Howard v Turner and Petersen

Background

1. This matter has a long history dating from 2007. It was ultimately referred to this Tribunal in January 2015 after lying in abeyance for a considerable time - seemingly because of legislative and administrative changes that occurred after its commencement.
2. The Applicant lodged the application for a water licence for stock and domestic purposes. He did so following an investigation by the then Department of Water and Energy into a complaint of excess water use.
3. The licence application was made and assessed under section 10 of the Act. However, as the Applicant is not an occupier for the purposes of section 10 of the Act, the licence application should have been made and assessed under section 13A of the Act.
4. As required by section 11 the Act, particulars of the licence application were notified in the Gazette and the Nambucca Guardian, a newspaper published and circulating in the district where the work is situated. The relevant work was identified to be 'a diversion pipe and pump on unnamed watercourse on Lot 15, DP 710312, Parish Medlow, County Raleigh for water supply for stock and domestic purposes (2 megalitres)' ("the Work").
5. Objections to the licence application were received from the first objectors and on behalf of the second objectors. The objectors asserted that the grant of a licence would lead to excessive and irresponsible use of water and insufficient flow of water into the adjacent dam during dry periods. Correspondence was received from third persons in support of the objections.
6. A licensing Officer with the Department of Water and Energy, Mr Peter Hackett, carried out a site inspection in April 2009. Mr Hackett's report noted that the current commitment of water in the watercourse was minimal as there were no irrigation licences issued in respect of the stream. The grant of the licence was not considered to have any impact on groundwater quality or quantity, vegetation, soils, air quality, recreational opportunities, anthropological features, archaeological features, cultural features or historical features. Minimal impacts to surface water quality, animals, noise, traffic and aesthetic values were identified.
7. An aquatic habitat assessment which was conducted in May 2013 identified no relevant vulnerable or endangered species, endangered populations, or critically endangered, endangered or vulnerable ecological communities, or threatening processes.
8. Mr Hackett undertook an assessment of the licence application in May 2013. Mr Hackett's report noted that the noted that: 1. clearing of native vegetation was not required; 2. the proposed use of water would not likely result in direct impact on threatened species or endangered ecological communities; 3. there were no aboriginal sites recorded or aboriginal places declared in or near the proposed site of the Work; 4. (there was no expected cumulative environmental effect with other existing or likely future activities; 5. no contaminated sites were identified; 6. maintenance of the Work and control on releases of water should ensure there is minimal impact on other users and the environment; and 7. extraction should be restricted during low flows to minimum requirements and the Work should be fitted with a collar and closing gear to minimise usage in low flows.
9. As a result of these assessments it was recommended that the licence application be granted. However, the recommendation was that the grant of the licence be subject to certain conditions. These conditions included: (1) the holder of the license shall within three months of being called upon by NSW Office of Water to do so, install to the satisfaction of the department in respect of location, form, type and construction, an appliance or appliances for the measurement of the quantity of water diverted or taken by means of the licensed work, such appliance or appliances to consist of either a measuring weir or weirs with automatic recorder or meter or meters of the Dethridge type, or such other class of meter or means of measurement as may be approved by the department, and shall continuously maintain such appliance or appliances in good working order and condition, and shall, after the installation of such appliance or appliances, record the measurements of all water diverted or taken by means of the licensed work and supply particulars of such measurements to the department at such intervals as shall be directed by the department. Whenever called upon to do so a test certificate furnished either by the manufacturer concerned or by some person or authority duly qualified shall be supplied by the holder of the licence as to the accuracy of the appliance or appliances installed. (2) The licensee shall not allow any tailwater drainage to discharge into or onto: - any adjoining public or crown road; - any other persons land; - any crown land; - any river, creek or watercourse; - any groundwater aquifer; - any native vegetation as described under the native vegetation conservation act 1997 or the native vegetation act 2003; - any wetlands of environmental significance. (3) Works used for the purpose of conveying, distributing or storing water taken by means of the licensed works shall not be constructed or installed so as to obstruct the reasonable passage of floodwaters flowing into or from a river. (4) The licensee shall install in the diversion pipe near its point of offtake a stop valve or other control device to the satisfaction of NSW Office of Water. (5) (a) subject to any access or flow condition contained in the licence, the holder may in any one year commencing 1 July divert up to the licenced volume of 2 megalitres of water comprising of, 1 megalitre for stock & 1 megalitre for domestic (b) notwithstanding paragraph (a), the holder may divert up to twice the licenced volume in one year provided diversions do not exceed three times the licenced volume in any three year period. (c) the holder shall maintain records of water usage as specified by the department and when requested to do so, shall furnish the records to the department.
10. I note that on 3 July 2015, DPI Water - a division of the NSW Department of Primary was formed, replacing the NSW Office of Water. Any reference to the NSW Office of Water in these conditions should be read as a reference to DPI Water.
11. In July 2013 the matter was referred to the Local Land Board to conduct an inquiry as to the desirability of granting the licence application and the proposed conditions. The proceedings had not been heard by the Local Land Board when the CAT Act commenced on 1 January 2014. The proceedings were referred to this Tribunal in December 2014.
12. Particulars of the proceedings were notified in the Guardian News, a newspaper published and circulating in the district where the Work is situated, and the Gazette on 19 and 20 February 2015, respectively.

Applicable Legislation

1. The Applicant contends that he does not require a licence to access and use water from the dam located on lot 15 because of an Easement ("the Easement") in place for his benefit.
2. It is not in dispute that there is an Easement in place for the Applicant's benefit. That Easement purports to allow the Applicant: • "to convey, pump or carry water ... in any quantities, across and through ... [lot 15];" • "to use, for the purpose of the Easement, any line of pipes already laid within... [lot 15] for the purpose of conveying, pumping or carrying water or any pipe or pipes in replacement or in substitution therefor and, where no such line of pipes exists, to lay, place and maintain a line of pipes of sufficient internal diameter thereunder or upon the surface of the servient tenement;" • "to draw and carry water from lot 15 by whatever means are necessary for the purpose"; • "to go, pass and repass at all times and for all purposes ... to and from [lot 14] or any part thereof and to remain thereon for the purpose of watering stock or for recreational purposes"; • "to enter upon ... [lot 15] and remain there for any reasonable time for the purpose of laying, inspecting, cleansing, repairing maintaining or renewing such pipe line or any part thereof ... and • to enter upon ... [lot 15] and to remain there for any reasonable time for the purpose of maintaining repairing or reconstructing any section of the earth wall dam situate within [lot 15] ...
3. Mr Dalla-Pozza, Solicitors for the Ministerial Corporation, provided written submissions in regard to what rights to water, if any, are granted by the Easement; and if the Easement does grant rights to water, how the licence application the subject of this matter is affected by those rights, if at all.
4. Mr Dalla-Pozza submitted that: 1. whilst it is possible to construe the Easement as conferring on the Applicant a right to water, the Easement is ineffective to confer these rights unless the Applicant also holds a licence under section 13A of the Act, and 2. Therefore, any rights to water conferred by the Easement do not affect the present application.
5. He points to the conclusion of Windeyer J in Eccleston v O'Keefe [2007] NSWSC 159 at paragraph [13] which suggests that an easement will be unenforceable in the absence of any licence required under the Act permitting the Applicant to draw water.
6. In Eccleston v O'Keefe, the plaintiff enjoyed the benefit of an easement which by its terms (as Windeyer J accepted at paragraph [4]) permitted him to take water from a dam on the defendant's property. Windeyer J was asked to determine (as a preliminary issue) whether section 392 of the Water Management Act 2000 rendered the Easement in question unenforceable. His Honour concluded that the answer to that question was "yes unless the plaintiffs hold a licence required under ... the Water Act 1912 or any other Act".
7. Section 392 of the Water Management Act 2000 provides: 392 State's water rights (1) For the purposes of this Act, the rights to the control, use and flow of: (a) all water in rivers, lakes and aquifers, and (b) all water conserved by any works that are under the control or management of the Minister, and (c) all water occurring on or below the surface of the ground (including overland flow water flowing over or lying there for the time being) other than water referred to in subsection (1A), are the "State's water rights" . … (2) The State's water rights are vested in the Crown, except to the extent to which they are divested from the Crown by or under this or any other Act. (3) The State's water rights prevail over any authority conferred by or under any other Act or law, except to the extent to which this or any other Act expressly so provides. ...
8. I agree with Mr Dalla-Pozza's submission that the terms of section 392(3) make it plain that the State's water rights would prevail over the terms of the Easement.
9. Section 13A of the Act, which is in Part 2 of the Act, provides: 13A Application for licence by person who does not occupy land on which works are to be constructed (1) Any occupier of land who desires to construct and use a work to which this Part extends (hereinafter in this section referred to as the "supply work" ) for the purpose of domestic water supply, stock water supply or irrigation but does not occupy: (a) the land on which the occupier desires to construct the supply work, or (b) the whole of the land on which the occupier desires to construct works (hereinafter in this section referred to as the "conveying works") to convey the water from the supply work to the land on which the occupier desires to use the water, and who cannot obtain occupation of the land required for the supply work or conveying works may apply to the Ministerial Corporation in the form prescribed for a licence to construct the supply work and to take and use for the purpose or purposes specified in the application the water, if any, obtained thereby. … (5) An application for a licence under this section shall not be granted unless the Director-General, Magistrate, Land and Environment Court or Ministerial Corporation, as the case may be, is satisfied that: (a) it is not reasonably practicable for the applicant to obtain or make provision for a supply of water on the land on which the applicant desires to use the water adequate for the purpose or purposes specified in such application otherwise than in pursuance of a licence granted under this section, and (b) the land on which it is desired to use the water is reasonably fitted for such purpose or purposes, and (c) the interests of riparian occupiers will not be unreasonably affected by the granting of such application.
10. Section 21B makes it an offence for a person to construct, erect or use a work to which Part 2 extends otherwise than pursuant to a right conferred on the person by, amongst other things, a licence.
11. I agree with Mr Dalla-Pozza's submission that Parliament intended that a person be licenced in order to construct, take or use water in respect of works to which Part 2 of the Act applies and that this requirement is to take precedence over other property rights such as an easement.
12. In my view it follows that the Applicant would need a licence under the Act in order to take water from the dam, notwithstanding the existence of the Easement.

The objections

1. As noted above, the first and second objectors opposed the grant of the licence on the basis that the grant of a licence would lead to excessive and irresponsible use of water, and insufficient flow of water into the adjacent dam during dry periods.
2. The first objectors also appear to object to the grant of the licence on the following bases: 1. The Applicant has demonstrated an irresponsible and wasteful attitude towards the proper use of water in the dam; 2. The Applicant will not or is unlikely to comply with the conditions of any licence granted to him; 3. They rely on there being water in the dam for domestic and stock purposes, and as an available source of water in the event of bushfires; 4. The Applicant has other sources of water available to him; 5. The integrity of the dam wall is uncertain such that it may pose a risk to life and property; 6. The Applicant has harassed, abused and intimidated them; and 7. The Applicant has constructed channels on his property which has resulted in increased flows/overflows onto their property causing erosion and damage to roads.
3. Those objections were made in response to the notification of the particulars of the licence application in November 2007. They were reiterated when the Tribunal convened for a view at the dam on 23 July 2015. It is clear that the objections are maintained and that there is considerable animosity between the parties notwithstanding the passage of time since the application was lodged.

The Ministerial Corporation's recommendation

1. Mr Cramer appeared as solicitors for the Ministerial Corporation up to and including the time of the view on 23 July 2015. Mr Dalla-Pozza subsequently took over that role. Mr Cramer provided detailed submissions in which he recommended that it would be open to the Tribunal to find that: 1. the proposed conditions, as set out in paragraph 17 above, in particular with respect to the installation of a meter, the installation of a valve and limiting annual extraction to 2 megalitres, adequately mitigate against the risks that were identified by the objectors; and 2. the provisions of the Act, in particular sections 17B and 18, together with the enforcement provisions contained in Chapter 7 of the Water Management Act 2000 are likely to act as a sufficient deterrent against such risks.

Relevant considerations

1. In carrying out its inquiry functions under the Act and in making any determination or recommendation with respect to any such inquiry, the Tribunal is required to take into account, and to have due regard to the factors set out in section 4A of the Act. Section 4A provides: 4A Inquiries and appeals - requirement to take certain matters into account (1) A judicial body is required, in carrying out any of its inquiry or appeal functions under this Act and in making any determination or recommendation with respect to any such inquiry or appeal, to take into account, and to have due regard to, the following matters: (a) any relevant policy that concerns the subject-matter of the inquiry or appeal and that is brought to the attention of the judicial body, (b) any State-wide water resource management objectives that are brought to the attention of the judicial body, (c) any relevant inter-government agreement, treaty or arrangement relating to the management, preservation or sharing of the State's water resources that is brought to the attention of the judicial body, (d) the state of water resources, and the state of the environment generally, at a local, regional and State-wide level as brought to the attention of the judicial body, (e) the impact that the judicial body's determination or recommendation could or might have: (i) on the allocation of water resources at a local, regional and State-wide level, and (ii) on other persons who are entitled to take and use water (apart from those to whom the inquiry or appeal relates), and (iii) on the state of water resources, and on the state of the environment generally, at a local, regional and State-wide level, and (iv) in relation to the management, protection and enhancement of the State's water resources. (2) In this section: "judicial body" means the Land and Environment Court, the Civil and Administrative Tribunal or a Magistrate. "relevant policy" means any governmental policy relating to the management, protection and enhancement of the State's water resources. (3) The Minister may certify, in writing, that a particular policy is, or was, a relevant policy in relation to a particular matter. The certificate is evidence of the relevant policy concerned.
2. Mr Cramer made submissions in relation to these factors. I agree with his assessment of the circumstances under consideration and the impact of the Work as proposed.

Impact on the allocation of water resources at a local, regional and State-wide level

1. Given the small volume of water under consideration, the only relevant impact to be considered is at a local level. The Work represents a very minor conservation and extraction from the local water source and as it is to be used only for stock and domestic it will have negligible impact.

Impact on other persons who are entitled to take and use water (apart from those to whom the inquiry or appeal relates)

1. No other impacted persons have been identified.

Impact on the state of water resources, and on the state of the environment generally, at a local, regional and State-wide level

1. Any impact on the state of the environment generally at a local and State-wide level from the Work and/or proposed use of water would be minimal.

Impact in relation to the management, protection and enhancement of the State's water resources

1. Any impact on the State's water resources would be minimal.

Grounds for refusal

1. As noted above, section 13A(5) of the Act provides that a licence application is not to be granted unless certain criteria are satisfied.

Whether it is not reasonably practicable for the Applicant to obtain water otherwise than by a licence under s 13A

1. The first objectors contend that the Applicant has an adequate supply of water on his land already and does not need further water. The Applicant disputes this contention and stated that the supply that he has is not sufficient for his requirements and is not reliable. He therefore requires access to the dam for this water. He further stated that the purpose of the Easement was to allow him to supplement his water supply as needed.
2. I accept the Applicant's evidence in regard to his access to other sources of water. I am satisfied that it is not reasonably practicable for the Applicant to obtain or make other provision for a supply of water on Lot 14. This is because: 1. in dry periods the stream that feeds the dam would not be sufficient to provide for the Applicant's stock and domestic needs; and 2. other dams on the Applicant's property are unlikely to be sufficient to supply stock and domestic water during dry periods.

Whether the land is reasonably fit for purpose

1. I do not understand that there is any contention that Lot 14 is not reasonably fit for the purpose of grazing stock and human habitation. In my view it is reasonably fit for these purposes.

Whether the interests of riparian occupiers will not be unreasonably affected

1. I note that the capacity of the dam has been assessed as 5.4 megalitres. The water in the dam is shared between Lots 13, 14 and 15. The Applicant has sought a licence which would authorise him to take 2 megalitres per year. If he were to do so, it would limit the water available to the occupiers of Lots 13 and 15 to less than that available to the Applicant. In my view this would unreasonably affect their interests.
2. In normal times there would be sufficient water available to meet the needs of the occupiers of Lots 13, 14 and 15. However, in dry times the Applicant would have a greater share of the water to the detriment of the other Lots.
3. Nevertheless, it is my view that the application should be granted but for a smaller amount than has been requested.
4. In my view, the amount of water that the Applicant can take from the dam should be limited to one third of the assessed capacity. A small allowance should also be made towards the requirements of the first objectors in regard to their limited access to other water reserves in the case of bushfire and the need for an available source of water in such circumstances.
5. In my view, the licence should be subject to the condition that the amount of water that the Applicant can take from the dam be limited to 1.75 megalitres per year. Further, the licence should be subject to the other conditions as set out in paragraph 17 above.

Decision I find that the grant of the proposed licence is desirable. I recommend that the conditions set out in paragraph 17 of these reasons be imposed and that the additional limitation be imposed that the quantity of water that the Applicant is authorised to take from the dam pursuant to the licence is limited to 1.75 megalitres per year. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 25 November 2015