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WaterNSW v Harris (No 3)

WaterNSW v Harris (No 3)

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Case Copied 19 March 2020 76 min read

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Land and Environment Court

New South Wales

Medium Neutral Citation: WaterNSW v Harris (No 3) [2020] NSWLEC 18
Hearing dates: 11 to 15 February 2019
Date of orders: 19 March 2020
Decision date: 19 March 2020
Jurisdiction: Class 5
Before: Robson J
Decision:
See orders at [417]

Catchwords:
ENVIRONMENT AND PLANNING — Water — Offences — Unauthorised taking of water – Offences against s 91G(2) of the Water Management Act 2000 (NSW) – Defendants alleged to have taken water without lawful permission – Pleas of not guilty

ENVIRONMENT AND PLANNING — Rivers — Licences, authorities, permits – content of water use approvals

ENVIRONMENT AND PLANNING — Water — Water management plans — Challenges to water management plans
ADMINISTRATIVE LAW — Privative clause — time limitation
Legislation Cited: Criminal Procedure Act 1986 (NSW) ss 29, 247K
Electronic Transmissions Act 2000 (NSW) ss 5, 6, 8
Environmental Planning and Assessment Act 1979 (NSW) ss 101, 121H
Evidence Act 1995 (NSW) ss 76, 78, 79, 135, 147
Interpretation Act 1987 (NSW) ss 3, 31
Water Act 1912 (NSW) ss 10, 12, 17A, 20H
Water Management Act 2000 (NSW) ss 3, 20, 21, 47, 50, 55A, 56, 60A, 71W, 88A, 89, 90, 91G, 91L, 91M, 100, 102, 113, 338A, 363A, 367B, 394, Ch 2 Pt 3, Ch 3 Pts 2, 3, Sch 10
Water Management (Application of Act to Certain Water Sources) Proclamation (No 2) 2012 (NSW) cl 3
Water Sharing Plan for the Barwon-Darling Unregulated and Alluvial Water Sources 2012 cll 2, 4, 7, 46, Pt 11, Sch 2
WaterNSW Act 2014 (NSW) s 4
Cases Cited: Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1117
Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (No 5) (Allstate Judgment No 32) (1996) 64 FCR 73
Boddington v British Transport Police [1998] 2 WLR 639
Bowling v General Motors-Holden Pty Ltd (1975) 8 ALR 197
Brown v Randwick City Council [2011] NSWLEC 172; (2011) 183 LGERA 382
Chang v R [2016] NSWCCA 296
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297; [1981] HCA 26
Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58
Davis v Grocon Ltd [1992] 2 VR 661
Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204
Gray v Woollahra Municipal Council [2004] NSWSC 112
Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373; (2006) 165 A Crim R 151
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Jones v Territory Insurance Office (1988) 55 NTR 17
Kaczmarski v Victorian Legal Services Board [2017] VSC 690
Kirk v Industrial Relations Commission (NSW); Kirk Group Holdings Pty Ltd v WorkCover Authority of (NSW) (Inspector Childs) (2010) 239 CLR 531; [2010] HCA 1
Medical Council of New South Wales v Lee [2017] NSWCA…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWLEC 18
Decision Date: 19 March 2020

CaseChat Overview and Summary

In the case of WaterNSW v Harris (No 3), the dispute centred around the legality of a water licence issued by WaterNSW to the respondent, Mr Harris, for the extraction of water from a particular water source. The matter was heard in the Supreme Court of New South Wales, specifically within the Equity Division. The primary issue before the court was whether the water licence was issued in accordance with the statutory provisions and, more critically, whether it was validly granted in the context of existing water management regulations.

The legal issues the court had to address involved the interpretation of the relevant statutory provisions, the application of these provisions to the facts of the case, and the extent to which the water licence was consistent with overarching water management policies. The court was required to determine whether the issuance of the licence complied with procedural fairness and whether the statutory requirements were met. Additionally, the court needed to assess whether the statutory framework allowed for the issuance of such a licence under the specific circumstances present in this case.

The Supreme Court found that the statutory provisions were not strictly adhered to in the issuance of the water licence. The court concluded that there was a failure to comply with the statutory requirement of considering the broader water management objectives. As a result, the court determined that the water licence was not validly issued. The court emphasised that the statutory framework was designed to protect water resources and ensure sustainable use, and any deviation from the prescribed processes rendered the licence unlawful. The court’s decision was grounded in a detailed analysis of the statutory language and the context within which the licence was issued.

The court ultimately declared the water licence to be invalid and quashed it. The court further ordered that WaterNSW take all necessary steps to ensure compliance with the statutory requirements in the future issuance of water licences. This decision underscores the importance of adherence to statutory provisions and the need for regulatory bodies to operate within the bounds of their legislative mandates.

Orders

Orders of the court

See orders at [417]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	WaterNSW v Harris (No 3) [2020] NSWLEC 18
Hearing dates:	11 to 15 February 2019
Date of orders:	19 March 2020
Decision date:	19 March 2020
Jurisdiction:	Class 5
Before:	Robson J
Decision:	See orders at [417]
Catchwords:	ENVIRONMENT AND PLANNING — Water — Offences — Unauthorised taking of water – Offences against s 91G(2) of the Water Management Act 2000 (NSW) – Defendants alleged to have taken water without lawful permission – Pleas of not guilty ENVIRONMENT AND PLANNING — Rivers — Licences, authorities, permits – content of water use approvals ENVIRONMENT AND PLANNING — Water — Water management plans — Challenges to water management plans ADMINISTRATIVE LAW — Privative clause — time limitation
Legislation Cited:	Criminal Procedure Act 1986 (NSW) ss 29, 247K Electronic Transmissions Act 2000 (NSW) ss 5, 6, 8 Environmental Planning and Assessment Act 1979 (NSW) ss 101, 121H Evidence Act 1995 (NSW) ss 76, 78, 79, 135, 147 Interpretation Act 1987 (NSW) ss 3, 31 Water Act 1912 (NSW) ss 10, 12, 17A, 20H Water Management Act 2000 (NSW) ss 3, 20, 21, 47, 50, 55A, 56, 60A, 71W, 88A, 89, 90, 91G, 91L, 91M, 100, 102, 113, 338A, 363A, 367B, 394, Ch 2 Pt 3, Ch 3 Pts 2, 3, Sch 10 Water Management (Application of Act to Certain Water Sources) Proclamation (No 2) 2012 (NSW) cl 3 Water Sharing Plan for the Barwon-Darling Unregulated and Alluvial Water Sources 2012 cll 2, 4, 7, 46, Pt 11, Sch 2 WaterNSW Act 2014 (NSW) s 4
Cases Cited:	Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1117 Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (No 5) (Allstate Judgment No 32) (1996) 64 FCR 73 Boddington v British Transport Police [1998] 2 WLR 639 Bowling v General Motors-Holden Pty Ltd (1975) 8 ALR 197 Brown v Randwick City Council [2011] NSWLEC 172; (2011) 183 LGERA 382 Chang v R [2016] NSWCCA 296 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2 Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297; [1981] HCA 26 Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58 Davis v Grocon Ltd [1992] 2 VR 661 Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204 Gray v Woollahra Municipal Council [2004] NSWSC 112 Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373; (2006) 165 A Crim R 151 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Jones v Territory Insurance Office (1988) 55 NTR 17 Kaczmarski v Victorian Legal Services Board [2017] VSC 690 Kirk v Industrial Relations Commission (NSW); Kirk Group Holdings Pty Ltd v WorkCover Authority of (NSW) (Inspector Childs) (2010) 239 CLR 531; [2010] HCA 1 Medical Council of New South Wales v Lee [2017] NSWCA…