Stonearoo Pty Ltd v Minister Administering the Water Management Act 2000

Parties: Stonearoo Pty Limited as trustee for the Pearce Family Trust trading as PFT Agriculture (First Applicant)
Prudence Pearce (Second Applicant)
Minister Administering the Water Management Act 2000 (First Respondent)
Orange City Council (Second Respondent)

Representation: Counsel:
A Stafford (Applicants)
J McKelvey (First Respondent)
M Seymour SC (Second Respondent)
Solicitors:
Beatty Hughes & Associates (Applicants)
Department of Climate Change, Energy, the Environment and Water (First Respondent)
Crennan Legal (Second Respondent)

File Number(s): 2024/433592

Publication restriction: No

JUDGMENT

1. COMMISSIONER: The proceedings are a Class 1 appeal under s 368(1)(h) of the Water Management Act 2000 (NSW) (WM Act) against the decision of the Minister on 25 October 2024 to grant Water Supply Works Approval 80WA727052 (WSW Approval, Exh 1, tab 1) to the Second Respondent, Orange City Council (the Council), authorising works in and around the Blackmans Swamp Creek for conveying and diversion works and the construction of pumps, storage and a weir. The Applicants are entitled to bring this appeal because they objected under s 93(1) of the WM Act to the Water Management Works Application A030539 (WMW Application) made by the Council under s 92 of the WM Act.

2. The appeal was subject to conciliation on 2 May 2025, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 3 July 2025, pursuant to s 34(4) of the LEC Act.

3. Following the preparation of a joint report by the hydrology experts (Exh 1, tab 4), the parties reached agreement on (amended) conditions of the WSW Approval and applied for consent final orders (Land and Environment Court of New South Wales Practice Note Classes 1, 2 and 3 Miscellaneous Appeals [90]).

4. The parties requested the Court note that they are agreed there will be no application for a cost order as each party is to pay its own costs.

The Water Supply Works Approval 80WA727052

5. The WSW Approval was granted on 25 October 2024 subject to conditions and the approval holder is the Council (Exh 1, tab 1). The October 2024 assessment report of the Department of Climate Change, Energy, the Environment and Water (DCCEEW) is in evidence (Exh 1, tab 2). The WSW Approval is for the Blackmans Swamp Creek Water Harvesting Scheme - Stage 2 (also known as East Orange Water Harvesting Wetland). The water use is town water supply and recreation.

6. The locations identified in Sch 2 of the WSW Approval (Exh 1, tab 1) were not complete and hence not accurate. The type and location of the seven water supply works are listed under Sch 2 to the (amended) WSW Approval (Annexure A).

The 2015 Licence

7. In 2015, the Council obtained a licence under s 10 of the Water Act 1912 (NSW) to approve Stage 1 of its water harvesting scheme (Orange City Council v NSW Office of Water*,* Department of Primary Industries [2015] NSWCATAD 58) (2015 Licence). The 2015 Licence approved an amalgam of works, taking and uses. The 2015 Licence is not a matter within the Court’s jurisdiction; however, the two schemes are linked. The Second Respondent submitted that the Council and the Minister have agreed, between themselves, to update conditions of the 2015 Licence on the basis of agreements in the hydrology experts’ joint report about changes to the conditions of the 2015 Licence.

Jurisdictional framework

8. The water management principles are set out under s 5 of the WM Act. It is the duty of all persons exercising functions under the WM Act to take all reasonable steps to do so in accordance with, and so as to promote, the water management principles, at s 9(1) of the WM Act.

9. An application for a water management work approval must be made to the Minister in accordance with the regulations under s 92(2) of the WM Act. The Minister is to determine the application after considering the application and all matters relevant to the application by granting the approval to which application relates, or by refusing the application, under s 95(1) of the WM Act. In considering whether to grant an approval, the Minister must take into account such matters as are prescribed by the regulations and such other matters as the Minister considers to be relevant, under s 96 of the WM Act. No relevant matters are prescribed by the General Regulation for the purposes of s 96 of the WM Act.

10. The WSW Approval was made under s 90 of the WM Act for seven water supply works. An application may relate to more than one approval whether of the same or a different kind, under s 92(4) of the WM Act. A water supply work is defined by the dictionary, and a water supply work approval is a type of water management work approval (s 90(2) of the WM Act). A water supply work approval authorises its holder to construct and use a specified water supply work at a specified location.

11. An approval may not be granted in contravention of the provisions of the relevant water management plan under s 95(3) of the WM Act. The ‘Water Sharing Plan for the Macquarie Bogan Unregulated Rivers Water Sources 2012’ (Exh 1, tab 14), which was the relevant water management plan (at cl 4(x)), is no longer in force and no replacement plan has been made.

12. A water management work approval is not to be granted unless the Minister is satisfied that adequate arrangements are in force to ensure that no more than minimal harm will be done to any water source, or its dependent ecosystems, as a consequence of the construction or use of the proposed water management work, under s 97(2) of the WM Act.

Findings

13. I accept the Second Respondent’s submission that the ‘Water Sharing Plan for the Macquarie Bogan Unregulated Rivers Water Sources 2012’ is listed as “no longer in force” on the Legislation NSW website and the extension time for the management plan expired on 30 June 2025, and as such there is no management plan for s 95(3) of the WM Act to operate upon to constrain any power of the Court to grant an approval.

14. I accept the parties’ agreement that the merit contentions raised in the Amended Statement of Facts and Contentions (Exh B) are no longer in issue due to agreements reached by the hydrology experts in their joint report as to amended and new conditions.

15. The parties have presented the necessary evidence for the Court to determine that it is lawful and appropriate to make the consent final orders. I am satisfied, on the bases of the hydrology experts’ agreed evidence in the joint report and the submissions of the parties, that that operation of the approved water supply works in accordance with the amended conditions of the WSW Approval would cause no more than minimal harm to the water source or its dependent ecosystems as a consequence of the construction or use of the seven proposed water management works, within the meaning of s 97(2) of the WM Act.

Orders

16. The orders of the Court, by consent, are:

17. The appeal is upheld.

18. Approval is granted to the Second Respondent’s application for a water supply works approval dated 8 November 2022 number A030539 on the amended terms in Annexure A.

19. The First Respondent will autogenerate condition numbers for those conditions without numbers in Annexure A when the approval is entered into its Water Licensing System.

20. The exhibits, other than Exhibits A, B and 11, are returned.

Susan O’Neill

Commissioner of the Court

Annexure A (331 KB, pdf)

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