Zizza v Minister Administering the Water Management Act 2000

[2014] NSWLEC 1017

Land and Environment Court

New South Wales

Medium Neutral Citation:

Zizza v Minister Administering the Water Management Act 2000 [2014] NSWLEC 1017

Hearing dates:

27-28 November 2013

Decision date:

05 February 2014

Jurisdiction:

Class 1

Before:

O'Neill C

Decision:

1. Appeal 10388 of 2012 allowed.

2. Pursuant to s 39(2) of the Land and Environment Court Act 1979, in exercise of the functions and discretions of the Minister administering the Water Management Act 2000 ("the Act") the Court directs the applicant to take the specified measures set out in the attached Direction, "Annexure A", to decommission the dam.

3. Appeal 10536 of 2013 is dismissed.

4. The exhibits, other than exhibits 6, 8 and E, are returned.

Catchwords:

APPEAL: Direction to remove unlawful water management works; application for approval of water supply works.

Legislation Cited:

Land and Environment Court Act 1979
Water Management Act 2000
Protection of the Environment Operations Act 1997

Cases Cited:

Chamwell v Strathfield Council (2007) 151 LGERA 400
Zizza v Minister Administering the Water Management Act 2000 [2013] NSWLEC 1095

Category:

Principal judgment

Parties:

Mr Anthony Samuel Zizza (Applicant)
The Minister Administering the Water Management Act 2000 (Respondent)

Representation:

Mr Andrew Pickles, Barrister (Applicant)
Mr Chris Norton, Barrister (Respondent)
LAS Lawyers and Consultants (Applicant)
NSW Department of Trade and Investment (Respondent)

File Number(s):

10388 of 2012 and 10536 of 2013

Judgment

1. COMMISSIONER: This matter involves two appeals. The first is an appeal (10388 of 2012, the Direction Appeal) pursuant to the provisions of s368(1)(n) of the Water Management Act 2000 (the WM Act) against a Direction to Remove Unlawful Water Management Work (the Direction), made pursuant to s 329(2) of the WM Act, by the Office of Water, Department of Primary Industries (the Office of Water). The Water Management Work (WMW) is a large dam at 105 Goolara Road, Mangrove Mountain (the site).

1. This first appeal was part heard in May, 2013, in regard to whether there was power under the WM Act to issue the Direction in relation to the existing dam, as the Applicant contended that the dam is exempted from the operation of s91B of the WM Act because it was constructed prior to 1 January 1999. In Zizza v Minister Administering the Water Management Act 2000 [2013] NSWLEC 1095 (the preliminary judgment), I made findings that the dam is excluded from requiring a WMW approval, as it was constructed prior to 1 January 1999, however, the repair works to the dam, carried out since 1 January 1999 (the repair works), are individually considered to be WMWs and are therefore not exempted from requiring WMW approval. Accordingly, s 329(1) was met for the repair works and there was power to issue the Direction under s 329(2).

1. The second is an appeal (10536 of 2013, the Approval Appeal) against the refusal by the Office of Water, pursuant to the provisions of s 368(1)(g) of the WM Act, of an 'Application for approval of a water supply work (WSW) and water use' (exhibit 5, tab 3) (the application). A WSW approval is one of three kinds of WMW approvals, pursuant to s 90(1) of the WM Act. A WSW approval authorises its holder to construct and use a WSW at a specified location, pursuant to s90(2) of the WM Act.

1. The appeals were heard concurrently and the parties consented to evidence in one appeal being evidence in the other.

Issues

1. The Respondent's contentions in the matter can be summarised as:

• the amended Direction to decommission the dam (exhibit 6) should be substituted for the Direction to rectify the defective and unsafe dam on the site;
• the size of the proposed dam is excessive for the stated purpose of the dam and it significantly exceeds the harvestable rights capacity of the site;
• the extensive engineering works required to construct the proposal and the associated impacts are disproportionate to the purpose of the dam; and
• there is inadequate information and detail provided in the Application for Approval to permit a proper assessment of the proposal.

The site

1. The site consists of three lots, Lots 1, 2 and 3, DP 869539. The dam is located in the north-western corner of Lot 3, adjacent to a dwelling and swimming pool. 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. Popran Creek flows into the Popran National Park, 4km downstream from the dam site and is part of the Hawkesbury-Nepean River Catchment (exhibit 2, f 10).

1. The Applicant, Mr Zizza, occupies the dwelling on Lot 3 and lives alone (transcript 28.11.13 p76, lines 27-38). There are two dwellings on Lot 2 and one dwelling on Lot 1. Each dwelling is occupied by one family and leased from Mr Zizza (transcript 28.11.13 p77, lines 4-36).

1. The existing dam is described as an in-river bywash dam (Respondent's Statement of Facts and Contentions, Part A, item 9) and the capacity of the existing dam is 39.9ML (Respondent's Statement of Facts and Contentions, Part A, item 17). The dam is approximately triangular in plan and in December 2009 it had a crest width of about 160m and a reach between 70m and 170m. The water surface area was approximately 12,700 sq m (exhibit 2, f 10).

The proposal

1. 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).

1. 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.

Background to the Appeals

Construction of and repairs to the dam

1. The dam in its initial form was constructed between 1984 and 1989. During January 1991, the dam wall burst on the southern side and repair works were carried out between 1994 and 1999 (exhibit A, pars 12 and 18). The dam recommenced impounding water sometime between 20 April 1999 and 18 March 2002 (exhibit 3, Annexure B, photos 10 and 11). The southern wall of the dam seeped water from 2003 until 2005 (exhibit A, pars 21-23) and repair works were carried out in 2006 (exhibit A, par 31). In 2010, Mr Zizza noticed wetness at the toe of the dam and a bit of slippage (exhibit A, par 32). In 2011, fill was added to the southern side of the dam embankment wall (exhibit A, par 36). Following the addition of the fill, a significant crater was created in the middle of the downstream face of the dam wall, when a bulldozer was removed having been bogged on the embankment wall, and loose fill material slipped downstream (exhibit A, par 49). The embankment was then further eroded by heavy rainfall (exhibit A, par 58).

1. No WMW approvals under the WM Act have been issued in respect of the dam or the various repairs made to the dam.

The Clean-up Notice issued by EPA (the EPA notice)

1. Lot 3 of the site is subject to a Clean-up Notice issued by the Environment Protection Authority, Office of Environment and Heritage (EPA), dated 8 September 2011 (exhibit 5, tab 14, ff 244-250) (the EPA notice). The EPA notice remains valid until varied or revoked.

1. A letter to the Solicitor for the Respondent, dated 12 August 2013, from the Principal Legal Officer of the Office of Environment and Heritage (exhibit 5, tab 17, ff 256-257) (the EPA letter) refers to specific evidence held by the EPA that during 2011, several thousand cubic metres of waste, classified as general solid waste containing contaminants included Polycyclic Aromatic Hydrocarbons and asbestos fibres, were transported from the Shell Refinery Rosehill and deposited on the dam wall. In addition to this material, a significant amount of building and demolition waste, containing bonded asbestos cement pieces mixed in with the building and demotion waste and likely to be in excess of 10,000 cubic metres was also deposited on Lot 3.

1. The EPA letter acknowledges that the EPA is willing to amend the EPA notice to allow the dam wall to be removed, following final orders being imposed by the Court, provided that conditions regarding waste management proposed by the EPA are included in any amended Direction.

The Direction and Application

1. The Direction was issued on 29 March 2012 and as originally issued, the Direction required specified measures to be taken, including pumping out of the dam according to specific protocol; preparation of a report by a qualified engineer regarding the methodology to be used for decommissioning and removing the dam; removing the dam; and that those measures be approved by the Minister (Application Class 1, 10388 of 2012). The Respondent now seeks an amended Direction to decommission the dam (exhibit 6), which includes the waste management conditions sought by the EPA.

1. The application was refused by the Office of Water, under delegation from the Minister, on the 18 June 2013 (exhibit 5, tab 8). The proposal has been amended since the refusal by the Office of Water.

1. The Applicant seeks an amended Direction for interim works (exhibit 7) and an approval for the WSW. The Applicant intends to carry out the works for the WSW within 2 years from the date of the orders and hence submits that the Direction for interim works to make the dam safe in the short term, until the dam can be reconstructed, would be satisfactory.

Legislative framework

1. The objects of the WM Act, at s 3, are as follows:

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.

1. The relevant water management principles of the WM Act, at s 5, are as follows:

(1) The principles set out in this section are the water management principles of this Act.

(2) Generally:

(a) water sources, floodplains and dependent ecosystems (including groundwater and wetlands) should be protected and restored and, where possible, land should not be degraded, and

(b) habitats, animals and plants that benefit from water or are potentially affected by managed activities should be protected and (in the case of habitats) restored, and

(c) the water quality of all water sources should be protected and, wherever possible, enhanced, and

(d) the cumulative impacts of water management licences and approvals and other activities on water sources and their dependent ecosystems, should be considered and minimised, and

(e) geographical and other features of indigenous significance should be protected, and

(f) geographical and other features of major cultural, heritage or spiritual significance should be protected, and

(g) the social and economic benefits to the community should be maximised, and

(h) the principles of adaptive management should be applied, which should be responsive to monitoring and improvements in understanding of ecological water requirements.

(3) In relation to water sharing:

(a) sharing of water from a water source must protect the water source and its dependent ecosystems, and

(b) sharing of water from a water source must protect basic landholder rights, and

(c) sharing or extraction of water under any other right must not prejudice the principles set out in paragraphs (a) and (b).

(4) In relation to water use:

(a) water use should avoid or minimise land degradation, including soil erosion, compaction, geomorphic instability, contamination, acidity, waterlogging, decline of native vegetation or, where appropriate, salinity and, where possible, land should be rehabilitated, and

(b) water use should be consistent with the maintenance of productivity of land in the long term and should maximise the social and economic benefits to the community, and

(c) the impacts of water use on other water users should be avoided or minimised.

1. Section 52 'Domestic and stock rights', includes at (1)(b), that an owner or occupier is entitled to take water and construct a WSW without approval, if the water is taken for domestic consumption and stock watering, however, at subsection (2)(b), that does not extend to constructing a dam.

1. Section 90(2) of the WM Act provides that 'A water supply work approval authorises its holder to construct and use a specified water supply work at a specified location.'

1. It is an offence, pursuant to s 91A of the WM Act, to use water from a water source without a water use approval for that use. There is a defence to s 91A of the WM Act at s 91M, as follows:

(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.

1. Section 91B(1) of the WM Act provides that a person, who constructs or uses a water supply work and does not hold an approval is guilty of an offence. Clause 36 of the Water Management (General) Regulation 2011 (WM Regulation) provides exemptions relating to both construction and use of water supply works, as follows:

(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

1. Schedule 1 'Excluded works' of WM Regulation, relevantly includes the following:

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.

1. Section 96 of the WM Act provides that the Minister, when considering whether or not to grant an approval, must take matters as prescribed by the regulations and any other matters the Minister considers to be relevant into account.

1. Section 97 of the WM Act provides grounds for refusal of certain applications, including relevantly, in s97(2):

A water management work approval is not to be granted unless the Minister is satisfied that adequate arrangements are in force to ensure that no more than minimal harm will be done to any water source, or its dependent ecosystems, as a consequence of the construction or use of the proposed water management work.

1. Division 3 'Unlawful works and activities' of WM Act, includes at s 329 'Removal of unlawful water management works', the following:

(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.

1. Section 368(1)(g) of the WM Act allows for an appeal to the Land and Environment Court against a decision by the Minister refusing to grant an approval.

1. The WM Act Dictionary includes the following relevant definitions of terms:

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 supply work means [at (e)] any work (such as a weir) that has, or could have, the effect of impounding water in a water source.

Domestic and stock rights means the rights conferred on a landholder by s 52, which are as follows:

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.

1. It is an offence to take water from a water source without an access licence for that water source, pursuant to s 60A of the WM Act. Clause 18 of the WM Regulation provides an exemption from a requirement for an access licence, if the person is specified in Part 1 of Schedule 5 of the WM Regulation. Part 1 of Schedule 5 relevantly includes the following:

12 Excluded works

(1) Any landholder-in relation to the taking of water from or by means 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, for the purposes and in the circumstances specified in Schedule 1 in respect of the work.

1. The subject land is within Zone No 7(b) Conservation and Scenic Protection under the Gosford Interim Development Order 122 (IDO 122, exhibit 5, tab 26). Development for the purpose of a dam is permissible and 'dam' is defined by IDO 122 cl 3 as 'excavation or other works (or both) associated with the damming or conserving of water for the purposes of (or ancillary to the purposes of) a permissible form of agriculture or intensive agriculture.' The meaning of 'agriculture' at cl 3 can be summarised as the use of land for the keeping of animals for domestic purposes, horticultural production or grazing of livestock.

1. The Court has all the functions and discretions which the Minister had in relation to the matter, pursuant to s 39(2) of the the Land and Environment Court Act1979 (NSW).

Expert evidence

1. Expert evidence was provided by Mr Vipulananda de Silva, Principal Geotechnical Engineer Network Geotechnics Pty Ltd on behalf of the Applicant and Mr Dene Jamieson, Principal Engineer Dams & Civil NSW Public Works on behalf of the Respondent.

1. 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).

1. According to Mr Jamieson, the dam in its current state poses a risk of failure through inadequate spillway capacity, slope instability and internal erosion (piping). According to Mr de Silva, the clay present is unlikely to be functioning as a continuous core, based on water level measurements in the boreholes (exhibit 5, tab 21, p6).

1. In Mr Jamieson's opinion, the plans (exhibit 8) comprise a 'concept design' and do not address all the issues raised in the joint report (transcript p24, lines 32-3). According to Mr Jamieson, the proponent should provide two plans, one that shows the stripped profile for the pre-excavation of the dam before it is rebuilt and one that shows the final dam configuration over that strip profile (transcript p48, lines 22-4).

1. According to Mr de Silva's oral evidence (transcript 27.11.13 p57, lines 3-16):

'we can't say for sure that it is the original dam profile, because we can't pick that from geotechnical drilling. You have to expose the fill to find out how much stripped [sic] is required. So it's normal practice to have a note to say we to strip [sic] to meet these conditions but the depth of stripping is - we can shown that nominally but that doesn't make any difference. It can be half a metre, it can be 1 metre, it can be 5 meters, depends upon the site conditions... this dotted line is just a line drawn at 1.5 horizontal to 1 vertical from 4 metres from the crest. There is no other basis for that. That's what we were told the original dam profile was, but there is no survey or no construction data indicating that the original dam was 1.5 to 1. So this is just an assumption.'

1. Mr de Silva confirmed under cross-examination that the instructions from Mr Zizza, which comprised the proposal's brief, were to design a dam that was in the same location as the existing dam with the same surface area as the existing dam and that these were the key constraints he used in designing the proposal (transcript 27.11.13 p66, lines 47-50; p67, lines 3-5).

Affidavit of the Applicant, Mr Zizza, dated 22 November 2013 (exhibit E) and Mr Zizza's oral evidence

1. According to Mr Zizza, the dam provides significant amenity for him and his family in terms of a pleasant aesthetic outlook from the house and an opportunity for recreational activities including fishing, swimming and personal watercraft activities (par 8).

1. In addition, the dam wall obscures views to the adjoining Boral quarry (par 12).

1. Mr Zizza lives in the house on Lot 3 alone (transcript 27.11.13 p76, lines 27-38).

1. Mr Zizza uses the water in the dam for watering his garden and lawn from time to time and to fill rainwater tanks servicing the house. He has not at any time used the water in the dam for the purposes of irrigating crops and has no intention of doing so in the future (pars 6, 9).

1. Mr Zizza is currently grazing 64 head of beef cattle on the site (par 3).

Submissions

1. The Respondent submits that the effect of the preliminary judgement is as follows:

• the dam in the form in which it existed immediately prior to 1 January 1999 is a WMW which is exempt from a requirement for a WSW approval; and
• any repairs, alterations or extensions made to the dam since 1 January 1999 are WMW and are not exempted from requiring a WSW approval.

1. The Respondent submits that WMW approvals (which includes a WSW approval) are required for both the construction and the on-going use of the dam for the following:

• the repair works carried out to the dam between 1991 and 1999, including the filling of the 'slot' in the dam wall caused by the dam's failure in 1991 and the recommissioning of the dam at some time after 20 April 1999 so that it was again capable of impounding water;
• the repair works carried out in 2006;
• the works carried out in 2011 onwards, including the deposition of significant amounts of fill.

1. The Respondent submits that any works that maintain, repair, alter or extend the dam and are carried out pursuant to the Direction; or any other direction which the Court may make in the related proceedings, do not require WSW approvals.

1. The Respondent submits that the correct characterisation of the proposal is an application for the following approvals:

• a water use approval for domestic purposes; and
• a WSW approval for a pump of no specified size or purpose; and
• a WSW approval for the ongoing use of the exempt dam for the purpose and the construction and use of those parts of the post 1998 WMWs; and
• a WSW approval for the construction and use of the repairs and remediation works set out at clause 5.3 of the report of Network Geotechnics dated July 2013 and further detailed in the report of Network Geotechnics dated September 2013 for the purpose 'domestic - aesthetic'.

1. The Respondent submits that the Court should impose the amended Direction to decommission the dam (exhibit 6) and refuse the Approval Appeal. Furthermore, the conditions regarding waste management proposed by the EPA have been included in the amended Direction to decommission the dam (exhibit 6).

1. The Applicant submits that the Respondent's contention regarding inadequate information and detail is largely founded on a misunderstanding of the role of an approval under the WM Act, which is only one of a number of approvals required before the work of reconstructing the dam can be carried out. The Applicant submits that detailed construction and tender drawings will be required before the work can be safely carried out and that there is no evidence to support a refusal of the application in the terms of s 97(2) of the WM Act.

1. The Applicant submits that there is a draft Gosford Local Environment Plan 2009 (draft LEP) on exhibition which will be made in the not too distant future and that under the new instrument the site is zoned RU2 Rural Landscapes and water bodies (artificial) are permissible with consent. The relevant outcome of this is that as soon as the draft LEP is made, any development application for a dam on the site is permissible with consent without any of the limitations imposed by the current regime, IDO 122, that the dam has to be for an agricultural use (transcript 27.11.13 p13, lines 21-50 and exhibit B).

1. The Applicant submits that the EPA notice could be amended by the EPA if the amended Direction for interim works (exhibit 7) sought by the Applicant, is substituted for the Direction.

1. The Applicant submits that the Court should impose the amended Direction for interim works (exhibit 7) and uphold the Approval appeal and suspend the approval until the works the subject of the Direction have been completed.

Harvestable rights exceeded by the dam

1. The parties agree that the capacity of the dam exceeds the harvestable rights capacity of the site and therefore this cannot be used as a defence, pursuant to s 91B(5) of the WM Act and this does not prevent the Direction from being served, pursuant to s329(4)(b).

1. The Respondent submits that the site is within the area subject to the Water Sharing Plan for the Central Coast Unregulated Water Sources 2009. A water access licence under the WM Act is required for the taking of water by the Applicant for any purpose other than pursuant to a basic landholder right.

Purpose of the dam

1. The parties disagree on the significance of the statement in the application that the purpose of the dam is 'domestic - aesthetic'.

1. The Respondent submits that it flows from Mr Zizza's own evidence that the dam is used for the purposes of an ornamental lake and this is prohibited under the applicable planning instruments as dams are only permissible for certain limited purposes (transcript 27.11.13 p1, line 34 and p2, lines 41-3).

1. The Applicant submits that 'aesthetic' is not a purpose used in town planning terms, rather it is a description of an ancillary benefit provided by the existing dam and even if 'aesthetic' were the primary use, it is a use for domestic purposes (Chamwell v Strathfield Council (2007) 151 LGERA 400 pars 27-36). (Applicant's outline of submissions par 10).

1. The Applicant submits the excessive dam size contention is principally based on the contention that the primary purpose of the use is aesthetic. Given the Court's preliminary finding, the question of whether the dam is excessively large is irrelevant, because the proposal will have no greater effect on the environment than the excluded work.

Requirement for a Water Access Licence

1. The Respondent submits that the exempt dam, immediately before 1 January 1999, was not capable of holding water and therefore the exempt dam has a nil capacity for impounding water. As a consequence, the Applicant is required to obtain a water access licence in order to take water for the dam, pursuant to s 60A of the WM Act.

1. The Applicant submits that the impounding of water in a dam does not constitute the taking of water from a water source if no water is drawn from the dam, for the purposes of s 60A, and consequently no water licence is required (Applicant's outline of submissions par 15). Furthermore, the dam is an excluded work, pursuant to item 6 of Schedule 1 of the WM Regulation and a person is exempt from the requirement to obtain a water access licence if it is taken by means of an excluded work, pursuant to item 12, Part 1, Schedule 5 of the WM Regulation (Applicant's outline of submissions par 18).

Findings

Is the existing dam an excluded work under the WM Act?

1. 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).

1. 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).

1. 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).

1. 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.

1. 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.

1. 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.

1. 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?

1. 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).

1. 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.

1. 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.

1. 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

1. 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.

1. 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.

1. In relation to the contention regarding the inadequacy of the information provided by the Applicant, I accept the Applicant's submission that the drawing set (exhibit 8) is adequate for the purposes of a WMW approval. I accept Mr Jamieson's expert opinion (transcript p24, lines 32-3) that the drawing set comprises a concept design for the proposal and does not address all the issues raised in the experts' joint report (exhibit 5), however I am satisfied that a concept design for the dam provides sufficient detail for a WSW approval under the WM Act, while not being sufficiently detailed for a development application.

1. It is undisputed between the parties that the proposal constitutes development and the grant of a WSW approval under the WM Act is not sufficient to grant development consent. An issue arose as to whether, if the approval was granted, the works would be able to be granted consent. Had I not come the conclusion that the proposal should not be approved, the proposal would have had difficulties obtaining development consent, in my opinion, as the proposal represents a vast taking of water from the stream for a use that, under the current planning instruments, is not permissible. However, the issue of whether or not development consent would be granted is beyond the realm of this matter before the Court and consequently it is not necessary to speculate on the imminence and certainty of the draft LEP and what the outcome of a development application for the proposal might be.

Consideration of the Direction Appeal

1. The issue before the Court in the Direction Appeal is the appropriate measures that should be taken to rectify the defective and unsafe dam on the site. It is common ground between the parties that there are significant problems with the existing dam, which is encapsulated in the experts agreement that the entire structure is prone to failure (exhibit 5, tab 21, p7). It was uncontested that if the dam fails, there will be an ecological impact.

1. In determining the appropriate measures that should be taken to rectify the defective and unsafe dam on the site, consideration must be given to what extent, if any, Directions can be made in regard to the existing dam. It is the Applicant's submission that Mr Zizza is exempt from any requirement for a water access licence as the dam is exempt from requiring WSW approval on the basis that it could have had the effect of impounding water on 1 January 1999. It is the Respondent's submission that the excluded work is the empty dam, as it was the repair works to the dam wall post 1 January 1999 that rendered the dam capable of holding water.

1. 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.

1. The amended Direction to decommission the dam (exhibit 6) is preferable to the amended Direction for interim works (exhibit 7), for the following reasons:

• The evidence regarding the significant problems posed by the existing dam is overwhelming. The experts agreed that the entire structure of the dam is prone to failure (exhibit 5, tab 21, p7). In order to eliminate the significant threat the dam poses to safety and environmental damage, it should be decommissioned.
• The interim works (exhibit 7) propose a temporary rock fill stabilisation buttress at the location of the failure scarp to prop the existing dam wall. It is not an appropriate response to continue to add material to shore up a structure that is not only of an unknown original profile, but is known to be fundamentally flawed.
• The amended Direction for interim works (exhibit 7) is only a temporary measure to ensure that the dam does not pose an unacceptable risk to persons and the environment downstream in the short term. As the Approval Appeal is to be dismissed, there is no approval in place for works to the dam following the two year period after which the experts agreed that the temporary interim works would no longer ensure that the dam does not pose an unacceptable risk to persons and the environment downstream. If the amended Direction for interim works (exhibit 7) is imposed, I cannot be satisfied that there is sufficient certainty that the dam will not pose a risk in the future.
• The amended Direction to decommission the dam (exhibit 6) includes the conditions regarding waste management proposed by the EPA.
• The decommissioning of the dam requires a trapezoidal slot to be cut into the dam wall. This is effectively the removal of the stoppering of the dam, including the unstable and contaminated fill, placed in the dam wall after 1 January 1999. The amended Direction to decommission the dam does not remove the whole dam in its entirety, it essentially restores the dam to its 1 January 1999 state.
• Finally, decommissioning the dam does not preclude a future application to recommission the dam.

Conclusion

The Approval Appeal

1. 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.

1. 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

1. 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.

1. 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. I am not satisfied that it is an appropriate response to continue to add material to shore up a structure that the experts agree is fundamentally flawed.

Orders

1. The orders of the Court are:

(1)   Appeal 10388 of 2012 allowed.

(2) Pursuant to s 39(2) of the Land and Environment Court Act 1979, in exercise of the functions and discretions of the Minister administering the Water Management Act 2000 ("the Act") the Court directs the applicant to take the specified measures set out in the attached Direction, "Annexure A", to decommission the dam.

(3)   Appeal 10536 of 2013 is dismissed.

(4)   The exhibits, other than exhibits 6, 8 and E, are returned.

Susan O'Neill

Commissioner of the Court

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Decision last updated: 05 February 2014