Zizza v Minister Administering the Water Management Act - [2014] NSWLEC 170

Land and Environment Court

New South Wales

Medium Neutral Citation: Zizza v Minister Administering the Water Management Act [2014] NSWLEC 170
Hearing dates: 20-21, 25 August 2014
Decision date: 28 October 2014
Jurisdiction: Class 1
Before: Pain J
Decision:
See paragraph 144

Catchwords: APPEAL - section 56A appeals on questions of law concerning application of the Water Management Act to existing and proposed water supply work - whether water supply work excluded from requirement to obtain approval - whether in-stream dam impounding water also extracting water from stream
Legislation Cited: Environmental Planning and Assessment Act 1979 s 121B
Interpretation Act 1987 s 34, s 35
Land and Environment Court Act 1979 s 56A
Land and Environment Court Rules 2007
Protection of the Environment (Operations) Act 1991 s 96
Uniform Civil Procedure Rules 2005 r 50.11
Water Management Act 2000 s 2, s 3, s 20, s 52, s 53, s 54, s 56, s 89, s 90, s 91B, s 91M, s 327, s 328, s329, s 368, s 329
Water Management (General) Regulation 2011 cl 3, cl 34, cl 36, Sch 1
Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Harris v Harrison [2014] NSWCCA 84; (2014) 201 LGERA 277
Hope v Bathurst City Council (1980) 144 CLR 1
Hurstville City Council v Minister for Planning and Infrastructure [2012] NSWLEC 134; (2012) 189 LGERA 269
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
SAS Trustee Corporation v Woollard [2014] NSWCA 75
Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439
Zizza v Minister Administering the Water Management Act 2000 [2013] NSWLEC 1095
Zizza v Minister Administering the Water Management Act 2000 [2014] NSWLEC 1017
Category: Principal judgment
Parties: Zizza, Anthony Samuel (Appellant)
Minister Administering the Water Management Act (Respondent)
Representation: Mr A Pickles with Ms N Hammond (Appellant)
Mr C Norton (Respondent)
MAS Lawyers (Appellant)
NSW Department Trade and Investment (Respondent)

File Number(s): 10119 of 2014; 10120 of 2014
Decision under appeal

Before:

O'Neill C

File Number(s):

10388 of 2012 and 10536 of 2013

Judgment

Section 56A appeals on questions of law

This judgment considers two appeals under s 56A of the Land and Environment Court Act 1979 (the Court Act) from two decisions of a Commissioner. Such appeals must be made in relation to questions of law.

In Zizza v Minister Administering the Water Management Act 2000 [2013] NSWLEC 1095 (Zizza (No 1)) (matter no 10388/12) the Commissioner determined as a preliminary question whether the Respondent Minister Administering the Water Management Act had power to issue a Direction to Remove Water Management Works (the direction) under s 329(2) of the Water Management Act 2000 (the WM Act) in relation to a dam on the property owned by Mr Zizza the Appellant at Mangrove Mountain on Popran Creek. The appeal against the direction was enabled by s 368(1)(n) of the WM Act. The Commissioner made certain findings about whether works were exempt from a requirement for a water supply work approval called excluded works. The original dam structure built before 1 January 1999 (an important date in the statutory scheme I discuss below) was found to be an excluded work which the direction could not therefore apply to. Repair work carried out after 1 January 1999 was found to require approval, not being excluded work as defined under the WM Act. It could therefore be the subject of a direction issued under s 329.

Subsequent to that decision the Appellant chose to lodge a water supply work approval application under the WM Act with the Respondent. The application was refused and the Appellant exercised his appeal right to this Court under s 368(1)(g) of the WM Act (matter no 10536/13). In Zizza v Minister Administering the Water Management Act 2000 [2014] NSWLEC 1017 (Zizza (No 2)) the Commissioner considered the substantive appeal against the direction issued by the Respondent also the subject of Zizza (No 1) and the appeal against the refusal of the approval application. In the course of Zizza (No 2) the Commissioner revisited her earlier finding of what was an excluded work and found the original dam was not, in light of new evidence before her in the second hearing.

It has been agreed with the parties after much discussion and refinement of the issues in the course of the extended hearing that I will not answer all the questions identified in the Third Amended Summons and in the Respondent's Notice of Contentions at this stage. I should identify for completeness that the Respondent has filed such a notice an approach which appears permissible in s 56A appeals under r 50.11 of the Uniform Civil Procedure Rules 2005. The filing of such a notice is not precluded by the Land and Environment Court Rules 2007. The Appellant did not object to this course being taken by the Respondent. The questions I will address in this judgment are the Respondent's contention 1 (no specific finding made in Zizza (No 1) and (No 2)), the Appellant's ground 2 (challenge to Zizza (No 2)), the Respondent's contention 2 (challenge to Zizza (No 1)) and the Appellant's ground 4 (challenge to Zizza (No 2)).

The parties agreed the following factual findings of the Commissioner as follows:

Zizza (No 1) (3 June 2013)

Facts identified by the Commissioner as "Agreed Facts"

1) The dam on the subject land comprises at least one "water supply work", which is also a "water management work" (paragraphs [18], [29], [31]]).

2) The water supply work is used for domestic consumption and stock watering or does not result in the extraction of water (paragraph [21]).

3) The water supply work is located on a minor stream (paragraph [21]).

4) The water from the water supply work is being used only on the landholding on which the dam is located (paragraph [21]).

5) The capacity of the existing dam significantly exceeds the harvestable rights capacity of the land (paragraphs [12], [26]).

6) The water supply work was constructed between 1984 and 1989 (paragraphs [6], [27]).

7) The dam wall burst on the southern side in January 1991. Repair works were carried out between 1994 and 1999 (paragraphs [7], [[27]).

8) The southern wall of the dam seeped water from 2003 until 2005 and repair works were carried out in 2006 (paragraphs [9], [27]).

9) In 2011, fill was added to the southern side of the dam embankment wall (paragraphs [10], [27]).

Findings of Fact

10) The dam was in existence in December 1990. The dam wall failed in 1991 and the dam was not functioning again until 1999 (paragraph [30]) and was not holding water on 20 April 1999 (paragraph [31]).

Zizza (No 2) (5 February 2014)

Agreed Facts

11) The dam is fed by an unnamed water course running through Lot 3, which is a tributary of Popran Creek and flows south to Popran Creek (paragraph [6]).

12) Repair works were carried out between 1994 and 1999 (paragraph [11]).

13) Further repair works were carried out in 2006 (paragraph [11]).

14) Further fill was added to the embankment wall in 2011 and further slippage and erosion of the embankment occurred since 2011 (paragraph [11]).

15) No water management work approvals under the Water Management Act have been issued in respect of the dam or the various repairs made to the dam (paragraph [12]).

16) The capacity of the dam (both existing, and as proposed in the Approval Appeal) exceeds the harvestable rights capacity of the site of 7ML (paragraphs [54], [66]).

17) The entire structure was prone to fail. If the dam fails, there will be an ecological impact (paragraph [77]).

Findings of Fact

18) The capacity of the existing dam is 39.9ML and the water surface area was approximately 12,700m2 (paragraph [8]).

19) The dam recommenced impounding water sometime between 20 April 1999 and 18 March 2002 (paragraph [11]).

20) The brief for the design of the reconstructed dam from Mr Zizza to the engineer (Mr de Silva) was to design a dam that was in the same location as the existing dam with the same surface area (paragraph [39]).

21) Mr Zizza uses a small proportion of the water in the dam for watering his garden and lawn, to fill rainwater tanks servicing the house and for watering cattle. He does not use the water in the dam for the purposes of irrigating crops and has no intention of doing so in the future (paragraph [63] (and [43], [44])). Mr Zizza's evidence in this regard was not available at the time of the First Decision (paragraph [63]).

22) The primary purpose of the existing dam is as an ornamental lake and for water sports and a pleasant aesthetic outlook (paragraph [64]-[65]).

23) A new dam, if it were to be used solely for domestic and stock watering purposes, would not require the same surface area as the existing dam (paragraph [65]).

24) Water impounded by the dam would continue to flow to Popran Creek if not so impounded (paragraph [67]).

25) The proposal is for reconstruction of the dam, comprising the following works:

· the dam wall is to be stripped of its original embankment and rebuilt to a new design, with a new profile and a new gravel drainage layer;

· the spillway capacity is to be increased and the crest level reduced;

· the culvert is to be removed;

· the outlet pipe is to be decommissioned;

· the dam floor is to be filled in order to lessen the depth of the dam and decrease the storage capacity from 39ML to 19ML

(paragraph [70], [81]).

26) The dam wall must be entirely reconstructed if there is to be certainty as to its integrity and design capacity (paragraph [70], [81]).

27) The original dam would not remain extant. The only similarity between the existing dam and the proposal is the position of the dam and the surface area (paragraph [71]).

28) The proposal was not seeking approval for the individual repair works carried out to the original dam but for the reconstruction of the dam to a new design (paragraphs [72], [81]).

29) The proposal to take 19ML from the unnamed stream is an excessive volume of water when the purpose of taking water is for an ornamental lake (paragraphs [74], [82]).

30) The amended direction to decommission the dam is preferable to the amended direction for interim works (paragraph [80]).

31) The decommissioning of the dam will eliminate the significant threat the existing dam poses to safety and environmental damage (paragraph [83]).

32) The temporary interim works proposed by the Applicant do not provide sufficient certainty that the dam will not pose a risk in the future, as the works are intended to provide a two year stop gap measure only, in anticipation of an approval for the reconstruction of the dam. It is not an appropriate response to continue to add material to shore up a structure that the experts agree is fundamentally flawed (paragraph [84]).

The affidavit of Mr Dion Manca sworn 28 May 2014 was read by the Appellant. The exhibit to this affidavit was tendered (exhibit A) containing the Commissioner's judgments, transcript, pleadings, evidence and draft conditions and directions before the Commissioner. The affidavit of Ms Liyan Leow sworn on 30 May 2014 was read by the Respondent. The exhibit to this affidavit was tendered (exhibit 1) containing exhibits and submissions in the hearings before the Commissioner. This included historical aerial photographs. One photograph dated 20 April 1999 (photograph 10, p 70) shows no water pooled behind the dam. Another photograph dated 18 March 2002 (photograph 11, p 72) shows water pooling behind the dam and earthworks undertaken in the vicinity (TS 145).

Water Management Act 2000

The relevant sections of the Water Management Act provide:

3 Objects

The objects of this Act are to provide for the sustainable and integrated management of the water sources of the State for the benefit of both present and future generations and, in particular:

(a) to apply the principles of ecologically sustainable development, and

(b) to protect, enhance and restore water sources, their associated ecosystems, ecological processes and biological diversity and their water quality, and

(c) to recognise and foster the significant social and economic benefits to the State that result from the sustainable and efficient use of water, including:

(i) benefits to the environment, and

(ii) benefits to urban communities, agriculture, fisheries, industry and recreation, and

(iii) benefits to culture and heritage, and

(iv) benefits to the Aboriginal people in relation to their spiritual, social, customary and economic use of land and water,

(d) to recognise the role of the community, as a partner with government, in resolving issues relating to the management of water sources,

(e) to provide for the orderly, efficient and equitable sharing of water from water sources,

(f) to integrate the management of water sources with the management of other aspects of the environment, including the land, its soil, its native vegetation and its native fauna,

(g) to encourage the sharing of responsibility for the sustainable and efficient use of water between the Government and water users,

(h) to encourage best practice in the management and use of water.

Chapter 3 Water management implementation

Part 1 Basic landholder rights

Division 1 Domestic and stock rights

52 Domestic and stock rights

(1) Subject to subsection (2), an owner or occupier of a landholding is entitled, without the need for an access licence, water supply work approval or water use approval:

(a) to take water from any river, estuary or lake to which the land has frontage or from any aquifer underlying the land, and

(b) to construct and use a water supply work for that purpose, and

(c) to use the water so taken for domestic consumption and stock watering, but not for any other purpose.

(2) Subsection (1) does not allow a landholder:

(a) to take or use water in contravention of any mandatory guidelines established under section 336B, or

(b) to construct a dam or water bore without a water supply work approval, or

...

(3) In this section:

domestic consumption, in relation to land, means consumption for normal household purposes in domestic premises situated on the land.

stock watering, in relation to land, means the watering of stock animals being raised on the land, but does not include the use of water in connection with the raising of stock animals on an intensive commercial basis that are housed or kept in feedlots or buildings for all (or a substantial part) of the period during which the stock animals are being raised.

Division 2 Harvestable rights

53 Harvestable rights

(1) An owner or occupier of a landholding within a harvestable rights area is entitled, without the need for any access licence, water supply work approval or water use approval:

(a) to construct and use a dam for the purpose of capturing and storing rainwater run-off, and

...

54 Harvestable rights orders

(1) The Minister may, by order published on the NSW legislation website, constitute any land as a harvestable rights area and may, by the same or a subsequent order so published, name the area and fix its boundaries.

Editorial note. For harvestable rights orders see Gazette No 110 of 1.7.2004, pp 5515, 5517.

(2) The order by which a harvestable rights area is constituted must specify the following:

(a) the proportion of the average rainwater run-off that may be captured by landholders in the area (being no less than 10% of that average),

(b) the procedures to be followed for calculating the average rainwater run-off for a landholding in the area.

(3) The order may allow an existing dam to be used both for rainwater run-off that has been captured and other water that has been lawfully taken from a water source.

...

Part 3 Approvals

Division 1 Preliminary

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. [not applicable]

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.

Division 1A Offences

91B Constructing or using water supply work without, or otherwise than as authorised by, a water supply work approval

(1) A person:

(a) who constructs or uses a water supply work, and

(b) who does not hold a water supply work approval for that work,

is guilty of an offence.

...

(3) Without limiting subsection (2), a person constructs or uses a water supply work otherwise than as authorised by a water supply work approval if the person constructs or uses such a work while the approval is suspended.

...

(5) It is a defence to a prosecution under subsection (1) if the accused person establishes that the water supply work was constructed or used pursuant to a basic landholder right.

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.

...

Chapter 7 Enforcement

Part 1 Directions to landholder and other persons

Division 3 Unlawful works and activities

327 Stop work order regarding unlawful construction or use of water management work

(1) This section applies to a water management work that, in the Minister's opinion, is being constructed or used, or is about to be constructed or used, in contravention of this Act.

(2) The Minister may, by order in writing served on any person having control or management of the water management work, direct the person to take specified measures:

(a) to prohibit or discontinue its construction or use, or

(b) to construct or use the work only as specified.

(3) Without limiting subsection (2), the landholder on whose land the water management work is situated, or is proposed to be situated, is taken to have control and management of the work.

328 Stop work order regarding unlawful controlled activity or aquifer interference activity

(1) This section applies to a controlled activity or aquifer interference activity that, in the Minister's opinion, is being carried out, or is about to be carried out, in contravention of this Act.

(2) The Minister may, by order in writing served on any person carrying out the controlled activity or aquifer interference activity, direct the person to take specified measures:

(a) to prohibit or discontinue that activity, or

(b) to carry out that activity only as specified.

(3) Without limiting subsection (2), the landholder on whose land a controlled activity or aquifer interference activity is being carried out, or is proposed to be carried out, is taken to be carrying out that activity.

329 Removal of unlawful water management works

(1) This section applies to a water management work for which no water management work approval is in force.

(2) The Minister may, by order in writing served on any person having control or management of the work, direct the person to take specified measures to demolish, remove, modify or dismantle the work or otherwise render it ineffective.

(3) Such a direction may be given even if the work is not being used or is not capable of being used.

(4) Such a direction may not be given in relation to a water supply work that is being used solely:

(a) to take water from a water source pursuant to a landholder's domestic and stock rights, or

(b) to capture and store rainwater run-off pursuant to a landholder's harvestable rights.

(5) Without limiting subsection (2), the landholder on whose land the work is situated is taken to have control and management of the work.

The dictionary to the WM Act contains the following relevant definitions:

basic landholder rights means domestic and stock rights, harvestable rights or native title rights.

construct a work includes install, maintain, repair, alter or extend the work.

water management work means a water supply work, a drainage work or a flood work, and includes any part of such a work.

water management work approval means a water supply work approval, a drainage work approval or a flood work approval.

water source means the whole or any part of:

(a) one or more rivers, lakes or estuaries, or

(b) one or more places where water occurs naturally on or below the surface of the ground,

and includes the coastal waters of the State.

water supply work means:

(a) a work (such as a water pump or water bore) that is constructed or used for the purpose of taking water from a water source, or

(b) a work (such as a tank or dam) that is constructed or used for the purpose of:

(i) capturing or storing rainwater run-off, or

(ii) storing water taken from a water source,

(c) a work (such as a water pipe or irrigation channel) that is constructed or used for the purpose of conveying water to the point at which it is to be used, or

(d) any work (such as a bank or levee) that has, or could have, the effect of diverting water flowing to or from a water source, or

(e) any work (such as a weir) that has, or could have, the effect of impounding water in a water source,

including a reticulated system of such works, and includes all associated pipes, sluices, valves, metering equipment and other equipment

...

water supply work approval means an approval referred to in section 90 (2).

The relevant clauses of the Water Management (General) Regulation 2011 (the Regulation) provide:

3 Definitions

(1) In this Regulation:

...

domestic consumption has the same meaning as it has in section 52 of the Act.

excluded work means a work referred to in Schedule 1.

stock watering has the same meaning as it has in section 52 (3) of the Act.

Part 3 Approvals

Division 2 Exemptions

Subdivision 3 Exemption from requirement for water supply work approval

34 Exemptions relating only to construction of water supply works

(1) A person is exempt from section 91B (1) of the Act in relation to the construction of any of the following water supply works:

(a) a water supply work constructed for the purpose of prospecting or fossicking for minerals or petroleum under the Mining Act 1992 or the Petroleum (Onshore) Act 1991 and for no other purpose,

(b) the construction of a water pipe for use solely for conveying water from one place to another,

(c) the construction of a water reticulation work on land the subject of a water use approval.

...

36 Exemptions relating to both construction and use of water supply works

(1) The following persons are exempt from section 91B (1) of the Act in relation to the construction or use of a water supply work if the work is constructed or used for any of the purposes, and in the circumstances, specified in relation to the work:

(a) any person who is a landholder, in relation to the construction of an excluded work referred to in item 1, 2, 3, 4, 6, 7 or 9 in Schedule 1 that is situated on the land, or the use of the work for any of the purposes, and in the circumstances, specified in Schedule 1 in respect of the work,

...

Schedule 1 Excluded works

...

6 Works impounding water that exceeds the harvestable rights referred to in an order under section 54 of the Act:

(a) that were constructed before 1 January 1999, and

(b) that are used solely for domestic consumption and stock watering or that do not result in the extraction of water, and

(c) that are located on a minor stream, and

(d) from which water is being used only on the landholding on which the dam is located.

7 Dams or excavations located on a river or lake constructed under section 7 of the Water Act 1912 before 1 January 2001 that are used solely for stock, domestic or stock and domestic purposes, or for purposes which do not require extraction of water.

...

9 Works in the Western Division constructed before 1 January 1999:

(a) impounding water on the areas of land shown in the legend of the 1:100 000 topographic maps issued by the Land Information Centre applying at 1 January 1999 to that Division as land subject to flooding or inundation, or lakes shown as "perennial" or "intermittent", and

(b) from which water is used solely for stock, domestic or stock and domestic purposes, or for purposes which do not require extraction of water.

Extract from Zizza (No 2)

In Zizza (No 2) the Commissioner held:

The proposal [subject of 10536/13]

9 The application describes the purpose of the dam as 'domestic' under 'Section G, Water Use' and 'domestic-aesthetic' under 'Section S, Storage Works - in-river storage only' (exhibit 5, tab 3, ff 26, 32). The proposal is also described by the Applicant as being for 'repair and remediation works to the existing dam' (Affidavit of Dion Robert Manca 15 November 2013 par 5).

10 The proposal is for the civil engineering works described in the Network Geotechnics drawing set titled 'Proposed Dam Wall Design' and dated 14.11.13 (exhibit 8 - which includes notation added to the drawing set by the Respondent's expert). The proposal is to strip the dam wall of its original embankment and rebuild it to a new design, with a new profile and a new gravel drainage layer; to increase the spillway capacity and reduce the crest level; to remove the culvert; to decommission the outlet pipe and to fill in the dam floor in order to lessen its depth and decrease the storage capacity from 39ML to 19ML.

...

35 The experts agreed on the following:

· the entire structure [of the dam wall] is prone to failure (exhibit 5, tab 21, p 7);

· the dam in its current condition poses a significant risk to safety and environmental damage (exhibit 5, tab 21, p7);

· properly engineered rectification works can be implemented to reduce the risk to safety and environmental damage (exhibit 5, tab 21, p 7);

· the steps to be taken if the dam is to be decommissioned so that it no longer holds water (exhibit 5, tab 21, p3) (the amended Direction to decommission the dam, exhibit 6);

· the steps to be taken to ensure the dam does not pose an unacceptable risk to persons and the environment downstream in the short term (2 years) (exhibit 5, tab 21, p4) (the amended Direction for interim works, exhibit 7);

· the design of the proposal should be revised to include a chimney drain taken up to full supply level; a hard durable free draining gravel blanket drain downstream of the chimney drainage zone not less than 300mm; and a graded filter around the outlet pipe at critical breach section and geotextile elsewhere (exhibit 5, tab 21, p11).

...

Findings

Is the existing dam [and the proposed dam] an excluded work under the WM Act?

62 In the preliminary judgment, I found that the original dam was an excluded work, on the basis that it satisfied the WM Regulation, Schedule 1, item 6(a) (preliminary judgment, par 31) and the parties agreement that (b), (c) and (d) of item 6 were satisfied (preliminary judgment, par 21).

63 Mr Zizza's Affidavit (exhibit E) was not available when the Directions Appeal was part heard in May 2013. Mr Zizza's evidence, in relation to the existing dam, is that he occasionally waters his garden and fills his water tanks from the dam (exhibit E, pars 6, 9) and that he had never used the dam to irrigate crops and never intends to (exhibit E, par 9). According to Mr Zizza,

the dam has provided significant amenity for my family and I, in terms of the pleasant aesthetic outlook that it provides for the property and adjoining residence, and also the recreational opportunities it has permitted including fishing, swimming and personal watercraft activities (exhibit E, par 8).

64 While I accept that Mr Zizza does use a small proportion of the significant capacity of the existing dam for domestic purposes (watering his garden and filling his water tanks), the primary purpose of the existing dam, according to Mr Zizza, is as an ornamental lake and its use for water sports. This is supported by Mr de Silva's evidence, that the brief given to him in designing the proposal was primarily to maintain the vast surface area of the existing dam and everything else was secondary to achieving the same surface area of the dam (transcript 27.11.13 p66, lines 47-50; p67, lines 3-5).

65 A new dam, if it were to be used solely for domestic and stock watering purposes, would not require the same surface area as the existing dam. Mr Zizza's attachment to the dam, as an ornamental lake, explains why he is seeking is a new dam with the same surface area as the existing dam and not a dam of lesser proportions that would merely satisfy his domestic water requirements, but not provide a large surface area for water sports and a pleasant aesthetic outlook. I do not consider that an ornamental lake used for water sports constitutes 'normal household purposes', as defined by the WM Dictionary for domestic consumption (quoted above at par 30), and therefore the primary purpose of the dam does not fall within the definition of domestic consumption under the WM Act.

66 Basic landholder rights comprise harvestable rights and domestic and stock rights (s 52 WM Act). The Applicant concedes that the harvestable rights capacity for the three lots is 7ML (the preliminary judgment, par 12). The proposal for a dam of 19ML substantially exceeds Mr Zizza's basic landholder rights, as does the existing dam of 39ML.

67 I do not accept the submission of the Applicant that the impounding of water by a dam does not constitute the 'taking' of water. The water in the dam is taken from the water source, as it would otherwise continue to flow to Popran Creek.

68 This takes the existing dam outside the terms of the WM Regulation, Schedule 1, item 6(b), (quoted above in par 25), as the proposal is not to be used solely for domestic consumption and stock watering and the proposal results in the extraction of water from the stream. Based on the evidence before the Court, the existing dam is not an excluded work, as it cannot satisfy either requirement of item 6(b).

Is the proposal a new WMW?

69 Mr de Silva's oral evidence, quoted above at paragraph 38, is that one cannot be sure of exactly what the original dam profile was, because it cannot be determined from geotechnical drilling and because there is no survey or documentation indicating the profile of the original dam. The original profile of the dam can only be determined by removing all the later fill added to the dam. Mr de Silva told the Court that he has had to make an assumption in the documentation as to what the original dam profile was and he cannot be sure of its accuracy. This is confirmed by Mr Jamieson's note added to the drawings 'remove all recent fill and strip face of original embankment - typical for all sections' (exhibit 8).

70 This evidence before the Court leads me to the conclusion that the proposal is for the reconstruction of the dam. Relevantly, the Macquarie Dictionary defines reconstruct as, 'to construct again; rebuild', rectify as, 'to make, put, or set right, remedy; correct' and alter as 'to make different in some particular, modify.' In my view, the proposal is most appropriately characterised as reconstruction, because the dam wall is to be stripped of its original embankment and rebuilt to a new design, with a new profile and a new gravel drainage layer; the spillway capacity is to be increased and the crest level reduced; the culvert is to be removed; the outlet pipe is to be decommissioned; and the dam floor is to be filled in order to lessen the depth of the dam and decrease the storage capacity from 39ML to 19ML. The experts agreed that the entire structure of the dam is prone to failure (exhibit 5, tab 21, p7) and Mr de Silva's evidence is that the original profile and construction of the dam that is the excluded work is unknown, because there is no survey or documentation of the original profile and it cannot be determined from geotechnical drilling (transcript 27.11.13 p57, lines 3-16). On this basis, the dam wall must be entirely reconstructed, if there is to be certainty as to its integrity and design capability.

71 I am not satisfied that the original dam, if it is an excluded work under the WM Act, would remain extant following the construction of the proposal. The only similarities between the existing dam and the proposal is the position of the dam and the surface area. The proposal, being for the reconstruction of the dam, is therefore an entirely new WMW and consequently nothing in the proposal would benefit from being excluded from requiring approval under the WM Act, had the existing dam benefited from an exemption from section 91B(1) of the WM Act.

72 Furthermore, the WM Act defines 'construct a work' as including 'repair, alter or extend the work'. The reconstruction of the dam falls within this definition. The proposal requires WMW approval and it is not seeking approval for the individual repair works carried out to the original dam; it is seeking WMW approval for the reconstruction of the dam to a new design.

Consideration of the Approval Appeal

73 Given my findings that the proposal is an entirely new WMW and consequently nothing in the proposal benefits from being excluded from requiring approval under the WM Act and that the existing dam is outside the terms of excluded works of the WM Regulation; the water volume to be taken by the proposal is a relevant consideration. The question is not whether the proposal will have no greater effect on the environment than the original dam, the question is whether the proposal fulfils the objects and adheres to the water management principles of the WM Act.

74 I consider that weighing up the volume of water to be taken from the unnamed stream, with the purpose for taking the water, is a relevant consideration in determining the Approval Appeal, pursuant to s 96(b) of the WM Act. In my view, the proposal to take 19ML from the unnamed stream is an excessive volume of water, when the purpose for taking the water is for an ornamental lake. Water is a limited resource and the water source must be protected and shared in a sustainable way amongst the community and generally for the benefit of the community. I am not satisfied that the proposal is consistent with the water management principles of the WM Act, to minimise the cumulative impacts of water management licences and approvals, nor am I satisfied that the proposal has considered and minimised its effect on dependent ecosystems.

...

Consideration of the Direction Appeal

79 The use of the existing dam is outside the terms of excluded works of the WM Regulation at Schedule 1, item 6(b), because the dam is not used solely for domestic consumption and stock watering, it is also used as an ornamental lake and for water sports (Mr Zizza's Affidavit, exhibit E, par 8) and because it results in the extraction of water from the unnamed stream. If the existing dam was used solely for domestic consumption and stock watering, it would not require a capacity of 39ML. Therefore a Direction can be made in relation to the impounded water, because the impounded water is not part of an excluded work.

...

Conclusion

The Approval Appeal

81 The proposal to strip the dam wall of its original embankment and rebuild it to a new design, with a new profile and a new gravel drainage layer; to increase the spillway capacity and reduce the crest level; to remove the culvert; to decommission the outlet pipe and to fill in the dam floor in order to lessen its depth and decrease the storage capacity (exhibit 8), is, in my view, most accurately characterised as being for the reconstruction of the dam. The proposal is not seeking approval for the individual repair works carried out to the original dam; it is seeking WMW approval for the reconstruction of the dam to a new design. The size of the proposal is a relevant consideration, because nothing in the proposal benefits from being excluded from requiring approval under the WM Act and the existing dam is outside the terms of excluded works under the WM Act.

82 The proposal to take 19ML from the unnamed stream is an excessive volume of water, when the purpose for taking the water is for an ornamental lake. Water is a limited resource and the water source must be protected and shared in a sustainable way amongst the community and generally for the benefit of the community. I am not satisfied that the proposal is consistent with the water management principles of the WM Act, to minimise the cumulative impacts of water management licences and approvals, nor am I satisfied that the proposal has considered and minimised its effect on dependent ecosystems.

The Direction Appeal

83 The Applicant should be directed to take specific measures to decommission the dam, because the evidence regarding the significant problems posed by the existing dam is overwhelming and the decommissioning of the dam will eliminate the significant threat the existing dam poses to safety and environmental damage. Decommissioning the dam does not preclude a future application to recommission the dam. ...

The works constructed before 1 January 1999, although frequently described by the parties and the Commissioner as a dam, was not a dam within the meaning of par (b) of the definition of water supply work (WSW). It was a work having the effect of impounding water as defined in par (e) of the definition of WSW: see Zizza (No 1) at [18] and Zizza (No 2) at [30].

The grounds of appeal require the construction of parts of the WM Act and the Regulation. Well understood principles of statutory construction require that the ordinary meaning of words of a statute be considered with a purposive approach to their construction. In Hurstville City Council v Minister for Planning and Infrastructure [2012] NSWLEC 134; (2012) 189 LGERA 269 I stated at [55]:

Section 33 of the Interpretation Act 1987 requires a construction which promotes the purpose or object of an Act over one which would not. Guidance on applying this approach was provided by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky at 381 - 382. Their Honours stated that the "primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute", that a "legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals" and that "a court construing a statutory provision must strive to give meaning to every word of the provision". Brennan CJ and McHugh J in IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 12 also referred to the necessity of applying a construction of a statute consistent with its purpose. Where words are plain and unambiguous they should be given their ordinary and grammatical meaning, per Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 305. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47] the joint judgment (Hayne, Heydon, Crennan and Kiefel JJ) confirmed that statutory construction commences with a consideration of the language of the text, which may require consideration of the context, including the general purpose of the provision and the mischief it seeks to remedy. See also French CJ (in a separate judgment but agreeing with the orders of the joint judgment) at [4] - [5]. In Wilson v State Rail Authority of New South Wales [2010] NSWCA 198; (2010) 78 NSWLR 704 at [12] Allsop P stated that in construing an Act the legal and historical context must be considered at the outset. At [13] his Honour emphasised the principles in Project Blue Sky.

In SAS Trustee Corporation v Woollard [2014] NSWCA 75 at [58] Bathurst CJ, (Tobias JA agreeing) cited Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 in emphasising the importance of the words of the statute. An extension of that emphasis important in this case is that additional words should not lightly be implied in legislation.

Contention 1

The Respondent contended that the Commissioner should have held that s 329 of the WM Act applies to any water management work (WMW) for which no water management work approval is in force, regardless of whether such a work is an "excluded work" for the purposes of the Regulation.

The relevant facts are Facts 1 and 15 (see par 5). Fact 15 identifies that no WMW approvals under the WM Act have been issued in respect of the dam or the various repairs to the dam.

This issue that s 329 applies to any WMW was raised in Zizza (No 1) at [36]-[41] by the Respondent. The Commissioner did not determine, as she considered it was unnecessary, whether s 329 applies to a WSW wholly exempted from a requirement for approval by reason of cl 36 of the Regulation. In Zizza (No 2) after reconsidering the question of whether the dam was an excluded work and concluding it was not, the Commissioner concluded that the dam was capable of being subject to a direction under s 329 at [79] so that it was also not necessary to resolve the issue.

Respondent's submissions

A key question is what is the nature of the exclusion afforded by Sch 1 of the Regulation. Section 90 sets out different types of WMW approvals (including WSW approvals). Section 91B(1) provides that it is an offence to construct or use a WMW without holding an approval.

There are defences. One defence in s 91B(5) relates to works constructed or used pursuant to a basic landholder right. It is agreed that that defence does not apply here. Another defence is the "general defence" provided by s 91M(2). Clause 36(1) of the Regulation expressly provides various exemptions from s 91B of the WM Act. There is no exemption from any other provision. The exemption is stated to be for construction or use of WSWs for any of the specified purposes in the various specified items in Sch 1. The Appellant relied on item 6 in Sch 1, which is an exemption with many preconditions, including use for a specified purpose. If the work within item 6 is used for one of the specified purposes, the person using the work for that purpose does not commit an offence under s 91B(1), by reason of the general defence under s 91M(2).

Since neither the WM Act or Regulation provides an exemption from the operation of s 329 in respect of such "excluded works", the question of whether a work is an excluded work is immaterial to the question of whether the power to issue a direction under s 329 exists. The Appellant's argument rests on reading down subsection (1) of s 329 by inserting a qualification that the section does not apply to "excluded works".

The Appellant submitted that it would be contrary to the intent of the defence provisions if the Minister could issue a direction in respect of works excluded from the operation of the offence provision. It was argued that the result would be circular as a person could lawfully construct an excluded work but then be subject to a direction to remove it even though it was lawful, a result said to be capricious.

There are good reasons why the Minister may be afforded a residual discretion to make directions under s 329 to remove or modify works constructed without approval, even if construction of those works would not have constituted commission of an offence. For such works, no environmental assessment is required, nor is there a requirement for ongoing safety assessment. Some excluded works satisfying item 6 may be extremely old, historic works constructed to poor standards. It would be sensible for the Minister to be able to control such works where circumstances dictate that such control is appropriate.

To make a direction to remove or modify such works even if no approval was required is not inherently capricious, nor is it circular. In particular, given that a right of merits appeal exists against such a decision, there is protection against unreasonable or irrational exercise of the power. As the Commissioner pointed out (Zizza (No 1) at [40]) the concept of such a residual discretion to make directions even in respect of activities being carried out lawfully is the power of a regulatory authority to issue prevention notices under s 96 of the Protection of the Environment (Operations) Act 1991 (PEO Act) to take action in respect of activities being carried out in an environmentally unsatisfactory manner.

It is also relevant to contrast sections 327 and 328 which specifically refer to things done or about to be done "in contravention of this Act". The wording of s 329 makes no mention of contravention. The choice of different wording in s 329 that makes no reference to contravention of the Act lends support to a construction that s 329 is not intended to apply only to works which would contravene the offence provision.

The Appellant sought to call in aid the heading of s 329 ("Removal of unlawful management works") to support its construction. Headings to sections of Acts are generally taken not to be part of the Act (Interpretation Act 1987 s 35(2)). Accordingly, the use that can be made of that heading, as extrinsic material, is limited by s 34(1) of that Act to:

(a) confirming that the meaning of the provision is the ordinary meaning of the provision; or

(b) to determine the meaning of the provision if the provision is ambiguous or obscure; or if the ordinary meaning leads to a result that is manifestly absurd or unreasonable, taking into account its context in the Act and the purpose or object underlying the Act.

The ordinary meaning of the provision is clear, directions can be issued in respect of any WMW for which no approval is in force. There is no reference to or exception on the basis of "exclusion" of the work in the Regulation. The provision on its face is not ambiguous or obscure, nor does the ordinary meaning lead to a result that is manifestly absurd or unreasonable, for the reasons already outlined. Accordingly, the heading to s 329 cannot be taken into account. While the overall heading to Div 3 of Pt 2 of Ch 7 ("Unlawful works and activities") does form part of the Act, it does not provide a basis for departing from the ordinary meaning of the provision, properly construed in its full statutory context.

Residual discretions exist in other legislation to make directions or orders in respect of activities otherwise being carried out lawfully, for example, the Environmental Planning and Assessment Act 1979 (EPA Act) s 121B, orders 2, 4, 5, 6, 7, 8, 14 and 19. In each case some of the circumstances under which an order can be made are not predicated on the unlawfulness of the activity or thing the subject of the order.

Appellant's submissions

The Appellant contended that a direction under s 329 cannot be issued in respect of any excluded works. While on its face a direction may be issued in respect of any work which is not the subject of an approval, and thus, may apply to an excluded work, regard must be had to the heading of the division, which forms part of the Act (s 35(1) of the Interpretation Act). The heading to Div 3 is "Unlawful works and activities". Given that an excluded work is not unlawful by reason of cl 36 of the Regulation and an exemption pursuant to the Regulation is a general defence under s 91M of the WM Act, there is nothing unlawful about an excluded work even if it is one for which there is no WSW approval. If no offence has been committed, there would be no unlawfulness in respect of which a direction could be issued. Although headings to sections are not part of the instrument (s 34(2) of the Interpretation Act), the heading to the section may nevertheless be considered as extrinsic material used to confirm the meaning or the underlying object or purpose of the text.

The object and purpose of s 329 is to afford the Minister a power to direct the removal of unlawful works. It would be contrary to the intent of the defence provisions to enable the Minister to issue a direction in respect of works which are excluded from the requirement for approval. The result would be circular in that a person could lawfully construct an excluded work, such as a dam for purely domestic purposes, without approval and then be subject to a direction to remove it even though it was lawful. This would also be capricious. Contrary to the Respondent's submission, the Appellant does not read down the provisions of subsection (1). Rather, the Appellant seeks to read the whole of those parts of the Act that are to be read, including the title to the division, which forms part of the Act.

There is no need for a specific exemption from s 329 because s 329 operates only in circumstances where an approval is not in force and, implicitly, only where one would be required.

Further, the Respondent's interpretation would lead to absurd and capricious results. The following examples are illustrative:

(a) The Minister could issue a direction in respect of an excluded work. If that direction was then the subject of an appeal to the Court in which the Court upheld the appeal and revoked the direction, the Minister would then be at liberty to simply issue a further direction.

(b) Similarly, after an unsuccessful prosecution for failure to obtain an approval in which the Court held that the work is an excluded work, the Minister could simply issue a further direction.

The Respondent distinguishes between the words of s 327 and s 328 which concern works "in contravention of this Act" and the words in s 329. The obvious reason for the difference lies in the fact that s 327 and s 328 are directed to stopping unlawful works where the work is being or is about to be carried out in contravention of the Act. The sections are directed to an ongoing or threatened contravention. This is in contrast to s 329 which is concerned with removal of such works after the contravention has occurred. The fact that s 329 appears in the same division and under the same heading as s 327 and s 328 also suggests the intention of s 329 was only to enable a direction to be given for the removal of works after a contravention has occurred.

Respondent successful on contention 1

Accepted principles of statutory construction require consideration of the plain and ordinary meaning of the words of the statute with a purposive approach to that meaning as identified in par 12. For completeness, I note that the agreed facts, the parties' submissions and the Commissioner's judgments use the terms WSW and WMW somewhat interchangeably. Nothing hangs on this for the purposes of these appeals given that a WSW is a category of WMW and both require approval under the WM Act unless excluded from that requirement.

I consider the Respondent's approach to statutory construction is correct essentially for the reasons provided by the Respondent summarised in par 17-25. The primary reason is that the terms of s 329(1) are clear on their face. Its construction does not require a restricted reading to apply only to unlawful works in order for it to apply coherently in the statutory scheme.

It is not necessary for the headings of the division or the section (if relevant) to be referred to in order to clarify the meaning of the section as its meaning is clear on its face. The circumstances in s 34(1) of the Interpretation Act of when a section heading can be referred to, namely confirming the ordinary meaning of a term or where a provision is ambiguous do not arise, as the Respondent submitted (par 25).

Much of the Appellant's submissions were based on the approach that the section must apply to unlawful works which cannot be excluded works. It is not necessary or required in order to give effect to the scheme of the WM Act to limit the application of s 329 by the definition of excluded work in Sch 1 item 6 and the operation of s 91B(1). The Appellant's case relied on finding an implicit assumption in the terms of the section that s 329 only operates where an approval is not in force and, implicitly, is required. There is no statutory basis for so inferring given the absence of explicit provisions suggesting that this should occur.

This construction is not contrary to the objects and purposes of the WM Act. Many excluded works which are otherwise lawful may be old and in need of repair (as in this case), as the Respondent submitted. A mechanism for their correction under the WM Act is required, as occurs in other legislation such as the EPA Act and the PEO Act, identified by the Commissioner in Zizza (No 1) at [40] and in the Respondent's submissions above at par 22 and 26. The Respondent's approach to construction is supported by contrasting the provisions of sections 327 and 328 which explicitly refer to activity "in contravention of this Act" with s 329 which does not. The Appellant submitted that these sections, directed to stopping current unlawful works, support its construction of s 329(1). To the contrary, that contrast does not provide a basis for restricting the plain meaning of the words in s 329(1).

I do not agree with the Appellant that this approach to statutory construction leads to capricious or circular results for the obvious reason that such directions are subject to statutory appeal rights which are granted to a recipient. The Appellant's examples in par 30 are technically possible but I consider unlikely.

The Appellant submitted that there is a strong synergy between the provisions of item 6 Sch 1 of the Regulation, the provisions of s 52 and the exemption in s 329(4), which provisions should be seen as working in unison. Section 52 permits the taking of water for domestic consumption and imposes no limit on the amount of water able to be taken, although a WSW constructed for the purpose of domestic consumption after 1 January 1999 would require approval. Clause 36 of the Regulation exempts the construction and use of a WSW used for domestic consumption in the circumstances set out in item 6 of Sch 1, which applies to works constructed before 1 January 1999. According to the Appellant, by reason of s 329(4) a direction cannot be issued in relation to a dam that was constructed before 1 January 1999 where that dam is used for domestic consumption. The Appellant also submitted that like s 52, s 329 says nothing about the size of the work. All of that can be accepted but that has no bearing on the construction of s 329(1) as the relevant part of item 6(b) the second limb (a work which does not extract water), the focus of these proceedings, is not tied to domestic and stock consumption under s 52. It is not disputed in these proceedings that the dominant purpose of the dam is for aesthetic/ornamental/recreational purposes as found at [64] in Zizza (No 2) and that it is not used solely for domestic consumption and stock watering. The Appellant referred to Harris v Harrison [2014] NSWCCA 84; (2014) 201 LGERA 277 in submissions to submit that domestic water take can be unlimited, but this has no relevance in this statutory context for the reasons I have just given.

The Respondent is successful on contention 1 but I would express the answer to the contention in different terms to reflect the fact that the Commissioner was not obliged to answer the question put by the Respondent in the context of the matter before her. I find that had the Commissioner addressed whether s 329 of the WM Act can apply to any WMW for which no WMW approval is in force the answer should be that it does.

Ground 2

Ground 2 raises the construction of item 6(b) in Sch 1 of the Regulation as considered in Zizza (No 2).

2 The Commissioner erred in law [in Zizza (No 2)] in finding that the dam was not an excluded work within the meaning of Item 6, Schedule 1 and clause 36 of the Water Management (General) Regulation 2011 (the Regulation):

Particulars

(i) The Commissioner failed to consider whether the use of the works impounding water "result in the extraction of water" within the meaning of Item 6 of Schedule 1 of the Regulation.

(ii) The use of the existing dam for water sports, as an ornamental lake and aesthetic outlook were, properly construed, uses "which do not result in the extraction of water" within the meaning of paragraph (b) of Item 6 (c.f. paragraphs [64]-[65] [Zizza (No 2)]).

(iii) ...

(iv) The Commissioner confused the "taking" of water with the question of whether the water taken by impounding it in the dam would be "used for domestic consumption and stock watering" or would "not result in the extraction of water" (paragraph [67]). For the purposes of considering whether the dam was an excluded work, the correct question was not whether the dam amounted to the "taking" of water (paragraph [67]), because the Regulation assumes the water was already taken by the work impounding water.

(v) The reference to extraction of water in Item 6(b) is to the water extracted from the impounded source, not the stream (c.f. paragraph [68] Zizza (No 2)).

Relevant facts are Facts 1, 3, 5, 6, 11, 16, 24 and 25 (see par 5).

Appellant's submissions

Particulars (i) and (ii)

There is no material difference between particulars (i) and (ii) and I consider the Appellant's submissions together. The Commissioner erred in finding that the Appellant's description of the proposed use of the dam as domestic-aesthetic precluded it from being an excluded work (at [64]). In doing so, the Commissioner failed to consider whether the proposed use was a use that does not result in the extraction of water as referred to in the second limb of item 6(b).

Clause 36 states the use of the work for any of the purposes, and in the circumstances, specified in Sch 1 in respect of the work. This confirms that the relevant purpose of the use is to be found in item 6. One of those purposes may be one which does not result in the extraction of water. These words have to be given work to do and have the effect of widening the scope of the permissible purposes for which water impounded may be used and are not confined by the term domestic consumption. These words have a function and deal with activities relating to the impounded water.

The term "extraction of water" is not defined. In the absence of a definition of the term extraction of water the Court may be assisted by dictionary definitions. The Macquarie online dictionary defines extraction as meaning the act of extracting. The act of extracting is clearly intended to be different to the act of impounding, which entails the construction of something that has the effect of storing water. "Extraction of water" ordinarily means to extract it by pump and/or pipes that have the effect of removing the water from one place to another. Whatever extraction of water means, it plainly cannot mean the same as the impounding of water or taking of water. Had it been intended that it meant either of these terms the Regulation would have used those terms. It is also tolerably clear from the opening words of item 6 of Sch 1, which refer to works impounding water that exceeds the harvestable rights that par (b) of item 6 is concerned with the use of water already impounded.

Further, the concept of works impounding water that do not result in extraction of water in item 6 has to be looked at in the context of the whole definition of WSWs, which could in various cases include a pump or water bore, a dam or a weir. Absent some other WSW, which had the effect of extracting water from the stream, then the work in this case involved no more than that described in par (e) of the definition, being a weir having the effect of impounding water in a water source, which did not result in the extraction of water from the water source, but merely the impounding of that water.

The Respondent's submissions misconstrue the term extraction where it appears in item 6(b) of Sch 1. An example is given of sluice gates in a river which temporarily impound water, but do not extract water in the longer term. The subject dam was, and is in fact, no different. Water impounded by placing a weir or dam across a stream will of necessity only detain water temporarily. Once the dam is full, water will flow down the spillway joining the watercourse downstream. Only the water actually extracted (meaning moved elsewhere) from the dam is removed from the system. This is confirmed by the definition of a WSW par (e) which states in a water source. Thus, the water is not extracted from the water source because the in-stream dam or weir is part of the source. This readily explains why such dams are relevantly excluded works. On the other hand, if the dam were used to irrigate crops, it would be expected that the quantity of water extracted from the dam would be far greater than the amounts extracted for stock watering or domestic consumption. This explains why uses which do not result in extraction of water from the works impounding water qualify for exclusion under Sch 1, because as long as the water remains largely in the dam, except for the water consumed domestically or by stock, the greater the prospect that water will continue to flow along the spillway.

The WM Act does not speak of the extraction of water. Even in the context of a pump or bore, where it would be expected to be found, the word extraction is not used in the WM Act. It is necessary to go no further than par (a) of the definition of WSW. A work such as a water pump or bore is described as being for the purposes of taking water from a water source. This is further supported by s 52 which identifies the key elements of access licences and WSWs. These are the taking of water from a source and the use of the water taken.

Further, each element of item 6 must be read with the introductory words to the provision. The opening words are "works impounding water". When these words are read next to the words "that do not result in the extraction of water", the Respondent's interpretation would make the provision meaningless because all impounding works would result in the extraction of water and the exception could never apply independently of domestic consumption or stock watering. Thus, contrary to the Respondent's submission, the act of impounding water cannot be conflated with the act of extraction from the source.

The Respondent submitted that if the impounding of water occurs in an in-stream storage, no significant additional impact is necessarily caused by removing the water from that storage. This may not be correct. In circumstances where the impounded water is used for irrigating crops presumably the amount of water used might be very great, with the water in the storage continually being replenished by water from the source. Hence, for reasons already explained by the example given above the impounding of the water in an in-stream storage does not actually have a substantial impact because, once the dam is full, the surplus will flow over the spillway. As long as the use of the dam is minimised to domestic consumption or not extracted at all, it is more than likely that the source will be unaffected after the dam has reached its capacity. In contrast to the Respondent's submission, item 6(b) aims to minimise the removal of water from the impounded water. What all three elements of item 6(b) have in common is small or no consumption of the water impounded. This suggests that the author of the exemption intended the reverse of the Respondent's contention. That is, where works impounding water exceeded harvestable rights, as long as the consumption of that water was minimised, the works were capable of being excluded because no great harm would be done by allowing use of the water that was either none or only small in quantity.

Further, once it is recognised that there are no limits under the WM Act or the Regulation on the quantity of water that may be taken for domestic consumption or stock watering the illogicality of the Respondent's position becomes stark.

Particular (iv)

It is evident from Zizza (No 2), at [67] and [68], that the Commissioner confused the concept of taking of water with extraction of water. As already submitted, on a proper construction of item 6, Sch 1 par (b) is not concerned with the taking of water but rather, the consumption or absence of extraction of the water already taken. This is confirmed by s 52 of the WM Act which provides exemption from the requirement to obtain a WSW approval for domestic or stock rights. The section makes a clear distinction between taking water on the one hand and using water so taken on the other hand. In terms it refers to the absence of the need for an access licence or WSW approval to:

(a) take water from a river;

(b) construct and use a water supply work for the purposes of taking water; and

(emphasis added)

"Extraction of water" only appears as a phrase in the WM Act in relation to the concept of water access licences (see sections 2, 20 and 56). Consistent with the fact that it is not necessary to have an access licence to extract water for stock or domestic purposes (s 52) it becomes apparent that item 6(b) provides exemption to such uses which do not require an access licence. If water is extracted for domestic purposes or stock watering an access licence is not required. Similarly, if water impounded is not extracted no access licence is required.

Particular (v)

A further error at [68] arises where the Commissioner refers to extraction of water from the stream. This demonstrates a further confusion between extraction of water from the source and extraction from the water impounded. The circumstances in par (b) of item 6 are directed to the use or extraction of the water impounded, not the water source that has been impounded by the works. This is self-evident from the opening words of the item because by its very nature, works impounding water have already taken the water from the water source by impounding it in a dam or a weir.

Respondent's submissions

There are two possible ways of construing item 6(b), which impact on the approach to the second limb. The indication of the correct construction comes from the word "that". The word "that" qualifies the term "works impounding water" in the chapeau to item 6. Accordingly, par (b) should be taken to be referring to two types of works:

(i) Works impounding water that are used solely for domestic consumption and stock watering; or

(ii) Works impounding water that do not result in the extraction of water.

That the things that do not result in the extraction of water is a reference to the work, and not to purposes or uses (cf Ground 2, particular (ii)), is confirmed by referring to items 7 and 9 of Sch 1. This expressly refers to purposes which do not require the extraction of water. The use of different words in item 6(b) indicates that the reference is not to the purpose, but to the work and what it does, not the subsequent purpose for which the water was taken. Obviously, a work impounding water used for domestic consumption and stock watering cannot satisfy (ii) above, as both domestic consumption and stock watering necessarily entail the extraction of water. That would provide a simple answer to the Appellant's argument on this point.

The Appellant submitted that as long as the only extraction of water that occurs is for domestic consumption and/or stock watering, other uses are possible provided those uses do not result in the extraction of water. Accordingly, it is necessary to ask whether this is a work which does not result in the extraction of water. The following facts are relevant:

11) The dam is fed by an unnamed water course running through Lot 3, which is a tributary of Popran Creek and flows south to Popran Creek (paragraph [6]).

24) Water impounded by the dam would continue to flow to Popran Creek if not so impounded (paragraph [67]).

The error alleged is based on the proposition that the construction of a WMW which impounds water within a river does not involve extraction of water. In particular the Appellant said that extraction must mean more than simply impounding water. Whether this is the case or not, this proposal does indeed have such an effect. This is a question of fact on which the Commissioner has made a finding, which cannot be challenged.

In this case water is extracted from the relevant water source because the impounding of water is not a defined, temporary impounding but is for an indefinite period and is potentially removed from the water source altogether. Contrary to the Appellant's submission, works which impound water do not inevitably take water from a water source. One can imagine a work which impounds water temporarily but does not result in the overall extraction of water in the longer term. An example might be a system of gates on a river that can be closed at various points, resulting in a temporary impounding of water to enable (for example) works to be done immediately downstream of the gates, but which once opened return natural flow. Another example may be a canal lock, which detains water whilst its gates are sealed but overall continues to permit the passage of water through the water source.

However, the proposed dam the subject of the approval appeal effectively removes water from the water source, resulting in its extraction from that source. The original dam was constructed with a lower outlet pipe (albeit one now buried and unworkable following the dam's collapse) which could in the past have been used to discharge water, but the proposed new dam involves the sealing of that outlet pipe (agreed fact 25) so that water in that dam can never be let out by operation of an outlet, or some kind of sluice gate. As the Commissioner found, the water detained in the dam will not pass into the rest of the water source. The only means by which water can pass the dam is if it overtops the spillway in high flow conditions, or if it is pumped out downstream (which is not part of this proposal). Otherwise, it is extracted from the water source.

In relation to particular (i), the Commissioner clearly addressed herself to the question posed by item (b), by finding (at [68]) that the dam results in the extraction of water from the stream.

The Commissioner's essential finding at [67] that the water in the dam is taken from the water source as it would otherwise continue to flow to Popran Creek is consistent with the analysis set out above regarding the test of whether water is extracted. It would be curious if the legislature intended to provide an exemption in relation to water indefinitely detained behind a dam wall with no gate or release valve within the stream bed, but not in relation to water indefinitely detained in a similar capacity dam just to the side of the stream into which water had been pumped. That, however, is the result of the distinction which the Appellant sought to draw.

A purposive reading of item (b) in relation to the objects of the WM Act suggests that the Commissioner was correct to consider that, once the water was effectively impounded and did not continue to flow naturally down Popran Creek, it had been extracted from that source.

Paragraph (b) of item 6 of Sch 1 is directed to specifying the purposes or circumstances for which a particular work is excluded, in order to be subject to the exemption in cl 36 which exempts construction or use of a work for (inter alia) a particular purpose/circumstance. The relevant purposes/circumstances in item 6(b) are:

(i) use solely for domestic consumption and stock watering; or

(ii) if not used solely for those purposes, is used in a manner that does not result in the extraction of water.

The objects of the WM Act (s 3) include application of the principles of ecologically sustainable development; protecting, enhancing and restoring water sources and their associated ecosystems and processes; providing for the orderly, efficient and equitable sharing of water; and encouraging best practice in management and use of water. The main impact of extraction of water from a water source that is a stream or river occurs once the natural course of that water is arrested or modified. If water in a watercourse is impounded, a significant impact of that impounding is that it no longer can flow down the stream. If that impounding occurs in an in-stream storage, no substantial additional impact is caused by then removing the water from that storage. However, the Appellant submitted that par (b) of item 6 attempts to exempt from management the impounding process (at which stage the major impact occurs) but not the latter process of removal of the water (at which stage the impact is much less significant, if significant at all).

Rather, par (b) of item 6 attempts to grant a limited exemption, in line with the objects of the WM Act, to:

(i) use of WMWs solely for the purpose of domestic consumption or stock watering; or

(ii) if not for that purpose, by a work which does not in fact extract water from the water source, that is, where it is not in the water source in the first place (rainwater) or if the water is retained in or returned to that source (such as by being merely conveyed or diverted) which would be likely to result in a lesser impact than removal from the source, such as by pumping or indefinite impounding.

Accordingly, and contrary to the Appellant's submission, the act of impounding water in a stream so that it is effectively removed from the water source and will no longer flow in that stream is capable of constituting extraction of water from that source. No error in [67] and [68] of the judgment is established.

Appellant in reply

The Respondent submitted that the word "that" as it appears in item 6 qualifies the term works impounding water. While the word "that" relates to the works, it must also relate to the chapeau in cl 36. Thus, item 6 contains the purposes and the circumstances. However, those purposes and circumstances cannot be divorced from the provisions of cl 36(1)(a) which exempts the landholder from the construction and use of the works for the purposes and in the circumstances in the Schedule. Plainly, the content of par (a) is a circumstance. The content of par (b), on the other hand, is directed to the purpose of a use to which the work is put. The absence of the word "use" in front of the words "that do not result in the extraction of water" is immaterial because the words "use for the purpose" are contained in cl 36. Clause 36 must be read with item 6.

Contrary to the Respondent's submission, the question to be asked is whether the work is used for the purposes of "domestic consumption and stock watering" or used for purposes "that do not result in the extraction of water". These words refer back to the purposes to which the works are to be put, not to the works themselves. The Respondent sought to separate and divorce the purposes and circumstances in item 6 from the operative provision in cl 36.

Even if the Respondent's interpretation of the words "that do not result in the extraction of water" were to be accepted, given the finding, unchallenged in these appeals, that the dam was a work as defined in par (e) of the definition of WSW, it is impossible to see how, as a fact, the dam extracts water. This is because par (e) of the definition relates to WSWs which are located in a water source. Given that water source is defined to include a river or part of a river, the effect of a weir or dam on a river does not take the dam out of the water source when extracted. Rather, the water behind the weir or dam remains part of the source. It is then self-evident that water that remains in the dam, whether for ornamental purposes or fishing, remains in the source. This readily explains the dichotomy in the language in item 6(b) between uses which do extract water, albeit a limited amount for domestic or stock, and uses which do not extract water at all.

The existing and proposed dam operate from the same principle. That is, once the dam is full behind the dam wall, water can be released through the outlet pipe or, in the case of the proposal, via the spillway, so that the amount of water reaching downstream will be the same as in normal flow conditions. Once it is recognised that the dam forms part of the overall water source because the dam is an in-river dam, it can be seen that the total quantity of water in the source remains the same except that which is extracted from the dam for stock or domestic consumption.

No error by Commissioner in ground 2

The agreed facts relevant to this ground are that the dam is a WSW located on a minor stream and the dam exceeds the harvestable rights capacity of the land. It was constructed between 1984 and 1989. The dam is fed by an unnamed water course running through Lot 3, which is a tributary of Popran Creek. The proposed dam in the approval appeal exceeds the harvestable rights capacity of the site of 7 ML. Water impounded by the dam would continue to flow to Popran Creek if not so impounded. The proposed reconstruction of the dam consists of (agreed fact 25):

· the dam wall is to be stripped of its original embankment and rebuilt to a new design, with a new profile and a new gravel drainage layer;

· the spillway capacity is to be increased and the crest level reduced;

· the culvert is to be removed;

· the outlet pipe is to be decommissioned;

· the dam floor is to be filled in order to lessen the depth of the dam and decrease the storage capacity from 39ML to 19ML

(paragraph [70], [81] Zizza (No 2)).

At issue is the construction of the second limb of Sch 1 item 6(b) concerning the extraction of water. Particulars (i) and (ii) focus on [64]-[65] of Zizza (No 2) and particulars (iv) and (v) on [67]-[68]. The judgment at [64]-[68] should be read as whole however in order to fully appreciate the Commissioner's reasoning. For example, while there is criticism of the reasoning in [64]-[65] in particulars (i) and (ii) a relevant finding is also made by the Commissioner at [67]-[68] that the water in the dam is taken from the water source.

There is no challenge to the Commissioner's finding in [64]-[65] that the first limb of item 6(b) does not apply namely that the existing and proposed works are not used solely for domestic consumption and stock watering. It is also correct that the Appellant's use of the impounded water in the dam for fishing, swimming, personal watercraft activities and as an ornamental lake does not extract (or take) water from the dam. It is correct to say in particular (i) that the Commissioner did not consider whether this recreational use resulted in the extraction of water from the dam (which it does not as a matter of fact) but that does not mean there was a failure on the Commissioner's part or that she misconstrued the application of the second limb of item 6(b), contrary to particular (i). As the Respondent submitted, the Commissioner did make an overall finding at [67] and [68] that the dam takes/extracts water from the minor stream.

Particular (ii) states that the recreational use of the existing dam was a use which did not result in the extraction of water. As already stated that can be accepted as a matter of fact in relation to the extraction (or lack) of water held in the dam but it is not indicative of any error in reasoning by the Commissioner. At issue is whether the water impounded in the in-stream dam results in the extraction of water from downstream by virtue of that impounding. The Respondent says it does, the Appellant says it does not.

I will now consider the Appellant's submission that the purpose of the use of the dam is relevant to whether the second limb of item 6 applies. This approach supports the Appellant's argument that the recreational/aesthetic use of the dam is relevant to the application of the second limb of item 6(b). It is agreed that par (e) of the definition of WSW applies to the dam as the structure has or could have the effect of impounding water in a water source. Clause 36 refers to the exemption from s 91B(1) of work constructed or used for any of the purposes and the circumstances specified in relation to a work for specified persons. The use of "or" in cl 36 means that a work may be constructed and be excluded. Subclause (a) refers to any landholder in relation to the construction of an excluded work referred to in Sch 1 (including item 6) that is situated on the land. Separately (because after the disjunctive or) purpose of use and in circumstances specified in Sch 1 arises in the second part of cl 36. If no purpose or circumstance is specified in Sch 1 this part of cl 36(1)(a) does not apply. Schedule 1 is headed excluded works and items 1 to 9 specify different types of excluded works, including item 6. Whether the purpose of a work or its use is relevant to any part of Sch 1 depends on the terms of a particular item in the schedule.

The wording of the second limb of item 6(b) does not refer to the purpose of a use, referring only to a use that does not result in the extraction of water. The purpose of a use is not relevant to this part of item 6, unlike items 7 and 9, as the Respondent identified, which refer expressly to the purpose of a use. This conclusion means that I do not accept the Appellant's construction argument in reply at par 67-69. Clause 36 exempts landholders in relation to the construction of an excluded work or the use of the work for any of the purposes in Sch 1. I agree with the Appellant that cl 36 must be read with item 6 but I draw a different conclusion from the Appellant. I agree with and adopt the Respondent's submissions in par 54 concerning the operation of the word "that" as qualifying works which impound water so that the words "that do not result in the extraction of water" refer not to the purpose of a use but to the WSW in the second limb of item 6. The Appellant's purpose in using the work for an ornamental lake and for recreation, which does not take or extract water from the dam, is irrelevant to the construction of the second limb of item 6(b).

Unless there is some ambiguity arising from a statute its terms should be applied, mindful of the need to apply a purposive construction. As the Appellant submitted the wording in the chapeau of item 6 and par (a) refers to works impounding water constructed (defined broadly in the definition section in the WM Act) before 1 January 1999. The wording is not directed to the point in time "as at" 1 January 1999, contrary to the Respondent's submissions. Nor is the wording directed to the consideration of works at any date after 1 January 1999, such as the hearings in 2013 and 2014. The evidence establishes and a finding of fact was made by the Commissioner that a dam was constructed prior to 1 January 1999. Consequently, the question posed in the contention which focuses on the date of the hearing does not reflect the wording in item 6, the application of which arises because of the circumstances of this case. As the Appellant submitted in par 104, the Respondent's approach to construction would mean that item 6 would rarely have work to do if the statutory scheme required that every part including repair of a work had to be carried out before 1 January 1999.

Clause 36 of the Regulation supports this approach also, as the Appellant submitted in par 106. It refers to exemptions for landholders for work which "is constructed" (present tense) inter alia as specified in item 6, which is framed in the past tense. As the Appellant submitted this confirms a construction that the activities are not those of the current landholder, further confirmed by way of contrast with the use of the present tense in item 6(b).

That the works as at 1 January 1999 might have met the descriptions in WSW (a) or (d), as the Respondent submitted, does not arise from the parties' arguments before the Commissioner, is not reflected in the findings in Zizza (No 1) and does not aid in the construction of item 6(a) in the circumstances of this case. As the Appellant submitted there are no findings of fact or law by the Commissioner that support the Respondent's submission that the work was of the type in par (a) or (d) of the definition of WSW. Item 6 is directed to works which impound water. This calls up par (e) of the definition of WSW which refers explicitly to works which impound or could impound water, as the Appellant submitted above in par 109. This definition is referred to by the Commissioner at [29].

Accepting that par (e) of the definition applies, it is defined as any work (such as a weir) that has, or could have, the effect of impounding water in a water source. Another issue which the Respondent identified in submissions is the construction of the words "or could have". This issue does not strictly arise as it is linked to my finding above that the relevant time period as reflected in item 6(a) is up to 1 January 1999, not as at that date. The evidence discloses that the dam did hold water before 1 January 1999. The Respondent argued for a restrictive meaning of "or could have", which means physically capable of holding water if the right natural conditions are present. The Respondent submitted that if physical work as in this case is required to make good a work to impound water that does not satisfy the definition. There is no explicit reference in the WM Act or the Regulation to such a timing requirement. There is no purposive reason why such an approach to construction should be taken.

The Respondent is unsuccessful on contention 2.

Ground 4

The Appellant further challenges the Commissioner's findings in Zizza (No 2) in ground 4.

4 If a part of the existing dam, being that which existed before 1 January 1999, was an excluded work, the Commissioner erred in law in concluding that the proposal in the Approval Appeal was a new water management work for which approval was required because it was a re-construction of the dam (Paragraph [71] [Zizza (No 2)]).

Particulars

(i) Properly construed, the term "construction" as defined in the Water Management Act also includes re-construction as correctly found at paragraph [72] [Zizza (No 2)].

(ii) Construction (and re-construction) of an excluded work is permitted pursuant to clause 36 of the Regulation without approval (c.f. paragraph [73] [Zizza (No 2)]); and

(iii) The dam proposal the subject of the Approval Appeal was not a new water management work and does not cease to be an excluded work because it is re-constructed.

The agreed facts 25-28 are relevant to this ground (see par 5).

The WM Act contains the definition of construct which includes to install, maintain, repair, alter or extend the work. The definition is an inclusive one. Both parties agreed it includes "reconstruction".

Appellant's submissions

The amount of construction or reconstruction does not affect whether the work could be an excluded work. Nothing in item 6, Sch 1 qualifies the size of the construction (or reconstruction) of an excluded work.

At [71] the Commissioner said she was not "satisfied that the original dam, if it is an excluded work ... would remain extant following construction of the proposal". This was an irrelevant consideration. The finding in Zizza (No 1) was that there was already a dam in existence at the relevant date. The fact that one could not determine with accuracy the original profile of the dam underneath the works that had been carried out in the past to make repairs to the dam did not disqualify the application from being an application for approval for repair. This did not mean that the work was an entirely new WSW, which did not benefit from being an excluded work under the Regulation.

In finding at [73] that the proposal was a new WSW the Commissioner failed to consider cl 36 of the Regulation which exempts a person who is a landholder in relation to the "construction of an excluded work" referred to in item 6 of Sch 1. The word construction as it appears in cl 36 should be given a meaning that is consistent with the language and purpose of all the provisions (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381, [69], 384 [78]). Thus, construction in cl 36 should be interpreted to mean the same as construct a work in the WM Act, which includes to repair, alter or extend. If the Commissioner accepted that the work was a reconstruction and that a reconstruction falls within the meaning of construction under cl 36 of the Regulation, the Commissioner was bound to find that approval was not required because reconstruction may also be undertaken pursuant to cl 36 of the Regulation without further approval.

Importantly, regard must be had to the object and purpose of the WM Act, which includes the management of water. The object and purpose of the exclusion in the Regulation made pursuant to the WM Act is to permit certain works to remain where they predate the Act. Reconstruction that involves substantially more work than something regarded as repair has no different result on the management of water. Whether a dam is repaired or reconstructed makes no difference to the volume of water impounded. Thus, in terms of the aims and objects of the WM Act there would be no purpose in narrowly construing the definition of construction to exclude the ability to reconstruct an excluded work or to consider an application for approval of work to construct a dam differently depending on whether it was repair or reconstruction. Instead, the Commissioner used the finding that the work was a new WMW in order to conclude that no part of the work was an excluded work and thus she could treat the entire application as if there was no dam in existence (Zizza (No 2) at [73]). This was an error because there is no basis under the WM Act for considering a repair under different criteria to a reconstruction.

Contrary to the Respondent's submission the finding that the proposal was for reconstruction, but not repair, alteration or extension of an existing work was not a finding of fact. Rather, it is a finding on a question of law on facts fully found. The question of whether facts fully found fall within a statutory enactment or phrase is a question of law (Hope v Bathurst City Council (1980) 144 CLR 1; Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439 at [24]). The question of whether the works proposed fell within the statutory description of construction was a question of law. The Commissioner was incorrect to ask the question differently by then asking whether the work was a new WMW when the correct question was whether the work proposed was construction, which it was. Even if the proposal was for reconstruction, the Commissioner erred in law in concluding that the reconstruction was to be treated as if it were an entirely new dam or an entirely new WMW. Clause 36 of the Regulation permits construction and reconstruction of an excluded work. Once the repair, alteration or extension of the work is completed, nothing in the Regulation states that such work ceases to be an excluded work. Provided the initial works impounding water were constructed before 1 January 1999, they could be maintained, repaired, altered or extended without the need for an approval.

Further, it did not follow that because it was difficult to determine how much of the dam which existed before 1 January 1999 would remain after reconstruction, the dam ceased to be an excluded work. There was no warrant for reading down item 6, Sch 1 by reference to any indeterminate volume or amount of the dam structure that had to have been constructed before that date in order to remain an excluded work. As already submitted, the extent of repairs to an existing work could be quite extensive, but nothing in the Regulation disqualifies the work from continuing to be an excluded work even after its extensive repair.

If the existing dam was an excluded work, the issue is whether the work the subject of the approval appeal was also excluded.

Much of the Respondent's submissions and the Commissioner's findings turn on the proposition that the WM Act is somehow concerned with the design of WMWs. This is incorrect. No part of the WM Act is concerned with the manner and design of physical works. The Act is concerned with the management of water not the physical characteristics of works or the intricacies of dam construction and design. This is all the more so given that the parties agreed that development consent would be required for the approval works. Considerations of the materials and the manner in which WSWs are built are not the focus of the WM Act. Whether the rebuilt works used the same or existing materials is of no concern to the regime under the WM Act, though it may be relevant under the EPA Act. Accordingly, the fact that the works the subject of the approval appeal would result in a dam of a different design was irrelevant. Given that the word construct includes the concept of alteration and extension it is axiomatic that it can include some change in design.

The Respondent submitted that there must be some point at which an original work will cease to be original, but rather will be a new work. To incorporate some limit on the statutory meaning that is not to be found in the legislative provisions is erroneous. There is no evident limit. In any event, that limit was clearly not reached in this case on the facts. The relevant facts were that the dam was to be in the same position (agreed fact 27) and the same surface area (agreed fact 27). The amount of water to be impounded was less than the original (agreed facts 25 and 29).

Given the objects of the WM Act are concerned with what the WSW does to the management of water, the focus is on what is done with the water, not the physical means of constructing the WSWs or the details of the construction methodology. Thus, if the existing work impounds a certain quantity of water, it matters not for the purposes of the WM Act whether the WSW would be taken down and rebuilt if the work was still the same type of WSW. The position may be different if it had been intended to convert the work from a WSW par (e) to a WSW par (b). In those circumstances, the work would be a new WMW, because instead of being a work impounding water, it would be a work taken from a water source, separate from the water source.

Respondent's submissions

The findings of fact at [70], [71], [72] and [81] justify the Commissioner's conclusion that the proposal did not involve construction of an existing excluded work (including repair, alteration or extension of the existing work) but was properly characterised as building an entirely new WMW (at [71]). There must be some point at which an original work will cease to have the same character and must be considered to be a new work, rather than simply an altered or extended version of the original. Where that point is, in each case, is a question of fact. It is not open to the Appellant to challenge this in these appeals.

The Commissioner determined that the proposed works the subject of the application for approval were so extensive that they could no longer be considered as being construction (including alteration or extension) of the existing work. As a matter of fact the construction is of a different, new work. So much is clear from [71]. Once the work takes on the character of a different work it is no longer able to enjoy the benefit of the exclusion.

The Commissioner has effectively found that the Appellant's proposal, as a matter of fact, is not for the construction (including repair, alteration or extension) of an existing work (which might or might not have the benefit of item 6 of Sch 1 of the Regulation) but is instead for the construction of a new work (which work could not satisfy par (a) of item 6). Once the existing work is removed and replaced with a new one, the benefit of item 6 (if any) would be lost. This applies regardless of whether the existing work was the whole of the work (as the Appellant contended) or just part of the work (as the Commissioner initially found in Zizza (No 1)).

The first sentence in Zizza (No 2) [71] must be read together with [70] and the rest of [71] as providing a more detailed list of the reasons why the Commissioner found that the proposal the subject of the application was for an entirely new WMW.

No error by Commissioner in Ground 4

This ground complains about the Commissioner's findings in relation to the works the subject of the approval appeal. The Commissioner's relevant agreed findings of fact are 25-28.

This ground is based on at least one incorrect assumption. This is stated in the opening words of the ground, that there is a connection between the finding that the original dam was an excluded work in Zizza (No 1) with the finding in Zizza (No 2) that the proposed works in the approval appeal were a new WMW. While the Commissioner did answer the question posed by the parties of whether the existing dam or proposed dam were an excluded work under the WM Act at [62]-[68], I consider that the factual issues which arose in the approval appeal in Zizza (No 2) were unrelated to any findings made by the Commissioner in Zizza (No 1) as to what was an excluded work. This is because the works the subject of the approval application and hence that appeal (matter no 10536/13) were not the subject of Zizza (No 1). The work the subject of the application is different from that considered in Zizza (No 1) which only considered work done before 1 January 1999 and repair work to that structure thereafter.

Turning more directly to the parties' submissions, the findings of fact made by the Commissioner at [70]-[75] relate to the work the subject of the approval application. As the Respondent submitted, much of the Appellant's submissions are not directed to a relevant question which can be raised in these s 56A appeals as this ground seeks to traverse a finding of fact by the Commissioner. Whether a proposed work which impounds the same amount of water with the same surface area means it is the same dam is a matter of fact not the application of law to found facts. Hope v Bathurst which addressed the latter has no application here.

The Appellant submitted that there is a conflict in the Commissioner's decision that is difficult to reconcile. At Zizza (No 2) at [72], having found that reconstruction fell within the definition of construct the Commissioner, it was submitted, was bound to accept that reconstruction also fell within the meaning of construct for the purposes of cl 36 so that the finding of the Commissioner that the work was an entirely new WMW (Zizza (No 2) at [73]) stands in contrast to the finding that the dam was a reconstruction. The Respondent conceded that the second sentence in Zizza (No 2) at [72], when coupled with the initial sentence in [70] to the effect that the proposed work was a reconstruction, is confusing and seems inconsistent with the Commissioner's ultimate conclusion but that is of no consequence for the ultimate reasoning in the judgment. I agree with the Respondent that the main conclusion of the judgment (as telegraphed by the heading above [69]) is made in Zizza (No 2) at [71] which is unaffected by the anomaly in [70] and [72].

It is important to read the Commissioner's reasons as a whole and not with an eye too finely tuned to finding error (as emphasised in numerous decisions in this Court). The first sentence in [71] must be read together with [70] and the rest of [71] as providing a more detailed list of the reasons why the Commissioner found that the proposal the subject of the approval application was for an entirely new WMW. Further, as the Respondent also submitted, as identified in [71] and [73] the discussion at [69]-[72] provides a separate and independent ground for finding that the proposal would not be an excluded work, independently of the consideration at [62]-[68] regarding the existing dam not being an excluded work.

The Appellant's ground impermissibly seeks to canvass a finding of fact made by the Commissioner based on the evidence before her in Zizza (No 2) of what was contained in the approval application. The Respondent's submission that this finding of fact cannot be the subject of these s 56A appeals is correct. The Respondent's analysis of the judgment at par 131-133 is correct.

"Construct" does have a wider meaning in the WM Act to include install, repair, alter or extend. The same meaning should apply in relation to cl 36 of the Regulation, as the Appellant submitted (par 122) but that submission has no relevance to the Commissioner's reasoning because of the Commissioner's finding of fact that the proposal is for a new WMW.

The Appellant's submissions (par 127) that the objects of the WM Act are not concerned with dam design because the WM Act is concerned with management of water is not self-evidently correct and is counterintuitive to some degree. To the extent this is intended to support the Appellant's submission it does not take the matter any further. The Appellant also made submissions that the WM Act is not concerned with dam safety as another Act deals with that issue, but that submission does not arise from any of the Commissioner's reasoning in Zizza (No 2). While the Appellant's lengthy submissions have been set out above there is no need to address these in further detail.

As the Respondent submitted particular (i) is agreed but does not assist the Appellant's case. Particular (ii) is irrelevant. The Commissioner found that the existing work would not remain extant, and the proposal is for an entirely new work. Construction of an existing excluded work is excluded from s 91B(1) but that was not the factual circumstance before the Commissioner in Zizza (No 2). Construction of a new, non-existing work such as the proposal is not excluded by reason of item 6 of Sch 1 as it does not satisfy par (a). Particular (iii) is also irrelevant. The Commissioner has found the proposal involves removal of the old dam and replacing it with an entirely new work.

The Appellant criticised another part of the Commissioner's findings but it is not a material criticism in that, to the extent the criticism can be sustained, it has no consequence for this ground. The Respondent agreed with the Appellant's submission that consideration of a dictionary definition by the Commissioner at [70] was unnecessary but it does not follow that this led to any legal error by the Commissioner.

Conclusion

The Appellant has not succeeded on grounds 2 and 4 of the appeals. The Respondent has succeeded on contention 1. The Respondent has not succeeded on contention 2. As there may be some potentially outstanding issues remaining, the parties are to inform the Court of how they wish to proceed once they have had the opportunity to review this judgment.

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Decision last updated: 30 October 2014

Medium Neutral Citation:	Zizza v Minister Administering the Water Management Act [2014] NSWLEC 170
Hearing dates:	20-21, 25 August 2014
Decision date:	28 October 2014
Jurisdiction:	Class 1
Before:	Pain J
Decision:	See paragraph 144
Catchwords:	APPEAL - section 56A appeals on questions of law concerning application of the Water Management Act to existing and proposed water supply work - whether water supply work excluded from requirement to obtain approval - whether in-stream dam impounding water also extracting water from stream
Legislation Cited:	Environmental Planning and Assessment Act 1979 s 121B Interpretation Act 1987 s 34, s 35 Land and Environment Court Act 1979 s 56A Land and Environment Court Rules 2007 Protection of the Environment (Operations) Act 1991 s 96 Uniform Civil Procedure Rules 2005 r 50.11 Water Management Act 2000 s 2, s 3, s 20, s 52, s 53, s 54, s 56, s 89, s 90, s 91B, s 91M, s 327, s 328, s329, s 368, s 329 Water Management (General) Regulation 2011 cl 3, cl 34, cl 36, Sch 1
Cases Cited:	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 Harris v Harrison [2014] NSWCCA 84; (2014) 201 LGERA 277 Hope v Bathurst City Council (1980) 144 CLR 1 Hurstville City Council v Minister for Planning and Infrastructure [2012] NSWLEC 134; (2012) 189 LGERA 269 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 SAS Trustee Corporation v Woollard [2014] NSWCA 75 Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439 Zizza v Minister Administering the Water Management Act 2000 [2013] NSWLEC 1095 Zizza v Minister Administering the Water Management Act 2000 [2014] NSWLEC 1017
Category:	Principal judgment
Parties:	Zizza, Anthony Samuel (Appellant) Minister Administering the Water Management Act (Respondent)
Representation:	Mr A Pickles with Ms N Hammond (Appellant) Mr C Norton (Respondent) MAS Lawyers (Appellant) NSW Department Trade and Investment (Respondent)
File Number(s):	10119 of 2014; 10120 of 2014
Decision under appeal	Before: O'Neill C File Number(s): 10388 of 2012 and 10536 of 2013