Barker v Water Administration Ministerial Corporation

The Approved Application

1. The Approved Application, which is the subject of this appeal, granted consent for three sets of controlled flood works referred to in the approval as Works 1, 2 and 3.
2. These works were illustrated by the NRAR in its approval of application no. 90CW811054 in the following plan:
3. The approval for Works 1 and 2 granted retrospective consent for works that had been constructed, and which are described as follows: 1. Work 1, as constructed, is a channel running north south, and of approximately 1.1 km in length, adjacent to the boundary between the Snape Interests' property known as 'Baresse', located to the west of its boundary with Mr Barker's property, 'Boonery Park', located to the east of its boundary with 'Bareese'; 2. Work 2, as constructed, is a road located along the boundary between the 'Bareese' and 'Golden Acres' properties, both owned by the Snape Interests, and 1. the works extend towards a so-called tri-post point located at the common boundary intersection of the 'Bareese', 'Golden Acres' and 'Boonery Park' properties; and 2. the road as constructed exceeds the extent of the consent granted under the Approved Application by some 300m in length.
4. Work 3, as approved: 1. involves the construction of a levee adjacent to the boundary between the Snape Interests' property 'Golden Acres' and Mr Barker's ''Boonery Park property; and 2. is a new structure, located on the Snape Interests' land, to run parallel to the 75m wide channel of the Boonery Park South Waterway which was constructed on Boonery Park property for the purpose of directing flows from the southern extent of Work 1 and generally south-east towards Lake Goran.
5. The approved plan illustrating the works included the following narrative in relation to the approved works, and which, inter alia, noted that the plan had been created on 25 September 2020:
6. The approval of application no. 90CW811054 was also subject to the following conditions provided within Appendix 1 of the approval: 1. the location and specifications of the water management work(s) authorised by this approval, shown in the attached plan: Plan of approved works - 90CW811054 "Golden Acres" and "Baresse" prepared by the NRAR on 25 September 2020; 2. the flood work authorised by this approval must be constructed and maintained in a way that will: 1. ensure the work's safe construction and operation, and 2. prevent the possibility of damage being caused by the work, or resulting from the work, to any public or private interest. 1. native vegetation must be cleared only to the minimum extent necessary for the construction and maintenance of the work authorised by this approval; 2. the channel(s) must remain clear of any obstruction at all times to allow free passage of water.
7. The approval was also accompanied by a Statement of Approval issued by the NRAR under the WM Act dated 9 October 2020, and with an expiry of 8 October 2025.

Contentions

1. This hearing concerns an appeal by the Applicant against the grant of consent by the NRAR, on behalf of the WAMC, to the Snape Interests for Works 1, 2 and 3 in relation to which the Applicant contended that: 1. the approved works: 1. would interfere with the way water flows across the land of the 'Golden Acres', 'Baresse' and 'Boonery Park'; 2. would give rise to altered water flow across all three properties; 1. the altered water flows would: 1. adversely impact on the land of 'Boonery Park'; 2. adversely impact on the crops that the Applicant grows on 'Boonery Park'; 1. if the earthworks were not constructed then the adverse impacts of overland flows onto 'Boonery Park' would be lessened; 2. the earthworks were constructed and used without approval until 2 October 2020; and 3. the earthworks are not accurately described in the application for the works.
2. For completeness, I note that Applicant, Mr Barker, and the waterway located on the 'Boonery Park' property, referred to in the proceedings as the Boonery Park South Waterway, which runs generally in a south-east direction towards Goran Lake, and which is adjacent to, and northwards of, the proposed Work 3 structure, has been the subject of previous proceedings of the Court in 2012.
3. The outcomes of those proceedings were recorded in the judgment of Commissioner Hussey in Barker v Water Administration Ministerial Corporation of NSW [2012] NSWLEC 1039.
4. Notwithstanding submissions made during the hearing by the Second and Third Respondents in relation to works that were the subject of that judgment, I note again, that the contentions in this appeal are addressed de novo, (see above at [7]). The application that is the subject of these proceedings is assessed in relation to the circumstances of the lands on the Subject Site and the adjacent 'Boonery Park' property as observed during the site view, and as assessed and described in the evidence.
5. The Court was assisted in its considerations of these matters by the evidence of the Parties expert water engineers Dr Daniel Martens, for the Applicant, and Mr Tim Morrison, for the second and third Respondent, including the following reports of these experts: 1. an expert report of Dr Martens, filed 11 August 2021 (the Martens Report); 2. a report entitled "Baresse/Golden Acres Flood Impact Assessment" of Catchment Simulation Solutions, prepared by Mr Morrison (the Morrison Report), filed 9 August 2021; 3. a joint expert report of Dr Martens and Mr Morrison dated 30 August 2021 (the Joint Report); and 4. a supplementary joint expert report dated 17 November 2021 (Second Joint Report) and filed with the Court.
6. The Parties' water engineering experts also participated in the site view with the Parties and the Court, and they provided further oral evidence during the hearing.

Statutory context

1. The application that is the subject of this appeal was made under Pt 8 of the Water Act. That Part of the Water Act was repealed on 21 September 2015 pursuant to Sch 7 of the WM Act, and applications made subsequent to that date, flood works approvals were dealt with under Pt 3 of Ch 3 of the WM Act.
2. However, pursuant to s 403 of the WM Act, which gives effect to Scheds 9, 10 and 11 of that Act, the savings and transitional arrangements in cl 7 in Pt 2 of Sch 9 provide as follows: "Subject to this Schedule and the regulations - (a) anything begun before the appointed day under a provision of the old legislation for which there is a corresponding provision in the amended legislation may be continued and completed under the old legislation as if this Act had not been enacted, and (b) subject to paragraph (a), anything done under a provision of the old legislation for which there is a corresponding provision in the amended legislation (including anything arising under paragraph (a)) is taken to have been done under the corresponding provision of the amended legislation."
3. As a consequence of this clause: 1. the Water Act is considered "old legislation" for the purposes of cl 7(a) above; 2. as the application for the "controlled works approvals" was begun before Pt 8 of the Water Act was repealed, the "controlled works approvals" that are the subject of the application should continue to be assessed, and if successful approved, under the provisions of the Water Act and as if the WM Act had not been made; and 3. as a consequence of cl 7(b) of Sch 9, the "controlled works approvals" are presumed to have been converted to "flood work approvals" in accordance with the provisions of Sch 10 of the WM Act.
4. As already noted (see above at [5]) the appeal in this matter is made pursuant to s 368 of the WM Act. However, the Parties agree that, notwithstanding the basis for commencement of the appeal, as a consequence of cl 38 in Sch 10 of the WM Act, the appeal should be undertaken as a rehearing of the application under the provisions of the Water Act, and the application should be assessed under the provisions of the Water Act in force at the time that the application was made.
5. Part 8 of the Water Act concerns any "controlled work" as defined under s 165A of that Act and includes the following in that definition: "(1) In this Part, a controlled work means: (a) an earthwork, embankment or levee that is situated, or proposed to be constructed, on land that: (i) is, or forms part of, the bank of a river or lake, or (ii) is within a floodplain, or (c) an earthwork, embankment or levee, wherever situated or proposed to be constructed, that: (i) affects or is reasonably likely to affect the flow of water to or from a river or lake, and (ii) is used or is to be used for, or has the effect or likely effect of, preventing land from being flooded by water"
6. Further, s 166 of the Water Act provides for the designation of floodplains, and s 166A provides for the adoption of floodplain management plans, and relevantly for this appeal provides as follows: "(1) The Ministerial Corporation may prepare and adopt a floodplain management plan for a floodplain or proposed floodplain. (2) A floodplain management plan is to set out a scheme for the management of flood waters within the floodplain."
7. The approval of controlled works is addressed within Div 3 of Pt 8 of the Water Act, and s 166C(1) of that Act sets of matters that must be considered by the Court in exercising the power of the Ministerial Corporation as decision maker in relation to the application.
8. Section 166C(1) of the Water Act was in the following terms at the time the application that is the subject of the current appeal was lodged: (1) The Ministerial Corporation, in exercising its functions under this Division with respect to approvals, must have regard to the following matters, and any other matters that it considers relevant: (a) the contents of any relevant floodplain management plan or any other relevant Government policy, (b) the need to maintain the natural flood regimes in wetlands and related ecosystems and the preservation of any habitat, animals (including fish) or plants that benefit from periodic flooding, (c) the effect or likely effect on water flows in downstream river sections, (d) any geographical features, or other matters, of Aboriginal interest that may be affected by a controlled work, (e) the effect or likely effect of a controlled work on the passage, flow and distribution of any flood waters, (f) the effect or likely effect of a controlled work on existing dominant flood ways or exits from flood ways, rates of flow, flood water levels and the duration of inundation, (g) the protection of the environment, (h) any other matter relating to the desirability or otherwise of a controlled work.
9. The Parties agreed that of the above matters for consideration, those of particular relevance in the current appeal are the matters at (a), (b), (e), (f) and (h).
10. Section 166C(2) of the Water Act requires that in making a decision to grant or refuse an application made under the Act, the determination must include a statement of the reasons for the determination and of the extent to which the Ministerial Corporation took into account the matters set out in subs 166C(1) in making that determination.
11. Finally, s 171(1) of the Water Act provides that the Ministerial Corporation, or the Court on appeal, is to determine an application for an approval either by granting an approval for the controlled work the subject of the application, or by refusing to grant an approval.
12. The Parties are in agreement that in determining an application, s 171(1) of the Water Act provides that the Ministerial Corporation (now the Court on rehearing) is to determine an application for an approval by granting an approval for the controlled work the subject of the application, or by refusing to grant an approval.
13. Section 166C of the Water Act, provides a list of matters that the decision maker (now the Court, standing in the shoes of the Ministerial Corporation) must consider when exercising its functions under Div 3.
14. The Parties are also in agreement that the controlled works at issue in these proceedings should be assessed against the criteria in s 166C of the Water Act (see above (at [31]).
15. The provisions of s 166C(1)(a) require that the Ministerial Corporation, or the Court on appeal, in exercising its functions under this Division with respect to approvals, inter alia, must have regard to the contents of any relevant floodplain management plan or any other relevant Government policy.
16. As identified by the First Respondent during its opening remarks, for the purposes of Court's rehearing of the Second and Third Respondent's application, it is common ground that there is no applicable floodplain management plan that has been made pursuant to s 166A of the Water Act. This is particularly relevant in relation to the provisions of s 166C(1)(a) of the Water Act.
17. However, the Parties also agree that the following documents, which were in effect at the time of the application's determination are a relevant consideration in determining the appeal: 1. the Red Bob's Flood Plan Management Study Part One - around 'Bareese', prepared in 1995 by the Liverpool Plains Flood Management Advisory Committee, provides context to matters that are the Subject of this appeal, and: 1. presented options to restore the natural flow pattern of the flood plain and resolve landholder conflicts; 2. it notes, in relation to environmental considerations that, inter alia, "in assessing any applications under Part VIII, the Department must consider the environmental effects that may result from or be associated with construction and use of any works. It is the responsibility of the applicant to provide the Department with sufficient information to make an assessment of environmental effects"; and 1. the Floodplain Management Plan for the Upper Namoi Valley Floodplain (Upper Namoi FMP), establishes a framework for consideration of applications, such as the Approved Application, and which: 1. establishes management zones in the catchment area, including the following zones of relevance in this appeal: 1. Zone BL (Upper Namoi Management Zone B for the Lower Liverpool Plains), which includes the majority of agricultural land at 'Boonery Park' and on the 'Baresse' and 'Golden Acres' properties; 2. Zone AD (Upper Namoi Management Zone A for Defined Floodways) in relation to which at Map 2 of the Martens Report illustrates how this zone can be mapped onto the 'Baresse' property; 3. Zone D (Upper Namoi Management Zone D for areas of ecological and/or cultural significance as listed in Schedule 2 of the Namoi Valley FMP) in relation to which Goran Lake and Goran swamp are listed in Sch 2 of the Namio Valley FMP; and 1. sets out assessment criteria for the management zones that are indicative of considerations relevant to the proper management of these zones. These include: 1. flood connectivity; 2. maintenance of drainage regimes; 3. alteration of peak flood regime; 4. impact on high value infrastructure; 5. soil erosion; 6. cumulative impacts.
18. I note that these documents, and their requirements, were the subject of both substantive written submissions for the Parties and detailed expert evidence of the Parties' expert water engineers during the hearing.
19. In its submissions, the Applicant noted that: 1. given that the Upper Namoi FMP is not a floodplain management plan made in the terms of s 166A of the Water Act, it accepted that failure to meet the criteria should not lead to a mandatory disqualification from approval. However, the Applicant also noted that, because compliance with the criteria is seen as central to achieving the purpose of the Upper Namoi FMP, then a finding of non-compliance should be afforded significant weight in the overall assessment of the application; and 2. the Namoi Valley FMP highlights the importance of considering the cumulative impact of the three proposed Works 1, 2 and 3 as zones AD and D of the Namoi Valley FMP can be mapped to relevant parts of the Subject Site.

Remaining contentions resolved

1. The contentions in the appeal were identified above (at [18]), and resolution of those contentions requires the Court, having regard to the matters identified in s 166C of the Water Act, to determine whether the Applicant's applications for controlled works should be determined by granting an approval, if required with conditions, or by refusing to grant an approval.
2. The Parties agreed that the central consideration in the assessment of the application are the matters identified in s 166C(1) of the Water Act to which the WAMC, or the Court on appeal, must have regard (see above at [31] and [32]) in exercising its functions.
3. For reasons provided below, I conclude that, having had regard to each the matters in s 166C(1) of the Water Act, including in relation to the two documents identified above (at [39]), I am satisfied that the application that is the subject of this appeal should be approved, with further conditions imposed.

The evidence of the Expert Water Engineers

1. As noted above, the Parties' water experts, Dr Martens and Mr Morrison, provided expert evidence to assist the Court in its consideration of the proposed Works 1, 2 and 3 and the matters in contention in this appeal. Their evidence in relation to each of the proposed Works was as follows.

Proposed Work 1 - the north-south channel

1. Work 1 is a channel of approximately 1.1 km in length running north-south adjacent to the boundary between the Snape interests' property known as Baresse (to the west of the boundary) and Mr Barker's property, 'Boonery Park', located to the east of the boundary with 'Bareese'.
2. Dr Martens had stated in his expert report that proposed Works 1, 2 and 3 did not satisfy the assessment criteria in the Upper Namoi FMP, other than in relation to maintaining drainage regimes.
3. Dr Martens expressed concern that the channel may divert flow from a catchment of the Goran Swamp, equivalent to 1% of the swamp catchment, away from the swamp and into the channel. He referred to the works requiring a more nuanced assessment of the impact arising from diversion of 1% of flows from the Goran Swamp catchment.
4. Mr Morrison had stated with his report assessing the flood impact of the proposed Works 1, 2 and 3 that the works complied with the criteria in s 166C of the Upper Namoi FMP.
5. In his oral evidence Mr Morrison was satisfied that the diversion of water as estimated was minor and acceptable as it would not have a significant impact on the flows associated with the swamp and its associated ecosystems.
6. The Parties' expert water engineers agreed that if consent were to be granted to proposed Work 1, then a section of the channel to its southern extent should be filled to natural ground level, to mitigate potential impacts of the work.
7. In response to the agreed recommendation of the experts, the Second and Third Respondents submitted proposed conditions (Proposed Conditions 1 and 2), drafted with the assistance of the experts, to give effect to the experts' agreement, and for the purpose of mitigating impact on natural flows to Goran Swamp and to retain water within Goran Swamp, as follows: 1. Proposed Condition 1: no further works are to be performed to Work 1 in that no further excavation is permitted to the approved 600-800mm of the Work 1 Drain/Channel beyond "current condition" as described in the LIDAR provided by ELVIS (2014) and Figure 6-8 Appendix D of Dr Martens' Final Report dated 11 August 2021 which was Exhibit C in the proceedings; 2. Proposed Condition 2: Work 1 is to be filled to re-establish natural ground level across the width of the Drain/Channel (to approximately contour 298m AHD and comprising 1 metre of fill) for a length of 200 metres (using localised earth works) in the area illustrated on the map annexed and marked "A".
8. The map referred to as being annexed and marked "A", was the following diagram included within the Second and Third Respondents' amended without prejudice conditions of approval that formed Exhibit R2-11 in the proceedings.
9. That figure indicated by a hand marked black cross hatch the area to be re-filled, and the location of that cross hatching is confirmed in the following extract from the above figure, and it is located within the black bordered ellipse.

Proposed Work 2 - the road between the Bareese and Golden Acres properties

1. Proposed Work 2 concerns the construction of a road located along the boundary between the 'Bareese' and 'Golden Acres' properties, both of which are owned by the Snape interests. The road serves the Snape interests by providing access to that area of the boundary between the two properties.
2. Proposed Work 2 has been constructed and in its constructed form extends towards the so-called tri-post boundary point, being the point of boundary intersection between the 'Bareese', 'Golden Acres' and 'Boonery Park' properties. In its current form, the road exceeds the extent of the consent sought by the Applicant by some 300m.
3. In their evidence at the hearing, the Parties' expert water engineers agreed that: 1. no adverse impacts would arise from proposed Work 2 in the form for which consent is sought; 2. the extension of the proposed Work 2 road that has been constructed beyond the limit of that for which consent is sought should be restored to natural conditions.
4. At the hearing the Second and Third Respondents embraced the agreed evidence of the Parties' experts, and, with the assistance of the experts, drafted a proposed condition of consent (Proposed Condition 3) for the Court's consideration to achieve the expert's recommended restoration of the as constructed extension of the road beyond that for which consent is sought. That condition was as follows: 1. Proposed Condition 3: The extent of historical unauthorised earthworks on Baresse between the eastern extent of Work 2 and the boundary of Boonery Park at the Tri-Post are to be removed such that Work 2 terminates approximately 300 metres from the boundary. For the avoidance of any doubt, the earthworks to be removed do not include any other approved works in this area, including but not limited to the area identified as the "Spur Bank".

Proposed Work 3 - the levee adjacent to the boundary between Golden Acres and Boonery Park

1. Proposed Work 3 concerns the proposed construction of a levee adjacent to the boundary between the Snape interests' property 'Golden Acres' and Mr Barker's property 'Boonery Park'.
2. The proposed levee under proposed Work 3 is a new construction that would be located on the Snape interests' land and is proposed to run parallel to the 75m wide channel (the Boonery Park South Waterway) already constructed and located on 'Boonery Park', and adjacent to the Subject Site.
3. The as constructed channel located on the 'Boonery Park' land was approved for the purpose of protecting "private interests", and was also the subject of the judgment by Hussey C referred to above (at [20]).
4. The Second and Third Respondents submitted that the Boonery Park South Waterway had not been constructed, and had not been maintained, such was required in the judgment by Commissioner Hussey, so that it is able to meet the objective of protecting all private interests. In particular, the Second and Third Respondents said that it did not protect the private interests on the Snape Interests' lands, as the waterway would not contain water flows within the banks as constructed.
5. As a consequence, the Second and Third Respondent had proposed, and now seek consent for, construction of a levee at the boundary of 'Golden Acres', and adjacent to its boundary with Boonery Park and the Boonery Park South Waterway, to protect private interests in relation to Golden Acres.
6. The levee as originally proposed by the Second and Third Respondents would have a height of between 1.2m and 1.5m, and that height exceeds the height of both levee banks of the waterway constructed on the adjacent 'Boonery Park' land.
7. During the hearing the Second and Third Respondents proposed that, if its proposed levee were to be approved, it would accept a condition requiring that the height of that levee should match the height of the eastern most levee bank of the 'Boonery Park' channel.
8. The effect of constructing the proposed Work 3 levee at a height to match that of the eastern most levee bank of the Boonery Park channel, would be that: 1. water would be retained more effectively, as such the intent of the Boonery Park South Waterway would be achieved; and 2. in circumstances where the channelled area between the proposed levee on Golden Acres and the eastern bank of 'Boonery Park' channel should fill, any excess water would spill equally between the Boonery Park land, owned by Mr Barker, the Applicant, and the 'Golden Acres' property owned by the Snape Interests.
9. In response to the Second and Third Respondents' proposal in relation to the amended height of the proposed Work 3 levee, the Parties expert water engineers agreed that: 1. the structure, as amended, would not disrupt the effectiveness of the Boonery Park South Waterway channel and water flows therein; and 2. the proposed Work 3 levee structure could be constructed in a manner consistent in the amended form, as proposed by the Second and Third Respondents.
10. At the hearing the Second and Third Respondents embraced the agreed evidence of the experts, and, with the assistance of the experts, drafted a proposed condition of consent for the Court's consideration to require the construction of the Proposed Work 3 with the amended height as proposed during the hearing and as endorsed by the Parties' experts.
11. That condition (Proposed Condition 4), to be imposed for the purpose of maintaining the effectiveness of water flows to Goran Lake, was as follows: 1. Proposed Condition 4: the Work 3 levee finished height is to be equal to the height of the eastern levee of the "75 metre" Boonery Park South Waterway' as determined by ground survey prior to the commencement of works.

Conclusions

1. On the basis of the evidence of the Parties' expert water engineers, provided above at [46] to [70], I am satisfied that each of the Proposed Works that are proposed in the Application no. 90CW811054, that is the subject of this appeal, should be approved subject to conditions for the following reasons, and in the form indicated below: 1. in relation to proposed Work 1: 1. I have considered the evidence of the experts (see above at [47] to [55]) in relation to the factors identified in s 166C(1)(a) of the Water Act, their differing views on the significance of the impacts of the proposed Work 1 on water flows associated with Goran Swamp, their evidence concerning the Upper Namoi FMP, and the proposed conditions, drafted with the assistance of the experts, to mitigate those potential impacts, and have concluded that proposed Work 1 should be approved, subject to the experts' proposed conditions, because: 1. notwithstanding that no flood management plain formally applies to the work, the proposed Work 1, as conditioned, would be consistent with the contents of the Upper Namoi FMP and would satisfy the criteria identified above (at [40(2)(b)]); 2. the proposed Work 1, as conditioned, would not significantly disrupt the maintenance of natural flood regimes in wetlands and related ecosystems, most particularly Goran Swamp, and as a consequence would be consistent with the preservation of any habitat, animals (including fish) or plants that benefit from periodic flooding; 3. the proposed Work 1, as conditioned, would have no significant effect on water flows in downstream river sections; 4. the proposed Work 1, as conditioned, would not impact on any geographical features, or other matters, of Aboriginal interest that may be affected by a controlled work, and which was not a matter in contention in the appeal; 5. the proposed Work 1, as conditioned, would have not have any significant effect or likely effect on the passage, flow and distribution of any flood waters; 6. the effect or likely effect of proposed Work 1, as conditioned, on existing dominant flood ways or exits from flood ways, rates of flow, flood water levels and the duration of inundation, would not be significant; 7. the proposed Work 1, as conditioned, would be consistent with the protection of the environment; 1. on the basis of these considerations, I am satisfied, that: 1. the impact of proposed Work 1, as conditioned, on the function of Goran swamp is not significant and acceptable having had regard to the provisions of s 166C(1) of the Water Act; and 2. consent to this work should be granted subject to the conditions proffered by the Second and Third Respondents which in my assessment would mitigate any adverse impacts arising from the channel's construction; 1. I am also satisfied that there would be no unacceptable potential cumulative impacts that would arise as a consequence of proposed Work 1; 1. in relation to proposed Work 2: 1. I have considered the evidence of the experts (see above at [56] to [59]) in relation to the factors identified in s 166C(1) of the Water Act, their evidence concerning the Upper Namoi FMP, and the proposed condition, drafted with the assistance of the experts, to mitigate any potential impacts from proposed Work 2, and have concluded that proposed Work 2 should be approved, subject to the proposed condition, because: 1. notwithstanding that no flood management plain formally applies to the work, the proposed Work 1, as conditioned, would be consistent with the contents of the Upper Namoi FMP, and would satisfy the criteria identified above (at [40(2)(b)]); 2. the proposed Work 2, as conditioned, would not significantly disrupt the maintenance of natural flood regimes in wetlands and related ecosystems, notably those in Lake Goran and would, as a consequence, be consistent with the preservation of any habitat, animals (including fish) or plants that benefit from periodic flooding; 3. the proposed Work 2, as conditioned, would have no significant effect on water flows in downstream river sections; 4. the proposed Work 2, as conditioned, would not impact on any geographical features, or other matters, of Aboriginal interest that may be affected by a controlled work, and which was not a matter in contention in the appeal; 5. the proposed Work 2, as conditioned, would have not have any significant effect or likely effect on the passage, flow and distribution of any flood waters; 6. the effect or likely effect of proposed Work 2, as conditioned, on existing dominant flood ways or exits from flood ways, rates of flow, flood water levels and the duration of inundation, would not be significant; 7. the proposed Work 2, as conditioned, would be consistent with the protection of the environment; 1. on the basis of these considerations, I am satisfied, that the proposed Work 2, as conditioned, is acceptable having had regard to the provisions of s 166C(1) of the Water Act and consent to this work should be granted subject to the condition proffered by the Second and Third Respondent which would mitigate any adverse impacts arising from construction of the proposed road; 2. I am also satisfied that there would be no unacceptable potential cumulative impacts that would arise as a consequence of proposed Work 2; 1. in relation to proposed Work 3: 1. I have considered the evidence of the experts (see above at [60] to [70]) in relation to the factors identified in s 166C(1) of the Water Act, their evidence concerning the Upper Namoi FMP, and the proposed condition, drafted with the assistance of the experts, to mitigate any potential impacts from proposed Work 2, and have concluded that proposed Work 2 should be approved, subject to the proposed condition, because: 1. notwithstanding that no flood management plain formally applies to the work, the proposed Work 3, as conditioned, would be consistent with the contents of the Upper Namoi FMP, and would satisfy the criteria identified above (at [40(2)(b)]); 2. the proposed Work 3, as conditioned, would not significantly disrupt the maintenance of natural flood regimes in wetlands and related ecosystems and would be consistent with the preservation of any habitat, animals (including fish) or plants that benefit from periodic flooding, 3. the proposed Work 3, as conditioned, would have no significant effect on water flows in downstream river sections; 4. the proposed Work 3, as conditioned, would not impact on any geographical features, or other matters, of Aboriginal interest that may be affected by a controlled work, and which was not in contention in the appeal; 5. the proposed Work 3, as conditioned, would have not have any significant effect or likely effect on the passage, flow and distribution of any flood waters; 6. the effect or likely effect of proposed Work 3, as conditioned, on existing dominant flood ways or exits from flood ways, rates of flow, flood water levels and the duration of inundation, would not be significant; 7. the proposed Work 3, as conditioned, would be consistent with the protection of the environment; 1. on the basis of these considerations, I am satisfied, that proposed Work 3, as amended, is acceptable having had regard to the provisions of s 166C(1) of the Water Act and consent to this work should be granted subject to the condition proffered by the Second and Third Respondents which will mitigate any potential impacts arising from construction of the proposed levee in relation Goran Lake; 2. I am also satisfied that there would be no unacceptable potential cumulative impacts that would arise as a consequence of proposed Work 3;
2. In reaching these conclusions, I have also considered the evidence of Mr Barker, owner of the adjoining property to the Subject Site, Boonery Park, provided by way of affidavit during the hearing, in relation to his concerns in relation to each of the proposed Works 1, 2 and 3.

Directions

1. As a consequence of the conclusions reached above (at [71]) in this appeal, including the requirement that any approval by the Court of proposed Work 1, 2 and 3 would include the imposition of Proposed Conditions 1,2,3 and 4 (see above at [53(1)], [53(2)], [59(1)] and [70(1)]), and noting the form of the original approval provided by the NRAR that is the subject of the appeal (see above at [15] to [17]), the Court directs that: 1. the Parties are to file by no later than Friday 29 July 2022, a revised approval, in an agreed form, for the Second and Third Respondents' application no. 90CW811054, in relation to proposed Works 1, 2 and 3, subject to conditions identified above (at [53], [59] and [70]) to facilitate the Court making final orders to dispose of the appeal; 2. the matter is listed for a mention at 4:15pm on Tuesday 2 August 2022 by Teams; 3. if the Parties file the revised approval as directed above at [(2)] by Friday 29 July 2022, the mention on Tuesday 2 August 2022 will be vacated; 4. the Parties are granted liberty to restore on 3 days' notice. …………………………..

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 July 2022