Khan Owen Horne v The Water Administration Ministerial Corporation [2019] NSWLEC 1172 | Case summary

Land and Environment Court (NSW)|2019-03-15

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

REGISTRAR: By Notice of Motion filed on 8 March 2019 ('Motion') Mr Khan sought leave to: 1. file a separate Class 1 application form for each of the appeals against determination of the Controlled Work Approvals CW803604 (converted to 90FW322193) and CW803605 (converted to 90FW322194); 2. amend the name of the Respondent to "The Water Administration Ministerial Corporation" in lieu of "Natural Resources Access Regulator"; 3. amend the reference to the Act under which the proceedings are brought from s 171AA of the Water Act 1912 ('Water Act') to s 368 of the Water Management Act 2000 ('WM Act'); and 4. have the two Class 1 applications referred to in Order 1(a), 1(b) and 1(c) of the Motion, be heard and determined concurrently.
The substantive Class 1 proceedings concern an appeal by Mr Khan in relation to controlled work approvals 30CW803604 and 30CW803605 issued by the Natural Resources Access Regulator (the Controlled Works Approvals).
The parties are agreed that it would be appropriate for the Court to exercise its discretion to grant leave to Orders 1(a), 1(b) and 1(d) of the Motion (excluding the reference to Class 1 proceedings).
The issue in dispute in the Motion is whether the proceedings should properly be brought under Class 1 or Class 3 of the Land and Environment Court's jurisdiction.
On 15 March 2019, by way of an ex tempore decision, Orders 1(a) and 1(b) were made. On 29 March 2019, I determined that the proceedings are correctly brought under Class 1 of the Court's jurisdiction, pursuant to s 368 of the WM Act and Orders 1(c) and 1(d) made.
On 1 April 2019, the Respondent requested written reasons for the making of Order 1(c) as it may affect other applications.

Background

The relevant background regarding the issue in dispute is: 1. On or about 7 January 2014, the applications for the Controlled Works Approvals were lodged with the Natural Resources Access Regulator under (the since repealed) s 167 of the Water Act. 2. On 21 September 2015, Part 8 of the Water Act (which contained provisions relating to controlled works approvals) was repealed pursuant to Sch 7 of the WM Act. 3. On 18 December 2018, the Controlled Works Approvals were granted pursuant to saving provisions under the Water Act and the converted to 'flood work approvals' in accordance with Sch 10 of the WM Act.

Relevant legislative provisions

At the time of the Controlled Works Approvals were determined, Pts 6-8 of the Water Act had been repealed in accordance with Sch 7 of the WM Act.
Pursuant to s 403 of the WM Act states that "Schedules 9, 10 and 11 have effect" and provide savings provisions for the controlled works approvals.
Schedule 9, Part 7 of the WM Act provides a specific savings and transitional provision: 7 General Saving Subject to this Schedule and the regulations: (a) anything begun before the appointed day under a provision of the old legislation for which there is a corresponding provision in the amended legislation may be continued and completed under the old legislation as if this Act had not been enacted, and (b) subject to paragraph (a), anything done under a provision of the old legislation for which there is a corresponding provision in the amended legislation (including anything arising under paragraph (a)) is taken to have been done under the corresponding provision of the amended legislation.
Schedule 9, Part 2, cl 2 of the WM Act defines 'old legislation' as: 2 Definitions In this part "old legislation" means: (a) any Act repealed by Schedule 7, as in force immediately before its repeal, and (b) any Act amended by Schedule 8, as in force immediately before its amendment.
The Water Act satisfies the definition of 'old legislation' as it was repealed pursuant to Sch 7 of the WM Act.
Now turning to address the General Savings provisions in Sch 9, Pt 7 of the WM Act. The application for the Controlled Works Approvals was 'begun' before Pt 8 of the Water Act was repealed. As such, the Controlled Works Approvals are said to be approved under the provisions of the Water Act, as if the WM Act had not been enacted.
The savings provision in Sch 9, Pt 2, cl 7(b) of the Water Act operate in that the Controlled Works Approvals are presumed to have been converted to flood work approvals in accordance with Sch 10 of the WM Act, because Pt 8 of the Water Act was repealed after the applications for the Controlled Works Approvals were lodged.
As the Controlled Works Approvals are purported to be granted pursuant to Sch 10 of the WM Act, the appeal can be relevantly lodged to the Court under s 368(1)(h) of WM Act which states: 368 Appeals to Land and Environment Court (1) An appeal lies to the Land and Environment Court against any of the following decisions made by the Minister: … (h) a decision granting a designated approval, if the appellant was an objector to the granting of the approval
Section 17(c) of the Land and Environment Court Act 1979 ('LEC Act') stipulates that the Court has the ability, under Class 1 of its jurisdiction, to hear and dispose of "appeals under s 368 of the Water Management Act 2000."
It is the Respondent's view that the appeal should be appropriately commenced under Class 3 of the Court's jurisdiction in accordance with the provision of s 19(h) of the LEC Act which states: 19 Class 3-- land tenure, valuation, rating and compensation matters The Court has jurisdiction (referred to in this Act as "Class 3" of its jurisdiction) to hear and dispose of the following: … (h) any other appeals, references or other matters which an Act provides may be heard and disposed of by the Court, being appeals, references or other matters that are not referred to in any other section of this Part.
The Respondent's submission on this point relies upon the savings provision under Sch 10, Pt 4, cl 38(1) of the WM Act, being: 38 Pending applications defines (1) Any application for or in relation to an entitlement that was made under the provisions of the 1912 Act, the 1948 Act or the 1994 Act before the appointed day is to be dealt with under those provisions as if this Act had not been enacted.
The Respondent construes that the operation of cl 38 as extending beyond determining pending applications under s 171 of the Water Act. This submission was made on the basis that the natural and ordinary meaning of "be dealt with" includes all steps taken from that application being lodged until it is finalised, which in this case is an appeal before the Land and Environment Court.
The Respondent submits that s 30(1) of the Interpretation Act 1987 is applicable as that section confirms that the repeal of an Act does not affect any right or privilege acquired under a repealed Act or any legal proceeding or remedy in respect of any such right or privilege.
Section 30(1) expressly provides that legal proceedings may be instituted as if an Act had not been repealed. As such, the Respondent argues that commencement of the flood work approval provisions of the WM Act in place of the controlled work approval provisions in Part 8 of the Water Act should not change the appeal pathway from a determination made under the repealed legislation.
The Court's view is that the source of the right to appeal is a separate process to the 'applications' referred to in Sch 10, Pt 4, cl 38 of the WM Act.
I find that that the saving clause under Sch 10, Pt 4, cl 38 clearly stipulates that decision relates to only 'applications', not appeals.
During the hearing of this Motion, the Respondent questioned whether the Court had the power, or would be required, to assess the Controlled Works Approvals (granted under the Water Act) against the considerably different principles and provisions of the WM Act.
The Registrar does not have any inherent power or delegation to make any determination on this point, and it is also not necessary for me to do so in determining this Notice of Motion.
With this in mind, I do make the observation that Counsel for the Applicant made submissions during the hearing of the Motion regarding the conversion of entitlements arising from an application under the Water Act, to an approval under the WM Act under Sch 10, Pt 4, cl 38 of the WM Act. At the time of hearing this Motion, she was of the view that as subcl (3) of cl 38 states: 38 Pending applications (3) In relation to each entitlement arising from an application dealt with under this clause, the provisions of this Schedule apply to the entitlement, as from the date on which it arises, in the same way as they apply to an entitlement that was in force immediately before the appointed day. on appeal to the Court, the appeal is to be dealt with by the Court under the provisions of the Water Act.

Orders

I find that these proceedings are appropriately commenced under Class 1 of the Court's jurisdiction pursuant to s 368 of the WM Act and the orders of the Court are Order 1(c) of the Notice of Motion is made.

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: 17 April 2019

Khan Owen Horne v The Water Administration Ministerial Corporation

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