NSWNSWLEC

Randren House Pty Ltd v Water Administration Ministerial Corporation

[2019] NSWLEC 5

Land and Environment Court (NSW)|2018-07-06|Before: Molesworth AJ

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2018-07-06

Before

Molesworth AJ

Catchwords

[2010] HCA 3 Bryan v Lane Cove Council and Anor (2007) 158 LGERA 390
[2011] NSWLEC 83 Commonwealth v Tasmania (1983) 158 CLR 1
[1983] HCA 21 Dietrich v The Crown (1992) 177 CLR 292
[1992] HCA 57 Gartner v Kidman (1962) 108 CLR 12

Source

Original judgment source is linked above.

Catchwords

[2010] HCA 3 Bryan v Lane Cove Council and Anor (2007) 158 LGERA 390[2011] NSWLEC 83 Commonwealth v Tasmania (1983) 158 CLR 1[1983] HCA 21 Dietrich v The Crown (1992) 177 CLR 292[1992] HCA 57 Gartner v Kidman (1962) 108 CLR 12[1962] HCA 27 Great Lakes Council v LaniGreat Lakes Council v Lani and Lampo Pty Limited (2007) 158 LGERA 1[2008] NSWLEC 165 ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140[2009] HCA 51 John Young and Company v The Bankier Distillery Company [1893] AC 691 Jones v Dunkel (1959) 101 CLR 298[1959] HCA 8 Katter v Melhem (2015) 90 NSWLR 164[2015] NSWCA 213 Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291[1987] FCA 713 Lee v Commonwealth (2014) 229 FCR 431[2014] FCAFC 174 Manly Council v Byrne [2004] NSWCA 123 Mason v Hill (1833) 110 ER 692 Maxwell v Murphy (1957) 96 CLR 261[1957] HCA 7 Minister Administering the Water Management Act 2000 v Sharkey (2017) 226 LGERA 322[2017] NSWCA 319 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24[1986] HCA 40 Minister for Immigration and Citizenship v SZJSS (2010) CLR 164

Judgment (129 paragraphs)

[1]

Background

The First Applicant is the owner of a property known as "Somerset Park", in the Murrumbidgee Irrigation Area in southern New South Wales. The Second Applicant is the occupier and manager of "Somerset Park". The property had been held by the Andrews family since 1974, when the Second Applicant's father, Mr Andrew Andrews, moved his olive oil enterprise from the Liverpool district to "Somerset Park".
It is the paddock known as the Lake Paddock on "Somerset Park" that takes 'centre stage' with respect to all the issues arising in these proceedings. Within the Lake Paddock, there had evidently been, from what might have been 'time immemorial' (certainly to the Andrews family), an ephemeral water body which had recurrently, in normal conditions been filled, flushed and then receded as the seasons and conditions changed. Variously referred to as the 'lagoon' or 'billabong', most probably it would be correctly defined as 'flood-out land'. Entering the Lake Paddock from its junction with Yanco Creek is a diversion channel referred to throughout the proceedings as the "unnamed watercourse".
The plan at Annexure A, which was Exhibit C tendered during the hearing, shows the location of Yanco Creek as it traverses "Somerset Park". The areas of inundation on Lake Paddock can be identified on the plan as generally comprising Lots 40, 41, 42, 50, 58 and 91 and portions of abutting lots. Importantly, the blue arrow points to the 'unnamed watercourse' entering Lake Paddock from its junction with Yanco Creek.
The factual history of the issues in these proceedings are complex in the extreme, extending back almost 40 years (a chronology of key events is at Annexure B to this judgment) with some of the material proving to be somewhat opaque. Given the complexity, and the reality that in this case "the devil is in the detail", rather than burdening the primary text of the judgment with a multiplicity of cross-referencing to the source of my summaries of the evidence and submissions analysing the material, I have adopted the course of placing much material in endnotes to the judgment. Although these endnotes provide sufficient reference to the key material I have relied upon in this judgment, they do not represent the complete body of material examined. It follows that all material exhibited during the proceedings and referenced in the course of submissions has been examined and thereby considered.

[2]

The 1986 Licence

On 23 April 1986, The First Applicant was granted licence number L45398 pursuant to the 1912 Act for "a diversion channel" for "water supply for irrigation" (1986 Licence). [1] The 1986 Licence was subject to 12 conditions including (relevantly): 1. Condition 7: "The licensee shall construct in the diversion channel near its point of offtake a timber or concrete regulator with a sill level fixed at not lower than 1.11 metres below the level of a benchmark established on a gum tree on the left bank of Yanco Creek near the works and particulars of which are retained in the office of the Water Resources Commission." 2. Condition 8: "Drop boards or some similar form of effective control maybe [sic] used over the sill of the regulator referred to in condition 7 to a height of not less than 0.6 metres below the bench mark referred to in condition 7 and shall be operated in accordance with conditions 9 and 10." 3. Condition 9: "Subject to condition 10 the drop boards or control device may only be operated to provide flows in the diversion channel with the permission of the Manager Murrumbidgee Division of the Water Resource Commission at Leeton - such permission could be expected to coincide during periods when surplus flows have been declared as being available in Yanco Creek from its offtake from the Murrumbidgee River to Morundah." 4. Condition 10: "Notwithstanding condition 9 the control device shall be operated so as to not cause any inundation by floodwaters."
The 1986 Licence has been renewed on a number of occasions in the intervening years namely, on 22 October 1991, 24 April 1996, 6 September 2002, 16 June 2008, and 24 August 2012. At some point between 22 October 2001 and 24 April 1996, the 1986 Licence was renumbered 40SL45398.
The Respondents asserted that: "A condition in substantially the same terms has attached to the first applicant's licence ever since [it was granted]". [2]
The parties agree that the regulator referred to in the aforementioned conditions was not built, and that the First Applicant has never used the water in the diversion channel or the Lake Paddock for irrigation. [3]

[3]

Communications between the First Applicant and the Department

Over the period since the granting of the 1986 Licence, there has been much correspondence between the First Applicant and the Department. This correspondence sequentially dealt with issues as they arose over the years particularly with respect to the 1986 Licence, and so has had to be examined in these proceedings being very material to the Court's determination of the issues.
By letter dated 15 December 1995, Mr Andrew Andrews (a director of the First Applicant, and Mr Paul Andrews' father) wrote to Mr Steve Webb of the (then) Department of Water Resources (Department, which will be used henceforth to refer to the department responsible for the administration of the Water Management Act, regardless of subsequent changes of name), and raised concerns with increased water levels in Yanco Creek: As you are aware, the Department has substantially increased the level of water in the Yanco Creek. This was done without any prior consultation or advice to us. This part of our property was an oasis which nurtured native flora and fauna. Where seasonal flood waters before were beneficial to grazing, the environment and ecology, these areas have now turned into permanent lakes. Dead and dying trees large and small are the result of the department's policy. Urgent action by the department is needed to remedy the situation. [4]
In a letter dated 8 January 1996, Mr Webb replied to Mr Andrews stating: In 1986 the Department issued you with a license [sic] for a diversion channel and regulator specifically designed to preclude the regulated flows at that time but enabling storage of flood waters in the lagoon for irrigation purposes. In recognition that flows have increased in the period 1986-1995 and following an inspection in February 1995, the conditions attaching to the licence relating to the height of the regulator were amended such that when the regulator is constructed current regulated flows would be precluded. If the regulator subject to the license [sic] application were to be constructed as per the conditions specified, the concerns outlined in the letter would not exist. The license [sic] was originally issued to allow storage of flood flows for irrigation. If this is no longer the case, then the licence would no longer be required. If this is so and, given that the authorised works have not been installed in almost 10 years the Department is in a position to revoke the license [sic] or allow it to lapse as of 23rd April, 1996 when it is due for renewal. If the license [sic] were to lapse then it may be prudent for the Department to block off the diversion to preclude regulated flows and halt the flooding related by you. The lapsed license [sic] would also exclude you from pumping from the lagoon for irrigation purposes. [5]

[4]

The 2012 proceedings

On 6 February 2012, the Department gave notice to the First Applicant of the proposed refusal of the application to renew the 1986 Licence. [20]
On 12 April 2012, the application was refused. [21] The First Applicant subsequently commenced proceedings in this Court to challenge that refusal. [22]
On 23 August 2012, the proceedings were settled, prior to a full hearing, with the Court making orders by consent allowing the First Applicant's appeal and requiring the First Respondent to renew the 1986 Licence (2012 Court Orders). [23] The Court also noted the parties' agreement that: (a) Within fourteen … days the Applicant will apply and the Respondent will receive an application from the Applicant to vary the renewed licence by amending condition 13 and providing for a term containing a volumetric allocation of 1,000 megalitres, (b) Within twenty eight … days of receipt of the Application the Respondent will grant the application including any linked modification, (c) The parties agree that within three…months of granting the variation the Applicant will, after informing the Respondent, install the meter referred to in condition (1) and on any pump, and the regulator and sill referred to in condition (7).
On 24 August 2012, in accordance with the Court's orders the First Respondent renewed the 1986 Licence on its existing terms (including the zero allocation). [24]
By letter dated 28 August 2012, and received by the First Applicant on 3 September 2012, [25] Mr Webb of the Department set out his understanding that, within 14 days the First Applicant would make an application to modify the licence such that it: 1. authorises a pump on the lagoon/swamp in addition to the works currently authorised on Lots 40 and 42 in DP754548 and 2. provides for an unregulated volumetric allocation of 1000 ML. Pursuant to that request, it is further understood that within 28 days the Water Administration Ministerial Corporation will make the appropriate modifications as agreed, by serving a notice under s 17A(2) of the Water Act 1912. [26]
On 29 August 2012, in accordance with notation (a) on the 2012 Court Orders the First Applicant applied to vary condition 13 "to reflect an allocation of 1,000 megalitres", [27] and, on 3 September 2012, the First Applicant applied for a modification of the licence, "to reflect that the licence authorizes a pump on the lagoon in addition to the works currently authorized …". [28]

[5]

The 2012 Unregulated WSP

On 3 October 2012, the Lieutenant-Governor of New South Wales made the Water Management (Application of Act to Certain Water Sources) Proclamation (No 2) 2012 (the Proclamation) under the Water Management Act.
On 4 October 2012, the Water Sharing Plan for the Murrumbidgee Unregulated and Alluvial Water Sources 2012 (2012 Unregulated WSP), made under s 50 of the Water Management Act, commenced operation. Impugned Decisions 4 and 5 (as set out at [9B] and [9C] of the SFAPOC) concern the making of the 2012 Unregulated WSP.
The making of the Proclamation resulted in Pts 2 and 3 of the Water Management Act being applied to the water sources to which the 2012 Unregulated WSP (purportedly, for the purposes of these proceedings with respect to the water body in the Lake Paddock) applied; and that pre‑existing licences held under the 1912 Act in respect of those water sources were converted into entitlements under the Water Management Act, by the operation of Schs 10 and 11 to the Water Management Act.
The Respondents explained the purported application of the 2012 Unregulated WSP to the water body in the Lake Paddock thusly: The first applicant's [1986 Licence] was in respect of a water source (the "Murrumbidgee Western Water Source" or MWWS) to which the 2012 Unregulated WSP applied: see cl 4(1)(a)(xxvii) of the 2012 Unregulated WSP. The MWWS is a large geographic area set out on the Plan Map referred to in cl 4(2) - see the area shaded in light green on Exhibit 2. The MWWS includes all water "occurring naturally on the surface of the ground" within that geographic area (cl 4(3)(a)) as well as "rivers lakes and wetlands within that geographic area (cl 4(3)(b)). The water in the Lake Paddock is a "wetland" and thus the MWWS includes that water. [33]
The 2012 Unregulated WSP, having been purportedly made (noting that this is Decision 5 under review in these proceedings), and the water body within the Lake Paddock purportedly falling within it (Decision 4 under review in these proceedings), by operation of cl 3 of Sch 10 to the Water Management Act, the 1986 Licence was converted into two new instruments under the Water Management Act: [34] 1. Approval 40CA412879 (the Approval); [35] and 2. WAL 33313 (the WAL). [36]
With similar caveats as set out at [47] above, upon commencement of the 2012 Unregulated WSP, by the operation of cl 3 of Sch 10 to the Water Management Act, certain conditions of the 1986 Licence were converted into conditions of the Approval and the WAL. [37]

[6]

The 2016 Regulated WSP

On 19 May 2015, the Minister extended the Water Sharing Plan for the Murrumbidgee Regulated River Water Source 2003 (2003 Regulated WSP), which had been made under s 50 of the Water Management Act, until the earlier of the commencement of a replacement management plan or 1 July 2016. [40] Notification of this decision was published in the Government Gazette on 29 May 2015. [41] SFAPOC [9E] (hereafter referred to as Decision 7) relates to this decision.
On 1 July 2016, the Water Sharing Plan for the Murrumbidgee Regulated River Water Source 2016 (2016 Regulated WSP) replaced the 2003 Regulated WSP. SFAPOC [9F] (hereafter referred to as Decision 8) relates to this decision.

[7]

Procedural history

This matter has a somewhat tortured procedural history, including numerous amendments to the pleadings.
In the period spanning from 22 June 2015 (the commencement of the proceedings) to 4 August 2017, the final hearing of these proceedings has been delayed by a succession of procedural disputes between the parties. In this period, the matter came before the Court on no fewer than 15 occasions.
On 4 August 2017, more than two years after the commencement of the proceedings, the Court made orders fixing the matter for hearing on 27‑30 November 2017 and established an appropriate case management timetable leading up to that hearing. Orders for the filing and serving of all evidentiary material were made, with the final step to be concluded by 13 October 2017.
On 20 October 2017, in response to a request from the then single Applicant, the matter was listed for a directions hearing on 3 November 2017. A Notice of Motion filed by the Respondents to set aside, in part, a Notice to Produce from the First Applicant was concurrently listed on 3 November 2017. The Applicant sought leave to file in Court a Notice of Motion seeking to join WaterNSW as a party to the proceedings. Moreover, the Applicant sought to file in Court an (undated) affidavit of Mr John Andrews foreshadowing a request to file a "draft proposed Further Amended Summons." That proposed revised summons contained the following material proposed amendments: 1. the joinder of Mr Paul Andrew Andrews as an applicant in the proceedings; 2. the joinder of the Minister administering the Water Management Act as a respondent in the proceedings; 3. the joinder of WaterNSW as a respondent in the proceedings; and 4. the addition of a sought order, namely, an "[o]rder in the nature of a writ of prohibition and/or injunctive relief preventing the Respondents from directing high regulated flows into Yanco Creek contrary to its natural usage and so as to cause environmental and other damage to Yanco Creek and its dependent ecosystem in the Lake Paddock and its environs at 'Somerset Park' or alternatively by preventing the unreasonable use of the waters of Yanco Creek by the Respondents and each of them."
All these matters were heard on 8 November 2017 and determined in Randren House Pty Ltd v Water Administration Ministerial Corporation [2017] NSWLEC 151 (Randren House No 1).

[8]

The recusal application

The Applicants' recusal application was not commenced by way of a notice of motion (or any other document), so neither the Court nor the Respondents had prior knowledge that such an application would be made. Notwithstanding this irregularity, the Court heard, by consent, the Applicants' application that day (with some flexibility in the hearing schedule to ensure procedural fairness to the Respondents). The Applicants eventually filed a Notice of Motion seeking an "[o]rder recusing Molesworth AJ from the trial of the matter" later on 27 November 2017.
Putting to one side the first two arguments submitted as grounds for recusal (both related to my appointment as an Acting Justice of the Court), the Applicants' third ground was that my reasoning in Randren House No 1 (in particular, my reasoning dismissing the First Applicant's application to amend the extant Summons) might lead a fair-minded lay observer to reasonably apprehend that I might not bring an impartial mind to the resolution of the substantive proceedings.
The judgment in the recusal proceedings is Randren House Pty Ltd v Water Administration Ministerial Corporation (No 2) (2017) 228 LGERA 354; [2017] NSWLEC 185 (Randren House No 2). The Court dismissed the Applicants' recusal Notice of Motion and did so on the basis that the Applicants had not established that a fair‑minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the questions in these proceedings. Of significance to the determination of the primary issues in these principal proceedings, I determined the pre-judging argument in the recusal proceedings at [85]-[90], as follows: 85. Thirdly, I consider that the alleged prejudgment matter raised by the Applicants could not lead a fair-minded lay observer to reasonably apprehend that I might not bring an impartial mind to the resolution of the proceedings. I will first consider the critical issue of prejudgment with respect to my reasoning at [64] of the interlocutory decision (which appeared to be the Applicants' focus). 86. The Applicants are correct that this impugned paragraph concerning the application to amend the extant Summons reveals a view of the Court as to the nature and ambit of the proceedings. However, the Applicants are not correct that the view of the Court revealed is essentially, a pronouncement from the Court that (in the Applicants' words) "we're only concerned with the legality of decisions". What is said is that "these judicial review proceedings do not centrally concern whether or not the Respondents have caused environmental damage and, if so, how they should be restrained" (emphasis added). This is then immediately followed by the statements that "[r]ather, these judicial review proceedings concern whether or not the Respondents have made particular decisions (which to be sure, may affect Yanco Creek and its surrounding environment) unlawfully by, for example, failing to have regard to mandatory relevant matters for consideration" and "[t]he proposed amendment, therefore, does not pertain to a real question raised or otherwise depending on the proceedings (emphasis added). 87. The question is not whether the impugned paragraph discloses a predisposition of the Court or view of the Court (capable of being changed). Instead, the question is does this paragraph rise so high such that it could indicate to a fair-minded lay person that my mind might not be open to being persuaded that these judicial review proceedings actually centrally concern something other than the legality of the particularised decisions or conduct et cetera? I am of the view that the answer to that question must be no. 88. Whilst these sentences speak for themselves, a conclusion cannot properly be drawn that the Court has prejudged the proceedings by confining the parameters of its future consideration of the issues in the proceedings to the legality of decisions. At most, the Court has expressed its "tendency of mind" or "predisposition" that these judicial review proceedings - as is traditionally the case with judicial review proceedings - centrally (but not exclusively) concern the legality of particular decisions. (I interpose here to note that the Applicants may well be correct that judicial review is not limited to decisions per se, however, the extant Summons in this case lists seven categories of "decisions" rather than, for example, conduct). 89 Nevertheless, the Applicants may persuade the Court during the substantive hearing that these judicial review proceedings (in this respect, the extant Summons is titled "Further Amended Summons (Judicial Review)" and describes the type of claim as "JUDICIAL REVIEW and ancillary relief") are actually not centrally about the legality of decisions but, in fact, proceedings which, for example, centrally concern whether or not the Respondents have caused, contrary to law, ongoing environmental damage to Yanco Creek or heritage impacts. Although the Court has not suggested that environmental damage is a "vestigial issue", even if that were so, it is not apparent from the interlocutory decision that I have any such crystallised, permanent view of this nature. 90 Critically, it cannot be correct that (acting) judges must decide interlocutory applications and proceed to trials with their minds as a blank slate as to the nature and ambit of the proceedings. However, what the Court cannot do is close its mind: Hills Shire Council v Mouawad (2014) 203 LGERA 233; [2014] NSWLEC 59 at [27]. For example, it could have been improper if I had said words to the effect of "environmental damage is not and will not be relevant at all [or must only be of peripheral/secondary relevance] to the determination of these judicial review proceedings because the Minister did not have an obligation to consider this matter in making any of the challenged decisions. On a fair and reasonable reading, that is not at all what is conveyed in the interlocutory decision and is certainly not what I intended to convey.

[9]

The request for making further submissions after close of hearing

On 21 August 2018, 19 days after the conclusion of the primary hearing, the Court was informed by the solicitor for the Respondents that they understood that the Applicants sought to put further written submissions before the Court. The Respondents noted that they did not consent to such submissions being placed before the Court, and that the parties proposed to exchange submissions as to admissibility, and provide me with submissions on that point to determine whether or not the Court would then receive the further, substantive, submissions.
The Court, by return e-mail that day, noted that it was not on notice of any proposal by the Applicants to put further submissions to the Court; that such submissions proposed after the conclusion of the hearing would not ordinarily be received, but that given the parties had devised a course of action to debate the issue between themselves they should exchange submissions and come to a conclusion between themselves. If a consent position was arrived at, the Court would then consider it.
By e-mailed letter of 5 September 2018, the solicitor for the Applicants, mischaracterising the Court's e-mail of 21 August 2018 as "consent directions for [sic] exchange submissions on the supplementary point regarding the construction of clause 4(1)(a) Schedule 10 Water Management Act 2000", attached a copy of a document entitled "Applicants' Reply" and "a fresh copy of the Applicants' Submission dated 9 August 2018 to which [the Respondents'] Submission responds".
By e-mail of 6 September 2018, the Respondents' solicitors then forwarded their Submissions in Reply, noting that those submissions dealt with the Respondents' objection to the receipt of further submissions as well as why the Applicants' submissions, even if received, should be rejected.
The Court was therefore in possession of: 1. a "Supplementary Submission in Reply" of the Applicants, dated 9 August 2018; 2. the Respondents' "Response to Applicants' Application for Leave to File Supplementary Submissions" dated 27 August 2018; and 3. a document titled "Applicants' Reply", dated 3 September 2018.
The Court noted that, given the Applicants' solicitor had taken the liberty of forwarding the submissions in issue to the Court on 5 September 2018, a step they should not have taken, and the Respondents' unsurprising response of providing submissions both as to admissibility and on the substantive point, it would reserve its decision on whether to admit the further submissions to be determined in the course of this judgment.

[10]

Applicants' submissions

Leave was sought by the Applicants to make a supplementary submission "on a point of construction" in relation to the meaning of the phrase "an entitlement with respect to a regulated river" in Sch 10, cl 4(1)(a) of the Water Management Act which, the Applicants submitted, arose from an argument raised in closing submissions regarding the application of the decision in Minister Administering the Water Management Act 2000 v Sharkey (2017) 226 LGERA 322; [2017] NSWCA 319 (Sharkey No 3); Sharkey v Minister Administering the Water Management Act 2000 [2017] NSWLEC 3 (Sharkey No 1) (deciding whether the issue should be a separate question for determination); and Sharkey v Minister Administering the Water Management Act 2000 [2017] NSWLEC 47 (Sharkey No 2) (being the decision on the separate question).
As recounted above, the Applicants, improperly, did not make submissions to the Court as to why supplementary submissions ought to be received by the Court nearly three weeks after the conclusion of the hearing, but rather simply provided those supplementary submissions to the Court. As such, the Court did not receive argument from the Applicants as to why supplementary submissions should be received after the close of the hearing.

[11]

Respondents' submissions

The Respondents submitted that leave to make the supplementary submissions should be refused, on a number of bases. 1. First, that the Applicants had already addressed the application of the relevant clause in oral submissions in reply, to which the Respondents made short oral submissions (to the effect that the matter had never been pleaded and in any event was wrong because the licence in question in these proceedings was an "entitlement with respect to an unregulated river", the diversion channel, within cl 4(1)(b)), to which the Applicants then made further oral submissions. The Respondents also noted that the Applicants had already mentioned cl 4 of Sch 10 of the Water Management Act in writing and had therefore had ample opportunity to address the issue. 2. Secondly, the Respondents argued, the Applicants' supplementary submissions are not only on "a point of construction", because their argument that theirs was an "entitlement with respect to a regulated river" depended upon factual matters such as the flows into the Lake Paddock, and whether it was a 'dependent ecosystem' of Yanco Creek, upon which, if the argument had been properly pleaded, the Respondents might have led further evidence. 3. Thirdly, the Respondents argued that it could not be said that the question of the application of cl 4 arose out of the Respondents' closing submissions about Sharkey No 3, which was raised simply to demonstrate that the Court of Appeal held that the source of the Minister's power to declare a regulated river was the definition of "regulated river". It was not raised, the Respondents said, with respect to cl 4. The cl 4 argument is, according to the Respondents, "part of the Applicants' positive case and it should have been pleaded, and addressed by the Applicants' submission-in-chief, not dressed up as a submission 'in reply'". 4. Finally, the Respondents submitted that the Applicants never pleaded that the 1986 Licence was by virtue of cl 4, converted to a "Regulated river (general security)" licence, from what is accurately defined as an "entitlement with respect to an irrigated river".

[12]

Decision on leave to file supplementary submissions

The Court has decided that leave will not be granted for the Applicants to file, and then rely upon, the supplementary submissions headed "Supplementary Submissions in Reply" dated 9 August 2018, nor the associated 'Reply' dated 3 September 2018. The Court found the Respondents' submissions summarised at [75] above were both persuasive and correct.
There can be no doubt that, in the course of the proceedings the distinction between regulated and unregulated rivers under the Water Management Act was examined, including the differential rights with respect thereto. The statutory regime was required to be examined, including the provisions in Sch 10 dealing with the conversion of former entitlements to access licences and approvals. Amongst the case law drawn to the Court's attention, albeit briefly, were the three Sharkey cases. There had been ample opportunity for the Applicants to address the issues that they sought to elaborate upon in the supplementary submissions and they had in fact done so in the course of the hearing, both in writing and orally, albeit with differing emphasis.
The Respondents' submissions in closing, submissions which were properly responding to aspects of the Applicants' arguments whilst addressing issues regarding regulated rivers and briefly mentioning the Sharkey decisions, did not trigger a justifiable basis for the Applicants to reagitate or add to aspects of their interpretation of the legislative regime. In circumstances where the hearing had finished, it was inappropriate for the Applicants' counsel to further reflect on how the Applicants' case had been argued and to then seek to expand upon, or nuance, what appeared to be an 'evolving argument'.
A further strong reason for disallowing the Applicants from reagitating and then extending the propositions they had earlier canvassed with respect to cl 4 of Sch 10 was the fact that their arguments in the supplementary submissions were now straying from and extending an argument they had not actually pleaded, despite the successive iterations of those pleadings. This was a case where there had already been tolerated multiple variations of key documents with the pleadings evolving to the SFAPOC which, on the second-last day of the hearing, had to be again edited throughout so as to properly identify the correct section and paragraph numbers in the legislation therein cited and relied upon. In this context, the core and critical objection of the Respondents to the Applicants being allowed to rely upon their proposed post-hearing submissions was that they, in effect, put forward a proposition that had never been pleaded: that the 1986 Licence was by virtue of cl 4, converted to a 'Regulated river (general security)' licence. Whether that proposition has any substance or not, such matters being raised so late in the proceedings is contrary to proper principles applicable to the management of proceedings.

[13]

The September 2018 Notice of Motion

Some six weeks following the close of the primary hearing and the reserving of judgment, by Notice of Motion filed on 14 September 2018, the Applicants sought to reopen the proceedings for the Court to receive further supplementary evidence from Mr Paul Andrews set out in a new affidavit sworn 3 September 2018, and a new affidavit of Mr James Purcell sworn 5 September 2018. The Respondents filed an answering affidavit of Mr Patrick Mullane, the solicitor having the carriage of the matter for the Respondents affirmed 27 September 2018. The Court heard the Motion on 28 September 2018, and reserved its decision.
In short, the affidavit of Mr Andrews recounted his attendance at a meeting on 8 August 2018, 16 days after the close of the primary hearing, arranged by the Yanco Creek and Tributaries Advisory Council. He had received word of the meeting from one of his neighbours during a telephone conversation four days earlier on 4 August 2018. He stated that at the meeting a proposal for Yanco Creek was discussed by a representative from the Murray Darling Basin Authority and officers of various State authorities. He reported that it was proposed that a regulator was to be built at the Yanco Creek offtake from the Murrumbidgee River to block or restrict flows down the Yanco Creek over the winter months which would provide more water to be sent down the Murrumbidgee for environmental flows. Mr Andrews went on to state at [9] that: I say, as a result of hearing the proposal and the reasons given at the meeting referred to above, that the Respondents and the Commonwealth are proposing Yanco Creek water conservation measures which have the result of giving effect to the proposals of Mr Jim Purcell put to this Honourable Court to prevent inundation damage from high regulated flows at Somerset Park as set out in his reports lodged with the Court.
Mr Andrews confirmed that he was unaware of the Yanco Creek proposals before the meeting he attended on 8 August 2018. He requested the Court to consider this new material and Mr Purcell's analysis of it, concluding at [13]: I respectfully say that the further evidence could not reasonably have been foreseen by the Applicants is relevant, and that it is not unfair to the Respondents for the Court to receive the evidence because, having regard to their position and responsibilities under Water Management Act 2000 they have at all material times since 2013 the date of the Alluvium Report referred to in evidence in this Court, have been aware of circumstances giving rise to the alleged duty to redress inundation damage by reason of high regulated flows along Yanco Creek, and the Applicants' claims in that regard.

[14]

Decision on the September Notice of Motion

The Court has decided not to grant leave to the Applicants to reopen the proceedings so as to accept the proposed new evidence set out in the Motion. The Court has concluded that it must be ever-mindful of the fact that the proceedings before me are a Class 4 judicial review. As counsel for the Respondents submitted: "insofar as the applicants challenged particular administrative decisions on judicial review grounds your Honour's role is to determine the validity of those decisions". For the Court to allow the proceedings to be reopened so that the Applicants can rely on new evidence, the Court must be satisfied that, in addition to relevance, there is probative value in the material in question being introduced after the close of the primary hearing. One test of both relevance and probity must be to determine whether there is a nexus between the new material the subject of the Motion and one or more of the decisions that are under review in the proceedings. If a nexus is identified, for instance it might be argued that the material would have been relevant to the Minister's consideration of one of the decisions in question, then there may be an arguable case to admit it (and so reopen the case). Without a relevant nexus being established, the probity of the material must be in serious doubt. The Court has concluded that a relevant nexus between the new material and the actual decisions under review has not been established by the Applicants.
Accepting Mr Mullane's evidence regarding the earliest dates which are identifiable with respect to the documents relating to the Yanco Creek Offtake Proposal, a 16 March 2017 date is identified. Logic demands that, with that date being for the publication (or public release) of the document, it must necessarily concurrently be the end-date of a process involving the document's creation that led to its release. Such a proposal would obviously have required some considerable time in the making. One can sensibly assume that work on formulating the proposal began in the course of 2016, with, perhaps, a decision to start the policy formulation in early to mid‑2016. It is in that context that it is relevant to note that the date of the latest decision being reviewed in these proceedings - Decision 8 - is 28 June 2016. So it is conceivable that the making of Decision 8 was contemporaneous with the commencement of the process which led, nine months later, to public release of the Yanco Creek Offtake Proposal. However, being merely 'conceivable' is insufficient, the Applicants must satisfy the Court that the new material was in existence and, importantly, should have been known to, and be required to be considered by, the decision-maker.

[15]

Relevant legislative provisions

Many of the questions in this matter turn on the proper interpretation of the Water Management Act, which governs the management of water sources in New South Wales. The objects of the Act are set out at s 3: 3 Objects The objects of this Act are to provide for the sustainable and integrated management of the water sources of the State for the benefit of both present and future generations and, in particular: (a) to apply the principles of ecologically sustainable development, and (b) to protect, enhance and restore water sources their associated ecosystems ecological processes and biological diversity and their water quality, and (c) to recognise and foster the significant social and economic benefits to the State that result from the sustainable and efficient use of water, including: (i) benefits to the environment, and (ii) benefits to urban communities agriculture, fisheries industry and recreation, and (iii) benefits to culture and heritage, and (iv) benefits to the Aboriginal people in relation to their spiritual, social, customary and economic use of land and water, (d) to recognise the role of the community, as a partner with government, in resolving issues relating to the management of water sources, (e) to provide for the orderly, efficient and equitable sharing of water from water sources, (f) to integrate the management of water sources with the management of other aspects of the environment, including the land, its soil, its native vegetation and its native fauna, (g) to encourage the sharing of responsibility for the sustainable and efficient use of water between the Government and water users, (h) to encourage best practice in the management and use of water.
The Water Management Act, at s 5, provides for a number of "water management principles": 5 Water management principles (1) The principles set out in this section are the water management principles of this Act. (2) Generally: (a) water sources floodplains and dependent ecosystems (including groundwater and wetlands) should be protected and restored and, where possible, land should not be degraded, and (b) habitats animals and plants that benefit from water or are potentially affected by managed activities should be protected and (in the case of habitats) restored, and (c) the water quality of all water sources should be protected and, wherever possible, enhanced, and (d) the cumulative impacts of water management licences and approvals and other activities on water sources and their dependent ecosystems should be considered and minimised, and (e) geographical and other features of Aboriginal significance should be protected, and (f) geographical and other features of major cultural, heritage or spiritual significance should be protected, and (g) the social and economic benefits to the community should be maximised, and (h) the principles of adaptive management should be applied, which should be responsive to monitoring and improvements in understanding of ecological water requirements. (3) In relation to water sharing: (a) sharing of water from a water source must protect the water source and its dependent ecosystems and (b) sharing of water from a water source must protect basic landholder rights and (c) sharing or extraction of water under any other right must not prejudice the principles set out in paragraphs (a) and (b). (4) In relation to water use: (a) water use should avoid or minimise land degradation, including soil erosion, compaction, geomorphic instability, contamination, acidity, waterlogging, decline of native vegetation or, where appropriate, salinity and, where possible, land should be rehabilitated, and (b) water use should be consistent with the maintenance of productivity of land in the long term and should maximise the social and economic benefits to the community, and (c) the impacts of water use on other water users should be avoided or minimised. (5) In relation to drainage management: (a) drainage activities should avoid or minimise land degradation, including soil erosion, compaction, geomorphic instability, contamination, acidity, waterlogging, decline of native vegetation or, where appropriate, salinity and, where possible, land should be rehabilitated, and (b) the impacts of drainage activities on other water users should be avoided or minimised. (6) In relation to floodplain management: (a) floodplain management must avoid or minimise land degradation, including soil erosion, compaction, geomorphic instability, contamination, acidity, waterlogging, decline of native vegetation or, where appropriate, salinity and, where possible, land must be rehabilitated, and (b) the impacts of flood works on other water users should be avoided or minimised, and (c) the existing and future risk to human life and property arising from occupation of floodplains must be minimised. (7) In relation to controlled activities: (a) the carrying out of controlled activities must avoid or minimise land degradation, including soil erosion, compaction, geomorphic instability, contamination, acidity, waterlogging, decline of native vegetation or, where appropriate, salinity and, where possible, land must be rehabilitated, and (b) the impacts of the carrying out of controlled activities on other water users must be avoided or minimised. (8) In relation to aquifer interference activities: (a) the carrying out of aquifer interference activities must avoid or minimise land degradation, including soil erosion, compaction, geomorphic instability, contamination, acidity, waterlogging, decline of native vegetation or, where appropriate, salinity and, where possible, land must be rehabilitated, and (b) the impacts of the carrying out of aquifer interference activities on other water users must be avoided or minimised.

[16]

Claims/impugned decisions

As foreshadowed above, the Applicants challenged a number of decisions said to have been made by the Respondents over the course of a number of years. These decisions were (broadly): 1. Decision 1: "Yanco Creek Works Decision" ([8A] and [8C] of the SFAPOC) (period since 1990); 2. Decision 2: "Yanco Creek Water Usage Decision" ([8B] and [8D] of the SFAPOC) (period since 1990); 3. Decision 3: "2012 Licence Decision" ([9A] of the SFAPOC) (alleged variation of the terms and conditions of the First Applicant's licence in September 2012); 4. Decision 4: "Water source decision" ([9B] of the SFAPOC) (alleged decision between August and October 2012 to place the billabong in the Lake Paddock into the proposed Murrumbidgee Western Water Source); 5. Decision 5: "2012 Plan decision" ([9C] of the SFAPOC) (the making of the 2012 Unregulated WSP); 6. Decision 6: "2015 Licence decision" ([9D] of the SFAPOC) (decision to impose mandatory conditions on the water access licence and the approval); 7. Decision 7: "2015 Water Plan Decision" ([9E] of the SFAPOC) (decision to extend the 2003 Regulated WSP); and 8. Decision 8: "2015 Replacement Plan Decision" ([9F] of the SFAPOC) (decision to replace the 2003 Regulated WSP with the 2016 Regulated WSP). The Court notes that there is some question as to whether the alleged decisions above were, in fact, decisions. For the avoidance of doubt, the designations above are made for ease of reference only.
Finally, the Applicants alleged that, through the impugned decisions there has been an impairment "of the Applicants' rights as residents of the State of New South Wales to the reasonable use of the waters of Yanco Creek" in breach of s 100 of the Commonwealth Constitution.
While the Respondents addressed the impugned decisions and the constitutional claim sequentially, the Applicants claim tended to the broad, and non-specific; indeed, the approach adopted could be described as meandering. Much attention was paid to the impacts of increased flows down the Yanco Creek and inundation of the Lake Paddock, however, against the orthodox for a judicial review, little attention was paid by the Applicants to the specifics of the impugned decisions including the material taken into account by the relevant decision-maker in making the impugned decision.
As such, there is some disjunct between the submissions of the parties as will become apparent from the summaries of the respective arguments as set out below.

[17]

Relief sought

The Applicants in their SFAS, filed 25 July 2018, sought the following relief: 1. An order in the nature of a writ of prohibition against the Respondents from taking any steps to give effect to the Water Sharing Plan entitled Murrumbidgee Unregulated and Alluvial Water Sources as amended on or about 30 March 2015 with respect to WAL 33313 Ref: 40AL412878. 2. An order in the nature of a writ of Mandamus directing the First and or Second Respondents to consider whether or not the Lake Paddock water source adjoining Yanco Creek at 'Somerset Park' Narrandera connected by the channel and regulator is part of the Yanco Creek and the Murrumbidgee Regulated Water Source and is or should be included therein in accordance with Water Management Act 2000 Chapter 2 by amendment or making of a regulated source water sharing plan. 3. Declaration that the decision or decisions of the First and/or Second Respondents made on or about 30 March 2015 that the Lake Paddock water source adjoining Yanco Creek connected by the channel and regulator at 'Somerset Park' Narrandera is part of the Yanco Creek and the Murrumbidgee Regulated Water Source and is or should be included therein in accordance with Water Management Act 2000 Chapter 2. 4. An order in the nature of a writ of Mandamus requiring the Respondents to consider in the exercise of their water planning powers an amendment to Water Sharing Plan entitled Murrumbidgee Unregulated and Alluvial Water Sources 2012 and /or Water Sharing Plan for the Murrumbidgee Regulated Water Source 2003 to be further reviewed on or as from 30 June 2015 so as to include the Applicant's water source called the Lake Paddock as an allocation or regulated water source having access to or being part of a regulated flow for the Murrumbidgee regulated river water source. 4. A declaration that the Water Sharing Plan for Murrumbidgee Unregulated and Alluvial Water Source 2012, and the conditions notified on 30th March 2015 is invalid insofar as it extends to or relates to the Applicant's land and water source at Lake Paddock. 5A. A declaration that the Water Sharing Plan for the Murrumbidgee Regulated Water Source 2016 is invalid insofar as it excludes regulated water access in respect of the Lake Paddock adjacent to Yanco Creek on the Applicant's land and/or insofar as it has caused environmental damage to the Lake Paddock. 5B. A declaration that the conditions attaching to approval 40CA412879 and WAL 33313 notified on 30th March 2015 by letter dated 25th February 2015 from the New South Wales Office of Water to the solicitor for the Applicant are void and of no effect. 5C. Declaration that the decision of the Respondents made jointly or in consultation to change the operation of the Yanco Creek channel so as to run the system at a higher level and increase the watering of the Applicant's land and the billabong called Lake Paddock was unreasonable and void and of no effect. 6 An order that the Respondents take all reasonable steps to restore the natural heritage of the Lake Paddock as a water source and to maximise its natural heritage values. 7 Preliminary disclosure with respect to the making of the decisions listed under Details of Decisions herein, including reasons therefor and the nature and effect thereof. 7A. Further or alternatively an order modifying or varying the conditions of approval 40CA412879 and WAL 33313. 8. Such further or other orders as the Court thinks fit.

[18]

Evidence

In addition to the explanation I have provided earlier in [14] as to the approach I have taken in this judgment in referencing much of the evidence I have referred to in this judgment, I now clarify that this judgment will not provide:

an entire summary of the relevant body of oral and written evidence;
an entire separate summary and consideration of the relevant legal principles relating to the overarching legal issues; or
an entire history of events relevant to the issues arising with respect to the impugned decisions. To attempt to undertake such an herculean task is simply not sensible and would probably be of limited utility and, even worse, prove distracting and confusing. The approach I have adopted has been endorsed in other cases as both sensible and acceptable: see, eg, Yates Property Corporation Pty Ltd (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 171-172.

Instead, this judgment will provide a detailed summary of the competing positions of the parties which draws out the pertinent evidence that has been relied on by the parties. This does not mean that the Court has only considered the evidence expressly or implicitly relied upon by the parties. What it does mean is that the Court has focused on the key evidence relied upon by the parties to support their propositions. Moreover, given the scale of this judgment, the Court has staggered its consideration of the legal issues such that each summary of the competing positions of the parties is followed by the Court's determination of that issue.
Notwithstanding the above, in order to properly contextualise this judgment, it is necessary to briefly explain some pertinent aspects of the nature of the body of relevant evidence and briefly outline salient parts of the relevant statutory framework.

[19]

Applicants' evidentiary material

The Applicants relied on the following affidavit evidence: 1. Affidavits of Mr Paul Andrews dated 28 January 2016, 9 June 20016 and 1 November 2017; 2. Affidavit of Mr Timothy Hutchinson dated 6 June 2016; 3. Affidavit of Mr James Purcell dated 4 February 2016; and 4. Affidavits of Mr John Andrews dated 21 January 2016, 13 March 2017, 31 August 2017, 23 October 2017, 18 March 2018, and 27 June 2018.
The following persons were called upon by the Applicants to give oral evidence at the hearing: 1. Mr Timothy Hutchinson, water broker; 2. Mr Paul Andrews the Second Applicant; 3. Mr John Andrews in his capacity as director of the First Applicant; and 4. Mr James Purcell, water engineer.
The Court held, in Randren House No 3, that the expert evidence of Mr Purcell was admissible in these proceedings. As such, his affidavit of 4 February 2016, annexing an expert report (first Purcell Report), as well as expert reports annexed to the affidavits of Mr John Andrews dated 31 August 2017 (report dated August 2017, hereafter referred to as the second Purcell Report), 23 October 2017 (report dated 19 October 2017, hereafter referred to as the third Purcell Report), and 18 March 2018 (report dated 16 March 2018, hereafter referred to as the fourth Purcell Report), were admitted.
Attachment 1 to the fourth Purcell Report was a document entitled "Yanco Creek system environmental flows study", dated May 2013, by consultancy group Alluvium (hereafter referred to as the Alluvium Report), relied upon by Mr Purcell in that report and relied upon by the Applicants in their submissions.
Further, counsel for the Applicants handed up numerous unexhibited documents during the course of the hearing, including documents entitled: 1. "Unfortunate consequences of Act's planning scheme", which set out what it contended were the consequences of the Respondents interpretation of the Water Management Act and its subordinate instruments; 2. "Applicants' schedule of facts" which set out ten principal "factual issues" upon which the Applicants relied; 3. "Applicants' legal synopsis" which set out the Applicants' submissions with respect to Decision 8; and 4. "Reply of Applicants" responding to the Respondents' closing oral submissions.
It is not necessary for the Court to summarise all such documents here, and it notes for the avoidance of doubt, that all such material has been carefully considered and taken into account in the preparation of this decision.

[20]

Respondents' evidentiary material

The Respondents relied upon the evidence of Mr Neeraj Maini, a hydrologist and officer at the Department at the time of the making of the 2016 Regulated WSP, in an affidavit dated 28 September 2017.
The Respondents also relied upon the expert evidence of Mr James Warren, an environmental scientist, to comment upon the expert evidence of Mr Purcell. Mr Warren's evidence was contained in two expert reports annexed to his two affidavits (dated 3 October 2017 and 10 April 2018).
Both Mr Maini and Mr Warren were called upon to give oral evidence at the hearing.
An affidavit of Mr Steven Webb, dated 29 September 2017, was filed, but was not read and, as such, the Court has not had regard to it.

[21]

Applicants' submissions on "factual matters"

As noted above at [107], counsel for the Applicants directed the bulk of his submissions not to the decisions under review, as set out in the Applicants SFAPOC, but more broadly, including devoting considerable attention to questions of fact, including the alleged damage to the natural environment of the Lake Paddock and surrounds.
In his closing submissions counsel for the Applicants submitted that at the heart of the Applicants' case was whether "environmental damage" must "give way to extraction rights" (Transcript 415.46-48).
The Lake Paddock, the Applicants submitted, was a dependent ecosystem of Yanco Creek, which ecosystem was being damaged by irrigation flows down Yanco Creek (relying on the evidence of Mr Purcell).
The Applicants grounded their submissions in the following 10 "factual matters on which they said the matter turned: 1. the Lake Paddock "water source"; 2. the flows in Yanco Creek; 3. the environmental damage and its causation; 4. the plan for remediation proposed by Mr Purcell; 5. the 1986 Licence "and its changing conditions"; 6. whether condition 7 (to the original 1986 Licence) was "operative or breached" (see earlier at [15] for the terms of this condition); 7. the Applicants' "prioritisation of environment over extraction"; 8. the cause of the alleged "exclusion" of the 1986 Licence; 9. the 2012 Court Orders "and their performance"; 10. that the 1986 Licence was, in the Applicants' terms, "an orphan".
These matters are summarised briefly below.

[22]

"Fact 1" - The Lake Paddock

Key to the Applicants' case was that the water body in the Lake Paddock, the Applicants contended, is a "water source" for the purposes of the Water Management Act and, further, is a "dependent ecosystem" (pursuant to the Water Management Act) of Yanco Creek. [42]
The water body at the Lake Paddock is not, the Applicants submitted, "a puddle". Rather, it is "a significant wetland", taking up a large area [relying on the enlarged Exhibit C as handed up at Transcript 433.10-14] (although, it ought to be noted, the precise size of that water body was not drawn out from the evidence adduced) (as described earlier at [13], Exhibit C is incorporated into this judgment as Annexure A). Also material for the Applicants' purposes they submitted, was the location of the water body (being part of the Applicants' property and also being part of Reach 1 of the Yanco Creek system), as well as, the Applicants submitted, being connected to Yanco Creek by an unnamed water course.
Its location in Reach 1 of the Yanco Creek system was said to be significant because the Alluvium Report considered Reach 1. [43]

[23]

"Fact 2" - Flows

The Applicants submitted that high regulated flows with the knowledge of the Department, now inundate both the water body in the Lake Paddock and the unnamed water course.
In order to make good this proposition, the Applicants referred to a number of documents which they said evidenced increased regulated flows including (but not limited to): 1. cl 65 of the 2003 Regulated WSP and cl 43 of the 2016 Regulated WSP, which state that Yanco Creek has a "channel capacity constraint" of 1,400 megalitres per day (Transcript 450.19-451.6); 2. a Water Resources Commission memo dated 8 February 1983, with respect to a proposal by the First Respondent "to construct a block dam and regulator on an Unnamed Watercourse" which stated (amongst other things) "Current investigations by this branch into the future level of demand for irrigation in the Yanco, Colombo Billabong Creek System suggest that flows in Yanco Creek at Randren House during peak irrigation periods could range from 660 to 820 megalitres per day"; [44] 3. The Briefing memorandum from the Department to the Minister with respect to the replacement of three WSPs (including the 2003 Regulated WSP) dated 6 June 2016, which, at Attachment C1, stated (amongst other things) "OEH [the Office of Environment and Heritage] have sought change to channel capacity constraints in the Yanco Creek at the offtake to facilitate environmental watering … Office of Environment and Heritage requested increase in capacity constraints for Yanco Creek and Murrumbidgee River at Gundagai. OEH has agreed to persist with current Murrumbidgee River capacity constraint and in negotiation with DPI Water trial new constraints for Yanco Creek." [45]
The Applicants also pointed to the 28 January 2016 affidavit of Mr Paul Andrews wherein he asserted that the level of Yanco Creek "had to be significantly unnaturally raised by the New South Wales river authorities in order to be able to "supply these irrigators below Morundah". [46]
The Applicants asserted that the flows in Yanco Creek moved from a drying and wetting cycle, with no more than 250 megalitres per day, to the present day where, on the evidence, they said, of Mr Maini, flows are limited to 1,400 megalitres per day, with some exceptions (Transcript 448.24-29, 450.24). The Applicants pointed to the reconstruction of the Yanco Creek Weir offtake "just prior to 1995", which increased the capacity of the weir from 800 megalitres per day to over 1,400 megalitres per day (Transcript 448.41-43).

[24]

"Fact 3" - Damage

As to the damage said to have been caused to the Applicants' land, the Applicants' submissions thereon, and the Respondents' rebuttal, see [188]-[207] below.

[25]

"Fact 4" - Proposed 'solution'

The Applicants posited that the Respondents were required to remediate the damage to the Lake Paddock which it said arose from the impugned decisions.
The Applicants relied on the evidence of Mr Purcell as to the remediation works said to be required: 5.0 Solution for the Environmental Management of Lake Paddock The solution to the environmental management of Lake Paddock requires two [sic] actions: (i) Construction of a regulator structure with a bed level outlet on the unnamed watercourse leading from Yanco Creek to the Lake Paddock Wetland; and (ii) Flexible operation of the Yanco Creek water levels by State Water to allow drainage of Lake Paddock before inundation periods exceed the threshold outlined in the Alluvium Report above; (iii) Recognition by Water Managers going forward that the hydrology surrounding the Lake Paddock Lagoon has changed as a result of inundation of the Lake Paddock Lagoon by regulated flows with ongoing environmental damage to that water source, and that Lake Paddock Lagoon is an integral part of the ecology of Yanco Creek. [47]
The Applicants argued that "[r]emediation is practicable and possible by Orders proposed by Applicants". [48]

[26]

"Fact 5" - The 1986 Licence

The Applicants submitted that the 1986 Licence became part of the Yanco Creek volumetric water allocation scheme under the 1912 Act, and argued that the 1986 Licence was "different to other [special additional licences] because it licences [sic] the unnamed water course for diversion ie regulated water". [49]
The Applicants asserted that in 2004, volumetric water allocation schemes (such as that under which the 1986 License sat) became WSP schemes "for all licences except those with zero allocation", [50] and that when the 2003 Regulated WSP was made, "[a]s a result of zero mg irrigation usage licence was excluded from the [2003 Regulated WSP]".
The Applicants further noted the history of the 1986 Licence, including many of the matters set out at [13]-[50] above.

[27]

"Fact 6" - Condition 7 of the 1986 Licence

As to the Respondents' contention that, had the First Applicant complied with condition 7 (later 10) to the 1986 Licence, the Lake Paddock would not have been inundated by the increased flows down Yanco Creek, the Applicants denied that the First Applicant had breached that condition (citing s 17A(1)(d) of the 1912 Act and the "Licence Terms").
The Applicants submitted that compliance or otherwise with condition 7 was only relevant to a "discretionary defence" to Decision 1.
The Applicants further submitted that the Respondents "accept that whole of SL 389 was futile and unusable until 2012". [51] The reasons for this futility, the Applicants said, were because of the high regulated flows which would mean the water would not drain from the water body as it was said to have done under normal conditions. [52] That is, counsel for the Applicants posited, "whether you had a sill or not made no difference because your inundation would continue" (Transcript 543.35-36).
The Applicants asserted that, because the Respondents did not exercise cancellation powers under s 17A(1)(d) and (f) of the Water Management Act or under s 13F of the 1912 Act, there was "an agreed and assumed public interest" pursuant to s 14A(2) and (3). This argument is recited as put, but it is not clear which Act the Applicants were referring to, as the Water Management Act does not contain a 14A, and 14 deals with the functions of management committees where s 14A of the 1912 Act does not have any subsections and in any event deals only with licence fees - the only reference to "public benefit" being with regard to the Minister's power to issue and renew licences at nominal fees to public bodies.

[28]

"Fact 7" - the Applicants "prioritisation of environment over extraction"

The Applicants asserted that they had prioritised the environment over extraction, citing, by way of example, the affidavit of Mr Paul Andrews dated 1 November 2017, wherein he said: 8. I note that my father was reluctant to incorporate the block across the unnamed watercourse because he had observed that with higher flows from increased regulated water flows into the Lake Paddock from Yanco Creek that this had led to the dying of trees because the natural wetting and drying phases had ceased. I also refer to my own concerns in this regard set out in my earlier affidavit. I refer also to the internal note on Water Resources format dated 29 January 1997. 9. I recall Dad became more worried about the problems of inundation and loss of trees in the Lake Paddock as time went on throughout the later 1990s and into the first decade of the 21st century. I recall he complained about the problem to the State's water officers at Deniliquin and Leeton. He said to me in about 1997 at the time of making a complaint of the type to which I have referred word to the effect "The farm is losing the benefit of the natural winter flow and summer drainage. The high flows from Yanco Creek are killing our trees and pastures. I am reluctant to put in any blockage to take advantage of the licence. It could make matters worse." From my observations when I first went to the farm, that the summer periods when there was no water in the Creek and it dried out completely no longer existed. This was after the high regulated flows became more constant in the late 1980's and early 1990s and following years. We were both concerned to see the natural flows maintained when possible even if this meant less opportunity for the farm to use the licence. Nonetheless the State continued to renew the licence. … 12. We wanted to irrigate in the summer season - however if we blocked it in or the Department blocked it in - it would not remain a natural flowing system. Our farm plan for the Lake Paddock was accordingly stymied by the high regulated flows in Yanco Creek and the resulting damage. [53]

[29]

"Fact 8" - the cause of the alleged "exclusion" of the 1986 Licence

The Applicants submitted that the 1986 Licence was "excluded" from the 2003 Regulated WSP and the 2016 Regulated WSP. This "Fact 8", the Respondents noted, correlated to the "water source decision" at [9B] of the SFAPOC (Transcript 429.30-31 and 43), that is "Decision 4" (commencing below at [348]).

[30]

"Fact 9" - the 2012 Court Orders "and their performance"

The submissions of the Applicants with respect to "Fact 9" are summarised, commencing at [321], at "Decision 3" below.

[31]

"Fact 10" - the "orphaned" 1986 Licence

"Fact 10" was the characterisation by the Applicants of the 1986 Licence as "an orphan".
The Applicants pointed to an internal departmental memorandum in which Mr Webb wrote (with respect to the 1986 Licence) that "I am of the opinion that this licence should never have been issued (but before my time)." [54]
The Applicants stated that the Respondents treated the 1986 Licence as "different" [55] and "futile" for the wrong reasons (but does not specify: a) what those "wrong" reasons are; and b) what correct reasons would be). [56]
The Applicants argued that the 2012 Court Orders gave the 1986 Licence a volumetric allocation which is still outstanding, that the 1986 Licence is not included in any WSP or Regulation, that it is omitted from planning instruments in September/October 2012, that it was not in the 2015 "extension plan", and was "disregarded" in the 2016 Regulated WSP.

[32]

Applicants' submissions on obligations under the Water Management Act

The Applicants' case, they said, "is that under the Water Management Act the State is the person to whom the Parliament has given the right to the control, flow and use of all water in New South Wales and is the person responsible under the [Water Management Act] for water management and mismanagement … and that if such management has caused loss and damage to [the First Respondent] then prima facie the State is responsible because ubi jus ibi remedium" ('where injustice is a remedy is to be found') (citing Royal Insurance Co Ltd v Myelius (1926) 38 CLR 477; [1926] HCA 49 per Isaacs J; Dietrich v The Crown (1992) 177 CLR 292; [1992] HCA 57 at [18] per Toohey J). [57]
Broadly, the Applicants asserted that the Respondents had breached a number of duties (described, in the Applicants' opening submissions as "obligations expressed in chapters 2 and 3, and 8 [of the Water Management Act]" [58] ) in their exercise of various functions under the Water Management Act. The contravention of these amorphous obligations was said to be: a. failure to classify the water sources being the billabong and the linked ecosystem as at risk and treating it accordingly b. refusal to admit that the environment of the Lake Paddock and Somerset Park were being damaged and adversely affected c. constructing at least on its case a plug along the watercourse and making the inundation worse by locking water in the billabong so that it could not leave by the effluent d. the management of the 2 critical water sources controlled and owned by the State by running high flows in Yanco Creek with a view to maximising its return hence maximising the environmental damage e. saving expense to the loss of the Andrews and [the First Applicant] by taking alternative steps such as reducing water availability or adopting other diversion measures such as putting in an artificial channel instead of using Yanco Creek as a canal f. avoiding its responsibilities at the time of making the 2012 WSP by cutting of the billabong in the Lake Paddock from Yanco Creek g. making available excessive flows year round in Yanco Creek f. other action and inaction causing loss and environmental damage. [59]

[33]

The Water Administration Ministerial Corporation (First Respondent)

The Applicants pointed to Ch 8 of the Water Management Act, which constitutes the First Respondent as a corporation (s 371(1)), sets out that the affairs of the First Respondent are to be managed by the Third Respondent (s 371(2)), and provides that any act, matter or thing done in the name of, or on behalf of, the First Respondent or the Third Respondent, or with the authority of the Third Respondent, is taken to be done by the First Respondent (s 371(3)). The Applicants submitted that s 371(3) means that acts, matters or things done by the Department of the Third Respondent are similarly imputed to the First Respondent.
The functions of the First Respondent are set out at s 372 (relevantly): 372 Functions of Ministerial Corporation (1) The Ministerial Corporation has the following functions: (a) to construct, maintain and operate water management works, (a1) to construct, maintain and operate gauging stations and other monitoring equipment, (b) to conduct research, collect information and develop technology in relation to water management, (c) to acquire rights to water, whether within or beyond New South Wales, (d) to do anything for the purpose of enabling the objects of this Act to be attained. (1A) The Ministerial Corporation has such other functions as are conferred or imposed on it by or under this or any other Act or law. … (3) The Ministerial Corporation may exercise any of its functions and may otherwise act, in the name of the Department. (4) It is the duty of the Ministerial Corporation to exercise its functions consistently with the principles of ecologically sustainable development. …
The Applicants alleged that the Respondents in the circumstances of this matter have failed to protect and restore water sources and their dependent ecosystems. [60]
In exercising its functions the Applicants submitted, the First Respondent must (per s 372(4)) have regard to the principles of ecologically sustainable development (ESD), defined in the dictionary to the Water Management Act as "the principles of ecologically sustainable development described in section 6(2) of the Protection of the Environment Administration Act 1991". The principles of ESD include the precautionary principle, which, the Applicants argued, requires "the avoidance of serious damage to the environment". Such damage, the Applicants allege, has occurred in this matter.

[34]

Section 7 of the Water Management Act

The Applicants argued that s 7 of the Water Management Act (set out at [102] above), in conjunction with s 20, imposed on the State a duty to classify not every water body in the State, but "those water bodies from which water is extracted, that is regulated water" (Transcript 525.40-41), which, the Applicants asserted, had not been done: "[the Respondents] haven't classified any part of the Yanco System". The Applicants submitted that "the water source", in this instance, being "Yanco Creek and its dependent ecosystem in the Lake Paddock" were clearly at risk in both December 2000, when the Water Management Act came into force and in 2012 when, the Applicants said, "consideration was being given as into which plan, the Murrumbidgee surface WSP or the unregulated macro WSP, the bulk access regime was to be incorporated". [69] The Applicants' contentions here have been recited for completeness but they were not entirely clear.

[35]

Section 9 of the Water Management Act

Section 9 of the Water Management Act (set out at [100] above), the Applicants submitted, imposed on the Minister a duty, in making a water sharing plan, to do the things set out in s 9, including "to take all reasonable steps to [exercise functions under the Act] in accordance with, and so as to promote, the water management principles being those principles set out at s 5 of the Water Management Act (s 9(1)(a)) (citing, "generally", Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 at [79], Capital Airport Group Pty Ltd v Director-General of the NSW Department of Planning [2011] NSWLEC 22 at [4], Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 171 FCR 174; [2008] FCA 1436 at [164]).
Having regard, the Applicants submitted, to s 9(1) and 5(2)(g) of the Water Management Act, there is "a statutory implication that it is mandatory for the Minister to have regard to the water management principles when making a plan" [70] (given that s5(2)(g) is the general water management principle dealing with "social and economic benefits to the community", the Court observes that the Applicants' counsel's contention here was opaque). By virtue of s 9, the Applicants submitted, the water management principles set out at s 5 are mandatory considerations when making or implementing any decision under the Water Management Act or undertaking any function provided for by it. [71]
The Minister, the Applicants posited, in undertaking a function under the Water Management Act, has a duty to take into account the matters which that Act states must be taken into account, and also matters which, by the subject matter, scope and purpose of the Act, are required to be taken into account (citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 (Peko-Wallsend) at 39-41, Capital Airport Group Pty Ltd v Director-General of the NSW Department of Planning (No 2) (2011) 210 LGERA 247; [2011] NSWLEC 83 at [100] and Arnold No 6 at [107]). [72]
However, the duty to take into account, the Applicants submitted, "does not mean a mere nod and a wink, or a mere reference", but to give proper, genuine and realistic consideration of the merits of the case (citing Minister for Immigration and Citizenship v SZJSS (2010) CLR 164; [2010] HCA 48 at [26]; Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291; [1987] FCA 713, noting however the caution in Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45] against "a slide into impermissible merits review"). [73]

[36]

Section 20 of the Water Management Act

The Applicants noted that s 20(1) is "directed to requirements for licences under the Plan and not the needs desires or intentions of landholders more generally" (citing Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources (2005) 138 LGERA 11; [2005] NSWCA 10 (Murrumbidgee Groundwater) at [103]-[108]), however asserted that "broader obligations intervene and do in the present case". [75]

[37]

Section 50 of the Water Management Act

Section 50 provides for Minister's plans relevantly (to the Applicants' submission): 50 Minister's plan (1) The Minister may, by order published on the NSW legislation website, make a plan (a Minister's plan): (a) for any part of the State that is not within a water management area, or (b) for any water management area or water source, or part of a water management area or water source, for which a management plan is not in force, or (c) for any water management area or water source, or part of a water management area or water source, for which a management plan is in force, but only so as to deal with matters not dealt with by the management plan. … (2) A Minister's plan must in general terms deal with any matters that a management plan is required to deal with, and may also deal with any other matters that a management plan is authorised to deal with, other than matters that are already dealt with by a management plan. …
The Applicants noted s 50(2), and argued that it required "a plan" (it is not clear whether the Applicants referred here to a Minister's plan or a management plan which, by virtue of Pt 3 of the Water Management Act, includes a WSP) to deal with mandatory matters "at least in general terms". The Applicants submitted that, in the present case, "the decisions with respect to the surface plans (regulated and unregulated) do not address the critical issues at all either in the bulk access regime or in the water source" (presumably, although it is not clear, by "surface plans (regulated and unregulated)", the Applicants referred to the impugned WSPs). [76]

[38]

Water sharing plans

With respect to WSPs the Applicants noted that the Water Management Act is one of the rare statutes "where the mandatory obligations are most prescriptive" (Transcript 417.2-3), citing subs 5(3), and posited that this prescription required conservation, protection, and restoration of water sources and their dependent ecosystems (Transcript 417.23-25). The Applicants argued that, in this case, Mr Purcell's evidence was the only evidence before the Court "as to what measures should have been taken to protect and restore the dependent ecosystem which is the Lake Paddock" (Transcript 417.27-29).
The Applicants alleged that, on the evidence of Mr Maini, the Minister neglected the mandatory obligations under the Water Management Act by giving preference to the operation of the larger system to the environmental impact on the Lake Paddock (Transcript 417.38-43). The Applicants characterising the evidence of Mr Maini as making an "assertion that notwithstanding his actions and directions making available excessive water in the Creek, the Department and his colleagues made no decision or engaged in no conduct as to management of water usage or flows causing damage albeit in control of the waters of Yanco Creek", argued that such an assertion was "not an answer to the case because": [i] excess water availability has caused or contributed to environmental damage; [ii] it is inconsistent with the State's water rights andcorrespondent duties in respect of them and the evidence. The following decisions being part of the impermissible conduct alleged have been made with respect to water planning which have had an adverse and deleterious affect [sic] on [the First Applicant] and the land at Somerset Park: a. the 2012 to 2015 WSP unregulated river decision b. the 2015 mandatory conditions decision c. the 2014, 2015 and 2016 amendment decisions with respect to the [2003 Regulated WSP] d. the management conduct in permitting unauthorised use and control of and flows in Yanco Creek as a diversion or for irrigation. [77]
Counsel for the Applicants alleged failure "of the respondents to comply with the mandatory obligation in ss 5 and 9 of the Act in relation to making a water sharing plan to protect and restore that dependent ecosystem" (Transcript 416.19-21). For instance, the Applicants argued, s 5(2)(a), providing that the sharing of water from a water source must protect the water source. In this case, the Applicants posited, there were two water sources being the water body in the Lake Paddock, and Yanco Creek, which were "inextricably linked by natural circumstances making the billabong integral in any sharing arrangement, which did not happen". [78]

[39]

Common law analogies

Counsel for the Applicants posited that the common law provided relevant analogies to the present situation.
The Applicants pointed to Thorpes Ltd v Grant Pastoral Co Pty Ltd (1955) 92 CLR 317; [1955] HCA 10 (Thorpes), where, the Applicants said, "the High Court allowed a claim by riparian owners on the basis that property and occupation rights were affected, "giving them both standing to sue and the right to recover a remedy at common law against a neighbour inundating his land … notwithstanding the State's water rights". [81] The Applicants argued that here, the State (being the owner of the State's water rights), was a "neighbour having the control use and management of the flows of waters in Yanco Creek and in the billabong." [82] However, the Applicants also posited that "the State is not a neighbour affecting the inundation rather it is doing so as the owner of the flows of water in Yanco Creek causing the damage by the high inundation flows by mismanagement." [83]
The Applicants distinguished the present matter from that of Gartner where, the Applicants submitted "the inundation was caused by the blocking of an artificial drainage from a swamp on neighbouring land leading to a build-up of waters in the swamp and loss of pasturage, and where the owner of the swamp land had no natural servitude or riparian right to prevent the neighbour blocking the drain; in contrast to the present case". In this matter, the Applicants argued, the First Respondent "is not only causing the loss through inundation but has a statutory duty to provide for the sustainable and integrated management of those water sources in which its water is conserved and to protect and restore such water sources which it clearly has failed to do in this case". [84]
Counsel for the Applicants submitted that cases such as Gartner, Thorpes and Mason v Hill (1833) 110 ER 692 at p 701 per Denman CJ, demonstrated that "inundation of private land causing environmental damage by the unnatural and unreasonable flow of water demonstrates standing to sue for both Applicants in respect of judicial review of acts and decisions causing such loss and damage." [85]
Counsel for the Applicants also submitted that the common law was of assistance "in providing analogies of loss and reflecting the measure of impairment including of socio-economic values [protected under WMA eg ss 3, 5, 7, 9 and 18], and the failure of the Corporation to have regard to those principles both in the planning of the Yanco Creek measures and the implementation of the plan under chapters 2 and 3." [86]

[40]

Respondents' submissions on obligations under the Water Management Act

The Respondents structured their submissions in accordance with the impugned decisions as set out in the SFAPOC, and are summarised under each of the relevant subheadings below.

[41]

Alleged damage to the Applicants' land

As alleged in the SFAPOC, the Applicants submitted that: As a result of the river management and works decisions of the Respondents their servants or agents complained of herein and the unnatural use by the Respondents their servants or agents of Yanco Creek as an irrigation canal between 1995 and the date hereof, the natural heritage, the pastures and the geography of Somerset Park have been damaged though excessive inundation of the wetlands including their dependent ecosystems known as the Billabong water source in the Lake Paddock at Somerset Park from artificially created overflows cause [sic] by river operations of the said Respondents and high flows in Yanco Creek with loss and impairment of the natural heritage of Somerset Park its trees native vegetation and pastures which loss and damage has been ongoing. Particulars [i] The water flows in Yanco Creek being part of an area of land controlled by the Respondents are part of the State's water rights; [ii] The land slopes in the area of Somerset Park adjacent to Yanco Creek at the Lake Paddock to the east; [iii] Yanco Creek flows are higher then [sic] the billabong and the Lake Paddock and as a result of excessive unnatural and high flows in Yanco Creek overflowing and breaking its banks the land and water sources of the Applicant have been damaged and ruined; [iv] The loss and damage to the natural heritage of Somerset Park is irreplaceable - the area was a haven for native fauna and flora which is now destroyed; the pastures have become degraded; the 150 year old gums are all dead; including remediation costs of the land particulars of which are provided separately.

[42]

Applicants' submissions on the alleged damage to "Somerset Park"

The Applicants made a number of assertions as to environmental damage which, they submitted, were relevant to many of the grounds of review for many of the impugned decisions.
The Applicants submitted that, due to high artificial flows down Yanco Creek, their property, "Somerset Park", and in particular the Lake Paddock and the natural environment in and around it, had suffered damage.
The Applicants relied on the evidence of Mr Purcell, contained in four reports (a further report, as discussed at [80]-[97] above, which was sought to be admitted into evidence after the close of the hearing, was not allowed), and in his oral evidence. The crux of Mr Purcell's evidence was that, essentially, the increase in flows down Yanco Creek that have occurred post-development, and that in his opinion, "high water levels ... directly damaged the existing environment and productive capacity of SP." [87]
The Applicants criticised the evidence of the Respondents Mr Warren whose evidence, they said, was "limited by his instructions and that "[h]e did not inspect the property", nor did he "speak with the farmer" (Transcript 431.5-9).
The Applicants also relied on the evidence of Mr Paul Andrews as to damage said by the Applicants to be [attributable to the decisions of the Respondents/caused by the aforementioned higher flows in Yanco Creek]. The Court held that the evidence given by Mr Paul Andrews in relation to the damage to the Applicants' land was admissible on the basis that it was a lay opinion per s 78 of the Evidence Act 1995 (Transcript 98.11-100.40). Mr Andrews gave evidence that, in his opinion, "high regulated flows down Yanco Creek had resulted in: 1. damage to the banks of Yanco Creek, which affected tree life along the river; 2. damage to the mature red gums and other flora in Lake Paddock (evidence of which included photographs and video footage); 3. damage to the pasturage in the Lake Paddock, including by inundation, and associated damage to grazing opportunities; and 4. damage to native fauna living in the trees and Creek banks.
In response to the Respondents' criticism of Mr Paul Andrews evidence (see below at [204]), the Applicants argued that Mr Andrews had been frank with the Court about not living at "Somerset Park" for a period of about 10 years because he was looking after his mother and father in Sydney. The Applicants contended that Mr Andrews came across as "an honest witness who cared for his family and the environment" (Transcript 430.13-24).

[43]

Respondents' submissions on the alleged damage to "Somerset Park"

The Respondents submitted that, for the purposes of determining the challenges to the impugned decisions "nothing really turns upon the alleged damage to the Applicants' land".
As to the remediation sought by the Applicants in Prayer 6, the Respondents argued that, even were the Court to find an error of law in one of the decisions in question, the Court does not have the power in judicial review proceedings to order the remediation of the Applicants' land.
As summarised at [177] above, the Respondents noted that the Applicants "made a late attempt to characterise this as an order sought under s 336 of the Water Management Act", and submitted that "they should not be permitted to amend their pleadings in that way". [96]
The Respondents argued that the Applicants' claims with respect to a failure on the Respondents' part to have regard to particular impacts of the relevant decision on the Lake Paddock, regardless of whether or not those matters were mandatory considerations depends upon the proper construction of the relevant Act. Whether or not prospective impacts were taken into account, the Respondents submitted, is a question of fact to be determined on the material before the decision-maker. Evidence of the impacts of a particular decision at the present date, the Respondents said, has no bearing upon the validity of a decision made in the past (citing Arnold v Minister Administering the Water Management Act 2000 (2010) 240 CLR 242; [2010] HCA 3 (Arnold Appeal) at [125]-[127]). [97]
In any event, the Respondents submitted, evidence of alleged damage could only be relevant to the allegations with respect to Decisions 1 and 2, because Decisions 3 to 8 relate to whether the 1986 Licence should be a regulated or unregulated entitlement and therefore "are not capable of having any impact on the physical condition of the Lake Paddock", and the Applicants had failed to articulate how those decisions had "any affect at all on the protection of the environment". [98]
As to the alleged damage, the Respondents argued that the evidence did not establish "that the damage to the Lake Paddock is caused by inundation or that the inundation is in turn caused by an alleged decision to increase regulated flows on Yanco Creek". They submitted that Mr Paul Andrews "was very uncertain about when he first noticed the damage and when the levels of Yanco Creek were increased". The Respondents also submitted that Mr Purcell's opinion should be disregarded for a number of reasons including that: 1. he is not a qualified or practicing ecologist; 2. it was not clear what questions he was asked to opine upon; 3. he provided little reasoning for his conclusions or, with the exception of his third report, set out his assumptions; 4. his opinion was based on "factual assumptions provided by Mr Paul Andrews some of which "directly intruded on the very matter Mr Purcell was asked to opine about"; 5. his opinion was also based on the Alluvium Report, which, the Respondents said, only allows for comparison between current flows and "pre-development flows". Such data, the Respondents argued, enable a conclusion about the impact of total development, but does not enable an assessment of the impact "of any particular development in the 1990s or any alleged decision to increase flows in the 1990s". [99]

[44]

Respondents' submissions on r 59.10

The Respondents submitted that in order to press their claims with respect to Decisions 1, 2, 3, 4 and 5, the Applicants required an extension of time pursuant to r 59.10 of the Uniform Civil Procedure Rules 2005 (UCPR), and argued that no such extension of time should be granted.
Rule 59.10 of the UCPR provides: Part 59 Judicial review proceedings … 59.10 Time for commencing proceedings (1) Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision. (2) The court may, at any time, extend the time for commencing proceedings fixed by subrule (1). (3) In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following: (a) any particular interest of the plaintiff in challenging the decision, (b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings (c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision, (d) any relevant public interest. (4) This rule does not apply to proceedings in which there is a statutory limitation period for commencing the proceedings. (5) This rule does not apply to any proceedings in which the setting aside of a decision is not required.
With respect to the application of r 59.10, the Respondents noted r 59.1, which provides Part 59 Judicial review proceedings 59.1 Application (1) This Part applies to the following proceedings for judicial review: (a) proceedings under section 65 and 69 of the Supreme Court Act 1970 and other proceedings in the supervisory jurisdiction of the Supreme Court, and (b) proceedings for or in the nature of judicial review in the Class 4 or Class 8 jurisdiction of the Land and Environment Court. (2) This Part does not apply to proceedings commenced before the commencement of this Part.
The Respondents citing r 59.1(2), argued that on its face r 59.1 means that Pt 59 applies only to any proceedings commenced after the commencement of the Part, being 15 March 2013 (regardless of whether or not the decision the subject of the proceedings was made prior to that date). [101]
While they accepted that Regional Express Holdings Ltd v Dubbo City Council (No 2) [2013] NSWLEC 113 (Regional Express) per Biscoe J (which was followed in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd [2013] NSWLEC 122 (Agricultural Equity) per Pepper J) found that r 59.10 did not apply to decisions made more than three years before it commenced, the Respondents submitted that such an interpretation was erroneous.

[45]

Applicants' submissions on r 59.10

The Applicants submitted that r 59.10 did not apply to decisions made prior to the commencement of that rule, and that an argument to the contrary was "unsupported by the terms of the rule, which with respect to impugned decisions made prior to the commencement of the provision is not expressed to be retrospective in operation" (citing Maxwell v Murphy (1957) 96 CLR 261; [1957] HCA 7). [105] The Applicants submitted that, in O'Connor, the argument as to the retrospectivity of r 59.10 was "never, in substance, considered or put", [106] but that, even if it were and N Adams J in that matter had decided that r 59.10 applied retrospectively, the Court ought to prefer Regional Express and Agricultural Equity to O'Connor. [107]
The Applicants, in their written submissions, stated that in any event, if it was necessary to seek an extension, such an extension was "sought in the action", that notice of this was given in the Applicants' "Reply to the Respondents' Points of Defence", filed 11 August 2018, and that such leave should be granted.
The Applicants further submitted that because "environmental damage", said to have been caused by the impugned decisions, is ongoing, those decisions are "being continued and made on an ongoing basis". [108]
Additionally, with respect to Decisions 4 and 5, the Applicants argued that those decisions did not take effect until "licence 33313" (referring to the Approval and the WAL) was issued on 30 March 2015, and that, therefore, the Summons in these proceedings having been filed on 22 June 2015 (within three months of 30 March 2015), there was no requirement for leave pursuant to r 59.10 (Transcript 535.9-12).

[46]

Decision on the time limitation issues based on r 59.10

The Court has carefully considered the competing submissions of the parties with respect to the issue whether r 59.10 precludes the Applicants seeking the review of a number of the decisions the subject of these proceedings without first seeking leave of the Court to exercise the discretion available in r 59.10(2) to allow an extension of time for the commencement of proceedings with respect to those decisions.
Applied in the normal circumstances r 59.10(1) requires an applicant to bring their proceedings for judicial review of a challenged decision within three months of the making of that decision. Brought within that three-month time limit, the judicial review proceedings may continue in the usual manner. However, if the decision in question is older than three months then proceedings seeking judicial review of that decision may not be brought unless an application is made to the court for it to exercise its discretion and grant leave for the proceedings to be commenced, thereby extending the time for commencing the proceedings beyond the three-month limitation period.
The Respondents' preferred contention is that five of the decisions being Decisions 1 to 5 inclusive, are out of time as the initial Summons in these proceedings was dated 22 June 2015 and the first five decisions were all made, if made at all, more than three months prior to the date of that first Summons. The Respondents accept that if r 59.10(1) applies then the Applicants may seek leave for their reviews of the decisions to be commenced out of time. In these circumstances with respect to each decision, the Respondents argue that, in the exercise of the Court's discretion, leave ought not be granted for the various reasons which are set out below with respect to each decision.
The Applicants' preferred interpretation is that r 59.10 has no retrospective operation, it being incapable of having regulatory effect prior to the rule coming into effect - the date of which was 15 March 2013. Rule 59 falls within Pt 59 of the UCPR and, by r 59.1(2), it is provided that "This Part does not apply to proceedings commenced before the commencement of this Part". If the Applicants' interpretation were to prevail, then there would be no basis for the Court, they argued, to prevent proceedings being commenced with respect to decisions made prior to 15 March 2013, irrespective of the age of those decisions. On this basis, the Applicants argue that all of the decisions the subject of the review proceedings before me can proceed to be reviewed, even though the decisions were made some years prior to the date of the initial Summons, thereby overcoming the r 59.10(1) time limit for bringing proceedings within three months of each decision. In short, the Applicants contend that I have no discretion to deny the review of the decisions they seek to be reviewed, irrespective of how old those decisions might be, as r 59.10 cannot be retrospectively applied to these old decisions.

[47]

Decision 1 - The Yanco Creek works decision (8A and 8C of the Second Further amended Points of Claim)

Decision 1, described by the Applicants as the "Yanco Creek works decision", was said by the Applicants to be a decision made by the First Respondent (being the Water Administration Ministerial Corporation) in about 1990, and affirmed and adopted in each water year since the commencement of the Water Management Act, from 1 January 2001 to the present, under s 372(1) "and other works provisions of the Water Management Act, by officers of the Department located at the Leeton office, to" (SFAPOC [8A]): conduct works on Yanco Creek for the use of the natural creek and its bed as an intensive irrigation canal for irrigation by water flows from regulated water storages of the Respondents upstream of Somerset Park to irrigators downstream thereof as well as to Somerset Park itself and other surface water licence-holders on Yanco Creek, which decision has been implemented by the Respondents at Yanco Creek.
The particulars of this decision were said by the Applicants to be: (i) to artificially deepen and widen Yanco Creek and raise the height of Yanco Creek's banks as the Creek progressed westward through Somerset Park; (ii) To alter the effluent being the natural watercourse between Yanco Creek and the billabong in the Lake Paddock at Portions 39, 40,41, 49, 50. 55. 56. 58. 59. 60. 64. 65. 66, 67. 68, 69. 70. 71. 88. 89, 90. 91, 92, 99, 100 and 101 Parish of Cuddell County of Mitchell and Portion 154 Parish of Howell County Boyd;[however this allegation was not pressed by the Applicants] (iii) To artificially enhance the effluent from Yanco Creek to the billabong in Lake Paddock by constructing and maintaining earthen walls along its length; (iv) To place an artificial block in the effluent between Yanco Creek and the billabong in Lake Paddock in 2005 and again in 2007 preventing water going in and out of the wetland at different and natural levels [however this allegation was not pressed by the Applicants] (v) To block off regulated water flows from Yanco Creek except for surplus flows to the Lake Paddock on Somerset Park; [however this allegation was not pressed by the Applicants] (vi) To fail to undertake necessary or any works along the water effluent between Yanco Creek and the billabong to prevent inundation of Somerset Park by regulated water flows from the creek into the wetlands and dependent ecosystem in the Lake Paddock; (vii) The decision to conduct the works was first made by the Yanco Creek water efficiency officer of the First Respondent in about 1990 at the Leeton Office of the Department whose name is unknown and since 1 January 2001 in each water year by Mr Beck, Mr Webb and Mr Parrett water efficiency officers in relation to Yanco Creek annually thereafter to date; (viii) Rendering the drainage and effluent system in the Lake Paddock superfluous.

[48]

Applicants' submissions on Decision 1

The Applicants alleged that Decision 1 was invalid on a number of grounds namely (SFAPOC [8C]): (i) Failure of the First Respondent by its servants or agents at the Leeton office in particular Mr Lindsay Beck, Mr Steve Webb and Mr Jim Parrett in making and implementing [Decision 1] to have regard to their duty to take all reasonable steps to protect and restore the wetland, being the billabong in the Lake Paddock the floodplain and the dependent ecosystem being the trees and natural heritage thereof, but instead promoted and preferred regulated water use in Yanco Creek in breach of the duty in [Water Management Act] section 9 (1) (a) and (b) and water management principle (2) (a) in section 5; (ii) Having regard to irrelevant considerations namely maximising the regulated flows in Yanco Creek and/or causing major losses in the system of regulated water in preference to the prevention of degradation of the wetlands and dependent ecosystems on Somerset Park in breach of sections 9 (1) and 5(2) (a) of the [Water Management Act]; (iii) Preferring extraction rights of downstream irrigators and inundation of the wetlands and the dependent ecosystem in the Lake Paddock on Somerset Park over the protection of the water source and its dependent ecosystems in breach of [Water Management Act] sections 9(1)(b) and 5(3); (iv) Failing to have regard to relevant considerations namely the minimisation of the cumulative impacts of water licences and approvals granted downstream of Somerset Park on the billabong wetland in the Lake Paddock on Somerset Park and its dependent ecosystems and its natural heritage in breach of [Water Management Act] sections 9(1)(a) and (b) and 5(2)(d) and (f); (v) Failing to have regard to relevant considerations namely the minimisation of land degradation on Somerset Park being the banks of Yanco Creek by soil erosion, waterlogging and inundation of the Lake Paddock and its natural heritage and undermining the productivity of the land in Lake Paddock and its environs in breach of [Water Management Act] sections 9(1)(a) and 5(4) and (5); (vi) Failure of the Respondent[s] by its servants or agents to have regard to the impact on the Lake Paddock water source of river planning decisions with respect to river management of the Murrumbidgee River and Yanco Creek affecting the water source; (vii) Using the wetlands and the dependent ecosystem known as the Billabong in the Lake Paddock of the Applicant as a convenient dumping ground and repository for overflows and surplus or supplementary flows of regulated water flows in Yanco Creek without regard to the interests of the local environment or the protection of the at risk water source or the legitimate interests of the Applicant[s]; (viii) In the premises the Respondents its servants or agents failed to have regard to the duty not to abridge the right of each Applicant to the reasonable use of the waters of Yanco Creek for conservation or irrigation; (ix) In the premises the Respondents by their servants or agents aforesaid exercised a power in making and implementing the Yanco Creek works decision without any environmental impact assessment or any geomorphological evidence that is so unreasonable that no reasonable person could have so exercised the power.

[49]

Respondents' submissions on Decision 1

The Respondents opened by noting that the Applicants had not sought any relief with respect to Decision 1, and that it was therefore unclear as to the utility of the Court determining the issues raised by the Applicants with respect to Decision 1. [110] The Respondents submitted that, even if this were not the case, the Applicants' challenge to Decision 1 ought to be dismissed on a number of bases.

[50]

Was there a "decision"?

First, the Respondents said, the Applicants had not established that the alleged decision or decisions had in fact been made. [111] Noting that Decision 1 was alleged to have been made in "about 1990", the Respondents argued that the Applicants had not provided any evidence of a decision in 1990 or thereafter by the First Respondent to conduct works on Yanco Creek for the use of the creek as "an intensive irrigation canal". The Respondents submitted that the affidavits relied upon by the Applicants did not evidence such a decision being taken by the unnamed departmental officer in "about 1990", or by the named departmental officers after the commencement of the Water Management Act.
The Respondents noted Mr Paul Andrews statement in his affidavit dated 28 January 2016, set out above at [133], regarding the "unnaturally raised" level of Yanco Creek, and submitted that the Court should place very little weight on Mr Andrews evidence as to the changes in Yanco Creek. This was because, the Respondents asserted, under cross-examination Mr Andrews was "very uncertain" about those changes being unable to give any quantitative indication of the raised water levels unable to say when the "raising" occurred, and unable to say who made the decisions. [112] Further, the Respondents pointed to inconsistencies between Mr Andrews' affidavits and evidence given under cross-examination. For instance, the Respondents said, in his first affidavit Mr Andrews said that he had lived at "Somerset Park" since 1974, but later said he had only lived there full-time since 1983, and then, under cross-examination, said from 2005 to 2015 he spent most of his time in Sydney. Even in the period 1983 to 1993, the Respondents said, Mr Andrews conceded that he did not take lead responsibility for managing "Somerset Park". The Respondents noted that Mr Andrews admitted that he is still not "fully acquainted" with the property and water licences. [113]
The Respondents argued that, beyond the opinions expressed by Mr Andrews, the Applicants did not file any other evidence of works to deepen or widen Yanco Creek or to raise the height of its banks. With respect to references made by the Applicants in cross-examination and submissions to the upgrade of the Yanco Weir before 1995 (at Transcript 433.1-5), the Respondents noted that such an upgrade was never pleaded to be part of Decision 1, and that, if it had been so pleaded, the Respondents may have been able to adduce evidence as to timing. [114]

[51]

No errors of law

Secondly, the Respondents posited, even if the Court were to conclude that Decision 1 had in fact been made, none of the alleged errors of law could be established.
Of the nine particulars set out at [8C] (and set out above at [246]), the Respondents submitted that only six particulars (8C-(v) and (ix)) constituted grounds of judicial review, being: 1. particulars (i), (iv) and (v), which alleged failure to take into account relevant considerations; 2. particular (ii), which alleged having regard to irrelevant considerations; 3. particular (iii), which alleged breach of statutory procedural requirements; and 4. particular (ix), which alleged unreasonableness.
The Respondents submitted that it was not clear whether or not particulars (vi) and (vii) alleged failure to take into account relevant considerations but, if they did, the Respondents said that these were not mandatory relevant considerations in relation to any such Decision 1.

[52]

Failure to take into account relevant considerations

As to the matters set out at [259(1)] above (particulars 8C, (iv) and (v) of the SFAPOC), the Respondents noted that the sections of the Water Management Act alleged to have been breached by the First Respondent (namely, ss 5(2)(a), (d), (f), 5(4), 5(5) and 9(1)(a)) have only applied since the commencement of the Water Management Act in 2001, and are therefore not relevant to the validity of decisions alleged to have been made from "about 1990" to 2001. [118]
The Respondent submitted that to the extent ss 5(2)(a), (d), (f), 5(4), 5(5) and 9(1)(a) were relied upon in respect of alleged decisions made since 2001, the Applicants had not proved that any such decisions had been made, and (because they could not prove what materials were before the decision‑maker), could not prove what was or was not taken into account in making the alleged decisions This the Respondents submitted, was fatal to the Applicants' challenge to Decision 1. [119]
Further, the Respondents submitted, the Applicants had not identified a statutory function (the exercise of which would be subject to s 9(1)(a) of the Water Management Act) said to have been exercised by the First Respondent in making the alleged Decision 1, "other than a general reference to s 372, which sets out the functions of the [First Respondent] generally". Nor, the Respondents submitted, had the Applicants attempted to establish that any of the water management principles in s 5 of the Water Management Act by themselves constituted mandatory relevant considerations (as identified in Peko-Wallsend Ltd at 39-41) in the making of the alleged Decision 1. [120]
The Applicants, the Respondents said, had not demonstrated that s 9 of the Water Management Act, when read with s 5, operated so as to require the consideration of the impacts on particular water bodies such as the water body in the Lake Paddock. [121]
Noting that most of the water management principles relied upon by the Applicants related to "water sources", the Respondents cited the dictionary to the Water Management Act which provides that "water source" means "the whole or any part of" "one or more rivers lakes or estuaries or "one or more places where water occurs on or below the surface of the ground …" (Respondents' emphasis). That is the Respondents submitted, a single water source could encompass a collection of rivers or a collection of places where water occurs on the ground. The Respondents argued that this was borne out in the way the Murrumbidgee Western Water Source (MWWS) was defined in the 2012 Unregulated WSP, being a large geographic area encompassing a number of different bodies of water. The result, the Respondents argued, was that there was a "breadth of latitude" in the consideration of any principles relating to water sources (citing NA&J Investments v Minister Administering the Water Management Act 2000 (2011) 181 LGERA 166; [2011] NSWLEC 51 (NA&J Investments) at [47] per Craig J, noting that this was in relation to s 5(2)(g)). [122]

[53]

Taking into account irrelevant considerations

As to the alleged taking into account of irrelevant considerations (particular 8C of the SFAPOC), the Respondents argued that the Applicants had not established that either of the two considerations said to be irrelevant ("maximising the regulated flows in Yanco Creek" and "causing major losses in the system of regulated water in preference to the prevention of degradation of … Somerset Park") were in fact taken into consideration in the making of any decision by the Respondents after 2001. [126]
The Respondents argued that the Applicants in 8C of the SFAPOC, misconstrued the principles in s 5(3) of the Water Management Act, which are concerned with sharing of water "from a water source". The Respondents contended that the only "water source" referred to in particular 8C was the alleged "water source" in the Lake Paddock, but that the Applicants did not allege that the Respondents in making the alleged Decision 1, had engaged in any statutory sharing of water from the water body in the Lake Paddock. In order for [8C] of the SFAPOC to be made out on the basis of particular (iii) to that paragraph, the Respondents argued, it would be necessary for the Applicants to establish that the Legislature intended a contravention of the water management principles in s 5(3) to lead to invalidity of the alleged Decision 1 (citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (Project Blue Sky) at [91], Nature Conservation Council of New South Wales Inc v Minister Administering the Water Management Act 2000 (2005) 137 LGERA 320; [2005] NSWCA 9 (Nature Conservation Council) at [90]), an exercise, the Respondents said, the Applicants did not attempt. [127]
In relation to 8C of the SFAPOC, in which the Applicants alleged that Decision 1 was unreasonable because it was made or implemented "without any environmental impact assessment or geomorphological evidence", the Respondents submitted that the Applicants did not identify the legal source of an obligation to either conduct an environmental impact assessment, or to obtain geomorphological evidence, for the purposes of the alleged Decision 1. [128]

[54]

Relief sought

The Respondents submitted that, with respect to Prayer 6 - an order that the Respondents take steps to remediate the Lake Paddock - the Court has no such power to grant such an order as relief in judicial review proceedings. Further, the Respondents contended that the Applicants had not proven any causal link between the alleged Decision 1 and the alleged damage to their land. [129]

[55]

Leave is required

The Respondents submitted that, as summarised at [209]-[217] above, in order to challenge any decisions made prior to 22 March 2015, the Applicants required an extension. The Respondents argued that no such extension should be granted "in circumstances where the challenge is without merit and given the Applicants have no real explanation for not challenging the decisions within time" (citing Transcript 158.10-17). [130]

[56]

No relief ought to be granted

Finally, the Respondents argued that even if the Court found against it and was minded to grant the relief sought in Prayer 6 (set out at [109] above), that it ought to decline to do so because of the Applicants' failure to comply with the conditions of its licence. [131]

[57]

The 1986 Licence required the construction of a regulator

The Respondents drew the Court's attention to conditions 7, 8, and 9, as set out above at [15(1)]-[15(3)], attached to the 1986 Licence when it was first granted on 23 April 1986. These conditions required the First Applicant to install in the diversion channel a regulator with a sill level fixed at a certain specified level, with dropboards or some other control device installed over the regulator, only to be operated to provide flows in the diversion channel with the permission of the Manager Murrumbidgee Division of the Water Resources Commission at Leeton, such permission being expected to coincide with periods of surplus flows being available in Yanco Creek. [132]
The Respondents argued that, if the regulator had been installed in accordance with the conditions of the 1986 Licence, it would have allowed the First Applicant to prevent or reduce the inflow of regulated water from Yanco Creek into the Lake Paddock (relying on the evidence of Mr Webb, [133] and the answers of Mr Andrews [134] and Mr Purcell [135] under cross‑examination). [136]
With respect to Mr Andrews' evidence [137] that he had constructed a "block bank" from earth "at least fifteen years ago" that had been "washed away by the high flows from Yanco Creek", the Respondents argued that this did not prove that the regulator required by the conditions of the 1986 Licence would not have been effective in 1986. They noted that, although Mr Maini gave some evidence about the effectiveness of a block bank, he was not asked whether a regulator would have been effective and in any event had not been to the property and could not speculate. [138]
The Respondents submitted that the regulator required by the 1986 Licence would have allowed the First Applicant to preclude or reduce the alleged inundation of Yanco Creek, and that although the licence always required the construction of such a regulator (such condition having been included at each renewal), it is common ground between the parties that the regulator was never constructed. [139]
As to the submission made by the Applicants in their closing submissions that the First Applicant was never required to install the regulator, because such a requirement was merely a "condition of use" and the First Applicant had not made use of its entitlement, [140] the Respondents contended that such a proposition was neither advanced in any of the contemporaneous correspondence, nor pleaded. [141] Further, the Respondent argued, condition 7 was framed in unconditional terms ("the licensee shall construct"), and was never expressed as being conditional upon use. However, even if the obligation was conditional upon use, the Respondents submitted that its argument still stands because the First Applicant "applied to install a regulator, was granted that authorisation and, despite the Department repeatedly stating that the First Applicant could alleviate the inundation by installing the regulator (or alternatively State Water would do so by installing a block bank), the First Applicant neither built the regulator nor consented to the Department blocking off the flows". [142]

[58]

Consideration of validity of Decision 1

There are a number of fundamental problems with the Applicants' case with respect to the alleged Decision 1. Some of these problems can be characterised as "threshold" issues which, together, weigh against the Applicants.
First, was there a decision or a series of related decisions? To answer that question, it is insufficient in judicial review proceedings to point to alleged impacts or consequences of alleged decision-making and assert that there had to have been a decision that brought about those consequences. Given the nature of a review of decisions it is essential to focus on the actual decision in order to determine whether it failed to meet the requirements of proper decision-making. To focus on the consequences in order to "second guess" the decision, fails to understand that - in administrative law - even though the consequences of a decision might be objectionable, they might have come about following a proper decision. A perfectly sound decision, made in full compliance with administrative law principles may nevertheless have poor outcomes, including unfortunate environmental consequences, but the decision remains, with respect to judicial review, unassailable. Even if the Court were to accept the proposition that there are poor environmental outcomes impacting upon the Lake Paddock, this does not assist in identifying an alleged decision and then determining whether the making of that decision was flawed.
Consequently, the Court does accept Mr Paul Andrews evidence that the flow level of Yanco Creek has been raised and that in his opinion that raised level has been due not to natural flow patterns but rather decisions that have caused the flow to increase, a fact which was corroborated by the Respondents' own witness Mr Maini, in evidence. The Court must ask: Was there a particular decision in relation to the raising of water levels in Yanco Creek? When was it made and by whom? And, most pertinently, was the decision, or decisions, made correctly? Too many uncertainties relate to the particulars of the decision or decisions for this Court to be capable of reviewing whatever the decision may or may not have been. Without any reflection upon the honesty of Mr Andrews, the criticism of his evidence by the Respondents, as summarised earlier at [253], is well-placed. It is not surprising that Mr Andrews was vague and uncertain given the decades he needed to traverse in his memory in order to provide his evidence. As a lay person not directly involved in the decision-making of government, it would be unrealistic to expect of any citizen a sufficient knowledge of actual decisions which caused changes in the physical state of a creek traversing his property. A better source for the required information, in order for the Applicants to establish that such a decision had been made, would have to be found elsewhere.

[59]

Decision 2 - 8B and 8D of the Second Further Amended Points of Claim - The Yanco Creek water usage decision

Decision 2 was said by the Applicants to have been a decision of the First Respondent, its servants or agents, under s 372(1) "and other works provisions of the Water Management Act, made in "about 1990", affirmed since, and adopted in each water year since the commencement of the Water Management Act "to date", by "officers of the Department located at its Leeton office", to: send unnatural and unreasonably high water flows in each water year from its water storages upstream westward along Yanco Creek and through Somerset Park, which decision has been implemented by the Respondents at Yanco Creek.
The particulars of this decision were said by the Applicants to be (SFAPOC [8B]): (i) To raise the height of water flows through Yanco Creek to unnatural levels for the purpose of selling water to irrigators downstream each water year; (ii) To sacrifice the interests of Somerset Park its water sources natural heritage and pasturage to the commercial interests of the Respondents; (iii) To cause the regulated flow to terminate at the end of the effluent channel inside Somerset Park and for overflows of regulated water to inundate the Applicant's land including the wetland and the dependent ecosystems known as the billabong water source in the Lake Paddock; (iv) To cause high flood flows of regulated water from Yanco Creek to enter the billabong in the Lake Paddock especially during periods of supplementary water flows in Yanco Creek authorised and directed by the Manager Water Supple at Leeton employed by the Respondents; (v) To cause regulated water flow along the effluent watercourse from Yanco Creek to the Billabong in the Lake Paddock.

[60]

Applicants' submissions on Decision 2

The grounds upon which Decision 2 was said to be invalid (SFAPOC [8D]) were: (i) Failure of the First Respondent by its servants or agents at the Leeton office in particular Mr Lindsay Beck, Mr Steve Webb and Mr Jim Parrett in making and implementing the water Yanco Creek water usage decision to have regard to their duty to take all reasonable steps to protect and restore the wetland, being the billabong in the Lake Paddock the floodplain and the dependent ecosystem being the trees and natural heritage thereof, but instead promoted and preferred regulated water use in Yanco Creek in breach of the duty in Water Management Act 2000 ['WMA'] section 9(1)(a) and water management principle (2)(a) in section 5; (ii) Having regard to irrelevant considerations namely maximising the regulated flows in Yanco Creek and/or causing major losses in the system of regulated water in preference to the prevention of degradation of the wetlands and dependent ecosystems on Somerset Park in breach of sections 9(1)(a) and 5(2)(a) of the WMA; (iii) Preferring extraction rights of downstream irrigators and inundation of the wetlands and the dependent ecosystem in the Lake Paddock on Somerset Park over the protection of the water source and its dependent ecosystems in breach of WMA section s 9(1)(b) and 5(3); (iv) Failing to have regard to relevant considerations namely the minimisation of the cumulative impacts of water licences and approvals granted downstream of Somerset Park on the billabong wetland in the Lake Paddock on Somerset Park and its dependent ecosystems and its natural heritage in breach of WMA sections 9(1)(a) and (b) and 5(2)(d) and (f); (v) Failing to have regard to relevant considerations namely the minimisation of land degradation on Somerset Park being the banks of Yanco Creek by soil erosion, waterlogging and inundation of the Lake Paddock and its natural heritage and undermining the productivity of the land in Lake Paddock and its environs in breach of WMA sections 9(1)(a) and sections 5 (2), (4) and (5); (vi) Failure of the Respondent by its servants or agents to have regard to the impact on the Lake Paddock water source of river planning decisions with respect to river management of the Murrumbidgee River and Yanco Creek affecting the water source. (vii) In the premises the Respondents its servants or agents failed to have regard to the duty not to abridge the right of each Applicant to the reasonable use of the waters of Yanco Creek for conservation or irrigation; (viii) Using the wetlands and the dependent ecosystem known as the Billabong in the Lake Paddock of the Applicant as a convenient dumping ground and repository for overflows and surplus or supplementary flows of regulated water flows in Yanco Creek without regard to the interests of the local environment or the protection of the at risk water source or the legitimate interests of the Applicant; (ix) In the premises the Respondents by their servants or agents aforesaid exercised a power in making and implementing the Yanco Creek works decision without any environmental impact assessment or any geomorphological evidence that is so unreasonable that no reasonable person could have so exercised the power.

[61]

Respondents' submissions on Decision 2

The Respondents noted that, as with Decision 1, no relief had been sought by the Applicants with respect to the alleged Decision 2 and that in those circumstances it was doubtful whether any issues in relation to it required determination. Nevertheless, the Respondents argued that the challenge to Decision 2 should be dismissed for a number of reasons. [149]

[62]

No proof the decision was made, or by whom

First, the Respondents submitted that, as was the case with Decision 1, the Applicants had not proved that the alleged Decision 2 (or decisions) was ever made. [150] Decision 2 was alleged to have been a decision of the First Respondent, however, the Respondents contended, the Applicants had not established the making of such a decision annually since 2001 by the First Respondent, or even by the officers of the Department named in 8D of the SFAPOC. The Applicants, the Respondents argued, had proffered no evidence beyond the opinions expressed by Mr Paul Andrews in his affidavit (which the Respondents argued should be given little weight for the reasons summarised at [253] above) that a decision had been made to send "unnatural and unreasonably high water flows along Yanco Creek". [151]
As to the documents referred to by the Applicants which are said to be suggestive of an increase in regulated flows, the Respondents argued that even if the Applicants could prove that decisions were made to increase the flows in Yanco Creek, they were not decisions made by the First Respondent. The Respondent noted that the day-to-day water levels in Yanco Creek are not managed by the First Respondent or the Department, but by WaterNSW, the successor to the State Water Corporation, both being State-owned corporations pursuant to the State Owned Corporations Act 1989 and the Water NSW Act 2014. The Respondents noted that WaterNSW is not a party to the proceedings and that its conduct, as a State-owned corporation, is not attributable to the State (citing s 20F of the State Owned Corporations Act 1989). [152]
Secondly, the Respondents argued that, even if the Applicants had made out that the alleged decision had been made, and by whom, none of the alleged errors of law could be made out. [153] The particulars at [8D] of the SFAPOC setting out the grounds on which Decision 2 was alleged to be invalid were said by the Respondents to be identical to the particulars to [8C], although they noted that particular 8C is numbered 8D and 8C is reproduced as 8D. The Court notes, in addition, that 8D(v) alleges breach of s5(2) of the Water Management Act, whereas its counterpart, 8C(v), does not. Subsection (2) was added to s 5 in the SFAPOC, that is, during the hearing of the matter. The Respondents therefore, repeated their submissions as summarised at [258]-[271] above, but in relation to the alleged Decision 2. The Respondents further submitted that, with respect to , (ii), (iv) and (v) of the SFAPOC, no function under the Water Management Act was identified by the Applicants as having been said to trigger the operation of s 9(1)(a) of the Water Management Act in the making of Decision 2. [154]

[63]

Consideration of validity of Decision 2

First, with respect to the alleged Decision 2, many details required by the Court to determine the Applicants claim are imprecisely identified or are simply absent. The Court accepts the Respondents' submissions, summarised earlier at [304], that there is a question as to whether Decision 2 was ever made or, if a decision had been made, that it was repeatedly made annually thereafter. However, the Court can accept, from the circumstantial evidence of the contemporaneous correspondence, and from the evidence of Mr Andrews, albeit vague and elusive as to details, that the flow levels in Yanco Creek did significantly increase at some time and that, as distinct from Banjo Patterson's description of the natural rise in the level of the Murrumbidgee River caused by melting snow, the sustained higher flow levels suggest a regulatory management decision had been made. However, in the context of these judicial review proceedings how, I rhetorically ask: Can this Court focus on the usual administrative law tests to determine the validity of decisions unless greater particulars of the actual decisions being impugned are before it? As said at various points throughout this judgment, a perfectly valid decision may have been made, and repeatedly made, in accordance with all requirements but "unfortunate consequences" may, nonetheless, have resulted. Unfortunate consequences need not be indicative of an invalid decision.
However, the Court does accept as being beyond doubt that a decision was initially made, and similar decisions were subsequently made, to allow up to 1,400 megalitres per day to pass over the Yanco Creek Weir. Whether such a decision was made as early as 1990 is difficult to determine. Merely as an observation, it is to be noted that that flow rate does not mean that that 1,400 megalitres per day always flowed over the weir once that level was allowed. Flow conditions do change, however, the Court accepts that that flow level was set at a maximum and that it is to be expected that, at times the flow down Yanco Creek would have achieved that rate. So, in this respect, it appears as though a decision was made but, as for details of the decision‑making, the requisite details are largely absent.
Decision 2 is said to have first been made "in or about 1990'. If that was the case then the decision was made pursuant to the 1912 Act, in which case the water management principles, and the pleaded duties referred to in pleaded grounds (i) to (v), which were enacted pursuant to the Water Management Act, cannot apply to the years between 1990 and the coming into effect of the Act in 2001. However, the Applicants pleaded that the initial decision was affirmed and adopted in each water year since the commencement of the Water Management Act "to date". By extending the reach of Decision 2 to a remaking of it each year, the Applicants are clearly endeavouring to achieve two things: first, to overcome any statutory time bar to seeking judicial review (because three months will have passed since the making of the decision); secondly, to ensure that the duties and principles established by the Water Management Act are capable of being applied to the decision or decisions in question.

[64]

Decision 3 - 9A of the Second Further Amended Points of Claim - The 2012 licence decision - Alleged variation of the terms and conditions of the 1986 Licence in September 2012.

The third decision under review in these proceedings is said by the Applicants to be a decision of the First Respondent "between August 2012 and October 2012" to vary the terms and conditions of the 1986 Licence.

[65]

Applicants' submissions on Decision 3

The Applicants argued that this Decision 3 was "void and of no effect" on the following grounds: (i) Breach of the rules of natural justice occurred in connection with the making of the decision namely the failure to afford to the Applicant which was a person interested a reasonable opportunity to be notified of the proposed alteration of the Applicant's licence and to make submissions there on in circumstances where the renewal and conditions of the licence had been agreed between the parties in proceedings in this Honourable Court on 23 August 2012; (ii) Procedures that were required by law to be observed in connection with the making of the decision were not observed namely the forming of the opinion of the First Respondent by an authorised officer that it was necessary or expedient that Licence No 40SL 045398 issued in the name of the Applicant be suspended or modified, and in particular there were no circumstances which rendered it either necessary or expedient that any such suspension or modification occur; (iii) The making of the decision was an improper exercise of the power conferred by Water Act 1912 section 17A in pursuance of which it was purported to be made in that the exercise of power was made to deny to the Applicant the benefit of the orders made by this Honourable Court on 22 August 2012 in proceedings No LEC of NSW 2012/30440, and in particular to deny the Applicant the benefit of a licence entitling it to 1000 MGs of volumetric allocation which was only capable of enjoyment by access to the regulated river system; (iv) The First Respondent had no or no sufficient regard to the interests of the Applicant in the existing licence and its nature as a surplus flow licence with respect to Yanco Creek and/or treated the licence as of no value or benefit to the Applicant; (v) The First Respondent had regard to an irrelevant consideration namely the Department's erroneous prior decision at its Leeton office that the billabong water source at Somerset Park be incorporated into the Murrumbidgee Western Water Source because it was of no value to the Applicant and without regard to the duty to protect that water source as abutting to or as an integral part of Yanco Creek under WMA sections 9(1), 5(2)(a) and 7(3)(4) and (5); (vi) The exercise of the power by the First Respondent in section 17A(2) Water Act 1912 was in the circumstances alleged in sub-paragraphs [ii] & [iii] hereof for a purpose other than a purpose for which the power is conferred; (vii) Having regard to the consent orders of the Court of 23 August 2012 the First Respondent by its authorised officer exercised the power in section 17A(2) Water Act 1912 in a manner and to the effect that such exercise was so unreasonable that no reasonable person could have so exercised the power; (viii) Failing to have regard to a relevant consideration namely that the renewed Water Act 1912 licence was a regulated water surplus flow water licence also called a supplementary additional licence issued in respect of regulated water flows into and from a water source namely the billabong in the Lake Paddock being a wetland with dependent ecosystems abutting the existing regulated flows in Yanco Creek.

[66]

Respondents' submissions on Decision 3

The Respondents submitted that, although it is not clear from the SFAPOC, they understood the Applicants' concern to be with the variation to condition 13 (renumbered as condition 10), providing for the licensee to divert up to 1,000 megalitres of unregulated water for irrigation use in any one year, and that the Applicants considered themselves entitled to a licence to divert regulated water. [176]
The Respondents submitted that there was no error of law in the making of Decision 3 by the First Respondent for the following reasons. [177]

[67]

The First Applicant was put on notice

First, the Respondent said, the First Applicant was put on notice that the First Respondent would treat any modification application as being in relation to unregulated water. In support of this, the Respondent pointed to a letter dated 28 August 2012 in which Mr Webb of the Department set out his understanding that the First Applicant would make an application to modify the 1986 Licence so that it would provide "for an unregulated volumetric allocation of 1000 ML" (Respondents' emphasis). [178] This letter was received by the First Applicant on 3 September 2012 and, the Respondent posited, at no point between that date and 28 September 2012, when the condition was amended, did the Applicants take issue with Mr Webb's stated understanding that the application would be for an unregulated allocation. [179] The Respondents argued that the Applicants' submission, as set out at [330] above, that the Applicants had not been given an opportunity to make submissions on this point was, therefore, false. [180]

[68]

The licence has only ever allowed access to unregulated flows

Secondly, the Respondents submitted that the 2012 Court Orders plainly referred to an unregulated entitlement given the 1986 Licence "has only ever been a licence to access unregulated flows". [181]
The Respondents argued that particular (viii) of [9A], in alleging that the First Applicant's licence was a "regulated water surplus flow licence", ignores the terms of the licence, [182] and that the 1986 Licence entitled the First Applicant "to access flows in Yanco Creek only with the permission of a specified officer, such permission being expected to be given in period of declared surplus flows". [183] This, the Respondents said, was "essentially an entitlement to access unregulated flows". [184] The Respondents pointed to Mr Paul Andrews and Mr Purcell's acceptance, under cross-examination, that regulated rivers could nonetheless have unregulated flows in times of flood, [185] and to Mr Webb's advice to the First Applicant - which was not disputed at the time [186] - that the regulator required under the licence was to preclude "regulated flows". [187] Further to this, the Respondents posited, was the fact that the First Applicant's licence application was treated as one for a special additional licence. [188] Drawing on Mr Purcell's evidence that it was possible for a regulated licence-holder to also have a special additional licence to enable that person to access, in addition to the regulated flows, additional water in times of flood, [189] the Respondents argued that, in this matter, the First Applicant held a different licence in respect of Yanco Creek which entitled it to access regulated flows, [190] and so licence 40SL45398 was "additional" in the sense that it allowed it to access surplus flows (over and above regulated flows) in times of flood. [191]
The Respondents denied the Applicants' suggestion that Mr Hutchison's evidence contradicted this. [192] Mr Hutchison, the Respondents submitted, accepted that context was key, and that in this matter the relevant context was that the 1986 Licence "had only ever entitled the First Applicant to take unregulated waters from the diversion channel". [193]
With respect to the submission made by the Applicants and summarised above at [331], the Respondents argued that they had been misrepresented. The actual submission of the Respondents on this point, the Respondents said, was that the Minister has a power to declare a river a "regulated river", and that that power is found in the Dictionary to the Water Management Act. However, the Respondents said, there is no corresponding power to declare a river to be unregulated. The power exercised by Mr Webb was an entirely different power, being that to amend licence conditions pursuant to s 17A(2) of the 1912 Act. In amending the condition to provide for unregulated water, the Respondents submitted, "Mr Webb was only confirming what had always been clear from the terms of the licence - namely, that the First Applicant was entitled to access unregulated (or flood) flows. He was not purporting to exercise any power held by the Minister." [194]

[69]

No extension of time should be granted

Finally, the Respondents argued that, with respect to Decision 3, the Applicants required an extension of time pursuant to r 59.10 of the UCPR. The Respondents submitted that Decision 3 was made on 28 September 2012, [195] contrary to the Applicants' submission that it occurred on 30 March 2015. [196] The decision referred to by the Applicants was, the Respondents submitted, "an entirely different decision - namely a decision by the Minister to impose the Plan Conditions mandatory conditions across certain categories of licences". The Respondents argued that this interpretation is confirmed by the fact that Decision 6, being the decision challenged under [9D] of the SFAPOC, is the decision of 30 March 2015.

[70]

Consideration of validity of Decision 3

First, with Decision 3 said to have been made on 28 September 2012, the decision was some 33 months prior to the date of the initial Summons by which these proceedings were commenced. As held earlier at [236], UCPR r 59.10 applies to Decision 3 and so the Applicants require the leave of the Court to commence their judicial review of Decision 3 out of time.
The Court is satisfied that when the Applicants contended that Decision 3 was made on 30 March 2015, rather than the 28 September 2012, they were conflating decisions bringing the mandatory conditions "decision" (assuming, only for the purpose of this discussion, that the requirement to incorporate mandatory conditions into various categories of licences was a "decision") into Mr Webb's actions of 28 September 2012. The Respondents' submissions summarised earlier at [341] are accepted as an accurate summary of the situation.
Highlighting how unsustainable the Applicants' case is with respect to Decision 3, the Court does not agree with the Applicants that the 2012 Court Orders necessarily required the Department to issue a licence for 1,000 megalitres to the Applicants under the regulated water regime. The Orders simply addressed the issue of a licence for that volume of water, they being silent, on their face, as to from where the water was to be sourced. The Minutes of the Order confirm "a volumetric allocation of 1,000 ML". Whether the water is sourced from the regulated or unregulated system, it was still a volumetric allocation. Accordingly, the Court rejects the proposition that the 2012 Court Orders only regulated water on that analysis alone. Further, the Applicants' contentions were clearly erroneous given the fact that the 1986 Licence was only ever with respect to surplus flows. The reference to 'surplus flows' is accepted as being a reference to unregulated waters. Therefore, the context of the Court's Orders was knowledge that the prior licence was with respect to unregulated waters. In this regard, the Court accepts the Respondents' submissions as summarised above at [337]-[340].
By way of observation, the Court makes the following comments. Part of the arguments contended by the Applicants was that by virtue of their allocation of water coming via Yanco Creek, which was within the regulated water system, it necessarily meant that, reflecting the geomorphological and ecosystem reality (see [329(3)] above), the waters actually received were regulated waters. Therefore, the Applicants said, the allocation ought to be accepted as being within the regulated system. The Court considers this argument lacks merit and reflects a misunderstanding of how the water management system operates under the Water Management Act. Specifically, the physical pathway by which water passes from source to recipient does not set the licensing categorisation of the water so passing. Within a physical geographical area can coexist a regulated water system and an unregulated water system, hence, relevant to the location of "Somerset Park", there is the 2012 Unregulated WSP (for the Murrumbidgee Unregulated and Alluvial Water Sources) coexisting with the 2016 Regulated WSP (for the Murrumbidgee Regulated River Water Source). As explained below at [542], with respect to the 2016 Regulated WSP there is an Appendix 1 which lists the water sources within the regulated system, one of which is Yanco Creek (noted as (ap) in the Appendix). The water in the unregulated system will interact and most probably concurrently flow with water in the regulated system. The unregulated system often applies to surplus flows over and above regulated volumes of water. There are no bypass pipes ensuring that the waters in one system never interact with waters in the other system. The regulatory system is all about licensed allocations from available water sources but, as for the pathways by which the respective allocations might physically flow, it is to be accepted that there will be overlaps.

[71]

Decision 4 - 9B of the Second Further Amended Points of Claim - The water source decision - Alleged decision between August and October 2012 to place the water body in the Lake Paddock into the proposed Murrumbidgee Western Water Source

The fourth alleged decision challenged by the Applicants was said to be a decision of the First and Second Respondents made "on or prior to 4 October 2012 and after 23 August 2012", to: place the Applicant's water source comprising the billabong in the Lake paddock ['the billabong water source'] into the proposed Murrumbidgee Western Water Source for the purposes of making by the Second Respondent an unregulated water sharing plan with respect to the billabong water source rather than amending the existing regulated water management. plan comprising Yanco Creek under WMA sections 45 and 46.

[72]

Applicants' submissions on Decision 4

Decision 4, the Applicants submitted, was void and of no effect on the following grounds: (i) The Respondents failed to have regard to a relevant consideration ie that the existing SAL related to flows from Yanco Creek treating the billabong water source as a repository of regulated water additional to other surface water that the Applicant was entitled to take under the existing licence 40SL045398; (ii) The Respondents failed to have regard to a relevant consideration ie to place the water source into an unregulated plan was inconsistent with the nature of the SAL and the previous treatment of the licence and the water source by the Respondents; (iii) The Respondents failed to have regard to a relevant consideration ie the billabong water source geographically is or forms a part of the natural water system comprising Yanco Creek by an effluent being a natural watercourse from the Creek to the wetland comprising the billabong water source; (iv) The Respondents failed to have regard to a relevant consideration ie the billabong water source was at all material times at risk and subject to stress within the meaning of WMA section 7(3)(a) and (b); (v) The Respondents failed to have regard to a relevant consideration ie the SAL should have been included in the regulated river plan for Yanco Creek in 2003, by or under the Water Management (General) Regulation 2004 schedule 4; (vi) The decision was not authorized by the enactment in pursuance of which it was purported to be made in that the SAL was a form of access licence which was required to be included in the 2003 water sharing plan and after the making of the Court orders on 23 8 2012 it was in the public interest or alternatively was required by WMA section 45 (1) (a) and (c) to be incorporated into the regulated river plan; (vii) Failure to have any regard to the invalidity of the 2012 licence decision.
Counsel for the Applicants submitted that the crux of the challenges to Decisions 4 and 5 was that they were "decisions which we say were made, apparently, to allocate the billabong water source or the Lake Paddock as unregulated, even though it was the water for which the licence provided was regulated water, that's 9B, and allocate it to an unregulated plan, 9C" (Transcript 533.47-534.1).
As noted above at [147], the Applicants submitted that the 1986 Licence was "excluded" from the 2003 Regulated WSP and the 2016 Regulated WSP. As evidence of this purported exclusion, the Applicants pointed, for instance, to correspondence between the Department and the Applicants wherein Mr Webb of the Department stated that "[r]enewal of the licence is pointless it would seem", [197] "at the time you acknowledged the futility of renewal given that no real use may be made of the licence", [198] and "[y]ou must agree there is little use in maintaining this licence". [199]

[73]

Respondents' submissions on Decision 4

As with Decisions 1 and 2, the Respondents argued that the Applicants have not proved that Decision 4 was ever made [204] - that is, the Respondents challenged the proposition that the Minister made a conscious decision to include the Lake Paddock within the 2012 Unregulated WSP. The diversion channel, to which both the licence and approval relate, is located within the MWWS, to which the 2012 Unregulated WSP applied. The conversion of the 1986 Licence to the Approval and the WAL upon the commencement of the 2012 Unregulated WSP in October 2012, the Respondents submitted, was the automatic result of the operation of the Water Management Act, not the result of a decision by the Minister (or any of the other Respondents) to place the Lake Paddock into the MWWS. [205]
The Respondents argued that the allegation with respect to Decision 4 assumed that a decision was made between August and October 2012 in relation to the Lake Paddock, when in fact the conversion of the 1986 Licence to the Approval and the WAL was automatic, by operation of the Water Management Act. [206]
Further, the Respondents submitted, the Applicants had not identified the source of any legal requirement to classify the Lake Paddock "billabong water source" [207] as a separate water source (noting the discussion of the breadth of the term "water source", summarised at [265] above) or to treat it "as a repository of regulated water". [208] The Respondents pointed to s 7(4) of the Water Management Act, which it said was referred to at 9B of the SFAPOC [noting that 9B of the FAPOC referred to s 7(4), however, that the SFAPOC changed this to s 7(3)(a) and (b)], which provides that: 7 Classification of water sources … (4) It is the intention of Parliament that, within 12 months after the date of assent to this Act: (a) the water sources of the State be classified in accordance with this section, and (b) bulk access regimes be established for such of those water sources as are classified high risk, high stress or high conservation value. …
The Respondents noted that s 7(4) "stops short of saying that this 'must' be done". Further, it is to be noted that in s 7(1) it is stated that "[t]he Minister may, by order published in the Gazette, classify water sources for the purposes of this Act" (emphasis added). It is also to be noted the high level at which "water sources are defined in the Water Management Act". Section 7(4) cannot, therefore, according to the Respondents, be read as an obligation separately to consider and classify every single body of water in New South Wales.

[74]

Consideration of validity of Decision 4

At [121] of Arnold No 6, Biscoe J usefully sets out the differing parameters of the judicial review of administrative decisions: Judicial review of administrative decisions distinguishes between three steps in the decision-making process First, the existence of a fact that is a precondition to the exercise of the decision-making power (i.e. a jurisdictional fact). Secondly, general fact finding and reasoning in the course of decision-making. Thirdly, the decision itself. The court determines the lawfulness of the first step (jurisdictional fact) on the evidence before the court. The court determines the lawfulness of the second and third steps on, generally, the material before the decision-maker.
The consideration of those parameters is predicated on there being a decision to review. With respect to purported Decision 4, the Court has a threshold proposition to determine: the Respondents say there was never a decision, of the description contended by the Applicants, that was actually ever made. The Respondents argue that there is no evidence before the Court that such a decision was made. After analysing the evidence and considering the parties' respective submissions, the Court agrees with that proposition.
Obviously a decision requires a deliberative process, a mind being turned to a choice, to make it one way or another. To state the obvious, judicial review proceedings instituted to examine a decision require a reviewable decision to examine. In the absence of a decision, a failure to make a decision that should have been made might give rise to a claim of another kind, say, a failure to exercise a duty of care by turning one's mind to do or not to do something. But such a failure to make such a decision is not amenable to judicial review proceedings. Further, where a decision-maker has a positive duty to exercise their powers but fails to, this may be subject to an administrative law action. However, here, the Applicant has not sought to argue that there was a positive duty on the Minister to make a decision of the kind represented by the alleged Decision 4. Rather, they argue that Decision 4 was in fact made, and that it was flawed in material respects
The Court has decided that the Applicants have failed to establish that there was ever a decision, of the description identified as Decision 4 in this judgment, actually made by the Minister. If there was a decision that should have been made, but wasn't, that might be the subject of proceedings of another kind.

[75]

Challenge out of time - s 47 Water Management Act

Hypothetically, if I am wrong and there was a decision of the kind described by the Applicants as purported in Decision 4, then the Court agrees with the Respondents' submission that s 47 of the Water Management Act provides a time bar to the review sought to be agitated with respect to the purported decision. To understand the rationale for that conclusion, it is necessary to examine the elements of s 47. Surprisingly, it appears there has been no direct examination of s 47 in previous cases, a point made by the Respondents' counsel during the hearing (at Transcript 628.29). Section 47 of the Water Management Act provides (relevantly): 47 Validity of management plans and exercise of plan-making functions (1) The validity of a management plan may not be challenged, reviewed, quashed or called into question before any court in any proceedings other than before the Land and Environment Court in proceedings commenced within the judicial review period. (2) The judicial review period in respect of a management plan is: (a) the period of 3 months after the date the plan was published on the NSW legislation website, except as provided by paragraph (b), or (b) in relation to a provision of the plan that was inserted by an amendment of the plan (other than an amendment under section 45 (1) (c)), the period of 3 months after the date that the amendment was published on the NSW legislation website. A judicial review period does not arise as a result of the extension of the duration of a management plan. (3) The judicial review period cannot be extended by the Land and Environment Court or any other court, despite any other Act or law.
When considering the effect of the s 47 time bar, it is significant to consider UCPR r 59.10, as set out earlier at [210], which provides in 59.10(4) that where there is a statutory time limit then the discretion to extend the time for commencing proceedings is not available, as the rule does not apply.

[76]

Consideration of Decision 4 in the context of s 47

Further to my decision set out earlier at [369], wherein I concluded there was no apparent decision to review, given my acceptance of the Respondents' contention that there was no decision made of the kind described by the Applicants and identified in this judgment as Decision 4, I need only briefly mention my conclusions regarding the s 47 out-of-time issue. The alleged decision was made, it was said by the Applicants, "on or prior to 4 October 2012 and after 23 August 2012". First, given the 2012 year, the Water Management Act was in force and so s 47, prima facie, applies to the decision. Given that s 47 sets out a statutory time limit within which judicial review proceedings are to be brought, by reason of UCPR r 59.10(4) that rule does not apply, and s 47 prevails.
The prerequisite for the s 47 time limit to apply is that the decision in question must be one that relates to the 'validity of a management plan'. The alleged decision is said to be with respect to an unregulated water sharing plan, which, given the year, is clearly a reference to the 2012 Unregulated WSP. Shorn of the details, the basis upon which the Applicants bring their complaint about the 2012 Unregulated WSP is that Lake Paddock has been "placed" within the unregulated system within the MWWS rather than in the regulated system. The assertion is to the effect that the WSP is invalid with respect to that decision. Therefore, it constitutes a challenge to the validity of that component of the plan. That decision is "being called into question", to use the phrase in s 47(1), hence a review is sought so as to quash the decision in question. I have decided that all the necessary elements are present for s 47 to be applied to the alleged Decision 4, if such a decision was actually made at all.
Cognizant of the cases in which potential jurisdictional error has been examined in relation to statutory time bars, some of which are referred to below at [380], rendering such a time bar inoperative in preventing judicial review in some circumstances in which jurisdictional error is pleaded (noting however that s 47 has not been examined in that context), in the context of this case and so on the basis of the evidence before me, I find that such a contention does not arise. I see no basis for it to be argued that the statutory time bar in s 47 does not apply to the alleged Decision 4, especially in circumstances where the decision in question may well be hypothetical.

[77]

Respondents' submissions on s 47

The Respondents submitted that the Applicants were time-barred from bringing a challenge to Decisions 4, 5, and 7 by virtue of s 47 of the Water Management Act.
The Respondents submitted that, "[t]he challenge to that plan clearly falls outside the judicial review period, and of course the reason why I'm dealing with s 47 first is because r 59 says it doesn't apply where there's a statutory time limit. So if s 47 applies r 59 doesn't apply" (Transcript 628.24-27).
However, the Respondents properly, noted that in some instances provisions such as s 47 that provide time bars to judicial review of decisions are to give way where such decisions are affected by certain kinds of jurisdictional error (citing, by analogy, Bryan v Lane Cove Council and Anor (2007) 158 LGERA 390; [2007] NSWLEC 586 at [31]; Woolworths Limited v Wyong Shire Council & Ors [2005] NSWLEC 400 at [25]-[35]; Mitchforce Pty Ltd v Industrial Relations Commission of NSW (2003) 57 NSWLR 212; [2003] NSWCA 15 at 229-233; Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78; [1999] NSWCA 6 at 106-112 Mosman Municipal Council v IPM Pty Ltd (2016) 216 LGERA 252; [2016] NSWLEC 26; Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422) (Transcript 628.29-6.30.11). [212]

[78]

Applicants' submissions on s 47

The Applicants submitted that the challenges to Decisions 4, 5 and 7 were not time-barred by virtue of s 47.
At hearing, the Applicants asserted that: Then, the next decision is the source decision, it's really 9B and 9C. These are the decisions which we say were made, apparently, to allocate the billabong water source or the Lake Paddock as unregulated, even though it was the water for which the licence provided was regulated water, that's 9B, and allocate it to an unregulated plan, 9C. Now, it's a little more complex than that, your Honour, because the reason we say this is an orphan licence is in truth, the respondents did absolutely nothing once the Court orders were made on 22 August 2012, except in response to persistent letters from my client, "Please give us the licence, so we can see what it is We finally get it, in 2015, three years later and then we commence the action, in time. (Transcript 533.47-534.6)
Additionally, counsel for the Applicants contended: We say that ultimately [Decisions 4 and 5] didn't take effect until the [the WAL and Approval were] issued on 30 March 2015, so that there is no delay point under UCPR 59.10 or as a matter of discretion. We have acted as soon as the licence was finalised, as soon as the water sharing plan was finalised, as indicated in the third paragraph of that letter of 25 February 2015. (Transcript 535.9-14)
Although this was not made plain, presumably, the Applicants intended such an argument to relate not just to r 59.10 of the UCPR (which, the Court notes the Respondents did not argue with respect to Decisions 4 and 5 in any event), but also to the statutory time bar in s 47 of the Water Management Act.
In addition, although the Respondents had not submitted that the challenge to Decision 3 was subject to s 47, the Applicants, in an abundance of caution, nevertheless, argued that it was a decision under the 1912 Act, not the Water Management Act, and that therefore s 47 of the Water Management Act did not apply to it (Transcript 535.29-35).

[79]

Decision 5 - 9C of the Second Further Amended Points of Claim - The 2012 Plan Decision - Making of the 2012 Unregulated WSP

The fifth decision challenged by the Applicants in this matter was, the Applicants said, a decision of the Second Respondent, made "on or about" 4 October 2012: to make an unregulated water sharing plan with respect to the Applicant's water source comprising the billabong in the Lake Paddock ['the billabong water source'] ['the 2012 plan decision'].

[80]

Applicants' submissions on Decision 5

The grounds upon which Decision 5 was said by the Applicants to be invalid were: (i) Failure to have any or sufficient regard to the public interest in protecting the billabong water source; (ii) Failure to have any or sufficient regard to the orders of this Court made 23 8 2012; (iii) Failure to have any or sufficient regard to the requirements of WMA section 20; (iv) Failure to have any or sufficient regard to the requirements of WMA section 7(3)(a),(b) and (c) and (4)(a) and (b); (v) Failure of the Second Respondent by its servants or agents in the Department and at the Leeton office in particular Mr Lindsay Beck, Mr Steve Webb and Mr Jim Parrett in making and implementing the 2012 plan decision to have regard to their duty to take all reasonable steps to protect and restore the wetland, being the billabong in the Lake Paddock the floodplain and the dependent ecosystem being the trees and natural heritage thereof in breach of the duty in Water Management Act 2000 ['WMA'] section 9(1)(a) and (b) and water management principle (2)(a) in section 5; (vi) Having regard to irrelevant considerations namely maximising the regulated flows in Yanco Creek and/or causing major losses in the system of regulated water in preference to the prevention of degradation of the wetlands and dependent ecosystems on Somerset Park in breach of WMA sections 9(1) and (2) and 5(2)(a) and sections 9(1)(b) and 5(3); (vii) Failing to have regard to relevant considerations namely the minimisation of the cumulative impacts of water licences and approvals granted downstream of Somerset Park on the billabong wetland in the Lake Paddock on Somerset Park and its dependent ecosystems and its natural heritage in breach of WMA sections 9(1)(a) and (b) and 5(2)(d) and (f); (viii) Failing to have regard to relevant considerations namely the minimisation of land degradation on Somerset Park being the banks of Yanco Creek by soil erosion, waterlogging and inundation of the Lake Paddock and its natural heritage and undermining the productivity of the land in Lake Paddock and its environs in breach of WMA sections 9(1)(a) and (b) and 5(4) and (5); (ix) Failure of the Second Respondent by its servants or agents to have regard to the impact on the Lake Paddock water source of river planning decisions with respect to river management of the Murrumbidgee River and Yanco Creek affecting the water source; (x) In the premises the Second Respondent its servants or agents failed to have regard to the duty not to abridge the right of each Applicant to the reasonable use of the waters of Yanco Creek for conservation or irrigation; (xi) Failure to have any or due regard to the invalidity of the 2012 licence decision and/or the water source decision.

[81]

Respondents' submissions on Decision 5

The Respondents submitted that, contrary to 9C of the SFAPOC, the 2012 Unregulated WSP was made by the Third Respondent under s 50 of the Water Management Act, and dated 20 September 2012. [213]

[82]

Allegations with respect to relevant considerations

The Respondents submitted that, although it is not clear, the particulars set out at [9C] of the SFAPOC (i)-(v) and (vii)-(xi) are presumably asserted to be mandatory relevant considerations (noting that several of these were duplicated from [8C] of the SFAPOC).
Particular 9C, the Respondents said, is dependent on the Applicant making out the challenges to Decisions 1 and 2. However, the Respondents argued, even if Decisions 1 and 2 were held to be invalid, that invalidity could not have been a mandatory relevant consideration in relation to the making of the 2012 Unregulated WSP. [214]
The Respondents contended that allegations as to what the Third Respondent/Minister did or did not take into account must be determined as a factual matter by reference to the terms of the 2012 Unregulated WSP and the materials that were before the Minister. The Court notes that these materials were contained in the Respondents' tender bundle. [215]
The Respondents noted counsel for the Applicants' assertion, that Mr Maini was a delegate of the Minister in exercising this power (and that therefore a failure by Mr Maini to consider a matter could be imputed to the Minister), and cross-examination on this basis. However, the Respondents countered, this misunderstood Mr Maini's role, which was as part of a substantial team of people working on the WSP to provide technical advice as a hydrologist. Mr Maini did not, the Respondents said, draft the rules in the WSP, had no role in determining whether particular rivers should be declared "regulated rivers", nor in assessing "the ecological health" of particular rivers. Further, the Respondents posited, he did not even draft the briefing note that was signed by the Minister in the making of the 2012 Unregulated WSP. There is, the Respondents submitted, "absolutely no basis for imputing to the Minister any consideration or lack of consideration of certain matters by Mr Maini". [216]
The Respondents noted that (with the exception of (iii) and (iv)) the asserted mandatory relevant considerations are all specific to the First Applicant's property and its Lake Paddock. That is, the Respondents asserted, the Applicants "assume that there was an implied statutory requirement in making the 2012 Unregulated WSP for the Minister to take into consideration issues specific to the first applicant's property" (noting too that there was no indication that the Applicants had made a submission or sought to put material before the Minister in relation to the making of the 2012 Unregulated WSP). [217]

[83]

Particulars (iii) and (v)

The Respondents submitted that although particulars (iii) and (v) refer to a failure to consider ss 20 and 7(4) of the Water Management Act, they "do not articulate the particular aspects which the Minister is said to have failed to consider". The Respondents argued that the case as presented on this point by the Applicants in their opening submissions (and summarised above at [396]) "is another instance in which the applicants' case has departed from the SFAPOC". The Respondents contended that the Applicants had many opportunities over the three years since the matter was commenced "to articulate their case and should not be permitted to introduce new grounds on the first day of the hearing". [226]
The Respondents argued, even setting that aside, the Applicants' submission establishes no error of law, as s 7 of the Water Management Act does not impose an obligation to individually classify every body of water in New South Wales, having regard to the high level definition of "water source", a collection of rivers or bodies of water may be classified (as set out at [265] and [360]-[362] above). Further, the Respondents submitted, s 7 does not impose an obligation to classify water sources but rather says that the Minister "may" classify water sources. Even if such an obligation existed, the Respondents argued that a failure to so classify would be immaterial here, having regard to the purpose of classification being so that a bulk access regime could be made, and that, here, such a bulk access regime has in fact been made under the 2012 Unregulated WSP in relation to water sources including the MWWS. The Respondents argued that the bulk access regime "recognises and is consistent with the water management principles contained in section 5 of the Act", per cl 13(2)(f) of the 2012 Unregulated WSP. [227]

[84]

Particular (vi)

The Respondents submitted that there was no evidence that the Minister, in making the 2012 Unregulated WSP, took into consideration either of the matters said to be irrelevant considerations in particular (vi) to SFAPOC [9C]. [228]

[85]

The claim is time-barred

The Respondents contended that the claim with respect to Decision 5 was time-barred by virtue of s 47(1), (4) and (8) of the Water Management Act. Contrary to the Applicants' submission that the making of the 2012 Unregulated WSP was an "incomplete decision", the Respondents argued that the 2012 Unregulated WSP was in fact made and gazetted in 2012. [229]

[86]

Consideration of validity of Decision 5

Decision 5 is another decision in relation to which, if it is to be judicially reviewed, requires the Applicants to obtain leave, if it can be granted, to bring their review out of time. Decision 5 is a decision regarding the 2012 Unregulated WSP. As explained earlier in this judgment, reviews which challenge decisions in relation to water management plans must be brought within three months of the date the plan in question was published on the New South Wales legislation website (per s 47(2)(a) of the Water Management Act). Further, also as explained earlier, if the three-month period has lapsed, this Court cannot extend the judicial review period (per s 47(3)). Also, as earlier explained, where there is a statutory limitation period with respect to judicial review in the applicable legislation, as is the case here with the Water Management Act, leave cannot be granted pursuant to UCPR r 59.10 (per r 59.10(4)).
There can be no doubt Decision 5 is specifically focused on the decision to make the 2012 Unregulated WSP. The Applicants say it was made "on or about" 4 October 2012. It appears that 4 October 2012 is the date the gazettal notice appeared in the New South Wales legislation website, with the date the plan decision was made being 20 September 2012.
The Applicants sought to avoid the application of s 47 by submitting a curious argument that the decision with respect to the WSP was 'incomplete', as the decision regarding it and its implementation was not complete until the Applicants received a notice, allegedly on the 31 March 2015, regarding the conversion of their licence and the imposition of new conditions. [230] The Applicants' propositions and the Respondents' response were summarised earlier at [341]. As the Respondents submitted with respect to Decision 5, [231] this interpretation of the relevant date by the Applicants is unsupportable. Their Decision 5 is a challenge to the making of the 2012 Unregulated WSP, it is not with respect to the subsequent imposition of mandatory conditions to certain licence categories. That is a subsequent decision (also, incidentally, impugned in these proceedings). There is no validity to the argument that Decision 5 with respect to the 2012 Unregulated WSP was not completed until 31 March 2015.
I have concluded that the Applicants' attempted review of Decision 5 is statute-barred in that, by s 47(2)(a), the review had to be commenced within three months of the publication of the notice regarding the decision to approve the WSP. I am further of the view that s 47(3) precludes me from having the necessary jurisdiction to exercise discretion in favour of the Applications to grant them leave out of time. The Respondents' case in this regard is entirely sound.

[87]

Decision 6 - The 2015 Licence Decision (9D of the Second Further Amended Points of Claim) - Decision to impose mandatory conditions on the WAL and the Approval

The sixth decision under review was, the Applicants said, a decision of the Second Respondent, its servants or agents, "between August 2014 and March 2015", and notified to the Applicant on 30 March 2015, to: impose conditions and/or not include discretionary conditions in respect of WAL 33313 … ['the 2015 licence decision']

[88]

Applicants' submissions on Decision 6

The grounds upon which Decision 6 was said by the Applicants to be "void and of no effect" were: (i) The Second Respondent failed to have regard to a relevant consideration namely that the conditions of the licence be consistent with the former SAL conditions; (ii) Failure to consider whether the licence being issued for the specific purpose of accessing surplus or supplementary flows in Yanco Creek imposed limitations which hindered or denied that result; (iii) Failure to have regard to the public interest in the protection [sic] by issuing a licence with terms which did not prioritise the protection of the wetland and its dependent ecosystems; (iv) Failure to have regard to the LEC decision dated 23 August 2012 between the parties; (v) Failure to includes [sic] discretionary conditions required to give effect to the water management principles in WMA section 5(2)(a)(d)(f) and (h). (vi) Failure to have due or any regard to the invalidity of the 2012 licence decision, the water source decision, the 2012 plan decision.
This decision was made in 2014 but notified to the Applicants on 25 February 2015. The Respondents did not dispute that the notice was not received until 30 March 2015. [232]

[89]

Respondents' submissions on Decision 6

The Respondents noted that the conditions to the WAL complained of were imposed pursuant to ss 66, 67 and 100 of the Water Management Act and Pt 11 of the 2012 Unregulated WSP. [233]
The Respondents submitted that the Applicants had not demonstrated how any of the matters identified in the particulars to SFAPOC [9D] are matters which the decision-maker was required to consider in exercising the relevant power. In particular, the Respondents said, the Applicants had not demonstrated why the exercise of a power to impose conditions on classes of licences and approvals required consideration of the impact upon a particular person's licence. [234]
With respect to particular (iii), the Respondents contended that it was not clear how the imposition of such conditions was capable of having any adverse environmental impact.
As to the claim in relation to a purported decision made by the Second Respondent not to impose discretionary conditions on the WAL and Approval between August 2014 and March 2015, the Respondents disputed that such a decision was ever made, and that the Applicants had not proved to the contrary. [235]

[90]

Consideration of validity of Decision 6

Decision 6 is not a decision which the Respondents say is time-barred due to being outside the three-month period within which judicial review of the decision should be brought. However, keeping in mind that the Summons initiating these proceedings was dated 22 June 2015, Decision 6 was said to have been made on 25 February 2015, strictly, just on four months before the Summons was filed. With respect to this one month overrun, in considering an application pursuant to r 59.10(2) to grant leave to commence proceedings out of time, r 59.10(3)(c) makes it clear that a relevant consideration is "the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision". With respect to Decision 6, the Respondents conceded, and the Court accepts, that the notice of the decision was not received by the Applicants until 30 March 2015. In these circumstances, I accept that it is reasonable to grant leave for the Applicants to seek review of Decision 6.
In passing, the Court confirms that Decision 6 was not dealing with making of a water management plan. Accordingly, the decision is not an instance of a challenge to the validity of such a plan. Therefore the inflexible s 47 statutory bar in the Water Management Act to certain proceedings being commenced outside the requisite three-month period does not arise.
The Court rejects the Applicants' case with respect to Decision 6. With respect to those conditions which were mandatory, pursuant to the requirement of the Water Management Act (see above at [431]), there can be no complaint on the part of the Applicants that the Minister did not act in accordance with his statutory obligations. Being mandatory, once the conditions were formulated for general application, the imposition of the conditions on the First Applicant's Approval and WAL was simply an automatic occurrence.
With respect to the assertions regarding the failure to impose discretionary conditions, the Court agrees with the Respondents' contentions that the Applicants have failed to demonstrate why, with respect to the Lake Paddock and its associated unnamed watercourse, there was any obligation on the decision-maker to impose conditions which specifically alluded to the matters sought to be achieved by giving effect to the water management principles in s 5.

[91]

Decision 7 - The 2015 Water Plan Decision (9E of the Second Further Amended Points of Claim) - Decision to extend the 2003 Regulated WSP

In May 2015, the Minister extended the 2003 Regulated WSP. Paragraph 9E of the SFAPOC complains that this was done without amending the 2003 Regulated WSP to "include the Billabong water source".
The seventh decision challenged in these proceedings is, according to the Applicants, a decision of the Second Respondent in May 2015 to: extend the existing regulated river plan for Yanco Creek without amending the existing regulated water management plan to include the Billabong water source ['the 2015 water plan decision'].

[92]

Applicants' submissions on Decision 7

Decision 7 was impugned by the Applicants on the following grounds: (i) Failure to have any or sufficient regard to the public interest in protecting the billabong water source; (ii) Failure to have any or sufficient regard to the orders of this Court made 23 8 2012; (iii) Failure to have any or sufficient regard to the requirements of WMA section 20(1)(a),(b) and (e) and 20(2)(a),(b) and (e); (iv) Failure to have any or sufficient regard to the requirements of WMA section 7(3)(a)(b) and (c) and (4)(a) and (b); (v) Failure of the Second Respondent by its servants or agents in the Department and at the Leeton office in particular Mr Lindsay Beck, Mr Steve Webb and Mr Jim Parrett in making and implementing the 2012 plan decision to have regard to their duty to take all reasonable steps to protect and restore the wetland, being the billabong in the Lake Paddock the floodplain and the dependent ecosystem being the trees and natural heritage thereof in breach of the duty in Water Management Act 2000 ['WMA'] section 9(1)(a) and (b) and water management principle (a) in section 5(2) and (3); (vi) Having regard to irrelevant considerations namely maximising the regulated flows in Yanco Creek and/or causing major losses in the system of regulated water in preference to the prevention of degradation of the wetlands and dependent ecosystems on Somerset Park in breach of WMA sections 9(1)(a) and 5(2)(a) and section s 9(1)(b) and 5(3); (vii) Failing to have regard to relevant considerations namely the minimisation of the cumulative impacts of water licences and approvals granted downstream of Somerset Park on the billabong wetland in the Lake Paddock on Somerset Park and its dependent ecosystems and its natural heritage in breach of WMA sections 9(1)(a) and 5(2)(d) and (f); (viii) Failing to have regard to relevant considerations namely the minimisation of land degradation on Somerset Park being the banks of Yanco Creek by soil erosion, waterlogging and inundation of the Lake Paddock and its natural heritage and undermining the productivity of the land in Lake Paddock and its environs in breach of WMA sections 9(1)(a) and 5(4) and (5); (ix) Failure of the Second Respondent by its servants or agents to have regard to the impact on the Lake Paddock water source of river planning decisions with respect to river management of the Murrumbidgee River and Yanco Creek affecting the water source; (x) In the premises the Second Respondent its servants or agents failed to have regard to the duty not to abridge the right of each Applicant to the reasonable use of the waters of Yanco Creek for conservation or irrigation; (xi) Failure to have due or any regard to the invalidity of the 2012 licence decision, the water source decision, the 2012 plan decision and the 2015 licence decision.

[93]

Respondents' submissions on Decision 7

With respect to the source of the power to declare a regulated river, the Respondents noted that: As at May 2015, the 2003 Regulated WSP applied to the Murrumbidgee Regulated River Water Source as shown on the Plan Map at Appendix 1: cl 4(1) and (2). That water source included all water between the banks of certain rivers "which at the date of commencement of this Plan, have been declared by the Minister to be regulated rivers cl 4(3)(a). While Appendix 3 lists the rivers that have been declared, the declaration is not made in the WSP itself. Rather, the declarations are made by the Minister and published in the Gazette (see the Note to cl 4(3)(a)). The source of power to make such a declaration is the definition of "regulated river" in the Dictionary to the Water Management Act. No mandatory, permissible or prohibited considerations are specified in respect of that power. [236]

[94]

No relief sought

First, the Respondents noted that the SFAS did not seek any relief in relation to the extension of the 2003 Regulated WSP, and questioned the utility of the Court determining any of the issues raised in relation to the making of the 2003 Regulated WSP. [237]

[95]

No decision to exclude the water body in the Lake Paddock

The Respondents submitted that the Applicants had not established, as a factual proposition, that Decision 7 (in the terms described in [9E] of the SFAPOC) was made. That is, they had "not proven that the Minister made a conscious decision to exclude the Lake Paddock from the scope of the 2003 Regulated WSP". [238] The Respondents denied that any such decision was made, and further noted that "the first applicant did not request that the Minister include the alleged 'Billabong water source' in the 2003 Regulated WSP at any time prior to the extension of that plan". [239]
The Respondents posited that "[i]n opening submissions the applicants suggested that their real complaint is that the Minister failed to declare the Lake Paddock a regulated river". This, the Respondents said, departed from the SFAPOC and ought not be permitted. [240]
The Respondents argued that, even setting this aside, that there was no obligation on the Minister to consider whether or not the Lake Paddock should be declared a regulated river. Although the Respondents noted that there is a power to declare rivers "regulated rivers", they posited that "there is no obligation anywhere in the Water Management Act to consider, in respect of each and every body of water in New South Wales whether or not it should be declared a regulated river". Further, the Respondents argued, the Applicants had not even attempted to prove there is such an obligation "as a matter of statutory construction". [241]
As for counsel for the Applicants' contention that other small watercourses on the Applicants' property have been declared rivers, the Respondents said: The submission seems to be that because these small water courses have been declared regulated rivers the Minister should treat "like with like" and declare the Lake Paddock a regulated river. The submission might also be that since Yanco Creek has been declared a regulated river, all of its "dependent ecosystems should be declared regulated rivers. [242]
To which the Respondents submitted that: [243] a. there is no obligation on the Minister under the Water Management Act to consider whether each and every body of water in NSW should be declared a regulated river; b. the Minister has a broad power under the Water Management Act to declare regulated rivers The Act does not specify which features of a river might or might not justify a river being declared a "regulated river"; c. the SFAS does not seek any order requiring the Minister to declare the Lake Paddock a regulated river; d. in any event, the applicant has not proven by way of evidence that the other small water courses that have been declared are, in all relevant respects the same as the diversion channel; and e. the applicant has not proven by way of evidence that the Lake Paddock is a "dependent ecosystem" on Yanco Creek: i. Such questions were put to Mr Maini, but he is not an ecologist and has no familiarity with the Lake Paddock. ii. Mr Warren accepted that the water source in the Lake Paddock "appears to be" a dependent ecosystem of Yanco Creek, but has not been to the site. iii. Mr Andrews says that, some time in the mid 1990s his neighbour told him the diversion channel was a "natural watercourse" which had been there "before us (ie some time prior to 1960). The basis for the neighbour's opinion is not explained. Mr Andrews is in no position to confirm or deny the neighbour's opinion - it is clear that the diversion channel was artificially enhanced at some point and Mr Andrews does not suggest that he studied the channel before that time (and it is unlikely he did so, having regard to his limited role at the property up until about 1993). Although Mr Andrews refers to seeing the channel "in its natural state", he does not say when this observation was made, and it may have been after the channel was artificially enhanced (thus was not in a "natural state"). Departmental documents tendered by the applicants also suggest that a previous owner cut a channel from the unnamed watercourse to the Lake Paddock. iv. To the extent Mr Purcell gives any evidence about the historical nature of the channel, this can only be based on Mr Andrews's observations since Mr Purcell did not undertake any independent investigations. [References omitted]

[96]

Particulars (v)-(x)

The Respondents noted that particulars (v)-(x) to Decision 7 repeated particulars (i), (ii), (iv)-(vi) and (viii) to Decision 1 (and all of the particulars to Decision 5, noting that particular (xi) to Decision 7 is more extensive than the equivalent particular to Decision 5).
The Respondents therefore repeated their submissions above in relation to the allegations concerning failure to take into consideration ss 5 and 9 of the Water Management Act (summarised above at [264]-[267]); and their submissions above concerning the alleged relevant/irrelevant considerations (summarised above at [403]-[413]), as applied to Decision 7. The Respondents noted that, as with the 2012 Unregulated WSP dealt with in Decision 5, the 2003 Regulated WSP "contains many provisions evidencing consideration of environmental concerns" (citing cl 9, cl 10, Pt 3 (dealing with environmental water), and Pt 5 (the bulk access regime) of the 2003 Regulated WSP). [244]

[97]

Particular (xi)

With respect to particular (xi), the Respondents argued that "there could be no obligation to have regard to the "invalidity" of the decisions referred to therein if (as the Respondents submit), none of those decisions were invalid; and in any event, their alleged invalidity was not a mandatory relevant consideration in relation to the extension of the 2003 Regulated WSP". [245]

[98]

The claim is time-barred

Finally, the Respondents submitted that the challenge to Decision 7 was time‑barred by virtue of s 47(2) of the Water Management Act, which provides that a judicial review period does not arise in respect of an extension of the duration of a management plan and therefore no judicial review period for the purposes of s 47(1) arose in relation to Decision 7. [246]

[99]

Consideration of validity of Decision 7

Decision 7 relates to the decision to extend the duration of the 2003 Regulated WSP. Pursuant to s 47(2) there is an absolute statutory bar to the judicial review of such an extension decision, as the section states: "A judicial review period does not arise as a result of the extension of the duration of a management plan". In short, unlike other decisions with respect to water management plans where a three-month period is set within which proceedings for judicial review may be commenced, the provision regarding the extension of the duration of plan does not allow for judicial review at all.
The Court does not interpret the provision as meaning, given the absence of a judicial review period, that there is unrestrained 'opportunity' to judicially review decisions regarding the extension of the duration of a plan, unlimited by any time constraint. Such an interpretation would be inconsistent with the intent of the legislation. With the Legislature prescribing a strict period for judicial review of the validity of a management plan, with the Court, pursuant to s 47(3), being unable to exercise a discretion to extend that three-month judicial review period, it would be entirely inconsistent with the tenor of legislation for there to be an unrestrained opportunity to review a mere extension of duration decision.
Accordingly, the Court has concluded that the Applicants' claim with respect to Decision 7 must be dismissed.
Hypothetically, even if the Applicants' claim challenging Decision 7 was legally capable of being considered, the Court would in any event dismiss it for the reasons which follow.
In passing, for the reasons expressed earlier in [316] in which I referred to Great Lakes Council with respect to Decision 2, although it is an undesirable mode of pleading for the Applicants to challenge the legality of a decision without seeking relief with respect that particular challenge, I disagree with the Respondents' submission, summarised at [446], that there is no utility in the Court determining the issues contended.
Particular (x) regarding Decision 7 raises the s 100 constitutional argument which is dismissed below at [576]-[580], requiring no further examination here.
Consistent with the Court's findings set out elsewhere in this judgment with respect to the other decisions sought to be impugned by the Applicants in these proceedings, as the Applicants have repetitively set out, in essence, the same grounds against Decision 7 as they did with respect to other decisions, it is unnecessary for the Court to again explain the rationale for its decisions rebutting identical assertions. Accordingly, as my summary of the Respondents' submissions at [447]-[454] effectively encapsulate the conclusions I have formulated elsewhere in this judgment, I simply adopt the Respondents' submissions as an accurate summation of reasons why the Applicants' case with respect to Decision 7 should be dismissed.

[100]

Decision 8 - The 2016 replacement plan decision (9F of the Second Further Amended Points of Claim) - Decision to replace the 2003 Regulated WSP with the 2016 Regulated WSP

The Respondents noted that the 2016 Regulated WSP was made by order of the Minister signed on 29 June 2016 and was published on the New South Wales legislation website on 1 July 2016. [247] The briefing materials provided to the Minister in respect of the making of the plan appear in the Respondent's Tender Bundle.
Paragraph [9F] of the SFAPOC challenged the "decision of the Second Respondent, its servants or agents, on 29 June 2016 to replace or re‑make the Plan for the regulated river plan including Yanco Creek without amending the existing regulated water management plan to include the Billabong water source".

[101]

Applicants' submissions on Decision 8

The grounds upon which the decision was challenged were (as amended during the hearing to identify, with greater specificity, the sections of the Water Management Act said to have been breached): (i) Failure to have any or sufficient regard to the public interest in protecting the billabong water source; (ii) Failure to have any or sufficient regard to the orders of this Court made 23 8 2012; (iii) Failure to have any or sufficient regard to the requirements of WMA section 20(1)(a),(b) and (e) and (2)(a)(b) and (e); (iv) Failure to have any or sufficient regard to the requirements of WMA section 7(3)(a),(b) and (c) (4)(a) and (b); (v) Failure of the Second Respondent by its servants or agents in the Department and at the Leeton office in particular Mr Lindsay Beck, Mr Steve Webb and Mr Jim Parrett in making and implementing the 2016 plan decision to have regard to their duty to take all reasonable steps to protect and restore the wetland, being the billabong in the Lake Paddock the floodplain and the dependent ecosystem being the trees and natural heritage thereof in breach of the duty in Water Management Act 2000 ['WMA'] section 9(1)(a) and water management principle (a) in sections 5(2) and 5(3); (vi) Having regard to irrelevant considerations namely maximising the regulated flows in Yanco Creek and/or causing major losses in the system of regulated water in preference to the prevention of degradation of the wetlands and dependent ecosystems on Somerset Park in breach of WMA sections 9(1)(a) and 5(2)(a) and sections 9(1)(b) and 5(3); (vii) Failing to have regard to relevant considerations namely the minimisation of the cumulative impacts of water licences and approvals granted downstream of Somerset Park on the billabong wetland in the Lake Paddock on Somerset Park and its dependent ecosystems and its natural heritage in breach of WMA sections 9(1)(a) and 5(2)(d) and (f); (viii) Failing to have regard to relevant considerations namely the minimisation of land degradation on Somerset Park being the banks of Yanco Creek by soil erosion, waterlogging and inundation of the Lake Paddock and its natural heritage and undermining the productivity of the land in Lake Paddock and its environs in breach of WMA sections 9(1)(a) and 5(2),(4) and (5); (ix) Failure of the Second Respondent by its servants or agents to have regard to the impact on the Lake Paddock water source of river planning decisions with respect to river management of the Murrumbidgee River and Yanco Creek affecting the water source; (x) In the premises the Second Respondent its servants or agents failed to have regard to the duty not to abridge the right of each Applicant to the reasonable use of the waters of Yanco Creek for conservation or irrigation; and (xi) Failure to have due or any regard to the invalidity of the 2012 licence decision, the water source decision, the 2012 plan decision, the 2015 licence decision and the 2015 water plan decision.

[102]

Particulars (iii) and (iv) to Decision 8

The Applicants, at particular (iii) to Decision 8, alleged that the Minister failed to have any or sufficient regard to the requirements of ss 20(1)(a),(b) and (e) and (2)(a)(b) and (e). [251]
With respect to s 20(1)(e), the Applicants argued that there was a breach of mandatory obligations including that there had been a: failure to make a bulk access regime conforming to s 7, because the Minister and those assisting him (his designated delegates and for whom the state is responsible) [sic] did not: (i) classify the YC water source and the lake dependent ecosystem as at risk, subject to stress and the extent of its conservation value (see s7 (3), (4) (b) & (5); and (ii) establish a bulk access regime for the extraction of water under access licences in respect of the YC water source and the Lake dependent ecosystem by means of the Minister's 2016 Plan (see s20 (1) (e) & 7 (4) (b) & (5); (iii) establish a bulk access regime which recognised and was consistent with limits to the availability of water set in relation to Yanco Creek and the dependent ecosystem (see s20 (2) (a)); (iv) establish a bulk access regime consistent with the water management principles as to form or substance (see s20 (2) (f) & (5)). [252]
With respect to (iv) above, the Court presumes the reference to "& (5)" was in reference to s 7(5) of the Water Management Act.
The Applicants submitted that, on their proper construction, Ch 2, ss 7, 20 and 50 of the Water Management Act apply to Decision 8 (citing Minister for Local Government v Blue Mountains City Council (2018) 229 LGERA 197; [2018] NSWCA 133 per Leeming JA at [51], [58], [61], [71] and [90] and Key Issues in Public Law, ed Williams, 2017, at pages 102-103). [253]
The Applicants further argued that ss 7(5) and 7(4)(b) required that a bulk access regime be implemented where water sources are classified as high risk, high stress or high conservation value "to be established by means of a Minister's Plan", and sought to contrast this with what the Applicants said to be "the Minister's obligation to comply with Part 3 plan making function duties to do so in 'general terms' under s50(2)" (citing Nature Conservation Council at [92]). The Applicants further argued that critical to the application of the law "is the classification required in a Minister's plan to be made". [254]

[103]

Particulars (v) and (vi) to Decision 8

The Applicants further contended that the Respondents failed in the exercise of the plan-making functions in the making of the 2016 Regulated WSP, to give priority to the principles for water sharing set out in s 5(3), in the order in which they are set out in that subsection. In particular, the Applicants alleged, the Respondents did not prioritise protection of the environment in Yanco Creek and the water body in the Lake Paddock over extraction. This resulted in, the Applicants said, losses of regulated water, which caused degradation of the ecology and environment of Yanco Creek and the Lake Paddock.
The Applicants argued that their Facts 1, 2 and 3, and the principles of ESD made good the proposition that Yanco Creek and the water body in the Lake Paddock (as the Applicants asserted, a dependent ecosystem of Yanco Creek) have been degraded by high regulated flows. [257]
The Applicants submitted that Fact 4 and any reasonable enquiry (per Caldera Environment Centre Inc v Tweed Shire Council [1993] NSWLEC 102) would have made the Minister aware of the Alluvium Report, which the Applicants said supports the conclusions of Mr Purcell, "both as to the fact of and cause of the environmental and farming asset damage and the necessity for its remediation and restoration in the dependent ecosystem in this case at ["Somerset Park"] and the basic steps necessary to restore the degradation and damage". [258]
Further, the Applicants argued that the departmental file, which they said was constructively before the Minister (citing Peko-Wallsend), evidenced that prior to 29 June 2016, the Department: 1. was aware that high regulated flows in Yanco Creek were flowing in and out of the Lake Paddock, causing substantial damage; [259] 2. had prioritised the "irrigation perspective" over the protection and restoration of the dependent ecosystem at Lake Paddock in breach of ss 9 and 5(3) of the Water Management Act; [260] 3. was aware that the Applicants had "prioritised the environment rather than extraction and were being punished by the Respondents for doing so by exclusion from the volumetric water allocation system under [the Water Act] and exclusion from the [2003 Regulated WSP]"; and 4. had excluded the water body in the Lake Paddock "as an important ecosystem of Yanco Creek" from the Yanco System in Sch 4 [of the 2016 Regulated WSP] and its enhanced licence SL 398. [261]

[104]

The Minister failed to take all reasonable steps to promote and act in accordance with water management principle 5(2)(a)

The Applicants submitted that the Minister failed to take all reasonable steps in making the 2016 Regulated WSP to do so in accordance with, and so as to promote, the water management principle at s 5(2)(a). In particular, the Applicants said, the principle to protect and restore the Yanco Creek water source and the dependent ecosystem in the Lake Paddock, and not to degrade the land either generally or at all. In so doing, the Applicants argued, the Minister breached ss 9(1)(a) and 5(2)(a) of the Water Management Act. [271]
The Applicants contended that the factual history, as set out at Facts 1, 2, 3, 6, 7 and 8 (summarised above), was recorded in the Department file and was of degradation of Yanco Creek at "Somerset Park", the water body in the Lake Paddock, and the land forming part of the Lake Paddock ecosystem on "Somerset Park", and a failure to protect and restore the lake-dependent ecosystem. [272]
The Applicants asserted that the Minister was aware that the Department's management had led to that degradation, and environmental and "farm asset damage", said by the Applicants to be caused by high regulated flows. [273]
The Applicants further contended that: doing nothing therefore ie merely making minimal changes to the [2013 Regulated WSP] was not an option: 'consultation fatigue' in relation to the 2016 Plan making function in that context is an admission of failure to take reasonable steps and a breach of s9(1)(a). [274]
Additionally, the Applicants argued that the fact that the Commonwealth may, in 2020, replace the 10-year 2016 Regulated WSP "with a resource plan under the Water Act 2007 (Cth) is not an excuse for failing to take any steps now". [275]
Accordingly, the Applicants said "a breach giving rise to [Water Management Act] s47 & s336 relief arises". [276]

[105]

Particulars (i) and (ii) to Decision 8

The Applicants contended that the Respondents breached s 20(1)(e) and (2) "with particular reference to" ss 7(5) and 45(1)(a) and (c) of the Water Management Act, "in failing to give effect to the Court's orders of 22 August 2012 a decision of this Court made by consent in the public interest, that the Applicants' water licence be renewed under [1912 Act] s 14(2) with a volumetric allocation of 1,000MGs". [277]
The Applicants submitted that the power exercised by the Court in making the 2012 Court Orders was under s 14(2) of the 1912 Act, and was "in the public interest". In other words, the Applicants said, the 1,000-megalitre volumetric allocation "recognised that the Applicants had conducted themselves appropriately and that it was in the public interest to renew [the 1986 Licence] as part of the [volumetric water allocation scheme] under [Pt 2 div 4B of the 1912 Act]". [278]
The Applicants noted that s 45(1)(a) of the Water Management Act "is also expressed to arise 'in the public interest'", and that s 7(6) of the Water Management Act "authorises the variation under s 45 of a bulk access regime".
Whilst the Respondents, the Applicants said, "could have and should have" amended the 2003 Regulated WSP: the duty to do so to give effect to the Court's Orders and the agreement between the parties arose in the exercise of the plan making functions by the Minister and his assistants in the Department in making the replacement plan on 29.06.2016 and s46(1) and s87A(3)(b) and as put in the Applicants Submission by letter dated 21 6 2016. [279]
Further, the Applicants contended that ss 20(1) and (2) of the Water Management Act "make it clear" (consistent, they said, with the 2012 Court Orders) that the 1986 Licence: provided for extraction of regulated flows ie from [Yanco Creek] and the [water body in the Lake Paddock] into and out of which it has flowed should have been included in the bulk access regime; also see Schedules 10 and 11.
The Applicants argued that the Respondents' submission that the 2012 Court Orders "are merely an agreement which, in spite of the evidence of Mr Hutchinson, the Respondents are not required to perform", ought to be rejected.
That Applicants further submitted that: The result contended for by the Applicants meets the justice of the case and the requirements of the Act because: Had the Applicants been able to rely on [the 1986 Licence] in 2004 they would have in the proper exercise of the [2003 Regulated WSP] making functions had a general security licence: see Schedule 10 clauses 3 and 4 and Schedule 11, WMA; They retained their licence even though Mr Webb tried by various stratagems to terminate the licence; The licence has not proved futile if it becomes part of the regulated Plan but is valueless and inutile if part of the macro Plan both from an environment and a farming asset viewpoint. [280]

[106]

Particular (vii) to Decision 8

The Applicants argued that the Respondents contravened ss 9(1)(a), 5(2)(d) and (f), "in respect of the duty of the Minister in exercising the plan making functions under Chapter 2". [282]
There is a duty, the Applicants argued, to take all reasonable steps to ensure generally that the cumulative impact of licences are considered and minimised and the natural heritage protected. [283] They contended that, "the 2016 Plan being a mere replication of the [2003 Regulated WSP] ignoring the Court Orders of 22.08.2012, the Alluvium Report, the history of damage to the LP ecosystem, and the difficulties of the Applicants dealing with NOW disclosed by the File" indicate that "no such reasonable steps have been taken". [284]
Further, the Applicants submitted: The Minister refers to 'consultation fatigue' as the reason for lack of attention to these and other details That is not taking reasonable steps Mr Maini's evidence on this point on these issues should be rejected. A Jones v Dunkle [sic] inference arises against the Respondents on this point. [285]
Finally, the Applicants argued that the Respondents had breached ss 5(4)-(5) and 9(1)(a) of the Water Management Act.

[107]

Particular (viii) to decision 8

Finally, the Applicants argued that the Respondents had breached ss 5(4)-(5) and 9(1)(a) of the Water Management Act "in respect of the duty of the Minister in exercising the plan making functions under Chapter 2" of the Water Management Act. [286]
The Applicants made: [t]he same submissions are made regarding land degradation, water logging and decline of native vegetation. Common Law parallel - case law relates to detailed attention to particular water sources by reference to accepted rules - it would be surprising if WMA left a vacuum in the protection of particular water sources land, and farming assets cf RS 47, 95 and 115. [287]
The Applicants submitted that the material before the Minister at the time of making the decision was the material in Exhibit 6(b) put forward by the Respondents as the material before the Minister, and, additionally "evidence of Facts 1 to 10". The Applicants contended that the Respondents' submission, summarised above at [403], ought to be rejected [288] because: 1. the water licence file relating to the 1986 Licence was discovered, and the Respondents did not object to it being tendered at hearing on the basis that it was relevant, in the proceedings before the Court that resulted in the 2012 Court Orders; [289] 2. Peko-Wallsend, the Applicants asserted, is not distinguishable on this point (citing Gibbs CJ at 31 and Mason J at 42-48); [290] 3. the Applicants said that the "Respondents admit at [91] that the Minister 'may' have constructive knowledge of WSP file, yet no such file has been discovered"; [291] 4. there is, the Applicants asserted, no evidence from the Minister or Mr Maini (who, the Applicants said, "was involved in the making of the two key WSPs the macro plan and the regulated water plan") "disputing the proposition or setting out what was before the Minister constructively or otherwise." [292]
The Applicants characterising the Respondents' stance regarding the State's water rights as "we can do what we like with the water because it belongs to us", argued that this was the "wrong view of the law". [293]
The Applicants argued that the water body in the Lake Paddock is a dependent ecosystem of Yanco Creek and that there was no pleading from the Respondents denying the proposition. [294]

[108]

Respondents' submissions on Decision 8

The Respondents observed that the particulars to Decision 8 repeated the particulars to Decision 7, with one addition to particular (xi), namely, a failure to have regard to the alleged invalidity of Decision 7. The Respondents therefore repeated their submissions (summarised at [264]-[267] above) in relation to the allegations concerning failure to take into consideration ss 5 and 9 of the Water Management Act, and their submissions (summarised above at [403]-[413]) in relation to the alleged relevant/irrelevant considerations both as applied to Decision 8. Like the other WSPs, the Respondents submitted, the provisions of 2016 Regulated WSP evidence consideration of environmental concerns including cll 7, 9, Pt 3 (the bulk access regime), and Pt 4 (planned environmental water). The Respondents contended that "[a]gain, the applicants real complaint seems to be that the Lake Paddock has not been declared a regulated river (which does not happen under the WSP, but under separate instruments)". The Respondents thus repeated their submissions, summarised at [448]-[451] above.
However, the Respondents noted that there was a factual matter that distinguished the claim with respect to Decision 8, namely, that the First Applicant made a submission to the Minister, on 21 June 2016 (after the Minister had signed the briefing note on 6 June 2016, but before the 2016 Regulated WSP was made on 29 June 2016). The Respondents noted that the SFAPOC does not however plead a failure to take into account that submission. Even if they had, the Respondents argued, the Applicants had not established, as a matter of statutory construction, that there was a legal obligation on the Minister to consider that letter or the issues raised in it. The Water Management Act, the Respondents submitted, "does not impose an obligation to consider the impacts of a WSP on each and every body of water in New South Wales. Additionally, the Respondents said, the submission of 21 June 2016 did not raise concerns about the environmental impact on the Lake Paddock, but merely asserted that the Applicants had a "tradeable water right" and should thus be included in the 2016 Regulated WSP.

[109]

Particular (xi) of Decision 8

As to particular (xi) to Decision 8, the Respondents submitted that there could be no obligation to have regard to the "invalidity" of the decisions referred to therein if (as the Respondents submitted) none of those decisions were invalid. Further, the Respondents contended, their alleged invalidity was not a mandatory relevant consideration in relation to the exercise of the Minister's power in s 50 of the Water Management Act to make the 2016 Regulated WSP.

[110]

Was the challenge to Decision 8 made within time?

In the case of the review of Decision 8, being a challenge to the Minister's decisions to replace the 2003 Regulated WSP with the 2016 Regulated WSP, the relevant date of the decision was the Ministerial Order signed on 29 June 2016, notification of which appeared on the New South Wales government website on 1 July 2016. As this was a decision dealing with a water sharing plan, s 47 of the Water Management Act applies and, accordingly, as the Applicants in these proceedings seek to review the Minister's decision they are thereby seeking to challenge the validity of a management plan. As examined earlier in this judgment, by s 47(2) of the Water Management Act, the judicial review period in respect of a management plan is the period of three months after the date the decision regarding the plan was published on the New South Wales legislation website. Accordingly, with respect to the review of Decision 8, the proceedings in relation to that Decision 8 must have been commenced by 1 October 2016.
Of particular note, with respect to the statutory time limit applicable to the review of a management plan, is the effect of s 47(3) wherein it is stated that "[t]he [3 month] judicial review period cannot be extended by the Land and Environment Court or any other court, despite any other Act or law". As such, there is no discretion available to this Court to extend the review period beyond the allowable three months. It is also to be recalled that, by reason of UCPR r 59.10(4), because there is a statutory limitation period prescribed in s 47 of the Water Management Act, r 59.10 does not apply to the proceedings (insofar as the proceedings relate to a decision to which s 47 of the Water Management Act applies). Accordingly, even if it were thought necessary that an extension of time was required in order to review Decision 8, the usual ability to exercise a discretion, pursuant to r 59.10(2), to allow proceedings to be commenced beyond the three-month limit, is unavailable.
It is therefore of critical importance to confirm whether the Applicants' review of Decision 8 was brought within the three-month statutory time limit pursuant to s 47(2)(b), given that the Court has no power to extend that time limit by virtue of s 47(3). If the review of Decision 8 was brought out of time, then this Court has no power to judicially review Decision 8.

[111]

The relevance of environmental damage

Earlier in this judgment at [295], when considering Decision 1, I quoted a passage at [179]-[180] from the judgment of Biscoe J in Arnold No 6 in which it was accepted that there is a statutory implication that it is mandatory for the Minister to have regard to the water management principles in s 5 of the Water Management Act when making a plan. In this judgment I have earlier firmly confirmed those duties identified in Arnold No 6. With Decision 8 the issue involves the Minister's decision to make the 2016 Regulated WSP, which, by that decision, replaced the 2003 Regulated WSP. At the 'stated' heart of the Applicants' challenge to Decision 8 was a contention that by failing to include the Lake Paddock and the unnamed watercourse/diversion channel (which links the Lake Paddock and Yanco Creek) in the 2016 Regulated WSP rather than leaving them in the 2012 Unregulated WSP, all manner of harmful consequences have occurred which can collectively be described as failing to protect the environmental values of a dependent ecosystem, being the Lake Paddock, in breach of many cited provisions of the Water Management Act.
A composite summary of the pleaded impacts or harmful consequences expressed in the form of extracted words from the grounds set out earlier at [466], confirm the tenor of the 'expressed' concerns of the Applicants regarding environmental impacts which they contend evidence a failure to adhere to the provisions of the Water Management Act: (i) Failure … in protecting the billabong water source; … (v) Failure …to take all reasonable steps to protect and restore the wetland, being the billabong in the Lake Paddock the floodplain and the dependent ecosystem being the trees and natural heritage thereof …; (vi) Having regard to irrelevant considerations … causing major losses in the system of regulated water in preference to the prevention of degradation of the wetlands and dependent ecosystems…; (vii) Failing to have regard to ….cumulative impacts …. on the billabong wetland in the Lake Paddock of Somerset Park and its dependent ecosystems and its natural heritage …; (viii) Failing to have regard to … the minimisation of land degradation on … the banks of Yanco Creek by soil erosion, waterlogging and inundation of the Lake Paddock and its natural heritage and undermining the productivity of the land in Lake Paddock and its environs … …

[112]

Was Decision 8 subject to legal error?

The proceedings before me are a judicial review of the impugned decisions. Each decision must therefore be examined to determine whether the making of that decision was flawed in accordance with administrative law principles. The bar the Applicants must get over, to satisfy the onus that rests upon their shoulders, is to establish that an "unfortunate consequence" of decision‑making (to use the Applicants' term), say the inundation of Lake Paddock, is a consequence of a legally flawed decision. As I have repeatedly said earlier, a perfectly valid decision, complying with all legislative and administrative law requirements, may, nonetheless, give rise to "unfortunate" outcomes. For a litigant to prove that such a decision was invalid, however, proving those unfortunate outcomes alone is insufficient.
None of the provisions in the Water Management Act, the 2012 Unregulated WSP, or the 2016 Regulated WSP can guarantee that decision-making will always result in a positive environmental outcome, notwithstanding the objects of the Water Management Act. I accept the evidence that the Lake Paddock has been continually inundated and the River Red Gums growing within it are dead or dying, but those facts are not proof that Decision 8 was flawed in the administrative law sense.
The Court disagrees that Decision 8 can be said to have been made in disregard or without sufficient regard to the 2012 Court Orders. First, the 1,000-megalitre water access right remains with the Applicants, albeit sourced within the unregulated WSP system. Secondly, with those 2012 Court Orders ensuring the allocation of that water, the obligation to construct the regulator remained with the Applicants' entitlement. In essence, nothing had changed; the Applicants still had the opportunity (indeed the obligation) to stem the flow of waters from Yanco Creek in to the Lake Paddock by way of a regulator.
The Applicants have not demonstrated why the 2012 Court Orders were a relevant consideration to be taken into account when Decision 8 was made. However, even if the 2012 Court Orders were a relevant consideration, as the regulator obligation was carried forward into the licence issued following the 2012 Court Orders, the Minister could well be entitled to note the purpose of that regulator and presume due compliance would see it constructed. In the context of Decision 8, being a decision where, by s 5(3)(a) of the Water Management Act, it was required that the "sharing of water from a water source must protect the water source and its dependent ecosystem" and pursuant to cl 43(1)(b) of the 2016 Regulated WSP, in determining the channel capacities, the Minister is to take into account of "the effects of inundation on the floodplains and associated wetlands", the regulator obligation would be consistent with the Minister's decision. So even if the 2012 Court Orders were a relevant consideration, the assertion that there was a failure to have regard, or that insufficient regard was given, to the 2012 Court Orders could be taken to be rebuffed.

[113]

The constitutional claim

Section 100 of the Commonwealth Constitution provides: 100 Nor abridge right to use water The Commonwealth shall not, by any law or regulation of trade or commerce abridge the right of a State or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation.
The Applicants alleged that the Respondents "impaired the constitutional guarantee of the Applicants contained in s 100 of the Commonwealth Constitution". This guarantee, the Applicants said: applies to state laws and measures and the implementation thereof as alleged herein and have thereby abridge the right of the Applicants and each of them and all farmers holding land adjacent to Yanco Creek to the reasonable use of the waters of Yanco Creek for conservation or irrigation.

[114]

Applicants' submissions on constitutional claim

This was particularised as follows: (i) In the premises in implementing the decisions complained of in paragraphs 8A and 8B the Respondents have unreasonably abridged the right of the Applicants to the use of Yanco Creek for conservation and for irrigation and to maintain its natural heritage values. (ii) Each of the water works and water usage decisions and their adverse consequences and effect on "Somerset Park" in the implementation thereof as alleged herein failed to have regard to the obligation on the Respondents as owners of the water resources of NSW including in Yanco Creek not to abridge the reasonable use by the residents of the waters of rivers for irrigation and conservation and in not so doing each such decision is void and of no effect. (iii) The Applicants will seek injunctive relief to prevent further impairment of their and the local environment at "Somerset Park" by reason of the decision or decisions complained of herein.
In their "summary of argument", filed before the commencement of the hearing, the Applicants argued that there had been: an impairment by the unauthorised acts and decisions of the Applicants' rights as residents of the State of NSW to the reasonable use of the waters of Yanco Creek for conservation by adopting the high usage and flows in that Creek inundating the Applicants' land, which leads to the invalidity of any law that in its terms operation or effect impairs that right as has happened here. [295]
However, when questioned during the hearing as to whether the constitutional claim would be withdrawn, or whether it would be continued to be pressed, counsel for the Applicants reiterated that the constitutional claim was pressed, but declined to make submissions thereon (Transcript 554.42).
With counsel for the Applicants adopting this course, the Court's understanding of the Applicants' claim with respect to s 100 of the Constitution was not assisted. The Court was thereby limited to examining the pleadings and the "Notice of a Constitutional Matter" under s 78B of the Judiciary Act 1903, dated 19 December 2016. The s 78B Notice was Annexure A to the affidavit of John Andrew Andrews sworn 13 March 2017.
In the course of the hearing the Court expressed a tentative view that the constitutional claim of the Applicants was if not devoid of substance, weak, and invited the Applicants' counsel to withdraw their claim, or at least clarify their position, for example (at Transcript 207.33-34), "I really need to understand how you put that constitutional case, because I do see fundamental problems with it".

[115]

Respondents' submissions on constitutional claim

The Respondents denied that s 100 of the Constitution imposes a limitation on the legislative powers of the States. [296] Rather, the Respondents submitted, it is well established that s 100 relates to conduct by the Commonwealth (citing Morgan v Commonwealth (1947) 74 CLR 421; [1947] HCA 6 (Morgan) at 455, 458-459; passages in Arnold Appeal at [23], [53], [76], and [83], wherein it was decided that it was unnecessary to reconsider the correctness of Morgan; and Commonwealth v Tasmania (1983) 158 CLR 1; [1983] HCA 21).
The Respondents cited the decision of the Full Federal Court in Lee v Commonwealth (2014) 229 FCR 431; [2014] FCAFC 174 (Lee) at [87], [107]-[110], wherein that Court applied Morgan in holding that the primary judge was correct in summarily dismissing the appellant's case relying on s 100 of the Constitution and, further, held that s 100 did not create a private right, enforceable in an action for damages (at [185]).
Therefore, the Respondents submitted, the constitutional claim alleged in paragraph 12 of the SFAPOC should be dismissed.
Further, the Respondents argued that paragraph 12 of the SFAPOC should also be dismissed because: a. s 100 is a restriction on legislative power, and the applicants have not identified any "law or regulation" which has restricted their reasonable use of waters and b. there is no evidence that any law or regulation has restricted the applicants reasonable use of the waters of Yanco Creek. Under cross-examination Mr Paul Andrews was not able to explain [32] of his affidavit of 28 January 2016 (which alleges inter alia a loss of capability to irrigate). He accepted there was nothing stopping him from using the water in the Lake Paddock for irrigation, aside from financial reasons Mr Purcell purported to opine about the applicants reasonable use of waters but was in reality opining about the reasonable use of their land. [297] [references omitted]

[116]

Consideration of the constitutional claim

The Court is satisfied that the Respondents have placed before it cogent reasons why the Applicants' s 100 constitutional contentions should be dismissed. The starting point is what I consider to be trite law that s 100 relates to Commonwealth decisions and actions and does not impose a limitation on the legislative powers of the States. As counsel for the Respondents submitted: "… the cases establish that (s 100 of the Constitution) only applies to restrict Commonwealth power, not State power" (Transcript 90.36-40). I consider that proposition to be patently clear on the face of s 100 and it is apparent that is how the provision was intended to operate. As held by the High Court in Morgan, at 455, s 100 is one of a group of sections that "should be read as applying only to laws which can be made under the power conferred upon the Commonwealth Parliament by s 51(i)".
Before leaving s 100, I should also note that, in addition to s 100 being focused on Commonwealth laws and regulations, those laws and regulations are to be in relation to trade or commerce. Although my finding that the absence of a requisite Commonwealth law in this case is fatal to the Applicants' case, the additional prerequisite that the law or regulation in question is to be with respect to trade or commerce, reinforces the rationale for dismissing the Applicants' s 100 constitutional claim. In this regard, I follow the judgment of the Full Court of the Federal Court in Lee wherein they dismissed a not dissimilar claim with respect to s 100, albeit the primary focus of that case was the operation of the Water Act 2007 (Cth). However, the conclusions of the Federal Court, as are apparent from the following passage, are nevertheless pertinent to the determination of similar arguments raised before me: 110 Consequently, we do not consider it can be said the primary judge erred in concluding that the s 100 case argued by the appellants on the basis of Morgan, had no reasonable prospects of success. No error is shown. If a different approach to the construction of s 100 is to be taken, it must be as a result of a considered re-opening of Morgan by the High Court, not by this Court. 111 In those circumstances the appellants press their alternative argument that the relevant parts of the Water Act that they impugn, can be characterised as a law relating to trade and commerce for the purposes of s 51(i), and so for the purposes of ss 99 and 100. … 118 The appellants emphasise that it is the operation and effect of the relevant provisions of the water market created by the Water Act that must be focused on in determining the true nature and character of the impugned provisions. They contend that when that is done appropriately, and at least arguably for the purposes of a summary dismissal application, it can be seen that, while many of the provisions of the Water Act are, as the primary judge found, designed to protect the environment, they are also about interstate trade or commerce. … 122 There are a number of stumbling blocks recognised by the primary judge, which, in our view, make the propositions pressed as a whole, untenable. In particular, the proposition, or assertion, that commercial irrigation is an activity in interstate trade and commerce, is put at a very high level of generality. It very much was put on the basis that water flowing down the river, which is diverted into commercial horticultural farms provided the interstate character of the law. The argument, put in this way, fails to appropriately engage with the machinery provisions of the Water Act and what they say and do. 123 The second proposition put, again at a high level of generality, was that because the Water Act had the effect, or potential effect, of reducing the quantity of water in the River Murray for irrigation or conservation purposes it therefore "cut" the appellants rights of commercial irrigation and conservation, so that the Water Act and its relevant parts was in substance or effect a law about trade and commerce among the States In so stating, the submission fails to explain how the law thereby becomes one of trade and commerce among the States.

[117]

Applicants' submissions on discretionary factors

The Applicants argued that the Respondents' submission, that the Court ought to decline to grant relief to the Applicants on the basis of delay and the Applicants' non-compliance with condition 7 (later condition 10) of the 1986 Licence, ought to be rejected because "the environmental damage is ongoing and can only be resolved by decisions and actions of the Respondents". [298]

[118]

Delay

The Applicants acknowledged that delay in commencing proceedings is a discretionary reason for a court to refuse relief, however pointed to Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57, Yirrell v Yirrell [1939] HCA 33; (1939) 62 CLR 287, and Katter v Melhem (2015) 90 NSWLR 164; [2015] NSWCA 213, in which, the Applicants said, the relevant court granted relief notwithstanding a delay in the commencement of the proceedings. [299]
The Applicants argued that they commenced proceedings "within time after the mandatory conditions were imposed completing the relevant decision‑making process and finally settling the question as to what licence [the First Applicant] was entitled to under the proclamation commencing the Water Management Act 2000 section 55A and 88A with respect to the [1986 Licence]". [300]
Further, they submitted, "[i]f anyone should be criticised for delay it is the State, which knowing of the environmental damage being caused by its ongoing river operations simply ignored the problem". [301]

[119]

Compliance with conditions of 1986 Licence

With respect to the Respondents' submissions regarding condition 7 (later condition 10) of the 1986 Licence, the Applicants said: We dispute any breach of condition 7. Indeed, we point out that the licence didn't even permit us to build a sill until 1996 and, after 2012, the Act simply says you can only be in breach if you fail to use a licence. But our second point is that the whole sill was ineffective by reason of the high regulated flows and the pressure on Yanco Creek and its dependent ecosystem, the Lake Paddock at "Somerset Park". And, of course, it's not just the Lake Paddock, it's the Yanco Creek itself and the banks of water which pass through them on my client's property. (Transcript 547.45-47)

[120]

Delay

The Respondents submitted that the Applicants' delay in commencing the proceedings, noting that the impugned decisions were allegedly made from 1990 onwards, was highly material to the Court's exercise of its discretion.
This delay, the Respondents submitted, was "a powerful factor weighing against the grant of relief sought in the present proceedings" in relation to Decisions 1 and 2 (to the extent those decisions were alleged to have been made between 1990 and 22 March 2015) and Decisions 3, 4 and 5. The Applicants, the Respondents said, have provided no real explanation for the delay in commencing proceedings. With respect to Decisions 1 and 2, the Respondents argued that the delay had resulted in prejudice to the Respondents because "the passage of time makes it difficult to answer allegations about what was and was not taken into account". [302]
With respect to the authorities relied upon by the Applicants', the Respondents contrasted the "25 year lapse of time between 1990 and the commencement of the present proceedings" and the "little more than 14 months in Katter v Melham". [303]

[121]

Compliance with conditions of 1986 Licence

The Respondents argued that the First Applicant's non-compliance with the conditions of its licence requiring the construction of a regulator also weighs against the grant of any relief against Decision 1 (noting, however, that no relief was sought). [304]

[122]

Change in flows

The Respondents further submitted that, to the extent the Applicants seek relief by way of a change to the flows in Yanco Creek, a further reason for the refusal of that relief was that it could have serious adverse impacts upon third parties and the environment (relying on the evidence of Mr Maini at Transcript 399.18-22 and the Alluvium Report at page 3). [305]

[123]

Consideration of discretionary factors

If the Court is incorrect with respect to any of its conclusions in relation to its review of the various decisions the subject of these proceedings and therefore has residual discretion to exercise with respect to the grant of relief, then the Court has concluded that, in any event, there are sound reasons why the Court should not exercise its discretion in favour of the Applicants and so not grant any of the relief sought.
The Court has decided that, with respect to the Respondents' arguments regarding discretion, being: (i) the Applicants delay in seeking relief; (ii) the Applicants non-compliance with licence conditions; and (iii) the implications for an unknown number of, but obviously numerous, landowners and water users downstream from "Somerset Park" of any orders made in these proceedings, in all three respects the arguments have merit.
Earlier in this judgment at [209]-[225], the Court examined the implications of the proceedings being out of time for the purposes of r 59.10 of the UCPR. In that discussion, the Court concluded that there remained a discretion within the hands of the Court whether or not to allow aspects of the Applicants' claim to proceed to determination. There is a distinction between the exercise of discretion to allow a claim to proceed, that is, to allow it to be argued and considered, and the exercise of discretion, after argument from both parties have been ventilated, whether to grant the relief sought in relation to any particular 'surviving' head of claim. Having allowed a number of the claims of the Applicants to proceed to argument, it is the implications of delay with respect to the latter aspect of discretion, that is, relief, which I am now considering.

[124]

Delay

Although modern society, characterised by information overload, can swamp the capacity of the ordinary citizen to deal with the many manifestations of bureaucracy of government and obfuscate an understanding of decision‑making, there are nevertheless many avenues available to verify the rights a citizen might have, and to ascertain whether those rights might have been infringed. These avenues include the proper application of diligence, savvy internet searching and, where necessary, early investigation via the assistance of freedom of information legislation to delve into the processes of decision-making. In this case, the Court considers there were many instances where the Applicants' concerns could have been pressed years earlier and maintained with greater diligence.
There were lapses of attention by the Applicants The Court heard, during the oral evidence of Mr Paul Andrews, that the 10-or-so years of the decline in health of his father, Mr Andrew Andrews, led to the family, effectively, withdrawing to the city, with "Somerset Park" being placed in caretaker mode. The cross-examination of Mr Paul Andrews (at Transcript 147-149) revealed that there hadn't been a full-time manager since about 1993, that cattle belonging to a neighbour have been agisted on the property for the last 15 to 20 years and that even the olive grove has not been harvested in recent years. In all respects Mr Andrews was vague on details. It seems that the family eye "was taken off the ball" after the earlier years of Mr Andrew Andrews pressing his concerns with respect to the inundation of the Lake Paddock. However, having "dropped the ball", the Court is of the opinion that the Applicants cannot complain that water management decision‑making by government proceeded (not unreasonably, given the catchment-wide responsibilities affecting hundreds, probably thousands, of other water users).
With the 1986 Licence being granted in 1986, it was not until December 1995 that there was correspondence between the First Applicant and the Department regarding the regulator. Five years passed with no regulator built, until mid-2001 when the Department pressed the issue of whether a licence renewal was required, in the context of the licence allocation not being used, and "losses of regulated water from the Yanco Creek system", and Mr Andrews stated concerns regarding inundation. Following the 2002 renewal, six years then passed before, in 2008, another renewal of the 1986 Licence occurred, with the conditions amended to provide for a zero allocation, in line with usage. Then in April 2012, after another four years, a refusal to renew the licence prompted the Applicants to commence proceedings before this Court. There followed, in August 2012, a 'resolution' achieved through negotiation resulting in the 2012 Court Orders. Three further years then passed before these proceedings were commenced by summons on 22 June 2015. With a multiplicity of directions hearings and numerous changes to the Applicants' pleadings, the primary hearing finally commenced over three years later, in July 2018. The Court concludes that, taken together, the many delays in this sorry saga weigh against the exercise of discretion in favour of the grant of relief.

[125]

Condition 7

A persuasive argument against the exercise of discretion in favour of the Applicants was their failure to comply with condition 7 of the 1986 Licence (which was subsequently renumbered condition 10). This was the condition which required the Applicants to construct a regulator on the diversion channel from Yanco Creek into the Lake Paddock. Read together, conditions 7-12 were clearly designed to, materially and critically, provide for the construction of a control device to be operated so as not to cause any inundation of land by floodwaters. The Court does not accept that there was any justification at any stage to delay the construction of the regulator, such as to 'seek more detail' of the design at the time of the April 1996 licence renewal (notably, 10 years after the initial requirement was breached and thereafter never complied with). Five years later in August 2001, in an exchange of correspondence between the First Applicant and the Department regarding concerns about tree deaths due to inundation, it is to be noted that the regulator was still not constructed.
The Court takes the view that the regulator should have been built, in compliance with the initial licence conditions and as subsequently required to be in compliance with each successive licence renewal. It does not matter that the Applicants may have had questions or even doubts about the practical value or function of the regulator as, once tried and tested, it could have been modified. However, with the regulator never having been built, there was never an opportunity to determine whether it would work or might require refinement. If, for instance, the initial design of the regulator failed to prevent inundation of Lake Paddock by floodwater, it would be at that stage appropriate to question its design and perhaps its sill level. The Court mentions the sill level as being rather quaintly described as "a sill level fixed at not more than 1.11 metres below the level of a bench mark established on a gum tree on the left bank of Yanco Creek near the work", it is conceivable that the height so specified might have been inadequate as waters in Yanco Creek rose, or, given the frequent mention of gum-tree death in the evidence, the specified gum tree might have toppled over. The point is this: whatever the questions there might have been about the functionality of the regulator in the face of inundating high creek flows, unless built and tested, the Applicants would never know. On this basis the Applicants' counsel's submission that "the whole sill was ineffective by reason of the high regulated flows and the pressure on Yanco Creek" is an entirely unsustainable proposition.

[126]

Orders

The Court orders: Application regarding Supplementary Submissions in Reply 1. The Applicants' application for leave to file and rely upon 'Supplementary Submissions in Reply' dated 9 August 2018 and their associated 'Reply' dated 3 September 2018 is dismissed. 2. The Applicants' shall pay the Respondents' costs incurred as a consequence of the application for leave to file Supplementary Submissions in Reply. Notice of Motion to reopen case to receive further evidence 1. The Applicants' Notice of Motion filed 14 September 2018 is dismissed, and so leave is not granted to the Applicants to reopen their case in order to rely upon supplementary evidence from Mr Paul Andrews via a further affidavit sworn 3 September 2018 and supplementary evidence from Mr James Purcell via a further affidavit sworn 5 September 2018. 2. The Applicants shall pay the Respondents' costs incurred on the Motion on the ordinary basis as agreed or assessed. Notice of Motion seeking extension of time under r 59.10(2) 1. The Applicants' Notice of Motion filed 1 December 2017, seeking leave pursuant to r 59.10(2), is dismissed save for Decision 6 and so leave is not granted to the Applicants to seek judicial review of the other Decisions to which s 47 of the Water Management Act does not apply. Dismissal of Applicants' case 1. The Applicants' claims with respect to all the impugned Decisions the subject of these proceedings are dismissed. Constitutional claim 1. The Applicants' claim pursuant to [12] of the Second Further Amended Points of Claim and, to the extent necessary the related Ground 7 in the Second Further Amended Summons (Judicial Review), being the claim based on s 100 of the Commonwealth of Australia Constitution is dismissed. Costs 1. Costs are reserved, with the parties having leave to confer for the purpose of proposing appropriate orders with respect to the making of submissions on the question of costs, including timing thereof.

[127]

Annexure A- Map of Yanco Ck (303 KB, pdf) Randren House Annexure B - List of defined terms (52.7 KB, doc) Randren House Annexure C- Chronology (19.3 KB, docx)

[128]

Endnotes

Exhibit O, pp 150-151
See conditions 7, 8 and 9 of licence L45398 as renewed on 22 October 1991 (Exhibit O, p 146); condition 7 of renumbered licence 40SL45398, as renewed on 24 April 1996 (Exhibit O, p 126), 6 September 2002 (Exhibit O, p 97), 16 June 2008 (Exhibit O, p 79) and 24 August 2012 (Exhibit O, p 54D(4)); Statement of Approval no 40CA412879, additional conditions NS18574 and NS18589 (Exhibit O, p 26)
Transcript 166.29-30, 151.48-49, 173.8-11
Exhibit O, p 138
Exhibit O, p 133
Exhibit O, p 130
Exhibit O, p 124
Exhibit O, pp121-122
Exhibit O, p 112
Exhibit O, p 111
Exhibit O, p 109
Exhibit O, p 108
Exhibit O, p 107
Exhibit O, p 105
Exhibit O, pp 101-103
Exhibit O p 100, 85, 84.
Exhibit O p 80
Exhibit O pp 67C, 67D 67E, 68, 69 70(1) 70(2), 70A, 70B, 70C, 71
Respondents' closing submissions (RCS), [16]
Exhibit O, p 69
Exhibit O, p 67A(1)
File no 12/30440
Exhibit O, p 55
Exhibit O, p 54D(3)-(5)
Affidavit of Paul Andrews 28 January 2016, Transcript 185.1
Exhibit O, p 54D(1)
Exhibit O, p 54C
Exhibit O, p 54B
Exhibit O, pp 48-54.
Exhibit O, p 50
Exhibit O, p 32
Exhibit O, p 31
RCS, [22]
RCS, [23]
Exhibit 6(b), p 698
Exhibit 6(b), p 693
RCS, [24]
Exhibit 6(b), p 304
Exhibit O, p 11
Exhibit 6(b), pp 404, 406
Exhibit O, pp 8B(2)-(3)
Relying on the evidence of: second Purcell Report, p 57; third Purcell Report, [5]; Mr Maini at Transcript 322.38; Mr Warren at Transcript 287.50; Affidavit of Paul Andrews 1 November 2017, [11], [15]
Citing Alluvium Report pp 145-153

[129]

Amendments 26 February 2019 - Annexures A, B and C were omitted to be uploaded at the time of publishing. Those annexures have been uploaded on 26 February 2019. 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: 26 February 2019

Randren House Pty Ltd v Water Administration Ministerial Corporation

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