Nature Conservation Council of NSW Inc. v Minister for Water, Property and Housing

Catchwords

[1990] HCA 21 Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 23 FCR 536[1989] FCA 202 Austral Fisheries Pty Ltd v Minister for Primary Industries & Energy (1992) 27 ALD 633[1992] FCA 529 Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446[2005] FCA 1707 Azriel v NSW Land & Housing Corporation [2006] NSWCA 372 Cachia v Colaco (2003) 132 LGERA 62[2003] NSWLEC 364 Caldera Environment Centre Inc v Tweed Shire Council [1993] NSWLEC 102 Chandra v Webber (2010) 187 FCR 31[2010] FCA 705 Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1[2022] FCAFC 3 Drake-Brockman v Minister for Planning (2007) 158 LGERA 349[2012] NSWLEC 113 Fullerton Cove Residents Action Group Inc v Dart Energy Ltd (No 2) (2013) 195 LGERA 229[2013] NSWLEC 38 Gloucester Resources Ltd v Minister for Planning (2019) 234 LGERA 257[2019] NSWLEC 7 KEPCO Bylong Australia Pty Ltd v Independent Planning Commission (No 2) (2020) 247 LGERA 130[2020] NSWLEC 179 King v Great Lakes Shire Council (1986) 58 LGRA 366 Luu v Renevier (1989) 91 ALR 39[1989] FCA 518 McCormack v Deputy Commissioner of Taxation Large Business & International (2001) 114 FCR 574[2001] FCA 1700 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Judgment (28 paragraphs)

[1]

r-General of the Department Trade and Investment, Regional Infrastructure and Services (2011) 186 LGERA 342; [2011] NSWLEC 191 Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd [2021] NSWLEC 110 Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources (2005) 138 LGERA 11; [2005] NSWCA 10 Murrumbidgee Groundwater Preservation Association v Minister for Natural Resources [2004] NSWLEC 122 Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2017] NSWLEC 184 Nature Conservation Council of New South Wales Inc v Minister for Sustainable Natural Resources (2004) 133 LGERA 168; [2004] NSWLEC 33 Notaras v Waverley Council (2007) 161 LGERA 230; [2007] NSWCA 333 Pilato v Metropolitan Water Sewerage and Drainage Board (1959) 76 WN (NSW) 364 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; [1985] FCA 47 Randren House Pty Ltd v Water Administration Ministerial Corporation (No 3) [2018] NSWLEC 106 Ross v Lane [2021] NSWLEC 61 Ruangrong v Minister for Immigration and Ethnic Affairs [1988] FCA 87 Shellharbour and Botany Bay City Council v Minister for Planning and Infrastructure (2014) 201 LGERA 367; [2014] NSWCA 141 Shellharbour City Council v Minister for Planning (2011) 189 LGERA 348; [2011] NSWCA 195 Shellharbour City Council v Minister for Planning (No 2) [2011] NSWLEC 107 Telstra Corporation Ltd v ACCC (2008) 176 FCR 153; [2008] FCA 1758 Tickner v Bropho (1993) 40 FCR 183; [1993] FCA 208 Walsh v Parramatta City Council (2007) 161 LGERA 118; [2007] NSWLEC 255 Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 Category: Procedural rulings Parties: Nature Conservation Council of NSW Incorporated (ABN 96 716 360 601) (Applicant) Minister for Water, Property and Housing (First Respondent) Minister for Energy and Environment (Second Respondent) Representation: Counsel: R Beasley SC and J Taylor (Applicant) A Mitchelmore SC, A Shearer and C Trahanas (First and Second Respondents)

[2]

Solicitors: Environmental Defenders Office (Applicant) Department of Planning and Environment, Legal Branch (First and Second Respondents) File Number(s): 2021/282599

[3]

Judgment

The Applicant has commenced judicial review proceedings challenging the making of the Water Sharing Plan for the NSW Border Rivers Region Regulated River Water Source 2021 (NSW) (Border Rivers Plan) by the Minister for Water, Property and Housing (First Respondent) with the concurrence of the Minister for Energy and Environment (Second Respondent) on 2 July 2021. The Applicant's first ground of review alleges a failure of the respective Ministers to consider mandatory relevant considerations of climate change and climate change impacts, inter alia. Its second ground of review is based on irrationality or unreasonableness.
By Notice Of Motion (NOM) dated 4 February 2022 supported by an affidavit of Mr Huw Calford solicitor affirmed on 4 February 2022 the Applicant seeks an order that it be able to file three categories of expert evidence pursuant to r 31.19 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). The three categories are climate science, hydrology and freshwater ecology. The Respondents oppose the order sought by the Applicant.
I should note that I am determining whether evidence can be adduced as the Applicant seeks. I am not ruling finally on the admissibility of any evidence. That will ultimately be a matter for decision by the judge hearing the substantive proceedings.

[4]

Water Management Act 2000

The following sections of the Water Management Act 2000 (NSW) (WM Act) are relevant to the parties' arguments: Chapter 1 Preliminary … 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 … Chapter 2 Water management planning Part 1 General Division 1 Water management principles 5 Water management principles … (2) Generally - (a) water sources, floodplains and dependent ecosystems (including groundwater and wetlands) should be protected and restored and, where possible, land should not be degraded, and (b) habitats, animals and plants that benefit from water or are potentially affected by managed activities should be protected and (in the case of habitats) restored, and (c) the water quality of all water sources should be protected and, wherever possible, enhanced, and (d) the cumulative impacts of water management licences and approvals and other activities on water sources and their dependent ecosystems, should be considered and minimised, and … (h) the principles of adaptive management should be applied, which should be responsive to monitoring and improvements in understanding of ecological water requirements. (3) In relation to water sharing - (a) sharing of water from a water source must protect the water source and its dependent ecosystems, and (b) sharing of water from a water source must protect basic landholder rights, and (c) sharing or extraction of water under any other right must not prejudice the principles set out in paragraphs (a) and (b). … Division 2 State Water Management Outcomes Plan and water source classification … 8 Environmental water (1) For the purposes of this Act, environmental water comprises the following - (a) water that is committed by management plans for fundamental ecosystem health or other specified environmental purposes, either generally or at specified times or in specified circumstances, and that cannot to the extent committed be taken or used for any other purpose (planned environmental water), … Division 3 General 9 Act to be administered in accordance with water management principles and State Water Management Outcomes Plan (1) It is the duty of all persons exercising functions under this Act - (a) to take all reasonable steps to do so in accordance with, and so as to promote, the water management principles of this Act, and (b) as between the principles for water sharing set out in section 5 (3), to give priority to those principles in the order in which they are set out in that subsection. … Part 3 Management plans … Division 2 Water sharing … 20 Core provisions (1) The water sharing provisions of a management plan for a water management area or water source must deal with the following matters - (a) the establishment of environmental water rules for the area or water source, (b) the identification of requirements for water within the area, or from the water source, to satisfy basic landholder rights, (c) the identification of requirements for water for extraction under access licences, (d) the establishment of access licence dealing rules for the area or water source, (e) the establishment of a bulk access regime for the extraction of water under access licences, having regard to the rules referred to in paragraphs (a) and (d) and the requirements referred to in paragraphs (b) and (c). (2) The bulk access regime referred to in subsection (1) (e) - (a) must recognise and be consistent with any limits to the availability of water that are set (whether by the relevant management plan or otherwise) in relation to the water sources to which the regime relates, and (b) must establish rules according to which access licences are to be granted and managed and available water determinations to be made, and (c) must recognise the effect of climatic variability on the availability of water, and (d) may establish rules with respect to the priorities according to which water allocations are to be adjusted as a consequence of any reduction in the availability of water, and (e) may contain provisions with respect to the conditions that must (as mandatory conditions) be imposed on access licences under section 66 (1), including conditions providing for the variation, from time to time, of the share and extraction components of access licences, and (f) must be consistent with the water management principles. (3) The rules referred to in subsection (2) (d) must comply with the priorities established under section 58. (4) The access licence dealing rules established under subsection (1) (d) - (a) must comply with the access licence dealing principles, and (b) must not deal with any matter for which the access licence dealing principles may make provision under section 71Z (2), and (c) subject to paragraph (b) and the access licence dealing principles, may regulate or prohibit any dealing under Division 4 of Part 2 of Chapter 3. 21 Additional provisions The water sharing planning provisions of a management plan for a water management area or water source may also deal with the following matters - (a) the rates, times and circumstances under which water may be taken from any water source in the area, or the quantity of water that may be taken from any water source in the area or delivered through the area, (b) the kinds of water supply works that may be constructed and used in the area, (c) the operation of water accounts for the area or water source, such as the carrying over of credits from one accounting period to the next, the maximum credit that may be allowed to accumulate in any account and the withdrawal of water from any account by reason of evaporation or dam spill or in such other circumstances as may be prescribed by the regulations, (d) water sharing measures for the protection and enhancement of the quality of water in the water sources in the area or for the restoration or rehabilitation of water sources or their dependent ecosystems, (e) measures to give effect to the water management principles and the objects of this Act, (e1) measures, not inconsistent with this Act, that are necessary because of requirements arising under the Water Act 2007 of the Commonwealth, (f) such other matters as are prescribed by the regulations. … Part 4 Minister's plans 50 Minister's plan (1) The Minister may, by order published on the NSW legislation website, make a plan (a Minister's plan) - (a) for any part of the State that is not within a water management area, or (b) for any water management area or water source, or part of a water management area or water source, for which a management plan is not in force, or (c) for any water management area or water source, or part of a water management area or water source, for which a management plan is in force, but only so as to deal with matters not dealt with by the management plan. … (2) A Minister's plan must in general terms deal with any matters that a management plan is required to deal with, and may also deal with any other matters that a management plan is authorised to deal with, other than matters that are already dealt with by a management plan. (2A) Part 3 (except sections 15 and 36-41) applies to a Minister's plan. However, the Minister - (a) may adopt any of the provisions of sections 36-41 in a particular case, and (b) may dispense with a particular requirement of Part 3 in the case of a Minister's plan referred to in subsection (1A). (3) Before making a Minister's plan, the Minister must obtain the concurrence of the Minister for the Environment to the making of the plan. (4) Except to the extent to which this Act otherwise provides, a Minister's plan has the same effect as a management plan. (5) The Minister may decide whether to make a Minister's plan or a management plan in respect of any matter (whether or not any draft management plan has been submitted to the Minister).

[5]

Uniform Civil Procedure Rules 2005

The following rules in the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) are relevant: Part 31 Evidence … Division 2 Provisions applicable to expert evidence generally Subdivision 1 Preliminary 31.17 Main purposes of Division The main purposes of this Division are as follows - (a) to ensure that the court has control over the giving of expert evidence, (b) to restrict expert evidence in proceedings to that which is reasonably required to resolve the proceedings, (c) to avoid unnecessary costs associated with parties to proceedings retaining different experts, (d) if it is practicable to do so without compromising the interests of justice, to enable expert evidence to be given on an issue in proceedings by a single expert engaged by the parties or appointed by the court, (e) if it is necessary to do so to ensure a fair trial of proceedings, to allow for more than one expert (but no more than are necessary) to give evidence on an issue in the proceedings, (f) to declare the duty of an expert witness in relation to the court and the parties to proceedings. … Subdivision 2 Expert witnesses generally 31.19 Parties to seek directions before calling expert witnesses (1) Any party - (a) intending to adduce expert evidence at trial, or (b) to whom it becomes apparent that he or she, or any other party, may adduce expert evidence at trial, must promptly seek directions from the court in that regard. (2) Directions under this rule may be sought at any directions hearing or case management conference or, if no such hearing or conference has been fixed or is imminent, by notice of motion or pursuant to liberty to restore. (3) Unless the court otherwise orders, expert evidence may not be adduced at trial - (a) unless directions have been sought in accordance with this rule, and (b) if any such directions have been given by the court, otherwise than in accordance with those directions. (4) This rule does not apply to proceedings with respect to a professional negligence claim. …

[6]

Summons dated 1 October 2021

The lengthy summons identifies the parties, when the Border Rivers Plan was made, over what geographical areas it was made and describes the statutory context by reference to ss 3, 5 and 9 of the WM Act. The summons then sets out an extensive recitation of certain matters in pars 19-82 under the headings: 1. "Water sources and dependent ecosystems in the Border Rivers Region" (pars 19-26); 2. "The impacts of climate change on water resources in the Border Rivers" (pars 27-51). Subheadings specified are: 1. The assumption of stationarity is no longer valid. 2. Climate Change Modelling. 3. Climate Change Impacts. 4. Historical knowledge of Climate Change and Climate Change Impacts. 5. Climate Change Impacts are likely already occurring. 6. Extractions [of water] and climate change. 1. "LTAAEL and SDL", in full, the 'Long-term Average Annual Extraction Limit' and 'Sustainable Diversion Limit' (pars 52-65). Topics covered are that the setting of the LTAAEL under cl 27 of the Border Rivers Plan fails to take into account Climate Change or Climate Change Impacts and that the Murray-Darling Basin wide SDL and the SDL for the Border Rivers Catchment have been set above the level required to protect water sources and water dependent ecosystems in the Border Rivers, with no incorporation of climate change considerations; 2. "Environmental flow rules and supplementary water events" (pars 66-70). The subject of this section of the summons is essentially that supplementary access rules and environmental flow rules have not been developed in light of Climate Change or Climate Change Impacts and may not protect the water source, water-dependent ecosystems and hydrologically connected systems in light of Climate Change and Climate Change Impacts; 3. "Basic Landholder Rights" (pars 71-82). This section deals with inter alia: 1. the requirements that the Border Rivers Plan places on the operator of the water supply system in such a way that water would be able to be supplied during a repeat of the lowest accumulated inflows to the water source to meet domestic and stock rights and native title rights (basic landholder rights); available water determinations of share components for domestic and stock access licences and local water utility access licences; and available water determinations for unit shares of regulated river (high security) access licences; 2. the definition of reserves of water; 3. the most severe drought on record in the Border Rivers in 2017-2019; 4. the drought was partly attributable to Climate Change, and that if the most recent drought and Climate Change Impacts were taken into account under cl 57(2) of the Border Rivers Plan, greater volumes of water would be required to be set aside for uses set out in cl 57(2) than are currently required to be set aside and the volumes of water available to general security licence holders would be reduced correspondingly; 5. reliance on the historical record risks insufficient reserves being set aside for basic landholder rights.

[7]

Amended response to summons

The Respondents variously admit or deny pars or parts of pars in the summons. The Respondents were given leave to rely on an amended response to summons dated 30 March 2022 (amended response) adding a new par 18A, which states as follows: Merits of the matters of fact and opinion alleged in the Summons 18A In answer to paragraphs 19-30, 32-51, 60, 62, 65, 69, 70, 76-82 and 90 of the Summons, the Respondents: a. say that those paragraphs allege matters of fact or opinion; b. say that, to the extent that the First Respondent considered those matters of fact or opinion to be relevant in deciding whether to make the Border Rivers Plan under s 50 of the WM Act: i. it was open to her to consider and form a view about them; and ii. the merits of any such view is not susceptible to challenge or contradiction as part of any challenge to that decision in these proceedings; c. say that, to the extent that the Second Respondent considered those matters of fact or opinion to be relevant in deciding whether to provide concurrence to the Border Rivers Plan under s 50(3) of the WM Act: i. it was open to him to consider and form a view about them; and ii. the merits of any such view is not susceptible to challenge or contradiction as part of any challenge to that decision in these proceedings; d. further to paragraphs (a)-(c) above, say that the matters of fact or opinion alleged in paragraphs 19-30, 32-51, 60, 62, 65, 69, 70, 76-82 and 90 of the Summons are: i. irrelevant to the grounds of review to the extent that the applicant is seeking to defend the merits of those matters of fact or opinion; and ii. embarrassing because of the generalised nature of the allegations in those paragraphs and because these proceedings are judicial review proceedings which cannot traverse the merits of those matters.
It is not necessary for the resolution of this NOM to further set out the Respondents' amended response.

[8]

Topics for expert evidence

The issues to be addressed by each of the areas of expertise cross-referenced with the summons were contained in a table marked "Annexure A" to the NOM. As a result of discussions during and following the hearing of the motion, the topics have been much reduced and are identified in a table marked "Further Amended Annex A to the Notice of Motion" dated 30 March 2022. The topics are broadly climate science, hydrology, and freshwater ecology.
The amended Annexure A is as follows with footnotes placed in square brackets: Areas of expert evidence Issue for expert consideration Relevant paragraph(s) of Applicant's Summons (AS) Climate Science a) 36-44, 47, 61, The following concepts: 62, 67, 70, 80,

             a) Climate Change Impacts [Defined at [36] of the AS]; and                                                                                                                                                                                                      87, 88, 90-94,
             b) climatic variability.                                                                                                                                                                                                                                        97 & 98
                                                                                                                                                                                                                                                                             b) 36(a)

             The length of time for which there has been scientifically robust projections of the impact of Climate Change that could be incorporated into modelling of water availability in the Murray-Darling Basin, including the Border Rivers.                         42

[9]

Border Rivers Plan

The Border Rivers Plan was tendered (Ex A).
The Border Rivers Plan contains, amongst other things: 1. environmental water provisions to commit, identify, establish and maintain planned environmental water: see Pt 4. "Planned environmental water" is water that is committed by management plans for fundamental ecosystem health or other specified environmental purposes, either generally or at specified times or in specified circumstances, and that cannot to the extent committed be taken or used for any other purpose: WM Act, s 8(1)(a); 2. rules for managing the availability of water for extraction in accordance with (i) a long-term average annual extraction limit (LTAAEL) and (ii) a long-term average annual sustainable diversion limit (SDL): see Pt 6; 3. the circumstances in which the taking of water pursuant to supplementary water access licences is authorised: see Pt 8, Div 2; 4. rules regarding daily environmental releases and stimulus flow: see Pt 10, Div 1; and rules relating to the maintenance of water supply: see Pt 10, Div 3.
Various sections of the Border Rivers Plan were referred to and are extracted as follows: … 2 Nature and status of Plan (1) This Plan is made under section 50 of the Water Management Act 2000 (the Act). (2) This Plan is a replacement management plan for the purposes of subsection 43(4) of the Act in relation to the NSW Border Rivers Regulated River Water Source and replaces the Water Sharing Plan for the NSW Border Rivers Regulated River Water Source 2009. (3) This Plan is a plan for water sharing and generally deals with the matters set out in sections 20 and 21 of the Act, as well as other sections of the Act. … 4 Application of Plan … (2) The water in the water source consists of the water between the bed and banks of all rivers that have been declared by the Minister to be regulated rivers and that is available to New South Wales under the terms of the New South Wales - Queensland Border Rivers Act 1947, the Border Rivers Agreement 1946 under the Schedule to that Act, and the New South Wales - Queensland Border Rivers Intergovernmental Agreement 2008 (the IGA), from: (a) the Pindari Dam water storage downstream to the Pindari Dam wall, (b) the Severn River from the Pindari Dam wall downstream to its junction with the Macintyre River, (c) the Macintyre River from its junction with the Severn River downstream to the junction of the Barwon River, (d) the Barwon River from its junction with the Macintyre River downstream to Mungindi Weir, (e) the Dumaresq River from its junction with Pike Creek downstream to the junction of the Macintyre River. … 7 Vision statement The vision for this Plan is to provide for the following: (a) the health and enhancement of the water source and its water-dependent ecosystems, (b) the continuing productive extraction of surface water for economic benefit, (c) the spiritual, social, customary and economic benefits of surface water to Aboriginal communities, (d) social and cultural benefits to urban and rural communities that depend on surface water. … 8 Environmental objectives (1) The broad environmental objective of this Plan is to protect and contribute to the enhancement of the ecological condition of the water source and its water- dependent ecosystems over the term of this Plan. (2) The targeted environmental objectives of this Plan are as follows: (a) to protect and contribute to the enhancement of the following over the term of this Plan: (i) the recorded distribution or extent, and the population structure of, target ecological populations, (ii) the longitudinal and lateral connectivity within and between water sources to support target ecological processes, (iii) water quality within target ranges for the water source to support water-dependent ecosystems and ecosystem functions, (b) support environmental watering in the water source to contribute to maintaining or enhancing ecological condition in streams, riparian zones, dependent wetlands and floodplains. (3) The strategies for reaching the targeted environmental objectives of this Plan are as follows: (a) maintain compliance with the long-term average annual extraction limit and the long-term average sustainable diversion limit, (b) reserve a share of water to partially mitigate alterations to natural flow regimes in the water source, (c) reserve a share of water to maintain longitudinal and lateral connectivity within and between the water sources, (d) reserve a share of water to support environmental watering events in streams, riparian zones, floodplains and wetlands connected to the water source. … Part 3 Bulk access regime … 13 Climatic variability This Plan recognises the effects of climatic variability on river flow in the water source through provisions contained in Part 6 that: (a) manage the sharing of water within the limits of water availability on a long-term basis, and (b) establish priorities according to which water allocations are to be adjusted as a consequence of any reduction in the availability of water due to an increase in extraction against the long-term average annual extraction limit or the long-term sustainable diversion limit, and (c) manage the sharing of water between categories of access licences on an annual basis through available water determinations. … Part 6 Limits to availability of water Division 1 Calculations under this Part 26 Exclusions, inclusions and variations in calculations (1) This clause applies to the calculation of the following: (a) the long-term average annual extraction limit under clause 27, (b) long-term average annual extraction under clause 28, (c) the annual permitted take under clause 31, (d) the annual actual take under clause 31. … Division 2 Long-term average annual extraction limit 27 Calculation of the long-term average annual extraction limit (1) Following the end of each water year, the Minister must calculate the long-term average annual extraction limit for the water source in accordance with this clause and clause 26. (2) The long-term average annual extraction limit is the lesser of the following: (a) long-term average annual extraction calculated based on the following: (i) the water storages and water use development that existed in the 2001/2002 water year, excluding that which is the subject of subclause (v), (ii) the basic landholder rights and access licence share components that existed on 1 July 2009, (iii) the rules set out in the Water Sharing Plan for the NSW Border Rivers Regulated River Water Source 2009 as at 1 July 2009, (iv) the level of development for plantation forestry that existed on 1 July 2009, (v) the level of development for floodplain harvesting that existed in the 2001/2002 water year in connection with extractions from a regulated river in the water source, as assessed by the Minister, (b) long-term average annual extraction calculated under Cap baseline conditions as agreed under the Murray-Darling Basin Agreement that was in place at the commencement of the Water Sharing Plan for the NSW Border Rivers Regulated River Water Source 2009. (3) For the purposes of subclause (2), the long-term average annual extraction limit is to be calculated over the duration of available climate records using the plan limit hydrological computer model approved by the Minister. … Part 10 System operation rules … Division 3 General system operation rules 57 Maintenance of water supply (1) In this clause, the period of lowest accumulated inflows to the water source is identified by flow information held by the Department prior to 1 July 2009. (2) The operator must operate the water supply system in such a way that water would be able to be supplied during a repeat of the period of lowest accumulated inflows to the water source, to meet the following: (a) the annual water requirements of persons exercising domestic and stock rights and native title rights, (b) available water determinations of 100% of share components for domestic and stock access licences and local water utility access licences, (c) available water determinations of 1 ML per unit share for regulated river (high security) access licences. (3) For the purpose of subclause (2), the operator must set aside sufficient volumes of water from inflows into the water source and in reserves held in Pindari Dam and Glenlyon Dam water storages. …

[10]

Affidavit of Mr Huw Calford

Mr Calford solicitor for the Applicant affirmed a brief affidavit in support of the NOM dated 4 February 2022. The affidavit described the procedural history of the proceedings including the filing of the summons on 1 October 2021, the response to summons on 3 December 2021, and directions I made on 17 December 2021 in preparation for the hearing of this motion.

[11]

Applicant's submissions

The two rationales for why expert evidence in three categories is reasonably necessary in the present proceedings are: 1. the need to explain the meaning of various technical terms used in the Applicant's summons and/or in the material that was before the Respondents; and 2. the grounds of review relating to unreasonableness and irrationality, which require an explanation of the effect of the Respondents' decisions.
By way of broad and general overview, the Applicant's case is that: 1. likely climate change impacts are projected to result in, inter alia, less water flowing into streams and rivers in the Border Rivers Catchment and increased evapotranspiration, resulting in less water being captured in public storages and less water being available for consumptive and environmental uses. Lower water availability throughout the Border Rivers Catchment will in turn negatively affect water dependent ecosystems and hydrological connectivity, and will result in a threat of irreversible environmental damage to water sources and dependent ecosystems in the Border Rivers catchment and hydrologically connected systems; 2. these climate change impacts have been modelled by the then NSW Department of Planning, Industry and Environment; 3. the climate change impacts were not, however, taken into account - as they were bound to be - by the First Respondent when making the Border Rivers Plan or by the Second Respondent in providing concurrence to the making of the Border Rivers Plan; or alternatively, 4. if climate change impacts were taken into account, and having regard to ss 5 and 9 of the WM Act in particular, the Respondents could not rationally or reasonably have made the Border Rivers Plan in its current form, including because: 1. the Border Rivers Plan calculates the amount of "planned environmental water", supplementary access rules and environmental flow rules using the assumption of stationarity and based on historical climate records rather than future or likely climate change impacts, with the result that they are unlikely to protect the water source and water dependent ecosystems in the Border Rivers and hydrologically connected systems; and 2. the Border Rivers Plan requires an amount of water to be reserved in water storages to fulfil basic landholder rights, which amount is calculated based on the period of lowest accumulated inflows to the water source predating 1 July 2009 (i.e. excluding the most severe drought on record in the Border Rivers which occurred in 2017-2020 or likely future severe droughts caused by climate change), which risks insufficient reserves being set aside for basic landholder rights; and 1. the Respondents had the means to calculate likely climate change impacts as these had been modelled by the then Department of Planning, Industry and Environment.

[12]

Expert evidence can be admitted in judicial review proceedings in certain circumstances

The Applicant accepts that expert evidence is not automatically available in judicial review proceedings. Nevertheless, there is no general rule against the admission of expert evidence in judicial review cases: Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2017] NSWLEC 184 (Musswellbrook) at [42] (Preston CJ of LEC). Expert evidence has been admitted in a large number of judicial review cases, including Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 23 FCR 536; [1989] FCA 202 at 540 (Lockhart J); Austral Fisheries Pty Ltd v Minister for Primary Industries & Energy (1992) 27 ALD 633; [1992] FCA 529 (O'Loughlin J), affirmed on appeal in Minister for Primary Industries & Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381; [1993] FCA 46; Farley Environment care Inc. v HL Fry Properties Pty Ltd [2021] NSWLEC 77 (Farley) at [22], [40]-[41] (Pain J); Friends of King Edward Park Inc v Newcastle City Council (2012) 194 LGERA 226; [2012] NSWLEC 113 (Friends of King Edward Park) at [90] (Biscoe J).
As UCPR r 31.17 and case law makes plain, in some instances expert evidence is "reasonably required to resolve" the proceeding (r 31.17(b)): see, for example, Friends of King Edward Park at [90] (Biscoe J). While case law sheds light on when such expert evidence may be reasonably required, each case will turn on its own unique facts and circumstances, the nature of the evidence proposed to be called as well as the grounds of review: Arnold v Minister Administering the Water Management Act 2000 (No 6) [2013] NSWLEC 73 (Arnold No 6) at [123] (Biscoe J), cited with approval in Muswellbrook at [42] (Preston CJ of LEC); McCormack v Deputy Commissioner of Taxation Large Business & International (2001) 114 FCR 574; [2001] FCA 1700 at [38] (Sackville J); Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446; [2005] FCA 1707 (Weinberg J) (ARA v RBA) at [457]-[459]; Chandra v Webber (2010) 187 FCR 31; [2010] FCA 705 (Chandra v Webber) at [40]-[42] (Bromberg J).
Expert evidence is reasonably needed because of the highly scientific, technical and complex nature of water management and the WM Act, the nature of the Applicant's pleaded case and the amended response. Expert evidence has previously been admitted in relation to judicial review cases dealing with the WM Act: see Murrumbidgee Groundwater Preservation Association v Minister for Natural Resources [2004] NSWLEC 122 (Murrumbidgee Groundwater) (McClellan CJ), although this case did not expressly address the issues of admissibility of expert evidence in judicial review proceedings; affirmed on appeal in Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources (2005) 138 LGERA 11; [2005] NSWCA 10; Randren House Pty Ltd v Water Administration Ministerial Corporation (No 3) [2018] NSWLEC 106 (Randren House) at [27], [34] (Molesworth AJ). In one case, this Court noted that in the context of the statutory scheme of the WM Act, including the Act's objects in s 3 and the water management principles in s 5 (in that case, s 5(2)), the Court would "be assisted when considering the contextual decision-making process issues": Randren House at [27] (Molesworth AJ). The Applicant placed particular emphasis on Arnold No 6 (Biscoe J) at [123]-[130] (Tcpt, 21 February 2021, p20(24-46)).

[13]

Technical terms make expert evidence necessary

Expert evidence explaining factors, principles or materials relevant to the decision has in some circumstances been allowed to be adduced: Caldera Environment Centre Inc v Tweed Shire Council [1993] NSWLEC 102 (Caldera) (Talbot J); Muswellbrook at [25], [41]. Evidence concerning technical terms in material before the decision-maker can be allowed: ARA v RBA at [467] (Weinberg J), cited with approval in Arnold No 6 at [128] (Biscoe J); Chandra v Webber at [45]; Telstra Corporation Ltd v ACCC (2008) 176 FCR 153; [2008] FCA 1758 at [50]-[51] (Rares J).
The Court of Appeal's decision in Shellharbour City Council v Minister for Planning (2011) 189 LGERA 348; [2011] NSWCA 195 (Shellharbour CA) does not stand in the way of allowing expert evidence to explain technical terms in this case. In Shellharbour CA the expert evidence was allegedly needed to explain what was meant by expressions in a State Environmental Planning Policy. In this case, the terms sought to be explained are scientific terms that cannot sensibly be addressed by a court without expert evidence (Tcpt, 21 February 2022, p16(8-30)).

[14]

Unreasonableness/irrationality ground requires expert evidence

Courts have allowed expert evidence in relation to the judicial review ground of unreasonableness: Arnold No 6 at [120], [124] (Biscoe J); Muswellbrook at [42] [44] (Preston CJ). Evidence may be admissible to establish what a decision-maker ought reasonably to have done in the course of the decision-making process and if it is relevant to the proposition that on the material before the decision-maker, the decision was manifestly unreasonable: King v Great Lakes Shire Council (1986) 58 LGRA 366 (Great Lakes) at 371 (Cripps CJ); Arnold No 6 at [124].
In Friends of King Edward Park at [75], Biscoe J made clear that the limited exceptions to the general rule depending on the circumstances of the case include where the ground of review is manifest unreasonableness, within which exception the Applicant's case falls (Tcpt, 21 February 2022, p22(1-3)). Molesworth AJ in Randren House at [27], paraphrasing Talbot J in Caldera made a similar observation that expert evidence to show what a decision-maker acting reasonably ought to have done falls within an exception to the rule disallowing expert evidence in judicial review proceedings. Preston CJ in Muswellbrook allowed expert evidence in judicial review proceedings in relation to the same ground of review.
All of these reasons apply to the Applicant's case. In order to understand the unreasonableness ground, the Court needs to understand for example, whether the Border Rivers Plan protects, or whether the Respondents could reasonably have believed that the Border River Plan would protect, the water source and its dependent ecosystems (see s 5(3)(a)) and basic landholder rights (see s 5(3)(b)). This requires a consideration of climate change and climate change impacts on the Border Rivers Region. The nature of these likely climate change impacts, and their interaction with the likely impacts of the Border Rivers Plan, on the relevant water sources and dependent ecosystems are complex matters which require an understanding of the matters discussed below, including the extent to which various aspects of the Border Rivers Plan are based on the assumption of stationarity and whether that assumption is valid in the face of climate change, and a range of interrelated likely environmental impacts and consequences.
Moolarben Coal Mines Pty Ltd v Director-General of the (former) Department of Industry and Investment NSW (Agriculture Division); Moolarben Coal Mines Pty Ltd v Director-General of the Department Trade and Investment, Regional Infrastructure and Services (2011) 186 LGERA 342; [2011] NSWLEC 191 (Moolarben) was a decision of Moore AJ in which his Honour rejected expert evidence tendered in relation to manifest unreasonableness. Biscoe J in Arnold No 6 at [134], [137] did not consider Moore AJ to be correct and Biscoe J's conclusion is correct (Tcpt, 21 February 2022, p21(1-14)).

[15]

Specific requirement for expert evidence on each item pressed

Item 1 proposes that expert evidence be adduced to elucidate the concepts of "climate change impacts" and "climatic variability" (as opposed to climate change). These terms (and similar, such as "climate impacts") were used in documents before the Respondents, including the Draft NSW Water Strategy dated February 2021 (Draft Water Strategy). These concepts are also picked up and relied on in the summons. An explanation of these technical terms will assist the Court in understanding both the material before the Respondents and the nature of the Applicant's case.
Item 6 is directed to the length of time for which there has been scientifically robust projections of the impact of climate change that could be incorporated into modelling of water availability. The Applicant alleges that there has been sufficiently robust projections for at least the past decade (summons par 42), which the Respondents do not admit. This is necessary to understanding the reasonableness (or otherwise) of the approach taken by the Respondents in relation to various aspects of the Border Rivers Plan.
Item 7 proposes that expert evidence be adduced to elucidate the concept of "stationarity". "Stationarity" is a central concept to the Applicant's case and is used in the summons. An explanation of that technical term will assist the Court in understanding both the material before the Respondents and the nature of the Applicant's case.
Item 8 is directed to the extent to which climate change renders the assumption of stationarity redundant for the purpose of hydrological modelling. The Respondents deny that climate change means that historical patterns in the climate record cannot be relied on to predict future climatic patterns (amended response par 29). Issues relating to stationarity were raised in the materials before the Respondents, including in the First Respondent's commissioned review of the relevant climate change modelling (summons par 33(e)). This issue is central to the Applicant's unreasonableness ground and the Court would be assisted in understanding the complexities of it, particularly as it relates to hydrological modelling.
Item 9 is directed to the extent to which the Long-term Average Annual Extraction Limit (LTAAEL) as set out in cl 27 of the Border Rivers Plan is based on an assumption of stationarity (summons par 58(d)).

[16]

Respondents' pleadings underscore need for expert evidence

The Respondents have in their amended response admitted the text of the various documents pleaded as particulars in the summons, but to not admit the fundamental evidentiary basis upon which the Applicant puts its claim. This is another reason expert evidence is required as there is a difference between an admission of text and an admission of the underlying claim in the summons (Tcpt, 21 February 2022, p6(46-50)-7(1-15)).

[17]

The documents do not speak for themselves

In reply to the Respondents' submissions below in [55], [72], [79], the Applicant submitted that the documents particularised at par 83 of the summons do not speak for themselves. The documents speak of highly complex and technical concepts and the Court will find it difficult to make determinations without the assistance of expert evidence (Tcpt, 21 February 2022, p50(25-44)).
Moreover, many items in the amended Annexure A pick up pars in the summons where no document has been particularised and to which no admission was made by the Respondents (Tcpt, 21 February 2022, p51(3-50), p52(1-31)). For example, Item 6, picking up summons par 42, was not admitted and not particularised by reference to a document. The same can be said for Item 7 (stationarity), 8 and 9. In relation to Item 9, picking up summons par 58(d), this was not particularised by reference to a document and the Respondent. Item 11, picking up summons par 64, is similar. The same applies to Item 12, picking up the summons pars 57-61, Item 21, picking up summons pars 40, 48 and 50, and Item 23, picking up summons pars 26 and 47.
I note that the Applicant's submission above in [48] appears not entirely correct in some respects. It is true that Items 6, 9, 11, 12, and 21 as pleaded do not particularise documents before the Respondents. Nevertheless Item 7(e) relating to stationarity picks up inter alia pars 29, 30 and 33(e) of the summons, which do particularise documents. Item 8 picks up pars 29 and 33(e) of the summons, which as just noted particularise documents. Item 23 picks up par 26, which particularises a document.

[18]

Respondents' submissions

Ordinarily, evidence and documents that do not form part of the record before the original decision-maker are not admissible in subsequent judicial review proceedings: see, eg, ARA v RBA at [442], [454] (Weinberg J); Chandra v Webber at [40]. This constraint has been recognised in judicial review proceedings in this Court, including recently in Ross v Lane [2021] NSWLEC 61 (Ross) at [19] (Pepper J) and Farley at [36] (Pain J). The constraint is a necessary concomitant to the principle that judicial review is not concerned with the merits of the decision but with the lawfulness of the decision made: Azriel v NSW Land & Housing Corporation [2006] NSWCA 372 at [49]; Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 at 35-36.
Where expert evidence in judicial review proceedings is not reasonably required to resolve the grounds of review leave under r 31.19 should not be given: Shellharbour CA; Botany Bay City Council v Minister for Planning and Infrastructure (2014) 201 LGERA 367; [2014] NSWCA 141 (Botany Bay). In Shellharbour City Council v Minister for Planning (No 2) [2011] NSWLEC 107 Pain J rejected an application for leave to rely upon expert evidence in judicial review proceedings in Class 4 of this Court's jurisdiction. The expert evidence in question was technical, scientific evidence as to the meaning of certain terms. In so doing, her Honour referred to the purpose of the requirement for leave in r 31.19 of the UCPR, and to authority indicating that "the expert evidence has to be reasonably required to resolve the issue in the proceedings": at [6]. At [7], Pain J made the observation that "[t]he experience of the Court generally is that expert evidence in judicial review proceedings... is of very limited assistance".
In Shellharbour CA, the Court of Appeal unanimously refused leave to appeal the decision of Pain J. Justice Hodgson (Giles and Campbell JJA agreeing) observed at [29] that the primary judge "could properly take the view that a substantial contest of experts would be a waste of time and money, having regard to her assessment of the unlikelihood that it could be of assistance". In concurring supplementary reasons, Giles JA (Campbell JA agreeing) rejected a submission that, for leave to be granted under r 31.19, it need only be demonstrated that the evidence in question might be relevant and admissible. His Honour stated at [35] (emphasis added): It should be made clear that this is not the correct approach to directions under r 31.19 of the UCPR. The primary purpose of the rule is to control the calling of expert evidence, restricting it to that which is reasonably required to resolve the proceedings having regard to the admonition of just, quick and cheap. That evidence may be relevant and admissible is not enough, let alone that it is possible to argue that it is relevant and admissible.

[19]

Framing of summons means expert evidence not reasonably required

The Applicant has framed the summons in a manner that (appropriately, given the nature of the claims) does not reasonably require expert evidence. Summons pars 19-81 pleads numerous matters of fact or opinion. Summons par 83 states that "[t]he Respondents had available to them, or ought to have had available to them, information setting out the matters pleaded at paragraphs [19]-[81] above" and particularises 21 documents. On the Applicant's case, the contentions in summons pars 19-81 are answered by the documents particularised, noting that the purpose of particulars is to confine the allegations in the pleadings and define the scope of evidence to be led at trial: Cachia v Colaco (2003) 132 LGERA 62; [2003] NSWLEC 364 at [32] (McClellan CJ, citing Pilato v Metropolitan Water Sewerage and Drainage Board (1959) 76 WN (NSW) 364 at 364).
Summons pars 19-81 are identified as "relevant paragraphs" for the topics in the Expert Issues List. However, having regard to the allegation in summons par 83, on the basis of which the Applicant contends the Respondents should have been aware of the matters in summons par 19-81, the Applicant has not explained why expert evidence would also be required in relation to those matters.

[20]

Applicant has not provided specificity in relation to propositions that expert evidence will support

The Applicant has not provided evidence or submissions as to the propositions that any expert evidence is expected to support. Rather, the Applicant indicates topics in respect of which it anticipates obtaining expert evidence, and seeks to justify the topic by referring to a pinpoint in the pleadings and submitting that the Court would be assisted by understanding the topic more and/or that the topic is relevant to unreasonableness. That level of detail is insufficient for an application of this kind. In Shellharbour CA, which concerned an application to adduce expert evidence as to technical terms, Hodgson JA (Giles and Campbell JJA agreeing) said at [26]-[27]: [W]here, as in this case, it may very reasonably seem highly unlikely that expert evidence will be relevant to an issue, it may be necessary for an applicant for directions for expert evidence to provide some specificity as to the proposition or propositions that the expert evidence is expected to support, rather than merely give a vague indication of the area in which the expert evidence will be given. In my opinion, it was well open to the primary judge, having regard to the way the application was put and in the absence of any specificity as to the propositions which the expert evidence was expected to support, to take the view that the prospect that such evidence could assist the Court was so remote that directions should not be given.

[21]

The Court can understand technical evidence without expert evidence

In so far as the applicant relies on the need to explain technical terms, this Court is a specialist court and well able to understand many expressions of a technical nature: Shellharbour CA at [28]. It has experience in cases relating to the WM Act and plans for water sharing: Randren House; Murrumbidgee Groundwater; Nature Conservation Council of New South Wales Inc v Minister for Sustainable Natural Resources (2004) 133 LGERA 168; [2004] NSWLEC 33. The Court also has experience dealing with climate change cases: Gloucester Resources Ltd v Minister for Planning (2019) 234 LGERA 257; [2019] NSWLEC 7; KEPCO Bylong Australia Pty Ltd v Independent Planning Commission (No 2) (2020) 247 LGERA 130; [2020] NSWLEC 179; Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd [2021] NSWLEC 110. The Court is likely to be familiar with a number of the terms or concepts proposed to be the subject of expert evidence.

[22]

Expert evidence is not needed for unreasonableness ground as pleaded

Focus and attention needs to be directed at the grounds of review and the way in which they are articulated.
The two grounds of review of failure to consider mandatory considerations and legal unreasonableness are based on alleging the Respondents failed to consider or consider sufficiently Climate Change (as defined in the summons at par 27) and Climate Change impacts (as defined in the summons at par 36) which failure is said to be evidenced by various features of the Border Rivers Plan. These grounds require construction of the WM Act and the Border Rivers Plan, the matters the Respondents had regard to in making that plan pursuant to s 50 of the WM Act (First Respondent), and in providing concurrence pursuant to s 50(3) of the WM Act (Second Respondent). The merits of the Border Rivers Plan are not reviewable.
The Applicant does not generally advance an argument that expert evidence is reasonably required to determine the mandatory considerations ground. No doubt this is because whether the Respondents were required to consider given matters is a question of law dependent on the exercise of statutory construction: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 at 39. The particularity of the matter which must be considered is also dependent upon that same exercise of statutory construction and not the facts of a given case (or expert evidence): Notaras v Waverley Council (2007) 161 LGERA 230; [2007] NSWCA 333 at [120] (Tobias JA, citing Walsh v Parramatta City Council (2007) 161 LGERA 118; [2007] NSWLEC 255; at [59]-[60]; Mason P and Hodgson JA agreeing); Drake-Brockman v Minister for Planning (2007) 158 LGERA 349; [2007] NSWLEC 490; at [126], [132(1)-(5)] (Jagot J). Whether or not the respondents considered the given matters is then determined by reference to the record before them: Ruangrong v Minister for Immigration and Ethnic Affairs [1988] FCA 87 at [11] (Davies J); Fullerton Cove Residents Action Group Inc v Dart Energy Ltd (No 2) (2013) 195 LGERA 229; [2013] NSWLEC 38; at [45], [115]-[157] (Pepper J); Ross at [22].
The unreasonableness ground is determined similarly, by determining the legal standard of unreasonableness depending on the metes and bounds of the statute (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18; (Li) at [23], [28] (French CJ), [67] (Hayne, Kiefel and Bell JJ)). In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1; [2022] FCAFC 3, the Full Court of the Federal Court observed at [34] that: [t]he task in assessing illogicality is not an exercise in logical dialectic", but rather "the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question.

[23]

Additional submissions

A large number of the allegations in the summons, which are picked up in topics in the amended Annexure A to the motion, are particularised by reference to various identified documents, expert elaboration of which is unnecessary and irrelevant: see, e.g. summons pars 29, 33 picked up in Item 8; summons par 51 picked up in Item 10. This submission is made in relation to Items 1, 7, 8, 10 and 16 (Tcpt, 21 February 2022, p40(38-50)-41(14-15)). The very role of the particulars is to confine the allegation and the evidence the applicant can adduce in respect of it. The amended response, in part, acknowledges what is stated in the particularised documents. That is appropriate having regard to the nature of judicial review proceedings and the manner in which the Applicant has articulated the contentions which do not require broader, at-large admissions. One example is the amended response at par 32, where the Respondents note that the then NSW Department of Planning, Industry and Environment, Draft Regional Water Strategy, Border Rivers: Strategy, (October 2020) (Draft Regional Strategy) states something. No expert evidence is reasonably required to elaborate on the statement admitted to be in the Draft Regional Strategy. It and other documents speak for themselves and the parties can seek to tender the documents into evidence if they consider them to be relevant to the issues in dispute.
Various of the allegations are framed by reference to the position of a particular person or body. Expert evidence cannot address what some other person has recognised: see summons par 33 picked up in Item 8.
Although some allegations are not particularised, the absence of particulars does not provide a basis for expert evidence on open-ended topics. For example, see summons par 62 picked up in Item 17 concerning whether there will be a disproportionate impact on planned environmental water and the environment if Climate Change Impacts eventuate in the Border Rivers Region. Also see summons pars 40, 48, 50 picked up in Item 21 concerning the likely environmental impact of the Border Rivers Plan.
Item 23 referring to summons pars 26, 47 concerns matters admitted by the Respondents: see the amended response pars 26, 47. The Applicant does not explain why, in these circumstances, expert evidence is reasonably required to determine the unreasonableness ground.

[24]

Consideration

These are judicial review proceedings to which Pt 31 'Evidence' of the UCPR applies. Rule 31.17 of the UCPR states that the purpose of Div 2 which applies to expert evidence is to ensure the court has control over the giving of expert evidence, to restrict expert evidence to that which is reasonably required to resolve proceedings and to avoid unnecessary costs in parties retaining experts. Rule 31.19 of the UCPR enables the court to control the calling of expert evidence. Such evidence is limited to what is reasonably required to resolve proceedings in light of the case management principles in ss 56-60 of the Civil Procedure Act 2005 (NSW) (CP Act): Shellharbour CA at [35]; Botany Bay at [5].
The Applicant is challenging the making of the Border Rivers Plan under the WM Act. That plan is made under s 50 of the WM Act and is intended to deal with the matters set out in ss 20 and 21 of the WM Act. Section 20 states that a water sharing plan must deal with matters specified in ss (1)-(2). Additional provisions with which a water sharing plan may deal are identified in s 21 of the WM Act. Parts of the plan are extracted above in [20], including cl 7 'Vision Statement' and cl 8 identifying environmental objectives and the broad strategies to achieve these. Clause 13 refers to the effects of climactic variability on river flow through specified measures. Part 6 refers to the application of the LTAAEL.
The Applicant's motion must be considered in light of the case identified in the summons. While this is not a court of strict pleading the summons is the means by which applicants particularise their case so that respondents are aware of the case they must meet. As is apparent from the summary of the summons in [6]-[13] above and the parties' submissions summarised above in [22]-[48], [50]-[79] the matters identified by the Applicant in pars 19-82 of the summons are expansive. These reflect in part the legislative scheme under the WM Act for the making of water sharing plans in light of the management principles in s 5 and the obligation identified in s 9 in relation to these, the requirement to consider core provisions in s 20 in making a water sharing plan and to provide for environmental water as defined in s 8. The summons identifies that the planned environmental water component is identified by means of the LTAAEL and the SDL, in paragraphs 55 and 56. One allegation in the summons is the alleged failure in formulating supplementary access rules and in the provision of environmental flow rules to take into account changes in flows and the flow regime likely to be caused by Climate Change Impacts, in paragraphs 66-70. A further allegation in the summons is that reserves of water for basic landholder rights under the Border Rivers Plan are likely inadequate under cl 57(2), as identified in pars 71-82 of the summons.

[25]

Consideration of each Item in amended Annexure A

In relation to Item 1, the topic of expert evidence sought is broad namely Climate Change Impacts, identified as seven impacts likely to occur in the Border Rivers in par 36(a) of the summons. A large number of paragraphs of the summons (23) are referred to as relevant. Item 1(b) refers to climatic variability, referring to par 36(a) of the summons, which is in turn an aspect of how the summons defines Climate Change Impacts. Some of these paragraphs particularise documents, namely pars 37, 38, 41 and 44. The Applicant admits that the terms sought to be the subject of expert evidence in Item 1 were used in the documents before the Respondents (see above in [34]) and the Respondents are right to submit above in [78] that the concept of "climatic variability" is referred to in the Border Rivers Plan. It is difficult to assess the extent to which such broad evidence is needed to elucidate to the Court the Applicant's case without having the evidence before the Court. On balance given that the concept of Climate Change Impacts in relation to the Border Rivers Plan are foundational to the Applicant's case evidence in relation to this topic will be allowed.
Item 6 refers to par 42 of the summons and seeks expert evidence on the length of time for which there has been scientifically robust projections of the impact of climate change that could be incorporated into modelling of water availability in the Murray-Darling Basin (MDB), including the Border Rivers. The preceding par 41 states that Climate Change Impacts have been predicted to occur in the MDB including the Border Rivers region and acknowledged in government publications since at least 2002. Two CSIRO reports are particularised, one dealing with future impacts of climate variability, climate change and land use change on water resources in the MDB, one with water availability in the Border Rivers. No specific document is particularised in par 42. Whether an expert view on this topic is warranted in light of the reports particularised is difficult to judge in the absence of evidence. On balance given that it is potentially foundational to the Applicant's case I will allow expert evidence on this topic to be adduced.
Items 7, 8, and 9 all deal with stationarity in different contexts and it is difficult to separate them out. The technical term stationarity in the context of hydrological modelling in Item 7 (stationarity) cannot be assumed to be known to the Court to the extent necessary for the Applicant's case. Expert evidence on that topic may be adduced.

[26]

Costs of the NOM

The parties agreed that it would be appropriate for costs of this application to be reserved. I will make an order in those terms.

[27]

Orders

The Court orders: 1. Pursuant to r 31.19 of the UCPR expert evidence responsive to the topics identified in the amended Annexure A to the Applicant's Notice of Motion dated 30 March 2022 at Items 1, 6, 7(e), 8, 9, 10, 11, 12, 16(c) and (e), 17, 21, and 23 may be adduced by the Applicant. 2. Costs are reserved.

[28]

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: 14 June 2022

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