MEDIUM NEUTRAL CITATION: [2003] VCAT 223

Mr Doyle of Doyles Construction Lawyers on behalf of the applicant.

Mr Trevor McDevitt of Southern Rural Water on behalf of the respondent.

1. This proceeding has a somewhat complex history. On 5 May 2000 the Chief Executive of Southern Rural Water rejected an application by Niebieski Zamek Pty Ltd, the applicant in the present proceeding, for a licence pursuant to Section 51 of the Water Act 1989 to take and use ground water and also rejected an application for a licence to construct a bore on its property pursuant to Section 67 of the Water Act 1989. The bore was proposed to be constructed within an area in south-western Victoria which has been constituted as the Condah Ground Water Management Area under the Water Act 1989, located between Hamilton and Haywood. The ground water in this Management Area comes from an aquifer known as the "Clifton Formation". Niebieski is, as I understand it, a company controlled by the Doyle family who are the principals in a law firm known as Doyles Construction Lawyers. It sought a licence to draw some 2,700 megalitres per annum.

2. Being dissatisfied with the decision of Southern Rural Water as delegate of the Minister for Natural Resources and Environment, Niebieski sought a review of the determination from this Tribunal. The Tribunal consisting of the present writer and Mr W.R. Gould, affirmed Southern Rural Water's determination in reasons published on 10 May 2001, reported (2001) 8 VPR 111. The substantial reason for the Tribunal's decision was that the absence of adequate hydro-geological information rendered it appropriate (in the Tribunal's view) to err on the side of safety and deny so large a water allocation.

3. Niebieski appealed to the Supreme Court on the ground that in the circumstances the Tribunal should have considered not only whether licences for an allocation of 2,700 megalitres should have been considered but also the possibility of a licence for some lesser allocation. Balmford J dismissed the appeal.

4. On 12 February 2002 Niebieski lodged a further application for a groundwater licence with Southern Rural Water. This new application which is the subject of the present proceeding again sought a licence to extract an annual volume of 2,700 megalitres at a daily rate of 18 megalitres. No doubt in light of the matters that were the subject of the unsuccessful appeal to Balmford J in the previous proceeding, the applicant added the following after nominating the 2,700 megalitres as the requested volume "the applicant applies for so much of the water applied for as is available". The location of the proposed bore is Allotment 3 Section "26070SM" in the township of Macarthur. The water was said to be required for "irrigation supply". The application proforma stated "if irrigation area to be irrigated hectares". The blank is completed as "450". The bore was to be drilled to a depth of 80 to 120m with a diameter of 375 to 400mm. The panel headed "description of land on which water will be used" nominated the same allotment as described as the site of the proposed bore and added the following "and surrounding or neighbouring allotments". A site plan showed the land to be in Clover Camp Road, Macarthur with the bore site set back 10m from the site's eastern boundary to Clover Camp Road and 10m from the site's northern boundary. The previous application had failed amongst other reasons because the bore proposed there would have been located within what was at the time the application was initially made, a Groundwater Management Area and which as a result of subsequent Ministerial action has now become a Water Supply Protection Area. The management scheme initially in force established under the terms of the Water Act provided for the aquifer in the area forming part of the Clifton Formation to be managed by reference to a potential annual volume ("PAV") available for extraction, which, according to the evidence was already entirely committed and 98 percent licensed. The subsequent Ministerial action has the effect of freezing any further allocations in that area for some years to come. It was no doubt with these considerations in mind that Niebieski's present application nominated a site outside the Condah WSPA, being some 500m east of its boundary. No management scheme or Water Supply Protection Scheme applies in this area and hence no potential annual volume for extraction has been adopted.

5. Contemporaneously Niebieski lodged an application for a licence to take water from the Condah Main Drain viz. an application to take and use surface water rather than groundwater. That application has also become the subject of a Tribunal proceeding which was listed before me at the same time as this proceeding. By consent however, it has been adjourned for some months and it is unnecessary to say more as to the surface water application.

6. A file note from the records of Southern Rural Water dated 28 February 2002 made the following observations:

"2. There is a high likelihood that the extraction of water (2,700ml) from this site will affect availability within the GSPA [ viz. Condah].

3. The application is to extract a large quantity of water from the underground resource. Unfortunately we are unable to assess the effects of such an extraction and we will require comprehensive hydro-geological assessment report. The report should address but not be limited to:

. the effects that extraction of 2,700 will have on water availability within the Condah GSPA;

. aquifer characteristics, such as immediate storage coefficient;

. whether local mining of the aquifer should be of concern;

. interference to existing groundwater users in the area;

The emphasis is that the applicant should clearly demonstrate that SRW can clearly meet all the obligations under Section 40(a) to (m) [of the Water Act 1989]. Another issue that we should consider is should the proposal be advertised until the issue of water availability is resolved."

7. On 22nd April 2000 Southern Rural Water created a document styled "Southern Rural Water - Bore Construction Licencing (sic) Extraction Assessment Report" with respect to the present application. Somewhat misleadingly it designated the application as being dated "19/04/02". After nominating a number of features of the proposal, it allocated it a "calculated extraction risk score of 11" and gave it a "calculated level of extraction assessment" of "C". Its status was given as "pass". The typed portion of the document continues "the assessed inspection level was overridden for the following reason:". The reason in manuscript is as follows:

"Refer to ... report and recommendation 28/02/02. Proposal relates to the extraction of 2,700ml close to GMA boundary. Extraction has the potential to impact existing users and other resources including surface water."

8. By letter dated 14 May 2002 Mr McDevitt, Southern Water's Manager with Licensing Administration, wrote to Niebieski stating inter alia:

"I advise that as part of the assessment of an irrigation licence application, I am required to consider matters outlined in Section 40 of the Water Act 1989 and of particular relevance to this application are:

* the existing and projected availability of water in the area;

* any adverse affect that the allocation or use of water under the entitlement is likely to have on existing authorised uses of water or the waterway.

In order that I can adequately address these matters and considering that your application is for a substantial amount of water and is close to the boundary of the Condah Groundwater Management Area, I request that you provide a comprehensive hydro-geological report covering (but not restricted to) the matters outlined in Appendix 1.

Furthermore depending on the results of this study you may, as part of a public consultation process, be required to advertise your proposal in a prominent newspaper that circulates in your area. This advertisement will need to clearly outline your intent and will also be required to seek submissions from interested parties be forwarded to Southern Rural Water for consideration prior to determining your application.

In conjunction with the advertisement, separate written notification will need to be made with immediate adjoining and abutting property owners and occupiers ensuring the same opportunity to these people to provide submissions to Southern Rural Water on your proposal.

A copy of the hydro-geological report will need to be available to interested parties to scrutinise in conjunction with this advertisement process."

Approximate the groundwater flow pattern for aquifer close to planned bore location

Are there current trends in aquifer (eg. increasing drawdown, decreasing quality)?

Is the bore to be located to minimise risk of inflow from surface?

What effects will the proposed bore have on nearby Groundwater Management Area?

Identify neighbouring Groundwater bores and if interference from this proposed bore is likely to occur.

Are there any surface water features within Zone of Drawdown for the bore?

Are surface water features likely to be impacted on by the proposed bore?

What is the water quality in the surface water body (salinity)?

Are there poor quality aquifers above/below or adjacent target aquifer?

Are there any potential sources of pollution within the Zone of Drawdown for the bore?

10. Niebieski replied in a letter dated 17th June stating, inter alia:

"We note that you have not made a decision under Section 51 of the Water Act 1989 which requires you to make a decision about whether to grant a licence to take and use water.

If you are not prepared to grant a licence we would appreciate it if you would provide us with reasons for such a decision as required under Section 46 of the VCAT Act 1998.

It is not our responsibility to obtain hydro-geological information you have requested. That is the role of the decision-maker and your obligation as the Authority responsible for the management of water resources in Victoria.

If we have not received a decision regarding the grant of a licence within seven days of receipt of this letter we will assume you have rejected our application as of that date and we will make an application to the Victorian Civil and Administration Tribunal to review your decision not to grant a licence within 28 days."

11. As good as its word, within 28 days, in fact, within nine days, viz. on 26 June 2002 Niebieski filed an application for review of a decision of Southern Rural Water alleged to have been made on 24 June 2002 to the effect "that the applicant's application for a licence to take and use groundwater at Allotment 3, Section 2, 6070SM Clover Camp Road, McArthur, pursuant to Section 51 of the Water Act 1989 be rejected". The reasons for seeking the review are stated as follows:

"1. The decision-maker when rejecting the application under Section 51 of the Water Act 1989 did not consider all the matters that Section 53 of that Act prescribed must have regard to when making the decision to reject the application.

2. The decision-maker failed to obtain the relevant data and information in order to make a decision pursuant to the Water Act 1989.

3. The decision-maker refused to make a decision as required under Section 51 of the Water Act 1989."

12. Meanwhile, on 25 June 2002, Southern Rural Water wrote to Niebieski after referring to the earlier correspondence, the letter which was again over the signature of Mr McDevitt continued:

"Since your letter of 17 June 2002 indicates that you will not be providing this information [viz. the hydro-geological information requested] despite our invitation to do so, the Authority will accordingly begin the process of determination of the application on the basis of information available to date and as prescribed by the Water Act 1989 (the Act).

It is expected that our application would be able to be determined within a target timeframe of two months (subject to prompt compliance with advertising requirements specified below). At this time we will also provide you with a statement of reasons, as you have requested outlining the determination.

In order to properly consider all matters contained in Section 40, as required by Section 53 of the Act, the Authority requires you, as applicant, pursuant to Section 49(2) of the Act to advertise notice of your application in a manner specified by the Authority.

Attached is a specification of the advertisement that must be placed, on at least two separate occasions, in a newspaper that is widely circulated in the area to which your application relates. The advertisement must also be placed in the classified pages of the newspaper or another prominent location (so long as this is previously authorised by the Authority) and be presented in a double column with a minimum of size 10 font."

13. The letter then describes the process whereby interested parties may make submissions and continues:

"It is the Authority's view that any application made by you to VCAT, prior to the Authority's proper determination of the application as required by the Act would be premature and if need be we would bring this letter to the Tribunal for their consideration."

14. A further letter from Southern Rural Water dated 12 August 2002 dealt with a number of matters including the surface water application and noted:

"... on both your applications ... you were to utilise this water to irrigate various crops on 450 acres we request details of ownership of the land and any more details of the crops you anticipate watering. If formal plans do not exist, sketch drawings of existing and planned developments would assist in assessing the utilisation of the water."

Mr McDevitt again invited Niebieski to place advertisements in the form previously stipulated. The letter included an appendix requiring further items of information to the detail of which it is unnecessary to turn.

15. Meanwhile, Messrs Macpherson + Kelley acting on behalf of Southern Rural Water, wrote to the Registrar by letter dated 5 June 2002. The letter included a lengthy recital of the events as Southern Rural Water saw them. The letter stated:

"No decision has yet been made by our client on either the groundwater licence application or the diversion licence application as they are still being processed.

Our client's letter dated 25 June 2002 clearly indicated to the applicant that in the circumstances any application to the Tribunal would be premature.

...accordingly, we suggest that the applicant's review applications be put on hold pending our client's proper determination of the applications."

16. Presumably as a result of the letter from Macpherson + Kelley, both proceedings were listed for directions before Mrs Komesaroff on 30 July 2002. Mrs Komesaroff gave comprehensive pre-trial directions and the sixth direction which she gave was as follows:

"These two applications for review are set down for hearing on the points of law as well as a hearing on the merits for five days before Deputy President Macnamara commencing 25 November 2002."

17. I take the "points of law" to be the assertions on behalf of Southern Rural Water through its solicitors that since no decision had been made on the application when the proceedings were commenced in the Tribunal they were "premature".

18. When the matters came on before me on the 25th of November, Southern Rural Water was no longer legally represented. Mr McDevitt acted and has continued to act as its spokesman and advocate since. He said at that stage that Southern Rural Water did not seek to press any jurisdictional issue. Meanwhile, Mr Doyle on behalf of Niebieski Zamek complained that discovery by Southern Rural Water which had been ordered by Mrs Komesaroff was inadequate. After hearing argument on the point I upheld a number of objections to the adequacy of the Authority's discovery but overruled a majority of the points pressed by Mr Doyle. I then adjourned the matter to further hearing on the 3rd of February 2003.

19. When the matter came on for hearing on 3 February, Mr Doyle representing Niebieski in the present proceeding and P1680/2002, the surface water proceeding, requested that the matter be stood down to enable him to have discussions with Mr McDevitt on behalf of Southern Rural Water and Mr Rose who appeared on behalf of the Winda Mara Aboriginal Corporation as objector in circumstances which I will describe below. The discussions continued throughout the morning and the hearing commenced some time after the end of the scheduled luncheon adjournment. At that stage, by consent, I adjourned the surface water application for some three months to await the completion of certain investigations (the nature of which was not disclosed). The hearing of the present proceeding commenced. I was told that advertisements generally along the lines of the advertisements proposed by Southern Rural Water in its correspondence with Niebieski were published by Niebieski, albeit with the Southern Rural Water logo and of course inviting the forwarding of submissions to Southern Rural Water with respect to a proposal for the grant of a licence to Niebieski of a licence to take and use 1,350 megalitres of water for irrigation purposes from the property nominated on the application in this proceeding. I myself saw one of these notices published in The Age newspaper. I assumed given the discrepancy in amounts that the advertisement referred to a further and separate application made by Niebieski. As explained by Mr Doyle at the hearing however, the reference was to a compromise groundwater allocation which Niebieski believed might arise out of without prejudice discussions which he said Niebieski had had with Southern Rural Water.

20. The notice led to a front page story in the Hamilton Spectator with headlines "groundwater bid stirs opposition". Southern Rural Water placed an advertisement in the Hamilton Spectator of Saturday 1 February. Point 3 in this public notice stated "the application has not been approved and Southern Rural Water is seeking further information from the applicant so that it can be assessed". Point No. 6 stated "any decision made by Southern Rural Water in regard to this application is open to review in the Victorian Civil and Administrative Tribunal by objectors in accordance with Section 64 of the Water Act 1989". The notice continued that Southern Rural Water was in the process of seeking an appropriate technical assessment "after which time the application will be further advertised with at least 21 days for public submissions". The notice concluded by inviting interested persons to ring Mr McDevitt. One may infer that Mr Rose became aware of the present proceeding as a result of a conversation with Mr McDevitt or some other officer of Southern Rural Water.

21. Mr McDevitt accepted an invitation by Mr Doyle to present Southern Rural Water's case prior to the applicant's case. He called evidence from Mr Jenkins, the Manager, Engineering Services for Glenelg Regional Water Authority and Mr Stanley a Senior Hydro-geologist with Sinclair Knight Merz, a consultant to Southern Rural Water.

22. In its statement of contentions of fact and law dated 19 November 2002 and filed in accordance with the Tribunal's directions, Mr McDevitt on behalf of Southern Rural Water recited the background to this application which ground has been generally covered earlier in my reasons. Mr McDevitt submitted that the various pieces of information which were sought by Southern Rural Water were properly sought and were needed by Southern Rural Water to assess the present application. He said that Southern Rural Water was short of funds and could not pay for this research itself. He said "there are approximately 80 bores within a three kilometre distance of the proposed extraction point with the town water supply of Macarthur the most likely bore affected ... if extraction from the proposed bore proceeded the Glenelg Region Water Authority may well need to invest in new pumping infrastructure." He said that the extraction point was "in close proximity to the Condah Water Supply Protection Area (WSPA) formerly known as the Condah GMA. SRW policy indicates that bores within 500m of a GMA (or applications for significant amounts of water) require technical assessment to ensure it will not impact on the resources within the WSPA boundary." He referred to a Groundwater Management Strategy document published by the Rural Water Corporation in November 1993 which stipulates that interference with neighbouring bores exceeding 10 percent is unacceptable. He said that Mr Stanley's assessment indicated that the interference with the McArthur town bore would be greater than 10 percent. He said that Niebieski should:

"* Provide further information concerning property ownership [of the property at the point of extraction];

* Provide hydro-geological material required to assess potential interference to neighbouring bores in the WSPA and [advertise the application]."

23. In oral submission Mr McDevitt accused Niebieski of seeking to speculate in water entitlements. He said that the allotment upon which the bore was to be located was in the township of Macarthur and scarcely larger than the hearing room in which the Tribunal was sitting, yet authority was being sought to extract sufficient groundwater to irrigate 450 hectares of property. He said that Southern Rural Water had made enquiries by way of title search as to the surroundings of this allotment and Niebieski and persons associated with it owned no other land in the immediate vicinity, indeed most of the land owners in the area surrounding the allotment had lodged objections to the grant of a right to extract 1359 megalitres of groundwater from the allotment. The inference was, said Mr McDevitt, that this was no more than a speculative exercise which should not be countenanced. This point was underlined he said by the failure of Niebieski to give any clear explanation as to the use to which it intended putting the water it sought, apart from general descriptions such as "irrigation".

24. He relied upon the evidence of Messrs Jenkins and Stanley with respect to the Macarthur town bore. According to this evidence the bore was sunk in 1993 and became operative in 1994. The aquifer thickness in this area is approximately 29.5m. The "screenings" viz. the intake points for the bore are at 196 to 213m. The pump is now set at 61m with a standing level of 8m. This leaves 53m of water in the bore available for bore drawdown, that is the distance from the pump at 61m to the water level at 8m. It pumps for 10 hours a day at the rate of 0.4 megalitres a day or 4.8m per second. The licensed annual volume for this bore is 80 megalitres.

25. Mr McDevitt tabled what he said were in excess of 90 objections contained to some extent in separate letters and in petitions from persons in the area received as a result of Niebieski's advertisements. He invited me to take note of them and in particular, the fact that almost without exception they complained about the shortness of time available to them to make their submissions. He suggested that had the timelines been different, a number of these individuals might have joined Mr Rose in making submissions.

26. Mr McDevitt in reply said that insofar as Mr Doyle placed reliance upon what emerged in cross-examination of Mr Stanley, including the supplementary figures given by Mr Stanley by the use of the Sinclair Knight Merz computer model, this material should be treated with caution. The key values as to transmissivity and storativity within the aquifer were not established with certainty, therefore the figures propounded by Mr Stanley with the use of the computer model were theoretical only or "desktop" calculation. Actual studies of the aquifer may prove them to be incorrect. Moreover, he said the possibility remained that extraction of water at these rates might "line" the aquifer and lead to the bore going dry completely. He and his colleague Mr Flynn conceded that it would be possible to stipulate a test as a condition of the grant of the licence, calculating the "through put" of the aquifer which could lay down a particular benchmark which must be obtained before the licence could be treated as operative.

27. Mr McDevitt submitted that were I not to concur with his Authority's determination that this application should be refused rather than granting it in whole or in part, I should remit the matter to Southern Rural Water for further consideration with directions as to the conduct of future investigations.

28. Mr Doyle submitted that any attack based upon an allegation of "speculation" was without justification. He took me to the policy statement adopted by Southern Rural Water on 10 August 1999 titled "Authority Policy: Licensing Guidelines for Surface and Groundwater". Under the heading "Water Trading" this policy says that SRW will "encourage water trading, particularly where it is the means for gaining new or additional entitlements". In Mr Doyle's submission, profit making is an essential element in trading. No-one would engage in trading for the purposes deliberately of making losses. Mr Doyle referred to Section 62 of the Water Act which provides for transfers of water licence and according to sub-section (8) transfers may be pursuant to sales of licences:

(c) in any other manner that the holder thinks fit.

29. Sub-section (9) of Section 62 even contemplates interstate water licence transfers "subject to any terms and conditions determined by the Minister by order published in the Government Gazette either generally or in a particular case". He also referred to the statement in Paragraph 3.1 under the heading "Outcomes"

"The Water Act and Government Water Resources Policy seek the following outcomes:

30. Mr Doyle said that if granted a water entitlement Niebieski would consider entering into joint ventures with surrounding land owners possibly leasing land or purchasing land in the area or entering into share farming arrangements. Another possibility would be to have the bore removed across a narrow gravel road to the property owned by one of the neighbours.

31. Mr Doyle tabled a document addressed "to whom it may concern" from Ms Margaret Catherine Doyle declaring she was the owner of the property for which the bore was proposed and declaring her "approval and support for the application of Niebieski Zamek to obtain a groundwater extraction licence for the ... property and to use the property for that purpose".

32. Mr Doyle said that it was unreasonable and oppressive to require Niebieski as applicant, to provide the hydro-geological data as to aquifer capacity. Mr Stanley of Sinclair Knight Merz estimated the combined cost of sinking a test bore and conducting an appropriate pumping test at $100,000. Whilst Southern Rural Water persisted in requiring new entrants to the groundwater market to fund this sort of research, they were effectively excluding the proper exploitation of the resource which they were obliged to manage. In Mr Doyle's submission it was the duty of Southern Rural Water to provide the necessary research. He said as it was, a number of important and valuable reports had become available to his client only as a result of the discovery ordered by the Tribunal. This material should have been in the public domain already he said. The Ministerial action with regard to the Condah Water Supply Management Area to the west, froze allocations in that location for years. Mr Doyle submitted in effect that his client had been given the "run around" with the present application and had no alterative but to act as it did. He referred to his cross-examination of Mr Stanley who at the Tribunal's request carried out additional "desktop" calculations, using Sinclair Knight Merz's computer model. These further calculations showed that using the values for transmissivity and storativity of the aquifer which he, Mr Stanley, had used for his original calculations, interference with the McArthur town bore could be kept at or below 10 percent if the licence restricted pumping to 450 megalitres per annum over a 150 day irrigation season. Adopting what Mr Stanley accepted was a worst case scenario using more conservative values for transmissivity and storativity in the aquifer, 250 megalitres per annum could be pumped over the same season without exceeding the 10 percent interference limit on the Macarthur bore. If the Macarthur town bore were dropped to a level of 187m or slightly more, according to the calculations modelled by Mr Stanley, 1000 megalitres per annum could be pumped in the worst case scenario and 1500 using the mid-range values.

33. Mr Doyle said that if contrary to his primary submission that the Tribunal sought to grant a licence within one or more of those parameters, his client would accept a condition requiring metering of the bore. If there were any apprehension that in effect giving all the available water in the area to Niebieski Zamek was inequitable, he would suggest a condition whereby some stipulated percentage should be required to be offered for auction (leaving Niebieski at liberty to bid) with the proceeds of the auction used to fund groundwater research in the area.

34. Mr Doyle said that Southern Rural Water's attitude to his client's application was inconsistent with its own policy where at paragraph 3.2 under the heading "Information" the policy states:

1. Base decisions on `best available' technical advice, recognising the uncertainty and available information;

2. Not avoid decisions if information is lacking - but if there could be serious impacts on water users or the environment, keep a margin of safety consistent with our information; and

3. Collect extra information where justified by better resource management decisions."

35. He said the Authority's failure to make public a number of the studies and other documents which emerged on discovery indicated a failure to comply with the third of those principles and its insistence upon further hydro-geological investigation violated the first. As to the issue of advertising, Mr Doyle said:

"The respondent was or should have been in possession of all necessary information to deal with the application in a proper manner and the request for advertising is premature unless and until the respondent had determined there was water available. The exercise of discretion in requesting advertising is miscarried where it is not part of a process of dealing with the application restructured, reasonable or logical process."

"If the Tribunal decides that advertising or any other information or preparatory step is necessary then the appeal should be suitably adjourned while advertising or other step takes place and the Tribunal should direct in that instance the information to be made available for respondents to the advertisements and potential and actual applicants."

37. Mr Doyle submitted that if it is thought necessary to drop the pump of the Macarthur town bore to a level just above the screenings viz. around 187-192m the cost of this process, estimated by Mr Jenkins of Glenelg Regional Water Authority at $25,000 should be borne in toto by Glenelg. He referred to the Groundwater Management Strategy adopted by the Rural Water Corporation in November 1993. At page 23 of that strategy, Statement of Principle 14 says:

"Owners of new bores should be required to construct them to the base of the target or aquifer. Such a requirement could be included as a condition of a bore construction licence and, where appropriate, as a condition of a groundwater extraction licence."

38. Action Item 13 immediately following, states an objective to "develop an agreed position such that persons with bores that are not designed and constructed to their full potential will not have their groundwater and title protected beyond the level that would apply if the bores were constructed to their full potential". Accordingly, said Mr Doyle the Macarthur town bore should only be protected from the interference that it would receive if the pump were located at "the base of the target aquifer". Therefore, the $25,000 cost should be borne by Glenelg. He said that even if it were thought appropriate by condition to exact some contribution from Niebieski, that contribution should not exceed half the cost because the effect of dropping the pump would be to furnish the Macarthur town supply system with a new pump motor which would function for longer than the existing motor which has been in operation for eight and a half years. This he described as a `betterment" factor which should not be for Niebieski's account.

39. It is necessary to say something of the statutory framework laid down by the Water Act as to the determination of these proceedings. Section 63(1) renders it an offence to take water from a bore "unless authorised to do so by or under this or any other Act". Section 51(1)(b) enables persons to apply to the Minister for the issue of a licence to take and use groundwater. The Minister's powers in this regard are delegated to Southern Rural Water. In considering an application under Section 51 the Minister and hence the Minister's delegate, must have regard inter alia to the matters referred to in Paragraphs (b) to (m) of Section 40(1) of the Water Act. Those matters are as follows:

"(1) In considering an application under section 36(1), the Minister or Governor in Council (as the case requires) must have regard to the following matters--

(b) the existing and projected availability of water in the area;

(ba) the permissible annual volume, if any, for the area;

(c) the existing and projected quality of water in the area;

(d) any adverse effect that the allocation or use of water under the entitlement is likely to have on--

(iii) the drainage regime within the meaning of section 12(1);

(e) any water to which the applicant is already entitled;

(f) any volume of water that is allocated for sale under section 222(1)(c);

(g) the need to protect the environment, including the riverine and riparian environment;

(j) government policies concerning the preferred allocation or use of water resources;

(ja) whether the proposed source of water is within a heritage river area or natural catchment area within the meaning of the Heritage Rivers Act 1992 and whether there is any restriction on the use of the area under that Act;

(k) if appropriate, the proper management of the waterway and its surrounds or of the aquifer;

(l) the purposes for which the water is to be used;

40. Section 55(1) says that the Minister and hence the Minister's delegate "may either refuse an application under Section 51 ... or approve it and issue a licence under that Section ". Section 64(1)(a) allows "a person whose interests are affected by the decision" to seek a review by the Tribunal of the decision of the Minister or the Minister's delegate. The application has to be made according to sub-section (2) within 28 days after the later of:

(b) if under the Victorian Civil and Administrative Tribunal Act 1998, the person requests a statement of reasons for the decision, the day on which the statement of reasons is given to the person or the person is informed under Section 46(5) of that Act that a statement of reasons will not be given.

41. It will be recalled that Mrs Komesaroff referred the jurisdictional question to me for hearing and determination together with the merits of the application. Perhaps because Southern Rural Water has ceased retaining legal practitioners to represent it, the jurisdictional point which was raised in the letter by Macpherson + Kelley has not been pressed before me. Nevertheless, as I indicated to the parties, if the point is in truth a jurisdictional one, I must deal with it myself. The Tribunal has a duty not to exceed its jurisdiction. It cannot acquire jurisdiction by agreement of the parties or by a party's waiving or failing to take the point. Niebieski's application for review states, as will be recalled, that on "24 June 2002" Southern Rural Water determined to refuse its licence application. It is clear that there was no actual determination of Southern Rural Water on that day or on any day prior to that date. Mr Doyle submitted that the Authority had behaved unreasonably and delayed unconscionably and therefore there was in effect a deemed decision. The answer to this question requires a consideration of the Tribunal's review jurisdiction. Section 48 of the Victorian Civil and Administrative Tribunal Act 1998 which has the heading "How is Review Jurisdiction Invoked?" provides that that jurisdiction is invoked "by a person who is entitled to do so by or under an enabling enactment applying to the Tribunal in accordance with Section 67 for the review of a decision under that enactment". An enabling enactment is one which bestows jurisdiction upon the Tribunal. Section 64 of the Water Act indicates that the Water Act is such an enactment. Section 67 of the Victorian Civil and Administrative Tribunal Act 1998 for present purposes does no more than require that the review application must be made by lodging a document with the Registry in accordance with the rule. The question is, has there been a decision under the Water Act? This matter is dealt with by Section 4 of the Victorian Civil and Administrative Tribunal Act 1998 which has the heading "When does a person make a decision?". Sub-section (3) is irrelevant. I set out the balance of the section in toto.

(1) For the purposes of this Act or an enabling enactment, a person makes a decision if the person--

(a) makes, suspends, revokes or refuses to make a decision, order, determination or assessment (including a decision not to make a decision, order, determination or assessment);

(b) gives, suspends, revokes or refuses to give a certificate, direction, approval, consent or permission;

(c) issues, suspends, revokes or refuses to issue a licence, authority or other instrument;

(e) amends or varies any of the things referred to in paragraph (a), (b), (c) or (d);

(f) makes a declaration, demand, direction or requirement;

(2) For the purposes of this Act or an enabling enactment--

(a) a decision is made under an enactment if it is made in the exercise or purported exercise of a function conferred or imposed by or under that enactment;

(b) a decision that purports to be made under an enactment is deemed to be a decision made under that enactment even if the decision was beyond the power of the decision-maker;

(c) a refusal by a decision-maker to make a decision under an enactment because the decision-maker considers that the decision cannot lawfully be made is deemed to be a decision made under that enactment to refuse to make the decision;

(d) a failure by a decision-maker to make a decision under an enactment within the period specified by that enactment is deemed to be a decision by the decision-maker at the end of that period to refuse to make the decision."

42. The task in the present proceeding is to consider whether Southern Rural Water as the Minister's delegate on 24 June or any earlier date, actually made a decision. At first blush the answer is "no" and there is nothing in Section 4 or elsewhere in the Victorian Civil and Administrative Tribunal Act 1998 which would create any "deemed" decision in the circumstances which have here occurred. Sub-section (2) of Section 4 deems a refusal to decide to be a "decision" in the circumstances described; but nowhere is it suggested that Southern Rural Water failed to adjudicate on the present application as at the 24th of June because it believed that a decision could not "lawfully be made". Certainly its position was that a lack of information stood in the way of making the decision, but no legal impediment was suggested. I put Section 4(2)(c) to one side. This leaves Section 4(2)(d) which deems a failure to make a decision in certain circumstances to be a decision. Certainly a simple refusal to decide is in itself a decision in accordance with Section 4(1)(a). Section 4(2)(d) goes further and deems inaction to amount to a refusal in certain circumstances, but only where there is a failure to decide "within the period specified" in the relevant enactment. Here there is no period specified in the Water Act for decisions under Section 51 to be made. Were the matter free from authority I would have regarded it as absolutely clear that in the present circumstances no decision had been made.

43. But the matter is not free of authority. In Grady v Transport Accident Commission (1991) 4 VAR 384 Judge A.F. Smith, then President of the Administrative Appeals Tribunal of Victoria considered a similar issue in the transport accident jurisdiction. The Transport Accident Act 1986 Section 46A provides for an assessment of the permanent impairment of a person injured in a transport accident as at the later of 18 months following the injury or the stabilisation of the injuries. The applicant in Grady sought a Tribunal review of what he said was a deemed decision by the Transport Accident Commission in circumstances where it had to the date of the filing of the application failed to determine his permanent impairment. His Honour basing himself on Section 3(4) of the Administrative Appeals Tribunal Act 1984 which though in different words may be thought to be substantially similar to Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 concluded that since in the absence of a particular time limit, the law would imply an obligation upon the Transport Accident Commission to perform an assessment within a reasonable time after the time stipulated in Section 46A therefore if the Commission failed within that reasonable time to make an actual determination, there was a deemed determination on the basis of Section 3(4) of the Administrative Appeals Tribunal Act. As it was, His Honour concluded ultimately that the Commission had not in the circumstances failed to make a decision within a reasonable time.

44. If the reasoning in Grady's case is applied by analogy to the present situation, were I satisfied that as Mr Doyle submits there is an implicit obligation on the Minister and hence the Minister's delegate to determine an application under Section 51 within a reasonable time and Southern Rural Water had by 24 June failed within a reasonable time to determine Niebieski's application, it would be deemed by Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act to have made a decision. But there are a number of difficulties with that syllogism both legal and factual. First, Grady's case has had a somewhat chequered history in this Tribunal and its predecessor. The expression used in Section 3(4) of the Administrative Appeals Tribunal Act was as to failure to make a decision within the "period prescribed". The corresponding provision in the Victorian Civil and Administrative Tribunal Act is "period specified". In Zagami v Transport Accident Commission (unreported 4 October 2000) Mrs Megay, Senior Member said:

"If Grady's case is good law, it follows in order to come to a conclusion as to whether or not there has been a deemed refusal, it is necessary to have regard to all the surrounding factors and all the evidence available in the relevant period in order to decide whether or not a reasonable time had lapsed."

She said as to Section 46A of the Transport Accident Act

"The fact is that the Act does not prescribe a period within which an impairment assessment must be made - it merely sets out what must flow before such a decision can be made. And that is the thrust of Section 46A. The section provides that a determination of impairment is to be made as at 18 months after the accident or when the injury stabilises whichever last occurs. It does not go on to prescribe a period within which an impairment assessment must be made."

45. In the end Ms Megay determined the question on its facts and did not find it necessary to express a firm view as to Grady's case. In contrast in Daff v Transport Accident Commission (unreported 21 January 1999) Mrs Coghlan, Deputy President, assumed the correctness of Grady's case. In Kerrigan v Transport Accident Commission [2001] VCAT 1942 Mr Davis went against one of his own earlier decisions in which he applied Grady's case, remarking at paragraph 13:

"Since the publication of the decision in Soulis_, I have had considerable time to reflect on the question of the jurisdiction of the Tribunal to require the Transport Accident Commission to make a decision pursuant to S.46A of the Act. In my view, the words as used in S,4(2)(d) of the VCAT Act, `within the period specified in the enactment' should be given their natural and proper meaning. Section 46A and 47 of the Act do not specify any particular period in which the respondent is required to make a decision. Those sections specify that the decision should not be made either before 18 months since the transport accident or before injuries have stabilised whichever is the latter but they do not specify a time in which the respondent is required to make a decision after that time. If Parliament had intended the decision of the respondent to be made within a specific time after that period or within a reasonable time after a period specified, it could have stated so but it has not."_

46. In Manonella v Transport Accident Commission (unreported February 2001) Mr Galvin, Deputy President, said at Paragraph 18:

"I have some difficulty in discerning in an unspecified period of time (determined to be reasonable in the particular case where no limit is specified), the degree of specificity sufficient to fall within the meaning of `period specified' in S.4(2)(d) of the VCAT Act. However, I am mindful that Grady's case has been followed in this Tribunal in the interests of consistency I will follow it again in this case."

47. Grady is doubted by the editors of Kyrou, Victorian Administrative Law [V1125] Update 78.

48. One could scarcely disagree with Judge Smith that the proper construction of a statute will generally imply that a statutory duty be carried out within a reasonable time in the absence of any particular time limit stipulation. The present question however is whether in the absence of any time limit in days, weeks or months, there is a "period specified" for the Minister or the Minister's delegate to make a decision under Section 51 (or if it matters, Section 55) of the Water Act. "Specified", according to the Oxford English Dictionary means "that which has been definitely or specifically mentioned, determined, fixed or settled". The necessary "specificity" is, in my view, the antithesis of the generality of the concept of a "reasonable time". The expression used in Section 3(4) of the Administrative Appeals Tribunal Act 1984 and which formed the basis of Judge Smith's analysis in Grady's case is of similar import. The same dictionary defines "prescribed" to mean "laid down, appointed, or fixed beforehand; ordained, appointed, set, fixed, defined". Moreover the primary meaning of he word "prescribed" in a Victorian statute is "prescribed by the Act in which the word is used or by subordinate instrument made under or pursuant to that Act". Section 38 Interpretation of Legislation Act 1984. This is vastly different from the vagueness of a concept of "a reasonable time". Whilst I am conscious of the strictures of Balmford J in Anteden Pty Ltd v Glen Eira City Council [2000] VSC 366; (2000) 16 VAR 334, 344 [26] I am respectfully unable to accept the approach adopted by Judge Smith in Grady to the interpretation of Section 3(4) of the Administrative Appeals Tribunal Act 1984. The point is in my respectful opinion clearer still with regard to Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998.

49. I should also mention a decision of His Honour Judge Michael Strong in the matter of Comisso v Transport Accident Commission (29 March 2001). His Honour was considering a costs dispute and by reference to Grady's case and a number of other decisions, he said at Paragraph 29:

"It is my firm view that a failure to make a decision can, in certain circumstances, constitute a refusal to make a decision: Mr Solomon, on behalf of the Commission, conceded as much. A qualitative assessment of the circumstances of the alleged failure is required. In short, the failure must be so serious as to be tantamount to a refusal. The Commission might be pursuing an utterly irrelevant line of enquiry in circumstances where it is in possession of all the material it requires to make its decision. There might be an ordinate delay, though I do not think it sufficient that the delay could be characterised merely as `unreasonable'. It would have to be completely indefensible or it would be tantamount to a refusal. There must be something in the nature of an application by the Commission of its duties under the Act."

50. In Kerrigan's case Mr Davis declined to follow His Honour's analysis.

51. The law is replete with concepts such as "constructive dismissal" or "constructive desertion" where it has been held that actions perhaps falling short or not quite within the literally and narrow definition of for instance desertion or dismissal may be treated without more, to use Judge Strong's expression would be "tantamount" to refusal to desertion or dismissal. His Honour did not believe that delay in itself was tantamount to a refusal to decide I did not understand Mr Doyle's submissions to go the distance of suggesting that the unreasonable delay of which he complained was "tantamount" to a refusal to make a decision. In my view therefore, accepting Judge Strong's analysis in Comisso as correct, no matters exist or were alleged which would constitute a refusal to make a decision in the sense in which His Honour used those terms.

52. I am fortified in the views that I have expressed as to the correctness of the line of reasoning exemplified in Grady's case as was Mr Davis in Kerrigan's case by the knowledge that when Parliament desires to create a deemed decision to activate appeal or review rights, it well knows how to do so. For instance, Section 53 of the Freedom of Information Act 1982 creates a deemed decision reviewable by the Tribunal where a respondent agency fails to deal with an application under the Freedom of Information Act within the term of 45 days. In the Planning and Environment Act 1987 Section 79 creates a specific appeal or review right where a responsible authority fails to make a determination on a permit application within the time prescribed. The approach is not to create a deemed decision but rather to make the failure to decide reviewable in itself. In the Water Act in provisions quite close to Section 51, Sections 51B and C (inserted in 2002) provide for applications to be referred to certain referral authorities. Under Section 51C(2) if a body makes no response to the Minister within 30 days after the receipt of an application referred to it under Section 51B, the Minister may proceed to determine the application. The conclusion is that where Parliament wishes to create automatic solutions by way of deemed decisions or otherwise, in the face of authorities which fail to act, it well knows how to do so in direct and plain words. All this points strongly away from an implied "deemed" decision arising out of delay. The Tribunal's jurisdiction depends upon the existence of a reviewable decision under the relevant enactment. It seems unlikely in the extreme that Parliament intended determination of the threshold question of jurisdiction to depend upon a lengthy analysis of evidence to determine if a "reasonable" time had passed without an actual decision from the respondent. The very basis of the Tribunal's jurisdiction is lacking. There is no jurisdiction. The proceeding is a nullity.

53. Should the matter go further and should my analysis on these points not find favour, I should record that if contrary to the views that I have expressed, it were possible to establish a "deemed" decision, reviewable by the Tribunal upon proof of unreasonable delay by Southern Rural Water as at 24 June 2002, I do not believe that the evidence would support any such finding. The letter of the 14th of May 2002 seeks further information. For reasons which I will explain further below I do not believe that the request for that information was unreasonable or at any rate wholly unreasonable. True it is that the Authority was tardy in issuing the request given it had had the application in hand for some three months, though as the background narrative that I have already given indicates, the Authority had carried out some assessment of the application during that time. More significantly Niebieski waited for over a month before giving its clear refusal to provide that additional information by the letter of the 17th of June 2002. This letter, according to its received stamp, arrived at Southern Rural Water on 19 June, quite believable having regard to one's experience with the course of the post. The Tribunal review application was lodged on the 7th day after that arrival. Until the applicant's letter of the 17th of June, the respondent was entitled to assume either that the applicant was going about obtaining the hydro-geological studies requested or at least some sort of technical study, or else was considering its position. To demand a decision within seven days, (presumably of the date of the letter of the 17th of June, rather than its likely date of arrival) seems to me to be unreasonable in the extreme. To take an analogy from a very different area of the law, a contract of sale may stipulate a settlement date on the basis that time is of the essence or it may stipulate no completion date in which case the parties are obliged to complete within a reasonable time. When a party desires to bring matters to a head either because there is no stipulated completion date or because the completion date has come and gone and the parties have acknowledged that the contract remains in force and therefore time is no longer of the essence, he must serve a notice to complete, stipulating a reasonable time for the completion. In Sindl v Georgiou (1984) 154 CLR 661 a sale of land case the High Court held that a notice to complete allowing less than 14 days did not allow a reasonable time. Of course the Court's view here was dictated by what it perceived as reasonable in the circumstances of that case and in the general circumstances of conveyancing procedure. What is reasonable in the present case? The first thing to note is that the application made by Niebieski was for a vast quantity of water. The entire township supply for Macarthur could be found within 80 megalitres per annum yet Niebieski sought 2700 megalitres for a single irrigation season of 150 days. This dwarfs the township's demand to insignificance. The circumstances surrounding the objections to which I have already made reference and to which I will return hereafter demonstrate that aside from any hydro-geological issues, this was a political hot potato. An advertisement early this year for an application for only one-half of the amount sought in the original application caused such an upheaval in the local community that it made front page news in the Hamilton Spectator. There was every reason therefore for Southern Rural Water to proceed in considering this application with the utmost circumspection. Having made its position clear as to its refusal to provide hydro-geological study, Niebieski demanded that the matter be wrapped up in a few short days. It had considered its position as to whether to provide hydro-geological research for a month. At this point it was Niebieski which was acting unreasonably, not Southern Rural Water.

54. This finding is not to say however that Southern Rural Water's conduct is beyond reproach. Certainly the delays in dealing with the initial correspondence are indicative of a sub-optimal level of courtesy and efficiency. The letter of 12 August 2002 calls for yet more information. I put to one side for a moment the question as to whether the request for this information generally is reasonable. What seems inappropriate in the request of 12 August is that it comes six months after the initial request and long after an already lengthy schedule of information was sought. At the least, this is indicative of inefficiency, indeed by 12 August, matters had degenerated into something of a charade. It is obvious from the materials quoted from the Authority's files in the period February to April that it had reached a view that the application would be refused absent hydro-geological information demonstrating the sustainability of the proposal having regard to a number of matters including interference. On 17 June the applicant stated unequivocally that it declined to provide that information. There seems to be no reason why the Authority should not have proceeded to a determination immediately after the letter of the 17th of June. Whatever view one takes of these later items of correspondence, they cannot shed light on the question as to whether there was a deemed decision of some sort on the 24th of June or sometime thereabouts prior to the commencement of the proceeding on the 26th of June, certainly in my view there was nothing which would constitute in Judge Strong's words something tantamount to a refusal to give a decision.

55. In my view therefore, the Tribunal has no jurisdiction to deal with this proceeding.

56. Mr McDevitt entered into a hearing on the merits of this proceeding, presumably on the basis that following the filing of this application and the directions hearing before Mrs Komesaroff, his client had heard and determined Niebieski's application adversely and therefore it is a mere matter of form to consider that ultimate refusal in the present proceeding. In his participation in the final hearing Mr Doyle implicitly concurred in this approach. In my view whatever the convenience of that approach may be it is legally impossible. First, there has been no application and no amendment of the initiating document in this proceeding. It seeks a review as I have previously noted, of a determination made by the respondent on 24 June 2002 - a non-existent determination. Even if an application to amend had been made, since the problem was one going to jurisdiction and not a mere irregularity, this purported proceeding is a nullity. It is incapable of effective amendment. As Lord Denning speaking for the Judicial Committee in Macfoy v United Africa Co Limited [1962] AC 152, 260 a null proceeding "is not only bad, but incurably bad". See also R v Justices of Carlton ex parte Dunstan [1964] VicRp 101; [1964] VR 778 cf Kingstone Tyre Agency Pty Ltd v Blackmore [1970] VicRp 81; [1970] VR 625, 635 ff per McInerney J.

57. Despite this conclusion, since the entire case was put and argued before me, I should express my views on the merits as disclosed by the cases put to me in the event that the matter goes further and a different view is taken on the jurisdictional issue. This is an application for a vast quantity of water. I have already drawn attention to the comparison between what is sought in this application and the 80 megalitres per year which is sufficient to provide the entire town water supply for Macarthur. Applying the rule of thumb of six megalitres per hectare which is the traditional rule of thumb employed by Southern Rural Water, this would allow for the irrigation of some 450 hectares. This is the calculation made by the applicant itself on its application, nevertheless, the land upon which the bore is to be located is a small township house block. It is inconceivable that this land could usefully profit from so large an amount of groundwater as is here sought. The same applies even for the much smaller quantities such as 250 megalitres per year mentioned as a "fall back" position in light of the cross-examination by Mr Doyle of Southern Rural Water's hydro-geological consultant Mr Stanley.

58. Mr Doyle stressed that the provisions now made in the Water Act for water trading providing even for interstate water trading and the policies of Southern Rural Water contemplated that water was to be dealt with on a basis entirely separate from land tenure. But can that be true as an absolute proposition? If we consider the various paragraphs in Section 40 of the Water Act which the Minister and the Minister's delegate are required to consider for the purposes of this application they show that an application for a licence to take and use water extracted from a bore cannot be determined without careful consideration of the proposed location of the bore, for instance paragraph (g) speaks of the need to protect the environment including the riverine and riparian environment; paragraph (i) speaks of the conservation policy of the Government; paragraph (ja) refers to the location of the source of water within a heritage or natural catchment area under the Heritage Rivers Act; paragraph (k) refers to the need for proper management of aquifers; paragraph (m) speaks of the needs of other potential applicants. All of these matters can be considered only in the context of a proposed location for the bore. Sub-section (2) of Section 51 provides that an application such as this must be "made in a form and manner approved by the Minster". There was no evidence as to specific Ministerial authority for the form of application which was used. There is no reason to suppose that it was other than the appropriate one. As my summary of the application above indicates, particulars of the location of the proposed bore were furnished and a sketch site plan was included.

59. Mr Stanley said that in his experience this eastern portion of the Clifton Formation was far less plentiful than the western portion which is now designated a Water Supply Protection Area. He noted that to extract the modest quantities required for the Macarthur town water supply, the Glenelg Region Water Authority had to pump down the entire available 53 litres of drawdown. Mr Stanley concluded therefore that a multiplicity of bores would be necessary to extract the sort of quantities of water which the present application seeks. Clearly he was speaking at that stage of 2700 megalitres per annum; but when one considers that even the scaled down 250 megalitres is three times the limit on the Macarthur town bore, it seems likely that multiple bores would still be necessary. The object of having a multiplicity of bores is to extract from a wider area in the aquifer and avoid one bore interfering with the other. A multiplicity of bores would not be practicable upon a small building block. If there is an interference problem which requires careful management in relation to the Macarthur town bore about 600m from the proposed bore site, there would be intractable problems and interference if multiple bores were put on so small a parcel of land as is the locus of this application. These issues direct one to paragraph (l) of Section 40(1) of the Water Act as a necessary consideration in this proceeding. That paragraph directs attention to "the purposes for which the water is to be used". Classically one would imagine a primary producer seeking a licence to take and use bore water to use for irrigation or pasture purposes on a large agricultural or pastoral property. The suggestion in the application that some 450 hectares are to be irrigated indicates that the proposed use is to be almost entirely outside the bore site. In answer to a question from me, Mr Doyle said that Niebieski would once it had a particular allocation of groundwater made to it, consider a number of options including leasing land in the area or entering into joint venture agreements with neighbouring land owners. He also suggested the possibility of moving the bore to a nearby property.

60. In considering hypothetical outcomes I enquired of Mr Doyle as to whether Niebieski would wish to receive a licence to take and use some quantity of groundwater subject to a condition that a licence could only be acted upon if a test bore were sunk on the subject land and an appropriate pumping test carried out which demonstrated:

(a) that pumping could take place without interference or undue interference with the Macarthur town bore; and

(b) that the bore was demonstrated to have sufficient capacity such that "mining" of the aquifer would be avoided.

If the results were satisfactory the test bore could serve as a production bore. Mr Doyle told me that such a condition would be acceptable but only if the pumping test was conducted from the Macarthur town bore and no test bore was required on the subject site. He said Niebieski should be required to incur no outlay other than its application fee.

61. These considerations lead me to doubt that Niebieski has any intention whatsoever of constructing a bore on the subject site. It has propounded no clear plan for the use of the water. In my view the purpose for which the water is sought is speculative. The facilitation of speculation in water would be inconsistent with the requirement imposed by Section 40(1) (m) of he Water Act to consider the needs of other possible applicants.

62. Whether in the spirit of National Competition Policy, frowning on such a proposal is reasonable or not is beside the point. This proceeding must be determined under the provisions of the Water Act. The Water Act makes the purpose for which water is sought a relevant consideration, whether according to hardline "dry" economic analysis this consideration is appropriate or not. Mr Doyle said that the purpose which his client had was no more objectionable than the purpose of a farmer or pastoralist who takes up vacant land with a view simply to holding it as an investment for re-sale in the future. Where an economic price is paid by such an investor there would seem to be little ground for criticism. However the schemes whereby rural land has been allocated either on a freehold or leasehold basis to primary producers on concessional terms have traditionally included an obligation to develop.

63. The present applicant desires to be excused of incurring any cost of aquifer research, demanding that this be done by Southern Rural Water, presumably with the expense being spread around other users in the area through water rates. The problems caused to the Macarthur town bore should, according to Niebieski be remedied at the expense of the citizens of the township. If, as I believe Niebieski has no intention of sinking a bore on the subject site, the cost of sinking the necessary bore or bores would be passed on either in whole or in part to neighbouring land owners as part of the "joint venture" arrangement or under an arrangement whereby the bore site was transferred to a neighbouring property. It is noteworthy that the present application unlike the previous one considered by the Tribunal was not accompanied by an application under Section 67 of the Water Act to construct a bore or bores. Niebieski did not even furnish any expert evidence at this hearing, it relied solely upon cross-examination of Southern Rural Water's expert. Niebieski's proposal is breathtaking in its audacity.

64. These considerations as to the purpose for which the water was sought are sufficient in my view to lead to the rejection of this proposal even if, contrary to the view I have already expressed, the Tribunal had jurisdiction to deal with it. The final of the matters in Section 40(1) which the Minister or the Minister's delegate must consider in deciding upon an application such as this is paragraph (m) "the needs of other potential applicants". The effect of the present application if acceded to would be to take up for the benefit of a single applicant, the entire available water in this area of the Clifton Formation. To meet concerns as to the equity of this proposal, Mr Doyle suggested a condition might include a requirement that some percentage of his client's entitlement could be required to be auctioned (with Niebieski as one of the potential bidders) and the auction proceeds being allocated to water research in the area. Mr Doyle said the principle which should guide water allocation is "first in best dressed". The history which emerged in the previous proceeding as to the allocation of water in the Condah Water Supply Protection Area suggests that an approach along these lines may have been adopted in the past. I have difficulty seeing that this approach is conformable with giving due weight to the consideration of the purposes for which water is to be used and the needs of other potential applicants. Nevertheless I could see substantial force in the contrary argument based on a more deregulated economic model whereby the "first in best dressed" is rewarded for taking risks and incurring expenditure. As I have sought to explain, I cannot view the present applicant in that light.

65. I should say something also as to Southern Rural Water's demand and Niebieski's refusal to provide hydro-geological study material. Under Section 53(1)(e) the Minister and the Minister's delegate may have regard in determining an application for a licence under Section 51 to "any other matter that the Minister thinks fit to have regard to". It seems to me for reasons already indicated, that the willingness of an applicant to undertake aquifer studies is a proper matter to which the Minister's delegate may have regard. It is quite common for public decision making agencies to call upon proponents of various forms of development to provide studies justifying the development or establishing that the development would not have threatened adverse affects. In a sense this occurs in every permit review application at the Tribunal where the proponent engages expert consultants to give evidence. In ordinary land development projects it is common for developers to be required to construct particular pieces of infrastructure or to make a contribution towards the construction of that infrastructure. Whilst the attainment of proper equity in these situations has been the subject of much debate and a number of Court and Tribunal decisions and amendments to the Planning and Environment Act, the overall principle remains unquestioned.. In those circumstances I am unpersuaded that it is unreasonable for an authority administering an aquifer for which the data is deficient to require an applicant for a major water allocation to supply the deficiency. That a person seeking to exploit the economic value of water should be required in effect to pay the full economic cost of the resource, (including the cost of any necessary inquiries as to sustainability and environmental effects) rather than expect a Government subvention, seems wholly in accord with modern economic thinking. In my view therefore, it was proper for Southern Rural Water to require hydro-geological study material to be available to ensure that its decision making covered the various environmental and aquifer management matters which Section 40(1) of the Water Act describes. Niebieski's refusal to provide this information is another ground supporting the rejection of its licence application.

66. The extensive and specific provisions which are to be found in the Planning and Environment Act 1998 relative to objectors and their position in proceedings in the Tribunal's Planning List do not have direct counterparts in the Water Act 1989 however, Section 64(1) gives a right to seek a review of a determination under Section 51 to "a person whose interests are affected by the decision" is clearly including a third party objector. Section 49 of the Water Act provides that the Minister or the Minister's delegate may require an applicant to give notice inter alia of an application for a licence under Section 51. In a letter dated 25 June which "crossed" with the applicant's review application, Southern Rural Water required the application to be advertised. That requirement was reiterated a number of times including in a letter dated the 12th of August. Niebieski has never advertised this application as described It did advertise another application for the grant of half the water sought in this present proceeding. Whether that advertised application was an application actually made or a notional application thought to emerge from some proposed compromise remains unclear. Once this material appeared in the press however the objectors literally "came out of the trees". Almost all complained about the shortness of notice which was given in advertisements appearing on 25 and 28 January with a deadline of 9.00 a.m. 3 February, 27 January was a public holiday.

67. In my view, this situation was intolerable. The appearance of Mr Rose suggests that by some means or other, certain people in the area did become aware of the hearing in this proceeding, nevertheless, Mr Rose was unable to give any very extensive submission and was unable to attend the hearing on its third and final day because of a commitment to meet the State Minister for Aboriginal Affairs at his community on that day. The people in the area seemed to have got themselves "as mad as hell" about an application for an allocation of 1,350 megalitres, being apparently unaware of an application before the Tribunal commencing on the very day nominated as the deadline for the 1350 megalitre submissions for an allocation of twice that amount. Inexplicably the public announcement made by Southern Rural Water merely indicated to these persons that they had an additional period of 21 days to lodge submissions with the Authority. It made no mention of the proceeding before the Tribunal. One of the objects, according to Section 1 of the Water Act of that statute is:

"(e) to maximise community involvement in the making and implementation of arrangements relating to the use, conservation or management of water resources."

68. Section 40 clearly considers that the interests of other water users and potential water users should be considered in a licence application such as this. Section 64 would give a neighbouring land owner locus standii to seek review from the Tribunal of a determination in favour of Niebieski Zamek. A person wishing to oppose Niebieski Zamek on this application as Mr Rose did would most certainly be heard, whether by way of joinder under Section 60 of the Victorian Civil and Administrative Tribunal Act 1998 or otherwise.

69. In his written submission Mr Doyle said that Southern Rural Water's discretion to order advertising "miscarried". Presumably the implication is that the requirement for advertising can simply be ignored. In oral submission he said that since the letter of 25 June was sent "after the matter was before the Tribunal" the requirement to advertise was ineffective. He said that if I was troubled by the situation as to advertising, I should adjourn this proceeding say for 28 days.

70. Had I considered that Niebieski's application was going to succeed I would most certainly have adjourned the matter for 28 days to enable other land owners and occupiers to seek to be heard should they wish to do so. Niebieski's total and absolute refusal to advertise the proposal which it actually took to the Tribunal in the circumstances which I have described is high handed in the extreme. The submission that Southern Rural Water's discretion "miscarried" is not to the point. Administrative action is presumed to be valid until set aside by decree of a Court or Tribunal with competent jurisdiction Telstra Corp Ltd v Flynn [2002] NSWCA 315 at [40] per Beazley JA; Kantor v Murrindindi Shire Council (1997) 18 AATR 285, 296-8 per Ashley J. No order or declaration has been made with respect to the advertising requirement which was imposed. If, contrary to the view which I have expressed, the lodging of the purported review application in this proceeding operated as a "cut off date" the requirement to advertise came in a letter which bore date (as distinct from arrived) prior to the filing of the review application. The mode of calculation of days adopted by Niebieski suggests that it regards the date of the letter rather than the date of its arrival as the key.

71. Were I considering determining this matter favourably to Niebieski, I myself would direct advertising. I would have regarded Southern Rural Water as derelict in its duty to the community which it serves had it not sought to insist upon advertising. In the view that I have taken however, it is unnecessary to say anything further on this subject.

72. In accordance with Section 51 of the Victorian Civil and Administrative Tribunal Act 1998 one determining a review application has jurisdiction to make the following orders:

(c) set aside the decision under review and make another decision in substitution for it; or

(d) set aside the decision under review and remit the matter for re-consideration by the decision-maker in accordance with any directions or recommendations of the Tribunal."

73. The premise underlying Section 51 is that the Tribunal does have jurisdiction to deal with the matter. For reasons I have given in my view, the Tribunal lacks jurisdiction to deal with this proceeding. In my view therefore the proper order is simply to dismiss the proceeding.