Bathurst Regional Council v Minister administering the Water Management Act

Cases Cited: 1643 Pittwater Road Pty Ltd v Pittwater Council and Ors [2004] NSWLEC 685

Texts Cited: NSW Government, Draft Water Sharing Plan for the Macquarie/Wambuul Bogan Unregulated Rivers Water Sources, 2025
NSW Government, The Water Sharing Plan for the Macquarie Bogan Unregulated Rivers Water Sources 2012

Category: Principal judgment

Parties: Bathurst Regional Council (Applicant)
Minister administering the Water Management Act 2000 (Respondent)

Representation: Counsel:
I Hemmings SC with J Reid (Applicant)
A Pearman with J King (Respondent)
Solicitors:
Crennan Legal (Applicant)
Department of Climate Change, Energy, the Environment and Water (Respondent)

File Number(s): 2025/371206

Publication restriction: Nil

Judgment

1. COMMISSIONER**:** Bathurst Regional Council (Council) has appealed pursuant to s 368(1)(k) of the Water Management Act 2000 (NSW) (WM Act) against the Respondent’s refusal of an application to amend conditions DK3752-00001 and DK3944-00001 (Conditions) of the Water Supply Works and Water Use Approval No 80CA723483 (Approval) to amend the environmental flow releases (Release Rules) from Winburndale Dam to assist Council in achieving a secure water supply system for the City of Bathurst.

2. The proceedings fall within Class 1 of the Court’s jurisdiction pursuant to s 17(c) of the Land and Environment Court Act 1979 (NSW) (LEC Act).

3. The statutory power or function to be exercise in determining the proceedings is ss 107(1)(a) of the WM Act and s 39(3) and (4) of the LEC Act.

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 4 and 25 February 2026. I presided over the conciliation conference.

5. At conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved upholding the appeal and amending the Conditions of the Approval as agreed by the parties.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 34(3) of the LEC Act and s 107(1)(a) of the WM Act to uphold the appeal and amend the Conditions of the Approval. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how they have been satisfied as set out below.

7. Water Security for Bathurst: Water from the Winburndale Dam is delivered to Bathurst through a pipeline that includes sections of the original wood stave pipeline. The water is delivered to a reservoir and is then reticulated to parks and gardens as raw water. This supply replaces potable water demand for these purposes and therefore contributes to water security by preserving raw water in Chifley Dam. There are some metered water connections to the pipeline between the dam and raw water reservoir. The Winburndale pipeline can also deliver raw water to Bathurst water treatment plant for potable water production.

8. The current unrestricted water demand for the Bathurst water supply system is 7,500ML/year.

9. The historic climate secure yield of Chifley Dam is 4,700 ML/year. This reveals a 2,800 ML/year gap in water available for Bathurst.

10. The current Release Rules in the Approval allow for a secure yield of 28 ML/year. The proposed interim flow rules in the agreed amended Conditions will provide a secure yield in the order of 630 ML/year from Winburndale Dam, which will assist in closing the secure yield gap.

Statutory Framework and Jurisdiction

11. The Class 1 Application (Application) was made by Council on 21 December 2020 pursuant to s 107(1)(a) of the WM Act.

12. The Application was refused by the Respondent by Notice of Determination dated 2 September 2025.

13. Section 368(1)(k) permits an appeal to the Court against a decision refusing to amend an approval in accordance with an application made by its holder. Such an appeal must be made within 28 days of the Decision: s 368(3) of the WM Act. The Council complied with the timing by filing its Application on 26 September 2025.

14. The Court’s powers on an appeal pursuant to s 368(1) of the WM Act include all the functions and discretions which the respondent had in respect of the matter the subject of the appeal (s 39(2) of the LEC Act). The appeal is to be heard by way of rehearing and fresh evidence is permitted to be considered in addition to or in substitution for that originally before the Respondent (s 39(3) of the LEC Act), and regard must be had to the LEC Act and any other relevant Act or instrument (s 39(4) of the LEC Act).

15. The Approval is a combined water use approval and water management works approval (water supply work approval) as defined at ss 89 and 90(2) of the WM Act. Section 107(1)(a) is a broad power which permits the Respondent to amend the Approval on the application of the Council (being the holder of the Approval).

16. Section 107(2) of the WM Act provides that:

Without limiting subsection (1), an approval may be amended to alter, remove, add to or reduce an of the uses, works, activities or land to which the approval relates*”**.*

17. Properly characterised, the proposal alters the use authorised by the Approval by the amendment to the Release Rules. Consistent with s 107(3) the amendment does not result in the Approval ‘relating to any additional land, or authorising the extension, construction or use of a water management work on any additional land…"

18. The grant of the Application will not result in an approval relating to additional uses works, activities or land under s 107(5) of the WM Act. There is therefore no requirement that the application be advertised, assessed or determined as if it was a new approval in these circumstances.

19. For the purposes of s 107(6) of the WM Act, there is no relevant order of the Supreme Court.

20. Part 3, Division 2 of the WM Act applies specifically to the original grant of approvals and does not apply to an amendment application.

21. Part 4, Subdivision 4 of the Water Management (General) Regulation 2025 (NSW) provides additional considerations for amendments to approvals pursuant to s 107(1)(b) and (c), and therefore do not apply to the present Application.

22. The objects of the WM Act are set out in s 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 (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.

23. Section 9 of the WM Act provides:

9 Act to be administered in accordance with water management principles and State Water Management Outcomes Plan

(1) It is the duty of all persons exercising functions under this Act—

(a) to take all reasonable steps to do so in accordance with, and so as to promote, the water management principles of this Act, and

(b) as between the principles for water sharing set out in section 5 (3), to give priority to those principles in the order in which they are set out in that subsection.

(2) It is the duty of all persons involved in the administration of this Act to exercise their functions under this Act in a manner that gives effect to the State Water Management Outcomes Plan.

24. Section 107(1) of the WM Act provides a power to the Minister to amend an approval. That is a function (as defined in s 4 of the Dictionary of the WM Act) and so the Court when considering whether to exercise the amendment power must take all reasonable steps to do so in accordance with, and so as to promote, the water management principles.

25. The water management principles of the WM Act are set out in s 5 and relevantly provide:

5 Water management principles

(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 Aboriginal 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.

……

26. The Water Sharing Plan for the Macquarie Bogan Unregulated Rivers Water Sources 2012 (Plan) has effect for 20 years from 1 July 2013 to 30 June 2023 pursuant to s 43 of the WM Act and an extension granted pursuant to s 34A.

27. There is a proposal to replace the Plan with the draft Water Sharing Plan for the Macquarie/Wambuul Bogan Unregulated Rivers Water Sources 2025 (Proposed Plan). The Proposed Plan was publicly exhibited from 4 November 2024 to 13 December 2024 but has not yet been enforcedmade. There are no transitional provisions that give effect to the former Plan. Accordingly, there is no relevant Water Sharing Plan in force.

28. There is presently no State Water Management Outcomes Plan made pursuant to s 6 of the WM Act in force and so the Court does not need to consider s 9(2) of the WM Act.

29. The Application was supported by an Environmental Assessment dated 19 June 2024 (which updated the assessment dated 3 December 2021) by David Walker, Town Planner, and Martin Haege, Principal Environmental Engineer of Premise which appended ana Hydrologic Assessment, Aquatic Ecology Report and a Geomorphological Report.

30. The Flow Release Rules were discussed in the s 34(1) Conciliation Conference with input from the Respondent and its experts: Darren Barma (Cconsultant Hhydrologist and Rriver Ssystem Mmodeller), Estelle Avery (Assessment Officer, Eecologist), David Workman (Environmental Scientist) and Dan Conner (Director, Mmetering and Licensing), and the Council’s expert, Martin Haege.

31. Following the discussions between the experts, the parties agreed on the Conditions which reflect the agreed Release Rules which should be imposed by way of condition to the Approval. Section 107(1)(a) of the WM Act confers a power on the Minister to “amend an approval on the application of the holder of the approval”.

32. As a matter of statutory construction, the parties agree that when s 107(1)(a) of the WM Act is construed with reference to its context in the WM Act, the Minister has a discretion to amend an approval following the receipt of an application.

33. The proposed conditions in Annexure A reflect the general intention of the Application to improve water security for Bathurst and are a considered response to the requirement under s 9 of the WM Act to exercise the amendment power in accordance with, and so as to give effect to, the water management principles. (t (This approach is consistent with the decision of McClellan CJ in 1643 Pittwater Road Pty Ltd v Pittwater Council and Ors [2004] NSWLEC 685 at [24]-[41] which considered a similar provision relating to applications to modify development consents under Pt 4 of the E**nvironmental Planning and Assessment Act 1979 (NSW)PA Act).

34. The parties have considered and agree that the proposed amended conditions are in accordance with and promote the relevant water management principles of the WM Act, as set out below:

| Water Management Principle | How the amendment is in accordance with and gives effect to the water management principles | | 5(2)(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 | The proposal relates to an amendment of licence conditions to allow for an interim scheme for environmental flows. Conditions 7 and 9 of the interim scheme which will be put in place require a flow monitoring program be put in place downstream of the Dam and for a peer review of the model to take place to assess the interim flow rules. That will ensure that water sources will be protected and restored. | | 5(2)(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 | The proposal will capture natural variability and does not suspend environmental flows at any time. Conditions 7 and 9 require a flow monitoring program be put in place downstream of the Dam and for a peer review of the model to take place to assess the interim flow rules. That will ensure that habitats, animals and plants that benefit from water or are potentially affected by managed activities are protected going forward. | | 5(2)(c) the water quality of all water sources should be protected and, wherever possible, enhanced, and | The proposal is limited to release amounts for environmental purposes. Conditions 7 and 9 require a flow monitoring program be put in place downstream of the Dam and for a peer review of the model to take place to assess the interim flow rules. That will ensure that water quality will be protected going forward. | | 5(2)(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 | No change to the volume of water allowed for extraction via the various water access licences applying to the rivulet are proposed. Conditions 7 and 9 require a flow monitoring program be put in place downstream of the Dam and for a peer review of the model to take place to assess the interim flow rules. That will ensure that cumulative impacts on water sources and dependent ecosystems are considered and minimised. | | 5(2)(e) geographical and other features of Aboriginal significance should be protected, and 5(2) (f) geographical and other features of major cultural, heritage or spiritual significance should be protected, and | No physical works are proposed as a component of the application, and thus no impacts to sites or areas of Aboriginal significance, areas of major cultural, heritage or spiritual significance are predicted. | | 5(2)(g) the social and economic benefits to the community should be maximised, and | Social and economic benefits are achieved through increasing the secure yield of the dam. In addition, conditions 7 and 9 of the proposed approval will require a flow monitoring program and review of interim flow rules to ensure that basic landholder rights and other benefits to the community are maximised. | | 5(2)(h) the principles of adaptive management should be applied, which should be responsive to monitoring and improvements in understanding of ecological water requirements. | Conditions 2-10 require a number of monitoring programs be put in place, most of which will be made publicly available. The data which is taken from that monitoring will be used to undertake an independent peer review of the model and interim flow rules. | | 5(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). | Sharing of water is not changed by this proposal given no change to existing water licences is proposed. Conditions 7 and 9 of the proposed approval will require a flow monitoring program and review of interim flow rules to ensure that the water source and its dependent ecosystems and basic landholder rights are protected while sharing of water occurs. | | 5(4)(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 | No change to the way water is used nor the volumes extracted as a result of this application is proposed. In addition, conditions 7 and 9 of the proposed approval will require a flow monitoring program and review of interim flow rules to ensure that the use of water from the dam will avoid or minimise environmental impacts and where possible rehabilitate land. | | 5(4)(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 | Social and economic benefits are achieved through increasing the secure yield of the dam. In addition, conditions 7 and 9 of the proposed approval will require a flow monitoring program and review of interim flow rules to ensure that social and economic benefits to the community are maximised. | | 5(4)(c) the impacts of water use on other water users should be avoided or minimised. | No changes to water use are proposed as a result of this application. All current licences are maintained. In addition, conditions 7 and 9 of the proposed approval will require a flow monitoring program and review of interim flow rules to ensure impact of water use on other water users will be avoided or minimised. |

35. The parties agree that the amendments to the Approval represent a decision the Court can make in the proper exercise of its functions under the LEC Act and the WM Act.

36. For the reasons set out above, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3)(a) of the LEC Act. I shall uphold the appeal and amendment the Conditions of the Approval as set out in Annexure A, and dispose of the proceedings in accordance with the parties’ decision.

37. The Court orders:

38. The Appeal is upheld.

39. Pursuant to s 107(1)(a) of the Water Management Act 2000 (NSW), Water Supply Works and Water Use Approval No 80CA723483 dated 4 October 2012 is amended by deletion of conditions DK3752-00001 and DK39444-00001 and insertion of the conditions in Annexure A.

40. A consolidated version of the amended Water Supply Works and Water Use Approval No 80CA723483 is in Annexure B.

M Peatman

Acting Commissioner of the Court

Annexure A (192 KB, pdf)

Annexure B (2.43 MB, pdf)

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