Bryan Johnson v WATER NSW trading as Minister administering the Water Management Act 2000

Representation: Counsel:
P Crennan (Solicitor)(Applicants)
T Walls (Solicitor)(Respondent)
Solicitors:
Crennan Legal (Applicants)
Water NSW (Respondent)

File Number(s): 2024/00235733

Publication restriction: Nil

JUDGMENT

1. These proceedings arise following an appeal pursuant to s 368 of the Water Management Act 2000 (WM Act) against the respondent’s refusal of an application for an amendment to a Combined Water Supply Works and Water Use Approval no 80CA718554 under s 95 of the WM Act which sought consent to construct and use a water supply work at a previously licenced well identified as 80BL 133695 to be associated with Water Access Licence 80CA718554 (application).

2. The Application was refused due to non-compliance with the requirements of Clauses 38(2), 38(3), 39(2) and 58(1) of the Water Sharing Plan for the Macquarie-Castlereagh Groundwater Sources 2020 (WSP).

3. 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 first held on 27 November 2024 and reconvened over an extended period. I presided over the conciliation conferences.

4. The parties now propose resolution of the proceedings in accordance with the terms outlined in their executed s 34 written agreement dated 23 May 2025 (Agreement).

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ signed agreement if the Court could have made that decision in the proper exercise of its functions.

6. The pre-conditions that must be satisfied before the Court can exercise its functions are identified in a written submission by the parties.

7. After a consideration of the submission I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions for the following reasons.

8. After further information provided by the applicants, the respondent is now of the view that the required clauses 38(2), 38(3), 39 of the WSP have been satisfied subject to the conditions in Annexure A.

9. The parties submit and I accept that there will be no more than a minimal effect on the ability of a person to take water using an existing approved water supply work and any associated access licences. This satisfies the requirements of Clause 38(2)(a) of the WSP, and as a result the Court is empowered to grant the Application to amend the relevant approval pursuant to Clause 39(3) of the WSP.

10. Pursuant to Clause 38(3) the parties submit, and I accept, that the application satisfies Clause 38(2) and 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.

11. The parties agree and I accept that the location of the water supply work at a lesser distance than that specified in Clause 39(2) would result in no more than a minimal effect on the ability of a person to take water using an existing approved water supply work and any associated access licences. As a result, pursuant to Clause 39(5)(d) the location restriction in Clause 39(2)(b) does not apply.

Conclusion and orders

12. In accordance with ss 95 and 368 of the WM Act the Court has the power to make to make the parties’ decision. I now dispose of the proceedings in accordance with that decision.

13. The conditions of development consent annexed to the section 34 agreement are permissible pursuant to s 100 of the WM Act.

14. The Court notes:

15. Each party is to bear its own costs.

16. The Court orders that:

17. The appeal is upheld.

18. Approval is granted to the Application A033087 for an amendment to Combined Water Supply Works and Water Use Approval no 80CA718554, relating to the property known as ‘Bell Flats’ located at Wellington, New South Wales, to include the existing Well on Lot 132, DP 753230 subject to the conditions attached as Annexure A**.**

S Dixon

Senior Commissioner of the Court

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Annexure A