Harvey & Anor v Minister Administering the Water Management Act 2000; Tubbo Pty Ltd & Ors v Minister Administering the Water Management Act 2000

Harvey & Anor v Minister Administering the Water Management Act 2000; Tubbo Pty Ltd & Ors v Minister Administering the Water Management Act 2000 - [2008] NSWLEC 165 - NSWLEC 2008 case summary — Zoe

[8]

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Annetts v McCann (1990) 170 CLR 596 Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Attorney-General for the State of Western Australia v Marquet (2003) 217 CLR 545 Botany Bay City Council v Minister of State for Transport and Regional Development (1996) 41 ALD 84 Bread Manufacturers of New South Wales v Evans (1980) 180 CLR 404 Buck v Comcare (1996) 66 FCR 359 Campbelltown City Council v Vegan (2006) 67 NSWLR 372 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Commissioner of Police v Tanos (1958) 98 CLR 383 Comptroller-General of Customs v Kawasaki Motors Pty Ltd (No 1) (1991) 32 FCR 219 Darling Casino Limited v New South Wales Casino Control Authority (1997) 191 CLR 602 Deloitte Touche Tohmatsu v Australian Securities Commission (1995) 54 FCR 562 Director of Public Prosecutions v Smith [1991] 1 VR 63 Dunlop v Woollahra Municipal Council [1975] 2 NSWLR 446 FAI Insurances Limited v Winneke (1981) 151 CLR 342 Foster v Minister for Customs and Justice (2000) 200 CLR 442 Gardner v Dairy Industry Authority of New South Wales [1977] 1 NSWLR 505 Haoucher v Minister of State for Immigration and Ethnic Affairs (1990) 169 CLR 648 Kioa v West (1985) 159 CLR 550 Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207 McInnes v Onslow-Fane [1978] 1 WLR 1520 McWilliam v Civil Aviation Safety Authority (2004) 142 FCR 74 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381 Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 Mobil Oil Australia Pty Limited v Federal Commissioner of Taxation (1963) 113 CLR 475 CASES CITED: Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources (2005) 138 LGERA 11 O'Sullivan v Farrer (1989) 168 CLR 210 OzEpulse Pty Ltd v Minister for Agriculture, Fisheries and Forestry (2007) 163 FCR 562 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 Qantas Airways Limited v Aravco Limited (1996) 185 CLR 43 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 Re Minister for Immigration and Multicultural Affairs and Another; Ex parte MIAH (2001) 206 CLR 57 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of New South Wales [2007] NSWCA 149 Roads and Traffic Authority (NSW) v Ashfield Municipal Council (2005) 141 LGERA 278 Salemi v Mackellar [No. 2] (1977) 137 CLR 396 Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1997) 95 LGERA 33 Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 State of South Australia v O'Shea (1987) 163 CLR 378 Stead v State Government Insurance Commission (1986) 161 CLR 141 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 Singh v The Commonwealth (2004) 222 CLR 322 Telstra Corporation Ltd v Commonwealth (2008) 243 ALR 1 Terrace Towers Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 Tickner v Chapman (1995) 57 FCR 451 Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 46 NSWLR 598 Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78 VAW (Kurri Kurri) Pty Ltd v Scientific Committee (Established under s127 of the Threatened Species Conservation Act 1995) (2003) 58 NSWLR 631 Victims Compensation Fund Corporation v Nguyen (2001) 52 NSWLR 213 Warringah Council v Edmondson [2001] NSWCA 1 White v Ryde Municipal Council [1977] 2 NSWLR 909 Wilson v Anderson (2002) 213 CLR 401

[132]

85 According to the applicants, the Minister did not give the applicants procedural fairness because: - (i) the applicants were never told by any of the many, varied (and confusing) bodies and committees involved in the amendment process of the criteria to be applied to determine the existence of special circumstances so as to become eligible for inclusion in Sch 5, (ii) indeed, those criteria were deliberately withheld from the applicants so that their submissions did not address the criteria, with the consequence that they only became aware of the criteria after the amendment order had been made, when it was too late, (iii) the applicants were never told about the nature or content of any material relied on by those bodies and the Minister (including recommendations from those bodies and the reasons for them) to determine that the applicants were not eligible for special circumstances and inclusion in Sch 5, (iv) in any event, that material was an inaccurate and incomplete summary of their individual circumstances, (v) the various bodies considering the issue of special circumstances and making recommendations to the Minister were not authorised by the Water Management Act to do so and acted on criteria not approved by the Minister and, indeed, inconsistent with the criteria or "key principles" that had been approved (namely, to recognise water-dependent investment made by licence holders and that all groundwater entitlements, whether extracted or not, have value), (vi) those bodies inflexibly applied a policy for determining special circumstances (namely, the criteria not disclosed to the applicants), (vii) the applicants were never given reasons for their ineligibility for special circumstances and consequential exclusion from Sch 5, and (viii) had the applicants been notified of the criteria they were required to meet both would have submitted information capable of establishing the existence of special circumstances but, by reason of the denial of procedural fairness, lost the opportunity to do so.

[194]

142 The GAAC held another meeting on 17 March 2006 to consider late developing licence holders and anomalies. The meeting paper included the information requested by the GAAC from the Department. The paper dealt with late developers and anomalies. Late developers were identified as within two categories (those who increased their water dependent investment during the history of extraction period and those who invested after the water sharing plans were gazetted). For the Murrumbidgee region the paper said the "cut-off date" for the first category after which time the Department considered people should not make "unreasonable speculative investment" was 1 June 2002 (when information about the intention to reduce entitlements, current entitlements, and sustainable yield were all available and the draft water sharing plan had been exhibited). The paper said the second category "may have a case which would need to be considered inside an anomalies process". The paper dealt with this issue saying that the position of those who invested after the gazettal of the water sharing plans were not addressed by either the late developer or verification approaches. Given the date of gazettal of the plans (December 2002 to February 2003) and the media release on 30 June 2004 saying the NSW Government was considering acknowledgment of historical use, the paper said there could be anomalies within this period where "individual circumstance of each licence holders' case being presented as an anomaly needs to be carefully considered". The paper noted that people may have invested or developed up to the level of anticipated reductions in the gazetted plans but, with the change in government policy, their entitlements may be reduced, thus losing their investments/developments. The paper said that many submissions had been received "outside the verification process" (which I take to be a reference to the invitation to make submissions about any error in the Department's extraction records in late December 2005). These included late developers, anomalies, people who developed after June 2004 and probably did not have a case as an anomaly, and people who disagreed with government policy. A table showed the total number of submissions received "outside the verification process" for each region and the likely number of anomalies who had "developed water investment" between December 2002 and June 2004. For the Murrumbidgee region, the total number was 24 and the likely number of anomalies was 6. The total for all regions was 90 with a likely number of 44 anomalies.

At a glance

Court

Decision date

Before

Source

Judgment (315 paragraphs)

Legislation Cited (1)

Cases Cited (52)

Cited By (13)