Ramsay v Minister for Lands and Water; Hospitality and Racing, The Minister administering the Water Management Act 2000

Court of Appeal (NSW)|2023-11-24|Before: Bell CJ, Payne JA, Adamson JA, Pain J

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

JUDGMENT

BELL CJ: The Appellants, Mr Alexander and Mrs Annette Ramsay and Mr David Ramsay, are the owners of properties in Warren, New South Wales that are located on a floodplain and subject to the Water Sharing Plan for the Macquarie and Cudgegong Regulated Rivers Water Source 2016 (NSW) (WSP 2016). The WSP 2016 was made by the Respondent, the Minister for Lands and Water (the Minister), pursuant to s 45 of the Water Management Act 2000 (NSW) (WM Act). The property owned by Mr Alexander and Mrs Annette Ramsay (which is the subject of proceeding 2023/229221) is known as Flintrock, while the property owned by Mr David Ramsay (which is the subject of proceeding 2023/229215) is known as Banchory.
In 2014, the Appellants registered their interest with the Minister in obtaining access licences which, in accordance with s 56 of the WM Act, would entitle them to use a particular share of the available water within their respective water management areas (a share component). The share could be expressed in several ways including as a maximum volume over a specified period or as a specified number of units. In particular, the Appellants expressed interest in obtaining "replacement floodplain harvesting (regulated river) access licences" (FH licences) which are provided for by s 57A of the WM Act and regs 23A-23L of the Water Management (General) Regulations 2018 (NSW) (WM Regulations).
The Appellants were informed on 3 March 2015 of their preliminary draft eligibility to be issued with FH licences in materially identical terms as follows: "The Office of Water has completed its assessment of your eligibility to participate in the rollout of floodplain harvesting access licences and associated work approvals in respect of the properties [Banchory and Flintrock], Warren. I am pleased to advice [sic] that your ROI has been determined to comply with the eligibility criteria prescribed in the NSW Floodplain Harvesting Policy. To assist in determining your floodplain harvesting entitlement you will be required to complete an Irrigator Behaviour Questionnaire and will be requested to submit an application for a floodplain harvesting access licence/work approval. Further information about these processes will be provided at a later date."
Contrary to what was said in this correspondence, there was no evidence of any request to submit an application for an FH licence nor any document in evidence which resembled any such application, although the Class 1 applications ultimately made by the Appellants in the Land and Environment Court of New South Wales (LEC) referred to applications for FH licences having been made on 4 and 6 October 2022.
The Department of Planning and Environment (the Department) conducted assessments of the Appellants' properties. Throughout 2020 and 2021, the Appellants corresponded with the Department concerning the draft eligible water supply and floodplain harvesting works and modelling in relation to both properties.
On 17 June 2022, the Minister wrote to the Appellants setting out their draft floodplain harvesting entitlements, namely that an FH licence with a share component of 4,041 unit shares would be issued in respect of Banchory and an FH licence with a share component of 2,883 unit shares would be issued in respect of Flintrock. The Appellants were then given an opportunity to provide submissions in response to the proposed share component determinations which was taken up in respect of both properties.
On 8 September 2022, the Minister informed the Appellants that the proposed share component in respect of Banchory would be reduced to 3,926 unit shares and that the share component in respect of Flintrock would be reduced to 2,522 unit shares.
The Appellants then wrote to the Department under the heading "M029 Flintrock - updated floodplain harvesting draft entitlement" on 4 October 2022, asserting that "the recent known levels of irrigation at Flintrock support a share entitlement for Flintrock which should exceed 8000 ML." Criticism was made of the Department's modelling and errors asserted in the model. The letter concluded that "[w]ith those errors rectified, the share entitlement for Flintrock should exceed 8000 ML" (the 4 October letter).
On 6 October 2022, the Appellants wrote to the Department in similar terms in relation to Banchory, asserting a share entitlement which "should exceed 7,500 to 8,000 ML" (the 6 October letter).
The Appellants submitted at first instance and in their Class 1 applications that the 4 and 6 October letters were the "applications" for FH licences which were said to have been refused.
A period of correspondence between the Appellants and the Minister ensued before, on 10 February 2023, the Minister notified the Appellants that a determination had been made, pursuant to s 57A of the WM Act and reg 23K of the WM Regulations, to issue an FH licence in respect of Flintrock with a share component of 2,522 unit shares and an FH licence in respect of Banchory with a share component of 3,926 unit shares (the determinations).
On 17 February 2023, the Appellants were issued with a Statement of Conditions in respect of both FH licences. It provided the following: "Licence details Water source MACQUARIE AND CUDGEGONG REGULATED RIVERS WATER SOURCE Water sharing plan MACQUARIE AND CUDGEGONG REGULATED RIVERS WATER SOURCE 2016 Management zone [GUM COWAL MANAGEMENT ZONE (Flintrock)] [LOWER MACQUARIE RIVER UPSTREAM MANAGEMENT ZONE (Banchory)] Category FLOODPLAIN HARVESTING (REGULATED RIVER) Share component [2,522 units (Flintrock)] [3,926 units (Banchory)] Nominated work(s) [80WA726708 (Flintrock)] [80WA726688 (Banchory)] Tenure type Continuing Conditions The water access licence with Reference No [80AL726766 (Flintrock)] [80AL726768 (Banchory)] is subject to the following conditions: Plan Conditions … Other conditions No other conditions applicable …" (Emphasis in original.)
On 20 February and 21 February 2023, the Appellants lodged separate Class 1 applications in the LEC, originally pursuant to s 368(1)(a) and (k) of the WM Act but later also pursuant to s 368(1)(c), seeking merits review of the determinations of the Minister not to grant an FH licence in respect of each property with the share component sought by the Appellants in the 4 and 6 October letters.
Section 368 of the WM Act stipulates that an appeal lies to the LEC against any of the following decisions of the Minister: "(a) a decision refusing to grant an access licence, … (c) a decision imposing a discretionary condition on an access licence, … (k) a decision refusing to amend an approval in accordance with an application made by its holder." (Emphasis added.) Pursuant to s 17(c) of the Land and Environment Court Act 1979 (NSW) (LEC Act), the LEC has jurisdiction (referred to as "Class 1" of its jurisdiction) to hear and dispose of appeals under s 368 of the WM Act.
On 6 April 2023, the Minister applied for summary dismissal of those applications for want of jurisdiction.

The primary judgment

On 26 June 2023, Pain J (the primary judge) heard the applications for summary dismissal of the separate Class 1 applications in respect of Flintrock and Banchory together. Her Honour held that s 368(1) of the WM Act did not confer a merits appeal right in relation to the determinations of the Minister. Pain J thus summarily dismissed each of the Appellants' proceedings pursuant to r 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) on the basis that the LEC had no jurisdiction to hear or dispose of the matters: Ramsay v The Minister for Lands and Water; Hospitality and Racing, The Minister administering the Water Management Act 2000 [2023] NSWLEC 66 (the primary judgment or PJ).
The primary judge held that the determinations of the Minister made on 10 February 2023 were not refusals of applications for FH licences and thus did not fall within s 368(1)(a) of the WM Act. Her Honour held that a "purposive statutory construction of s 368(1) must be undertaken in the context of the WM Act as a whole and considering the WM Regulation": PJ [115].
First, the primary judge held that the term "an", as used in the phrase "refusing to grant an access licence" contained in s 368(1)(a), should be construed as meaning "any at all" rather than "some" licence of the particular category sought by the Appellants. In so holding, her Honour reasoned as follows (at PJ [120]-[121]): "Only one application for a FH licence was made by each of the Applicants. The FH licences the Minister issued responded to those applications not any other application, the first indicator the Applicants' submission on how the Minister considered the applications is incorrect. The Applicants submitted any variation of the share component sought in their applications gives rise to a refusal of their application. The manner of making an application for a FH licence is not defined in the WM Act or the WM Regulation. No requirements for an application are specified such as for example that a particular amount of water units must be specified. The documents agreed by the parties to be the applications in these matters are letters sent by the Applicants' solicitor to the Department on 4 October 2022 and 6 October 2022 respectively. While reliance was placed on s 63 which identifies that the Minister can grant or refuse a licence, and subs (5) allowing the issue of an access licence with a zero share component, that part of the WM Act deals with specific purpose access licences not including FH licences. The regime set out in s 57A of the WM Act and Pt 2A of the WM Regulation is directed specifically at FH licences, applies to the Applicants' FH licences and is differently drafted. Under cl 23L of the WM Regulation a landholder cannot hold a FH licence with a zero share component. Reliance on the different terms of ss 61, 63 does not assist construction in a way that supports the Applicants. The WM Act and WM Regulation do not support a construction that the statutory scheme places particular significance on the content of an application by a landholder for a FH licence."
Secondly (at PJ [122]), her Honour held that to characterise the determinations as refusals when they operated to grant entitlements to unit shares of water for the respective properties would strain the ordinary meaning of the expression "refusal".
Thirdly, the primary judge considered that the Appellants' construction would have required additional words to be read into s 368(1)(a): PJ [123].
Fourthly, her Honour considered that several aspects of the complex statutory scheme sounded "against a merits appeal being provided by inference": PJ [126]. In particular, the primary judge pointed to the requirement that the Minister assess the eligibility of a landholder to undertake floodplain harvesting with existing infrastructure, the requirement that the Minister determine the share component of the licence in accordance with Div 2 of Pt 2A of the WM Regulations, the complex water modelling requirements to be met by the Minister and the consultation process to be undertaken in response to draft water entitlements issued: PJ [125].
The primary judge also held that s 368(1) of the WM Act should not be construed as conferring a "universal right of merits review". Rather, her Honour held that s 368 provides for appeal rights in defined circumstances, of which the determination of a share component was not one nor was the Minister's decision about whether a landholder is eligible for an FH licence at all. The primary judge reasoned that, "These precise provisions regulating when aspects of an access licence can be appealed against and in what circumstances suggest that limited appeal rights have been provided deliberately": PJ [130].
Her Honour added that nothing in the objects of the WM Act supported the contention that an inference should be drawn on public policy grounds that merits review ought to be available in the Appellants' circumstances: PJ [131]. Moreover, it was held that s 368(1) is clear on its face and that this construction would not impose limitations on the jurisdiction of the LEC that are not express, contrary to principles expounded in The Owners of the Ship "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404 at 421; [1994] HCA 54 (Shin Kobe Maru): PJ [132].
The primary judge also held that the share components of the FH licences were not discretionary conditions such that s 368(1)(c) would confer merits appeal rights. Rather, her Honour held that the share component of an access licence is an entitlement pursuant to s 56(1)(a) while the powers of the Minister to impose and revoke discretionary conditions are separately conferred by ss 66(1)(b), 67 and 68 of the WM Act: PJ [136]. Her Honour considered that it "would be at odds with and act counter to the important benefit held by a licence holder for the amount of unit shares allocated in a licence to be discretionary and therefore subject to being varied unilaterally by the Minister under s 68." Rather, it was reasoned that the separate provisions contained in s 68A for amending the share component of a licence suggest that it is treated differently to discretionary conditions: PJ [137].
At PJ [138], the primary judge also referred to the Statements of Conditions set out at [12] above. Her Honour held that the most likely place for a discretionary condition would have been under the heading "Other conditions", rather than under the heading "Licence Details" where the share component of each FH licence was set out.
Thus, her Honour dismissed the Appellants' applications pursuant to r 13.4(1)(b) of the UCPR, on the basis that the Appellants had no reasonable prospects of success or no reasonable cause of action: PJ [140]-[141].

Grounds of Appeal

The Appellants challenge the primary judge's finding that the determinations were neither decisions of the Minister to refuse to grant FH licences nor decisions of the Minister to impose discretionary conditions on FH licences, and her Honour's ultimate conclusion that the LEC lacked jurisdiction to hear and dispose of their applications.
By way of a Notice of Appeal filed on 18 August 2023, the Appellants raised four Grounds of Appeal which can be summarised as follows: 1. Grounds 1 and 2: The primary judge erred on a question of law in finding that the determination of the Minister to grant the Appellants FH licences with share components of only 3,926 unit shares and 2,522 unit shares respectively in circumstances where the Appellants had applied for FH licences with share components of 8,000 unit shares per annum were not decisions refusing to grant an access licence within the scope of s 368(1)(a) of the WM Act. 2. Grounds 3 and 4: The primary judge erred on a question of law in not finding that the share components of the FH licences granted were "discretionary conditions" in relation to which s 368(1)(c) of the WM Act provided an express appeal right.

The statutory scheme

In the course of argument, the parties referred to many provisions of the WM Act and the WM Regulations. Some of the key provisions are set out below. Others are referred to in the course of considering the parties' respective submissions in the context of the separate grounds of appeal.
Section 3 of the WM Act specifies that its objects are: "to provide for the sustainable and integrated management of the water sources of the State for the benefit of both present and future generations and, in particular - (a) to apply the principles of ecologically sustainable development, and (b) to protect, enhance and restore water sources, their associated ecosystems, ecological processes and biological diversity and their water quality, and (c) to recognise and foster the significant social and economic benefits to the State that result from the sustainable and efficient use of water, including - (i) benefits to the environment, and (ii) benefits to urban communities, agriculture, fisheries, industry and recreation, and (iii) benefits to culture and heritage, and (iv) benefits to the Aboriginal people in relation to their spiritual, social, customary and economic use of land and water, (d) to recognise the role of the community, as a partner with government, in resolving issues relating to the management of water sources, (e) to provide for the orderly, efficient and equitable sharing of water from water sources, (f) to integrate the management of water sources with the management of other aspects of the environment, including the land, its soil, its native vegetation and its native fauna, (g) to encourage the sharing of responsibility for the sustainable and efficient use of water between the Government and water users, (h) to encourage best practice in the management and use of water. …"
Section 56 of the WM Act sets out the following with respect to "access licences" or "water access licences": "(1) An access licence entitles its holder - (a) to specified shares in the available water within a specified water management area or from a specified water source (the share component), and (b) to take water - (i) at specified times, at specified rates or in specified circumstances, or in any combination of these, and (ii) in specified areas or from specified locations, (the extraction component). (2) Without limiting subsection (1) (a), the share component of an access licence may be expressed - (a) as a specified maximum volume over a specified period, or (b) as a specified proportion of the available water, or (c) as a specified proportion of the storage capacity of a specified dam or other storage work and a specified proportion of the inflow to that dam or work, or (d) as a specified number of units. (3) Shares in available water may be assigned generally or to specified categories of access licence." (Emphasis in original.)
The various categories of access licences that may be granted are listed in s 57 of the WM Act. These include in s 57(1)(k1), "floodplain harvesting (regulated river) access licences".
Section 57A provides that: "57A Special provisions relating to floodplain harvesting access licences (1) The regulations may make provision for or with respect to the conversion of actual or proposed floodplain water usage by landholders into any of the following categories or subcategories of floodplain harvesting access licences (replacement floodplain harvesting access licences) - (a) floodplain harvesting (regulated river) access licences, ... (2) Without limiting subsection (1), the regulations may make provision for or with respect to the following - (a) the circumstances in which actual or proposed floodplain water usage by landholders will give rise to replacement floodplain harvesting access licences, (b) the terms and conditions of replacement floodplain harvesting access licences, (c) the share components of replacement floodplain harvesting access licences (including the process for the determination of such share components) …" (Emphasis in original.)
Section 57(1)(k1) and (k2) and s 57A were inserted into the WM Act following the passage of the Water Management Amendment Act 2014 (NSW). In the Second Reading Speech introducing those amendments, the Minister said: "Currently under the Act, licences can only be issued for a zero volume, for certain specific purposes, or through a controlled allocation. None of these mechanisms truly suits floodplain harvesting. These amendments will allow regulations to be developed that will prescribe the circumstances in which existing floodplain harvesting activities will give rise to a licence and the terms and conditions of such licences, including their water share component. The regulations will provide a clear framework within which licensing of this important water harvesting activity can proceed."
The relevant regulation contemplated by s 57A(1) is reg 23K which provides: "23K Issue of replacement floodplain harvesting access licences (1) A replacement floodplain harvesting access licence takes effect, and the eligible landholder is taken to hold the licence, only after the Minister gives written notice to the landholder of - (a) the category of the replacement floodplain harvesting access licence, and (b) the final share component of the licence determined in accordance with Division 2. (2) The categories of replacement floodplain harvesting access licence are - (a) for an eligible landholder if, on 3 July 2008, a regulated river access licence was in force in relation to the land on which the landholder's eligible water supply work is located - a floodplain harvesting (regulated river) access licence, and (b) otherwise - a floodplain harvesting (unregulated river) access licence."
Pursuant to s 61(1) of the WM Act, where an access licence is "a specific purpose access licence" or has a "zero share component", or where the right to apply for the licence has been acquired by way of an auction, tender or other means pursuant to s 65, an access licence is to be obtained by way of an application to the Minister under s 61.
A "specific purpose access licence" is defined in the WM Act as: "(a) a major utility access licence, or (b) a local water utility access licence, or (c) a domestic and stock access licence, or (d) an access licence of a subcategory of access licence, or (e) an access licence of a type that is declared by the regulations to be a specific purpose access licence."
Section 63 sets out the following in relation to the determination of applications for access licences: "63 Determination of applications (1) The Minister may determine an application for an access licence by granting or refusing to grant the licence. (1A) An access licence may be granted unconditionally or subject to such conditions as are required or permitted to be imposed under Division 3. … (4) An access licence must specify - (a) in relation to its share component, the water management area or water source to which it relates, and (b) in relation to its extraction component, the times, rates or circumstances in which, and the areas or locations from which, water may be taken under the licence. (5) An access licence may be issued with a zero share component or zero extraction component (or both) but, even if it is issued with a zero share component, must still specify the water management area or water source to which it relates. …"
Eligibility for FH licences is provided for by reg 23B of the WM Regulations: "(1) The Minister must determine if a landholder is eligible for a replacement floodplain harvesting access licence. (2) A landholder is eligible if the Minister is satisfied that, on 3 July 2008, a water supply work capable of floodplain harvesting - (a) was fully constructed on the landholder's land and a relevant approval was in force that specified - (i) the work, or (ii) a related or connected work, or (b) was fully constructed on the landholder's land without a relevant approval and an approval under the Water Act 1912, Part 8 was not required to construct the work, or (c) was fully or partially constructed, or proposed to be constructed, on the landholder's land and an application for a relevant approval that specified the work was made but not determined. (3) In determining whether or not a landholder is eligible, the Minister must consider relevant information provided by the landholder in relation to the water supply work. (4) The Minister may determine that a landholder is not eligible only if - (a) the landholder is given, whether under this clause or otherwise, written notice and 28 days in which to make submissions about the proposed determination of eligibility, and (b) the Minister has considered submissions received from the landholder within the 28 days. (5) If the Minister determines that a landholder is eligible for a replacement floodplain harvesting access licence under this clause, the Minister must determine the share component of the licence in accordance with Division 2. (6) In this clause - related or connected work means a work related or connected to the water supply work specified in the relevant approval that is - (a) constructed on the land specified in the approval, and (b) located within the footprint of the work specified in the approval. relevant approval means - (a) an approval under the Act, Chapter 3, Part 3, or (b) a licence or permit within the meaning of the Water Act 1912, Part 2, or Part 8 as in force immediately before the repeal of that Part. …"
Regulations 23C-23E set out how the Minister is to go about determining the share component of an FH licence while regs 23G-23J set out the models to be adopted by the Minister for the purposes of determining the share component of an FH licence and the information to be published by the Minister in relation to the model used.
Regulation 23L of the WM Regulations adds the following with respect to the issuance of FH licences: "23L Circumstances in which replacement floodplain harvesting access licences are not issued Despite another provision of this Part, a landholder is not eligible for a replacement floodplain harvesting access licence and does not hold a licence if - (a) the final share component for the licence is determined to be zero or less, …"
The fact that it is the procedures set out by the regulations made pursuant to s 57A of the WM Act that govern determinations of FH licences, rather than ss 61 and 63, is reaffirmed by cl 98 of Sch 9 which provides the following: "98 Amendments concerning floodplain harvesting access licences (1) Part 2 of Chapter 3 is taken not to have commenced to apply to any category of floodplain harvesting access licences in connection with a place or water source regardless of whether or not that category was expressly excluded from a previous application proclamation for the place or source. (2) A previous application proclamation for a place or water source is a proclamation under section 55A made with respect to the place or water source that was published before the day on which section 57A was inserted by the amending Act. Note - A proclamation under section 55A operates to apply Part 2 of Chapter 3 to parts of the State or water sources specified by the proclamation. (3) This clause applies despite section 55A (or a proclamation made under that section) or Schedule 10. (4) However, nothing in this clause limits the application of section 57A (as inserted by Schedule 1.13 to the amending Act), or any regulations made for the purposes of that section, to the conversion of actual or proposed floodplain water usage by landholders into floodplain harvesting access licences in connection with a water source to which subclause (1) applies." (Emphasis added.)
On 16 February 2022, the Water Management (Application of Act to Certain Water Sources) Proclamation 2022 was issued which negates the effect of cl 98(1)-(3) of Sch 9 by declaring that Ch 3 Pt 2 of the WM Act will apply to FH licences. No specific regulations have been made pursuant to s 57A of the WM Act in respect of the imposition of conditions on FH licences. As such, the provisions contained in Ch 3 Pt 2 applicable to access licences generally will also apply to FH licences.
Sections 67 and 68 of the WM Act provide the following in relation to the imposition of conditions on access licences: "67 Imposition of conditions after access licence is granted (1) The Minister may impose discretionary conditions on an access licence after it has been granted, but only if the Minister - (a) has given written notice to the holder of the access licence that the Minister proposes to impose such conditions, and (b) has given the holder of the access licence a reasonable opportunity to make submissions to the Minister with respect to the proposed conditions, and (c) has taken any such submissions into consideration. … 68 Revocation of conditions The Minister may at any time revoke any discretionary conditions to which an access licence is subject, whether or not on the application of the holder of the access licence."
The relevant terms of s 368 of the WM Act have been noted in [14] above.

Grounds 1 and 2

By Grounds 1 and 2 of the appeal, the Appellants submitted that the determinations amounted to a decision by the Minister to refuse an access licence, namely an FH licence with a share component of 8,000 unit shares, with the consequence that their attempted appeal fell within the Class 1 jurisdiction of the LEC by virtue of s 368(1)(a) of the WM Act.
Mr Ireland, who appeared for the Appellants, repeated many of the arguments that had been rejected at first instance, including that the primary judge had given a restrictive interpretation to s 368(1)(a) which was contrary to Shin Kobe Maru at 421, citing also Roy Morgan Research Centre Pty Ltd v Commission of State Revenue (Vic) (2001) 207 CLR 72; [2001] HCA 49 at [11] and Knight v FP Special Assets (1992) 174 CLR 178 at 205; [1992] HCA 28. The Appellants favoured a construction of s 368(1)(a) which would see the term "an" access licence read as a refusal to grant "the" access licence of the particular kind applied for. By the Appellants' submission, where one kind of access licence has been granted, another has been refused.
The Appellants also argued that the construction adopted by the primary judge would render s 368(1)(a) ineffective as a real appeal right in every case except where there was a complete refusal to grant any access licence at all. On their submission, this would be to ignore cases such as the present where the share component of the access licence granted was so materially and substantively different to the one applied for that its grant was tantamount to a "decision refusing to grant an access licence".
Ms Heger, who appeared with Mr Hoare for the Respondent, supported the reasoning of the primary judge but also advanced a fresh argument in relation to s 368(1)(a). This argument involved the following propositions: 1. Section 57A(1) of the WM Act establishes that regulations may make provision for the conversion of actual or proposed floodplain water usage into replacement floodplain harvesting access licences. In particular, s 57A(2) provides that the regulations may set out the circumstances in which actual or proposed floodplain water usage by landholders "will give rise to" replacement floodplain harvesting access licences. 2. Sub-regulation 23B(1) of the WM Regulations mandates that "the Minister must determine if a landholder is eligible for a replacement floodplain harvesting access licence." Sub-regulation 23B(2) sets out the criteria for eligibility and sub-reg (5) provides that once a landholder is held to be eligible for a replacement floodplain harvesting access licence, then "the Minister must determine the share component of the licence." 3. Once the Appellants were advised of their eligibility for FH licences on 3 March 2015, this triggered the power and duty of the Minister pursuant to reg 23B(5) to determine the share component of those licences. The exercise of the Minister's power and duty to determine the share component of the licences was contingent only on a determination of eligibility, not on any application for eligibility or for a particular share component. 4. Pursuant to reg 23C, the Minister must determine the share component of an FH licence pursuant to the three models referred to in Div 3 of Pt 2A of the WM Regulations. A final determination as to the share component of a licence may only be made after the landholder is given 28 days within which to make submissions about the proposed share component: reg 23F. 5. On 17 June 2022, the Appellants were advised of the proposed share components calculated by the Department in accordance with the eligible water supply works model provided for by regs 23G and 23I. Thereafter, submissions were sought in accordance with reg 23F and provided on 20 and 21 June and 11 and 15 July 2022. On 8 September 2022, the Appellants were advised of their revised proposed share components and further submissions were invited. The 4 and 6 October letters were thus not applications for FH licences with particular share components but submissions invited by the Department pursuant to reg 23F in response to the revision of their proposed share components.
The argument cohered with the fact that, although the primary judge proceeded on the basis, as argued by the Appellants, that the 4 and 6 October letters were "applications", it is very difficult to so characterise them (see [8]-[10] above). Those letters were in truth complaints about the models used by the Minister to determine share components.
On this version of the Respondent's argument, not only were there no applications but nothing was refused. In short, once the Appellants were held to be eligible for FH licences on 3 March 2015, this triggered the Minister's obligation under reg 23B(5) to "determine the share component" of the FH licences and once notification of the determinations was given to the Appellants on 10 February 2023 pursuant to reg 23K, the FH licences "took effect".
This argument, although not advanced at first instance, should be accepted. No prejudice arises from it being raised on appeal, and it turns on an analysis of the statutory scheme. There being, in truth, no relevant application, there was nothing to refuse, and the licence was not so much granted but rather "took effect", to use the language of reg 23K. This argument was reinforced by reference to the Minister's Second Reading Speech noted at [34] above and, in particular, the statement that "[t]hese amendments will allow regulations to be developed that will prescribe the circumstances in which existing floodplain harvesting activities will give rise to a licence …" (Emphasis added.)
The Respondent's argument was particularly well put in [33] of the written submissions which I accept: "Wholly absent from s 57A of the Act and Pt 2A of the Regulations is any concept of an "application" by a landholder for a replacement floodplain harvesting access licence. The process is instead self-actuating - albeit with opportunity for the provision of relevant information by landholders under reg 23B(3) and the opportunity for submissions under regs 23B(4) and 23F. In summary, the Minister determines on their own motion whether a person is eligible, and then determines what the share component should be. Once those two things have occurred, and the landholder is given the notice of the licence category and share component as required by reg 23K(1), the licence simply "takes effect" under reg 23K. No "decision" is made to grant or refuse a licence for the purposes of s 368(1)(a). This may be contrasted with other access licences, the grant of which requires an "application" made under s 61 to be "determined" under s 63."
Even if one were to adopt the strained interpretation of the 4 and 6 October letters as "applications", it is somewhat perverse to describe a decision to grant a licence as simultaneously a refusal to grant a licence. The Appellants argument proved too much. It would render every grant of a licence in terms even slightly different from that which was sought simultaneously a refusal to grant a licence. This would be at odds with the carefully rendered scheme of s 368 of the WM Act under which, as submitted by Ms Heger, the various sub-paragraphs giving rise to a Class 1 appeal correspond to specific aspects of the statutory scheme. For example, s 368(1)(e) was said to correspond with s 71L which concerns decisions "refusing consent to a dealing in an access licence" and s 368(1)(f) was said to relate to s 78 which concerns decisions to suspend or cancel access licences.
This carefully wrought appellate scheme also illustrates why incantation of Shin Kobe Maru and the well-known principle for which it stands was not wholly apposite in the present case. As P Herzfeld and T Prince point out in their valuable work, Interpretation (2nd ed, 2020, Law Book Co) at [9.700], a "more narrowly expressed but sounder formulation" than Shin Kobe Maru was enunciated by the High Court in the following year in PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 313; [1995] HCA 36, namely that "a provision conferring a power to be exercised judicially should be construed as liberally as its terms and context permit" (emphasis added); see also, Australian Building and Construction Commission v Construction, Farming, Mining and Energy Union (2018) 262 CLR 157; [2018] HCA 36 at [103].
Further, the Appellants' construction of s 368(1)(a) involves the reading of words into it, namely "refusing to grant particular entitlements under an access licence", as Mr Ireland was constrained to accept.
The detailed analysis of the primary judge was careful and thorough. Her Honour was correct to hold that s 368(1)(a) was not engaged. Appeal Grounds 1 and 2 should be dismissed.

Grounds 3 and 4

By Grounds 3 and 4 of the Notice of Appeal, the Appellants submitted that the determinations involved a decision to impose a "discretionary condition" within the meaning of s 368(1)(c) of the WM Act, and therefore conferred a right of appeal to the LEC. The identification of the number of shares was asserted to amount to a "discretionary condition" on the FH licences.
The Appellants repeated their submission that a liberal construction should be afforded to a "jurisdiction conferring" provision such as s 368(1)(c). It was also submitted that, although the primary judge correctly identified at PJ [137] that access licences must have a share component, the imposition of a share component is inherently discretionary in that the Minister, pursuant to s 56 of the WM Act, must decide the amount of the share component and the form of expression that it will take.
The Appellants also relied on the fact that the share component of an access licence could be amended pursuant to s 68A(1) of the WM Act.
The Appellants' arguments in relation to s 368(1)(c) had little merit, in my opinion, and the primary judge was correct to reject them.
The specification of the number of shares to which a licensee was entitled was neither discretionary nor a condition of the licence.
First, the specification of the number of shares to which a licensee was entitled is described in the WM Act as a component of any licence granted: see, for example, s 56(1)(a). Section 63(1A) provides that an access licence which, by definition, must include its share component, may be granted unconditionally. This being the case, the share component of an access licence cannot be a condition of it, let alone one that is discretionary.
As will be seen, the term "condition" is used elsewhere in the WM Act and the WM Regulations but not in the context of a share component.
Further, there was nothing discretionary about the specification of the relevant share component: it is a requirement under the WM Act that the licence identifies its share component. This is not something expressed to be "at the Minister's discretion": cf. ss 63A(1) and 63B(1). The share component is the function of the output of a number of models which the Minister was required to follow. Thus, s 23G(1) of the WM Regulations provided: "23G Models for determination of share components (1) The Minister must adopt the following models for a water source for the purposes of determining the share component of a replacement floodplain harvesting access licence under clause 23C for the water source - (a) the current conditions model, (b) the eligible water supply works scenario model, (c) the plan limit compliance scenario model. (2) The Minister must publish the following information in relation to the models on the Department's website - (a) a description of the model, (b) the objectives for the model, (c) the matters the model represents, (d) the data the model relies on."
It was also submitted that reg 23F conferred a discretion on the Minister in relation to the determination of a share component. That regulation provided: "23F Final determination of share components The Minister may determine the share component for a replacement floodplain harvesting access licence for an eligible landholder only if - (a) the landholder is given, whether under this clause or otherwise, written notice and 28 days in which to make submissions about the proposed share component, and (b) the Minister has considered submissions received from the landholder within the 28 days." (Emphasis added.)
The purpose of reg 23F was not to confer a discretion on the Minister as to the determination of a share component but to make it plain that such a determination could not be made until there had been compliance with the two matters referred to in sub-reg (a) and (b). This is the force of the words "only if". Read in context, the use of the expression "may … only if …" is akin to "may not unless". The word "may", which is often but not always "discretion conferring", cannot be read in isolation.
Next, the WM Act plainly distinguishes between components of a licence and conditions: compare, for example, s 57A(2)(b) referring to "terms and conditions" and (c) referring to "the share components". There is also a separate Div 3 of Pt 2 of the WM Act entitled "Conditions, duration and amendment of access licences".
The WM Act also distinguishes between "mandatory conditions" and "discretionary conditions". Section 66 is a detailed provision which relevantly provides: "66 Conditions of access licence generally (1) An access licence is subject to such conditions as the Minister may from time to time impose - (a) which must include such conditions as are required to be imposed on the licence by this Act or by any relevant management plan, and (b) which may include such other conditions, such as - (i) conditions to give effect to any agreement between an applicant and objector under section 62 (5), and (ii) conditions relating to the protection of the environment, as the Minister thinks fit (discretionary conditions). (1AA) An access licence is subject to any mandatory conditions imposed by this Act or the regulations. (1A) Mandatory conditions (other than conditions imposed by the regulations) do not have effect in relation to an access licence unless they are included in the terms of the licence. (2) A mandatory condition prevails over a discretionary condition to the extent of any inconsistency between them. (5) In this section, mandatory condition means a condition referred to in subsection (1) (a) or (1AA) or imposed under section 8E."
As already pointed out, there is a symmetry and correspondence between s 368(1) which identifies a number of matters in respect of which a merits appeal lies and other sections of the WM Act. In the case of s 368(1)(c), the corresponding sections of the Act are ss 66, 67 and 68.
Contrary to the Appellants' argument noted at [60] above, the terms of s 68A of the WM Act also point strongly against the share component being a discretionary consideration and would be wholly superfluous if share components were discretionary conditions. Section 68A(1) provides that the Minister may only amend the share component of an access licence "in accordance with this Act or the relevant management plan." The balance of s 68A tightly circumscribes the circumstances in which a share component may be amended. Sub-sections 68A(1C) and (1D) provide: "(1C) The Minister may amend the share component of a specific purpose access licence. (1D) An amendment may only be made under subsection (1C) if that part of the share component that is the subject of the amendment is no longer necessary for the purpose for which the specific purpose access licence was granted."
Licences of the kind under consideration in the present case were not "specific purpose access licence[s]".
The primary judge was correct for the reasons she gave to dismiss the Appellants' argument based on s 368(1)(c) of the WM Act. Appeal Grounds 3 and 4 should be rejected.

Conclusion

For all of the above reasons, these appeals should be dismissed with costs.
PAYNE JA: I agree with the orders proposed by the Chief Justice and with his Honour's reasons.
ADAMSON JA: I agree with Bell CJ.

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: 12 December 2023

Water Management Amendment Act 2014(NSW)

Water Management (General) Regulations 2018(NSW)

Water Management Act 2002(NSW)

Water Management Act 2000(NSW)ss 3, 45, 56, 57, 57A, 61, 63, 66, 67, 68, 68A, 368, Sch

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