Hutchins Pastoral Co Pty Ltd v The Minister administering the Water Management Act 2000

The Parties 8The plaintiffs are the three companies, Hutchins Pastoral Co Pty Ltd ("Hutchins"), Danwillach Pty Ltd ("Danwillach") and Delta Creek Pty Ltd ("Delta"). Mr Stewart Ronald Hutchins and his wife Mrs Jennifer Hutchins are the controlling shareholders and the directors of each of the plaintiffs, which co-ordinate their respective irrigation operations. 9The first defendant is the "Minister administering the Water Management Act 2000". Responsibility for the administration of the 2000 Act currently lies with two Ministers: the Minister for Primary Industries together with the Minister of Finance and Services. But nothing turns on this allocation of responsibility in these proceedings. For convenience therefore those two Ministers will be referred to in these reasons simply as "the Minister". Some of the earlier applicable legislation required and refers to administration of water licenses by the Water Administration Ministerial Corporation: cf the Water Administration Act 1986. But the parties accepted that for present purposes the Minister is the responsible defendant. 10The second defendant is the State of New South Wales. The State may be sued for the actions of the Minister pursuant to the Crown Proceedings Act 1988, and it is joined on that basis. But the plaintiffs do not seek any relief against the State different from that sought against the Minister.

The Plaintiffs' 2000 Act Water Access Licences - Identifying the Issue 11Each plaintiff owns a separate parcel of land, which it uses for irrigation. Each parcel overlies the Lower Murrumbidgee Groundwater Sources, a geological system of shallow and deep aquifers in south-western New South Wales, near the city of Narrandera. 12The plaintiffs hold, as tenants in common, a single aquifer water access licence ("WAL") issued under the 2000 Act and a single supplementary water access licence ("SWAL") issued under the 2000 Act, which licences enable them to access the aquifer water available from the bores sunk on the three properties. The 2000 Act replaced the licensing scheme of the Water Act 1912 ("the 1912 Act"), under which the plaintiffs held water entitlements for these same three properties. 13Although the 2000 Act was passed in that year, it did not actually commence with respect to water access licences in the Lower Murrumbidgee water management area until an "appointed day", which was eventually fixed at 1 October 2006. Up until 1 October 2006 the 1912 Act continued to govern the extraction of water on the plaintiffs' properties. 14The plaintiffs' WAL and SWAL issued under the 2000 Act, in the form of a Certificate of Title each specifies on its face: how much water the plaintiffs are entitled to take pursuant to the WAL or the SWAL (called the "share component"); and at what times, at what rates, and the source and the zone from which the plaintiffs may take that water under the WAL and SWAL (called the "extraction component"): 2000 Act, s 56 (1). 15The 2000 Act authorises the expression of a WAL or a SWAL share component in the form of "a specified number of units": 2000 Act, s 56(2)(d). And the plaintiffs' WAL and SWAL do just that. The WAL Certificate of Title shows it is for 1925 units. The SWAL Certificate of Title shows it is for 250 units. Thus together in their WAL and SWAL the plaintiffs hold a total share component of 2175 units being their "shares in the available water" within the Lower Murrumbidgee water management area as defined in the 2000 Act, s 56(1). In short this is their entitlement to a particular aliquot share of all the available water in Lower Murrumbidgee water management area in a particular period. The source from which the Certificate of Title authorises the plaintiffs to extract this water, the relevant extraction component, is the Lower Murrumbidgee Deep Groundwater source, which is an aquifer in the region which exists down to local bedrock and with a thickness of 100 to 300 metres. 16The Minister contends that the share components of the plaintiffs' WAL and SWAL were determined according to the rules and methodology provided in the legislative scheme for water management in the Lower Murrumbidgee. That scheme is explained in detail below in these reasons. The scheme includes: the 2000 Act; the Water Management (General) Regulation 2004 ("the 2004 Regulation"); and the Water Sharing Plan for the Lower Murrumbidgee Groundwater Sources 2003 ("the 2003 Plan"). Moreover, in the alternative the Minister contends that the plaintiffs' share components are now specifically listed in and therefore specially mandated by the 2004 Regulation, Schedule 4A. 17The plaintiffs say that their share component of 2175 units was incorrectly calculated by the methodology which was mandated by a combination of the operation of the 2000 Act, Schedule 10, the 2004 Regulation, reg 29B and the 2003 Plan, clauses 25C and 25D. The plaintiffs contend that were the calculation to have been correctly performed in accordance with the methodology, their share component would actually be 3407, not 2175. Currently a share component unit represents a mega litre ("ML") of water. So the issue between the parties represents a contest about the plaintiffs' right to extract approximately 1000 ML (actually 1232ML, being 3407ML - 2175 ML) of water per annum under the WAL and SWAL. 18How does this difference arise in the application of the methodology? Put shortly for present purposes - and again the detail appears later in these reasons - the difference arises from the application of the conversion formula for adjusting the quantum of the entitlements of each plaintiff to one of the three licences issued under the 1912 Act in respect of the property of which that plaintiff is the registered proprietor, into the single WAL issued under the 2000 Act issued to all three plaintiffs together as tenants in common in respect of all three properties. The adjustment in the conversion formula involved the reduction in the plaintiffs (and all other users) rights, in order to allow for environmental sustainability, an important objective of the 2000 Act. As part of giving effect to this reduction a critical variable in the conversion formula is the licensee's history of extraction (of water) prior to conversion. The licensee's history of extraction (sometimes abbreviated to HOE in the legislation) is the average of the licence holder's water usage under the 1912 Act taken over a number of years. The formula rewards water users with a higher history of extraction with a resulting higher share component under the 2000 Act. This formula has been criticised as penalising prudent water users, and rewarding profligate users with higher value licences under the 2000 Act. But that is not the issue here. The parties agree on the formula that must be applied. 19But the parties differ as to how the conversion formula should be applied. The two competing approaches in issue are: (1) the plaintiffs' approach using each plaintiff's history of extraction in respect of each individual property before the date of conversion (also the date of application of the formula); or (2) the Minister's approach, using the three plaintiffs' notionally combined history of extraction before the date of conversion. The difference in the two approaches is important, because the mandated calculation of the average history of extraction (under the 2003 Plan, cl 25C(6)) excludes years in which no or low extraction has occurred. Far fewer of these no or low extraction years can be excluded if the notionally combined history is used, as in the Minister's approach (2). This has the effect of reducing the plaintiff's average history of extraction (because of the resultant inclusion of more figures from low/no extraction years) compared with the plaintiffs' approach (1), which thereby also reduces the quantum of the plaintiffs' resultant share component under the 2000 Act. 20How the conversion formula should be applied is a question of the construction of the legislative scheme. As these reasons show I have found Mr Hutley SC's and Mr Hutton's submissions on behalf of the Minister as to the operation of the scheme to be compelling and I have preferred them to those of Mr Zammit. 21These reasons now give the historical background to the issue of the plaintiffs' 2000 Act water access licence (or WAL) and their supplementary water access licence (or SWAL), commencing with the licences issued to them under the 1912 Act.

History of the Plaintiffs' Licences 22The plaintiffs did not always own their water licences as tenants in common. That position only arose as a result of the enactment and commencement of the 2000 Act. Separate licences were first issued and granted to each of the plaintiffs under the 1912 Act, ss 115 and 116. 23Under the 1912 Act, s 115 each of the plaintiffs had a separate water licence "for a limited period" and subject to "such limitations and conditions" as the Minister may think fit. The separate water allocations under the 1912 Act were as follows: (1) for the licence on the Hutchins property 1615ML; (2) for the licence on the Danwillach property: 1900ML; and (3) for the licence on the Delta property: 1384ML. Those licences were issued between 1998 and 1999. And, as authorised by the licences, one bore was constructed on each of the properties. But bore construction on the Danwillach and Delta properties was delayed. A bore was sunk on the Hutchins property in 1997/1998, and on the Danwillach and Delta properties in 2000/2001. 24Important aspects of the legislative scheme debated in these proceedings pivot around a new condition (called throughout these reasons the "linking condition") introduced into each of the three licences issued under the 1912 Act on 19 April 2001 and notified to the plaintiffs on 23 April 2001. That linking condition was in identical terms in each licence and was as follows: "The volume of groundwater extracted from the works authorised by this licence and by Licence Nos [the two other plaintiffs' licences] shall not exceed 4,899 megalitres in any 12 month period commencing 1st July." 25The circumstances of the introduction of this condition are in dispute. The defendants say that Mr Hutchins applied on behalf of the plaintiffs to have the condition introduced. The plaintiffs disagree: they say the Minister imposed the condition. This dispute is not ultimately material to the issues to be decided, because there is no doubt the condition existed in each licence. But the parties' perspectives on the issue are briefly set out here as they emerge from the history in any event. 26The 1999 Application. In 1999 there was a single bore drilled on the Hutchins' property but no bore on the Delta or Danwillach properties. The plaintiffs wanted to maximize their water entitlements for the properties. Mr Hutchins proposed sinking bores on the Delta and Danwillach properties, so he wrote to the Department of Land and Water Conservation ("the Department") seeking approval to combine the pumping from those two future bores. 27The Department denied the request. It informed Mr Hutchins that as the Properties were on three separate titles and were owned by different entities they "cannot be treated [for the purposes of the 1912 Act] as a combined unit". The Department suggested to Mr Hutchins that he may either: "amalgamate the three properties into a single unit" and use one bore only; or construct a separate bore on each property. 28The first of these options would have resulted in a reduction of the plaintiffs overall entitlement because at the time the "per hectare" entitlements were higher for smaller properties. Mr Hutchins decided to keep the properties separate. Sometime in late 1999 and early 2000 he sunk bore on the Delta property and another bore on the Danwillach property. 29March-April 2001. Two years later in 2001 Mr Huchins was still seeking greater flexibility in relation to the use of the water entitlements for all three bores. To achieve that he approached the Department, he says, to arrange what he thought were to be temporary transfers in relation to the licences. 30The internal correspondence between the Department's employees in March 2001 confirms that they: (1) considered Mr Hutchins previous efforts to achieve flexibility in the use the water entitlements on the Properties; (2) concluded that this could now be achieved through the introduction of a linking condition; and so, (3) requested Mr Hutchins to provide evidence to the Department that the three properties were "being operated by one entity". 31Mr Hutchins responded with such evidence. On 2 April 2001 Mr Hutchins' accountant sent to the Department a letter confirming that the Hutchins Family Trust operated the properties "as one enterprise". The accountant's letter continued: "It is our understanding that if the properties are operated as one the water entitlements on each property can be combined and water from the three production bores used on any part of the above properties approved for irrigation. In this case, can you please confirm to our client that this is permissible in their situation." 32The Department did not approve temporary transfers. Instead on 19 April 2001 two new conditions were introduced into the plaintiffs' licences, which were re-issued: (1) the linking condition, providing an aggregated extraction limit for all three licences of 4,899 ML per year; and (2) a condition requiring that the extracted water could be used on any of the properties. The limit imposed by the linking condition, 4,899ML, was simply the sum of the three individual limits (1615ML- Hutchins + 1384ML- Delta + 1900ML- Danwillach) of the three licences. 33The new condition allowing for the water extracted under each of the licences to be used on any of the properties provided: "Location of land on which water may be used: LOTS PARISH COUNTY [DP numbers of all the plaintiffs' three properties] Goolgumbla Urana

34But before 2001, reflecting the intent of the 1912 Act, s 117 each of the licences already included a condition in relation to the land covered by the licence. And this condition was not removed in the reissued licences: "The allocation has been determined for the total area of land described on the face of the licence. In the event of part of the land being disposed of, the allocation will be subject to review." 35The front page of each of the licences referred only to the property, on which the bore to which that licence applied, was located. 36On 23 April 2001 the Department wrote to Mr Hutchins attaching copies of the licence certificate for each of the plaintiffs' three newly issued licences together with a statement of their conditions including these new conditions. The Department's 23 April covering letter for each licence also pointed out "the Department has also combined the irrigation entitlement of all three licences to 4,899 megalitres". The plaintiffs did not question the Department's decision to introduce these changes. They appeared responsive to what the plaintiffs had requested. The expert evidence makes clear that the plaintiffs took advantage of the linking condition after it was introduced by drawing volumes of water from individual bores that were in excess of the nominal limits for those bores and which therefore are to be explained here by the existence of the linking condition. 37The linking condition: (1) allowed the Hutchins interests to achieve a higher water extraction limit than they would have obtained if they had first converted the three properties into a single title, and then applied for a single licence under the 1912 Act for the whole area of that single title; and (2) allowed them to share the aggregated extraction limit between the three bores in any way they wanted, including extracting it all from one bore, without the need to apply for temporary transfers between bores. 38The effect of the 2001 changes in conditions may be shortly stated. Although the plaintiffs' three licences remained separate, the plaintiffs could extract the whole amount of 4,899 ML from a bore on any one of the Properties, and then the whole or any part of that water could be used on the other two Properties. 39Because of that linking condition, when the 2003 Plan came into force on 1 October 2006, as will be explained in more detail below, the Minister considered the licences to be "linked Part 5 licences" within the meaning of the 2000 Act, Schedule 10, cl 17. And as a result, pursuant to the 2000 Act, Schedule 10, cl 3 and cl 17, the Minister replaced the three licences with a single water licence, or WAL, and a single supplementary water access licence, a SWAL. 40The plaintiffs do not question the validity of the replacement of their three separate 1912 Act licences by a single WAL and SWAL by the operation of the 2000 Act, Schedule 10. Their concern is with the recalculation of the share components of their WAL and SWAL.

Legislation Governing Water Access in the Lower Murrumbidgee 41The present dispute about calculating the share component of the plaintiffs' 2000 Act WAL and SWAL requires close consideration of elements of the previous and current legislative schemes governing access to artesian water in the Lower Murrumbidgee region. These schemes must now be described in more detail.

Artesian Well licences under the 1912 Act, Part 5 42Before 1 October 2006 the 1912 Act governed the grant of water licences for the Lower Murrumbidgee water sources and in particular for artesian wells in that area. An "artesian well" under the 1912 Act, s 105, includes an artesian well "from which water does not flow naturally but has to be raised by pumping or other artificial means". The 2000 Act dealt with licences granted in respect of artesian wells under the 1912 Act, Part 5 by special statutory provisions, discussed below. 43The language describing the rights attaching to water licences changed from the 1912 Act to the 2000 Act. Under the 1912 Act, Part 5 the restriction on the volume of water that the licensee of a bore may extract is known as a "water allocation": 1912 Act, s 105. Generally, rights to extract water under the 1912 Act, Part 5 are referred to as water "entitlements". When the 2000 Act was introduced this language changes and "water access licences", referred to in these reasons as WALs and supplementary water licences, or SWALs, are introduced for the first time. 44The 1912 Act Part 5 - Artesian Wells, Division 2 creates a detailed regime for the sinking of bores and the extracting water from artesian wells. The 1912 Act Part 5, Division 3 regulates the application for, and granting of licences for such bores. The 1912 Act, s 112 (included in Division 3) prohibits sinking of bores without a licence. Applications for a licence for any new bore are made to the Minister who will advertise the application in respect of an artesian well: s 113. Then, with or without public inquiry under s 114, the Minster may issue a licence under s 115. And that licence may then be granted to a licensee under s 116. The issue of a licence under s 115 is "subject to such limitations and conditions as it may deem fit and proper". 45Section 116 governs the grant and renewal of Part 5 licences in the following terms: "(1) The Ministerial Corporation may, if, in its opinion such a course is necessary, grant a licence for a limited period, and any licence so granted shall (subject to the provisions of this Part with regard to the renewal of licences, and subject to such limitations and conditions as the Ministerial Corporation may think fit to make) be renewed by the Ministerial Corporation from time to time on the application of the person holding the licence and on payment of the prescribed fee. (2) The Ministerial Corporation may limit the period of any renewal. The licence shall lapse if the sinking of the bore or the enlarging, deepening, or altering of the bore licensed be not commenced and completed within such times or extended times as may be notified by the Ministerial Corporation to the licensee. [emphasis added]" 46Limitations placed on a water access licence foreshadowed by s 116 may restrict the volume of water which its holder is entitled to extract, 1912 Act, s 105 provides: "'Water allocation', in relation to a licence, means the volume of water to which the licensee of the bore is restricted by means of a condition of the licence referred to in section 115 or 116 or by means of a notice referred to in section 117A(3)(a)." 47The 1912 Act also provides for s 115 or s 116 "limitations and conditions" to be imposed on a licence at any time after its issue and grant: s 116C (1). But the Minister must provide procedural fairness to the licensee before imposing such limitations or conditions: s 116C (2). 48Part 5 licences are anchored to bores and the land on which the bore is sunk. This appears in the 1912 Act, s 117, which provides as follows:- "117 Benefit of licence A licence shall be deemed to be held by and shall operate for the benefit of the lawful occupier for the time being of the land whereon the bore is sunk or is proposed to be sunk." 49Depending on changing needs, the licensee might by a written request to the Minister adjust the use of his or her water allocation under Part 5 license between different years. If the Minister varies the allocation the licensee may use in the current year part of the allocation for the following year, or use in the following year the unused allocation for the current year: 1912 Act, s 117G. This provision authorised a practice of licensees "borrowing" allocations between years that added a degree of flexibility to the operation of the licensing scheme. 50Even greater flexibility was added to the 1912 Act licensing regime by the use of linking conditions such as those introduced in April 2001 into the plaintiffs' 1912 Act licences. Linking conditions were not specifically authorised by any provision of the 1912 Act but appear to have been a practical and creative utilisation of the 1912 Act, s 116C that developed in response to licensees' demand to borrow geographically among properties operated by the same commercial interests. 51It was against this relevant background that the 2000 Act was enacted.

The 2000 Act - Commencement and Operation 52The 2000 Act commenced in relation to the Lower Murrumbidgee Groundwater Sources, beneath the plaintiffs' properties on 1 October 2006. This commencement was effected by a 17 September 2006 proclamation declaring under the 2000 Act, s 55A, that Part 2 of Chapter 3 - Access Licences of that Act applied to three identified water sources, referred to in water management plans made under the 2000 Act. One of these water sources was the Lower Murrumbidgee Groundwater Sources. 53The 2000 Act declared in section 3 a range of ecological and social objectives that had not appeared in the 1912 Act. These objectives recognise the limited nature of these water resources and inform the process of construction of the 2000 Act required in this case. The 2000 Act, s 3 provides: "3 Objects The objects of this Act are to provide for the sustainable and integrated management of the water sources of the State for the benefit of both present and future generations and, in particular: (a) to apply the principles of ecologically sustainable development, and (b) to protect, enhance and restore water sources, their associated ecosystems, ecological processes and biological diversity and their water quality, and (c) to recognise and foster the significant social and economic benefits to the State that result from the sustainable and efficient use of water, including: (i) benefits to the environment, and (ii) benefits to urban communities, agriculture, fisheries, industry and recreation, and (iii) benefits to culture and heritage, and (iv) benefits to the Aboriginal people in relation to their spiritual, social, customary and economic use of land and water, (d) to recognise the role of the community, as a partner with government, in resolving issues relating to the management of water sources, (e) to provide for the orderly, efficient and equitable sharing of water from water sources, (f) to integrate the management of water sources with the management of other aspects of the environment, including the land, its soil, its native vegetation and its native fauna, (g) to encourage the sharing of responsibility for the sustainable and efficient use of water between the Government and water users, (h) to encourage best practice in the management and use of water." 54Chapter 2 of the 2000 Act provides a regime of Water Management Planning, commencing with the provision of "water management principles", to give effect to the objectives of the Act. These "water management principles", guide water sharing, water use, drainage management, flood plain management, controlled activities, aquifer interference activities, and also operate generally: the 2000 Act, s 5. 55The 2000 Act, Chapter 2, Part 2 divides the State's water resources into "water management area[s]", declared by the Minister to facilitate locally based water resource management: s 11. The Murrumbidgee, Lachlan and Murray Water Management Areas, of which the Lower Murrumbidgee Groundwater Sources are a part, are such water management areas. 56The Minister may establish a "management committee" to carry out a specific water management task in a water management area: s 12. The Minister constitutes such a committee by appointing persons to represent the interests of various groups, who it may be anticipated will have competing objectives for the use of the available water resources within the particular water management area: s 13. 57The management committee consists of persons appointed by the Minister to represent the interests of environmental protection groups, water user groups, local councils, catchment management authorities, Aboriginal persons, Departmental staff, representatives of the Minister, and persons appointed to represent such other interests as the Minister considers require representation, and an independent chair person. 58A principal function of a management committee so appointed is the preparation of a draft "management plan" for the whole or any part of the water management area or of the particular water sources within that area: s 14. The 2000 Act, Chapter 2, Part 3 - Management Plans, Division 1 provides a regime for the preparation and standard contents of management plans drafted under the 2000 Act. Part 3, Division 2 - Water Sharing, provides for certain "core provision" of water management plans to the extent that such plans deal with water sharing in a water management area. These provisions include "identification of the requirements for water for extraction under access licences": s 20(1)(c). The 2003 Plan, relevant in this case, makes just such provision. The water sharing provisions of a water management plan must also deal with the rates, times and circumstances under which water may be taken from any water source or the quantity of water that may be taken from any water source and water sharing measures for the protection and enhancement of the quality of water or for the restoration or rehabilitation of water sources, or their dependent ecosystems: s 21 (a) and (d). 59But the 2000 Act permits the Minister to shortcut the water management plan making process to a degree, by publishing in the Gazette a "Minster's plan": s 50. The water sharing plan the subject of these proceedings, the the 2003 Plan was made under s 50. The procedures for making a Minister's plan under s 50 (in Chapter 2, Part 4) are to a degree complementary to the procedures for making a management plan set out in Part 3, Division 8. A Minister's plan under Chapter 2, Part 4 may only be made with respect to an area or a water source not already covered by the subject matter of the management plan then in force: s 50(1). 60The 2000 Act, Chapter 3 - Water Management Implementation, Part 2 deals with water access licences. The central provision within Part 2, s 56 creates the concept of an "access licence" and defines the components to which its holder is entitled. Section 56 provides as follows: "56 Access licences (1) An access licence entitles its holder: (a) to specified shares in the available water within a specified water management area or from a specified water source (the "share component" ), and (b) to take water: (i) at specified times, at specified rates or in specified circumstances, or in any combination of these, and (ii) in specified areas or from specified locations, (the "extraction component" ). (2) Without limiting subsection (1) (a), the share component of an access licence may be expressed: (a) as a specified maximum volume over a specified period, or (b) as a specified proportion of the available water, or (c) as a specified proportion of the storage capacity of a specified dam or other storage work and a specified proportion of the inflow to that dam or work, or (d) as a specified number of units. (3) Shares in available water may be assigned generally or to specified categories of access licence. (4) In the case of a local water utility licence, its share component is to be expressed as a specified volume per year. (4A) Without limiting subsection (1) (b), the extraction component of an access licence may authorise the taking of water from a water source specified in the share component of the licence and from another water source not so specified if those water sources are vertically abutting (either wholly or partly) water sources. (4B) In the circumstances referred to in subsection (4A), the water source specified in the share component of the access licence is to be the water source that is the main source for the extraction of water by the holder of the licence. (5) For the purposes of this Act, an access licence may also be referred to as a "water access licence" or a "WAL" . Note: An access licence: (a) does not confer a right on any person to use water for any particular purpose (that right is conferred by a water use approval), and (b) does not confer a right on any person to construct or use a water supply work (that right is conferred by a water supply work approval). [emphasis added]" 61Section 56 contains important concepts for the present discourse about water access licences. The licence entitles the holder to "specified shares" in the "available water". The "available water" is the result of determinations the Minister makes under s 59. The Minister's "available water determination" determines (usually annually) the "availability of water" for the various different categories (or sub-categories) of access licences (defined in s 57) in relation to specified water management areas or water sources: s 59(1)(a). Thus s 56 entitles a WAL licence holder to this specified "share component" of the s 59 declared available water. 62The possible categories of access licences are listed in the 2000 Act, s 57. These include "aquifer access licences" of which the WAL the plaintiffs' held is an example: s 57(e). It also includes "supplementary water access licences" such as the plaintiffs' SWAL: s 57(h). Section 57 provides: "57 Categories of licence (1) There are the following categories of access licences: (a) regulated river (high security) access licences, (b) regulated river (general security) access licences, (c) regulated river (conveyance) access licences, (d) unregulated river access licences, (e) aquifer access licences, (f) estuarine water access licences, (g) coastal water access licences, (h) supplementary water access licences, (i) major utility access licences, (j) local water utility access licences, (k) domestic and stock access licences, (l) such other categories of access licence as may be prescribed by the regulations. (2) Subcategories of any category of access licence may be prescribed by the regulations." 63The 2000 Act sets up a hierarchy among the various s 57 licence categories, which priority reflects a common sense view that the needs of local utilities (for local water supply authorities) and major utility access licences (power generators and major water supply authorities) together with domestic and stock access licences have priority over all other access licences: s 58(1)(d). Priorities are mostly otherwise to be provided for in the regulations: s 58(1)(c). Section 58(1) and (2) provide in full: "(1) For the purposes of this Act, the following priorities are to be observed in relation to access licences: (a) local water utility access licences, major utility access licences and domestic and stock access licences have priority over all other access licences, (b) regulated river (high security) access licences have priority over all other access licences (other than those referred to in paragraph (a)), (c) access licences (other than those referred to in paragraphs (a), (b) and (d)) have priority between themselves as prescribed by the regulations, (d) supplementary water access licences have priority below all other licences. (2) If one access licence (the "higher priority licence" ) has priority over another access licence (the "lower priority licence" ), then if the water allocations under them have to be diminished, the water allocations of the higher priority licence are to be diminished at a lesser rate than the water allocations of the lower priority licence." 64These priority rules account for the role of supplementary water access licences under the 2000 Act, such as the plaintiffs' SWAL for 250 units. But supplementary water access licences hold the lowest priority out of all the licences: s 58(1)(d). Licensees cannot always access water under supplementary licences. The Minister determines whether a SWAL will entitle a licence holder to any water. Except where a severe water shortage is Gazetted, the s 58 rules of priority apply to the Minister's available water determinations under s 59(1)(a). And the Minister's s 59(1)(a) available water determination may turn out to be insufficient to give a SWAL access to any water during the period of that determination. 65The 1912 Act did not include the concept of "supplementary water access licences". The concept first introduced in the 2000 Act. One role of SWALs is to assist in making up for the reduction in licensees' 1912 Act entitlements that came with the introduction of the 2000 Act.

The conversion of former 1912 Act entitlements into WAL share components 66On 1 October 2006, when the 2000 Act became applicable to water sources in the Lower Murrumbidgee, many 1912 Act water licences were already in place in that region, including the plaintiffs' licences. And so some legislative scheme was necessary to facilitate the conversion of the 1912 Act licences, and their "water allocations", into the 2000 Act access licences, with particular "share components". 67The scheme of converting legislative entitlements is authorised through two principal sources found within the 2000 Act. The first is a general source of power found the transitional provisions of the 2000 Act. Section 403 of the 2000 Act gives effect to the Savings and Transitional Provisions in Schedules 9, 10 and 11. Schedule 10 applies a set of general rules for the conversion of entitlements from the 1912 Act for each category of WAL, where (as here) the WAL arises from a section 55A proclamation applying Chapter 3, Part 2 of the Act to a particular water management area or water source. The conversion methodology in Schedule 10 is general and is not specific to any area of the State. The parties agree that the Schedule 10 methodology applies here. But they disagree as to which parts of Schedule 10 are applicable. Schedules 9 and 11 are discussed below. 68The second source of power for the conversion scheme is the regulation making power conferred in s 400 of the 2000 Act. Section 400 empowers the Governor, in familiar terms to make regulations "not inconsistent with [the 2000] Act" to do what is "necessary or convenient" for "giving effect to" the 2000 Act. Under s 400 the Governor made the 2004 Regulation. That regulation in turn activated the specific sharing arrangements settled under the 2003 Plan applicable to the Lower Murrumbidgee Groundwater Sources. 69So analysis of the conversion scheme involves consideration of methodology of general application and then further methodology and rules specific to the Lower Murrumbidgee Groundwater Sources. These reasons first turn to the general rules in Schedule 10. 70The General Methodology and Rules - Schedule 10. The 2000 Act, Schedule 10 clauses 1, 2 and 3 relevantly provide for the application and commencement of Schedule 10 and for its replacement of certain former entitlements. It relevantly provides: "1 Application of Schedule This Schedule applies: (a) to each category or subcategory of access licence that relates to a part of the State or water source to which Part 2 of Chapter 3 applies by operation of a proclamation under section 55A, and ... 2 Definitions In this Schedule and Schedule 11: "appointed day" means: (a) in relation to a category or subcategory of access licence to which Part 2 of Chapter 3 applies or an entitlement from which such an access licence arises, the day appointed under section 55A in relation to that category or subcategory of access licence, or (b) in relation to a type or kind of approval to which Part 3 of Chapter 3 applies or an entitlement from which such an approval arises, the day appointed under section 88A in relation to that type or kind of approval. Note: Clause 9 provides that, in certain circumstances, the operation of those Parts is deferred in relation to particular entitlements. "entitlement" means: (a) a licence, permit, authority, irrigation corporation licence or group licence referred to in Part 2 of the 1912 Act, or (b) a right to take and use water referred to in section 38B of the 1912 Act, or (c) a licence referred to in Part 5 of the 1912 Act, or (d) an approval referred to in Part 8 of the 1912 Act, or (e) a water management licence under Part 9 of the 1912 Act, or (f) a permit under Part 3A of the 1948 Act, or (g) an irrigation corporation licence under the 1994 Act, or (h) any power under section 12 of the Water Administration Act 1986 or section 8 of the 1912 Act that, immediately before the appointed day, was exercisable by any person pursuant to an agreement between that person and the Ministerial Corporation, or (i) any right to take water from an unlicensed water bore (being a water bore constructed as referred to in section 112 (1) (b) of the 1912 Act) that was in force immediately before the appointed day, or (j) any arrangement that, immediately before the commencement of this Schedule, was in force between the Inverell Shire Council and the Ministerial Corporation, or (k) any other right, interest, privilege, permission or authority that is declared by the regulations to be an entitlement for the purposes of this clause. ... "the 1912 Act" means the Water Act 1912 . ... 3 Access licences and approvals arising from former entitlements (1) Subject to this Schedule, an entitlement that, immediately before the appointed day, was in force under the 1912 Act, the 1948 Act or the 1994 Act is taken to have been replaced: (a) to the extent to which it entitles any person or body to take a specified quantity of water, by an access licence held by that person or body (subject to such of the conditions of the entitlement as are applicable to an access licence): (i) for the quantity of water so specified, or (ii) if the relevant management plan, and regulations made for the purposes of this paragraph, indicate that a different quantity of water calculated in accordance with a specified methodology may be taken under an access licence issued in relation to the water management area or water source to which the management plan applies-for a different quantity of water calculated in accordance with that methodology, and [emphasis added]" 71The plaintiffs 1912 Act, Part 5 licences were defined Schedule 10 "entitlements": Schedule 10, cl 2. Under Schedule 10, cl 2 the "appointed day" was 1 October 2006, being the day of the s 55A proclamation, when the Lower Murrumbidgee Groundwater Sources came under the operation of the 2000 Act. 72Schedule 10, cl 3(1)(a)(ii) contemplates that a new "relevant management plan" and new "regulations" would be put in place before access licences were created upon the local commencement of the 2000 Act. They were indeed put in place by 1 October 2006 to facilitate the conversion of the 1912 Act licences into WALs: the Minister had made the 2003 Plan under s 50; and the Governor had made the 2004 Regulation under s 400. These instruments are described below. 73Schedule 10 also made provision for supplementary water access licences to arise under the regulations. Schedule 10 cl 8 provides as follows: "8 Supplementary water access licences On the appointed day, and if the regulations so provide, supplementary water access licences, additional to those arising under this Part, are taken to have arisen in accordance with the regulations." 74A central contest between the plaintiffs and the Minister concerns the application of Schedule 10, clause 17 - Multiple Bore Licences to the plaintiffs' 1912 Act Part 5 licences. Schedule 10 cl 17 only applies to pre-existing groups of bore licences that are capable of becoming an "aquifer access licence" (a licence category created in s 57(10(e)). As Schedule 10, cl 17 provides, it "applies to a group of licences under Part 5 of the 1912 Act" that immediately before the "appointed day" were "linked by a condition specifying a maximum quantity of water that may be taken under all of the licences", which clause 17 calls "linked Part 5 licences". Clause 17 provides as follows: "17 Multiple bore licences (1) This clause applies to any group of licences under Part 5 of the 1912 Act that, immediately before the appointed day, were linked by a condition specifying a maximum quantity of water that may be taken under all of the licences, referred to in this clause as "linked Part 5 licences" . (2) On the appointed day, any linked Part 5 licences are taken to have been replaced: (a) to the extent to which they entitled any person or body to take a specified quantity of water, by a single aquifer access licence held by all the persons or bodies who held the licences for the quantity of water specified by the linking condition, and (b) to the extent to which they entitled any person or body to use a specified water supply work, by one water supply work approval held by all the persons or bodies who held the licences in respect of works to which the linking condition related, and (c) by one water use approval entitling all the persons or bodies who held the licences to use water on the land to which the linking condition related. (3) An access licence or approval referred to in subclause (2) is subject to such of the conditions of the linked Part 5 licences as are applicable to an access licence or approval of that kind. (4) In any group of linked Part 5 licences, the Part 5 licence last granted is taken to be the entitlement from which the replacement access licence and approvals arise for the purposes of clause 21." 75The Minister submits clause 17 applies to the plaintiffs' three 1912 Act Part 5 licences, which are "linked Part 5 licences" within clause 17 because they each contain linking conditions. The plaintiffs submit that clause 17 does not apply and that clause 3 is the relevant governing provision for the conversion of the plaintiff's 1912 Act Part 5 licences. For the reasons elaborated below in my view Clause 17 does apply to the plaintiffs' 1912 Act licences, in part because clause 3 is to be read "subject to this Schedule" including of course clause 17. 76The discussion now turns to the sources of methodology and rules for the conversion scheme that are specific to the Lower Murrumbidgee Groundwater Sources. Both the 2003 Plan and the 2004 Regulation contain the specific methodology and rules. 77Specific Methodology and Rules - the 2003 Plan. As indicated earlier the Minister made the 2003 Plan under the 2000 Act, s 50. The 2003 Plan did not take effect until 1 October 2006 when the Lower Murrumbidgee Groundwater Sources came under the operation of the 2000 Act: the 2003 Plan, cl 3. 78Under the 2003 Plan as originally made, the groundwater entitlements of all licence holders were to be reduced consistently across the board to approximately 52 per cent of their pre-existing entitlements. But this policy was revised and the 2003 Plan was amended to incorporate new methodology for reducing water entitlements variably according to a formula. The formula applied to holders of the 1912 Act entitlements from of the Deep Groundwater Source, or aquifer, of greater than 100ML, such as the plaintiffs. Holders of the 1912 Act entitlements from of the Deep Groundwater Source, or aquifer, of 100ML or less were to receive the same share component under their WAL as they had under their 1912 Act entitlements. 79The formula for variable reduction was included in the 2003 Plan, cl 25C which deals with conversion of the 1912 Act water entitlements into WALs share components under the 2000 Act. Clause 25C provided as follows: "Share components of aquifer access licences 25C Share components of aquifer access licences (1) For those Water Act 1912 entitlements in the Shallow Groundwater Source that are to become aquifer access licences in this groundwater source at the commencement of this Plan, the share component is to be equal to the Water Act 1912 entitlement. (2) It is estimated that at the time of commencement of this Plan, the share components of aquifer access licences authorised to extract water from the Shallow Groundwater Source will total 3,332 unit shares. (3) For those Water Act 1912 entitlements in the Deep Groundwater Source equal to or less than 100 ML that are to become aquifer access licences in this groundwater source at the commencement of this Plan, the share component is to be equal to the Water Act 1912 entitlement. (4) For each entitlement in the Deep Groundwater Source referred to in Column 1 of Schedule 5 applying to the licences listed in Column 2 of Schedule 5 that are to become aquifer access licences in this groundwater source at the commencement of this Plan, the share component is to be equal to the share component in Column 3 of Schedule 5. (5) For those Water Act 1912 entitlements in the Deep Groundwater Source greater than 100 ML and not listed in Column 1 of Schedule 5 and that are to become aquifer access licences in this groundwater source at the commencement of this Plan, the share component will be established in accordance with the following formula: SCAAL = AV+HV Where: (a) SCAAL is the share component of the aquifer access licence, (b) AV is the volume required to provide asset value protection and to protect entitlements greater than 100 ML from being reduced below 100 ML and is calculated from the following formulae: AV = (WAE x 0.157) or 100 whichever is greater Where WAE is the Water Act 1912 entitlement, (c) HV is the history of extraction component and is calculated from the following formulae: HV = (HOER/ΣHOER) x (R- PEW- LWU-SD- ΣSL- ΣEXC- ΣAV) Where: (i) HOER = 0 where HOE ≤ AV, (ii) HOER = HOE − AV where HOE > AV Note. Where HOER = 0 the history of extraction component (HV) will also be 0. (iii) HOE is as defined in subclause (6), (iv) R is the amount of recharge established in clause 16 (1) (b), (v) PEW is the volume of recharge reserved as planned environmental water in clause 18 (1) (c), (vi) LWU is the total of local water utility access licence share components in this groundwater source at the commencement of this Plan, (vii) SD is the total volume of domestic and stock access licences in the Deep Groundwater Source at the commencement of this Plan, (viii) ΣSL is the total volume of all Water Act 1912 entitlements that are less than or equal to 100 ML as defined in subclause (3), (ix) ΣEXC is the sum of share components specified in Column 3 of Schedule 5, and (x) ΣAV is the total of the asset value protection component volumes calculated under subclause (5) (b). (6) For the purposes of subclause (5) and clause 25D HOE is equal to the greater of: (a) the average extraction over the seven water years from 1995/96 to 2001/02 not exceeding the Water Act 1912 entitlement in 2001/02 and excluding zero and low extraction years prior to activation, or (b) the average extraction over the five water years from 1997/98 to 2001/02 not exceeding the Water Act 1912 entitlement in 2001/02 and excluding zero and low extraction years prior to activation, or (c) the average extraction over the six water years from 1997/98 to 2002/03 not exceeding the Water Act 1912 entitlement in 2001/02 and excluding zero and low extraction years prior to activation. Note: The rules for determining HOE are contained in Appendix 4. (7) For the purposes of subclause (6) zero and low extraction years are years where extraction was less than 20% of the maximum volume of water extracted in any one year between 1995/96 and 2001/02. (8) For the purposes of subclause (6) activation is defined as the first year between 1995/96 and 2001/02 in which a licence holder extracted 20% or more of the maximum volume of water extracted in any one year between 1995/96 and 2001/02. (9) It is estimated that at the time of commencement of this Plan the share components of aquifer access licences established under subclauses (2), (3), (4) and (5) for the Deep Groundwater Source will total approximately 267,500 unit shares." 80The parties accept that, as at 1 October 2006 the plaintiffs' existing licences were "Water Act 1912 entitlements in the Deep Groundwater Source greater than 100 ML and not listed in Column 1 of Schedule 5" and that therefore the formula in the 2003 Plan, cl 25C(5) applies to them. Column 1 of Schedule 5 of the final 2003 Plan only listed four groups of licences, which was nothing like the comprehensive list of licences contained in the 2004 Regulation - see below. The explanation for this is that Schedule 5 swept up a small number of 1912 Act licences that had been omitted by mistake from the 2004 Regulation. 81Clause 25C (5) operates with respect to 1912 Act entitlements "that are to become aquifer access licences...at the commencement of this Plan". These words are satisfied because the 2004 Regulation, r 29B, see below, states that the water access licences granted under the 1912 Act "have been replaced" by the 2000 Act access licences, also at the time of commencement of the 2003 Plan. 82But the 2003 Plan differs from the 2004 Regulation in that the former sets out a formula for calculating the share component resulting from the change from 1912 Act entitlement to 2000 Act share component, whereas the latter states (in its Schedule 4A - see below) the share component outcome from the application of the formula. It was perhaps always on the cards that two pieces of delegated legislation, one that specified a formula and the other which specified the result of that formula's application would produce tension, because of different ways the formula might arguably be applied. This very same tension but in a different Plan arose for Jagot J 's decision in Green and Anor v Minister for Climate Change, Environment and Water [2008] NSWLEC 48 (Green), where her Honour upheld the effect of the statement of the outcome of the formula in the applicable regulation. 83The 2003 Plan, cl 25C(5) formula determines the new reduced water entitlements ("share components") for the 2000 Act WALs by reference to several components. But the component leading to the present dispute is the average amount of water in fact extracted by the licence holder historically over a fixed period, before 1 October 2006 called the "history of extraction" or "HOE", determined for each licence according to the 2003 Plan, cl 25C(6)-(8) set out above. 84The 2003 Plan, Schedule 4 sets out some general rules in relation to the calculation of the conversion. The parties referred the Court to Rules 1 and 10 which are as follows: "Rule 1 The history of extraction for each entitlement is calculated separately, irrespective of ownership. ... Rule 10 Where properties have been amalgamated, all extraction years prior to amalgamation will be combined and together with extraction occurring after amalgamation will be used to calculate HOE." 85The words "to amalgamate" and "amalgamation" used in Rule 10 are not defined anywhere in the 2003 Plan. But the 2003 Plan, cl 6(5) states that "Appendices to this Plan do not form part of this Plan." The defendants submitted that, despite that, the rules in Schedule 4 may nevertheless be used as an aid for construction of the other provisions of the 2003 Plan. 86When calculating the history of extractions (HOE) the 2003 Plan, cl 25C(6) excludes the "zero and low extraction years prior to activation". "Activation" is defined in the 2003 Plan, cl 25C(8) as the "first year between 1995/96 and 2001/02 in which a licence holder extracted 20% or more of the maximum volume of water extracted in any one year between 1995/96 and 2001/02" and appears to be a measure that a reasonable level of usage of the licence has commenced. The 2003 Plan, cl 25C formula will provides better results (in the form of higher WAL share components), for those licence holders with a higher history of extractions prior to activation. And because such history is calculated as an average over a period, the more "zero and low extraction years prior to activation" that are excluded from the calculation, the better the result is likely to be for the licensee. 87The parties accept that the time of "activation" under cl 25(8) is different for each of the plaintiffs three 1912 Act licences. The Hutchins property licence achieved "activation" within cl 25C(8) first, in 1998/99. The Danwillach property licence did not achieve "activation" until 2001/02. And Delta property licence was in fact never activated. But they disagree as to the correct manner of application of the 2003 Plan, cl 25C(6) formula to the plaintiffs' licences. 88The competing arithmetical approaches to applying the formula to plaintiffs' licences presented at the hearing by each party may be summarised as follows: (1) applying the 2003 Plan, cl 25C(6) formula separately to each one of the plaintiffs' 1912 Act licences, taking into account its individual activation date, and then adding the resultant separate averages to obtain a combined HOE of the three licences (the separate licence calculation - the plaintiffs' approach); or (2) first combining the historical water extraction figures for each of the three 1912 Act licences and then, using the year of activation of the earliest activated licence, and applying the 2003 Plan, cl 25C(6) formula only once to produce a single average figure (the combined licence calculation - the defendants' approach). The ultimate resulting share component of the new licence is higher when the first method, the separate licence calculation, is applied. This is because due to the late (2000/2001) activation dates of the Delta and Danwillach licences, a higher number of "zero and low extraction years prior to activation" would be excluded if each of the licences is first considered separately. Not surprisingly therefore, the plaintiffs favour the former approach, and the defendants the latter. 89It is accepted in the expert evidence of Mrs Doughty that if the combined approach is adopted when applying the formula, and therefore using the 1998/1999 year as the activation date for the calculation, results in a share of sustainable yield for the plaintiffs WAL of 1925ML and for the plaintiffs SWAL of 250ML. As will be seen below these are the exact figures for the plaintiffs' WAL and SWAL set out in Schedule 4A to the 2004 Regulation. Mr Ryan says the calculation cannot be done. But I accept Mrs Doughty's evidence it is possible and I infer that is how the Minister applied the cl 25C(5) formula when Schedule 4A to the 2004 Regulation was prepared. Importantly this means there is one worked example of the cl 25C(5) formula that produces a result consistent with Schedule 4A for the plaintiffs. 90But the plaintiffs dispute relates not only the calculation of their WAL share component. They say also that the share component of their new supplementary licence, SWAL, was calculated incorrectly. The 2003 Plan, cl 25D deals with calculating the share component of supplementary water access licences in the following terms: "25D Share components of supplementary water access licences (1) Those Water Act 1912 entitlements that are to be converted to an aquifer access licence in the Deep Groundwater Source under clause 25C (3) may also receive a supplementary water access licence. (2) The share component of a supplementary water access licence converted under subclause (1) will established in accordance with the following formula: SCSWAL = HOE-SCAAL Where: (a) SCSWAL is the share component for the supplementary water access licence, (b) HOE is as defined in subclauses 25C (6), (7) and (8), (c) SCAAL is the share component of the aquifer access licence established under clause 25C (4) and (5). (3) It is estimated that at the time of commencement of this Plan the share components of supplementary water access licences established under subclause (1) for the Deep Groundwater Source will total 39,800 unit shares. Note: Not all aquifer access licences amended under clause 25C (3) will receive a supplementary water access licences. Only those licences who have a HOE as defined in subclauses 25C (6), (7) and (8) which is greater than their new Aquifer Access Licence Share component." 91One puzzle of cl 25D is why it refers only to conversion of 1912 Act entitlements under cl 25C(3). Strangely it does not refer to conversion under cl 25C(4) or the formula in cl 25C(5) to which the 2004 Regulation adds a SWAL of 250 for the plaintiffs. But essentially the share component for the plaintiffs' SWAL is a figure representing the difference between the HOE, as calculated under cl 25C(6), (7) and (8) and the share component of the plaintiffs' aquifer WAL established by the application of the cl 25C(5) formula. 92Specific Methodology and Rules - the 2004 Regulation. The 2004 Regulation was made in 2004. The 2004 Regulation provided for supplementary water access licences across a number of river catchment systems in the State, the Gwydir, the Hunter, the Lower Darling, the Lower Namoi, the Macquarie and Cudgegong, the Murray and the Murrumbidgee. 93The parties are not in contest that the 2004 Regulation was amended in part in 2006 by the Water Management (General) Amendment Regulation 2006, with respect to certain Groundwater Sources in the Lower Gwydir, Lower Macquarie, and Lower Murrumbidgee River catchments (the 2006 Regulation). For convenience the 2004 Regulation as amended by the 2006 Regulation is nevertheless called the 2004 Regulation throughout these reasons. 94To allow the conversion of the Lower Murrumbidgee Groundwater Sources and certain other 1912 Act licences into 2000 Act licences, the 2006 Regulation amended the 2004 Regulation by adding one new division (Division 4 of Part 3) and one new schedule (Schedule 4A) to the 2004 Regulation. 95Importantly, the 2006 Regulation was made, as it declares, in the exercise of two separate powers under the 2000 Act: s 400 and Schedule 9, clause 1. As earlier indicated, s 400 gives the Governor the conventional power to make regulations under the Act. But the 2000 Act, Schedule 9, cl 1 (like Schedule 10, given effect by the 2000 Act, s 403) also allows the 2004 Regulation to be given effect despite any other provision in Schedule 10. Schedule 9 cl 1 relevantly provides: "1 Savings and transitional regulations (1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts: this Act ... ... (4) If the regulations so provide, such a provision has effect despite any other provision of this Schedule, Schedule 10 or Schedule 11." 96As will be seen, the primacy in relation to Schedule 10 that Schedule 9 confers on the amending material the 2006 Regulation is a factor that may be taken into account in preferring the Minister's construction of the conversion formula within the 2000 Act. 97The amended 2004 Regulation Part 3, Division 4 was entitled "Replacement access licences for certain Part 5 entitlements (1 October 2006)". Under a newly inserted definition, "Part 5 entitlement" was described as "a licence under Part 5 of the former 1912 Act". And the added Division 4 relevantly provided as follows: "29A Application of Division This Division applies to and in respect of each Part 5 entitlement referred to Column 1 of in Schedule 4A, and to and in respect of each access licence arising from any such entitlement, but not to any other entitlement or access licence. 29B New share components for existing Part 5 entitlements (1) This clause applies for the purposes of clause 3 (1) (a), and clause 8, of Schedule 10 to the Act. (2) On 1 October 2006, a Part 5 entitlement (or group of Part 5 entitlements) referred to in Column 1 of Schedule 4A is taken to have been replaced: (a) by an aquifer access licence with a share component of the volume specified in Column 2 of that Schedule, and (b) if a volume is specified in Column 3 of that Schedule, by a supplementary water access licence with a share component of the volume so specified. (3) The volumes specified in Columns 2 and 3 of Schedule 4A in relation to any Part 5 entitlement (or group of Part 5 entitlements) have been calculated in accordance with whichever of the following methodologies is relevant to that entitlement or group of entitlements: (a) in the case of entitlements relating to the Lower Gwydir Groundwater Source within the meaning of the Water Sharing Plan for the Lower Gwydir Groundwater Source 2003 , the methodology set out in clauses 25C and 25D of that plan, (b) in the case of entitlements relating to the Lower Macquarie Groundwater Sources within the meaning of the Water Sharing Plan for the Lower Macquarie Groundwater Sources 2003 , the methodology set out in clauses 25C and 25D of that plan, (c) in the case of entitlements relating to the Lower Murrumbidgee Groundwater Sources within the meaning of the Water Sharing Plan for the Lower Murrumbidgee Groundwater Sources 2003 , the methodology set out in clauses 25C and 25D of that plan. [emphasis added]" 98Clauses 29A and 29B introduce reference to the new Schedule 4A to the 2004 Regulation, which attempted to list every single Part 5 entitlement, as defined, issued for the Gwydir, Lower Macquarie and Lower Murrumbidgee Groundwater Sources. In fact as it turned out it failed to count a few of these former entitlements, which were picked up later in Schedule 5 of the 2003 Plan. 99The new Schedule 4A included a single table in which Column 1 listed line by line the many pages of licence numbers for all the Part 5 entitlements as defined, being the water licences granted under the 1912 Act (including the plaintiffs' licences). Column 2 listed in the corresponding line alongside each of the Part 5 entitlements in Column 1, the new 2000 Act share components of aquifer WALs. And Column 3 listed the new 2000 Act share components of supplementary water access licences, including SWALs. The results in this table for the plaintiffs' three 1912 Act licences as they appear in the three columns of Schedule 4A are set out below. They show the plaintiffs entitled to a WAL share component of 1925 and to a SWAL of 250, figures which as Mrs Doughty's expert evidence shows are consistent with one way of applying the clause 25C(5) formula: using the combined approach. Column 1 Column 2 Column 3 Part 5 entitlement Aquifer access licence Supplementary access licence Lower Gwydir Groundwater Source ... ... ... 50BL198153, 50BL198156, 50BL198157 1925 [WAL's share component] 250 [SWAL' share component] [numbers of plaintiffs' 1912 Act licences] .... ... ...

100The new cl 29A and cl 29B in Division 4 and the new Schedule 4A had several important legal effects. 101First, cl 29B(1) made quite clear that it "applies for the purposes of clause 3(1)(a), and clause 8, of Schedule 10 of the Act". The primacy of this new Division 4 and Schedule 4A of the 2004 Regulation means that it may have effect in relation to the plaintiff's WAL despite the plaintiffs' construction of Schedule 10 clause 3 of the 2000 Act. 102Secondly, the attempt of Schedule 4A at comprehensiveness is important in itself. As Mr Hutley SC submitted, it represents "in effect a settlement of relations of all participants in the scheme" as part of an integrated exercise to deal with a limited resource. Ordinarily such an integrated legislative scheme should be given coherent and consistent operation: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28. 103Thirdly, and again as Mr Hutley SC submits, clause 29B(3) declares that the numbers calculated in Columns 2 of Schedule 4A for the plaintiffs' WAL "have been calculated in accordance with the...methodology set out in clauses 25C and 25D of [the 2003 Plan]". So, if the methodology of clause 25C of the 2003 Plan can by a process of mathematical logic be applied to produce the result achieved in Column 2 of Schedule 4A of 1925 (even if different results could be achieved by deploying other mathematical logic) then clause 29B (3) precludes the plaintiffs' contention that the methodology of clause 25C has not been followed. And, as Mr Hutley SC further submits in relation to the plaintiffs' SWAL, as Schedule 10 clause 8 does not provide a methodology for calculating SWALs, there is no basis in Schedule 10 to dispute the 250 units set out in Schelule 4A for the plaintiffs' SWAL. The Parties' Submissions 104The parties' respective contentions may be shortly summarised. The plaintiffs submit that the Minister erroneously applied the combined licence approach in calculating the share component of the WAL and SWAL to which the plaintiffs are entitled under the 2000 Act. By incorrectly applying the 2003 Plan, Schedule 4, Rules 1 and 10, the Minister is said to have occasioned this error. 105In the alternative, acknowledging that Appendix 4 does not form part of the 2003 Plan (see clause 6.5 of the 2003 Plan), the plaintiffs submit that the Minister's approach to the calculation is contrary to the mathematical formula provided in clause 25C of the 2003 Plan and of the objectives of that Plan. 106In their written submissions the defendants take two principal positions in response to the plaintiffs' case. First, they submit that the plaintiffs' share component entitlements are as specified in the 2004 Regulation. They submit that the 2004 Regulation in Schedule 4A mandates a particular result for the plaintiffs (a WAL share entitlement of 1925, and a SWAL share entitlement of 250) and that is the end of the matter, whether or not the result can be achieved from the application of clause 25C of the 2003 Plan. Secondly, the defendants submit that the Minister correctly calculated the plaintiffs' WAL and SWAL share components in accordance with the methodology in the 2003 Plan. Finally, the defendants advance some submissions as to the plaintiffs' WAL and SWAL in the event that the plaintiffs' submissions are preferred. 107The defendants' oral submissions at the trial reversed the order of the defendants' first two submissions: seeking thereby principally to justify the position that the ministers' calculation was in accordance with the 2003 Plan, clause 25C. These reasons deal with the defendants' argument in that revised order, as the defendants' second submission answers the plaintiffs' contentions directly. 108It is convenient now to elaborate all the plaintiffs' various arguments and then the defendants' response to them, under two main questions about the plaintiffs' WAL and SWAL: (a) were the Plaintiffs' share components calculated in accordance with Clause 25C?; and (b) are the plaintiffs' share components as specified in the 2004 Regulation? 109For the following reasons in my view the answer to both these questions is in the affirmative.

Were the Plaintiffs' share components calculated in accordance with Clause 25C? 110The plaintiffs do not dispute that under the 2000 Act, Schedule 10 their licences were on 1 October 2006 converted into a single aquifer licence. And they accept that the calculation of the share component of that new WAL, should be calculated pursuant to the 2003 Plan, cl 25C(5) and that the history of extraction used in that calculation is determined by the 2003 Plan, cl 25C(6). The plaintiffs' rely upon the contents of the 2004 Regulation, Schedule 4A concerning the plaintiffs' licences to show what the Minister's calculation must have been: 1925 ML for the plaintiffs' WAL and 250 for the plaintiffs' SWAL. 111The plaintiffs' case - Rules 1 and 10. The plaintiffs submit that the 2003 Plan, Appendix 4, Rule 1 supports their preferred separate licence calculation approach for cl 25C. They submit that the Minister erred in treating the properties as "amalgamated" under the 2003 Plan, Appendix 4, Rule 10. 112First the plaintiffs submit: that Appendix 4, Rule 1 requires that the history of extraction for "each entitlement" is to be calculated "separately"; that the 2000 Act, Schedule 10 cl 2 defines "entitlement" to mean a single 1912 Act bore licence; so that when Rule 1 requires each "entitlement" to be determined "separately", it infers that the separate licence calculation for which the plaintiffs contend, is the appropriate calculation; and as the plaintiffs' three 1912 Act licences were separate, their HOE should therefore be calculated separately. 113Secondly, the plaintiffs say that 2003 Plan, Appendix 4, Rule 10 does not authorise the Minister's combined calculation approach. The plaintiffs' properties were never "amalgamated" within the meaning of the 2003 Plan, Appendix 4, Rule 10. Therefore it is not possible to use Rule 10 to combine all extraction under the HOE definition prior to amalgamation, as the Minister's combined calculation purports to do. They point out that the term "amalgamated" is not defined in the 2003 Plan, so the Court should apply what the plaintiffs submit is the ordinary meaning of "amalgamated", namely, "consolidating separate lots into one title". As the plaintiffs' three properties have never been consolidated into one title, Rule 10 has no application here. Moreover, the plaintiffs support this approach by submiting that departmental officers used "amalgamated" in the sense for which the plaintiffs contend in their communications with the plaintiffs as early as September 1999. 114The defendants' answers - Rules 1 and 10. The defendants' answers to the plaintiff's case about Rules 1 and 10 are persuasive. I accept their contention that, to the extent that it is legitimate to use Rule 10 to inform the process of construction, Rule 10 favours the defendants' approach to the calculation. 115But the first question is the extent to which any of these Rules in Appendix 4 may legitimately be used in aid of the construction of the 2003 Plan, or other parts of the legislative scheme. Clause 6(5) of the 2003 Plan makes clear that the rules in Appendix 4 do not form part of the 2003 Plan. But that does not mean they can simply be disregarded, especially in construing clause 25C of the 2003 Plan. The Appendix 4 Rules can inform the construction of the plan: Nature Conservation Council (NSW) Inc v Minister Administering the Water Management Act 2000 (2005) 137 LGERA 320, at 339 [48] - [50] per Spigelman CJ. 116The defendants' submission is correct: that Rule 1 has no application here; and in any event, the rule should be read subject to the application of Rule 10, which governs calculations in respect of linked 1912 Act licences. Rule 1 of Appendix 4 is designed to answer an argument that calculations for bore licence entitlements should be undertaken together, if the one owner holds all those entitlements. The effect of Rule 1 is to ensure that a person holding more than one 1912 Act licence is not by that fact automatically to be disadvantaged by having all commonly owned licence entitlements included in the one calculation. But that is not this case. Each of the three plaintiffs separately holds its own property and held, as at 1 October 2006, its own 1912 Act licence. And in Rule 1 the expression "irrespective of ownership" foreshadows the possibility, then dealt with in Rule 10, that one 1912 Act licence entitlement may be connected to multiple properties owned by different owners. Rule 1 has no application to the present case. 117But Rule 10 does apply here. The plaintiffs' three properties are relevantly "amalgamated", even though they are formally registered on separate titles, because they are operated as one commercial entity. 118The term "amalgamated" is not defined in the 2003 Plan. But the plaintiffs' construction, which limits the meaning of the expression to cases in which more than one allotment have been consolidated into a single title, is too narrow. There is no reason to assume that the drafting of the 2003 Plan had in mind the merger of titles under the Real Property Act 1900. Nothing in the 2003 Plan, other perhaps than the word "amalgamated" itself, is a basis to suggest that merger of titles is in contemplation. Indeed "amalgamated" is a quite inapt word to use to describe the joining of separate titles into one under the Real Property Act, which uses the expression "consolidation" to describe the process of such title merger: Real Property Act, ss 14A, 45D, 49, and 81J. 119The defendants' construction of the word "amalgamated" in Rule 10 authorises the Minister to conduct a combined licence calculation under clause 25C, so as to produce a result which is consistent with the plaintiffs' WAL and SWAL share components as set out in the 2004 Regulation, Schedule 4A - a higher order legislative instrument (see below). I accept the defendants' contention that because the plaintiffs' construction of the word "amalgamated" contradicts the calculation results displayed in Schedule 4A that is another basis for rejecting the plaintiffs' construction. And the 2003 Plan is a legislative instrument to which the Court should take practical approach in construction by seeking to give effect to its overall purpose in its legislative context: Cranbrook School v Woollahra municipal Council (2006) 66 NSWLR 379 per McColl JA at 388 [36]. 1201912 Act Part 5 licences with linked conditions were an established feature of the 1912 Act licensing scheme when the 2000 Act, the 2003 Plan and the 2004 Regulation were all passed and given effect. Such linked licences are expressly dealt with in Schedule 10 cl 17. Rule 10 is the only one of the 2003 Plan, Appendix 4 rules, which could describe the necessary calculation in respect of linked licences. And some kind of rule was necessary in order to select among the many possible calculation choices for linked licences. In my view Rule 10 does give guidance to the present computation and it does so by selecting the defendants' combined licence calculation approach. 121And Rule 10 is not unfair. The plaintiffs had the effective benefit of a single bore licence across all three of the properties with a combined extraction limit of 4,899 ML. This gave the plaintiffs a better result than they would have obtained had they combined their three licences into a single licence. I accept the evidence of Mr Lawson, the defendants' witness, that under the departmental policy existing in 1999 - 2001 the formula for entitlement to 1912 Act, Part 5 allocations resulted in a tapering scale of entitlement in relation to the size of the property: the larger the property area the smaller the per-hectare entitlement. Having had the benefit of a single aggregate extraction limit for all three properties since 2001, it was not inappropriate that the plaintiffs' dependence on groundwater should be assessed for the purposes of conversion under the 2000 Act on the basis of a single history of extraction for three properties. 122Finally, the defendants' two answers to the plaintiffs' contentions based on departmental practice is persuasive. The parties' choice of words in their correspondence about whether or not the plaintiffs' titles were regarded as "amalgamated" does not control the proper interpretation of the 2000 Act, the 2003 Plan, or the 2004 Regulation. This correspondence between the parties is not a legitimate aid to construction and the Court cannot take it into account. 123Moreover, the correspondence does not all favour the plaintiffs. Some correspondence of departmental officers certainly suggests that the department is using the term "amalgamated" in the sense of the combining of land titles. But yet other correspondence suggests that the department intended to use the term to refer to properties held in separate titles, which were nevertheless treated as one, or "amalgamated", by reason of linked conditions specifying the maximum volume of water, which may be extracted from all the bores on the separate titles. 124Lastly, the defendants say more generally that it was appropriate that the plaintiffs' dependence on groundwater be assessed on the basis of a single history of extractions because: the plaintiffs had the benefit of a single, aggregated extraction limit for all three properties since 2001, and for all practical purposes the plaintiffs were in the same position as if they have obtained a single bore licence for all three Properties. 125Correctness of the cl 25C calculation - plaintiffs' case & defendants' reply. The plaintiffs' arguments as to the error in the Minister's clause 25C calculation are matched below with the defendants' answers to those arguments. 126First, the plaintiffs' contentions as to the alleged error in the clause 25C calculation start with the form of the plaintiffs' 1912 Act, Part 5 licences issued on 19 April 2001. The plaintiffs submit that, in their licences, their 1912 Act "entitlement" to which the 2003 Plan, cl 25C(6) refers, are the three separate entitlements of their original licences (1615ML for the Hutchins licence, 1900ML for the Danwillach licence and 1384ML for the Delta licence) and not the combined figure of 4899ML introduced into each licence in the 2001 linking condition. This, they say, follows from the language of the licences themselves. The 2001 linking condition in each licence provides that the "volume of groundwater extracted from the works authorised by this licence and by Licence Nos [the two other plaintiffs' licences] shall not exceed 4,899 megalitres". This language, the plaintiffs submit, suggests that a separate amount is still authorised under each licence. And this conclusion is supported, they further submit: (1) by the figure of 4,899ML included in the 2001 condition being not a new figure but just the sum of the several entitlements under the individual 1912 Act, Part 5 licences; and (2) by the fact that each of the plaintiffs' 1912 Act, Part 5 licences also included a condition, (set out earlier in these reasons) tying the allocation of water under that licence to the total area of land referred to on the face of the licence (the corresponding property); and (3) by the fact that the total area for each licence had not changed after the 2001 linking condition was introduced - the areas of the other two linked properties had not been added on the face of any of three licences. 127And before proceeding to the detail of clause 25C, the plaintiffs submit that the Court should bear in mind the policy purpose of this clause, as was explained by Spigelman CJ in Tubbo Pty limited v Minister Administering the Water Management Act 2000 [2008] NSWCA 356 (Tubbo). His Honour there described the mathematical formula in clause 25C as providing "a basis for computation of the share component of the aquifer access licences into which the entitlements under the Water Act 1912 were converted by the 2003 Plan....A share component entitles a licence holder to draw on a specified or computed amount of water": Tubbo at [13]. And his Honour further said that this formula provides protection to licence holders: Tubbo at [16]. 128The defendants' answer to this is persuasive: Spigelmen CJ's identified comments in Tubbo only appear to be introductory and do not appear to be intended to address the relationship between the 2003 Plan and the 2004 Regulation. 129The plaintiffs submit that properly considered the clause 25C(5) formula - as given further legislative explanation in clause 25(6), (7) and (8) - must be dealing with the determination of the history of extraction for individual 1912 Act licence holders. The plaintiffs point out that clause 25C(6) refers to "the Water Act 1912 entitlement" (emphasis added) in the singular; and the meaning of "entitlement" in the 2000 Act, Schedule 10 cl 2 includes a licence under the 1912 Act, Part 5. This the plaintiffs submit indicates that the formula is designed to operate with respect to such a single "entitlement", not the multiple entitlements of linked 1912 Act, Part 5 licences. The plaintiffs draw further support for this argument from the terms of the formula as explained in clause 25C(6) which requires "average extraction" over a period "not exceeding" the Water Act 1912 entitlement in 2001/2002". This the plaintiffs submit "could only be determined separately for each bore licence held by the Hutchins companies", partly because clause 25C (8) sets a different "activation date" for each such 1912 Act, Part 5 bore licence. 130But the defendants' answer to this is simple and persuasive, and I accept it. The text of clause 25C(6) to (8), using the singular form of the word "entitlement", does not mandate the plaintiffs' approach (the separate licence calculation) in performing the calculation according to the formula. Clause 25C(5), the operative clause of the formula, refers to "entitlements" in the plural, which is consistent with a calculation over several entitlements. And clause 25C(6), upon which the plaintiffs rely, is expressed to apply "for the purposes of sub-cl (5)". 131And more generally the plaintiffs submit that applying the 2003 Plan, clause 25C(5) formula to the sum of extractions from all the plaintiffs' licences, instead of to each licence separately, is contrary to the objectives of that formula. They point out that the formula includes a component of "zero or low extraction years prior to activation" [emphasis added]. And they say that in circumstances where the plaintiffs' licences were activated at a different time that formula was intended to apply, and could only properly apply, separately to each of the licences. They add that otherwise the plaintiffs do not get the benefit of the "zero or low extraction years prior to activation" of each of the properties. 132But the plaintiffs' submission here really begs the question by assuming in their own favour that they are entitled to the benefit of a separate licence calculation. Even on the defendants' preferred approach to the formula, the combined licence calculation, some "zero or low extraction years prior to activation" may be excluded. All the defendants' construction means is that the plaintiffs' will exclude fewer "zero or low extraction years prior to activation" than the plaintiffs want to have excluded. That is hardly contrary to the objectives of the clause 25C formula. Are the plaintiffs' share components as specified in the 2004 Regulation? 133As a preliminary to the discussion of the 2004 Regulation, it is useful to see where it fits into the legislative scheme of the 2000 Act, Schedule 10. The parties' submissions took quite different approaches to the construction of the 2000 Act, Schedule 10: the plaintiffs emphasised the operation of cl 3; the defendants emphasised the operation of cl 17. 134The defendants' analysis commences with the 2000 Act, Schedule 10, cl 17. They submit that because of the linking conditions imposed in 2001, the plaintiffs' 1912 Act licences are a "group of licences under Part 5 of the 1912 Act that, "immediately before the appointed day, were linked by a condition specifying a maximum quantity of water that may be taken under all of the licences" and thereby attract the operation of Schedule 10, cl 17(1). 135In my view that submission is correct. The linking condition in the plaintiffs' "group of licences" clearly answers the description in cl 17(1) of "specifying the maximum quantity of water that may be taken under all of the licences", here 4899ML. 136The defendants further submit that on 1 October 2006 the effect of Schedule 10, cl 17(2)(a) was that group of licences is "taken to have been replaced" by a "single aquifer access licence held by all the persons or bodies who held the licences for the quantity of water specified by the linking condition". 137It is clear in my view that cl 17(2) is the provision which replaces such linked licences and merges them into a single WAL. Clause 3(1) does not speak to the specific replacement of linked Part 5 licences in the names of different licence holders under the 1912 Act. Only clause 17 does that. And when it does so, it gives the single WAL the specific quantity of water that is already specified in the linking condition. Here that is, 4,899ML. 138But Schedule 10, cl 3 still has some work to do with respect to the multiple 1912 Act, Part 5 bore licences to which cl 17 applies. Clause 3 operates "subject to this schedule" and clause 17 specifically provides how linked multiple bore licences, "are taken to have been replaced", and sets the resultant quantity of water specified in the replacing licence. 139But Schedule 10, clause 3(1)(a)(ii) deals with an additional circumstance which applies with the 2003 Plan and the 2004 Regulation for the Lower Murrumbidgee Groundwater Sources, namely that "relevant management plan, and regulations made for the purpose of this paragraph, indicate that a different quantity of water, calculated in accordance with a specified methodology, may be taken...". That is the case here: the 2003 Plan and the 2004 Regulation both co-ordinately, under cl 3(1)(a)(ii) "indicate a different quantity of water...may be taken". The plaintiffs' submissions tended to emphasize the operation of the 2003 Plan, clause 25C. But the 2004 Regulation operates in a co-ordinate way under clause 3(1)(a)(ii). With these observations I now turn to the defendants' alternative argument based on the 2004 Regulation. 140The defendants' submission is that even if the methodology in the plan were not applied according to its terms, the plaintiffs' share components are as specified in the 2004 Regulation. 141The defendants submit that under the provisions of the 2004 Regulation, r 29B and Schedule 4A, each group of linked 1912 Act licences listed in Column 1 of Schedule 4A "is taken to have been replaced" by "an aquifer access licence with a share component of the volume specified in Column 2" of Schedule 4A: 2004 Regulation, r 29B(2)(a) and (b). And in the relevant case of the Lower Murrumbidgee the volumes specified in Columns 2 of Schedule 4A are declared to "have been calculated in accordance with" the methodologies in the 2003 Plan, cl 25C: the 2004 Regulation, r 29B(3)(c). 142The defendants submit that the share components for the plaintiffs' WAL and SWAL were specifically prescribed in the 2004 Regulation, Schedule 4A table. And they say that even if the 2003 Plan, clauses 25C and 25D were to have been applied incorrectly to the plaintiffs' licences (which they say has not occurred, if their earlier argument is accepted) the figures listed in the 2004 Regulation, Schedule 4A are decisive, because the 2004 Regulation, r 29B(2) provides that the 1912 Act licences are "taken to have been replaced" by 2000 Act licences with share components specified in 2004 Regulation, Schedule 4A and, in case of SWALs, because the 2000 Act, Schedule 10, cl 8 states that supplementary water access licences "are taken to have arisen in accordance with the regulations". 143The 2000 Act, Schedule 10, cl 3(1)(a)(ii), providing as it does for the co-ordinate operation of legislative instruments such as the 2003 Plan and the 2004 Regulation, confirms that these instruments form and operate as an integrated legislative scheme coming into effect on 1 October 2006. It is permissible to have regard to one instrument in such a scheme in construing the other instruments, and the Court should prefer a construction that gives a coherent operation to all aspects of the scheme: Deputy Federal Commissioner of Taxation (SA) v Ellis & Clark Limited (1934) 52 CLR 85 per Dixon J at 89-95; Brayson Mavis Pty Limited (in liquidation) v Commissioner of Taxation (Cth)(1985) 156 CLR 651 at 652; Commissioner of Stamp Duties (NSW) v Permanent Trustee Co Ltd (1987) 9 NSWLR 719, Kirby P at 273-4. 144The defendants submission then, which I find persuasive, is that clause 29B, and Schedule 4A of the 2004 Regulation operated as a kind of deeming provision, declaring or deeming that the methodology of the 2003 Plan produced a set of particular share component volumes as set out in the Schedule. It is difficult to understand why clause 29B and Schedule 4A have been created at all, unless the authors of the statutory scheme intended that they would be definitive of the share component volumes and that they would prevail over the methodology in the 2003 Plan, in the event of any arguable inconsistency. In substance clause 29B(3) is declaring that the methodologies have been correctly applied and the 2004 Regulation determines the plaintiffs' entitlements in the event of any inconsistency of the type that the plaintiffs allege between the methodology of the 2003 Plan, clauses 25C and 29D, and Schedule 4A of the 2004 Regulation. 145Existing authoritiy also supports this conclusion. In Green, Jagot J accepted the very same reasoning as to the operation of Schedule 4A of the 2004 Regulation. Green concerned a different aquifer, the Lower Macquarie Groundwater Source, and the alleged methodological error in Green was slightly different from that the subject of these proceedings; it centred on the words "zero and no extraction used since activation [emphasis added]" in clause 25C of the Macquarie Plan. But in Green her Honour set out the same argument that the defendants made in these proceedings on this issue and accepted it: Green at (3, 42-(7) and [44]-[50]). With respect, I agree with her Honour's reasoning in Green. 146Although it is not essential to the defendants' argument in relation to the effect of the 2004 Regulation, Schedule 4A, the defendants also submit the Court should also accept Jagot J's conclusion that, in the event of an inconsistency, 2004 Regulation, r 29B(2) takes precedence over the formula in the 2003 Plan, cl 25C, because of the operation of the 2000 Act, Schedule 9, cl 1(4), which give precedence to transitional regulations created under the 2000 Act over the transitional provisions in the 2000 Act, Schedule 10, if "the regulations so provide". I agree with Jagot J in Green that the 2004 Regulation does "so provide": the explanatory note to the 2006 amendment to the 2004 Regulation, introducing cl 29B identifies that it is made under Schedule 9, clause 1. 147Finally, the defendants persuasively submit that even if the Court were minded to grant the relief sought by the plaintiffs, it does not have the power to do so in this proceeding. The relief the plaintiffs seek may not be granted consistently with the provisions of the 2004 Regulation, Schedule 4A table which lists WAL's and SWAL's current share components. If the plaintiffs are successful, any orders this Court might make correcting the volume of their WAL and SWAL share components would mean that the table in the 2004 Regulation, Schedule 4A would have to be rewritten. But the plaintiffs do not challenge the validity of the 2004 Regulation. In my view the plaintiffs have not identified any basis on which this Court could rewrite it. 148The defendants put this argument in a slightly different way in oral submissions. Mr Hutley SC described the effect of 2004 Regulation, Schedule 4A as follows: "It [Schedule 4A] is the legislature saying, in effect, we have applied this formula and come to these conclusions. That is, we say, completely antithetical to a deeming position. It is really the legislature saying, for very sensible reasons, we give you contemporaneous evidence of what the meaning of this formula is and unless one was absolutely compelled to come to the contrary conclusion because it was absurd, for example, it is the best evidence or assistance a court could possibly have to the meaning of such a thing." 149The defendants' contention is that in Schedule 4A of the 2004 Regulation the legislature was providing a kind of "worked example" of the clause 25C methodology, is persuasive. After all, there could be many arguments apart from the one that the present plaintiffs advance, about possible permutations in the operation of clause 25C methodology. Showing the result of the calculation according to the Minister's calculator is a simple way of clarifying which of those many possible choices of methodology was used, in order to avoid all forms of future argument. 150The plaintiffs contest the conclusion that the WAL and SWAL share components were definitively prescribed in the 2004 Regulation, Schedule 4A table. In their submissions the table is said to be a deeming provision that only creates a rebuttable presumption: Macquarie Bank Ltd v Fociri Pty Limited (1992) 27 NSWLR 203, at 207-8, per Gleeson CJ. And such a presumption may be rebutted if it does not correspond with the correct outcome of the application of the 2003 Plan, clauses 25C and 25D. 151But at least one persuasive answer to this argument is that, even if the plaintiffs are right, there is no basis to rebut the presumption, because the Schedule 4A result is consistent with at least one available application of the methodology of clause 25C. Furthermore, it is difficult to see how this deeming provision creates a rebuttable presumption, in these circumstances. If the plaintiffs are successful, all the share components for the Lower Murrumbidgee will need to be recaulcated. 152The plaintiffs also submit that the defendants' interpretation of the operation of the 2004 Regulation, r 28B(2) would defeat the purpose of the legislative conversion scheme, namely, that the share component of each individual water access licence be determined pursuant to the formulas in the 2003 Plan, clauses 25C and 25D. They submit that if the share components in the 2004 Regulation, Schedule 4A are a result of an incorrect application of the 2003 Plan, clauses 25C and 25D formulas, that Schedule 4A should be amended to fit the scheme and allow it to operate rationally and according to the intention of the legislature, and the 2003 Plan, clauses 25C and 25D formulas should not be interpreted to fit the 2004 Regulation, Schedule 4A figures. 153But the answer to this argument is the same as the last: Schedule 4A is consistent with one available application of the methodology in Schedule 4A. 154The plaintiffs finally submit that Jagot J's decision in Green was incorrect and should not be followed. They submit that her Honour: (1) did not have regard to the authorities concerning statutory construction; (2) concluded that 2004 Regulation, r 29B(2) was exhaustive, notwithstanding any conflict between it and the relevant calculation formula and disregarded the more appropriate construction of the 2004 Regulation, r 29B as a rebuttable presumption; (3) erred in her analysis of the 2000 Act, Schedule 9 cl 1(4) because she did not take into account the fact that it operates only "If the regulations so provide", which, they say, 2004 Regulation, r 29B did not do; and (4) admitted that the approach she accepted as correct was cumbersome (Green at [47)]). None of these criticisms of her Honour's reasons is valid. In my view, with respect her Honour was correct in Green. The SWAL Share Component 155The relief the plaintiffs seek relates not only to the calculation of the share component of WAL, but also of SWAL, the supplementary access licence granted to them as part of the conversion of their 1912 Act licences into 2000 Act licences. They also submit that the Minister's calculation of SWAL's share component under clause 25D is incorrect, a conclusion that the defendants also dispute. 156The 2003 Plan, clause 25D formula for calculating SWAL includes as one of its elements the outcome of the calculation of HOE in clause 25C(6). Although the experts disagree slightly on the arithmetic, both Mr Ryan, called for the plaintiffs and Mrs Doughty, called for the defendants, agreed that if the plaintiff's approach were used for calculating HOE then the Plaintiffs would be entitled to a SWAL of 473 ML (Mr Ryan) or 447 ML (Mrs Doughty). If the defendants' approach is used the result of the SWAL calculation is the same as is set out in Schedule 4A of the 2004 Regulation, 250 ML. The defendants submit that the Minster's interpretation of the 2003 Plan, cl 25C(6) formula is wrong. The defendants' arguments in relation to SWAL rely on their submissions as to the correct calculation of their history of extractions the 2003 Plan, cl 25C(6). 157The parties accept that the rationale for creating supplementary licences in the 2000 Act was to make up for some of the shortfall between the quantum of the 1912 Act licence water entitlement and the reduced share components of the new 2000 Act during the better seasons, when the Minister determines that sufficient water resources are available in the Lower Murrumbidgee region to allow extraction of water under SWALs. 158The defendants submit that the 1912 Act licences (listed in the 2004 Regulation, Schedule 4A table Column 1), whose water entitlements were reduced as part of their conversion into the 2000 Act aquifer WALs, were deemed replaced not only by "an aquifer access licence with a share component of the volume specified in Column 2 [of the 2004 Regulation, Schedule 4A]", but also by "a supplementary water access licence with a share component of the volume specified in Column 3 [of the 2004 Regulation, Schedule 4A]": the 2004 Regulation, r 29B(2)(a) and (b). For the reasons already given, in my view the SWAL share components volumes specified in the 2004 Regulation Schedule 4A table Column 3 are deemed to be, and to have been, calculated in accordance with the methodologies in the 2003 Plan, cl 25D: 2004 Regulation, r 29B(3)(c). In these circumstances, the same considerations as govern the correctness of the WAL share component will govern the validity of the SWAL share component.

Some Observations on the Expert Evidence 159Each of the parties in these proceedings adduced expert evidence. Mrs Doughty prepared a report for the defendants, and Mr Ryan prepared a report for the plaintiffs. 160The expert gave opinion in relation to two questions: (1) whether for the purpose of the 2003 Plan, cl 25C conversion formula plaintiffs 1912 Act licences should be treated separately or amalgamated; and (2) assuming that they should be treated separately what are the correct share components of their WAL and their SWAL. 161After addressing each of those questions in separate reports, Mrs Doughty and Mr Ryan have helpfully summarised the differences between their approaches in a joint report. In the end they disagreed on two issues only: (1) how the history of extractions of the plaintiffs' licences should be calculated under the 2003 Plan, cl 25C(6)-(8) in the circumstances where each of those three licences had a different activation date; and (2) whether when calculating HOE under the 2003 Plan, cl 25C(6)-(8) separately for each of the plaintiffs 1912 Act licences it is appropriate to take into account any "carry-over" or "borrowing" of water entitlements in relation to those licences after the 2001 linking condition was introduced.

Calculation of Plaintiffs' History of Extractions 162This first matter on which Mrs Doughty and Mr Ryan disagree is the calculation of HOE under the 2003 Plan, cl 25C(6)-(8) in light of different activation dates of the plaintiffs' licences. Mr Ryan says that the 2003 Plan, cl 25C(6)-(8) does not provide any guidance as to how its formula should be applied to multiple linked licences with different activation dates. He further says because of that, the only way in which the formula may be applied to the plaintiffs' licences is by treating them separately and taking into account each of their activation dates. Mrs Doughty disagrees. She says that for the purposes of the 2003 Plan, cl 25C(6)-(8) the relevant activation date is the year of activation of the earliest licence activation. She does not rely on any particular provisions of the scheme. But she says that this approach follows from treating the three licences as amalgamated. 163This issue between the experts is the exact matter that the parties require the Court to resolve in these proceedings. Mrs Doughty's solution of this issue is consistent with the position taken by the defendants and the operation of the 2003 Plan, Appendix 4, Rule 10. And Mr Ryan's approach is consistent with the plaintiffs' position. But they both agreed in oral evidence that the resolution of this issue depends on the interpretation of the provisions of the legislative scheme. And this is a matter for the Court.

"Carry-over" or "borrowing" after the introduction of the linking condition 164The resolution of the second issue between the experts is relevant only if the plaintiffs succeed on their submission that the formula in the 2003 Plan, cl 25C(6)-(8) for calculating HOE should first be applied to each of their 1912 Act licences separately and the results should then be added. 165Applying that methodology, Mr Ryan calculated the plaintiffs' WAL share component as 2,829ML and their SWAL as 473ML. And Mrs Doughty calculated WAL's share component as 2,720 and SWAL's as 447ML. In the joint report Mr Ryan revised his calculations slightly to: 2,913ML for WAL and 494ML for SWAL. 166The difference between the results reached by the experts relates to one element of the calculation of the history of extractions in year 2001/2002. Mr Ryan and Mrs Doughty disagree whether in that year a "borrowing" occurred in relation to the Hutchins' licence. Mr Ryan says that in that year water was "borrowed". Mrs Doughty says no "borrowing" occurred. 167The "borrowing" to which the experts refer was regulated under 1912 Act, s 117G. But in light of the Court's earlier conclusions it is not necessary for the Court to decide this issue.

Conclusions and Orders 168In the result I decline to grant the plaintiffs the relief they seek and the plaintiffs fail on the separate question. 169Therefore the Court makes the following orders and directions:

1. I direct the parties to bring in short minutes of order to give effect to these reasons.
2. I will list the proceedings for any further argument, including as to costs, at 9.30am one morning this month by arrangement with my Associate on a date convenient to the parties.

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: 10 February 2014