The application to reopen so as to adduce further evidence (Ground 1)
Judgment in the Court below was reserved on 2 August 2018. By notice of motion filed on 14 September 2018, the applicants applied to reopen, so as to adduce further evidence from Mr Paul Andrews and a further (fifth) report from Mr Purcell. The report referred to a document on a government website titled "Improved Flow Management Works at the Murrumbidgee River - Yanco Creek Offtake" and expressed the view that if the works contemplated in that document took place (including constructing a new regulator and fishway across the entrance to Yanco Creek from the Murrumbidgee River), then that would address most if not all of the inundation to Lake Paddock of which the appellants complained. The document was dated March 2017, and referred to a series of steps to be taken over the ensuing 12 months, including public consultation by the Murray Darling Basin Authority in late October 2017. Mr Andrews said that he first learnt of the proposal at a meeting on 8 August 2018, and Mr Purcell said he first learnt of it when Mr Andrews brought it to his attention.
The respondents filed evidence in response, opposing reopening. There was a further hearing before the primary judge on 28 September 2018, who reserved on the application. In his substantive judgment, the primary judge addressed this at [80]-[97] and refused the application.
The primary judge exercised a discretion in refusing the application. He reproduced and applied principles collected in The Movie Network Channels Pty Ltd v Optus Vision Pty Ltd [2009] NSWSC 132, informed by s 56 of the Civil Procedure Act, and summarised by asking whether the evidence was "credible, highly probative and not previously obtainable by reasonable diligence". It was not said that there was any error in the formulation of principle.
His Honour was of the view that it had not been established that the Minister was aware of the new material so as to make it probative, and was satisfied that the applicants' witnesses should have been capable of being aware of the material, which had been publicly available more than a year earlier: at [96].
The appellants' written submissions were silent on this point. Orally, they raised two issues on appeal:
"One is that it was relevant because the evidence demonstrated and confirmed the ongoing damage, the cause of the damage and the remedial measures that were available to remediate those issues. The second reason, which we say that the learned judge erred is because he principally put it on the basis that it was too late, because we should have looked it up on the internet or could have looked it up on the internet, where neither Mr Purcell nor - that is the government website in the department or for the department, when neither of them did that. We say that that was inappropriate to proceed on that basis and that that was the error."
Some aspects of this ground were unsatisfactory. The affidavits whose rejection was the subject of the ground were included in the appeal books with nothing to indicate they had been rejected. There were no transcript references for the argument on 28 September 2018. Indeed, none of the written or oral submissions made in support of the application were included in the appeal books. Notwithstanding that omission, it was put from the Bar table that "it was never put in cross examination to either Mr Purcell or Mr Andrews that they were aware of the material", such that the trial judge's findings were not open. The respondents (whose counsel did not appear at trial) accepted that the deponents had not been cross-examined on 28 September. There is force in what emerged from the following exchange:
"BASTEN JA: We don't know what the affidavit said, for a start. It's a little hard for us to even assess the substance of the complaint when we--
DAVIDSON: I confess I hadn't understood that that was a ground of appeal that was being pursued because it wasn't dealt with in any way in the written submissions of the appellants, so I'm afraid I can't take that further."
Notwithstanding those deficiencies in the way this aspect of the appeal was developed, it may be resolved concisely.
There is nothing in the first aspect of this ground. The fact that a document brought into existence in the year after the impugned decision (the making of the 2016 plan) may be confirmatory of damage to (inter alia) Lake Paddock and proposed works to mitigate that damage does not make it highly probative of any matter in issue. It was at best corroborative of the claims that there was damage to Lake Paddock, and conceivably relevant to the mandatory injunction sought in the event that a breach of the Act was made out. That falls well short, in the circumstances of this litigation, of evidence which is highly probative.
Nor is there anything in the second basis of this ground. The test for re-opening does not turn on subjective knowledge. There was no challenge to the formulation of principle to the effect that the exercise of the discretion turned on whether the evidence had been obtainable by reasonable diligence. As was pointed out during the hearing in this Court, that is an objective test. It was amply open to the primary judge to find that those assisting the appellants ought with reasonable diligence to have learned of the public process, instituted a year before the trial commenced, to consider construction works at the entrance of Yanco Creek.
Indeed, the burden lay on the appellants to establish not only that they were not aware of the March 2017 document but also why it was not obtainable with reasonable diligence. So far as the materials relating to this application have been reproduced in the appeal books disclose, they did not attempt to address this.
[2]
Remaining grounds
Other aspects of the appeal were not advanced in any detail, and may be addressed concisely.
The appellants' complaint that the primary judge had erred in the construction and application of ss 335 and 336 (Ground 7) was not advanced orally. It was not separately advanced in writing (the appellants' written submissions referred to "Grounds 1 to 8, 10 to 12"). But in any event the availability of remedial orders is premised upon a breach, and none has been established.
From time to time submissions were made on the position at common law, which might be regarded as bearing upon Ground 8. The ways in which the common law, as developed in England and the United States, addressed water in rivers is of considerable interest to comparative lawyers and legal historians, as may be seen in J Getzler, "A History of Water Rights at Common Law" (Oxford University Press, 2004). However, New South Wales took a different course in the 19th century, and abrogated private rights. Section 393 is reproduced above, and in light of it I did not understand how the common law was said to affect the outcome of the appeal. The history of statutory regulation of water in New South Wales, and the resultant divestment of any common law rights, is considered in ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140; [2009] HCA 51. The passages at [71]-[73], [144], [146] and [194]-[196] in the reasons of all members of the Court confirm the absence of rights at common law.
There are a number of reasons why the failure to apply the engineering solutions propounded by the appellants in Ground 11 is not a valid ground of appeal, but it suffices once again to point to the absence of any breach of the Act being established.
The primary judge was critical (at [597]) of the appellants' failure to comply with condition 7 of the licence in constructing a regulator on the diversion channel, describing it as a "persuasive argument" against the exercise of discretion in favour of the appellants. However, this was not dispositive of the litigation, the appellants having failed at a stage anterior to discretion. There was no notice of contention. Ground 11A accordingly does not arise.
[3]
Orders
For those reasons, there is no basis for granting the requisite extension of time within which to permit the appellants to appeal. The notice of appeal filed out of time should be dismissed as incompetent.
The only proposed ground which might enjoy any merit is Ground 11C, in respect of s 47, as to which the respondents did not seek to defend the reasoning at first instance. Otherwise the appellants have failed. Costs should follow the event.
I propose that leave be refused to extend the time within which to appeal, the notice of appeal dismissed as incompetent, and that the appellants pay the respondents' costs.
EMMETT AJA: These proceedings are concerned with the validity of a decision made on 29 June 2016 by the third respondent, the Minister Administering the Water Management Act 2000 (NSW) (the Minister), to make a Water Sharing Plan for the Murrumbidgee Regulated River Water Source 2016 (the Plan). The decision was made pursuant to s 50 of the Water Management Act 2000 (NSW) (the Water Act). The appellant, Randren House Pty Ltd (Randren), contends that the decision to make the Plan was invalid.
Randren owns land known as "Somerset Park" situated on both sides of Yanco Creek in southern New South Wales. Yanco Creek is a tributary of the Murrumbidgee River. The second appellant, Mr Paul Andrew Andrews, a principal of Randren, is the occupier and manager of Somerset Park. His father, Mr Andrew Andrews, established an olive oil enterprise on parts of Somerset Park to the south of Yanco Creek. A licence permits water to be taken from the Creek to supply the olive trees. The issues in these proceedings focus on the effect that the Plan is alleged to have in relation to "Lake Paddock", an area of some 450 hectares on the northern side of Yanco Creek. Lake Paddock is part of Somerset Park.
By its further amended notice of appeal filed pursuant to leave granted at the hearing, Randren raises some 15 grounds of appeal. However, it is difficult to discern from the grounds of appeal the precise complaints made by Randren. The final form of the notice of appeal fails to comply in many respects with the requirements of Uniform Civil Procedure Rules 2005 (NSW), r 51.18(1)(e) to state briefly, but specifically, the grounds relied upon in support of the appeal.
The first respondent is the Water Administration Ministerial Corporation (the Corporation) and the second respondent is the State of New South Wales (the State). The appeal is brought from orders made by a judge of the Land and Environment Court of New South Wales (the primary judge) on 15 February 2019. On that day, the primary judge made orders dismissing all of the claims made by Randren and Mr Andrews in the proceedings brought in the Land and Environment Court. However, costs were reserved for further argument and the question of costs was resolved by orders made by the primary judge on 16 May 2019.
A notice of intention to appeal was filed on 11 June 2019 and a notice of appeal was filed on 14 August 2019. If 16 May 2019 was the material date, the appeal was brought in time. However, the substantive orders from which the appeal is brought, being the orders made on 15 February 2019, were final orders disposing of all of the claims made by Randren and Mr Andrews in the Land and Environment Court. The time for filing a notice of appeal therefore began to run from that date. It follows that proceedings were commenced out of time. All respondents opposed the grant of an extension of time.
The only evidence relied on by the appellants in support of an extension of time consisted of an affidavit sworn by Mr John Andrews, the solicitor for the appellants, asserting, in a form that would probably have been rejected had objection been taken, that the appellants believed that, because the question of costs had not been resolved, time did not begin to run until 16 May 2019. The affidavit also asserted that the appellants wished to have the question of costs resolved before making a final decision as to whether or not to appeal from the orders made on 15 February 2019. The case for an extension of time was certainly not a strong one. On the other hand, none of the respondents pointed to any particular prejudice arising from the failure to file a notice of appeal or notice of intention to appeal in time. Accordingly, if there were any substance in any of the grounds of appeal, I would be disposed to extend the time for filing the notice of appeal.
A further impediment in the way of success for the appeal is to be found in the relief sought by the appellants. The normal consequence for success in judicial review of an administrative decision such as the decision of the Minister that is the subject of these proceedings is that the decision would be set aside. The impugned decision concerns the making of the Plan in 2016. The Plan affects many water users who have used or traded entitlements to water pursuant to the Plan and must be presumed to have planned and conducted their affairs on the basis of the Plan. However, no other person whose rights have been affected by the Plan was a party to the proceedings in the Land and Environment Court or in this Court.
In order to overcome that impediment, the appellants intimated that the relief that they sought would be limited to a declaration that the Plan was invalid to the extent of its application to the appellants in relation to Lake Paddock, such that the remainder of the Plan and its application to other persons would not be affected. However, if the exercise of the power to make a plan by the Minister was invalid, the Plan could not stand. It would be quite impractical for the Plan to be treated as valid as regards some citizens but invalid as regards other citizens. If any of the substantive grounds of appeal were to be established it would be impossible to formulate relief as proposed by the appellants.
[4]
Grounds of Appeal
One of the grounds relied on by Randren is that the primary judge erred in concluding that the appellants were time barred. There may be some substance in that ground. However, unless one of the other grounds of complaint made by the appellants is established, any error in that regard is of no consequence.
In the course of his reasons, the primary judge observed that the requirement in the Water Act, to apply water management principles in the priority order in which they appear in s 5 of the Act, did not require the Court to accept that, because one small water body and its unnamed linking channel had suffered from inundation, the relevant decision was flawed in an administrative law sense. His Honour considered that decisions under the Water Act are "made at a 'high level' as a matter of necessity". His Honour considered that for the legislation to function many decisions under the Water Act had, "of necessity", to be made at a "high level" rather than at the closer detail level contended for by the appellants. The principal submission relied on by the appellants was that the primary judge erred in determining the proceedings on the basis that the Minister made decisions at a "high level".
Section 9 of the Water Act provides that "it is the duty of all persons exercising functions" under the Act:
to take all reasonable steps to do so in accordance with and so as to promote, the water management principles of the Act; and
as between the principles for water sharing set out in s 5, to give priority to those principles in the order in which they are set out in s 5(3).
Section 9 also provides that "it is the duty of all persons involved in the administration" of the Water Act to exercise their functions in a manner that gives effect to the State Water Management Outcomes Plan. However, s 9 does not give rise to a directly enforceable duty of the character contended for by the appellants. I agree with Leeming JA that no directly enforceable duty flows from the water management principles themselves. Rather, the provision imposes a precondition to the exercise of a power.
The reference by the primary judge to the making of decisions at a "high level" may not be a particularly apt use of language. However, it is clear enough that his Honour was adverting to the nature of the decision under consideration. That is to say, the decision was in the nature of a political decision in so far as it was intended to benefit the community as a whole albeit that it might be to the detriment of a significant group of individuals. To that extent, the decision is not justiciable and is not subject to judicial review in the manner in which judicial review may be directed to an administrative decision that affects only a specific individual. The ground is not established.
The appellants also asserted that the primary judge erred in failing to find that the Minister had breached a duty to classify the water sources of the State. Section 7(4) includes unusual wording concerning the "intention of Parliament" in relation to the classification of water sources. I agree with Leeming JA that the provision conveys an expectation that, if the relevant Ministers failed in the expectation expressed by Parliament, they would be accountable to Parliament. The provision does not give rise to any obligation enforceable by a private citizen.
The appellants raised arguments concerning differences between regulated and unregulated water under the Water Act. They asserted that there was error in issuing a licence to Randren with a condition expressed in terms of unregulated water. The primary judge found that whether the relevant waters are regulated or unregulated, there was no material differential when it comes to the environmental protection concerns expressed by the appellants. His Honour found that there was no material differential with respect to obligations applying to decision-makers whether the water source concerned is within a regulated or unregulated system. There was no error in that reasoning.
Judgment by the primary judge was reserved on 2 August 2018. By notice of motion filed on 14 September 2018, the appellants applied to reopen so as to adduce further evidence. The reopening was opposed by the respondents. After a further hearing on 28 September 2018, the primary judge refused the application. His Honour considered that the proposed additional material was publicly available and that the appellants' witnesses should have been aware of it. No basis has been established for demonstrating that there was error on the part of the primary judge in the exercise of the discretion as to whether to permit a reopening.
I have had the advantage of reading in draft form the proposed reasons of Basten JA and Leeming JA for concluding that there is, ultimately, no substance in any of the other grounds pressed by the appellants. In those circumstances, I consider that the application for extension of time should be refused. It follows that the appeal should be dismissed as incompetent. The appellants should pay the respondents' costs of the appeal.
[5]
Endnotes
Randren House Pty Ltd v Water Administration Ministerial Corporation (No 4) [2019] NSWLEC 5 (Randren House) at [519].
Randren House at [527].
Randren House at [527].
Randren House at [528].
Written submissions, 26 July 2018, footnote 106.
See, eg, E Campbell and M Groves, "Polycentricity in Administrative Decision-Making", in Law and Government in Australia, ed M Groves (The Federation Press, 2005), ch 10, pp 213-240; R Creyke, M Groves, J McMillan and M Smyth, Control of Government Action: Text, Cases and Commentary (5th ed, Lexis Nexis Butterworths, 2019), at 7.42; M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, LawBook Co, 2017) at 7.170 and 7.190.
Tubbo Pty Ltd v Minister Administering the Water Management Act 2000; Harvey v Minister Administering the Water Management Act 2000 [2008] NSWCA 356.
Lon L Fuller, "The Forms and Limitations of Adjudication" (1978) 92 Harvard L Rev 353 at 396 (quoted by Creyke et al at 407).
[2008] NSWCA 231 at [6].
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: 19 February 2020
Parties
Applicant/Plaintiff:
Randren House Pty Ltd
Respondent/Defendant:
Water Administration Ministerial Corporation
Legislation Cited (10)
Civil Procedure Act 2005(Cth)
Administration Ministerial Corporation (First Respondent) State of New South Wales (Second Respondent) Minister Administering Water Management Act 2000(NSW)
Water Management Amendment Act 2004(NSW)
Minister Administering the Water Management Act 2000(NSW)
Paciocco v Australia and New Zealand Banking Group Ltd (2015) 236 FCR 199; [2015] FCAFC 50
Randren House Pty Ltd v Water Administration Ministerial Corporation (No 5) [2019] NSWLEC 63 Randren House Pty Ltd v Water Administration Ministerial Corporation (No 4) [2019] NSWLEC 5
Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) (2016) 95 NSWLR 157; [2016] NSWCA 379
Skalkos v T & S Recoveries Pty Ltd (2004) 65 NSWLR 151; [2004] NSWCA 281
Spence v State of Queensland [2019] HCA 15; 93 ALJR 643 at [294]
The King v The Governor of the State of South Australia (1907) 4 CLR 1497; [1907] HCA 31
The Movie Network Channels Pty Ltd v Optus Vision Pty Ltd [2009] NSWSC 132
Tubbo Pty Ltd v Minister Administering the Water Management Act 2000; Harvey v Minister Administering the Water Management Act 2000 [2008] NSWCA 356
Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422
Zippoz Pty Ltd v National Australia Bank Ltd [2013] NSWCA 113
Texts Cited: M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, LawBook Co, 2017)
Solicitors:
Andrews & Associates (Appellants)
Crown Solicitor's Office (Respondents)
File Number(s): 2019/181067
Publication restriction: Nil
Decision under appeal Court or tribunal: Land and Environment Court
Jurisdiction: Class 4
Citation: [2019] NSWLEC 5
Date of Decision: 15 February 2019
Before: Molesworth AJ
File Number(s): 2016/161999
The orders sought by the appellants
I shall deal with all those issues in turn. However, it is convenient immediately to address a larger issue.
The ordinary consequence of the judicial review of executive action is an order setting aside the decision or determination. The 2016 plan affects many users, and has done so for more than three years. Users will have used or traded entitlements to water pursuant to that plan in the past, and will have planned to conduct their affairs in the future on the basis of it. This has large consequences for the exercise of discretion, in the event that any ground for judicial review is made out, not to mention the entitlement of users whose legal interests are potentially affected by the challenge to be heard (see for example the regime ordered in Burwood Council v Ralan Burwood Pty Ltd (No 2) [2014] NSWCA 179).
Doubtless with this in mind, the appellants proffered the following orders (as amended during their submissions in reply) in the event their challenge was successful:
"2. ORDER pursuant to Land and Environment Court Act 1979 section 58(2)(a) reversing Order 6 of the Land and Environment Court made 15 February 2019 and Orders 1 to 3 made 16 May 2019.
3. DECLARE that the Minister's Plan for Murrumbidgee River Regulated Water Source [the instrument] dated 1 July 2016 made by the Third Respondent [the Minister] is invalid to the extent of its application to the following persons, subject-matters or circumstances in accordance with section 32(2) Interpretation Act 1987 namely to Parts 1 to 10 and Schedule 4 excluding from the bulk access regime in relation to the Yanco System classification of the risks and harm to the dependent ecosystem of Yanco Creek known as Lake Paddock, as well as Yanco Creek as it passes through Somerset Park, the protection and restoration thereof, and WAL 33313, such that otherwise the instrument is valid with the intent that the remainder of the instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected.
4. DECLARATION that the condition of WAL 33313 and approval 40CA 412879 allocating the licence to an unregulated entitlement is void and of no effect.
5. ORDER in the nature of mandamus that the Minister perform his duty with respect to the Minister's Plan dated 1 [July] 2016 under Water Management Act 2000 sections 5, 7, 9 and 50 by the making of a further such instrument or by amendment thereof.
6. ORDER that pending the making of the further instrument referred to in paragraph 3 that the Respondents take all reasonable steps either:
a. to restore the natural drying and wetting cycles for the dependent wetland ecosystem in Lake Paddock on Somerset Park owned by the Appellants; or
b. to establish by a dedicated irrigation canal a bypath around Somerset Park for regulated flows formerly flowing down Yanco Creek from the offtake at the Murrumbidgee River."
That circumscribed relief seeks to confine the plan's invalidity to its operation on Somerset Park. The appellants suggested that this Court return to the form of the orders, permitting the parties to be heard further, in the event that any of their grounds were successful.
The proposed orders as reformulated are problematic. If, as the appellants contend, the Minister's exercise of power making the 2016 plan should be set aside in its operation to Somerset Park because the Minister misconceived the law, or failed to take into account relevant considerations, or for any of the other bases advanced by way of judicial review, how could the plan survive in its application to every other water user but be invalid in its application to the appellants? And how could the Minister be compelled to take the reasonable steps mentioned in the proposed order 6, the gravamen of which was the expenditure of public funds to redirect water around Somerset Park?
Early on the first day, the Court raised these matters:
"BASTEN JA: You've got to find invalidity before you talk about remedial measures and the remedial measure will be to have the Minister reconsider the plan. I do not see how at the moment (a) you can set aside a plan which has been in operation and has been implemented over a number of years; (b) you can do so in the absence of dozens of people who will be affected if you do; and (c) what matters would then be put before the Minister if the plan were reconsidered?"
On the view I take, questions of relief do not arise. But as presently advised I fail to see how the large hurdles mentioned above (including those going to parties, the nature of the challenge to the exercise of power, and discretion) can be sidestepped by confining the relief in the manner proposed by the appellants.
If the exercise of power by the Minister when making the 2016 plan was vitiated because he misunderstood the law, or failed to take into account a mandatory relevant consideration (the damage to Lake Paddock as a dependent ecosystem), or any other of the bases upon which judicial review is sought, then the plan is not invalid merely in its application to part of the land owned by the appellants. It is invalid. That is how judicial review of a decision which applies over an area of land operates. The effect of judicially reviewable error is not to deny legal efficacy to a decision only insofar as it applies to the applicants who have brought proceedings.
Those principles may of course be modified by statute. For example, s 25B of the Land and Environment Court Act 1979 (NSW) provides for a court-ordered regime which, if it is complied with, may lead to the validity of a development consent which otherwise would be invalid. That section is not applicable, but Mr King placed reliance on s 32(2) of the Interpretation Act 1987 (NSW) and the relief which issued in Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513; [1997] HCA 38 where the High Court declared that certain proclamations were "invalid to the extent that [they] effected acquisitions of property from Newcrest other than on just terms".
Section 32(2) of the Interpretation Act provides:
"(2) If any provision of an instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the power conferred by the Act under which it is made:
(a) it shall be a valid provision to the extent to which it is not in excess of that power, and
(b) the remainder of the instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected."
Mr King submitted that:
"KING: ... s 32(2) is designed to give effect to an outcome which reflects the law, the principle of legality, I suppose, and at the same time to conserve the ongoing scheme to the fullest extent possible.
BASTEN JA: I think the principle of legality can mean almost anything you want it to mean, but I don't think it means that."
I interpolate that the so-called "principle of legality" was treated in Bropho v Western Australia (1990) 171 CLR 1 at 18; [1990] HCA 24 as being but one aspect of a more general rule of construction that clear words were required before legislation would be construed to achieve a particular result (most commonly, derogating from a "fundamental" common law rule). As Basten JA said, with the agreement of Macfarlan JA and me, in Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) (2016) 95 NSWLR 157; [2016] NSWCA 379 at [39], "[t]he label 'principle of legality' is apt to mislead", even when the issue is one of the construction of statutes. The term has no application to reading down an instrument such as a plan.
Still further, it is to be borne in mind that the Water Management Act unequivocally alters the position at common law concerning water, by s 393:
"393 Abolition of common law riparian rights
Any right that the owner of riparian land would, but for this section, have at common law with respect to the flow of any river, estuary or lake through or past the land, or to the taking or using of water from any such river, estuary or lake, is hereby abolished."
That reflects a distinctively Australian approach, quite different from what occurred in England and the United States, summarised in Broughton v Leslie [2019] NSWSC 827 at [62]-[65]. It is difficult to see how a principle of construction relating to interference with common law rights could have application to other provisions of the statute in light of s 393.
The respondents submitted that the plan was not severable in the way sought by the appellants. In part this was because of the nature of the plan, but it was also a consequence of the fact that there were two plans, one dealing with regulated water, the other dealing with water to which the other plan did not apply:
"DAVIDSON: ... there's also a problem with it insofar as the 2016 plan doesn't apply to the water access licence 33313. It's expressly, and your Honours have seen this, in respect of the unregulated system, nor does the regulated plan apply to Somerset Park or to Lake Paddock specifically within Somerset Park insofar as that's within the unregulated system and, to the extent that what is said is that the plan would be invalid in respect of the portion of Yanco Creek that passes through Somerset Park, that presents a significant problem of severability in circumstances where the portion of Yanco Creek that passes through Somerset Park has both upstream and downstream reaches. So this is simply not a plan that's capable of severability in the way that's proposed in proposed [order] 3."
The appellants' approach to severance is not supported by Newcrest. The High Court declared that proclamations which added a large area of land to Kakadu National Park in the Northern Territory were invalid to the extent that they effected acquisitions of mining tenements held by Newcrest other than on just terms. The appellants correctly observed that Newcrest was a case where a limitation on power led to a partial invalidity of an instrument. But that is not sufficient.
No reasons were given in Newcrest dealing with severance. Indeed, in litigation where a great deal was in contest, it appears so far as I can see that no issue was taken with the orders proposed. Certainly, the Court was not taken to any reasoning directed to the point. Decisions are only authority for what they decide, as opposed to what was held without argument. As Edelman J said in Spence v State of Queensland [2019] HCA 15; 93 ALJR 643 at [294], by reference to authority, "[Precedents] sub silentio without argument are of no moment".
There may well have been good reason on the particular facts of Newcrest to take that course. The question was whether a proclamation which added lands known as "Stage 3" to Kakadu was valid in its application to certain mining tenements held by Newcrest. The area comprising Stage 3 was defined by reference to other existing mining tenements. It presumably comprised numerous individual parcels of land. Notoriously, the national park entirely surrounds the Jabiru township and the Ranger uranium mine (the history of which may be seen in Margarula v Northern Territory of Australia (2016) 257 FCR 226; [2016] FCA 1018 at [11]ff).
I see no reason why s 15A of the Acts Interpretation Act 1901 (Cth) (which is similar to s 32(2) of the Interpretation Act) should not have been regarded as uncontroversially applicable in the Newcrest litigation. It is one thing to limit the area of land which may well comprise numerous individual parcels of land, and which is already delineated by existing mining tenements. It is another thing entirely to so in relation to a water source. It is difficult to see how one could invalidate the plan insofar as it applies to Lake Paddock, while leaving it operative in relation to the same body of water both upstream and downstream of Lake Paddock (disregarding at this point the problem that the plan did not address the unregulated water flooding Lake Paddock).
On one view, the difficulties concerning relief are a complete answer to the appeal. There is much to be said for taking a streamlined approach to resolving the balance of the appellants' submissions, especially in light of the fact that (as will be seen immediately below) they require an extension of time and their justification is deficient. Nonetheless, having heard full argument on the grounds of appeal, I shall address those grounds on their merits.
Extension of time for the appeal
Orders dismissing the appellants' claims were made when reasons for judgment were delivered on 15 February 2019. Costs were disputed and were ultimately resolved, after an exchange of submissions and a hearing on 14 May 2019, and on 16 May 2019: Randren House Pty Ltd v Water Administration Ministerial Corporation (No 5) [2019] NSWLEC 63.
A notice of appeal was filed on 14 August 2019. It purported to be brought as of right, a notice of intention to appeal having been filed on 11 June 2019. Both of those documents identified 16 May 2019 as a "material date". If that were the material date, then the appeal would have been brought in time.
In written and oral submissions in this Court, the appellants maintained that no extension of time was needed, because they brought a non-colourable appeal and it was, so it was said, only the final order as to costs which resolved the proceedings. They placed reliance upon Baulkham Hills Shire Council v O'Donnell (1988) 66 LGRA 367 (an appeal from an interlocutory injunction which was regarded as a step in the proceedings leading to a final judgment) and Carr v Finance Corp Ltd (1981) 147 CLR 246; [1981] HCA 20 (a decision on the finality of an order). The respondents maintained that an extension of time was required, and opposed any such extension being granted.
The right of appeal is conferred by s 58 of the Land and Environment Court Act 1979 (NSW). The time within which an appeal may be commenced is governed by Pt 51 of the Uniform Civil Procedure Rules. The rules define the "material date", relevantly, as "the date on which the decision is pronounced or given": r 51.2.
Mr King pointed to the form of the primary judge's order, "The Applicants' claims with respect to all the Impugned Decisions the subject of these proceedings are dismissed", and submitted that while the claims were dismissed, the proceedings remained extant. The distinction does not assist the appellants. The right of appeal created by s 58 is from the order or decision of the Land and Environment Court with which the appellants are dissatisfied. Orders dismissing all claims, including the challenge to Decision 8, were made on 15 February 2019. The appeal necessarily sought to set aside that order insofar as it extended to Decision 8.
The deferral of the question of costs altered neither the timing nor the character of the order dismissing the proceedings. It was a final order. After that date, the only outstanding issue was costs. The authorities concerning interlocutory orders on which the appellants relied are not to the point.
The 28 day period within which to file a notice of appeal commenced on 15 February 2019. It was open to the appellants to extend that time to a total of three months, by filing and serving a notice of intention to appeal within 28 days (the rules permitting that to occur are summarised in Olsen v Mentink [2019] NSWCA 279 at [5]-[12]). But the appellants did not exercise their right of appeal until August 2019. By that time they were some five months out of time.
Against the possibility that they required an extension, the applicants made an application in the alternative. They read an affidavit from their solicitor, Mr John Andrew Andrews. Conspicuous by its absence from that affidavit was any explanation of why no steps were taken in the three months after 15 February 2019, save to say that "[a]t all material times the Appellants believe that they had complied with the rules regarding commencement of the Appeal in a timely manner" and that "the costs issue was important to the Appellants because they wished to focus on that and have it resolved before finally deciding whether or not to appeal". No objection was taken to the form of the evidence.
Taking the most charitable view of the position, Mr John Andrew Andrews, when he stated that at all material times the appellants believed they had complied with the rules regarding commencement of the appeal, was implicitly conveying that both he and his clients wrongly thought that time had not started to run until costs orders had been made. It is to be emphasised that the onus lies upon the applicant seeking an extension of time to explain why the extension has come to be needed, and that the explanation should be provided candidly, rather than being left to implication. There is no evidence as to when, if at all, Mr John Andrew Andrews advised his clients that time did not commence until the costs orders were made. It is also less than satisfactory that no evidence was provided from the appellants themselves concerning the desire to resolve costs before determining whether to appeal; cf Skalkos v T & S Recoveries Pty Ltd (2004) 65 NSWLR 151; [2004] NSWCA 281 at [11]. There is force in the respondents' submissions that an extension should not be granted in the absence of a satisfactory justification for the delay: Zippoz Pty Ltd v National Australia Bank Ltd [2013] NSWCA 113 at [25].
That said, I did not understand the respondents to point to any prejudice consequent upon the additional time required within which to appeal, and the respondents correctly accepted that it was necessary in the exercise of the discretion to extend time to examine the prospects of the appeal. It will be seen that there may be merit in one of those grounds (Ground 11C), although success on that ground would not of itself be sufficient to affect the outcome.
Was the primary judge correct to conclude that the appellants were time-barred? (Ground 11C)
The primary judge found that the time period in s 47 of the Water Management Act precluded a challenge to the making of the 2016 plan. The primary judge noted that, in contrast with some of the earlier decisions challenged in the litigation before him, the respondents did not rely upon s 47 as an answer to the grounds challenging the 2016 plan. His Honour nevertheless stated that s 47 defeated the claim, but went on to address the challenges to the 2016 plan on their merits.
The primary judge noted the prohibition in s 47(3), which had the effect of precluding the availability of the discretion to extend time under UCPR r 59.10(4). His Honour accordingly said that it was "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)" because of the absence of power to extend time: at [521]. His Honour then distinguished between the summons and the points of claim, both of which were amended from time to time. The original and amended summonses pre-dated the making of the 2016 plan, while the further amended summons was only filed some 16 months later. That document was not contained in the appeal books. Of it, the primary judge said at [522] that it was "silent with respect to Decision 8", that there was a "vague reference to the Minister approving the 2016 [plan]" and that "[t]he brutal fact is that even if the Further Amended Summons (Judicial Review) of 13 November 2017 could be imaginatively recast, it was nevertheless 16 months after the expiry of the allowable statutory review period with respect to Decision 8." The primary judge noted in [523] that the Applicants' points of claim was filed within 3 months after the making of the 2016 plan, but then added:
"It is to be noted that this Points of Claim was filed within the three months of Decision 8 but, nevertheless, in the absence of an amended summons actually pleading by some reference, any reference, to Decision 8, the Court is only left with an Amended Summons filed September 2015 that could not have addressed Decision 8 (preceding, as it did, that decision by nine months)."
The primary judge considered the possibility of applying the power in s 65 of the Civil Procedure Act to allow an amendment after the expiry of the limitation period, but concluded that this was not available, because "[t]he Court did not have before it a summons within the relevant period, being 1 July 2016 to 1 October 2016, that, even by vague or insufficient drafting, sought to review Decision 8. In short, there was nothing relevant to allow [it] to be amended": at [524].
The essential reasoning of the primary judge may be found at [525]-[527]:
"The Summons is the initiating document which constitutes the originating process in judicial review, whereas a points of claim is merely an explanatory document setting out an expansion of the grounds which are usually first set out in brief form in the initiating summons. A vague points of claim, as in this case, might be criticised, but amending such a document does not constitute a commencement of a review which had not otherwise been commenced by the proper process. Apart from ensuring there was no doubt that the statutory time period set by s 47(2) was being met, the filing of a more specific review document with a more focused pleading was clearly required in the interests of justice, so that the Respondents could properly defend, and the Court could properly consider, the challenge.
Even if it was thought that there was some merit in allowing the Points of Claim filed 21 September 2016 to be amended and concurrently somehow treat the document as being an originating process with respect to Decision 8, it is to be noted that [d] in the Points of Claim, although it alludes to a July 2016 decision of the Minister, nevertheless speaks of the varying and extending [of] 'the Water Sharing Plan'. In the context of Decision 8 being with respect to the Minister's decision to replace the 2003 Regulated WSP with an entirely new water management plan, the 2016 Regulated WSP, it stretches allowable tolerance to accept that 'varying or amending' an extant WSP is the same subject matter as the approval of an entirely new WSP, which was actually the decision of the Minister in June 2016.
In conclusion, the Court has decided that the Applicants have sought to commence a review of Decision 8 out of time and that by reason of s 47(3) of the Water Management Act, the Court has no jurisdiction to extend the review period. On this basis alone, the Applicants' claim with respect to Decision 8 should be struck out."
The appellants submitted that the primary judge erred in concluding that their claim was barred by s 47, because that had not been pleaded, because counsel then appearing for the respondents had acknowledged that no time-bar case in relation to Decision 8 had been pleaded, and that in consequence they had been denied procedural fairness. They added that the result was contrary to UCPR r 14.14(3), claiming that the Land and Environment Court was bound by that rule which required that statutes of limitation be specifically pleaded.
This ground is not without force. The course taken by the primary judge in ruling against the challenge to Decision 8 was arguably adopted without adequate notice to the parties.
The issue of timing was raised by the primary judge, generally, at the commencement of closing submissions. Thereafter the parties exchanged submissions on that issue. However, s 47 was not relied on by the respondents as an answer to the challenge to the making of the 2016 plan. Indeed, a conspicuous aspect of the defence was the selective reliance upon s 47 in answer to other challenges to decision-making, but not to the making of the 2016 plan.
This was not a case where the litigation diverged from the pleadings; cf Banque Commerciale SA v Akhil Holdings Ltd (en liqn) (1990) 169 CLR 279 at 287; [1990] HCA 11. The respondents' selective reliance on s 47 reflected the way the trial was run. The transcript of the parties' closing submissions included statements by Mr King in relation to the challenge to the 2016 plan that "This is a decision which we say there's no defence based on any time issue". The respondents did not cavil with that submission, and drew to the Court's attention authority to the effect that a privative clause could not protect a decision affected by jurisdictional error. Rather than seeking to rely on any timing point in relation to the making of the 2016 plan, the Minister positively contended that the decision should be rejected on its merits. So far as the transcript made available to this Court reveals (which is much less than all of it), the primary judge did not confront the parties with the possibility that, contrary to their common position, he would reject all of the grounds challenging the 2016 plan by reason of s 47. I incline to the view that what was said in the extracts of the transcript relied upon by the respondents (pp 420-421, 516 and 627-629) fell short of what is required in the particular circumstance of this litigation. Normally little is required to alert parties to the need to explain why a court has jurisdiction. But here the appellants were challenging no fewer than eight decisions, mostly made years before the proceedings were commenced, while "Decision 8" was made after the proceedings were commenced.
Both parties were surprised at the Court's decision to dismiss this aspect of the applicants' case on the basis of s 47. In this Court, the respondents candidly submitted:
"DAVIDSON: The view that his Honour took and, as I say, it wasn't a point that the respondents took below and it's not a point that I take here, was that the summons would have had to have been amended because that was properly the document upon which the case was proceeding ..."
Although this ground is not without force, I prefer not to express a concluded view as to whether it was made out. It is difficult to do so, because the record made available to this Court is incomplete. It is not necessary to do so, because any denial of procedural fairness alleged was a limited one, namely, one confined to that aspect of the judgment based on s 47, and the appellants accepted, very properly, that they needed to succeed on some or all of their other grounds of appeal in order for there to be any effect on the orders setting aside their challenge to Decision 8. As will be seen below, there is insufficient merit in any of those grounds to warrant an extension of time.
Incorrect adoption of "high level" construction of Act? (Grounds 3, 5 and part of 6)
This was the principal submission advanced in writing and orally.
The appellants' written submissions focussed upon the statements by the primary judge that the Act operated only at a "high level". Representative of these is the reasoning at [555]:
"Given the emphasis in the legislation to apply the water management principles in the priority order in which they appear in s 5(3) of the Water Management Act, and the clear intent of the 2016 Regulated WSP to adhere to that same emphasis (see, for instance, Pt 2 of that WSP), when considering a decision in the context of that priority given to the water management principles, is the Court to accept that because one small water body (the water body in the Lake Paddock) and its unnamed linking channel have suffered from inundation, that the Minister's Decision 8 was flawed in an administrative law sense? No, is the answer. In short, the Court believes that decisions under the Act are made at a "high level' as a matter of necessity. Although the Applicants' counsel accused the Respondents of improperly asserting a "high level duty" approach to decision-making, which in fact was an overstatement of the Respondents' propositions which were restricted to the definition of "water source" under the Water Management Act, I am of the view that, for the legislation to function, of necessity many decisions under that Act have to made at a "high level", rather than at the closer detail level contended by Mr King for the Applicants."
The appellants submitted that Mr Andrew Andrews and his son Paul had specifically drawn to the department's attention damage being caused by upstream storage releases and uncontrolled flows, such that the Minister was aware, when making the 2016 plan, not only of the wetland but also of the damage caused to it by flows. They said that "the key facts of resulting damage and causation the Respondents did not seriously contest, and which the Court accepted". The consequence was said to be "that if the learned Acting Judge erred in his construction and application of the Act, then the Minister misunderstood the statutory obligations, proceeded upon an error of law, took into account an irrelevant consideration and acted unreasonably, rendering the decision in the Plan invalid on each ground, with consequential declaratory relief and mandamus".
The general theme in the appellants' submission was that in the ordinary course, while Lake Paddock flooded from time to time, there were also times when the creek ran dry or almost dry, so as to permit grasses to grow. That no longer happened under the 2016 plan and its predecessor. The consequence was harm to the environment, namely, Lake Paddock.
The respondents denied this submission at the factual level, but also said that even if Lake Paddock had been damaged as the appellants contended, there was no judicially reviewable error.
This Court was not taken to compelling evidence concerning damage to the environment caused by the Minister's plan. Photographs of what appeared to be dead or dying river gums fall short of what is required, although I am conscious that there was other evidence as to environmental damage to which the Court was not taken. Of course, establishing damage is one thing, while establishing that it was caused by the 2016 plan is another. Indeed, there is an anterior problem in establishing that the Minister's plan caused the sustained flow of water down Yanco Creek. This was repeatedly raised with the appellants, who ultimately accepted that the plan merely authorised, but did not compel, such amounts of water flowing through Yanco Creek. Another factual issue was that it seemed that Randren had never complied with a condition upon all of its licences over the last few decades to construct a regulator on the diversion channel. It seems at least possible that had that occurred, such inundation of which the appellants complain would have been lessened.
I have expressed the issues in the previous paragraphs at a level of generality, because it was neither possible nor necessary to attend to the facts in detail. There was a vast amount of documentary and testimonial evidence, much not included in the appeal books. And it is to be firmly borne in mind, after all, despite the rhetoric in the appellants' submissions invoking protection of Lake Paddock, that the proceedings are an appeal from an application in the nature of judicial review. Factual matters are not ordinarily at the forefront of such litigation. Indeed, the fact that the litigation extended for some 10 days is an indication that the limits of the jurisdiction of judicial review may not have been observed.
It will be convenient to resolve this appeal by making the assumption, favourable to the appellants, that there was damage as claimed, caused as a consequence of the Minister's plans, from 2004, and to put to one side the effect of Randren's non-compliance with the conditions on its licences.
The appellants' submissions referred to the first water management principle that "water sources … and dependent ecosystems should be protected and restored". It was said in writing that the Lake Paddock wetland was both a water source and a wetland or dependent ecosystem which was being degraded by continuous inundation, which was also contrary to principles (d) and (f). However, oral submissions proceeded on the basis that Lake Paddock was an ecosystem which was dependent upon a water source (namely, Yanco Creek) but was not itself a water source. I regard that as the correct approach. In particular, I think that it is clear that neither Lake Paddock nor the man-made diversion channel from Yanco Creek into Lake Paddock is a "water source". Water there is not part of Yanco Creek; it is an artificial diversion from Yanco Creek.
The inundation of Lake Paddock was also said to be contrary to s 5(3), because the water sharing failed to "protect the water source and its dependent ecosystem" and to the obligation in s 5(4) to avoid or minimise land degradation.
The appellants advanced as an additional basis of error submissions based on ss 7 and 20 and the requirements to establish a bulk access regime. They emphasised the mandatory language in those provisions. It was submitted that Yanco Creek was a water source, and the Lake Paddock dependent ecosystem was in 2016 "at risk" within the meaning of s 7(3)(a), (4)(b) and (5) which obliged the Minister to establish a bulk access regime.
Mr King identified eight steps in his oral submissions that there was error in the primary judge failing to find that the Minister had breached a duty imposed by the Act, as follows:
1. First, the statute conferred power on the Minister to make a Minister's plan or a management plan, and the Minister chose to make a Minister's plan.
2. Secondly, the Minister in 2016 made a plan for a single water source, called in the plan "the Murrumbidgee Regulated River Water Source". It followed that it was a plan falling within s 50(1)(b), for any water management area or water source.
3. Thirdly, the Act "established relevantly two and probably three facts which are jurisdictional in nature and largely in exercise of the statutory power or duty in this case in respect of such a plan, namely, the existence of a water source, and that's identified in cl 4, and one of the more dependent ecosystems of it." Mr King confirmed that there had to be a water source in order to make a plan, but the position in relation to dependent ecosystems was less clear:
"BASTEN JA: ... I'm just trying to understand the legal argument you're putting. What you want to say, as I understand it, is that Lake Paddock is part of a dependent ecosystem.
KING: Yes. Is a dependent ecosystem of Yanco Creek.
BASTEN JA: It's part of it. There will be lots of dependent ecosystems, I suppose.
KING: The finding of the judge goes that far and that's sufficient for us.
BASTEN JA: You've put a point that this was a jurisdictional fact; that's what I'm troubled by because I'm not sure where it goes, but the existence of Lake Paddock isn't a jurisdictional fact that I can see at the moment."
1. Fourthly, Mr King said that "the area or size of the water source is a choice for the Minister in making his plan, but the dependent ecosystem, the number of them, are clearly not a matter of choice for the Minister, because that would mean the Minister could decide for himself capriciously the level of protection such places receive under the Act and under the plan."
2. The fifth point was that the statute made no distinction between higher and lower order duties.
3. Sixthly, the duties to protect and restore, found in ss 3, 5 and 9, both the water system and the dependent ecosystem referable to a Minister's plan was independent of the size of the water source or the size of the dependent ecosystem. It was put orally thus:
"There's no statutory qualification of that duty that the bigger a plan area chosen by the Minister is, the lower his or her duty is and those implementing it."
1. Seventhly, the duty of the Minister when formulating a plan with respect to water sharing was to give priority "to the principle that sharing of water must protect the water source and its dependent ecosystems over any other right, in particular, the right of all licence holders taking or sharing water to extract water under access licences".
2. Eighthly, the statute's intent and purpose was to invalidate the exercise of power by a Minister or anyone else which breaches the duties. The 2016 plan was therefore invalid subject to the operation of s 32(2) of the Interpretation Act because it failed those tests.
Mr King added that there was also "a qualified duty upon the Minister ... actually to protect and restore degraded assets, which on the evidence [Lake Paddock] is".
It is convenient to deal with the oral submissions first. Of the eight propositions, the first and second propositions may be accepted. The third turns on Lake Paddock being a dependent ecosystem (or part of a dependent ecosystem) of Yanco Creek, and this being jurisdictional. The fourth proposition is linked to the third. This was elaborated thus:
"BASTEN JA: ... [C]orrect me if I'm wrong, I'm just trying to understand the structure of the case - you say that the Minister's decision in making the plan was invalid because he failed to take into account the effect of some aspect of the plan on Lake Paddock; is that right?
KING: Not just Lake Paddock, the degraded ecosystem, which is Lake Paddock, the Yanco Creek, including its banks and beds, as I've shown you in the photographs.
BASTEN JA: As it runs through Somerset Park?
KING: As it runs through Somerset Park."
The submission equates Lake Paddock with a dependent ecosystem, and asserts that this is a jurisdictional fact. As Mr King said,
"Then our fourth point is that the area or size of the water source is a choice for the Minister in making his plan, but the dependent ecosystem, the number of them, are clearly not a matter of choice for the Minister, because that would mean the Minister could decide for himself capriciously the level of protection such places receive under the Act and under the plan."
I do not agree that Lake Paddock is a dependent ecosystem. I also do not agree that this is a jurisdictional fact.
First, the Water Management Act does not define "ecosystem". It is quite distinct from an area of land. An ecosystem comprises an interrelationship between populations of living things and the environment.
An element of the ecosystem extending to Lake Paddock are aquatic animals such as fish. Their habitat is not confined to Lake Paddock. Very few if any populations of fish spend their lives in such a circumscribed area. It is possible that there are smaller plants and aquatic organisms which spend their lives within Lake Paddock. But it certainly has not been shown, and I would very much doubt, that there are populations which could sensibly be regarded as confined to Lake Paddock. The natural world does not respect cadastral boundaries.
Secondly, it is clear from the Act that the ecosystems are associated with (s 3(b)) or dependent upon (s 5(2)(a) and (d)) the water sources. The Act is about managing water, and proceeds on the basis that a consequence of good management of water sources will be to enhance the ecosystems associated with or dependent upon those water sources.
The point of the appellants' submission that the existence of a dependent ecosystem in (or comprising) Lake Paddock was a jurisdictional fact was to advance the submission that a precondition to the exercise of the s 50 power was not established. But whether something is a jurisdictional fact is a question of construction: Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 at [6]. Textual and contextual considerations all point in the other direction:
1. The power is contained in s 50. That section does not mention ecosystem. It authorises the making of a Minister's plan for any water source or part of any water source.
2. The references to ecosystems in the water management principles, and in some of the core and additional principles which a plan must and may contain, do not elevate an ecosystem into a jurisdictional fact. How can there be some unstated obligation to identify and assess damage to an ecosystem as a condition upon the power in s 50?
3. Thirdly, the existence of an ecosystem may be contestable, and even if its presence is clear, the metes and bounds of the area occupied by it is almost inevitably contestable. What are the precise boundaries of a rainforest or an alpine ecosystem? How much of a water source is occupied by an aquatic ecosystem is surely at least equally contestable. And the statute refers to a dependent ecosystem. All those elements of contestable judgment inherent in the term tell against its amounting to a jurisdictional fact.
Like most decisions which apply over a large area, there are apt to be winners and losers from any plan. In Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10 at [126], Spigelman CJ reproduced, in the course of dismissing an appeal from another application for judicial review of decisions under the statute, what the trial judge, McClellan CJ of the Land and Environment Court had said:
"It was for the Minister, and not the Court to balance the desired environmental outcome, and the chosen method of achieving it, with the beneficial and adverse social and economic consequences."
Further, it cannot be the case that an applicant can point to a miniscule part of a water source, and say that the water management principles require regard to be had to the effect of a Minister's plan upon that part.
The problem was confirmed during submissions:
"BASTEN JA: If there's environmental water going down, is that the water which should not be going down? Somebody has got to make choices about the end use of water and the volumes to go through different creeks, rivers, channel systems and how they're to be allocated.
KING: Yes, of course, and that was the point that was raised in the Nature Conservation case to which I'll take you.
BASTEN JA: Unless there is some aspect of this plan taken as a whole, which is manifestly unreasonable, I don't see how it's reviewable at the instance of an individual landowner who may suffer some detriment as a result of giving effect to the plan, on one view, although I still don't understand how it happens.
KING: That would mean that the common law would give much greater protection to farmers like my clients than the Water Management Act ..."
The appellants advanced the point with rhetoric ("It's not a minor water body. It's not a water body at all, it's a dependent ecosystem that's been damaged. Either that matters or it doesn't. We say it does matter and the Minister failed to prioritise that concern"). I do not accept Lake Paddock is a dependent ecosystem, and even if it were, I do not accept that the appellants are entitled to insist that the Minister prioritise their concern over the hundreds or thousands of other aspects of the water source which would be affected by the plan.
The submission continued by reference to s 9:
"Section 9 is in the clearest terms a mandate: 'It is the duty of all persons exercising functions under this Act' to do two things. No dilution there; no qualification, or conditioning. The requirement is 'to take all reasonable steps to do so in accordance with, and so as to promote, the water management principles ...'. The word 'so' is important: it refers to every exercise of function including under section 50 to make a Minister's plan for Yanco Creek and under section 7 to make a bulk access regime. This relates to each water source, including the Lake Paddock wetland, which is also as his Honour found a dependent ecosystem of Yanco Creek, itself a water source as defined in the Dictionary to the Act."
The appellants relied upon evidence said to establish "the several practical and reasonable steps the Minister could and should have taken available to him in 2016". These steps included considering ways of varying the flows to restore natural conditions, taking the minimal steps "in the Department Business Case which emerged as evidence after judgment was reserved", declining to defer matters in 2016 until the water resource plans had been made in July 2019, following up with an enquiry as to the damage being done along Yanco Creek from uncontrolled flows, giving consideration to some interim measure under the class 4 powers in s 336. According to the appellants:
"it would seem on its face to be unsatisfactory for the Minister, with the statutory duties he had, to make 3 x 10 year plans across a suite of water sources as one job lot, on a one size fits all type approach, and on the basis that in 3 years ie by 1 July 2019 it would be replaced under consultation with the Commonwealth by MDBA Water Resource Plans. That is not a sufficient excuse in the meantime to do nothing, nor fail to protect or restore what are known to be damaged water sources and dependent ecosystems as might have happened - especially as it is now known, no Water Resource Plan was made by 1 July 2019." [footnote omitted]
Contrary to these submissions, the Act does distinguish between the water management "principles", which inform the exercise of statutory powers, the duty imposed by s 9 and the particular rights and obligations which will arise as a consequence upon the exercise of the statutory powers.
Turning to the "duty" imposed by s 9, its nature is left unstated. Who (if anyone) may enforce it and what the sanctions are for its breach are not expressed.
Secondly, as noted above the Act itself sets out the principles, and does so in general terms, as distinct from rules which will be either obeyed or disobeyed. Indeed, the obligation in s 9(1)(b) to "give priority" to some principles as opposed to others is confirmatory of the fact that they point in different directions, and that adhering to them is apt to turn upon taking them into account to inform the exercise of a discretion, rather than their directly imposing norms of conduct.
Thirdly, it will be seen that the duty is to "take all reasonable steps" so as to exercise functions "in accordance with, and so as to promote" the principles. Although the appellants emphasised the duty to take "all" reasonable steps, the duty is nonetheless qualified by reason of the general language of many of the principles.
Fourthly, the "duty" in s 9 is expressed to apply to "all persons exercising functions under this Act". Thus it applies to the Minister exercising functions at a State-wide level (such as making a plan), and to a departmental officer contemplating enforcing a condition on a particular access licence.
This Court said of the Act in Tubbo Pty Ltd v Minister Administering the Water Management Act 2000; Harvey v Minister Administering the Water Management Act 2000 [2008] NSWCA 356 at [74] that:
"The statutory power is to be exercised in the public interest, for purposes of serving a wide range of broadly expressed policy objectives of a character that overlap, conflict and are incommensurable with each other".
These considerations compel the conclusion that the "duty" in s 9 is not justiciable in the sense urged by the appellants. That is scarcely a surprising result. Duties which have political but not legal force are not unknown. Indeed, they are sufficiently common that they have a name: duties "of imperfect obligation". Barton J once observed that "duties of imperfect obligation are familiar to students of Constitutional Law": The King v The Governor of the State of South Australia (1907) 4 CLR 1497 at 1511; [1907] HCA 31; more recent decisions are reviewed in Hicks v Ruddock (2007) 156 FCR 574; [2007] FCA 299 at [62]-[66].
Not only does s 9 not give rise to a directly enforceable duty in the manner for which the appellants contended, but also no directly enforceable duty flows directly from the water management principles themselves.
Those conclusions do not entail that s 9 lacks all content. The better way of analysing the "duty" imposed by s 9 is as flagged during argument:
"BASTEN JA: This is not imposing a duty at all, is it? It's imposing in very general terms a precondition to the exercise of a power, so that if you could establish in some way that the precondition had not been satisfied, then maybe invalidity would follow, but isn't that the language? If in the opinion of the Minister is a similar sort of - "
But no such case was sought to be made out. In any event, there is nothing to suggest that the 2016 plan, which was a compromise between agricultural users but also incorporated significant environmental flows, did not accord with and promote the water management principles.
Turning to Mr King's eighth proposition made orally, let it be assumed that s 9 creates a duty enforceable at the instance of persons such as the appellants. The ultimate question is whether a breach of that duty invalidates the exercise of executive power in the making of a plan. That Project Blue Sky question is one of statutory construction. There is nothing in s 9 or anywhere else in the Act to suggest that even a serious contravention of the generally expressed "duty" in s 9 spells invalidity of the exercise of some other power or performance of some other function.
The appellants' written submissions take the matter no further. In substance, they rely on an enforceable duty, either based on s 9, or else directly from the water management principles. What has already been said above deals with those submissions. Insofar as they rely on s 7 and the requirement to make a bulk access regime, they are addressed immediately below.
Failure to classify water sources pursuant to s 7 (Ground 4)
Neither the existence of a duty under s 7, nor its breach, was pleaded. It was asserted in a single paragraph of the appellant's opening submissions (paragraph 64) supplied in advance of trial:
"The Duty under Section 7: The initial duty of the State in relation to water sources, and practicably the starting point for planning under the framework described above, is to classify them, whether they are 'at risk' or not, whether they are 'subject to stress' and their 'conservation value' : see subsection (3). Then depending on that classification to then prepare a bulk access plan to address those values with a view to being included in a Minister's plan: see subsections (4) and (5). In this case the water source, being Yanco Creek and its dependent ecosystem in the Lake Paddock were clearly 'at risk' by December 2000 when WMA came into force and clearly so by 2012 when 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."
It was accepted at the bar table that a call had been made for documents amounting to a gazetted classification of the State's waters during the trial, in answer to which nothing was produced. The circumstances in which that occurred (and to what issue if any the call was directed) were unexplained. The respondents said from the Bar table that the call was narrowly framed, and the response did not mean that substantial amounts of work in classifying the State's water sources had not taken place. The transcript of that part of the trial when this occurred was not in the appeal books.
Section 7 contains unusual language of Parliament's "intention". The appellants argued that s 7 was mandatory, the respondents that it was discretionary.
I struggle to see what realistically could turn on this question for the outcome of the appeal. I am conscious of the fact that the appellants challenge a Minister's plan made more than a decade after the time when, on their case, the Minister should have classified the State's water sources. I am also conscious that insofar as one reason to classify is for bulk access regimes to be established, the 2016 plan made provision for a bulk access regime.
I note the following. First, as was put during submissions, it was far from clear that the Act would commence within 12 months of its assent. The bill was significantly amended during its passage through Parliament. Indeed the first draft did not contain the requirement in s 7(2) for the concurrence of the Minister for the Environment, nor the statement that it was Parliament's intention that the classification occur within 12 months. (See the "first print" on the New South Wales Parliament website; the concurrence of the Minister for the Environment was introduced in the Legislative Council by an amendment proposed by Mr Jones MLC to which the government did not object: Parliamentary Debates (LC), 23 November 2000, p 10727.) Accordingly, the second reading speech which was supplied to the Court by the appellants was of little assistance.
Secondly, parts of the Act - including Parts 2 and 3 of Chapter 3, which are central to the submissions in this appeal about the "conversion" of licences under the Water Act 1912 - did not commence until 1 July 2004, and then only after they had been amended by the Water Management Amendment Act 2004 (NSW): see Government Gazette No 110 of 1 July 2004, p 5002, and Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10 at [28]-[29].
Thirdly, as was put by the presiding judge during submissions, it is difficult to discern a legislative purpose that a classification which occurred, say, 15 months after the Act was assented to, should be invalid. Still further, what if the Minister administering the Act, and the Minister for Climate Change and the Environment had disagreed? There is no mechanism for resolving any disagreement, let alone doing so within the 12 months specified in s 7(4).
Those considerations lead to an explanation for the unusual wording in s 7(4) concerning the "intention of Parliament". The subsection conveys and formalises an expectation. If either or both of the two relevant Ministers disappointed that expectation, they would be accountable to Parliament. But as presently advised I would not regard it as establishing a duty enforceable by a private person.
It is clear from the foregoing that the Court did not receive full submissions on this point. It is sufficient for present purposes to conclude, in circumstances where many considerations point against the existence of an enforceable duty (and even if there were a duty which was breached, many considerations point against it having any legal consequence to the executive action which occurred more than a decade later) that this issue at best provides scant basis for granting the appellants the extension of time required to bring this appeal.
Conversion (arguably implicit in Grounds 9 and 11D)
In order to address the appellants' complaints concerning the conditions upon WAL 33313, it is necessary to summarise the history of that licence, in light of which the effect of the transitional provisions applicable when it became governed by the Water Management Act may be assessed.
Randren applied for a licence under the Water Act 1912 in October 1984, describing that "up to 400" hectares would be irrigated by this work. The application also referred to "flood and/or spring irrigation from swamp (not a lake)". A licence was granted under s 12 of the Act in April 1986, 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 bench mark established on a gum tree on the left bank of Yanco Creek near the work 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 dropboards 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 of land by floodwaters."
5. Condition 11: "The location of the diversion channel as shown on the plan retained in the office of the Water Resources Commission shall not be altered."
6. Condition 12: "The works shall be constructed and maintained in such manner as will ensure their safety and as will preclude the possibility of damage being occasioned by them or resulting from them to any public or private interest."
The licence identified 400 hectares in nominated portions of land for irrigation. It did not contain any restriction as to the volume of water. The hand-drawn plan seemingly accompanying the application (which referred to water levels from May and June 1982 as well as marking a gum tree on the creek bank, which bears what appears to be a departmental stamp and signature and which presumably corresponds with the plan in condition 11) indicates a diversion channel from the northern bank of Yanco Creek. There is some obscurity in the language of the conditions relating to the timber or concrete regulator, but the appeal was conducted on the basis that the device would prevent inflows into the diversion channel except when surplus flows had been declared to be available. The appeal was also conducted on the basis that the regulator required by condition 7 was never constructed.
The licence was renewed in October 1991 and again in 1996, subject to the same conditions.
The gravamen of the current complaint is reflected in a file note made more than 22 years ago, on 10 February 1997, when Mr Andrew Andrews visited the department. The file note records:
"It seems that Mr Andrews' main concern now revolves around the fact that the lagoon hardly ever dries out and trees are dying.
I do not believe that irrigation is a priority now.
Mr Andrews stated that he wants the situation as it was. I informed Mr Andrews that irrigation demand would see high flows during irrigation seasons from now on.
He intimated that it should be the Dept who should build the bank to preclude regulated flows and allow flood flows to recede.
I stated that he should put a claim in writing but stressed as long as the licence was maintained it would be his responsibility. If the licence were relinquished, then [the Department] would perhaps do something on environmental grounds." (emphasis in original)
In June 1997, Mr Andrews confirmed that he wished not to cancel the licence but to maintain the area authorised for irrigation purposes and the works presently covered by his existing licence as is.
The licence was once again renewed in 2001. At this time there was correspondence concerning the failure to comply with the condition to construct a regulator and steps were taken towards refusing to renew the licence. It seems that the licence was in fact only renewed in September 2002, although the renewal was backdated to the expiry of the previous licence, 23 April 2001.
In 2002, Mr Andrews was told that his licence was a "special additional" licence which had not received an allocation, and that it was to be converted to supplementary licences under the new Water Management Act 2000, and would receive allocations based on the history of use. On the basis that he had not used the licence in the period between 1991 and 1996, the usage on this licence would be zero.
The licence renewed with effect from 23 April 2001 seems not to have mentioned the estimated quantity of water to be taken. A letter dated 5 July 2007 also anticipated that the licence would contain a zero volumetric allocation.
By letter dated 22 February 2011, the department advised that the licence would expire on 22 April 2011, and invited an application to renew it. There followed a series of correspondence repeating the invitation to apply for a renewed licence (on 28 July 2011, 17 October 2011 and 6 December 2011). From time to time, Mr Andrews responded that he was awaiting advice regarding the matter. Eventually, by letter dated 6 February 2012, the department referred to "numerous telephone calls and at least one facsimile" in the previous three months and advised that it was the department's intention to refuse to renew the licence.
The details of what occurred over the next year may be passed over, because following the commencement of proceedings in the Land and Environment Court, short minutes of order were made by consent on 22 August 2012 ordering the Water Administration Ministerial Corporation to renew the licence and noting an agreement that Randren would within 14 days apply to vary the renewed licence by amending condition 13 and providing for a term containing a volumetric allocation of 1000 Ml, and that within 28 days of receipt, the Water Administration Ministerial Corporation would grant the application including "any linked modification".
The orders also noted the agreement that within three months thereafter, the applicant would "install the meter referred to in condition (1) and on any pump, and the regulator referred to in condition (7)".
By letter dated 28 August 2012, a departmental officer enclosed a renewal certificate for the licence. The certificate, as reproduced in the appeal books, is illegible, but appears not to contain a volumetric allocation. The application for modification of the renewed licence was made by letter dated 29 August 2012 and 3 September 2012. Finally, under cover of a letter dated 28 September 2012, a further notice giving effect to the amendments and containing a volumetric allocation in condition 10 which was in the following form was provided:
"Subject to any access or flow condition contained in the licence, the holder of the licence, may in any one year commencing 1 July, divert up to the licenced volume of 1000 megalitres of unregulated water for irrigation use" (emphasis added).
It is important to note that the licence including a volumetric allocation was issued at the end of September 2012. The "Water Management (Application of Act to Certain Water Sources) Proclamation (No 2) 2012" was made on 3 October 2012 pursuant to ss 55A and 88A of the Water Management Act. Clause 2 provides that it commenced on 4 October 2012. Clause 3 provided:
"3 Application of Parts 2 and 3 of Chapter 3 of Water Management Act 2000 to certain water sources, access licences and approvals
(1) It is declared that Part 2 of Chapter 3 of the Act applies to the prescribed water source, and to each water source to which a prescribed water sharing plan applies, in relation to all categories and subcategories of access licence for any such water source other than floodplain harvesting access licences.
(2) It is declared that Part 3 of Chapter 3 of the Act applies to the prescribed water source, and to each water source to which a prescribed water sharing plan applies, in relation to all approvals for any such water source other than drainage work approvals, flood work approvals and aquifer interference approvals.
(3) In this clause:
prescribed water sharing plan means each of the following plans:
...
(d) the Water Sharing Plan for the Murrumbidgee Unregulated and Alluvial Water Sources 2012,
...
prescribed water source means the part of the Murrumbidgee Regulated River Water Source referred to in clause 4 (3) (b) of the Water Sharing Plan for the Murrumbidgee Regulated River Water Source 2003 (as inserted by the Water Sharing Plan for the Murrumbidgee Regulated River Water Source Amendment Order 2012), excluding the water referred to in clause 4 (4) of that Plan (as inserted by that Order).
the Act means the Water Management Act 2000."
The newly issued licence, now with a volumetric condition, was expressed to permit the diverting of unregulated water. But the appellants' challenge to that condition may for immediate purposes be put to one side. Either the licence applied to unregulated water to which the 2012 plan (unregulated and alluvial water) applied, or in some way it applied to the 2003 plan (which applied to regulated water). Subclauses 3(1) and (2) of the Proclamation operate indifferently upon those possibilities. In either case, the effect of cl 3(1) is that Part 2 of Chapter 3 of the Act applied to access licences other than floodplain harvesting access licences, and the effect of cl 3(2) is that Part 3 of Chapter 3 of the Act applied to all approvals (other than presently immaterial exceptions).
The application of Parts 2 and 3 of Chapter 3 of the Act engaged the transitional provisions, converting the licences and approvals under the Water Act to licences and approvals under the Water Management Act.
Schedule 10 of the Water Management Act was titled "Schedule 10 Conversion of former entitlements to access licences and approvals". The Schedule applied to licences and approvals which were the subject of a proclamation under ss 55A or 88A. Clause 2 defined "appointed day" and "entitlement" relevantly as follows.
"appointed day means:
(a) in relation to a category or subcategory of access licence to which Part 2 of Chapter 3 applies or an entitlement from which such an access licence arises, the day appointed under section 55A in relation to that category or subcategory of access licence, or
(b) in relation to a type or kind of approval to which Part 3 of Chapter 3 applies or an entitlement from which such an approval arises, the day appointed under section 88A in relation to that type or kind of approval.
entitlement means:
(a) a licence, permit, authority, irrigation corporation licence or group licence referred to in Part 2 of the 1912 Act, or
(b) a right to take and use water referred to in section 38B of the 1912 Act, or
(c) a licence referred to in Part 5 of the 1912 Act, or
(d) an approval referred to in Part 8 of the 1912 Act, or
(e) a water management licence under Part 9 of the 1912 Act, or
(f) a permit under Part 3A of the 1948 Act, or
(g) an irrigation corporation licence under the 1994 Act, or
(h) any power under section 12 of the Water Administration Act 1986 or section 8 of the 1912 Act that, immediately before the appointed day, was exercisable by any person pursuant to an agreement between that person and the Ministerial Corporation, or
(i) any right to take water from an unlicensed water bore (being a water bore constructed as referred to in section 112 (1) (b) of the 1912 Act) that was in force immediately before the appointed day, or
(j) any arrangement that, immediately before the commencement of this Schedule, was in force between the Inverell Shire Council and the Ministerial Corporation, or
(k) any other right, interest, privilege, permission or authority that is declared by the regulations to be an entitlement for the purposes of this clause."
Clause 3 of Schedule 10 effected the conversion. That clause relevantly provided:
"3 Access licences and approvals arising from former entitlements
(1) Subject to this Schedule, an entitlement that, immediately before the appointed day, was in force under the 1912 Act, the 1948 Act or the 1994 Act is taken to have been replaced:
(a) to the extent to which it entitles any person or body to take a specified quantity of water, by an access licence held by that person or body (subject to such of the conditions of the entitlement as are applicable to an access licence):
(i) for the quantity of water so specified, or
(ii) if the relevant management plan, and regulations made for the purposes of this paragraph, indicate that a different quantity of water calculated in accordance with a specified methodology may be taken under an access licence issued in relation to the water management area or water source to which the management plan applies - for a different quantity of water calculated in accordance with that methodology, and
(b) to the extent to which it entitles any person or body to use a specified water management work, by a water management work approval held by that person or body in respect of that work (subject to such of the conditions of the entitlement as are applicable to an approval of that kind), and
(c) to the extent to which it entitles any person or body to use water on any land, by a water use approval held by that person or body in respect of that land (subject to such of the conditions of the entitlement as are applicable to an approval of that kind), and
(d) to the extent to which it entitles any person or body to carry out a specified activity, by an activity approval held by that person or body in respect of that activity (subject to such of the conditions of the entitlement as are applicable to an approval of that kind).
(2) ..."
It will be seen that for every licence under the former legislation, the clause deemed there to be an access licence and an approval under the Water Management Act; the former related to the taking of water, the latter (relevantly) to the using of a work.
The Minister submitted that:
1. the Proclamation had the effect of making Parts 2 and 3 of Chapter 3 of the Water Management Act applicable to Randren's licence on the "appointed day", namely, 4 October 2012;
2. on 4 October 2012, Randren's licence which had issued in later September 2012 was a licence under the Water Act which entitled Randren "to take a specified quantity of water" within the meaning of cl 3(1)(a), and
3. the result was that from 4 October 2012, Randren's licence was taken to have been replaced by an access licence and an approval under the Water Management Act, but in each case, the new access licence and approval were "subject to such of the conditions of the [previous licence] as are applicable" to the access licence and approval respectively.
That was reflected in the documents which thereafter issued. As it was put in the respondents' oral submissions:
"So the effect of the conversion was that, given that the Water Management Act applied now and that there was a difference between water access licences and approval, there was the approval that has the number 40CA412879, and your Honours see a statement of that reflecting the date of issue, being 4 October 2012 at p 670 of the blue book. That was printed in 2016 but there's no suggestion that there was an alteration in the relevant time period. It's difficult to read but in the left-hand column "Date of Issue" is 4 October 2012 and the approval is stated to be in respect of the Murrumbidgee unregulated and alluvial water sources that you see at about point J. ... But there was then separately the water access licence and its number is 33313 and your Honours see a version of that as at 2018 on p 643, and my friend took you to that yesterday."
The respondents' submissions explaining the above result were in response to assertions by the appellants that the condition should be deleted and replaced with an entitlement to regulated water. Because the point is not without complexity and was seemingly regarded as being of significance, I have reproduced the analysis fully.
It must be said that this aspect of the appeal was less than satisfactorily presented. There was force in the respondents' complaint:
"As to what my friend referred to as the licence issue, that is not, in my submission, the subject of any ground of appeal. It was raised for the first time orally yesterday."
But having set out at some length the factual background to this aspect of the appeal, it is easiest to resolve it on its merits.
First, "Decision 3" which was challenged before the primary judge but not part of the appeal, was a raft of challenges to the issue in September 2012 of the licence with the volumetric condition. It was paragraph 9A of the Second Further Amended Points of Claim. That decision was not challenged in this Court.
Secondly, the effect of the transitional provisions upon that licence is as set out above, which reflects the respondents' submissions. In reply, Mr King said this at the conclusion of his submissions in reply:
"Finally, your Honours would, of course, appreciate that there's nothing in the submissions that have been put in relation to the operation of sch 10 in this Court, and it is in our written submissions: see orange 41K to P, 43F to M, 52H to M, 53L to K, especially at 54H, and in the reply submissions it's 84H to W. And below the Sharkey case and the sch 10 case was put, albeit, it's true, late in the piece after most of the pieces of the puzzle had been put in the manner that I've just explained to your Honour which is referred to by the learned judge."
Neither in the individual passages to which Mr King directed the Court's attention, nor anywhere else in the written submissions, is there any response to the effect of Schedule 10 upon the licence.
The appellants sought to rely on Minister Administering the Water Management Act 2000 v Sharkey [2017] NSWCA 319, which also concerned the conversion of a water licence. The particular question was the proper construction of the expression "the upper limit of the storage of Hume Dam" in the Murray Water Management Area Regulated River Order (Murray). I do not see how anything in that decision detracts from the analysis set out above, or otherwise assists the appellants.
I would reject the submission that Randren is entitled to a condition that is expressed in terms of regulated water.