WaterNSW v Harris (No 3)

[2020] NSWLEC 18

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 282
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Ousley v The Queen (1997) 192 CLR 69; [1997] HCA 49
Pace Farm Egg Products Pty Ltd v Newcastle City Council [2006] NSWCCA 403; (2006) 151 LGERA 260
Parkview Constructions Pty Ltd v Total Lifestyle Windows Pty Ltd [2016] NSWSC 1911
Prior v Hannaford [1970] VR 772
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
R v Walsh (2002) 131 A Crim R 299; [2002] VSCA 98
Randren House Pty Ltd v Water Administration Ministerial Corporation (No 4) [2019] NSWLEC 5
Randren House Pty Ltd v Water Administration Ministerial Corporation [2020] NSWCA 14
Selby v Pennings (1998) 102 LGERA 253
Seltsam Pty Ltd v McNeill [2006] NSWCA 158
Singh v Legal Aid New South Wales [2014] NSWIRComm 1016
Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202; (2018) 362 ALR 359
Sutherland Shire Council v Benedict Industries Pty Ltd (No 4) [2015] NSWLEC 101
Switzerland Insurance Australia Ltd v Mowie Fisheries Pty Ltd (1997) 74 FCR 205
The King v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598; [1945] HCA 53
Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158

Texts Cited:

Australian Standard 3778: Measurement of Water Flow in Open Channels Pts 2.2, 2.3, 2.4, 3.1

 

Commonwealth of Australia, (Bureau of Meteorology) National Industry Guidelines for hydrometric monitoring, Part 8: Application of Acoustic Doppler Current Profilers to Measure Discharge in Open Channels (2013) WISBF GL 100.08-2013

 

Land and Environment Court – Identity Theft Prevention and Anonymisation Policy

 

M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Thomson Reuters) at 1071

  Pearce & Geddes, Statutory Interpretation in Australia (9th ed 2019, Lexis Nexis)

Category:

Principal judgment

Parties:

In proceedings 2018/00073936
WaterNSW (Prosecutor)
Peter Harris (Defendant)

  In proceedings 2018/00073940
WaterNSW (Prosecutor)
Jane Harris (Defendant)

Representation:

Counsel:
S W Aspinall with M Maconachie (Prosecutor)
M R Elliott SC with C R Ireland (Defendants)

  Solicitors:
Norton Rose Fulbright (Prosecutor)
Horton Rhodes Lawyers (Defendants)

File Number(s):

2018/00073936; 2018/00073940

Publication restriction:

Nil

Table of contents

Introduction

Background

Approval

Entitlements under the Water Act 1912 (NSW)

Circumstances after 4 October 2012

Evidence

Legislative framework

Water Management Act 2000 (NSW)

The Proclamation

Water Sharing Plan for the Barwon-Darling Unregulated and Alluvial Water Sources 2012

Outline of respective positions

Overview

Duplicity

Elements 1 and 2

Prosecutor’s position

Defendants’ position

Consideration

Element 3

Element 4

Summary of flow rate calculation process

Objections to evidence

Summary of evidence

Issues

Conclusion on Element 4

Conclusion

Orders

Judgment

1. Peter Harris and Jane Harris (collectively, the ‘defendants’) are each charged in separate proceedings with an offence against s 91G(2) of the Water Management Act 2000 (NSW) (‘WM Act’).

2. In an amended summons filed in each proceedings on 5 July 2018, WaterNSW (‘prosecutor’) alleges that between 22 June 2016 and 27 June 2016 (‘charge period’), at the property known as Beemery Farm located at 6104 Kamilaroi Highway, Brewarrina and consisting of Lot 1 DP 751597, Lot 5 DP 1147705, Lot 2 DP 1147705 and Lot 3 DP 1147705, the defendants took water in contravention of a term or condition of an approval, issued under the WM Act, which they jointly held.

3. The prosecutor alleges that this is an offence against s 91G(2) of the WM Act because it was a term or condition of the Water Supply Works and Water Use Approval 85CA753236 (‘Approval’) that water was prohibited from being taken when the flow in the Darling River at the Bourke gauge was equal to or less than 4,894 megalitres per day (‘ML per day’).

4. Each amended summons includes the following particulars:

“Approval: Peter Harris and Jane Harris are the landholders and occupiers of Beemery Farm and the co-holders of:

•   Water Access Licence 33692 [reference 85AL753235]

(WAL 33692); and

•   Water Supply Works and Water Use Approval 85CA753236 (the Approval).

Manner of contravention: Water was taken in contravention of a term or condition of the Approval in that:

a)   It was a term or condition of the Approval that water is prohibited from being taken when the flow in the Darling River at the Bourke gauge is equal to or less than 4,894 ML/day.

b)   Approximately 3147 ML of water was taken in the 2015/2016 water reporting year by means of the water supply works nominated under the Approval and situated on the landholders’ land.

c)   In the period 22 June 2016 to 27 June 2016, water was taken at times when the flow in the Darling River at the Bourke gauge was less than 4,894 ML/day.” [Emphasis added.]

5. Each defendant has pleaded not guilty to the charges and a trial has been held. The Court earlier ordered that pursuant to s 29 of the Criminal Procedure Act 1986 (NSW) (‘Criminal Procedure Act’), each of the proceedings be heard together. Although there are separate proceedings, for convenience, I refer to the defendants collectively.

6. The hearing proceeded for five days with Mr S W Aspinall of counsel appearing with Mr M Maconachie of counsel for the prosecutor, and Mr M R Elliott of senior counsel appearing with Mr C R Ireland of counsel for the defendants.

Introduction

7. It is a necessary requirement of a judgment such as this to set out the principles of law that are to be applied. I will do so with as much brevity as is possible. The prosecutor bears the onus of proof to establish the guilt of each of the defendants. The prosecutor must establish its case beyond reasonable doubt. Those words and that phrase have their ordinary meaning. The matters the prosecutor needs to establish are the essential elements of the offence, however the prosecutor is not required to prove the truth and reliability of every disputed fact or to answer every question that might be posed concerning the evidence in the case.

Background

8. An understanding of the background facts, including the ownership and surrounding features of Beemery Farm, the legislative framework and the history of the various regulatory instruments relating to the taking and use of water thereon, provides context to consider the issues that arise particularly in relation to licence and approval matters. As the issues in relation to water flow require discrete consideration, I have separately recorded the background facts in relation to water flow measurement matters later in the judgment.

9. The factual narrative, but not the legal implications thereof, in this section is mostly undisputed. For convenience and concision I make some references to legislative provisions as they arise in the historical sequence.

10. Beemery Farm is a parcel of agricultural land in the Brewarrina Shire, located in north-western New South Wales. It is operated as a cotton farm. The property is adjacent to the Barwon River.

11. From at least the mid-1990s, Beemery Farm was owned by Clyde Agriculture Pty Ltd (‘Clyde Agriculture’). Since about July 2014, the defendants have been the landholders and occupiers of Beemery Farm pursuant to a perpetual lease and Clyde Cotton (a partnership comprising the defendants individually and a company PJ & JM Harris Pty Ltd) replaced Clyde Agriculture at Beemery Farm.

12. The Barwon-Darling River system flows through north-western New South Wales from Mungindi on the New South Wales-Queensland border to Wentworth in south-western New South Wales. The river channel includes the Barwon River, from upstream of Mungindi at the confluence of the Macintyre and Weir Rivers, to where the Barwon River meets the Culgoa River and the river channel becomes the Darling River. The Barwon-Darling River system extends downstream to the Menindee Lakes.

13. The Barwon-Darling River system is an “unregulated” river system. The term “unregulated river” applies to rivers without major storage facilities or dams and to rivers where the storage facilities do not release water downstream.

14. The general layout of Beemery Farm is as follows:

1. The property is bordered to the north by the Barwon River; and the Kamilaroi Highway runs east to west through the property;

2. Cotton growing fields are located on the southern side of the highway;

3. Three 660mm centrifugal pumps (‘Pumps’) located within Lot 1 DP 751597 extract water from the Barwon River into an irrigation channel which carries the water, by force of gravity, for approximately 2.5km to two above ground water storage reservoirs. The water from these reservoirs is directed to the irrigated portion of the property containing cotton fields.

15. The WM Act governs the issue of licences and approvals for certain water sources, including rivers in New South Wales. It is important and complex legislation directed to a variety of ends. While the salient provisions are detailed later, it is relevant to note that certain operative licensing and approval provisions of the WM Act did not commence operation until 4 October 2012 in relation to Beemery Farm.

16. Pursuant to s 3, the objects of the WM Act include to provide for the sustained and integrated management of water sources in New South Wales, to “protect, enhance and restore water sources” and “provide for the orderly, efficient and equitable sharing of water from water sources”. As considered below, the WM Act provided for the replacement of certain “entitlements” that had been created under an earlier legislative regime.

17. The WM Act provides for the issue of two classes of regulatory instrument, being a “water access licence” and an “approval”. An “approval” is defined to include, relevantly, either a “water use approval” or a “water management work approval”. A “water use approval” has the meaning set out in s 89 of the WM Act, being the conferral of a right on the holder of the approval “to use water for a particular purpose at a particular location” and a “water management work approval” is defined to relevantly include a “water supply work approval” which confers a right on the holder “to construct and use a specified water supply work at a specified location”.

18. Each charge relates to the breach of a discrete condition of an approval issued under the WM Act described in the particulars to each amended summons as a “Water Supply Works and Water Use Approval 85CA753236 (the Approval)”.

Approval

19. Many aspects of the Approval, not the least of which includes its validity, are in issue in these proceedings. Before the Court is a copy of the Approval (issued by the NSW Office of Water) applicable to the charge period headed “Statement of Approval”. The condition the subject of the charges (emphasised below) is designated “MW1916-00001” in the Approval under the heading “Take of water”.

“Approval number

85CA753236

Status

CURRENT...

Approval kind

Water Supply Works

Water Use

Water sharing plan

BARWON DARLING UNREGULATED AND ALLUVIAL WATER SOURCES

Date of effect

04/Oct/2012

Expiry date

03/Oct/2025

Approval holder(s)

Schedule 1

Water supply works

Schedule 2

Water Use

Schedule 3

Conditions

Schedule 4”

20. The Approval provided the following contact for service of documents:

“Name

Harris, Peter James

Address

Kindamindi

PO Box 1626

MOREE NSW 2400”

21. The Approval listed four schedules as follows:

“Schedule 1 – Approval Holders

...

Peter James Harris

Jane Maree Harris

Schedule 2 – Water supply works

Part A: Authorised water supply works

Subject to the conditions of this approval, in relation to each numbered work in the table, the holders of this approval are authorised to construct and use a water supply work of the type shown at the location specified:

Work 1

Specified work

660MM CENTRIFUGAL PUMP x 4

Specified location

1//751597 Whole Lot

Water Management 

zone (if applicable)

BREWARRINA TO CULGOA RIVER JUNCTION MANAGEMENT ZONE

Water source

BARWON DARLING UNREGULATED RIVER WATER SOURCE

Water sharing plan

BARWON DARLING UNREGULATED AND ALLUVIAL WATER SOURCES

Work 2

Specified work

610MM CENTRIFUGAL PUMP

Specified location

1//751597 Whole Lot

Water management

zone (if applicable)

BREWARRINA TO CULGOA RIVER JUNCTION MANAGEMENT ZONE

Water source

BARWON DARLING UNREGULATED RIVER WATER SOURCE

Water sharing plan

BARWON DARLING UNREGULATED AND ALLUVIAL WATER SOURCES

Schedule 3 – Water Use

Subject to the conditions of this approval, the holder(s) of this approval is authorised to use water for the following purpose(s) and location(s):

Purpose 1

Specified purpose

IRRIGATION

Specified location

1//751597

5//1147705

2//1147705

3//1147705

Schedule 4 – Conditions

The approval is subject to the following conditions:

Plan Conditions

Water sharing plan

Baron (sic) Darling Unregulated and Alluvial Water Sources

Take of water

MW0655-00001

Any water supply work authorised by this approval must take water in compliance with the conditions of the access licence under which water is being taken.

MW1916-00001

Water must not be taken when the flow in the Darling River at the Bourke gauge (425003) is equal to or less than 4,894 ML/day. [Emphasis added.]

Water management works

MW0491-00001

When a water supply work authorised by this approval is to be abandoned or replaced, the approval holder must contact DPI Water in writing to verify whether the work must be decommissioned.

The work is to be decommissioned, unless the approval holder receives notice from the Minister not to do so.

Within sixty (60) days of decommissioning, the approval holder must notify DPI Water in writing that the work has been decommissioned.

Monitoring and recording

MW0481-00001

A logbook must be kept and maintained at the authorised work site or on the property for each water supply work authorised by this approval, unless the work is metered and fitted with a data logger.

MW2338-00001

The completed logbook must be retained for five (5) years from the last date recorded in the logbook.

MW0484-00001

Before water is taken through the water supply work authorised by this approval, confirmation must be recorded in the logbook that cease to take conditions do not apply and water may be taken.

The method of confirming that water may be taken, such as visual inspection, internet search, must also be recorded in the logbook.

If water may be taken, the:

A. date, and

B. time of the confirmation, and

C. flow rate or water level at the reference point in the water source

must be recorded in the logbook.

MW2337-00001

The following information must be recorded in the logbook for each period of time that water is taken:

A. date, volume of water, start and end time when water was taken as well as the pump capacity per unit of time, and

B. the access licence number under which the water is taken, and

C. the approval number under which the water is taken, and

D. the volume of water taken for domestic consumption and/or stock watering.

MW0482-00001

Where a water meter is installed on a water supply work authorised by this approval, the meter reading must be recorded in the logbook before taking water. This reading must be recorded every time water is to be taken.

Reporting

MW0051-00001

Once the approval holder becomes aware of a breach of any condition on this approval, the approval holder must notify the Minister as soon as practicable. The Minister must be notified by:

A. email: [email protected];

or

B. telephone: [phone]. Any notification by telephone must also be confirmed in writing within seven (7) business days of the telephone call.

Other conditions

Use of water

DK1542-00001

The approved work must not be used for the purpose of irrigation unless the following flow conditions exist: the Barwon River flow exceeds 760 ML/day at the Culgoa River Junction (upstream) gauge and 840 ML/day at the Brewarrina gauge.

Water management works

DK1642-00001

Native vegetation may be cleared only to the minimum extent necessary for the construction and maintenance of the authorised works, that is, the minimum area of clearing to permit access for appropriate mechanical implements to maintain the works. Clearing of land for irrigation must be in accordance with the provisions of the Native Vegetation Conservation Act 1997 or the Native Vegetation Act 2003.

DK1215-00001

The holder of the approval must not construct or install works used for conveying, distributing or storing water taken by means of the approved work that obstruct the reasonable passage of floodwaters into or from a river.

Additional conditions

DK1362-00001

The approval holder must not allow any tailwater or drainage water to discharge, by any means including surface or sub-surface drains or pipes, from the approval holders property, into or onto:

- any adjoining public or crown road

- any other persons land

- any crown land

- any river, creek or watercourse

- any groundwater aquifer

- any area of native vegetation as described in the Native Vegetation Conservation Act 1997 or the Native Vegetation Act 2003.

- any wetlands of environmental significance

- any identified site of [A]boriginal significance

- any identified site of cultural significance.

Glossary

cease to take – Cease to take conditions means any condition on this approval, or on the access licence under which water is proposed to be taken, that prohibits the taking of water in a particular circumstance.

...”

22. Subject to conditions, the Approval authorises the use of water supply works (the Pumps) at Beemery Farm and the use of water taken from the water source by those works for the purpose of irrigation on the property.

23. According to the records of WaterNSW, in addition to the Approval, the defendants were co-holders of a water access licence, being Water Access Licence 33692 (‘Water Access Licence’) issued 11 September 2014. As considered below, water access licences are dealt with in Pt 2 of Ch 3 of the WM Act and approvals are dealt with in Pt 3 of Ch 3 of the WM Act. The offence provision in s 91G(2) of the WM Act falls within Pt 3 of Ch 3 of the Act and provides for an offence for contravention of any term or condition of an approval. Approvals, unlike water access licences, run with the land.

24. On 1 February 2019, the Court granted leave to the prosecutor to withdraw the summons in each of proceedings 2018/00073924 and 2018/00073947 in respect of separate charges brought against Peter Harris and Jane Harris for allegedly taking water in contravention of a condition of the Water Access Licence, an offence against s 60A of the WM Act.

Entitlements under the Water Act 1912 (NSW)

25. While the WM Act is the legislation relevant to these proceedings, in order to understand the regulatory regime and the Approval in question, and to consider a number of issues raised by the defendants, it is appropriate to consider the earlier regulatory regime which applied prior to 4 October 2012 under the Water Act 1912 (NSW) (‘1912 Act’) pursuant to which different licences and authorities were held by Clyde Agriculture, the former occupier of Beemery Farm.

26. As will be seen, the WM Act from 4 October 2012 made specific provision for the “conversion” of “entitlements” in force under the 1912 Act, and effectively provided a new licensing and approval scheme which “replaced” earlier approvals and licences issued under the 1912 Act. As noted above, the Approval the subject of the charges arises under the WM Act.

27. Pursuant to ss 10 and 12 of the 1912 Act, an occupier of land could apply for a licence to use a “work to which this Part extends” (defined to include any machinery or appliance through which water is taken from a river). Clyde Agriculture had held such a licence under the 1912 Act being licence number 85SL105059 (which was a “B Class” licence under the 1912 Act and is referred to for convenience in this judgment as the ‘1912 Licence’) issued on 24 June 2010, which was later modified by the regulatory authority (at the time, the NSW Department of Primary Industries (for convenience, unless otherwise noted, the ‘Department’) within which was the NSW Office of Water) on 20 February 2012 pursuant to s 17A(2) of the 1912 Act. This variation was expressly notified to Clyde Agriculture by post on 20 February 2012.

28. Under the 1912 Licence, the permitted “purpose” was “irrigation” and the licensed “Works” included four “660mm Centrifugal Pumps” located on the Barwon River in Lot 1 DP 751597 including the Pumps referred to at [14(3)] above. The 1912 Licence allowed, in effect, the Pumps to be used by Clyde Agriculture for irrigation on the four lots comprising Beemery Farm (noted at [2] above) subject to specific conditions relating to the operation of the Pumps noted below, one of which is similar to the condition the subject of the charges.

29. To understand some of the issues they raise, the defendants highlight a different aspect of the history which requires explanation. They point to other licences and authorities issued under the 1912 Act earlier held by Clyde Agriculture, and aspects of various conditions that were attached to those licences and authorities. They note that as at April 2000, there were three instruments held by Clyde Agriculture issued under the 1912 Act for Beemery Farm, being authority 80SA10502 (referred to by the defendants as the “2000 B Class Authority”) and two licences, 80SL27580H and 80SL27414H (referred to by the defendants as the “2000 C Class Licences”). On 15 September 2000, Clyde Agriculture was sent a notice pursuant to s 20H(2) of the 1912 Act amending conditions attached to authority 80SA010502 (the 2000 B Class Authority), which included a particular “flow” condition (referred to by the defendants as the “B Class Take Condition”). This condition read:

“...

(6) THE LICENSED/AUTHORISED WORK SHALL NOT BE USED FOR THE PURPOSE OF IRRIGATION UNLESS THE FOLLOWING FLOW CONDITIONS EXIST:-

THE BARWON RIVER FLOW EXCEEDS 760 MEGALITRES PER DAY (2.20 METRES) AT THE CULGOA RIVER JUNCTION (UPSTREAM) GAUGE AND 840 MEGALITRES PER DAY (2.39 METRES) AT BREWARRINA GAUGE OR SUCH OTHER HEIGHTS AS MAY BE DETERMINED FROM TIME TO TIME.”

...”

30. As will be seen, this condition is similar to one of the conditions in the Approval although it is not the condition the subject of the charges.

31. The defendants note that, prior to 2010, the 2000 C Class Licences (but not the 2000 B Class Authority referred to above) had two specific conditions which together are described by the defendants as the “Menindee Lakes C Class Access Condition”. These conditions read:

“...

(5) SUBJECT TO CONDITION (6) THE LICENSED WORK SHALL NOT BE USED FOR THE PURPOSE OF IRRIGATING THE LICENCED AREA OR ANY PART THEREOF UNLESS THE DISCHARGE OF THE DARLING RIVER AT THE BOURKE GAUGE EXCEEDS 4894 MEGALITRES PER DAY.

(6) THE LICENCED WORK SHALL NOT BE USED FOR THE PURPOSE OF IRRIGATING THE LICENSED AREA OR ANY PART THEREOF UNLESS THE TOTAL VOLUME OF WATER STORED IN THE MENINDEE LAKES STORAGE IS IN EXCESS OF 907,840 MEGALITRES.

...”

32. The defendants note that in 2009 and 2010 the then regulatory authority, the Department of Land and Water Conservation, at the request of Clyde Agriculture, undertook a process by which the 2000 B Class Authority (which as noted at [29] above had the “flow” condition again referred to by the defendants as the “B Class Take Condition”) was converted to a water licence under the 1912 Act, and the two C Class Licences were replaced with new licences. The new licences, issued on 24 June 2010, were licence 85SL105059 (which although referred to by the defendants in submissions as the “2010 B Class Licence”, as noted at [27] above, is the ‘1912 Licence’), and C Class Licences 85SL105056H and 85SL105057H (referred to by the defendants as the “2010 C Class Licences”).

33. Although the Menindee Lakes C Class Access Condition remained in the 2010 C Class Licences (as it had in the earlier C Class licences), the defendants note that the terms of the 1912 Licence, from 24 June 2010, included (as condition (5) below), what the defendants referred to as the “4894 Term”, which had previously only been present in the C Class Licences, such that the 1912 Licence from that date included the following conditions:

“...

(5) SUBJECT TO CONDITION (6) THE LICENSED WORK SHALL NOT BE USED FOR THE PURPOSE OF IRRIGATING THE LICENSED AREA OR ANY PART THEREOF UNLESS THE DISCHARGE OF THE DARLING RIVER AT THE BOURKE GUAGE EXCEEDS 4894 MEGALITRES PER DAY.

(6) THE LICENSED/AUTHORISED WORK SHALL NOT BE USED FOR THE PURPOSE OF IRRIGATION UNLESS THE FOLLOWING FLOW CONDITIONS EXIST:-

THE BARWON RIVER FLOW EXCEEDS 760 MEGALITRES PER DAY AT THE CULGOA RIVER JUNCTION (UPSTREAM) GAUGE AND 840 MEGALITRES PER DAY AT THE BREWARRINA GAUGE.”

...”

34. On 20 February 2012, the conditions of the 1912 Licence were varied slightly, but not relevantly in relation to condition (5) and condition (6).

35. It is agreed that these two conditions, (5) and (6), were part of the 1912 Licence at the time the provisions of the WM Act were activated on 4 October 2012, which, as noted above, effected a new licensing and approval regime and provided for the conversion of existing entitlements.

36. The wording of condition (5) is referred to in the evidence and submissions as the “4894 Term”. As will be seen, the defendants maintain that the condition, as it appears in the 1912 Licence, was “qualified” in the sense that it was “subject to” condition (6) which, as noted above, the defendants refer to as the “B Class Take Condition”.

37. For clarity, in this judgment I use the following descriptors – ‘1912 Licence’ for licence 85SL105059; ‘4894 Term’ for condition (5) of the 1912 Licence at [33] above; and ‘B Class Take Condition’ for condition (6) of the 1912 Licence at [33] above. It is clear that the Approval contained two conditions similar to the 4894 Term and the B Class Take Condition. Adopting the expressions used by the parties, I will refer to the condition the subject of the charges, being the term in the Approval that is similar, but for the absence of the words “subject to”, to condition (5) as the ‘(unqualified) 4894 Term’, and again adopt ‘B Class Take Condition’ for the term in the Approval (which has the reference DK1542-00001 in the Approval) which is similar to condition (6). It is the (unqualified) 4894 Term that is the subject of the charges.

38. Before recording further events, as considered below, two discrete issues arise from this earlier licence history. First, the defendants maintain that the introduction of condition (5) (the 4894 Term) into the 1912 Licence in 2010, which was previously only in the C Class Licences, was a mistake which had consequences for the licensing regime later activated on 4 October 2012 under the WM Act and; second, in any event, there is a dispute as to the meaning and consequence of the words “subject to condition (6)” in condition (5) of the 1912 Licence which were not part of the Approval conditions after it was converted.

Circumstances after 4 October 2012

39. On 3 October 2012, the Water Management (Application of Act to Certain Water Sources) Proclamation (No 2) 2012 (NSW) (‘Proclamation’) was made pursuant to ss 55A and 88A of the WM Act. Clause 3 of the Proclamation declared that Pts 2 and 3 of Ch 3 (which, deal with water access licences and approvals respectively) of the WM Act apply to each prescribed water source to which a prescribed water sharing plan applies. The Proclamation enlivened Sch 10 of the WM Act which, as detailed below, specifically provided for the “conversion of former entitlements [under the 1912 Act] to access licences and approvals”.

40. These events meant that the Water Sharing Plan for the Barwon-Darling Unregulated and Alluvial Water Sources 2012 (‘the Plan’), (made pursuant to s 50 of the WM Act) commenced on 4 October 2012, with the effect that the licensing and approval regime in the WM Act commenced to apply to the subject catchment on that day and, at the same time the Plan became operational, the Water Access Licence and the Approval were brought into existence.

41. The prosecutor maintains that the introduction of the WM Act had the effect of replacing the 1912 Licence with the Approval (and the Water Access Licence) and notes that the 1912 Licence included conditions (noted at [33]) relating to both the discharge of the Darling River at a location described as the Bourke gauge exceeding 4,894 ML per day (condition (5)), and the flow at other parts of the river system upstream of Beemery Farm reaching certain levels (condition (6)), and that these conditions are similar to the two conditions attached to the Approval which the prosecutor maintains effectively replaced the 1912 Licence.

42. On 17 October 2012, the Commissioner of the NSW Office of Water (within the Department), informed Clyde Agriculture in writing that the Plan had commenced on 4 October 2012 and that the 1912 Licence (described as “former entitlement(s) 85SL105059”) had been replaced with “Water Access Licence 85AL753235” and “Approval 85CA753236” (being the Water Access Licence and Approval referred to at [19], [22] above). The correspondence stated that details of the “water access licence/s and approval/s and conditions will be mailed to all licence and approval owners” and that until then, licence and approval holders continued to be the subject to the conditions of their former licence that apply to either an access licence or an approval. The relevant parts of the letter are included as follows:

“...

Following consultation on its development, I am writing to inform you that the Water Sharing Plan for the Barwon Darling Unregulated & Alluvial Water Source (the Plan) commenced on 4 October 2012.

Water sharing plans and water access licences issued under the Water Management Act 2000 establish clear and secure rights for access to water by water users. Water access licences are held separate from land and have an independent title.

Approvals are different to access licences. Approvals give holders the right to construct and operate water supply works and to use water on land. Approvals continue to be tied to the land.

...

The commencement of the Plan means that your former entitlement/s 85SL105059 issued under the Water Act 1912 has now been replaced with the following access licence/s and approval/s:

Water Access Licence:   85AL753235

Approval/s:   85CA753236

...

A notice containing the details of the water access licence/s and approval/s and conditions will be mailed to all licence and approval holders. Until then, licence and approval holders continue to be the subject to the conditions of their former licence that apply to either an access licence or an approval.

...”

43. The defendants purchased Beemery Farm in 2014 and by letter from their solicitors dated 4 July 2014 to the Department provided a “Notice of Sale or Transfer of Water Access Licence”, containing a schedule of water access licences, which informed the Department that they had purchased various water access licences (including reference to the Water Access Licence and the Approval) from Clyde Agriculture under a Contract of Sale dated 28 March 2014, with a transfer date of 12 June 2014. The letter stated “all further correspondence in relation to their Licences which have been acquired as part of this transaction should be forwarded to ... Mr & Mrs PJ Harris PO Box 20 Bourke NSW 2840”. Around that time, Mr Harris informed Richard Wheatley, a Senior Water Regulation Officer with the Department, that Clyde Cotton would be replacing Clyde Agriculture at all of Clyde Agriculture’s properties, including Beemery Farm. The extent and effect of other matters discussed between Mr Wheatley and Mr Harris in relation to the provision of information and related matters at that time is in issue.

44. The transfer of the Water Access Licence and the Approval to the defendants was recorded in water access licence title searches and records of the former NSW Office of Water. The system of registration is outlined below.

45. On 11 September 2014, the Department wrote to Mr Harris (at an address “Kindamindi, PO Box 1626, MOREE NSW 2400”). The letter stated:

“...

You have recently become the holder of the above licence or approval resulting from your purchase of a water access licence (WAL) or the purchase of lands benefitted by approvals.

Licences and approvals issued under the Water Management Act 2000 operate under a set of terms and conditions which are imposed and regulated by NSW Office of Water. Licence conditions define when and how much water you can extract. Approval conditions authorise water supply works – and the circumstances and location of where the water can be used.

We have attached information relevant to the above matter as indicated by the following tick boxes.

☒ We have attached a copy of your Water Act 1912 licence.

☒   The NSW Office of Water is currently finalising the conversion process with reference to approvals and conditions for the BARWON DARLING UNREGULATED AND ALLUVIAL WATER SOURCES. As soon as this process is finalised, a notice containing details of the WAL and/or approval/s conditions that apply will be mailed to you. Until then, licence and approval holders continue to be subject to the conditions of the former licence 85SL105059.

Further information on licences and approvals under the Water Management Act 2000 can be obtained from the Office of Water’s website go to:

– Water licensing.

...”

46. There is an issue in relation to whether, and if so how, notification was given to the defendants or Clyde Agriculture. The prosecutor submits, and the defendants deny, that, in circumstances considered below, if notification of the Approval (and therefore the condition the subject of the charges) was required, it has been provided in correspondence by email to an agent appointed by Mr Harris on 23 September 2015. The prosecutor also noted the possibility of a letter to Clyde Agriculture on 17 October 2012 and letter to Mr Harris on 11 September 2014 fulfilling the notice requirement.

47. WaterNSW’s system of registration for water access licences and approvals issued under the WM Act is explained in the evidence of Mr Wheatley, who has held various roles in relation to water licensing and regulation since 1999, and provides some factual context for the issues in dispute. The following summary is uncontentious.

48. Since July 2004, the Department has maintained a register of water access licences called the “Water Access Licence Register” (‘WAL Register’) which is accessible online and holds a record of every water access licence in NSW. The purpose of the WAL Register is to make information available to WaterNSW and to the public and to provide a secure system for information in relation to water access licence information. The WAL Register is maintained by Land Registry Services on behalf of the Minister administering the WM Act in accordance with Div 3A of Pt 2 of the WM Act. Details in the WAL Register are accessed by conducting searches through Land Registry Services.

49. The WAL Register maintains a separate record for each water access licence, which contains specific details of each licence including the share component; the extraction component; the relevant water sharing plan; nominated works and expiry date; the current ownership of the water access licence; and the details of any mortgages or charges.

50. The share component of a water access licence details the licence holder’s entitlement to a given number of shares in the available water which may be extracted from a specified water source and is expressed as a “unit share” of the water available in the water source. The actual quantity of water available to be extracted in any year depends upon the applicable “Available Water Determination”. Separate Available Water Determinations are generally made for each category of licence in a water source.

51. WaterNSW generates and issues a “Statement of Conditions” under the WM Act to set out the conditions applicable to a water access licence. Statements of Conditions are generated by and stored on WaterNSW’s “Water Licensing System database”.

52. As well as the WAL Register maintained by the Department, WaterNSW maintains on behalf of the Minister administering the WM Act another register known as the “NSW Water Register” and information about approvals is recorded on the NSW Water Register in accordance with s 113 of the WM Act. Specifically, the details of an approval, including the conditions of an approval are set out in a “Statement of Approval” which is generated by, and stored on, WaterNSW’s Water Licensing System database.

53. WaterNSW’s Water Licensing System database records that the 1912 Licence was replaced by the Water Access Licence and the Approval, and that the Water Access Licence was transferred from Clyde Agriculture to the defendants in September 2014.

54. Further, according to WaterNSW’s Water Licensing System database, from 4 October 2012, the Water Access Licence has been an unregulated river (B Class) Licence that entitled the holders to shares in the available water in the water source and to take water using the works authorised by a nominated work approval. In particular, the Water Access Licence provided that the unit share of available water was 10,449 units until 12 January 2015 and 11,444 units thereafter. The Water Access Licence further specifies that the water source is the Barwon-Darling Unregulated River Water Source and the “nominated work approval” is “85CA753236” (which is the Approval). The evidence of Mr Wheatley is that the Water Access Licence (as recorded on WaterNSW’s Water Licensing System database) provided for a specific share of the available water from the Barwon-Darling Unregulated River Water Source, and to take water using the works nominated in the Approval (being the Pumps).

Evidence

55. On 1 February 2019, the Court made orders that evidence in the proceeding against one defendant be evidence in the proceeding against the other defendant.

56. Over the course of the five day hearing, the Court received extensive documentary and oral evidence.

57. The prosecutor relies on the following evidence:

1. Two affidavits of Paul O’Neill, investigator with WaterNSW, affirmed 6 March 2018 and 1 June 2018;

2. Three affidavits of Andrew Thomas Cutler, Hydrometric Coordinator (North West) with WaterNSW, affirmed 5 March 2018, 28 September 2018 and 31 January 2019;

3. An affidavit of Trevor Lee Pearce, Customer Field Officer with the Department at the time of the alleged offences, affirmed 28 May 2018;

4. Three affidavits of Richard John Wheatley, Senior Water Regulation Officer with WaterNSW, affirmed 12 June 2018, 5 November 2018 and 31 January 2019;

5. An affidavit of Glenn Evan McDermott, Hydrology and Hydrometric Practice Consultant, affirmed 21 November 2018; and

6. Further material, including an extensive bundle of documents comprising detailed appendices to Mr McDermott’s report; copies of the NSW Office of Water, quality codes including the Gauging Quality Codes; and Australian Standard 3778: Measurement of Water Flow in Open Channels (‘AS3778’), Pt 3.1.

58. The defendants rely on the following evidence:

1. An affidavit of Daniel Michael Martens, Engineer and Environmental Scientist, affirmed 8 February 2019; and

2. Further material, including a bundle of documents comprising correspondence and copies of various instruments and licences; a letter from Mitchell Abbo, General Manager of Clyde Agriculture, to Mr Wheatley dated 26 March 2009; and a subpoena to produce issued to WaterNSW filed 28 June 2018.

59. Each of Mr Cutler, Mr Wheatley, Mr McDermott and Dr Martens gave oral evidence.

60. For convenience, I briefly note the nature of the evidence given by the witnesses, some of which I have incorporated into the factual narrative above and some which will be considered in further detail later in this judgment.

61. Mr O’Neill, an investigator with WaterNSW assigned to the investigation into compliance at Beemery Farm in 2017, gives evidence of the issuing of notices pursuant to s 338A(2) of the WM Act to the defendants and exhibits documents produced in response to those notices.

62. Mr Cutler, a hydrometric coordinator with WaterNSW, gives evidence regarding the procedures in relation to the collection and recording of hydrometric data. He also gives evidence of WaterNSW’s Hydstra database and the processes regarding data extraction from that database.

63. Mr Pearce, a customer field officer with the Department, gives evidence of his site attendances at Beemery Farm and the downloading of data from a Measuring and Control Agriflo (‘MACE’) Meter at Beemery Farm in July 2017. He also gives evidence regarding the use and operation of meters in the Barwon-Darling region and the layout of the Pumps.

64. Mr Wheatley, a senior water regulation officer with WaterNSW, gives evidence primarily concerning WaterNSW’s registration and licensing system; various procedures; the recording of the defendants as holders of the Water Access Licence and the Approval in respect of Beemery Farm; evidence of his attendances at Beemery Farm; and his conversations with Mr Harris.

65. Mr McDermott, an expert in the area of hydrography and hydrometrics, with expertise in flow measurement, gives evidence relating to the calculation of the flow rate at the Bourke gauge during the charge period (‘McDermott Report’).

66. Dr Martens, an engineer and environmental scientist, with expertise in hydrology, gives evidence regarding his concerns in relation to the methodology of measuring and recording flow data relied upon by the prosecutor.

67. Objections to various aspects of the above evidence were ruled upon during the hearing, and rulings on a number of objections were deferred. As the remaining objections relate to the technical and scientific evidence regarding the methodology used in the measurement of flow in the Darling River at the Bourke gauge, I deal with these objections when considering the discrete issues relating to those matters.

68. In reaching the factual conclusions that I have set out in this judgment, I have taken into account all the evidence.

Legislative framework

Water Management Act 2000 (NSW)

69. The WM Act is complex legislation and an understanding of the relevant provisions is necessary. I have briefly referred to a number of provisions above. The following provisions provide background and are referred to by the parties in submissions.

70. Section 50(1) of the WM Act provides that the Minister may, by order, make a plan (being a “Minister’s plan”) for any water management area or water source for which no existing “management plan” is in force. At the time the WM Act commenced there was no such plan for the subject catchment. Section 50 provided:

Part 4 Minister’s plans

50   Minister’s plan

(1) The Minister may, by order published on the NSW legislation website, make a plan (a Minister’s plan):

(a)    for any part of the State that is not within a water management area, or

(b)    for any water management area or water source, or part of a water management area or water source, for which a management plan is not in force, or

(c)    for any water management area or water source, or part of a water management area or water source, for which a management plan is in force, but only so as to deal with matters not dealt with by the management plan.

…

(2)   A Minister’s plan must in general terms deal with any matters that a management plan is required to deal with, and may also deal with any other matters that a management plan is authorised to deal with, other than matters that are already dealt with by a management plan.

(2A) Part 3 (except sections 15 and 36–41) applies to a Minister’s plan. However, the Minister:

(a)   may adopt any of the provisions of sections 36–41 in a particular case, and

(b) may dispense with a particular requirement of Part 3 in the case of a Minister’s plan referred to in subsection (1A).

…

(4)   Except to the extent to which this Act otherwise provides, a Minister’s plan has the same effect as a management plan.

(5) The Minister may decide whether to make a Minister’s plan or a management plan in respect of any matter (whether or not any draft management plan has been submitted to the Minister).

71. Pursuant to s 50(2A) of the WM Act, Pt 3 of Chapter 2 (other than ss 15 and 36-41) applies to the Plan.

72. The WM Act provided for both access licences and approvals in Pt 2 and Pt 3 respectively of Ch 3. The relevant provisions at the time were:

Part 2 Access licences

...

55A   Application of Part

(1)   This Part applies to:

(a)   each part of the State or each water source, and

(b)   each category or subcategory of access licence that relates to that part of the State or that water source,

that is declared by proclamation to be a part of the State or water source, and category or subcategory of access licence, to which this Part applies.

...

(2)   Despite subsection (1), specified provisions of this Part may be declared by proclamation to apply to the whole of the State, and apply accordingly.

...

56   Access licences

(1)   An access licence entitles its holder:

(a)   to specified shares in the available water within a specified water management area or from a specified water source (the share component), and

(b)   to take water:

(i)   at specified times, at specified rates or in specified circumstances, or in any combination of these, and

(ii)   in specified areas or from specified locations, (the extraction component).

(2)   Without limiting subsection (1) (a), the share component of an access licence may be expressed:

(a)   as a specified maximum volume over a specified period, or

(b)   as a specified proportion of the available water, or

(c)   as a specified proportion of the storage capacity of a specified dam or other storage work and a specified proportion of the inflow to that dam or work, or

(d)   as a specified number of units.

(3)   Shares in available water may be assigned generally or to specified categories of access licence.

(4)   In the case of a local water utility licence, its share component is to be expressed as a specified volume per year.

(4A)   Without limiting subsection (1) (b), the extraction component of an access licence may authorise the taking of water from a water source specified in the share component of the licence and from another water source not so specified if those water sources are vertically abutting (either wholly or partly) water sources.

(4B)   In the circumstances referred to in subsection (4A), the water source specified in the share component of the access licence is to be the water source that is the main source for the extraction of water by the holder of the licence.

(5)   For the purposes of this Act, an access licence may also be referred to as a water access licence or a WAL.

(6)   (Repealed)

Note. An access licence:

(a)   does not confer a right on any person to use water for any particular purpose (that right is conferred by a water use approval), and

(b)   does not confer a right on any person to construct or use a water supply work (that right is conferred by a water supply work approval).

Part 3 Approvals

...

88A   Application of Part

(1)   This Part applies to:

(a)   each part of the State or each water source, and

(b)   each type or kind of approval that relates to that part of the State or that water source, that is declared by proclamation to be a part of the State or water source, and type or kind of approval, to which this Part applies.

...

89   Water use approvals

(1)   A water use approval confers a right on its holder to use water for a particular purpose at a particular location.

(2)   A water use approval may authorise the use within New South Wales of water taken from a water source outside New South Wales.

90   Water management work approvals

(1)   There are three kinds of water management work approvals, namely, water supply work approvals, drainage work approvals and flood work approvals.

(2)   A water supply work approval authorises its holder to construct and use a specified water supply work at a specified location.

(3)   A drainage work approval confers a right on its holder to construct and use a specified drainage work at a specified location.

(4)   A flood work approval confers a right on its holder to construct and use a specified flood work at a specified location.

91   Activity approvals

(1)   There are two kinds of activity approvals, namely, controlled activity approvals and aquifer interference approvals.

(2)   A controlled activity approval confers a right on its holder to carry out a specified controlled activity at a specified location in, on or under waterfront land.

(3)   An aquifer interference approval confers a right on its holder to carry out one or more specified aquifer interference activities at a specified location, or in a specified area, in the course of carrying out specified activities.

Note. Examples of where an aquifer interference approval may be needed include mining operations, road construction and any other large scale activity that involves excavation.

73. Schedule 10 of the WM Act, which contains the statutory mechanism through which entitlements issued under the 1912 Act are converted to access licences and approvals under the current scheme, and as enlivened by the “Water Management (Application of Act to Certain Water Sources) Proclamation (No 2) 2012” (‘Proclamation’) made on 3 October 2012, relevantly provided:

Schedule 10 Conversion of former entitlements to access licences and approvals

Part 1 Preliminary

...

1   Application of Schedule

This Schedule applies:

(a) to each category or subcategory of access licence that relates to a part of the State or water source to which Part 2 of Chapter 3 applies by operation of a proclamation under section 55A, and

(b) to each type or kind of approval that relates to a part of the State or water source to which Part 3 of Chapter 3 applies by operation of a proclamation under section 88A.

...

Part 2 Conversion of former entitlements

...

3   Access licences and approvals arising from former entitlements

(1)   Subject to this Schedule, an entitlement that, immediately before the appointed day, was in force under the 1912 Act, the 1948 Act or the 1994 Act is taken to have been replaced:

(a)   to the extent to which it entitles any person or body to take a specified quantity of water, by an access licence held by that person or body (subject to such of the conditions of the entitlement as are applicable to an access licence):

(i)   for the quantity of water so specified, or

(ii)   if the relevant management plan, and regulations made for the purposes of this paragraph, indicate that a different quantity of water calculated in accordance with a specified methodology may be taken under an access licence issued in relation to the water management area or water source to which the management plan applies—for a different quantity of water calculated in accordance with that methodology, and

(b)   to the extent to which it entitles any person or body to use a specified water management work, by a water management work approval held by that person or body in respect of that work (subject to such of the conditions of the entitlement as are applicable to an approval of that kind), and

(c)   to the extent to which it entitles any person or body to use water on any land, by a water use approval held by that person or body in respect of that land (subject to such of the conditions of the entitlement as are applicable to an approval of that kind), and

(d)   to the extent to which it entitles any person or body to carry out a specified activity, by an activity approval held by that person or body in respect of that activity (subject to such of the conditions of the entitlement as are applicable to an approval of that kind).

…

74. Clause 3, Pt 3 of Sch 10 of the WM Act provides that an “entitlement” that, immediately before the appointed day (4 October 2012) was in force under the 1912 Act, is taken to have been “replaced”. As such, upon commencement of the Plan, the existing instruments (under the 1912 Act) were treated as licences and approvals to which the Plan applied. That is, for every licence under the former legislation, cl 3 deemed there to be an access licence which related to the taking of water and an approval related to the using of a work. At that time that the Water Access Licence and Approval were allocated the reference numbers they now have (noted at [42]).

The Proclamation

75. The Proclamation was made on 3 October 2012 pursuant to ss 55A and 88A of the WM Act. Clause 2 provided that it commenced on 4 October 2012. Clause 3 provided:

3 Application of Parts 2 and 3 of Chapter 3 of Water Management Act 2000 to certain water sources, access licences and approvals

(1) It is declared that Part 2 of Chapter 3 of the Act applies to the prescribed water source, and to each water source to which a prescribed water sharing plan applies, in relation to all categories and subcategories of access licence for any such water source other than floodplain harvesting access licences.

(2) It is declared that Part 3 of Chapter 3 of the Act applies to the prescribed water source, and to each water source to which a prescribed water sharing plan applies, in relation to all approvals for any such water source other than drainage work approvals, flood work approvals and aquifer interference approvals.

(3)   In this clause:

prescribed water sharing plan means each of the following plans:

(a)   the Water Sharing Plan for the Barwon-Darling Unregulated and Alluvial Water Sources 2012,

...

prescribed water source means the part of the Murrumbidgee Regulated River Water Source referred to in clause 4 (3) (b) of the Water Sharing Plan for the Murrumbidgee Regulated River Water Source 2003 (as inserted by the Water Sharing Plan for the Murrumbidgee Regulated River Water Source Amendment Order 2012), excluding the water referred to in clause 4 (4) of that Plan (as inserted by that Order).

...

Water Sharing Plan for the Barwon-Darling Unregulated and Alluvial Water Sources 2012

76. Specific provisions of the Plan are considered below, however, in summary, the Plan:

1. divided the Barwon-Darling River system into a number of different management zones. Beemery Farm is located in the Brewarrina to Culgoa River Junction Management Zone;

2. provided various “rules” which are given effect by the imposition of “mandatory” conditions for access licences and approvals;

3. established different “flow classes” for the sharing of flows on a daily basis in the Barwon-Darling Unregulated River Water Source for water licences in different zones;

77. Clause 2 of the Plan provided that the Plan was made under s 50 of the WM Act (therefore taking effect as a Minister’s plan) and that it is a “plan for water sharing and generally deals with matters set out in sections 20 and 21 of the [WM] Act”. Before considering the Plan, it is relevant to note that these sections provided:

Part 3 Management Plans

...

20   Core provisions

(1)    The water sharing provisions of a management plan for a water management area or water source must deal with the following matters:

(a)   the establishment of environmental water rules for the area or water source,

(b)   the identification of requirements for water within the area, or from the water source, to satisfy basic landholder rights,

(c)   the identification of requirements for water for extraction under access licences,

(d)   the establishment of access licence dealing rules for the area or water source,

(e)   the establishment of a bulk access regime for the extraction of water under access licences, having regard to the rules referred to in paragraphs (a) and (d) and the requirements referred to in paragraphs (b) and (c).

(2)   The bulk access regime referred to in subsection (1) (e):

(a)   must recognise and be consistent with any limits to the availability of water that are set (whether by the relevant management plan or otherwise) in relation to the water sources to which the regime relates, and

(b)   must establish rules according to which access licences are to be granted and managed and available water determinations to be made, and

(c)   must recognise the effect of climatic variability on the availability of water, and

(d)   may establish rules with respect to the priorities according to which water allocations are to be adjusted as a consequence of any reduction in the availability of water, and

(e)   may contain provisions with respect to the conditions that must (as mandatory conditions) be imposed on access licences under section 66 (1), including conditions providing for the variation, from time to time, of the share and extraction components of access licences, and

(f)   must be consistent with the water management principles.

(3)   The rules referred to in subsection (2) (d) must comply with the priorities established under section 58.

(4)   The access licence dealing rules established under subsection (1) (d):

(a)   must comply with the access licence dealing principles, and

(b)   must not deal with any matter for which the access licence dealing principles may make provision under section 71Z (2), and

(c) subject to paragraph (b) and the access licence dealing principles, may regulate or prohibit any dealing under Division 4 of Part 2 of Chapter 3.

21   Additional provisions

The water sharing planning provisions of a management plan for a water management area or water source may also deal with the following matters:

(a)   the rates, times and circumstances under which water may be taken from any water source in the area, or the quantity of water that may be taken from any water source in the area or delivered through the area,

(b)   the kinds of water supply works that may be constructed and used in the area,

(c)   the operation of water accounts for the area or water source, such as the carrying over of credits from one accounting period to the next, the maximum credit that may be allowed to accumulate in any account and the withdrawal of water from any account by reason of evaporation or dam spill or in such other circumstances as may be prescribed by the regulations,

(d)   water sharing measures for the protection and enhancement of the quality of water in the water sources in the area or for the restoration or rehabilitation of water sources or their dependent ecosystems,

(e)   measures to give effect to the water management principles and the objects of this Act,

(f)   such other matters as are prescribed by the regulations.

78. Clause 4 of the Plan provided that it applies to certain “water sources” located within the Central West Water Management Area including the Barwon-Darling Unregulated River Water Source, which is the water source from which the Pumps drew water during the charge period.

79. Clause 7 of the Plan provided:

7 Understanding the rules in this Plan

This Plan contains various rules. Where appropriate, the rules specified in this Plan are given effect by the mandatory conditions for access licences and approvals contained in Part 11 of this Plan.

80. In relation to “access rules” (imposed as mandatory conditions in licences which replace the 1912 Act entitlements), cl 46(9) of the Plan provided as follows:

46   Access rules for the taking of surface water

…

(9) Subject to subclauses (10), (11) and (15), water must not be taken by a water supply work located in a management zone specified in Column 3 of Schedule 2 under an access licence specified in Column 1 of Schedule 2 in contravention of the corresponding access rule specified in Column 2 of Schedule 2.

...

81. Correspondingly, Schedule 2 of the Plan provided:

Schedule 2 Access licences with cease to pump rules that differ from the flow class cease to pump rules

Those access licences which replace a Water Act 1912 entitlement listed in Column 1 of the table below will have the access rule specified in Column 2 imposed as a mandatory condition on all water supply work approvals nominated by that access licence to give effect to clause 46 (9) of this Plan.

Column 1	Column 2	Column 3
Water Act 1912 entitlements that will be replaced by access licences on commencement of this Plan	Access rule	Management zone
…	…	…
85SL105059 ...	Water must not be taken when the flow in the Darling River at the Bourke gauge(425003) is equal to or less than 4,894 ML/day ...	Brewarrina to Culgoa River Junction Management Zone ...

82. Briefly stated, it is agreed that, as a result of cl 3(1) of Sch 10, from 4 October 2012 the 1912 Licence was effectively split into two separate instruments: a water access licence (being the Water Access Licence) and a replacement approval (being the Approval).

83. As noted below, the defendants challenge the validity of the Plan and the Approval. The prosecutor submits, and the defendants contest, that s 47(1) of the WM Act provides that the validity of the Plan may not be challenged, other than before the Land and Environment Court in proceedings commenced within three months from the date the Plan was published on the NSW legislation website. That period ended in early 2013. Section 47 provided:

Part 3 Management plans

...

47     Validity of management plans and exercise of plan-making functions

(1)   The validity of a management plan may not be challenged, reviewed, quashed or called into question before any court in any proceedings, other than before the Land and Environment Court in proceedings commenced within the judicial review period.

(2)   The judicial review period in respect of a management plan is:

(a)   the period of 3 months after the date the plan was published on the NSW legislation website, except as provided by paragraph (b), or

(b)   in relation to a provision of the plan that was inserted by an amendment of the plan (other than an amendment under section 45 (1) (c)), the period of 3 months after the date that the amendment was published on the NSW legislation website.

A judicial review period does not arise as a result of the extension of the duration of a management plan.

(3)   The judicial review period cannot be extended by the Land and Environment Court or any other court, despite any other Act or law.

(4)   Without limiting subsection (1), the exercise by a designated person of any plan-making function may not be:

(a)   challenged, reviewed, quashed or called into question before any court in any proceedings, or

(b)   restrained, removed or otherwise affected by any proceedings,

other than before the Land and Environment Court in proceedings commenced within the judicial review period.

(5)   The provisions of or made under this Act and the rules of natural justice (procedural fairness), so far as they apply to the exercise of any plan-making function, do not place on a designated person any obligation enforceable in a court (other than in the Land and Environment Court in proceedings commenced within the judicial review period).

(6)   Accordingly, no court (other than the Land and Environment Court in proceedings commenced within the judicial review period) has jurisdiction or power to consider any question involving compliance or non-compliance, by a designated person, with those provisions or with those rules so far as they apply to the exercise of any plan-making function.

(7)   This section is not to be construed as applying the rules of natural justice to the exercise of plan-making functions for the purposes of proceedings instituted within the judicial review period.

(8)   In this section:

court includes any court of law or administrative review body.

designated person means the Minister, a management committee, the Director-General or any person or body assisting or otherwise associated with any of them.

exercise of functions includes the purported exercise of functions and the non-exercise or improper exercise of functions.

judicial review period—see subsection (2).

management plan includes purported management plan.

plan-making function means:

(a)   a function under this Act relating to the making of a management plan (including relating to the amendment, replacement or repeal of a management plan or the extension of the duration of a management plan), or

(b)   a function under section 46 of this Act relating to the statement of the purpose for which any provision of a management plan has been made.

proceedings includes:

(a)   proceedings for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, and

(b) without limiting paragraph (a), proceedings in the exercise of the inherent jurisdiction of the Supreme Court or the jurisdiction conferred by section 23 of the Supreme Court Act 1970.

84. Clause 20, Pt 2 of Sch 10 of the WM Act is relevant to a further issue in relation to whether notice was required and/or given to either Clyde Agriculture or the defendants as holders of licences and approvals created by the provisions of the WM Act. This clause provided:

Schedule 10

...

Part 2 Conversion of former entitlements

...

20   Notification of licences

(1) The Minister must cause written notice of the terms of each access licence or approval arising by operation of this Schedule to be given to the holder of each such access licence or approval.

(2)   A replacement access licence or approval is to include any mandatory conditions that are required to be imposed on the licence.

…

85. The offence provision is s 91G of the WM Act which at the time of the alleged offence provided:

Part 3 Approvals

...

91G   Contravention of terms and conditions of approval

...

(2)   If any term or condition of an approval is contravened by any person, each holder of the approval is guilty of an offence.

Tier 2 penalty.

(3)   It is a defence to a prosecution under subsection (2) if the accused person establishes:

(a)   that the contravention of the term or condition was caused by another person, and

(b)   that the other person was not associated with the holder at the time the term or condition was contravened, and

(c)   that the holder took all reasonable steps to prevent the contravention of the term or condition.

A person is associated with the holder for the purposes of this subsection (but without limiting any other circumstances of association) if the person is an employee, agent, licensee, contractor or sub-contractor of the holder.

86. Section 91L of the WM Act relevantly provided for the liability of the occupier of premises as follows:

Part 3 Approvals

...

91L   Liability of occupier of premises for certain offences

(1)   The occupier of premises at which:

(a)   a water management work has been constructed or used in contravention of a provision of this Division, or

(b)   a controlled activity or aquifer interference activity has been carried out in contravention of a provision of this Division,

is taken to have contravened that provision.

(2)   However, subsection (1) does not apply if it is established that:

(a)   the work was constructed or used, or the activity was carried out, by a person other than the occupier, and

(b)   the other person was not associated with the occupier at the time the work was constructed or used or the activity was carried out, and

(c)   the occupier took all reasonable steps to prevent the work being constructed or used or the activity being carried out.

A person is associated with the occupier for the purposes of paragraph (b) (but without limiting any other circumstances of association) if the person is an employee, agent, licensee, contractor or sub-contractor of the occupier.

(3)   Subsection (1) does not prevent proceedings being taken under this Act against the person who actually committed the offence.

87. Further, ss 363A(1) and (2) of the WM Act provided that if an offence against the WM Act arises in relation to an access licence or approval, each co-holder of the licence or approval is taken to have committed the offence, unless the co-holder proves that:

...

(a)   the offence was committed by some other person (whether or not another co-holder of the licence or approval), and

(b)   the other person was not associated with the co-holder at the time the offence was committed, and

(c)   the co-holder took all reasonable steps to prevent the offence from being committed.

...

88. Section 91M(2) of the WM Act provided for a general defence in the following terms:

Part 3 Approvals

...

91M   General defence

…

(2)   It is a defence to a prosecution under this Division in relation to the doing of anything without an approval if the accused person establishes that the person was exempt, pursuant to this Act or the regulations, from any requirement for an approval in relation to the doing of that thing.

...

Outline of respective positions

89. The prosecutor submits and I find that it must establish the following four elements to make out the charges:

1. The defendants were the holders of a water supply works and water use Approval applying to the Barwon-Darling Unregulated River Water Source (‘Water Source’) during the charge period (‘Element 1’);

2. The Approval contained a condition that water must not be taken from the Water Source when the flow of the Darling River at the Bourke gauge (being gauge number 425003) was equal to or less than 4,894 ML per day (‘Element 2’);

3. During the charge period, the defendants took water from the Water Source (‘Element 3’); and

4. The water was taken when the flow of the Darling River at the Bourke gauge was equal to or less than 4,894 ML per day (‘Element 4’).

90. The defendants maintain that the prosecutor’s case fails for six, somewhat layered, reasons.

91. First, the evidence does not enable a reliable view to be formed as to whether or not the flow in the Barwon River at the Bourke gauge was less than 4,894 ML per day; second, each summons is bad for duplicity and uncertainty; third, there is, in fact, no (unqualified) 4894 Term in the Approval because – the Approval did not (and should not) contain any term governing the ‘take’ of water because this was a matter only for a water access licence not an approval, the term was not automatically included in the Approval and no notice was given to the approval holders; fourth, even if the (unqualified) 4894 Term was, or became, a term of the Approval either by operation of the Plan or by action of the Minister, the decisions which brought about that result are ultra vires by reason of infringing the distinction in the WM Act between the scope of access licences (which deal with the taking of water) and the scope of approvals (which deal with work, use and specified activities) and, therefore, there was no power either to create the Plan or issue the Approval, and any decision to do so would be ultra vires and vitiated by jurisdictional error; fifth, as a matter of interpretation, the (unqualified) 4894 Term in the Approval should be read as implicitly qualified by (that is, “subject to”) the B Class Take Condition as it was in the 1912 Licence; and sixth, even if it was open for the Plan to mandate the imposition of the (unqualified) 4894 Term, that term has no place in the Approval and its presence (if it was indeed there) is a result of a manifestly unreasonable decision.

Overview

92. Subject to dealing first with the defendants’ submission that each summons is bad for duplicity, I will consider the first and second of the four elements articulated by the prosecutor (which encompass a number of the defendants’ discrete issues summarised above and generally concern whether the defendants were the holders of an approval which contained the condition the subject of the charges) before turning to the third and fourth elements (which relate to whether the defendants took water when the flow of the Darling River at the Bourke gauge was equal to or less than 4,894 ML per day).

Duplicity

93. In their amended notice pursuant to s 247K of the Criminal Procedure Act, the defendants contended that each charge is bad for duplicity on the basis of the reasoning in Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202; (2018) 362 ALR 359 at [55]-[60], such that to allege an offence against s 91G(2) of the WM Act where the manner of contravention alleged is the taking of water over a number of days (22 June 2016 to 27 June 2016) when the flow of the Barwon River at the Bourke gauge was less than 4,894 ML per day, is to impermissibly allege multiple separate offences in the one charge, rendering the “rolled up” charge duplicitous and contrary to law.

94. The defendants initially submitted that the prosecutor has not restricted itself to a single day or single use, and that each amended summons alleges either that there was a use on each and all of the days (such as to be duplicitous) or that there was only one use for the entirety of the charge period such that there was only one resulting offence. The defendants submitted that the alleged breaches on separate days cannot be properly charged in one count of a summons.

95. Mr Elliott noted that at par (32) of the prosecutor’s amended statement of facts (filed 1 February 2019), the prosecutor alleged that water was taken on each of the days during the charge period. Mr Elliott also directed the Court to par (35) of Mr Cutler’s affidavit of 5 March 2018 wherein he deposed that (emphasis added) “…for the entire period between 1 July 2015 and 30 June 2016 the flow rate was less than 4,894 ML per day”. Reference was also made to the last sentence in par (166) of the prosecutor’s closing submissions in submitting that the prosecutor was referring to the whole of the charge period. If the position were otherwise, the defendants submit that each amended summons would be “hopelessly uncertain” because on that reading, the time at which the breach occurred would not have been identified, with the Court being asked to make an ultimate finding somewhere within that window.

96. While the defendants initially submitted that the amended summons in each proceeding was bad for duplicity and should be dismissed, Mr Aspinall clarified that the prosecutor was not pleading a continuous offence, but rather a single offence during the charge period. Accordingly, Mr Aspinall submits that the offence would be made out if at any time during the charge period the Court is satisfied that water had been taken when the flow of the river was less than the requirement.

97. The defendants submit that neither the amended summons in each proceeding nor the prosecutor’s brief says what the prosecutor alleges. Mr Elliott emphasised that “at times” in each of the amended summons (at [4] above) is pluralised, making it clear that the prosecutor’s case is not concerned with some isolated instance sometime within a stated date range. As the amended summons in each proceeding reads “In the period…”, not at some undisclosed point in the period, the defendants submit that the prosecutor must be referring to the whole of the period. If it was any other way, the defendants submit that the amended summons in each proceeding would be uncertain as it would invite the Court to decide whether at some point during the charge period there was an offence, without disclosing when in that window it is alleged an offence occurred.

98. Mr Elliott submits that the duplicity issue has “ultimately transformed into a slightly different point”, such that there was, as I understand his submission, uncertainty because the particulars in each of the amended summons referred to “times” when the river at the Bourke gauge was less than a certain amount.

99. In Chang v R [2016] NSWCCA 296 at [62], Macfarlan JA cited Phillips and Buchanan JJA (with whom Ormiston JA agreed) in R v Walsh (2002) 131 A Crim R 299; [2002] VSCA 98 at [40] in describing the concepts of duplicity and uncertainty as follows:

“As we apprehend it, a count is bad for duplicity if it charges more than one offence; on the other hand, if the count charges but one offence and evidence is led of more than one instance of such offending, then the verdict, if against the accused, will be uncertain. This last is sometimes called latent uncertainty because it depends, not so much upon the terms of the count, as upon the case sought to be made by the Crown.”

100. Given that the discrete duplicity argument appeared to resolve itself at the hearing, the remaining question is whether, as submitted by the defendants, the offence as pleaded in each amended summons is uncertain. Nevertheless, in accordance with Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204 at [52] (where Leeming JA cited principles identified by Basten JA in Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373; (2006) 165 A Crim R 151 (‘Hannes’) at [9]), the two steps used to identify uncertainty appear to be the same as those used to identify duplicity:

“There are two steps in the process of identifying duplicity or uncertainty. The first is to consider the statutory description of the offence in order to identify what is the act or conduct prohibited. The second is to identify the act or conduct set out in the pleading as constituting the offence in the particular case. Where a particular act is prohibited if it has one of a number of qualities, it is likely that only one offence is committed in relation to each act, even if such an act has more than one of the proscribed qualities.”

101. As noted above, s 91G(2) of the WM Act, as in force at the relevant time, provided:

91G   Contravention of terms and conditions of approval

...

(2)   If any term or condition of an approval is contravened by any person, each holder of the approval is guilty of an offence.

Tier 2 penalty.

...

102. Accordingly, the prohibited act involves contravening a term or condition of a water use approval, a water management work approval or an activity approval.

103. The amended summons in each proceeding defines the Approval as “Water Supply Works and Water Use Approval 85CA753236” and (at [4] above) includes the following particulars under the heading “Manner of contravention”:

…

“Water was taken in contravention of a term or condition of the Approval in that:

a)   It was a term or condition of the Approval that water is prohibited from being taken when the flow in the Darling River at the Bourke gauge is equal to or less than 4,894 ML/day.

375. Third, on the defendants’ case, any of the possible sources of error outlined by Dr Martens (or indeed a combination of which) could potentially cause a deviation in the recorded gauging data from that which is estimated by Rating Table 300.14. Nevertheless, in any circumstance under which these errors may be introduced, Mr McDermott has quantified this total error, cumulative or otherwise, as not being greater than 12.4% for gauging data near a flow rate of 4,894 ML per day with 95% confidence. I note that a deviation of 12.4%, when interpreted in favour of the defendants position (i.e. that the flows were overestimated by 12.4%), nonetheless demonstrates that the flow rate remained below 4,894 ML per day throughout the charge period and for another two days following. In passing, I further note that the measurement uncertainty sources described by Dr Martens are substantially similar to those described in Pt 2.4 of AS3778, and that this is the same Part of AS3778 which prescribes the procedures followed by Mr McDermott in assessing uncertainty.

376. Fourth, having considered the detailed submissions as well as the WaterNSW procedures detailed in evidence and Australian Standard to which the Court was directed to, I accept the evidence of Mr McDermott that Pt 2.4 cl 6.1 of AS3778 is relevant to my findings above. This clause provides that the presence of a larger dataset can reduce the effect of random uncertainty in the following terms:

“Whilst no correction can be made to remove random components of uncertainty, the associated uncertainty becomes progressively less as the number of measurements increases...”

382. As such, I find that Rating Table 300.14, because it is based on gaugings taken by a range of instruments at different times and over a substantial time period, adds to its strength as a reference. To that end, I accept the prosecutor’s position that even if an individual gauging may have been inaccurate, a larger averaging of the data would mean that Rating Table 300.14 would give relatively little weight to an inaccurate gauging despite this not being accepted by Dr Martens. I do not find the defendants’ argument that errors which are repeated on every gauging occasion would be undetectable as being compelling, and insufficient to contribute a reasonable doubt, given that the data upon which Rating Table 300.14 is based has been recorded over approximately 27 years.

383. I also accept the analysis of Mr McDermott that the adjusted height data and real time height data for the duration of the charge period were practically identical, as the two data sets contained relatively few discrepancies which, in any event, were limited to 1mm. In consequence, I find that the distinction between adjusted and real-time data therefore has no bearing on the overall accuracy and reliability of the data used to calculate flow rate, or was otherwise accounted for in Mr McDermott’s statistical analysis.

384. Although the defendants submit that Mr McDermott’s evidence offers no assistance as he merely assumes the reliability of the Gauging Log and performs a statistical exercise and, as such, allowing a margin of error of some 10% is irrelevant, and that Mr McDermott did not assess the extent to which the rating curve and Rating Table 300.14 would be incorrect if the Gauging Log was wrong, considering the extent of the analysis conducted by Mr McDermott as described earlier and the existence of estimated uncertainty for each gauging as contained in Gauging Uncertainty Graph, I find that the defendants’ submission materially understates the evidence of Mr McDermott. I find that he adopted a statistically appropriate methodology to quantify the extent of errors likely to be present in the flow rate data.

385. Leaving aside what may be seen as a challenging task to call each employee who had at any time inspected and recorded each element of the primary data, questioning the ability of Department personnel to observe a gauge post, operate and calibrate equipment correctly, or otherwise prove that the equipment was indeed working correctly, would place an overwhelming evidentiary burden in cases involving technical or scientific data attained through physical observation over a sustained period of time. Despite this, I consider that the reliability of data derived from physical observations will increase when an identifiable correlation or relationship exists between the variables being observed and where that correlation is capable of statistical validation using established scientific processes that account for possible error or uncertainty. As noted above, I consider and find that the validity of any such correlation or relationship will also be dependent on whether the size of the data set is sufficient. Further, I note Mr McDermott’s evidence that he compared the manual Gauge Post readings taken by Department staff on four occasions with the corresponding river height data collected by the automatic sensor, noting that the minimal discrepancies in each case (if any) were consistent with the WaterNSW drift tolerance policy and had been accounted for in his calculation of uncertainty.

386. Given my findings, I consider that each of the defendants’ arguments in relation to this aspect simply hypothesise possible errors which, even if the case, would yield a relatively minor result (for example, without trivialising the concerns, failing to notice a log in the river or misreading the river height by a matter of centimetres due to human error or time delay would have a negligible impact) and, in any event, these errors have been accounted for in Mr McDermott’s statistical analysis. As such, I have no reasonable doubt that a combination of these possible errors is insufficient to create a deviation from the recorded flows during the charge period beyond that which was accounted for by Mr McDermott, such that it would approach or exceed 4,894 ML per day.

387. I therefore accept that the Department’s rating curve and Rating Table 300.14 are capable of determining the relationship between river height and flow rate with sufficient precision for it to reliably prove that the flow rate was below 4,894 ML per day. In light of my findings above, I consequently do not accept the defendants submissions that the rating curve is illogical, based upon assumptions which have not been proven, or that the methods used by the prosecutor to demonstrate its reliability lacked in rigour.

388. For completeness, I also do not accept the defendants’ submission that the procedure is “primitive”, subjective and prone to error. Although the “system” does depend upon various processes which involve some element of subjective input, these are criticisms that do not, either individually or cumulatively, lead to the view that the system itself or its manner of implementation (especially in relation to adherence to various standards and guidelines) leads to any reasonable doubt in relation to the accuracy of the figures. More particularly, I do not find that the numerous matters raised, considered cumulatively, raise a reasonable doubt in relation to the reliability of the figures.

The impact of inconsistent gauging locations and the movement of the gauge

Prosecutor’s position

389. The prosecutor disputes the defendants’ contention that the use of inconsistent gauging locations makes the underlying data unreliable. The prosecutor notes that Mr McDermott gave evidence that, based on the characteristic features of the Darling River, the Weir, the Bourke gauge and considering Pt 2.3 of AS3778, the Weir creates what he referred to as a “weir pool”. This weir pool generates “weir” or “section” control across a stretch of the river that extends at least up to and including the Bourke gauge, meaning that once the height of the Darling River exceeds the relevant “cease to flow level” of 3.92m, the Weir controls the ultimate flow rate across the length of the weir pool during “low to medium flows”. Only in “high flows” will this weir control be “gazumped or subsumed”. Mr McDermott deposed that at a flow rate of 4,894 ML per day the Weir “remains as the main and unique hydraulic control”, producing in effect a uniform flow rate across the length of the weir pool up to and including the Bourke gauge.

390. The prosecutor submits that the defendants have not provided any evidence to cast doubt on the fact that the cease to flow level at the Weir was 3.92m. In particular, the prosecutor submits that Dr Martens was mistaken in relation to his reading of “No flow @ weir crest Weir gauge = 3.774 @ 1645Hrs” that had been noted in relation to a gauging on 7 June 2016, which, on his interpretation, was taken to mean that the “crest” (or top) of the Weir was itself 3.774m, rather than the cease to flow level of 3.92m. As such, Dr Martens’ attempt to dispute the cease to flow height would not be accepted.

391. Mr McDermott noted that at “low to medium flows” (including the flow rate of 4,894 ML per day), the actual measurement of the flow rate can be taken anywhere along the length of the weir pool (including at or over the Weir) and still be regarded as a measurement at the Bourke gauge because, irrespective of where the measurement is taken, the flow rate would be the same. Mr McDermott deposed that this was consistent with normal practice of the industry, referring to cl 5.2.6 of Pt 2.2 of AS3778, cl 5.1(o) of Pt 3.1 of AS3778 and cl 6.1 of the Commonwealth of Australia, (Bureau of Meteorology) National Industry Guidelines for hydrometric monitoring, Part 8: Application of Acoustic Doppler Current Profilers to Measure Discharge in Open Channels (2013) WISBF GL 100.08-2013 (‘National ADCP Guidelines’), which in Mr McDermott’s opinion endorses the taking of gaugings as a matter of discretion within a weir pool in a river source and, further, that the consistent flow rate was a result of the incompressibility of water. This contradicts the evidence given by Dr Martens that the taking of gaugings away from the actual Bourke gauge is “inconsistent with the recommended practice described in AS3778”. Accordingly, while WaterNSW and its predecessor entities only occasionally took gaugings at the precise Bourke gauge location, the prosecutor, relying on the evidence of Mr McDermott, submits that the impact of the Weir across the weir pool up to and including the Bourke gauge means that the gaugings data recorded at other nearby locations along the Darling River can be taken to be the same data applicable to the Bourke gauge itself.

392. Although as noted below, Dr Martens opined that various “sources of uncertainty” such as river bed and river bank conditions and river bed obstructions (including scour, rocks, logs and vegetation) may eliminate the controlling impact of the Weir, thereby rendering Rating Table 300.14 and the rating curve used to derive the ultimate flow rate on the Darling River at the Bourke gauge inaccurate, the prosecutor submits that hypothesis cannot be supported in circumstances where the evidence demonstrates that gaugings were taken at various points along the Darling River and still produced an essentially uniform river height to discharge relationship in the 2,000 to 7,000 ML per day range. The prosecutor relied on the Summary Rating Curve, which is a rating curve based upon all gauging data taken from 1885 to 2016 (‘Summary Rating Curve’), as evidence demonstrating the strong concentration of this data.

393. Further, the prosecutor submits that, on that basis that Dr Martens conceded that the underlying area in the weir pool was “very flat”, the consistent flow rate in the weir pool based on the incompressibility of water referred to by Mr McDermott during his examination in chief could be expected to hold true.

394. In response to the defendants’ concerns in relation to the reliability of the various calculations, the prosecutor points to Mr McDermott’s evidence and submits that after the Bourke gauge was moved, it was still located in the weir pool and therefore the Weir continued to produce weir or section control, and therefore a uniform flow rate, up to and including the location of the Bourke gauge.

395. The prosecutor submits that the fact that the movement of the Bourke gauge is irrelevant to the certainty and reliability of the rating curve and Rating Table 300.14 was confirmed by Mr McDermott. Mr McDermott deposed that at the time he prepared his report, he was aware that the Bourke gauge had been moved but “dismissed it as not relevant”. According to Mr McDermott, there is “one level pool all the way back” so that the movement of the gauge (and the corresponding Gauge Posts adjacent thereto) would still produce the same flow rate measurements without any inaccuracies, so long as the Department “calibrate[d] their new set of level staff gauges to their old ones”.

396. The prosecutor submits that the records of WaterNSW and the evidence of Mr Cutler verifies that the new site was formally surveyed at the time the Bourke gauge was relocated. Further, the records taken by the Department employees during the course of conducting gauging and height data measurements on Inspection Dates between 17 May 2016 and 20 May 2016 and between 7 June 2016 and 8 June 2016 support the fact that the Gauge Posts were calibrated following the movement of the gauge, thereby ensuring that measurements from gaugings (and therefore the Rating Curve, Rating Table 300.14 and the ultimate flow rate) remained accurate in the manner suggested by Mr McDermott. The prosecutor relied upon two gaugings taken after the movement of the Bourke gauge to demonstrate that the relocation had no effect on the data produced, as it remained consistent with the line of best fit identified in the Summary Rating Curve.

Defendants’ position

397. The defendants note that there was no actual recording of the flow rate at the Bourke gauge on any of the days in the charge period. As such, the defendants say that the prosecutor has sought to rely on an assortment of measurements taken at various locations in the river in different years for the purpose of contending that one can estimate what the flow may have been at the Bourke gauge during the charge period. The defendants submit that the measurements relied upon (even if properly taken) were not taken at the Bourke gauge and were usually taken hundreds of metres or many kilometres away where conditions may be quite different.

398. While Mr McDermott submitted that flow could be measured anywhere along the stretch of the river which he described as a “weir pool”, as the flow was constant and because water was not compressible, the defendants submit that he did not define what a “weir pool” was, how there could be a pool at times where the river height exceeded the weir height, or where the weir pool might begin and end. Nonetheless, the defendants note that Mr McDermott submitted that it depended on the Gauge Post being correctly calibrated and there was no evidence this occurred. The defendants say that Mr McDermott implicitly said it depended upon the flow measurement being related back to the height at the Bourke gauge, and that, there is no evidence this occurred. Mr McDermott also said it depended on there being no leakage and he did now know whether or not there was leakage. The defendants note that one of the four inspection reports tendered by the prosecutor demonstrated that leakage does occur.

399. The defendants note that Dr Martens explained why Mr McDermott’s weir pool explanation is incorrect by reference to catchment area factors, friction related factors, influence of evaporation, and the influence of water leakage and addition along the river. The defendants submit that the Court would prefer the evidence of Dr Martens to Mr McDermott’s assertion based on the physical property of water (non-compressibility), without reference to the facts and circumstances of the river.

400. The defendants submit that the measurement of flow must be related back to the height of the river at the Bourke gauge, and not where the flow is being measured. The defendants say that there is no evidence this was done, nor whether the height measurement being used on any given day was that at the Bourke gauge or that at the gauging event location. Even if it was at the gauge, the defendants submit that it would take time for the inspector to travel to the gauge, by which time the height may well have changed. Dr Martens explained how the rating curve appeared to be extremely sensitive for only small differences in water heights and was therefore particularly susceptible to be rendered inaccurate by incorrect gaugings. The defendants say that Mr McDermott did not deal with this and assumed that all gauging flows related back to the height at the Bourke gauge, an assumption not made out on the evidence.

401. The defendants submit that the rating curve cannot be considered reliable as it proceeds on the basis that the relevant point to commence measuring flow is 3.92m (on the basis that water at the downstream weir will cease to flow below when the river is at that height at the Bourke gauge) and the McDermott Report was based upon the same assumption. The defendants contend that there is no evidence to demonstrate the accuracy of that measurement. The defendants submit that a document which puts the cease to flow height at the Bourke gauge at 3.92m cannot be relied upon as Mr Cutler admitted that the coordinates on the document may be referring to the previous location of the Bourke gauge.

Consideration

402. Although not determinative in my overall findings, I accept the evidence of Mr McDermott in relation to the effect of the Weir, and generally in relation to the “Weir pool”. As such, I accept Mr McDermott’s evidence that the Weir is a unique hydraulic control producing, in effect, a uniform flow rate across the length of the Weir pool which extends up to and including the Bourke gauge during periods of low to medium flow. I also accept Mr McDermott’s evidence in relation to the normal practice in the industry and that consistent flow rate about which he opines is the result of consistency in channel factors throughout the weir pool as well as the incompressibility of water.

403. In accepting Mr McDermott’s evidence, I find that it is unlikely that the possible introduction of “rocks, scour, logs and vegetation and/or evaporation” could eliminate the controlling impact of a Weir which Mr McDermott described. Further, although there was dispute between Dr Martens and Mr McDermott in relation to the amount of the “scatter” in relation to the rating curve, I accept Mr McDermott’s evidence that, having conducted a statistical analysis of gauging data nearest to a flow rate of 4,894 ML per day, he found that there was a maximum deviation of 12.4% within the gaugings data from Rating Table 300.14, and Despite Mr McDermott’s concession in relation to possible leakage, I accept that potential sources of error such as this have been adequately accounted for in Mr McDermott’s uncertainty analysis.

404. I find that the evidence demonstrates that the cease to flow height at the Bourke gauge was 3.92m, including after the movement of the gauge. Despite Dr Martens’ assertion that the note “No flow @ weir crest Weir gauge = 3.774 @ 1645Hrs” could potentially indicate a cease to flow height of 3.774m, I do not accept that this was indicative of a new gauge height level as this record is clearly noting the weir gauge height of 3.774m and noting a lack of flow as two discrete observations. As I find that the lack of flow in circumstances where the gauge height is 3.774m is nonetheless factually consistent with a cease to flow height of 3.92m, therefore I do not accept this contention. The evidence adduced by the prosecutor during Dr Martens’ cross examination demonstrates that gaugings after the Bourke gauge relocation were consistent with the long term trend, further supporting this finding.

405. In addition to the above, I find that the taking of gaugings at various points along the river (even away from the physical location of the Bourke gauge) is in accordance with the accepted industry practice in circumstances where the flow remains uniform due to weir control and as confirmed by reference to Pt 2.2 cl 5.2.6 and Pt 3.1 cl 5.1(o) of AS3778 and cl 6.1 of the National ADCP Guidelines to which I have been referred. I do not accept Dr Martens’ evidence in these circumstances that the taking of gaugings away from the Bourke gauge is not in accordance with accepted practice described in AS3778. In making this finding, I note that the presence of the Bourke Weir and its subsequent effect on the hydrology of the relevant river section was critical and I have considered Dr Martens’ concerns in relation to this aspect and accept that, had the factual circumstances of the river been different, these concerns may have manifested a different result.

402. I also accept the evidence of Mr McDermott that the movement of the gauge would have no impact if the gauge was recalibrated correctly, and that the records of WaterNSW indicate that the relocated site was surveyed prior to the charge period. To the extent that there was further criticism by Dr Martens in relation to Gauge Posts being correctly calibrated, I repeat my finding that the evidence demonstrates that gaugings taken after the Bourke gauge relocation were consistent with the long term trend and were further analysed by Mr McDermott as having a marginal deviation from the rating curve. Further, even if it were the case that the river heights were taken at the gauging location instead of the Bourke gauge, the evidence regarding the weir control and incompressibility of water given by Mr McDermott (which I have accepted) indicates that the calculated flow would remain unchanged.

403. In relation to the movement of the Bourke gauge in May 2016, the prosecutor relied on gauging records taken after movement of the gauge in order to demonstrate the negligible effect of the relocation. Mr McDermott’s statistical analysis of gauging number 590 and gauging number 557 and their respective deviations from the rating curve of 1.5% and 5.62% adds weight to the prosecutor’s submission that the movement of the Bourke gauge did not impact upon the accuracy and reliability of the rating curve. Further, when questioned in cross examination on the consistency of these data points with the rating curve and Rating Table 300.14, Dr Martens described each as falling within a “scatter” of dots. I consider that the use of statistical methods by Mr McDermott to quantify the extent of uncertainty and variability, which is founded on a scientific basis and outlined in the corresponding Australian Standard, is the approach which ought to be adopted in the circumstances. As such, I have no reasonable doubt that the river height data obtained at the Bourke gauge after its relocation in May 2016 and therefore during the charge period was accurate.

404. For the above reasons, I find that movement of the Bourke gauge and the taking of gaugings at other locations within the weir pool did not have an impact upon the accuracy of the rating curve, Rating Table 300.14 or the ultimate flow rate calculated at the Bourke gauge beyond the level of uncertainty that was appropriately accounted for by Mr McDermott. Further, I do not accept Dr Martens’ evidence that factors such as friction, evaporation and leakage have a relevant or material effect or were otherwise not accounted for in Mr McDermott’s statistical assessment.

Conclusion on Element 4

409. Whilst I have made separate findings above in relation to specific areas of disagreement between the experts, I consider that Mr McDermott did, as the prosecutor submits, provide clear and reasoned explanations for agreeing (and on occasion disagreeing) and included detailed reference to AS3778 and the processes and practices employed by WaterNSW and confirmed the veracity of these practices including the underlying gaugings data.

410. Both parties made submissions concerning the manner in which the experts had approached and gave their evidence. The prosecutor sought to contrast the evidence of Mr McDermott, who on its submission had provided clear evidence supported by reference to applicable standards that he was well familiar with, with Dr Martens’ evidence which the prosecution submits does not make any hard findings, was based on a limited understanding of the details of the case and the relevant section of river, contained important concessions, and was prepared within a relatively short four day period. Further, the prosecutor submitted, and I accept, that Mr McDermott was also not significantly challenged in cross examination. In response, the defendants submit that it is not open to the prosecutor to make something of the date of Dr Martens’ report and the time taken to prepare it given that this was not put to Dr Martens in cross examination. The defendants submit that the issues addressed in Dr Martens’ report were not complex in light of his expertise and the limited data available.

411. Despite the defendants’ submission that Dr Martens did not merely express “concerns”, and acknowledging that Dr Martens, as an expert, opined that the evidence he had been provided with did not enable him to reliably assess the matter, I nonetheless find that Dr Martens’ criticisms were largely of a speculative nature. Dr Martens did not quantify or qualify the impact of any sources of error he addressed, nor did he present any reasonable or practicable alternatives, with the exception of installing a series of measuring devices at appropriate locations along the cross-section of the river, to the methodology employed by Department personnel in recording gauging data and producing Rating Table 300.14.

412. Although I accept that the prosecutor bears the onus beyond reasonable doubt throughout, I have been presented with the evidence of Mr McDermott which quantifies, in accordance with accepted industry practice and a comprehensive Australian Standard, the full and cumulative extent of error and uncertainty, which in contrast Dr Martens raises as concerns, if not possibilities. As such, I prefer the evidence of Mr McDermott in relation to assessment of error and uncertainty in gauging data and in calculation of flow rate at the Bourke gauge.

413. In accepting the evidence of Mr McDermott and light of my findings noted above, including in relation to the accuracy and reliability of the underlying data, the accuracy and reliability of Rating Table 300.14, and the evidence in relation to the movement of the Bourke gauge and how gaugings were undertaken, I find beyond reasonable doubt that the flow of the Darling River at the Bourke gauge was below 4,894 ML per day for the duration of the charge period.

Conclusion

414. The WM Act provides a comprehensive statutory regime for the sustainable and integrated management of the water sources of New South Wales for the benefit of both present and future generations and, relevantly, encourages the sharing of responsibility for the sustainable and efficient use of water between the Government and water users. Despite its noble intentions, the legislative regime is not without complexity.

415. I have considered all of the evidence closely. The defendants bear no onus and the matters that need to be established beyond reasonable doubt are the essential elements of the offence.

416. For the reasons I have given, I find beyond reasonable doubt, first, that the defendants were holders of a Water Supply Works and Water Use Approval applying to the Barwon-Darling Unregulated River Water Source during the charge period; second, that the Approval contained a condition that water must not be taken when the flow of the Darling River at the Bourke gauge was equal to or less than 4,894 ML per day; third, during the charge period the defendants took water from the water source; and, fourth, that that water was taken when the flow of the Darling River at the Bourke gauge was equal to or less than 4,894 ML per day.

Orders

417. In the circumstances, the orders of the Court are:

In proceedings 2018/00073936:

1. Peter James Harris is convicted of the offence against s 91G(2) of the Water Management Act 2000 (NSW) as charged.

2. Proceedings are stood over to a date to be fixed for submissions on penalty.

In proceedings 2018/00073940:

1. Jane Maree Harris is convicted of the offence against s 91G(2) of the Water Management Act 2000 (NSW) as charged.

2. Proceedings are stood over to a date to be fixed for submissions on penalty.

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Decision last updated: 20 March 2020