Clift Pastoral Pty Ltd v Natural Resources Access Regulator

Publication restriction: Nil

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the appeal of an Order, issued by the Minister to Clift Pastoral Pty Ltd on 31 January 2025, to carry out specified measures relating to Water Management Work at three properties in Breeza, NSW, known as Birrawa, Urubula and The Dip. Each of the properties comprises various lots. Relevantly, Urubula includes Lot 1 in DP829331 (Lot 1) and Lot 73 in DP755486 (Lot 73). The order was issued pursuant to s 392 of the Water Management Act 2000 (NSW) (WM Act).

2. The properties have been developed for intensive agriculture, and various works have been constructed on each property to facilitate this. The works the subject of the original Order comprise a continuous levee on Urubula that traverse the western boundary of Lot 1, and bisects the north-western corner of Lot 1 and the eastern portion of Lot 73. For these purposes, this levee can be referred to in two parts: the east-west levee and the north-south levee.

3. The original order can be summarised as a requirement to in part remove and in part modify the height of the levee.

4. These proceedings have been brought to the Court pursuant to s 368(1)(n) of the WM Act. A conciliation conference was arranged under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties and held on 28 August, 11 September and 18 September 2025.

5. After the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and amending the terms of the order in accordance with Annexure A.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. Pursuant to s 39(2) of the LEC Act, the Court has all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

7. Under s 329 of the WM Act, the Minister has the following powers:

329 Removal of unlawful water management works

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

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

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

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

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

(b) to capture and store overland flow water 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.

8. Regarding s 329(1) of the WM Act, the parties submit, and I accept that an approval granted in 2013 and Approval 872 authorised the east-west levee to a height of 0.8m but not beyond this height. No approval is in force for the north-south levee.

9. The order in its original form and as amended by this agreement is limited to taking “specified measures to demolish, remove, modify or dismantle the work or otherwise render it ineffective.” The proposed revised order is in writing, and the parties confirm it has been agreed to, and will be served on the applicant upon handing down of this judgment, as required by s 329(2) of the WM Act.

10. I accept the parties’ submission that the water supply work is not being used solely to take water from a water source pursuant to a landholder’s domestic and stock rights, or to capture and store overland flow water pursuant to a landholder’s harvestable rights, as per s 329(4) of the WM Act.

11. For these reasons, 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) of the LEC Act, and I am therefore required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

12. In addition to the orders made below, the Court notes the following further relevant agreements made by the parties in these proceedings, regarding a possible application to WaterNSW regarding the north-south levee:

13. The Court notes:

14. The parties agree, in respect of the applicant submitting an application to WaterNSW, that:

(a) the Applicant would seek the modelling requirements from WaterNSW by 18 September 2025; (b) after receiving the modelling requirements, within 8 weeks the Applicant would provide WaterNSW with a model; (c) the Applicant would advise NRAR of the taking of each of the steps referred to in (a) and (b) above within seven days of the taking of those steps.

14. The Court orders:

15. The appeal is upheld.

16. The Direction to Remove Unlawful Water Management Work under section 329(2) of the Water Management Act 2000 (NSW) dated 31 January 2025, issued by the Respondent to the Applicant, is modified in the terms as set out in Annexure A to this agreement.

E Washington

Commissioner of the Court

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Annexure A (256 KB, pdf)

Amendments

30 September 2025

Commissioner Signature amended.