Stonearoo Pty Ltd as trustee for the Pearce Family Trust trading as PFT Agriculture and Anor v Minister Administering the Water Management Act 2000 and Anor

File Number(s): 2024/00433592

Publication restriction: Nil

JUDGMENT – EX TEMPORE

Introduction and outcome

1. In these Class 1 proceedings, before the Court is both a case management conference and a mention of a notice of motion filed by the Minister Administering the Water Management Act 2000 (‘Minister’) on 28 October 2025 seeking an order pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) that two questions be determined separately from and prior to the final hearing.

2. The Minister is the first respondent in these Class 1 proceedings commenced by Stonearoo Pty Ltd as trustee for the Pearce Family Trust trading as PFT Agriculture, and Prudence Pearce (collectively, ‘Applicants’) on 21 November 2024, pursuant to s 368(1)(h) of the Water Management Act 2000 (NSW) (‘WM Act’), appealing against the decision of the Minister of 25 October 2024 granting a Water Supply Works Approval (‘Approval’) to the second respondent, Orange City Council (‘Council’), under s 95(1) of the WM Act. Stonearoo opposes the order sought in the motion.

3. Although the Minister has not formally moved on the motion nor read the affidavit evidence filed in support thereof, I have been asked to consider the parties’ concerns in relation to the questions raised in the motion (which in summary relate to procedural matters regarding the position of persons who made objections to the grant of the Approval) and record my view in relation to the ongoing conduct of the matter which is listed for hearing for four days commencing 1 December 2025 (with a site view in Orange). For reasons that follow in accordance with the parties’ request, I make no orders on the motion, however I make the orders noted below in relation to the ongoing conduct of the matter.

Background

4. By way of background, the Approval was granted to Council for conveying and diversion works, as well as the construction of pumps, storage and a weir. Section 368(6) of the WM Act defines a “designated approval” as an approval to which a person may make an objection under s 93 of the WM Act, and the Approval was such a “designated approval”. The Applicants made objections to the Approval.

5. Although the Minister has not formally moved on the motion, it is appropriate to record that the motion seeks an order that the following questions be heard separately in advance of the final hearing:

“a. Is the Minister obliged to notify those persons who objected under section 93 of the Water Management Act 2000 (WM Act) to Orange City Council’s application for a Water Supply Works Approval of the proceedings brought pursuant to section 368(1)(h) of the WM Act?

b. If the answer to 1(a) is ‘yes’, are the objectors to be notified entitled to be heard as part of the proceedings having regard to the provisions of:

i. Sections 93(2)-(8) of the WM Act; and/or

ii. Section 39(4) of the Land and Environment Court Act 1979?”

Evidence

6. The Court has received and considered an amended statement of facts and contentions filed by the Applicants on 8 August 2025, an amended statement of facts and contentions in reply filed 21 November 2025, and an affidavit of Olivia Mary Elizabeth Yeatman sworn 28 October 2025 (and filed by the Minister).

Submissions

7. Although the motion is not formally before me, I have considered detailed written submissions prepared primarily for the hearing of the motion from counsel, particularly Mr Seymour SC (appearing for Council) and Mr Stafford (appearing for the Applicants), respectively. In effect, the parties requested that the Court record its view in relation to the questions which have arisen primarily in the motion without hearing the motion as a matter of “case management”. The Court has also received oral submissions from Mr Seymour, Mr Stafford and Ms McKelvey (appearing for the Minister).

Minister’s position

8. Although the Minister does not move on the motion, leave is sought to amend the Minister’s statement of facts and contentions in reply filed 17 March 2025 to include a summary of the issues raised in various objections received, and to record the actions taken by the Minister in relation to those objections under s 93 of the WM Act, as well as seeking a direction that the Minister prepare and provide to the Court a bundle containing the objections for the purposes of the final hearing which, as noted earlier, is to commence on 1 December 2025. The Minister also seeks leave to approach the Court’s Registry to seek a further case management conference before the presiding commissioner if the Applicants intend to apply for leave that certain objectors give evidence at the hearing.

9. The Minister maintains that this (pre-hearing) approach would give the commissioner sufficient information to decide, first, whether the objectors should be heard at the hearing; second, whether the parties’ submissions would assist; and third, whether the whole hearing should be conducted at a site view.

Council’s position

10. Council submits that the two questions raised in the motion should be determined either as specifically ordered separate questions pursuant to r 28.2 of the UCPR, or as a matter of practice and procedure, and as soon as practicable for the following reasons:

11. It would not be optimal to have the matter (as to whether objectors are to be heard at the hearing) raised before the presiding commissioner in December 2025 and then likely referred to a judge under s 36(5) of the Land and Environment Court Act 1979 (NSW) (‘LEC Act’) as that approach would not resolve the issue with expedition contrary to s 38(1) of the LEC Act, nor provide a process for the just, quick and cheap resolution of the real issues in dispute per s 56(1) of the Civil Procedure Act 2005 (NSW) (‘CP Act’).

12. The two questions are appropriate for formal separation under r 28.2 of the UCPR, and in the alternative, are sufficiently important for the conduct of the hearing that it should be addressed by the Court as soon as possible to allow the parties to make such preparation as may be necessary before the final hearing.

13. If the questions are not addressed under r 28.2 of the UCPR, the Court would still have power to determine the concerns as matters arising under ss 16(1), 58(1)(a)(iii), 61(1) and 62(1) of the CP Act, s 23 of the LEC Act, and/or rr 2.1, 2.3(b), (k) or (n) of the UCPR.

14. The relevant statutory scheme in Pt 3 of the WM Act envisages two stages for the Minister’s original function: first, involving the requirement to “endeavour to resolve the issues raised by the objection ... with a view to reaching agreement”; and second, the consideration and determination of the application for approval. The first stage must be undertaken before the second. As such, any involvement by objectors is limited to the first stage and involves action by the Minister in facilitating agreement regarding private interests of objectors. The first stage does not involve the Minister in having any “determination” function.

15. The Minister’s role in the first stage is to “facilitate agreement between” the applicant and any objector, and the requirement in s 93(5) of the WM Act is to engage in “consultation” with the applicant and the objector, with a view to reaching agreement on matters raised by the objector.

16. No express or prescribed process is mandated for what should occur when the objector does not participate and agreement is not reached. The Minister does not need to take into account or resolve issues raised by any objector that has not been subject to agreement by the applicant, as the statutory language does not require that the Minister consider objections in performing his functions under ss 95(1) and 96 of the WM Act.

17. Thus, the subject matter of the appeal is the appellant’s failure to agree with the proponent on the granting of the Approval. The Court has all the discretions, powers and functions of the Minister only in respect of that subject matter under s 39(2) of the LEC Act.

18. On the proper construction of the WM Act, it is only the second, deliberative function of the Minister (the making of the decision) that is relevant to the subject matter of the appeal. No part of the first function is involved, and thus the procedural or facultative role of the Minister in endeavouring to have Council and each objector reach agreement is not a function the Court has to exercise.

19. The Minister’s functions to endeavour to facilitate agreement between objectors and Council are steps antecedent to making any decision, which suggests that the Minister’s consultative role is not a relevant function exercised by the Court. That the function would involve the Court in conducting individual sessions between each objector and Council is indicative that this is not a function taken up by s 39(2) of the LEC Act.

20. The WM Act does not direct the Court to facilitate involvement at the hearing by any non-party objectors, and failure to reach agreement per s 93 of the WM Act is not by itself a matter of mandatory relevant consideration under the WM Act.

21. Further, involvement of non-party objectors by the Court may introduce ambiguity about what the Court is to do with evidence introduced from such persons. The positions of non-party objectors cannot be elevated to equivalent concerns of the parties.

22. Other difficulties arise for proper consideration of the real issues in dispute because such non-party objectors are not subject to control by the Court over any evidence to be produced so that no party is taken by surprise. Such matters indicate that any participation is not as of right and is not to be presumed to be for a “proper consideration of the matters ... before the Court” for the purposes of s 38(2) of the LEC Act.

23. It should not be assumed that the Court hearing from an individual objector may be useful to account for the public interest pursuant to s 39(4) of the LEC Act. Time should not be allocated for that purpose at the hearing unless a proper case is made to allow that participation by a non-party objector, but no party has done so in this case.

Applicants’ position

11. The Applicants oppose the questions raised in the motion being determined as a separate question under r 28.2 of the UCPR, and submit that the motion should be dismissed and the questions should instead be dealt with as matters of procedure or case management because:

12. The questions are procedural and given the proximity to the final hearing and the fact that the questions involve the actual conduct of the hearing, it would not be inappropriate for the commissioner or the judge who will hear the matter to address the evidence to be given at the hearing.

13. The Court may consider the submissions made by the objectors under s 96 of the WM Act, which provides that the Court (exercising the functions of the Minister) must take into account such matters as are prescribed by the regulations and such other matters as the Minister (or the Court exercising the functions of the Minister) considers relevant.

14. Section 96 is not limited by any process undertaken by the Minister under s 93 of the WM Act in respect of objectors. Construing the WM Act as a whole (including the objects in s 3(d)), it is not an objective purpose of s 93 to exclude consideration of submissions made by the community in the making of a final decision under s 96.

15. It is an error of law for a decision-maker to proceed on the basis that particular considerations that might properly be taken into account are legally incapable of constituting relevant considerations. To exclude the possibility that the Court is entitled to take into account the objections under s 96 of the WM Act (when s 96 is not so limited) would involve such an error.

16. The Applicants emphasise s 93(5) of the WM Act, which requires the Minister to endeavour to resolve issues raised by the objection by means of consultation with the applicant for an approval (here, Council) and the objector, with a view to reaching agreement before making a decision.

17. It is open to the Minister to consider the submissions made by the objectors (despite any of the terms in s 93). That there may be an obligation to endeavour to resolve the issues raised by objectors, does not detract from the fact that those issues may be relevant to the final determination by the Minster under s 96 of the WM Act.

18. The Court's Practice Note – Classes 1, 2 and 3 Miscellaneous Appeals must be considered in the above context noting that par (53) provides for the “conduct of hearing” and notes that the “hearing view will be conducted in accordance with the Site Inspections Policy”. As such, the Site Inspections Policy is intended to be adapted to appeal proceedings where par (53) of the Practice Note – Miscellaneous Appeals might apply.

19. Nothing in s 96 of the WM Act would diminish the potential relevance of objector submissions to the evaluative process required of the Court in this appeal, despite the reference to the “respondent consent authority” in the Site Inspections Policy.

20. The fact that this is an objector appeal is not of any significance in relation to the participation of other objectors, given it has long been the practice of this Court to receive oral evidence from other objectors in objector appeals.

21. The Minister should be directed to notify the objectors of the hearing and to follow the process to give objectors an opportunity to be heard at the hearing view in accordance with the terms of the Site Inspections Policy, which apply to “respondent consent authorities”.

Consideration

12. Effectively, the present issue concerns a participation or otherwise at the hearing of this appeal (which is set down for four days (with an additional reserve day) in December 2025 at Orange, NSW) of persons who have made objections to the application but are not parties to the appeal. Although the motion is not before me, I have formed the view that it is not appropriate or would not be appropriate for the matter to proceed by way of r 28(2) of the UCPR. I make no criticism of the Minister being concerned in relation to the determination of the issues otherwise articulated and (at least) canvassed prior to the final hearing.

13. The Minister’s concern is that if the involvement by non-party objectors is, or is not, found to be part of the statutory scheme under the WM Act, then resources will be wasted in carrying it out. If the involvement is required, or is otherwise suitable, the time and resources spent on the carrying out of that legitimate end may be issues of concern for the commissioner (or the judge) hearing the case when they have not otherwise been articulated.

14. As such, the question is whether the hearing of the appeal must involve participation by non-party objectors, and the answer to such a question depends on the legislative scheme. The relevant legislative provisions are ss 92, 93(1), 93(2), 93(5), 93(6), 95(1) and 96 of the WM Act. The central issue is whether the Minister must notify the objectors of the appeal and whether those objectors should be given the opportunity to participate in the hearing.

15. In summary, the legislative regime provides that any person may object to the granting of an approval under s 93 of the WM Act and the Minister must inform an applicant for approval of the grounds of any objection to the granting of the approval pursuant to s 93(2). More relevantly, under s 93(5) before making a decision on an application for an approval to which any objection has been made, the Minister must endeavour to resolve the issues raised by each of the objectors and each objection by means of consultation with the applicant and the objector with a view to reaching an agreement on the matters raised by the objection.

16. The affidavit of Ms Yeatman indicates that the Minister received 28 objections to the application, and I have assumed that the Minister has dealt with each of those objections in accordance with the obligation under s 93(5). The Minister (and the Court on appeal) will need to consider the application and all matters relevant to the application and determine the application by granting approval or refusing the application per s 95(1). The Court is not presently aware of any matters in the regulations made under the WM Act that relate to this particular application (as per ss 92 and 93(1)).

17. I find that, in the present circumstances, it is unusual that the Court would not otherwise be aware of the fact that there were objectors or the nature of the objections. In the determination of the application pursuant to s 96 of the WM Act, the Minister (and the Court on appeal) must take into account such other matters as the Minister (or the Court on appeal) considers to be relevant.

18. The present concern of the Court (and the concern of the parties) is that it appears that there would be no opportunity for the Court to be made aware of the objections, which causes tension when compared with other aspects of the regime provided for in the Court’s Practice Notes and other matters in relation to the conduct of the proceedings. Conscious that this Court has frequently expressed the importance of opportunities for objectors to participate, in circumstances where (as in the present case) there is a discrete right of appeal, I consider that there should be some opportunity for the Court at least to be made aware that there were objections.

19. With the above regime in mind, having expressed my view that the appeal regime under the WM Act does not specifically mandate the involvement of the objectors in the appeal hearing, and that the commissioner hearing the appeal should be made aware that there were objections, the parties have had further discussions.

20. The parties agree (and I accept) that s 95(1) and (importantly) s 96(b) of the WM Act present a sufficiently broad process which would allow the Court in the hearing and determination of the appeal, as the tribunal of fact, to consider other matters. Given my view (earlier expressed informally), the parties have further considered the matters and have now agreed upon orders which I consider are appropriate to make.

21. The effect of the orders will be that the commissioner hearing the matter will determine whether, and in what way, the interests of the objectors will be considered. Such deliberation will be on the basis that there is no statutory imperative in the circumstances of this case that the objectors are to be heard.

Orders

22. The orders of the Court are:

23. The Minister Administering the Water Management Act 2000 (‘Minister’) is given leave to amend its statement of facts and contentions in reply filed 17 March 2025 to include a summary of the issues raised by the objections and a timeline of actions taken by the Minister in relation to those objections under s 93 of the Water Management Act 2000 (NSW).

24. The Minister is to prepare and file a bundle of the objections made prior to the grant of the Water Supply Works Approval, seven days prior to the hearing.

25. The parties are given leave to approach the Registry to have the matter listed for case management before the presiding commissioner if Stonearoo Pty Ltd as trustee for the Pearce Family Trust trading as PFT Agriculture, and Prudence Pearce wishes to apply for certain objectors to be heard at the hearing. The commissioner will make such orders as considered appropriate for the efficient conduct of the appeal.

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