Department of Environment, Climate Change and Water v November Foxtrot Sierra Pty Limited

Preliminary matters 2The case was mentioned in Glen Innes Local Court in July 2010 and it was transferred to Armidale Local Court. An application to transfer the proceedings to the Local Court at the Downing Centre was not successful and the case remained in Armidale. 3Brief orders were made in October 2010 and the case was set down for hearing on 1 February 2011. Evidence was given and submissions made on a preliminary point regarding the lawfulness of the delegation under which the direction was given pursuant to section 21B(1)(b) of the Water Act 1912. A written decision was handed down in favour of the Prosecution on 28 February 2011 (Department of the Environment, Climate Change and Water v November Foxtrot Sierra Pty Ltd [2011] NSWLC 39). 4The substantive case was set down for hearing with evidence being given on 10 June and 6 December 2011. Delays in obtaining transcript held back the preparation of submissions but the Prosecutor's submissions were received by the end of December 2011 and the Defendant's by the end of January 2012. 5The parties tendered evidence on the delegated powers and the Prosecutor tendered a substantial brief of evidence in the substantive case. A number of prosecution witnesses were called to give evidence at the hearing including Dr Steven Beaman, Beverley Hanna, Katrina O'Reilly, Dr David Outhet (an expert witness) and for the Defendant Boyd Munro (Director of the defendant company) and Professor Mark Taylor (an expert witness). Numerous other exhibits were tendered by the parties in their respective cases.

Notice of admissions 6At the outset of the substantive case, a voir dire point was raised by the Defendant in regard to certain admissions made by its legal representatives to the prosecution. A Notice by its solicitor, Turtons Lawyers, dated 18 January 2011, made admissions that the earthen embankment is a work which falls within the definition of the expression "work to which this Part extends" as defined in section 5 of the Water Act 1912. This admission was potentially fatal to the Defendant's case and an application was made to exclude it under section 90 of the Evidence Act 1995. Arguments were heard on the application which was decided in favour of the Defendant. The evidence of the admission was ruled inadmissible on the basis that it would be unfair to that party to admit it. This ruling effectively put the Prosecution in a position whereby it must prove its case. 7In a Notice of Admitted Facts, the following was admitted by the Defendant: (1)The Defendant owns Lots 5 and 29 in DP751483, comprising part of a property known as Wards Mistake Station ("the Property") and has owned the Property at all relevant times. (2)Nowlands Creek runs through the Property. (3)In about December 2006, the Defendant carried out certain works on the Property in or in the vicinity of Nowlands Creek, which included the emplacement of an earthen embankment in Nowlands Creek (the "Earthen Embankment"). (4)The Earthen Embankment in Nowlands Creek is a work which falls within the definition of the expression "Work to which this Part extends", as defined in section 5 of the Water Act 1912. (5)The Earthen Embankment is located on land owned at all relevant times by the Defendant. (6)On 16 April 2008, Mr Garry Wills of the NSW Department of Water and Energy, sent a letter to the Defendant attaching a draft form of direction under section 21B(1)(b) of the Water Act 1912. The said letter and draft direction were sent in the form of the documents comprising Annexure 9 to the Statement of Beverley Hanna dated 16 September 2010 and served by the Prosecutor in these proceedings. (7)On 20 November 2008, Ms Katrina O'Reilly of the NSW Department of Water and Energy, sent the Defendant a purported direction under section 21B(1)(b) of the Water Act 1912 requiring the Defendant to remove the Earthen Embankment within 30 days (the "Direction"). The Direction and its covering letter were issued by Ms O'Reilly in the form of the documents comprising Annexure B to the statement of Katrina O'Reilly dated 17 September 2010 and served by the Prosecutor in these proceedings. (8)The Defendant did not remove the Earthen Embankment by 21 December 2008. (9)The Defendant has not subsequently removed the Earthen Embankment. (10)The Earthen Embankment is a work in respect of which no right conferred by Part 2 or Part 10 of the Water Act 1912 exists and in respect of which no licence, group licence, irrigation corporation licence, authority or permit is in force within the meaning of section 21B(1)(b) of the Water Act 1912.

Submissions of parties and the law 8To be successful in the substantive case, the Prosecutor is required to prove that the watercourse at the location where the earthen embankment was built falls within the definition of a "River" in section 5 of the Water Act 1912. The section provides as follows: "River" includes: (a)a stream of water, whether perennial or intermittent, flowing in a natural channel, or in a natural channel artificially improved, or in an artificial channel which has changed the course of the stream. (b)an affluent, confluent, branch or other stream of water into or from which a stream referred to in paragraph (a) flows, and (c)anything declared by the Ministerial Corporation by order published in the Gazette to be a river. but does not include anything declared by the Ministerial Corporation by order published in the Gazette as not being a river and, unless the regulations otherwise provide, does not include those waters of a tidal river that at any time are not capable of being used for irrigation or for watering stock. 9The definition refers to gazetted orders declaring streams to be rivers. The provision allows the Ministerial Corporation to declare by order published in the Gazette a watercourse not to be or to be a river. On 24 March 2006 the Director General of the Corporation published in the Government Gazette a declaration which had Four Schedules. Schedule 1 provides that certain streams are not rivers. Schedule 2 provides that certain streams are rivers. Schedule 3 encompasses a list of topographic maps and Schedule 4 prescribes the method for determining the stream order of a watercourse known as the Strahler System. The material Gazetted is lengthy comprising many pages. 10In essence, the Prosecution contends that it has proved that Nowlands Creek is a "river" within the meaning of 5(1)(a) and (b). The Defendant's submission is to the contrary. It contends that the proviso within section 5 applies bringing the provisions contained in the order Gazetted on 24 March 2006 into play. The Defendant submits that at the point of the earthen embankment, Nowlands Creek is not a river because it is not a third or fourth order stream under the Strahler System and it does not maintain a "permanent flow of water, being a visible flow which occurs on a continuous basis". Thus it falls within Schedule 1 which provides that such streams of water are not "rivers". 11The Prosecution submits that it has proved its case by any one of the following routes: (i)The definition of "river" as contained within section 5(1) of the Water Act is satisfied whether in terms of Paragraphs (a) or (b) thereof. (ii)By showing that the provisions of the Order made pursuant to section 5(1) of the Water Act gazetted in the NSW Government Gazette No.37 at page 1500 on 24 March 2006 (the 24 March 2006 Order) do not apply in any event. (iii)As an alternative to (i) and (ii) above, if it is held by the Court that the 24 March 2006 Order does apply, then under Schedule 2 Clause 1(a)(i) and (ii) Nowlands Creek is a river being a stream of water represented on a topographic map listed in Schedule 3 of that order and being a third, fourth or higher order stream under the Strahler system. (iv)As an alternative to (i), (ii) and (iii) above, if it is held by the Court that the 24 March 2006 Order does apply, and that the order of the Creek is 1st or 2nd order, then under Schedule 2 Clause 1(b)(iii) of that order Nowlands Creek is a stream of water that maintains a permanent flow of water on a continuous basis and is therefore relevantly a river. (v)By the failure on the part of the defendant to bring itself within the terms of any exemption, proviso or exclusion to the definition of River such as the exclusion provided for in Schedule 1 of the 24 March 2006 Order. (vi)Regardless of whether, at the point where the dam is located on Nowlands Creek, that part of the watercourse is a River, the dam on Nowlands Creek is a "work to which Part 2 of the Water Act extends" pursuant to subsection (a) and/or (b) of the definition in section 5(1) of the Water Act of "Work to which this Part extends" because it is a work: (a) which is connected with, or which affects the quantity or use of water in, a river or lake; (b) which affects the quantity of water flowing in, to or from, or contained in, any such river or lake. 12The Defendant submits that the Prosecution has not proved its case because it has not proved that Nowlands Creek is a river at the point where the earthen dam was constructed. The Defendant contends that Nowlands Creek does not fall within the definition of a "river", is not a third or higher order of stream and does not have a continuous or permanent flow of water at the point where the dam was constructed. 13References were made in submissions to cases which have considered the provisions of the Water Act 1912 and the definition of what constitutes "a river" at common law. O'Keefe v Water Management Ministerial Corporation [2010] NSWLEC 9 relates to both aspects and being a decision of the NSW Land and Environment Court it binds this Court. Reference was also made to the comments of Barwick CJ in Knezovic v Shire of Swan-Guildford (1968) 118 CLR 468. In that case the Chief Justice said [footnotes omitted]: In Gartner v Kidman, the majority of the Justices participating adopted a passage from Angell on Watercourses, 5th ed. (1854), p.3, as stating the meaning at common law of a watercourse, namely: ".... a watercourse consists of bed, banks and water: yet the water need not flow continuously and there are many watercourses which are sometimes dry. There is, however, a distinction to be taken between a regular flowing stream of water which at certain seasons is dried up and those occasional bursts of water which at times of freshet or melting of ice and snow descend from the hills and inundate the country." It seems to me, on an examination of such authorities as exist and of the work of recognized writers on this subject, as well as the decision of the Court, that it is settled that a watercourse consists of a stream with a bed, with banks, and water. That the flow of water in the stream is intermittent or seasonal will not prevent what would otherwise be a watercourse from being accounted such: but though it is quite true that a watercourse may exist though its bed be dry for some periods, the watercourse, in my opinion, must exhibit features of continuity, permanence and unity, best seen, of course, in the existence of a defined bed and banks with flowing water. It must, in my opinion, essentially be a stream and be sharply distinguished from a mere drain, or a drainage depression in the contours of the land which serves to relieve upper land of excess water in times of major precipitation. It is not enough that the water, when it does flow, does so in what may be seen as a defined course or channel. In the case of a drainage depression, the water being drained off can be expected to flow in the lowest portion of the contours confined by the rising levels of the adjacent land: thus water can be seen when flowing to do so in what could be called a defined channel. If the seasonal rainfall is within an average tolerance in amount and timetable, the flow in the depression may well exhibit some regularity in the depth of water flowing in the contour depression and in the extent to which it spreads as it flows. If there is some such normality in the volume flowing, the impression of a defined channel with limiting margins will be enhanced. If as I would expect to be the case, there is considerable variation in the rainfall and in the volume and velocity of the water flowing in the depression, the impression of a defined channel may be considerably less. But in any event, the existence of such a defined channel will not make the drainage depression a watercourse nor the limiting margins of the water flow in a rainy season or period "banks" of a stream. Thus though water when it flows in such a period flows in what can be called a defined channel, such a drainage depression will lack banks and a bed in the proper sense of that term, that is to say, identifiable margins of a continuous and permanent stream which contribute to its unity whether or not water is in fact continuously flowing over the bed. The word "occasional" in the quotation from Angell on Watercourses will here, in my opinion, embrace seasonal events, even if they occur with some regularity from season to season."

Where does the onus of proof lie? 14The Prosecutor submits that the definition of "river" in section 5 of the Water Act 1912 permits the making of orders by the Ministerial Corporation in the Gazette. It is argued that the publication in the Gazette of an order in 2006 creates an "exemption, proviso or exclusion" from the definition given the words used: "but does not include anything declared.... as not being a river" in section 5. Thus section 417A of the Crimes Act 1900 applies. It states: 417A Proof of exceptions

1. (1)Any exception, exemption, proviso, excuse or qualification to the offence (whether or not it is in the same provision with a description of an offence in an Act or statutory rule or document creating the offence) need not be specified or negatived in an indictment or other process commencing proceedings.
2. (2)The exception, exemption, proviso, excuse or qualification may be proved by the accused person.
3. (3)If the exception, exemption, proviso, excuse or qualification is specified or negatived in the indictment, court attendance notice or other process commencing proceedings, the prosecutor is not required to prove it. 15The Prosecution refers to numerous cases to support its submission that the onus falls on the Defendant to prove that the stream of water at Nowlands Creek is not a "river" pursuant to the provision of the order Gazetted in 2006 and Schedule 1 thereof. Reliance is placed especially on Office of Fair Trading v El Homsi [2009] 74 NSWLR 443 where the Court stated at 447: "Exceptions.... are to be set up by those who rely on them". 16The Defendant agrees that the Court should have regard to section 417A of the Crimes Act. Where an offence provision creates a general obligation or prohibition which is subject to a proviso, exemption or exception properly characterised as such, the Prosecutor submits the onus falls on the Defendant to prove that it falls within the exemption, proviso or exception on the balance of probabilities. But the Defendant argues that the Gazetted order simply forms part of the statutory definition of "river" and the language used in the Water Act 1912 does not create a general rule which is subject to an exception, exemption or proviso. The Gazetted order amplifies the definition of "river" in section 5 of the Water Act 1912. To support this construction, the Defendant refers to DPP v United Telecasters Sydney Pty Ltd (1990) 168 CLR 594; Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 and ADI Ltd v Environment Protection Authority (2000) 118 A Crim R 335. The latter decision follows what was said by three Justices of the High Court of Australia in Chugg and is a decision of the NSW Court of Criminal Appeal. Those authorities support a submission that the schedules in the Gazetted order of 2006 are more accurately characterised as forming part of the definition of "river" than it would be to characterise Schedule 1 as creating an exemption, exception or proviso. 17The Court's view is that the material contained in the Gazetted order of November 2006 elaborates on the definition of "river" in section 5 in the Water Act 1912. It does not create an exemption from the definition of "river" in the Act and it does not create any defence in law. It is simply an amplification on the definition of "river" and provides guidance to the Court and others on how to determine whether a "stream" is a "river". The issue arising about the burden of proof and the prosecution's submission that the defendant must satisfy the Court that the Gazetted order applies is rejected. The Prosecution carries the onus of proving the elements of the offence charged beyond a reasonable doubt. In this regard the Gazetted order provides a guide to the definition of "river". It must prove that Nowlands Creek where the dam was constructed was a river in one of the ways contended.

Is the dam constructed pursuant to a Harvestable Rights Order under section 54 of the Water Management Act 2000? 18The Prosecution raises an issue whether the Gazetted order 2006 applies at all because it relates to a dam within the meaning of a harvestable rights order made under section 54 of the Water Management Act. This issue partly arises from the evidence led by the Defendant on the use and purpose of the dam or earthen embankment. However, Mr Munro stated in his evidence that the purpose of the structure constructed at Nowlands Creek was to allow vehicles to cross the creek and to control erosion in the creek. The construction is not a "dam" constructed and used in accordance with the harvestable rights order under section 54 of the Water Management Act. In the light of this evidence, the Prosecution submits that Schedules 1 and 2 of the Gazetted order do not apply to the construction at Nowlands Creek. 19The Defendant disagrees submitting that the charge is predicated on the construction at Nowlands Creek being a dam. Departmental officer Hanna refers to the structure being a "dam" as does Dr Beaman, Ms O'Reilly and the expert witness called by the Prosecution, Dr Outhet. Evidence was not led by the Prosecution as to the existence or terms of any harvestable rights order and there is no evidence as to whether the construction of the dam and/or its use fall within the terms of any harvestable rights order. Reference is made by the Prosecution to the decision of Justice Lloyd in O'Keefe v Water Management Ministerial Corporation [2010] NSWLEC 9. It is a binding and relevant authority supporting the Prosecutor's general contention but it does not apply to the case before this Court because there is no evidence about the existence of any harvestable rights order.

The Strahler System 20The method for determining the stream order of a water course is set out in Schedule 4 of the Gazetted order in 2006. It is called the Strahler system. Schedule 4 provides: The method of determining the stream order of a watercourse shown on a topographic map is the Strahler system as shown below. The Strahler system is applied to the watercourses shown on the topographic maps as listed in Schedule 3. For the purposes of this order, watercourses on the maps are deemed to be continuous even if they lose definition and then reappear downstream. The Strahler system + Starting at the top of a catchment, any watercourse which has no other watercourses flowing into it is classed as a first order stream (1). + Where two first order streams join, the stream becomes a second order stream (2). + If a second order stream is joined by a first order stream - it remains a second order stream. + When two second order streams join they form a third order stream (3). + A third order stream does not become a fourth order stream until it is joined by another third order stream. 21The application of this system to Nowlands Creek was described in detail by Dr Outhet in his evidence. Its application requires reference to the topographical maps prescribed in Schedule 3 of the Gazetted order in 2006. The topographical maps of the land through which Nowlands Creek runs were tendered by the Prosecution and comprise Exhibit 2. The maps tendered were Bald Blair (1973 edition), Wards Mistake (1974 edition) and Kookabrooka (1974 edition). The Bald Blair map was the focus of the evidence given by Dr Outhet and it is referred to by Professor Taylor, an expert witness called by the defendant company. 22An important issue in this case is whether the application of the Strahler system requires "ground truthing". The Defendant submits that it does. Professor Taylor gives evidence that there are subsequent topographical maps of the land through which Nowlands Creek runs which do not depict as many watercourses as the 1973 edition. Further, ground truthing, which includes onsite inspections of the property, may show that a watercourse depicted on the topographical map may not be visible or even exist. The Defendant contends that the Court should adopt a purposive construction of the Gazetted order in 2006 and, "a construction which would lead to an absurd result is not to be preferred if there are rational alternatives". Counsel for the Defendant relied on Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 which the Court notes has been followed in by the NSW Court of Criminal Appeal in RTA v Baldock [2007] NSWCCA 35 and by the Court of Appeal in DPP v Yigit [2008] NSWCA 226. It is also pertinent to note section 33 of the Interpretation. Act 1987. 23Reference is also made to the decision of the NSW Court of Criminal Appeal case of Director General Department of Land and Water Conservation v Bailey [2003] NSWCCA 361. That case refers to another principle of statutory construction. If a statutory provision creates an offence but is ambiguous, it should be interpreted narrowly and that meaning most favourable to the accused preferred. Justice Shaw made reference to a decision of the High Court of Australia in his judgment as follows: [24] Both of the questions on the stated case raise issues of statutory construction. Neither counsel for the Director General or the defendant made submissions with reference to a suggestion made by the learned President, during argument before this Court, that penal statutes should generally be read narrowly and with ambiguity construed against the prosecution. Nevertheless, the principle should be noted. The position was stated by the High Court in R v Adams (1935) 53 CLR 563 at 567-8 as follows: No doubt, in determining whether an offence has been created or enlarged, the Court must be guided, as in other questions of interpretation, by the fair meaning of the language of the enactment, but when that language is capable of more than one meaning, or is vague or cloudy so that its denotation is uncertain and no sure conclusion can be reached by a consideration of the provisions and subject matter of the legislation, then it ought not to be construed as extending any penal category. See also, Pearce and Geddes, Statutory Interpretation in Australia (4th Ed, Butterworths, 1996 at 226 - 227). See also Murphy v Farmer (1988) 165 CLR 19 at 28-29. [25] In my opinion, there would be no contradiction between an Adams construction and s 33 of the Interpretation Act 1987 (NSW) because to prefer the construction promoting the object and purpose of a statute is to apply it according to its terms, noting that: If conduct of a particular kind stands outside the language of a penal section, the fact that a court takes the view that it is through inadvertence of the Legislature that it has not been included does not authorise it to assume to remedy the omission by giving the penal provision a wider scope than its language admits. Ex parte Fitzgerald; Re Gordon (1945) SR (NSW) 182 at 186 per Jordan CJ (with whom Halse Rogers and Street JJ agreed)." 24The Defendant's view is that the literal application of the language in that Gazetted order could result in an absurd consequence which bears little resemblance to reality on the ground. The Prosecution argues that the Gazetted order is the law which governs this case and it should be literally applied. The Prosecution submits and the Defendant concedes that if the Court determines that the order of stream is determined by reference purely to the maps referred to in the Gazetted order in 2006, then the Court would be satisfied that Nowlands Creek at the point where the earthen embankment was constructed is a third or higher stream order and, thus, a river. The Court's view is that the language in the order is clear. If its application produces an absurd consequence then that is a matter for the NSW Parliament to address.

Order of stream 25Applying the Strahler method and examining the relevant topographical maps Dr Beaman concluded that the stream was between a "third and fourth order stream" (Transcript 10/6/11 page 31). He finished by continuing that he reached his conclusion about the order of stream based on his on the ground inspection and what was on the map. He inspected the site on 1 February 2007 and was on the property for about three hours. The Wards Mistake and Kookabrooka maps highlight the movement of Nowlands Creek through the property and the other two topographical maps portray the upper catchment for Nowlands Creek. 26Ms O'Reilly referred to the four topographical maps and expressed the view that the creek was a fourth order stream or above at the point where the dam was built (Transcript 10/6/11 page 49). She gave evidence that her observations at the property were consistent with what she saw on the topographical maps. 27In submissions the Defendant points out that the departmental officers did not give evidence as experts. Only Dr Outhet and Professor Taylor were called as experts. However, all the departmental officers are experienced and qualified in their respective fields. While their opinions may not be those of expert witnesses, their observations of the property and Nowlands Creek and examination of topographical maps should not be discounted. 28On this question the answers of the experts, Dr Outhet and Professor Taylor, do vary. Dr Outhet gave evidence that Nowlands Creek was a fourth order stream. His two reports dated 20/9/10 and 12/5/11 were tendered. In evidence he explained the Strahler system. He qualifies his evidence by acknowledging that when he inspected the property in August 2008 he and Ms Hanna stopped at 18 places and checked on the ground observations against the map. There was one spot where a variation occurs from the map. He was asked to what degree is he certain that the river is a fourth order stream at the point of the dam and he answers "Yes, I'm very certain that it's a fourth order". This conclusion is based on his reading of the maps and visual observations (Transcript 10/6/11 page 68). He gives evidence that there was a flowing river at that point and he proffers the view that there is a permanent flow of water in the stream. In cross-examination, he conceded that there may have been 21 points along Nowlands Creek where he conducted visual observations but he adheres to his view that the stream has a permanent flow of water (Transcript 10/6/11 page 88). 29Professor Taylor challenges Dr Outhet's findings on a number of basis. His report dated 28 January 2011 was admitted into evidence. Challenges to the manner of his engagement and to his partiality were made and canvassed in submissions, but the Court views Professor Taylor as an expert but one with a different view of the proper application of the Strahler system. The Court concludes that Professor Taylor believes that "ground truthing" is important to the process and it is important to consider variations to topographical maps over time rather than being bound by gazetted maps which may be out of date. His approach is: "Q. Could you please tell his Honour what you say is the appropriate way in which you would determine the order of Nowlands Creek in accordance with the Strahler method at the subject location where the crossing is: A. Well, clearly there are two opinions in this Court and there's the legal way which is listed in the order which talks about the use of the blue lines on the map and then the subject of the papers which are appended to my report talks about the need to undertake a field investigation in order to ascertain if the blue lines on a map are in fact geo fiction or actually real features in the landscape and essentially those two articles cover the same item for different audiences one is the legal audience which is the first paper. The second one is more for geomorphologists but it takes us to the same point where we developed a test if you like a nine part test building on Knezovic v Shire Swan-Guildford decision which Barwick CJ gave which requires us to go out and look at the site and do field assessment to work out the stream order. Q. Just pausing there, when you referred earlier to what did you refer in particular? A. The blue lines on the map that's basically the line of a cartographer's pen and those lines may not in fact relate to anything in reality in the landscape and in order to find out whether those blue lines are actually a river or not according to the common law definitions which we have discussed in the articles which are appended to my report we have said and I have said that you go and look at the site and look for the features which indicate whether the blue line as drawn on the map is actually a river or not and if I could paraphrase what the Barwick CJ decision said he said you need bed, banks, continuity and permanence and those are the things that I have sought to look for when I've gone out and looked at streams in the field and done a site assessment along with some other items which are listed in that what I have called the nine part test." 30At the close of his evidence, Professor Taylor says that Nowlands Creek at the point where the dam is constructed is not a fourth order stream under the Strahler system. To this extent he disagrees with Dr Outhet. He agrees with Dr Outhet that Nowlands Creek is a river. But he is critical of Dr Outhet's conclusions because too little time was devoted to ground truthing and the Doctor found a discrepancy between the position on the ground and that depicted on the geomorphological map at one of 21 points of inspection down Nowlands Creek. 31The Defendant's Counsel conceded that if "one uses the Strahler system by lines on the map, the typographic map, one would find this to be a third - a higher than second order stream, if one uses the maps" (Transcript 10/6/11 page 35). 32Professor Taylor agrees with Dr Outhet that at the crossing Nowlands Creek is a river in geomorphic terms (Report 28 January 2011 pages 3-4). 33He disagrees with Dr Outhet's conclusion that Nowlands Creek at the crossing is a fourth order stream because: (a)The grid references used by Dr Outhet do not correspond with the locations referred to on the map reviewed by Professor Taylor. (b)The more recent maps of the area do not include all the blue lines identified by Dr Outhet. (c)More time than that spent on the property by Dr Outhet and closer examination on the ground would be required to determine the order of stream at the crossing. 34He says "I note that Nowlands Creek at the crossing is undoubtedly a river from a geomorphic perspective in that it has beds and banks, sediment and erosion features, bedfarms and it supports aquatic habitat and species. However I am unable to say whether Nowlands Creek at the crossing is a 'river' in terms of the order, i.e. it has a stream order greater than 2" (page 7). Attached to his report are articles about the definition of "river" in NSW which include an analysis of decisions about the definition and comments about the adequacy of the statutory definitions adopted in this State. The Report attaches many photographs taken while the property was inspected. 35In his earlier report dated 17 September 2010, Dr Outhet says: "Nowlands Creek at the location of the dam is a river from a geomorphic perspective. It is a stream of water flowing in a well-defined continuous natural channel... Nowlands Creek was flowing at the time of my inspection" (page 3 and Photograph C). He says "if only using the blue lines on the 1:25,000 topographic maps for the catchment above the dam (Blackwater, Wards Mistake, Bald Blair, Kookabrooka) the stream order at the dam is fourth" (page 3). The Report attaches many photographs of Nowlands Creek taken during the Doctor's inspection on 27 August 2008 and on 24 March 2009 by Ms Hanna on one of her inspections with Ms O'Reilly. 36In his response to Professor Taylor's report dated 12 May 2011, Dr Outhet reviewed the topographic maps for the Nowlands Creek dam site and upstream catchment having regard to the provisions of the Gazetted order in 2006. On review of the Kookabrooka map (1974 edition) he observes solid blue lines are used to depict Nowlands Creek which means, he says, that the map makers decided that Nowlands Creek was a river. 37He refers to the topographic maps relevant to the area where the dam was built specified in the Gazetted order which were used by him and the maps used by Professor Taylor, which are more recent. He states clearly on page 8 that stream order is to be determined in accordance with the Gazetted order and this is based on those maps specified in Schedule 3 of that order. He concedes that the map used by Professor Taylor, a Bald Blair 1988 2nd edition, depicts 22 fewer first order streams than when compared to the map Gazetted in the order which is the 1973 1st edition. He then says "even so, the stream at the dam is still fourth order" (page 8). 38While Dr Outhet's view is that the Gazetted order prescribes the method of determining stream orders, he concedes that there are some experts, including Professor Taylor, who say that it is necessary to engage in ground truthing to determine the real geomorphic stream order. Dr Outhet then sets out the details of the field checking he undertook with Ms Hanna on 27 August 2008. As a result he found that two of the 21 mapped order streams did not equate with his observations on the ground. The balance of the first order streams in the catchment were "likely to be correct" and this enabled him to state his opinion with certainty that Nowlands Creek at the dam site is not less than a third order stream (page 10). Dr Outhet then challenges some of Professor Taylor's on the ground observations for lack of specification and responds to Professor Taylor's criticism of his using wrong grid references.

Continuous flow of water 39Dr Beaman, an officer from the Department, gave evidence for the Prosecution. His report dated 17 January 2008 was tendered. He gave evidence of seeing water reticulating from the dam site to a pond near the roadside. Water was flowing from that pipe and he saw water backed up in the dam area. He observed water several hundred metres up stream and there was a "continuous flow at the head of that body of water" (Transcript 10/6/11 page 27). His report contains numerous photographs showing water flow 40Ms Hanna, an officer from the Department, gave evidence for the Prosecution. Her report dated 16 September 2010 was tendered. She inspected the property on 15 January 2008. She gave evidence of seeing a "continuous" flow of water (Transcript 10/6/11 page 39). A further inspection was conducted on 1 December 2009 with Ms O'Reilly. She gave evidence of seeing water from the dam down to a bridge where both were located. The flow was described as "continuous" at the bridge. A further inspection was conducted on 20 July 2010 and a "flow of water" was observed. "I could see water on the by-wash and it was flowing down at the bridge" (Transcript 10/6/11 page 41). She described the flow as "continuous". In cross-examination about the inspections, she gave evidence of seeing "a permanent flow in that creek". On 27 August 2008 Ms Hanna attended the property with Dr David Outhet. She observed water flow which is evidenced by photographs taken on that day. 41Ms O'Reilly, an officer of the Department, gave evidence for the Prosecution. She gave evidence of using the Strahler system regularly. Her statement dated 17 September 2010 was tendered. She visited the property on 6 August 2008 with Ms Hanna. She observed the dam across Nowlands Creek. Water was being "backed up or impounded" behind the dam wall. She saw a wash or spillway to the side of the dam. She walked downstream of the dam wall to the bridge. She gives evidence of seeing water "flowing into the impounded water behind the dam wall from upstream ... going through... the by-wash on the causeway flowing downstream and adjoining the creek near Nowlands Bridge and it was flowing consistently from upstream through the dam and downstream" (Transcript 10/6/11 page 51). She said it was a permanent flow of water. On 24 March 2009 she again saw a constant or continuous flow of water from upstream and downstream which appeared to her to be "permanent". Photographs supporting this observation were taken. On 1 December 2009 she observed water flowing continuously at the bridge and it appeared to be of a permanent nature. In cross-examination she gave evidence of the durations of the inspections and confirmed that her observations about continuous and permanent flow of water were based on those inspections. 42Boyd Munro has owned, through his company, Wards Mistake for 30 years and during that time he has spent around two months each year on the property. He gave evidence about the reasons why and purpose for construction of the dam across Nowlands Creek and of a number of other matters. Relevantly he gave evidence that on more than 30 occasions over the years he observed no flow of water in Nowlands Creek. He was extensively cross-examined about this evidence. It emerged that Mr Munro was not able to recall the times or locations where these observations were made and that he did not have an operative water gauge operating to measure water flow in the creek. He conceded that the water flowed down the creek more often than not and the flow was described as regular. In the Court's view Mr Munro was a witness of credit and his failure to recall details over such a lengthy period of time is understandable. He proffered evidence that there had been eels and fish in the creek and he wished to encourage their habitat. The Prosecutor in submissions referred to phrases and words used by Mr Munro in evidence, records of interview and correspondence about the creek suggestive of a view that it was a river but the Court does not regard those references as assisting to determine material facts in issue. 43A number of different witnesses have observed the creek at different times over four years. At those times they saw either a continuous or permanent flow of water in the creek or at and around the point where the dam was constructed. Against their evidence Mr Munro gives evidence that he has seen no water flow in the creek more than 30 times over 30 years. Professor Taylor did not observe a flow of water on at least one occasion. Q. Now what do you say to the proposition that the Nowlands Creek at the location of the subject crossing maintains a permanent flow of water being a visible flow which occurs on a continuous basis? A. Well I've only been there three times in my life. The last time was yesterday. But I do believe in my visit - on my visit in 2009 that I did see no water passing between the upstream area of the crossing and the downstream area of the crossing. However in order to understand this question, has there been permanent flow at a site, one would need to have been to that site a reasonable - spend a reasonable amount of time in that site in order to understand the variation that occurs over time as a result of the variation in climate that this part of the world receives. So what I'm trying to say is, if one just goes once or twice and sees permanent flow at a site, I think it is very difficult, it's a very - you're drawing a very long bow between two visits and then saying, well I've been there twice and there's always been water there, therefore there must be permanent water there at all times under all conditions. That's an extremely long bow.

Decision 44The Prosecution has the onus of proving that Nowlands Creek was a river at the point where the construction was located. The evidence of Mr Munro and Professor Taylor casts reasonable doubt on whether the Court could find to the requisite standard that there was a continuous and permanent flow of water at that point, given those words have their normal and literal meaning. While there is some criticism of Dr Outhet's evidence and a problem identified by him when ground truthing the creek at one of 21 locations, his evidence is solid. Professor Taylor is unable to refute Dr Outhet's ultimate conclusion that the creek is a third order stream but he disputes the finding it is a fourth order stream. Dr Outhet's evidence on the stream order of Nowlands Creek is supported by experienced and trained officers from the Department. 45The Prosecution's submission is that it has proved that Nowlands Creek at the point where the earthen dam was constructed was a river. Essentially under the definition in section 5 of the Water Act 1912 the Prosecution needs to prove that there was "a stream of water whether perennial or intermittent flowing in a natural channel, or in a natural channel artificially improved, or in an artificial channel which has changed the course of the stream". The submission refers to the evidence about water flow in the creek over a period of four years from February 2007 to January 2011. The direction issued pursuant to section 21B(1)(b) of the Act was dated 2008 and the failure by the Defendant company to comply with that direction results in the date of the offence being late December 2008. 46The evidence is of water flowing in a natural channel, or an artificial channel. The evidence of Department officer, Ms O'Reilly, observed a "wash or spill way to the side of the dam flowing downstream and rejoining the creek". This probably constitutes an artificial channel which has changed the course of the stream. Other evidence would tend to prove that the creek has a natural channel up and downstream aside from where the dam is constructed. The photographs tendered support this finding. 47The next question is whether there was a "stream of water, whether perennial or intermittent". At the hearing the focus of questions put to witnesses was on whether the flow of water observed was continuous or permanent rather than perennial or intermittent. Various inquiries about the meaning of the words used in the definitions in the Water Act 1912 have been made. Justice Lloyd in O'Keefe v Water Administration Ministerial Corporation [2010] NSWLEC9 referred to definitions given to these words by experts called in the case. Those experts included Dr Outhet. The terms and words are not defined in the legislation. Dictionary definitions are relevant. 48In the Macquarie Concise Dictionary 3rd Edition: "continuous" is defined: "having the parts in immediate connection, unbroken... uninterrupted in time, without cessation". "intermittent" is defined: "that intermits or ceases for a time .... Alternately ceasing and beginning again... (of streams, lakes or springs) recurrent, showing water only part of the time". "perennial" is defined: "lasting for an indefinitely long time; enduring... lasting or continuing throughout the year, as a stream... perpetual, everlasting; continuing; recurrent". "permanent" is defined: "lasting or intended to last indefinitely; remaining unchanged; not temporary; enduring; abiding". 49On the basis of these dictionary definitions, the evidence about Nowlands Creek would not support the finding that the stream of water was "perennial", "permanent" or "continuous" but a finding is open that the flow is "intermittent". If this view is correct then the Prosecution has proved that Nowlands Creek at the place where the dam was constructed is a "river" and the Court could find that the construction was a "work to which this part extends" as defined in section 5 of the Act. Such a finding is vital to the validity of the Direction, the breach of which led to the charge. 50The Court's view is that the Prosecution has proved its case on one of two bases. Firstly, Nowlands Creek at the point where the earthen dam was constructed is at least a third order stream and, accordingly, it is a river. In the alternative Nowlands Creek at the point where the earthen dam was constructed is a river because the evidence shows that the creek has an intermittent flow of water. Given the material facts admitted by the Defendant company and that the Prosecution has proved beyond a reasonable doubt that Nowlands Creek at the point where the earthen dam was constructed is a river, the offence has been proved. Magistrate M Richardson Armidale Local Court 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: 04 April 2012