Road, Upper Corindi NSW and 333 Sherwood Road, Upper Corindi NSW is approved in accordance with s 95 of the Water Management Act 2000, for a period of 10 years, subject to the terms and conditions outlined in Annexure A.

……………………….

S Dixon

Senior Commissioner of the Court

Annexure A (159322, pdf)

Attachment A (335087, pdf)

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Decision last updated: 21 December 2022