Redfern v Water Administration Ministerial Corporation

The land on which it is desired to use the water is reasonably fitted for such purpose or purposes. The land is used as a cotton farm.

The Applicant's land has been developed as a ground water only irrigation farm with established infrastructure approved and partly financed by the Water Conservation & Irrigation Commission based on a minimum of 688 megalitres per annum.

6. The land is subject to a proposed 51% cut in ground water entitlements which will severely impact on the farm's viability making the Applicant's access to surface water critical in order to maintain the farm's economic viability.

The Applicant's land is now known to be situated in a critically depleted ground water area and may be subject to further local impact water restrictions.

The Applicant clearly has a need for the water for irrigation purposes.

The Applicant has acquired 315 megalitres Namoi River surface water entitlements.

The interests of the riparian occupier Merced Farming Pty Ltd will not be unreasonably affected by the granting of the application.

The only riparian owner has consented to the use of a pump site.

The Applicant does not presently have funds to cover the expense which he will necessarily incur if required to immediately construct an alternative water channel.

It is not reasonably practicable at present for the Applicant to obtain or make provision for supply of water otherwise than in pursuance of a Section 13A licence.

The Department has advised the Applicant that it will not support the construction of a second channel for State water resource use efficiency.

The Applicant will undertake to contribute to the maintenance of the existing water channel.

The water channel has not been declared an 'existing work' by the Ministerial Corporation under Section (5)(5) of the Act.

Conveying works which are already in existence may be the subject of an application under Section 13A of the Act. JS Balharrie v Water Administration Ministerial Corporation (1989) NSWLEC 12 (27 February 1989). Salmon v Water Administration Ministerial Corporation of New South Wales & Anor [2001] NSWLEC 275 (5 December 2001).

The Applicant intends to construct new works being an augment channel across Lots 144 and 141 (Boyle's property) and Lot 80 (Weeks (Kariwara) Pty Ltd property) to improve the flow efficiency of channel.

The existing channel has the capacity to channel the Applicants water without adversely interfering with its use by other irrigators.

The Applicant is prepared to contribute to the maintenance and periodic capital improvements." 14 The Department's reply to the statement of the plaintiff's reasons was by letter of 22 May 2003: "I refer to your letter dated 9 May 2003. I advise that the Department does not at this stage deny the matters set out by you in paragraphs 3 - 15 and 17 - 19 of your letter. In particular it is noted that Mr Redfern has the permission of the riparian owner to place his pump at the river, and further, that he proposes to construct some new works in connection with this application, namely an augmentation channel, across Lots 144, 141 and Lot 80, to improve the flow efficiency of the channel. However, in our view the critical issue in this matter is dealt with by you in paragraph 16 (and paras. 1&2). At paragraph 16 you submit that conveying works which are already in existence may be the subject of an application under Section 13A of the Water Act. This is important because, under Mr Redfern's present s.13A application, despite his plan to construct some new works, a significant part of the works intended to be utilised by him, namely, the existing 'Syndicate' channel system, are already in existence and owned and operated by others. There are two cases cited in the submissions, namely Balharrie and Salmon to support the proposition that s.13A can operate in respect of existing works. I note however that these matters relate only to renewals of Section 13A licences under Section 14 of the Act in circumstances where the relevant works were originally constructed by the s.13A applicant from the time of the grant of the original entitlement and solely used by the applicant thereafter. The Department has considered this matter in detail and has formed the view that s.13A only allows a successful applicant to construct new works, not to commandeer the works of another. It relies on the interpretation of the section, as set out in its letter of 11 April 2000, that s.13A(1) operates in its terms in relation to an applicant who desires to both 'construct and use' a work. The section does not have in contemplation the utilisation of an existing work which has already been constructed and is being used by others in some joint arrangement. 'Construct', in its ordinary meaning, imports the notion of undertaking the construction of works in the future and only after the permission to do so afforded by s.13A has been granted. Accordingly, the Department is of the view that, to the extent that the application of Mr Redfern relates to the utilisation of the 'syndicate' channel, it is an invalid application and cannot be dealt with by the Department. Accordingly, the application is hereby returned to the applicant." 15 Section 13A of the Water Act is to be found in Pt 2 of the Act, which Part deals with "Water Rights and Works". Section 13A provides, so far as it is necessary to record for present purposes: "(1A) This section does not apply to or in respect of an existing work. (1) Any occupier of land who desires to construct and use a work to which this Part extends (hereinafter in this section referred to as the supply work ) for the purpose of domestic water supply, stock water supply or irrigation but does not occupy: (a) the land on which the occupier desires to construct the supply work, or (b) the whole of the land on which the occupier desires to construct works (hereinafter in this section referred to as the conveying works ) to convey the water from the supply work to the land on which the occupier desires to use the water, and who cannot obtain occupation of the land required for the supply work or conveying works may apply to the Ministerial Corporation in the form prescribed for a licence to construct the supply work and to take and use for the purpose or purposes specified in the application the water, if any, obtained thereby. (2) The application shall be accompanied by: (a) the prescribed deposit as security for the cost of investigation and inquiry in connection with the application, and such deposit may be applied by the Ministerial Corporation in payment or part payment of the licence fee payable by the applicant. In the event of the applicant withdrawing or abandoning the application, such deposit or any part thereof may in the discretion of the Ministerial Corporation be retained by it, (b) the particulars set out in section 10 (3), (c) plans showing: (i) the location of the lands to be supplied with water in relation to the river or lake from which the water supply is to be obtained, and (ii) the lands on which the supply work is proposed to be constructed, including the location of that work and the lands on which the conveying works are proposed to be constructed, including the location of those works, (d) particulars of the supply work and the conveying works including all pipes, channels, regulators, flumes and other structures proposed to be constructed and used, and (e) `particulars of the extent of the areas of lands, not occupied by the applicant, which are proposed to be used for the construction of the supply work and the conveying works (hereinafter in this section referred to as the intervening lands) and the names and addresses of the owners and occupiers of those lands. (3) The provisions of section 11 (1), (2), (2A), (2B), (2C), (3) (a) and (4) shall mutatis mutandis apply to an application under this section and to any appeal against the decision of the Ministerial Corporation that the application should be refused. Upon any such appeal the owners and occupiers of the intervening lands shall be permitted to attend and be heard in support of, or in opposition to, the granting of the application. (4) In any case where the decision of the Ministerial Corporation is that the application should be granted the Ministerial Corporation shall direct the local land board or a Magistrate to hold a public inquiry as to the desirability of granting the application. The Ministerial Corporation shall notify the owners and occupiers of the intervening lands of the application and of the reference thereof to the local land board or the Magistrate. The holding of the inquiry shall be notified once in the Gazette and once in a newspaper published and circulating in the district where the supply work is or is proposed to be situated. The Ministerial Corporation, the owners and occupiers of the intervening lands and: (a) where, at the time the application is made, the supply or conveying works are, or are proposed to be, situated within a declared local area, any: (i) local occupier, or (ii) statutory authority, whose interests may be affected by the granting of the application, or (b) where, at the time the application is made, the supply or conveying works are not, or are not proposed to be, situated within a declared local area, any person whose interests may be affected by the granting of the application, shall be permitted to attend at the inquiry and be heard in support of, or in opposition to, the granting of the application. The local land board or Magistrate, as the case may be, holding the inquiry shall announce its or his or her decision in open court and shall thereupon report in writing upon the inquiry to the Ministerial Corporation. Where the decision of the local land board or Magistrate is in favour of the granting of the application the local land board or Magistrate, as the case may be, shall also make recommendations to the Ministerial Corporation with respect to the terms, limitations and conditions which should be applied to the licence including the occupancy and use by the licensee of the intervening lands, the payments (if any) to be made in respect of such occupancy and use, and the construction, use and maintenance of the supply work and conveying works. On receipt of the report of the local land board or Magistrate the Ministerial Corporation, shall determine the terms, limitations and conditions to be applied to the licence. The decision of the local land board or Magistrate as to the desirability or otherwise of granting the application shall be notified by the Ministerial Corporation to the applicant and to the owners and occupiers of the intervening lands and to any person who attended at the inquiry by the local land board or Magistrate and was heard in support of or in opposition to the granting of the application. Where such decision is in favour of the granting of the application the Ministerial Corporation shall in such notification include the terms, limitations and conditions to be applied to the licence. The applicant or any owner or occupier of the intervening lands or any person who attended at the inquiry and was heard as aforesaid may, within twenty-eight days after the posting to the applicant, owner or occupier of the Ministerial Corporation's notification, appeal to the Land and Environment Court against the decision of the local land board or Magistrate or the determination of the Ministerial Corporation of the terms, limitations and conditions to be applied to the licence. The decision of the Court shall be final. The appeal shall be made as prescribed by rules of court of the Land and Environment Court and be accompanied by a fee of ten dollars as security for the costs of the appeal. Notice of appeal in the prescribed form shall be given by the appellant to the Ministerial Corporation upon the lodging of the appeal in the Land and Environment Court. (5) An application for a licence under this section shall not be granted unless the local land board, Magistrate, Land and Environment Court or Ministerial Corporation, as the case may be, is satisfied that: (a) it is not reasonably practicable for the applicant to obtain or make provision for a supply of water on the land on which the applicant desires to use the water adequate for the purpose or purposes specified in such application otherwise than in pursuance of a licence granted under this section, and (b) the land on which it is desired to use the water is reasonably fitted for such purpose or purposes, and (c) the interests of riparian occupiers will not be unreasonably affected by the granting of such application. (6) The Ministerial Corporation shall in compliance with any decision of the local land board or Magistrate upon an inquiry held under subsection (4) or of the Land and Environment Court upon appeal favouring the granting of an application for a licence issue a licence to the applicant in the prescribed form for the period set out in the decision of the local land board or Magistrate or the Land and Environment Court, as the case may be, and subject to the terms, limitations and conditions determined by the Ministerial Corporation or set out in the decision of the Land and Environment Court, as the case may be. No licence shall be issued under this subsection pending any appeal. A licence under this section shall be issued only upon payment of a fee calculated in the manner and according to the scale prescribed by regulations under this Act. If the applicant fails to pay to the Ministerial Corporation within the time prescribed the fee payable upon the issue of the licence, the Ministerial Corporation may at any time thereafter reject the application. Where an application is rejected under this subsection the deposit accompanying such application or any part of such deposit may, in the discretion of the Ministerial Corporation, be retained by it." 16 Section 13A does not apply to "an existing work" (sub-s (1A) above). "Existing work" is defined in s 5 of the Act as meaning "a work declared by the Ministerial Corporation under sub-section (5) to be an existing work for the purposes of this Part." 17 It is common ground that s 13A(1A) does not apply here. That sub-section was inserted in the Act by an amending Act of 1999 which commenced on 7 April 2000. In the circumstances, I accept that s 13A(1A) and the definition section of "existing work" assume no relevance when determining whether the plaintiff is entitled to the relief sought in his summons. 18 There is a definition of "work" in s 5, relevant in considering s 13A: " Work includes any dam, lock, reservoir, weir, regulator, flume, race, channel (whether an artificial channel or a natural channel artificially improved), any cutting, well, excavation, tunnel, pipe, sewer, and any machinery and appliances." 19 Mr Robson submitted that a pump falls within "machinery and appliances" and he further submitted that both the pump and the proposed augment channel amount to "work" for the purposes of the definition section, and hence for s 13A. So, too, is the connecting pipeline from the pump to the channel, and from the northern end of the channel to "Warrawee". All this seems reasonably clear. 20 "Work to which this Part extends" is defined in s 5 as meaning: "a work: (a) which is connected with, or which affects the quantity or use of water in, a river or lake, (a1) which impounds water and is within an area declared by the Ministerial Corporation by order published in the Gazette to be an area within which a work impounding water is a work to which this Part extends, whether or not it is a work referred to in paragraphs (a), (b) and (c), (b) which affects the quantity of water flowing in, to or from, or contained in, any such river or lake, or (c) in or through which flows, or is contained or used, water taken from any such river or lake, being a work which is used, or is to be used: (d) for water conservation, irrigation, water supply or drainage, or (e) (Repealed) (f) for changing the course of a river, or preventing the course of a river from changing, and includes an existing work or any other work (or class of work) declared by the Ministerial Corporation by order published in the Gazette to be a work to which this Part extends, but does not include: (g) a work declared under subsection (3) to be a work for urban drainage, or (h) a work (or class of work) declared by the Ministerial Corporation by order published in the Gazette as being a work to which this Part does not extend." 21 As to the application of the definition of "work to which this Part extends", Mr Robson submitted this captures the pump installation because it is connected with the river. The augment channel and the connecting pipeline affect the quantity of water flowing from the river, so they amount to work to which Pt 2 extends. Moreover, water taken from the river would flow through the augment channel and the connecting pipeline. The work is to be used for irrigation. It was argued that plainly the work the subject of the application is work to which Pt 2 extends. 22 The plaintiff does not occupy the land where the pump is to be located, nor does he occupy the land where the augment channel or the connecting pipeline are to be constructed. Hence, it is submitted, the plaintiff is entitled to apply to the defendant for a licence to construct these works to use the water obtained for the purposes specified in his application. It is submitted that the application ought to be treated as an application for a licence to do only that which is covered by s 13A. When properly analysed, the application is not to be regarded as an application to license use of the existing syndicate supply channel. 23 Mr Green submitted, on behalf of the defendant, that to treat the plaintiff's application as falling within s 13A does violence to the language of the section. The section contemplates the grant of a licence to construct supply work, not to commandeer what somebody else has already constructed. 24 In support of that submission, Mr Green drew attention to other licensing provisions in the statute:

(i) under s 10, an occupier of land whereon any work to which Pt 2 extends " is constructed or used or is to be proposed to be constructed or used …may apply for a licence…" This provision is to be contrasted with s 13A(1) which is concerned only with proposed construction and use;

(ii) section 18F in Div 3A of Pt 2 is concerned with permits. An occupier or owner of land "whereon any work… is constructed or used or is proposed to be constructed or used …" may apply for a permit in the prescribed form;

(iii) section 20 in Div 4 of Pt 2 makes provision for the occupiers of lands "supplied or proposed to be supplied with water obtained by means of a joint water supply scheme". "…where the land…on which the scheme is or is to be constructed is not in the occupation of one or more of those occupiers…, the occupier of the land…may apply…for an authority to construct and use the scheme."

(iv) Division 4A is directed at group licences and s 20K in this Division provides for a board (as defined in s 20I) to apply for a group licence " to construct and use or to use any work" to which Pt 2 extends to take water from a river or lake;

(v) Part 5 of the Water Act is concerned with artesian wells and Div 3 provides for the licensing of bores. Section 112 renders it necessary that bores be licensed. Section 112(1) provides: "the sinking of a bore shall not be commenced, nor shall a bore be enlarged, deepened or altered unless: (a) in pursuance of a licence issued under this Part, or (b) the bore is to be sunk, enlarged, deepened or altered by the Crown."

(vi) Part 8 concerns flood control works. Division 3 within Pt 8 addresses the approval of controlled works and s 167 spells out the requirements of an application for an approval. Section 167(1) provides: "An application for an approval shall: (a) be made in or to the effect of the form approved by the Ministerial Corporation, by the occupier of the land, or the occupiers of the lands, upon which the controlled work the subject of the application is situated or proposed to be constructed …"

(vii) Mr Green also referred to the provisions of ss 31, 131 and 151 which are now repealed. Section 31 contemplated proposals concerning existing and future works; s 131 contemplates existing and proposed works; and s 151 addressed existing or proposed works. 25 Mr Green submitted that the review of the above provisions of the Water Act emphasises that it is s 13A alone which limits itself to future constructions. He submitted that the review adds emphasis to the policy underlying the language of s 13A that the section is only addressing a situation where the applicant is going to construct his own work. 26 Counsel have been unable to refer to any authorities which assist in resolving the issue which here arises. There was a decision of Hardie J in the Land and Valuation Court in Siderovich v Water Conservation and Irrigation Commission (1965) 90 WN 356 in which the appellant was successful in obtaining a licence on an application under s 13A in respect of work already constructed and in use, but his Honour remarked at 359 that in that case no point was taken against the appellant that the power conferred by s 13A was not available by reason of the fact that the works were already constructed and in use. 27 Having reflected on the competing submissions, I have reached the conclusion that Mr Robson is correct in the way in which he asks the Court to analyse this application and that the necessary elements exist for the plaintiff to pursue an application under s 13A. The application should be treated as an application for a licence to construct the works, being the installation of the pump, the creation of the augment channel and the construction of the connecting pipeline, and the taking and using of the water obtained thereby, for the purposes specified in the application. The plaintiff does not occupy the land where those various works are to be undertaken and in respect of those works the requirements of s 13A are satisfied. True it is that the use of those works will result in water passing along the existing syndicate channel, but the defendant is not being asked to license use of that channel. 28 The analysis of the application in the manner for which Mr Robson contends does not leave the members of the existing channel syndicate without an opportunity to voice their opposition. 29 By reason of s 13A(3) the relevant provisions of s 11 would apply to this application. The Ministerial Corporation must publish a notice of the application in the Gazette and in a local newspaper (s 11(1)), and the syndicate members, and any other local occupiers whose interests may be affected by the granting of the application, may lodge an objection with the Ministerial Corporation within the time provided by s 11(2). 30 If the Ministerial Corporation thereafter decides to refuse the application, then there is provision for an appeal against that refusal to the Land and Environment Court under s 11(4). The members of the syndicate would be afforded the opportunity of being heard on the appeal pursuant to s 13A(3). 31 If, on the other hand, the Ministerial Corporation decides that the application should be granted, then s 13(4) provides for a public hearing as to the desirability of granting the application, and the sub-section provides for the opportunity for members of the syndicate to be heard in opposition to the application. The protocol under s 13(4) is quite detailed. 32 Having concluded that the current application is properly to be regarded as an application for a licence to do only that to which s 13A extends rather than an application for a licence to use the existing syndicate channel, I also conclude that the plaintiff is entitled to the declaration sought in para 2 of the summons filed in this matter. 33 I have not heard any submissions as to costs. If the parties cannot agree on the appropriate order as to costs, the matter may be relisted for submissions as to costs on a date to be arranged with my associate.

Formal orders 34 1. Declaration in the terms sought in para 2 of the summons.

2. Costs are reserved. In the event that the parties are unable to agree as to the appropriate order for costs, the matter may be relisted for the purpose of submissions as to costs on a date to be arranged with my associate. **********

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