Water Administration Ministerial Corporation v Wear

The Ministerial Corporation's recommendation

1. Ministerial Corporation undertook assessments in relation to the Licence Application and it recommended that the Licence Application be approved subject to the conditions contained in the Conditions Statement. The proposed conditions were: (1) THE HOLDER OF THE LICENSE SHALL WITHIN THREE MONTHS OF BEING CALLED UPON BY NSW OFFICE OF WATER TO DO SO, INSTALL TO THE SATISFACTION OF THE DEPARTMENT IN RESPECT OF LOCATION, FORM, TYPE AND CONSTRUCTION, AN APPLIANCE OR APPLIANCES FOR THE MEASUREMENT OF THE QUANTITY OF WATER DIVERTED OR TAKEN BY MEANS OF THE LICENSED WORK, SUCH APPLIANCE OR APPLIANCES TO CONSIST OF EITHER A MEASURING WEIR OR WEIRS WITH AUTOMATIC RECORDER OR METER OR METERS OF THE DETHRIDGE TYPE, OR SUCH OTHER CLASS OF METER OR MEANS OF MEASUREMENT AS MAY BE APPROVED BY THE DEPARTMENT, AND SHALL CONTINUOUSLY MAINTAIN SUCH APPLIANCE OR APPLIANCES IN GOOD WORKING ORDER AND CONDITION, AND SHALL, AFTER THE INSTALLATION OF SUCH APPLIANCE OR APPLIANCES, RECORD THE MEASUREMENTS OF ALL WATER DIVERTED OR TAKEN BY MEANS OF THE LICENSED WORK AND SUPPLY PARTICULARS OF SUCH MEASUREMENTS TO THE DEPARTMENT AT SUCH INTERVALS AS SHALL BE DIRECTED BY THE DEPARTMENT. WHENEVER CALLED UPON TO DO SO A TEST CERTIFICATE FURNISHED EITHER BY THE MANUFACTURER CONCERNED OR BY SOME PERSON OR AUTHORITY DULY QUALIFIED SHALL BE SUPPLIED BY THE HOLDER OF THE LICENCE AS TO THE ACCURACY OF THE APPLIANCE OR APPLIANCES INSTALLED. (2) WATER EXTRACTED BY MEANS OF THE LICENSED WORKS SHALL NOT BE USED FOR THE IRRIGATION OF GRASSES OR PASTURES WHICH ARE NOT SOWN GRASSES OR IMPROVED PASTURES. (3) THE LICENSEE SHALL NOT ALLOW ANY TAILWATER DRAINAGE TO DISCHARGE INTO OR ONTO; - ANY ADJOINING PUBLIC OR CROWN ROAD; - ANY OTHER PERSONS LAND; - ANY CROWN LAND; - ANY RIVER, CREEK OR WATERCOURSE; - ANY GROUNDWATER AQUIFER; - ANY NATIVE VEGETATION AS DESCRIBED UNDER THE NATIVE VEGETATION CONSERVATION ACT 1997 OR THE NATIVE VEGETATION ACT 2003; - ANY WETLANDS OF ENVIRONMENTAL SIGNIFICANCE. (4) WORKS USED FOR THE PURPOSE OF CONVEYING, DISTRIBUTING OR STORING WATER TAKEN BY MEANS OF THE LICENSED WORK SHALL NOT BE CONSTRUCTED OR INSTALLED SO AS TO OBSTRUCT THE REASONABLE PASSAGE OF FLOODWATERS OTHER THAN WATER TO BE IMPOUNDED OR OBSTRUCTED. (5) A VEGETATED BUFFER ZONE OF NOT LESS THAN 20 METRES MUST BE MAINTAINED BETWEEN THE IRRIGATED AREA AND THE HIGH BANK OF UNNAMED WATERCOURSE. (6) (A) SUBJECT TO ANY ACCESS OR FLOW CONDITION CONTAINED IN THE LICENCE, THE HOLDER MAY IN ANY ONE YEAR COMMENCING 1 JULY DIVERT UP TO THE LICENCED VOLUME OF 15 MEGALITRES OF WATER FOR IRRIGATION USE. (B) NOTWITHSTANDING PARAGRAPH (A), THE HOLDER MAY DIVERT UP TO TWICE THE LICENCED VOLUME IN ONE YEAR PROVIDED DIVERSIONS DO NOT EXCEED THREE TIMES THE LICENCED VOLUME IN ANY THREE YEAR PERIOD. (C) THE HOLDER SHALL MAINTAIN RECORDS OF WATER USAGE AS SPECIFIED BY THE DEPARTMENT AND WHEN REQUESTED TO DO SO, SHALL FURNISH THE RECORDS TO THE DEPARTMENT. (7) THE LOCATION OF THE DAM(S) AS SHOWN ON A PLAN RETAINED IN THE OFFICE OF NSW OFFICE OF WATER SHALL NOT BE ALTERED. (8) THE LEVEL OF THE INVERT OF THE PIPE SPILLWAY OF THE DAM SHOWN AS NUMBER 1 ON THE PLAN REFERRED TO IN CONDITION 7 SHALL BE FIXED AT NOT HIGHER THAN 1.8 METRES BELOW THE LEVEL OF A BENCH MARK ESTABLISHED ON A NAIL AT THE BASE OF A TREE ON THE LEFT BANK OF THE WATERCOURSE NEAR THE WORK AND PARTICULARS OF WHICH ARE RETAINED IN DEPARTMENT OF PRIMARY INDUSTRIES WATER. (9) IF AND WHEN CALLED UPON TO DO SO BY DEPARTMENT OF PRIMARY INDUSTRIES WATER THE LICENSEE SHALL CONSTRUCT THROUGH DAM 1 A PIPE WITH A DIAMETER OF NOT LESS THAN 80 MILLIMETRES FITTED WITH A STOP VALVE OR OTHER CONTROL DEVICE TO THE SATISFACTION OF THE SAID DEPARTMENT. THE LEVEL OF THE INVERT OF THE SAID PIPE SHALL BE FIXED AT NOT HIGHER THAN 2.4 METRES BELOW THE LEVEL OF THE BENCH MARK REFERRED TO IN CONDITION 8 OR, ALTERNATIVELY, THE LICENSEE SHALL PROVIDE AN 80 MILLIMETRE DIAMETER PIPE SIPHON OR OTHER APPROVED DEVICE FOR PASSING FLOWS THROUGH THE STORAGE OF THE DAM. (10) WHEN A FLOW IS ENTERING THE STORAGE OF DAM 1 THE PIPE REFERRED TO IN CONDITION 9, SHALL BE SO OPERATED AS TO MAINTAIN A FLOW IN THE WATERCOURSE DOWNSTREAM OF THE SAID DAM EQUIVALENT TO THE FLOW ENTERING THE STORAGE OF THE DAM FOR THE TIME BEING OR THE CAPACITY OF THE SAID PIPE, WHICHEVER IS THE LESSER. (11) THE LEVEL OF THE CREST OF THE BYWASH OF THE DAM SHOWN AS NUMBER 2 ON THE PLAN REFERRED TO IN CONDITION 7 SHALL BE FIXED AT NOT HIGHER THAN 2.22 METRES ABOVE THE LEVEL OF A BENCH MARK ESTABLISHED ON A NAIL AT THE BASE OF A TREE ON THE LEFT BANK OF THE WATERCOURSE NEAR THE WORK AND PARTICULARS OF WHICH ARE RETAINED IN THE DEPARTMENT OF PRIMARY INDUSTRIES WATER. (12) IF AND WHEN CALLED UPON TO DO SO BY DEPARTMENT OF PRIMARY INDUSTRIES WATER THE LICENSEE SHALL CONSTRUCT THROUGH DAM 2 A PIPE WITH A DIAMETER OF NOT LESS THAN 80 MILLIMETRES FITTED WITH A STOP VALVE OR OTHER CONTROL DEVICE TO THE SATISFACTION OF THE SAID DEPARTMENT. THE LEVEL OF THE INVERT OF THE SAID PIPE SHALL BE FIXED AT NOT HIGHER THAN 0.8 METRES ABOVE THE LEVEL OF THE BENCH MARK REFERRED TO IN CONDITION 11 OR, ALTERNATIVELY, THE LICENSEE SHALL PROVIDE AN 80 MILLIMETRE DIAMETER PIPE SIPHON OR OTHER APPROVED DEVICE FOR PASSING FLOWS THROUGH THE STORAGE OF THE DAM. (13) WHEN A FLOW IS ENTERING THE STORAGE OF THE DAM THE PIPE REFERRED TO IN CONDITION 12, SHALL BE SO OPERATED AS TO MAINTAIN A FLOW IN THE WATERCOURSE DOWNSTREAM OF THE SAID DAM EQUIVALENT TO THE FLOW ENTERING THE STORAGE OF THE DAM FOR THE TIME BEING OR THE CAPACITY OF THE SAID PIPE, WHICHEVER IS THE LESSER. (14) THE WORK SHALL BE CONSTRUCTED AND MAINTAINED IN A SAFE AND PROPER MANNER THAT WILL MINIMISE THE POSSIBILITY OF DAMAGE BEING OCCASIONED BY IT, OR RESULTING FROM IT TO ANY PUBLIC OR PRIVATE INTEREST.
2. A proposed amendment to Condition 5 provides that the vegetated buffer zone be not less than 10 metres between the irrigated area and the high bank of the unnamed watercourse and that it be planted and maintained in accordance with a vegetated management plan approved by the Ministerial Corporation.
3. As the application no longer seeks orders in relation to Dam 2, conditions 11 to 13 of the Conditions Statement do not arise.

Applicable legislation

1. Section 4A of the Act provides: 4A Inquiries and appeals - requirement to take certain matters into account (1) A judicial body is required, in carrying out any of its inquiry or appeal functions under this Act and in making any determination or recommendation with respect to any such inquiry or appeal, to take into account, and to have due regard to, the following matters: (a) any relevant policy that concerns the subject-matter of the inquiry or appeal and that is brought to the attention of the judicial body, (b) any State-wide water resource management objectives that are brought to the attention of the judicial body, (c) any relevant inter-government agreement, treaty or arrangement relating to the management, preservation or sharing of the State's water resources that is brought to the attention of the judicial body, (d) the state of water resources, and the state of the environment generally, at a local, regional and State-wide level as brought to the attention of the judicial body, (e) the impact that the judicial body's determination or recommendation could or might have: (i) on the allocation of water resources at a local, regional and State-wide level, and (ii) on other persons who are entitled to take and use water (apart from those to whom the inquiry or appeal relates), and (iii) on the state of water resources, and on the state of the environment generally, at a local, regional and State-wide level, and (iv) in relation to the management, protection and enhancement of the State's water resources. (2) In this section: "judicial body" means the Land and Environment Court, the Civil and Administrative Tribunal or a Magistrate. "relevant policy" means any governmental policy relating to the management, protection and enhancement of the State's water resources.
2. Section 11 of the Act provides: 11 Notification of application for licence (1) On application being made for a licence under section 10, the Ministerial Corporation shall cause to be advertised once in the Gazette and once in a newspaper published and circulating in the district where the work is or is proposed to be situated, a notice containing particulars of the application. (1A) Subsection (1) does not require the Ministerial Corporation to cause to be advertised a notice containing particulars of an application unless it is satisfied that the applicant occupies, or will obtain the right to occupy, the site of the work. (2) Where, at the time the application is made, the work is, or is proposed to be, situated within a declared local area, any: (a) local occupier, or (b) statutory authority, whose interests may be affected by the granting of the application may, within 28 days after the date of the publication of the later of the advertisements referred to in subsection (1), lodge with the Ministerial Corporation an objection thereto. (2A) Where, at the time the application is made, the work is not, or is not proposed to be, situated within a declared local area, any person whose interests may be affected by the granting of the application may, within 28 days after the date of the publication of the later of the advertisements referred to in subsection (1), lodge with the Ministerial Corporation an objection thereto. (2B) An objection referred to in subsection (2) or (2A) shall be in writing and shall specify the grounds of objection. (2C) If, after the application is advertised: (a) the applicant amends the application as advertised, and (b) in the opinion of the Ministerial Corporation the changes warrant the advertising of the application as amended, the Ministerial Corporation shall advertise the amended application in the manner referred to in subsection (1) and: (c) the provisions of this section shall apply to the amended application as if it were a new application, and (d) the application as originally made shall be deemed to be withdrawn. (3) (a) After the expiry of a period of twenty-eight days after the date of the publication of the later of such advertisements, the Ministerial Corporation shall decide whether the application should be granted or refused. (b) Where the decision of the Ministerial Corporation is that the application should be granted the Ministerial Corporation shall give the applicant notice of the period, terms, limitations and conditions proposed to be applied to the licence. (4) In any case where the decision of the Ministerial Corporation is that the application should be refused, the applicant shall be notified in writing of such decision and may, within ninety days from the date of such notification, appeal to the Land and Environment Court against such decision. 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. Where the appeal is upheld the Land and Environment Court shall specify the period, terms, limitations and conditions (if any) to be applied to the licence. The decision of the Land and Environment Court upon any such appeal shall be final. (5) The Ministerial Corporation must apply to the Civil and Administrative Tribunal for an inquiry into: (a) if the Ministerial Corporation decides that an application for a licence should be granted but an objection has been lodged under subsection (2) or (2A) - the desirability of granting the application for a licence, or (b) if the applicant for a licence is dissatisfied with the decision of the Ministerial Corporation as to the period, terms, limitations or conditions proposed to be applied to the licence and has, within 28 days after notice has been given to the applicant in accordance with subsection (3), lodged with the Ministerial Corporation a written objection-the period, terms, limitations and conditions proposed to be applied to the licence. (6) The application for the inquiry must be made within 28 days after the relevant objection is received by the Ministerial Corporation. (6A) An inquiry by the Civil and Administrative Tribunal is to be: (a) notified by the Ministerial Corporation once in the Gazette and once in a newspaper published and circulating in the district where the work is or is proposed to be situated, and (b) by way of a hearing that is open to the public. (6B) In addition to the Ministerial Corporation and the applicant, the Civil and Administrative Tribunal is to permit such other persons or bodies as it considers have interests that may be affected by any matter to which the inquiry relates to make submissions to the inquiry. (6C) In determining the inquiry, the Civil and Administrative Tribunal is to: (a) in the case of an inquiry into the desirability of granting the application for a licence - determine whether the licence should be granted and, if so, the period, terms, limitations and conditions to be applied to the licence, or (b) in the case of an inquiry into the period, terms, limitations and conditions proposed to be applied to a licence-determine the period, terms, limitations and conditions to be applied to the licence. (6D) The Civil and Administrative Tribunal must ensure that a written statement of reasons (setting out the matters referred to in section 62 (3) of the Civil and Administrative Tribunal Act 2013) for its determination of an inquiry is: (a) provided to both the Ministerial Corporation and the applicant for the licence even if they have not requested that statement under section 62 of that Act, and (b) published on the website of the Tribunal. (7) This section is subject to section 11A. (8) Subsections (1)-(3) (a) do not apply to an application for a licence in respect of an existing work.
3. I discussed these provisions and other applicable legislation in my decision in Water Administration Ministerial Corporation v Wear [2017] NSWCATAD 24. I stated at paragraphs [48] - [56] of that decision: 48. Section 11(6B) of the Act provides: (6B) In addition to the Ministerial Corporation and the applicant, the Civil and Administrative Tribunal is to permit such other persons or bodies as it considers have interests that may be affected by any matter to which the inquiry relates to make submissions to the inquiry. 49. At the public hearing I expressed the view that section 11(6B) of the Act should be interpreted broadly. Several members of the public made oral submissions but due to time constraints not all of those who wanted to make submissions could be heard. I therefore invited those who consider that they have interests that may be affected by any matter to which the inquiry relates to make written submissions. 50. I allowed time for the parties to respond to those submissions. It is necessary that I determine which of those persons or bodies, if any, fall within the scope of section 11(6B) of the Act and to take account of any relevant submissions. 51. Thirteen submissions were received. Of those, six oppose the granting of the Licence; three propose additions or amendments to the proposed Conditions attached to the Licence; and four support the granting of the Licence. ... 55. As I have indicated above, it is my view that section 11(6B) of the Act should be given a broad interpretation. I am of the view that, with the exception of Kamaldeep Singh Clair and Phillip Wilk, each of the persons and bodies who have made submissions has interests that may be affected by "any matter to which the inquiry relates". While I accept that Mr Wilk and Mr Singh Clair have an interest in the industry generally, it is my view that their interests are too remote to fall within the scope of section 11(6B) of the Act. Nevertheless, I am satisfied that the issues that they have raised are relevant and have been addressed adequately by the Licence Applicants. 56. I note that the interests of the Orara Valley Rivercare Groups Management Committee and the Nana Glen LandCare Group are also wider than the specific locality that is the subject of this enquiry. However, I am also satisfied that some of the activities of these groups are directed towards rehabilitation works in regard to the Bucca Bucca creek. In my view their interests fall within the scope of section 11(6B) of the Act. In any event, other submissions have also addressed the issues that they have raised.

Material before the Tribunal

1. Each of the parties has provided written submissions.
2. The Applicants rely on the evidence of Mukhtiar Singh and evidence from Dr Ian Joliffe and Dr Peter Beck. Dr Joliffe and Dr Beck each provided reports in support of the Applicants case. Evidence is also provided by Mr Simon Proust who had prepared a 'Whole Farm Plan' for the Applicants.
3. The Applicants also rely on the evidence of Mr Kent Lee who is the son of Mr Peter Lee, the transferor of the 15 megalitres surface water rights to the Applicants.
4. The Respondents rely on submissions and evidence from Gaven Wear.
5. In response to an invitation that I made at the hearing in this matter, a number of interested persons and bodies have lodged submissions in relation to the application. Submissions have been received from: (a) Douglas Binns; (b) PB & RB Connolly, (undated) received 17 November 2016; (c) The Hallgath family with a submission by Dr Ray Hallgath; (d) Gavin, Debbie & Mikayla Howard; (e) Nana Glen Landcare Group Inc; (f) Orara Valley Rivercare Groups Management Committee Inc; (g) Margaret Payne; (h) Dr Sally Townley; (i) Gaven Wear; and (j) Andrew & Carol Wright.
6. The Nana Glen Landcare Group Inc subsequently withdrew its submission.

The Applicants' Objections to the submissions

1. The Applicants accept that the Respondents are entitled to be permitted to make submissions to the inquiry pursuant to section 11(6B) of the Act. However, they do not concede that others are entitled to make submissions.
2. In that regard I have had the benefit of detailed submissions by Mr Tomasetti and as a result of those submissions I propose to revisit the approach to receiving submissions that have been made pursuant to section 11(6B) of the Act.
3. Mr Tomasetti submitted that whilst section 11(6B) may be interpreted "broadly" the language of the statute must be faithfully applied. The submission must be made:

• by a person or body,
• that the Tribunal considers have
• an interest or
• interests that may be affected by
• any matter to which the inquiry relates

1. Mr Tomasetti submitted that the Hallgarth "family" is not a person or persons as required by section 11(6B). In terms of the relevant interests he submitted: The "interest' in question must be a present interest in point of time: Allan v Transurban City Link Ltd at [60] (citation below). The statutory provision is stated in the present tense. The decision to grant either or both applications, if made, must have immediate consequences. It is not sufficient to say, for example, that a person has an interest because he or she (or their families over prior generations) formerly owned land in the water catchment area and remains emotionally or sentimentally attached to the locality. And it is not sufficient to establish a present interest to assert that the person intends to acquire land in the future say, dependent upon the outcome of the particular Inquiry, and will not do so if the decision is made to grant the relevant licence. It is not sufficient for a person to assert that he is merely interested in the Inquiry. It is not adequate to assert a qualifying interest by expressing a general love of the environment, an interest in water quality, an objection to Blueberry farming practices in the Bucca Bucca Creek catchment or an interest or concern for a threatened species such as the Giant Barred Frog. These are interests that may be shared by any member of the general public. There must be an identified "interest" and that interest must be relevant. The relevant interest then must be one that is "affected" by a matter to which the Inquiry relates. In this case, the matters before the Inquiry are an application to extract a maximum amount of water from the Dam in question and the installation of a pump to extract water to irrigate crops from that dam. Accordingly, the claimed interest must be affected by those matters and those matters only. There is high authority for the proposition that the interest should be actually affected in the causative sense. Brennan J in McHattan and Collector of Customs (1977) 18 ALR 154 acknowledged that use of the word "affected' described a "zone of connection". Sometimes he said the affect will be direct and sometimes indirect. His Honour then went on to say: "The character of the decision is relevant, for if the interests relied on are of such a kind that a decision of the given character could not affect them directly, there must be some evidence to show that the interests are in truth affected." It is for the submitter to establish to the Tribunal's satisfaction exactly how his interest is affected. Very similar words to those in s11 (6B) appear in other legislation. For example, in the Administrative Appeals Tribunal Act 1975 ("the AAT Act"), s 27 provides: Persons who may apply to Tribunal (1) Where this Act or any other enactment ... provides that an application may be made to the Tribunal for a review of a decision, the application may be made by or on behalf of any person or persons ... whose interests are affected by the decision. And in the Development Allowance Authority Act 1992 ("the DAA Act"), s 119 provides: Reconsideration of reviewable decisions (1) A person who is affected by a reviewable decision may, if dissatisfied with the decision, by notice given to the DAA within: (a) the period of 21 days after the day on which the decision first comes to the attention of the person; or (b) such further period as the DAA allows; request the DAA to reconsider the decision. As with of s 11(6B) the Water Act 1912, to engage the powers of the AAT under s 27 of the AAT Act, it is not sufficient that the person is affected. It is necessary that that person's interests must be affected. The foregoing differentiation suggests a narrowing of the range of those who can initiate statutory action when one gets to the stage of the AAT. Whatever "interests" mean (and they may, depending on the statute, go far beyond the traditional property interests with which the common law and equity were typically concerned) they tend to narrow the focus of those who may lawfully engage the powers of the AAT and oblige it to conduct a review: See Allan v Transurban City Link Ltd [2001] HCA 58; (2001) 208 CLR 167 at 59. As Brennan J observed in Re McHattan and Collector of Customs the problem which was inherent in the language of the statute there under consideration was the determination of the point beyond which the affection of interests by a decision should be regarded as too remote for the purposes of s 27(1). In Allan v Transurban City Link Ltd (2001) 208 CLR 167 the High Court considered the meaning of s 119(1) of the DAA Act and said: [14] ... It is whether Mr Allan was, within the meaning of s 119(1), a person who was "affected by" the decisions of the Authority under s 930 to issue the certificates upon the applications by Transurban so that, being dissatisfied with the decisions, he was authorised by s 119(1) to request the Authority to reconsider them. [15] The expression "affected by" and cognate terms appear in a range of laws of the Commonwealth. This is not the occasion for a disquisition on that topic. It is necessary to answer the questions posed above in respect of s 119(1) of the Authority Act by reference to the subject, scope and purpose of that statute, rather than by the application of concepts derived from decisions under the general law respecting what has come to be known as "standing". "Standing" is a metaphor to describe the interest required, apart from a cause of action as understood at common law, to obtain various common law, equitable and constitutional remedies. [16] In Re McHattan and Collector of Customs (New South Wales), Brennan J stated that "[a]cross the pool of sundry interest, the ripples of affection may widely extend". However, as Davies J pointed out in Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd [(1994) 32 ALD 71], Brennan J "did not propose that any ripple of affection would be sufficient to support an interest". A particular statute may establish a regime which specifically provides for its own measure of judicial review on the application of persons meeting criteria specified in that statute. The present case involves such a statute. The starting point, as indicated by several authorities in the Full Court of the Federal Court, is the construction of the Authority Act with regard to its subject, scope and purpose. ... [58] ... under s 119(1) of the DAA Act talks generally of "[a] person who is affected". But... under s 27(1) of the AAT Act (it) requires that the person's "interests" must be affected by the decision in question. On the face of this statutory language, contrary to the view adopted in the joint reasons, s 119(1) of the DAA Act is concerned with a wider question of affection. Its focus is upon the entire person in question, who may then set in train a course of events leading to, if necessary, application to the AAT for review. Yet to engage the powers of the AAT, it is not apparently sufficient that the person is affected. It is necessary that that person's interests must be affected. [59] The foregoing differentiation may suggest a narrowing of the range of those who can initiate statutory action for review when one gets to the stage of the AAT. Whatever "interests" mean (and they may, depending on the statute, go far beyond the traditional property interests with which the common law and equity were typically concerned) they tend to narrow the focus of those who may lawfully engage the powers of the AAT and oblige it to conduct a review. [60] This is not such a surprising differentiation. One could readily appreciate a legislative policy that permitted a larger entitlement in persons (those "affected by a reviewable decision") to require the DAA to reconsider the decision and a narrower class (those "whose interests are affected by the decision") alone to have the power to initiate review before the AAT. The language of the two Acts, particularly when read in juxtaposition, suggests that this is the way in which they were expected to operate together. Each of the statutory provisions is stated in the present tense. Each, if fulfilled, has immediate consequences. In the case of s 119(1) of the DAA Act, it triggers the obligation ("must reconsider the decision") provided later in the section and other procedures, including time limits for a decision by the DAA and an entitlement to make application to the AAT. In the case of the AAT Act, where the person's interests are affected by the decision, that person may make application to the AAT. And if the person "is entitled to apply to the [AAT] for a review of the decision", various consequences follow immediately. Most especially, once a valid application is made, the AAT has power to review a decision that is otherwise within its jurisdiction. [61] It is because of the consequences that follow successive satisfaction of the requirements of ss 119 and 120 of the DAA Act and ss 25 and 27 of the AAT Act, that the question of whether the criteria of affection have been satisfied must be decided at the respective times referred to. In the case of s 119 of the DAA Act, this is the time of the "request [to] the DAA to reconsider the decision". In the case of the application to the AAT, the time is that when such application is made. This was the view taken of the latter provisions by Brennan J, as President of the AAT, in Re McHattan and Collector of Customs. His Honour there said: "The interest of which s 27(1) speaks is an interest which is affected by the decision to be reviewed, not by the review. The outcome or possible outcome of the proceedings is not the criterion for determining whether the proceedings have been duly instituted, and the relevant interest must be one which is affected by the demand whatever the outcome of a review might be." [62] In the same case, Brennan J acknowledged that use of the word "affected" described a zone of connection. But it did not do so in terms of scientific precision. Sometimes, it will be plain that the interests of a person are affected (and similarly that a relevant person is affected). Sometimes the effect will be direct and sometimes indirect. His Honour went on: "Across the pool of sundry interests, the ripples of affection may widely extend. The problem which is inherent in the language of the statute is the determination of the point beyond which the affection of interests by a decision should be regarded as too remote for the purposes of s 27(1). The character of the decision is relevant, for if the interests relied on are of such a kind that a decision of the given character could not affect them directly, there must be some evidence to show that the interests are in truth affected."
2. I agree with the Applicants that in order for a submission to be within the scope of section 11(6B) of the Act, the person or body making the submission needs to identify the relevant interest and establish that the interest may be affected by any matter to which the inquiry relates.
3. It is not in dispute that the matters to which the inquiry relates are an application to extract water from the dam and the installation of a pump to extract water to irrigate crops from that dam. I agree with the Applicants that the claimed interest must be affected by those matters.
4. The question therefore arises as to which of any of those who have made submissions fall within the scope of section 11(6B) of the Act.
5. I have considered each of the submissions and I have also considered arguments made by the Applicants in regard to each of the submissions. In the circumstances I am not satisfied that any of the persons who have made submissions has established that they have a relevant interest that may be affected by any matter to which the Inquiry relates.
6. I agree with the Applicants that each of the persons who have made submissions has failed to establish either what the relevant interest is or how the relevant interest will be affected by any matter to which the Inquiry relates. Therefore, the submissions do not fall within the scope of section 11(6B) of the Act and I will not consider them further.
7. As noted, it is common ground that the Respondents are entitled to make submissions pursuant to section 11(6B) of the Act.

Respondents' objections

1. As noted, the Respondents have objected to the grant of the Licence. In his submission to the inquiry Mr Gaven Wear stated that:

• he is a fourth generation resident in the area and has lived in the Bucca Valley his whole life;
• he owns two properties which have Bucca Creek as the boundary. Both properties are downstream of the site;
• he is a member of the local land care group;
• he is extremely concerned over the current health of Bucca creek and the more frequent periods of low flows caused by increased extraction, potentially affecting the long term survival of threatened species and protected fauna like platypus and other aquatic species;
• his objection is based on the need to maintain environmental flows with improved water quality;
• there is insufficient water flow at the driest time of the year. Water level and quality is below that required to maintain healthy environment;
• he is concerned about nutrient, sediment and chemical run off; silting of Bucca Creek; lack of policing of the amount and timing of the water removal; fair water sharing for other residents and ecosystems.

1. He provided detailed submission in support of his objections.
2. in his opinion, a number of threatened fauna species/ecological communities in Bucca creek have the potential to be affected by this development but were not identified: a. Giant Barred frog, Mixophyes iterates b. Golden lipped bat, Kerivoula papuensis c. Black necked stork, Ephippiorrhynchus asiaticus d. Lowland Rainforest Endangered Ecological Community Heritiera trifoliata (White Booyong)
3. Mr Wear also provided detailed submissions in regard to the report prepared by Dr Peter Beck. He challenged some of Dr Beck's opinions and provided commentary based on his own knowledge from living in the area. He did not provide any independent basis for his criticism. He also asserted that the available data regarding environmental flows required for ecosystems of Bucca creek is obsolete. He provided his own assessment of the water requirements of the Applicant's plants based on the available data and the need to supply the plants with the nutrients and essential elements added to the drip irrigation. He concluded that the 'worst case scenario' usage for mature plants proposed by the Applicants is more than likely the normal consumption.
4. He also noted and expressed doubt about Mr Singh's claim that in the construction of the dam the contractor had exceeded the permitted dimensions of the dam. The contractor dug the dam too deep and made the wall too high. He submits that as a result the error, the quantity of water available to the Applicants was sufficient to meet the approximate annual consumption.
5. Mr Wear also expressed concern in regard to what steps would be taken to ensure that Mr Lee does not continue to extract the full amount of his former water entitlement notwithstanding the transfer of part of his entitlement to the Applicants.
6. Mr Wear also noted that no method of providing low flow bypass has been implemented and is only a requirement if at some time is requested by the relevant government department.
7. Mr Wear also challenged the assumption that there would be no net loss to the catchment area. He did this on the basis that no consideration was given to the question of what proportion of the existing surface water entitlements involved sleeper licences or the extent to which the maximum harvestable rights were exceeded. He did not provide any independent evidence in support of his assertion in regard these issues.
8. He also noted that most licences allow for twice the extraction in a given year and contends that if this occurred during an extended dry period then the effect would be devastating on the Bucca creek ecology. He stated that during a recent below average rainfall period when flows in Bucca creek fell well below the low flow index, no pumping restrictions were imposed to protect the environment and the protected/threatened species.
9. Mr Wear referred to the statement in Dr Becks report that "The new dam was constructed to incorporate three bypass pipes of 0.2m diameter, set 0.3m below the spillway to allow flow through the dam, maintain environmental flows in the catchment and limit the potential for erosion"
10. He submitted that this is not a method to act as a bypass and provide environmental flows to the catchment, and that a correct method would be a system to bypass the whole dam during periods of low rainfall only allowing water to enter the dam under high flows or at very least a pipe with an invert fixed not higher than 2.4 meters below the level of the bench mark.
11. He requests that the relevant Government department:

• re-establish flow measurements to get up to date data of the actual flows in Bucca creek;
• commission a suitably qualified and independent person to establish an environmental flow requirement based upon the life cycle requirements of all protected fauna and flora in Bucca creek catchment;
• reassess the environmental impact assessments based upon this environmental flow and take into consideration the possibility of a worst case scenario of cumulative water extraction;
• strictly meter and monitor all extraction for intensive horticultural or irrigation purposes;
• establish methods to allow maximum water extraction during peak rainfall periods and methods to allow some water to bypass or be returned to the catchment during periods of low flow;
• establish independent water monitoring, funded by the licence holders, to monitor nutrient/sediment and chemical run off; and
• carry out proactive policing of licence holders.

Relevant considerations

1. As noted above, section 4A of the Act provides for a number of matters that must be taken into account in this inquiry. The parties have made submissions in regard to those matters and for the most part they are in agreement with respect to which matters are relevant in the circumstances of this inquiry. The Ministerial Corporation submitted, and the Applicants essentially agree that: a) Relevant policies concerning the subject-matter of the inquiry
2. The NSW Weirs Policy and the NSW Wetlands Management Policy are relevant to the subject-matter of the inquiry as both policies were considered by the Ministerial Corporation in assessing whether to grant the Licence Application for the proposed work.
3. The proposed work will not cause significant run-off of sediment, nutrients or pollutants, will not obstruct or have a significant impact on the movement of fish, and will not impact on threatened species in the area.
4. The proposed work will not significantly drain surface water flow to any wetlands downstream of the proposed work and will therefore have no impact on any downstream wetlands. b) State-wide water resource management objectives
5. The goals and principles of the Weirs Policy set out State-wide water resource management objectives.
6. The proposed work does not have a significant environmental impact.
7. The Purpose of the Wetlands Management Policy sets out State-wide water resource management objectives.
8. The proposed work will not significantly impact on wetland vegetation, water quality, natural productivity, biological diversity and flood mitigation in the area. c) Relevant inter-government agreement, treaty or arrangement relating to the management, preservation or sharing of the State's water resources
9. The Weirs Policy and the Wetlands Management Policy implement the Council of Australian Governments (COAG) Water Reform Framework dated 25 February 1994.
10. The Wetlands Management Policy implements the Intergovernmental Agreement on the Environment (IGAE) dated 1 May 1992.
11. The proposed work is not inconsistent with those Policies. d) The state of water resources, and the state of the environment generally, at a local, regional and State-wide level as brought to the attention of the judicial body
12. Given that the volume of water under consideration amounts to approximately 15 megalitres per annum, the state of water resources and of the environment generally should be considered at a local and regional level only.
13. The Report card for the Bucca Bucca Creek Water Source and the Assessment Sheet completed by the Ministerial Corporation set out the state of water resources and the environment generally at a local and regional level.
14. It would be open to the Tribunal to find that, given the state of water resources and the environment, as evidenced in the Report Card for the Bucca Bucca Creek Water Source and the Assessment sheet, it is desirable to grant the Licence Application. e) (i) Impact on the allocation of water resources at a local, regional and State-wide level
15. The Licence Application is consequential to the Transfer of Water Rights from Mr Lee. Given the water concerned was available for use by Mr Lee prior to the Licence Application, the overall impact on the allocation of water resources is minimal.
16. It would be open to the Tribunal to find that the granting of the Licence represents a negligible impact on the water resources at a local, regional and State-wide level, as the water rights attaching to the Licence are merely transferred from one Licence holder to another. e) (ii) Impact on other persons who are entitled to take and use water (apart from those to whom the inquiry or appeal relates)
17. No other impacted persons have been identified as the Licence relates to a transfer of an existing water allocation.
18. It would be open to the Tribunal to find that the granting of the Licence will have no impact, or minimal impact at the most, on other persons entitled to take or use the water. e) iii) Impact on the state of water resources, and on the state of the environment generally, at a local, regional and State-wide level
19. It is open to the Tribunal to find that there is minimal impact on the state of water resources and on the state of the environment generally, at a local, regional and State-wide level. e) iv) Impact in relation to the management, protection and enhancement of the State's water resources
20. It is open to the Tribunal to find that the Licence has minimal impact on the management, protection and enhancement of the State's water resources.

The Applicants' case

1. As noted, the Applicants rely on several reports and other evidence to address the issues raised by the Respondents.

The evidence of Mukhtiar Singh

1. Mr Singh provided his own evidence and evidence in reply to the submissions provided by Mr Wear. He is a fourth generation farmer in the area. He gave evidence of his background and events leading up to purchase of the site, the preparations made to grow blueberries on the site and the need for the licence application.
2. In June 2015, the Applicants entered into an agreement with Mr Peter Lee to purchase 15 megalitres of surface water rights from a water licence entitlement of 75 megalitres per year of water. Mr Lee's property is in the same catchment as the site and located approximately 250 metres south of the site but upstream of the Respondents' properties. The Applicants applied for the permanent transfer of 15 megalitres of surface water rights from Mr Lee's property to the site. In regard to the transfer Mr Sing stated: In about mid-2013, I approached Kent Lee (son of Peter Lee, the transferor / vendor), and told him that we were looking to purchase a property in the Bucca area for our planned blueberry farm. We became friends with Kent through our son, Brian, who worked with him at the same accountancy firm of which we were a customer. I asked Kent whether his family would consider selling some of their surface water rights to us for the farm once we found a suitable property. Kent later advised me that they could sell 25 ML to us. I advised him that provided we found a suitable property, we would only need 15 ML. In about mid to late 2014, after buying the Site in late 2013, Kent and I discussed the need to prepare the necessary documents regarding the sale of the 15 ML, which we agreed to purchase for $30,000. Kent indicated that he would contact DPI Water regarding the documents and arrange for them to be signed by his father, Peter. We agreed that the sale would be settled (and the $30,000 paid) once the 15 ML of surface water rights were transferred to us. Sometime later, in about June 2015, we received through Kent, the Transfer Application form signed by his father, Peter Lee ... It was subsequently signed by us and dated 25 June 2015, before being lodged with DPI Water.
3. When the Applicant's purchased the site it had an area of 40 hectares and contained a house and small dam ("the Old Dam"). On the site were unnamed first, second and third order watercourses.
4. In regard to the dams he stated: At the time of purchasing the Site, it was our understanding (based on my calculations) that the Old Dam had a water storage capacity of approximately 2 ML. The Old Dam was located on a first order watercourse which would only run after a rain event. We have since discovered, following a professional survey of the Old Dam in July 2015, that its capacity is actually 4.2 ML and not 2 ML. At 2 ML, the Old Dam was too small to provide us with the water security we needed to irrigate the blueberry farm planned for the Site. As a result, we commissioned the construction of a new dam near the Old Dam with a storage capacity of 3 ML. It was to be located on a first/second order watercourse, which would only ever run after a rain event. Once the new dam was constructed, I thought we would have a total water storage capacity of about 5 ML between the Old Dam and the new one and which was within the 5.6 ML MHRDC permitted for the Site. By 20 December 2013, as noted above, the new dam (New Dam) was constructed. ... I arranged for the New Dam to be professionally surveyed in July 2015. The surveyor reported that its capacity was 12.4 ML and not 3 ML. I was very surprised to receive this advice. Both the Old Dam and the New Dam are 'by-wash' type dams, meaning each is fed by surface water run-off (during and after a rainfall event) from the first order / second order watercourses upon which they are located and the local catchment. Neither dam is fed by any pumping of water from Bucca Bucca Creek. … Following the completion of the New Dam, we started sourcing existing surface water rights from other properties in the same catchment as the Site to purchase for transfer to the Site. By 25 June 2015, we had entered into a written agreement with Peter Lee … to purchase 15 ML of surface water rights from his water licence (30SL048484) entitlement in respect of the Lee Property for the sum of $30,000. That sum will be paid to Mr Lee once the surface water rights are transferred to us. … In around June 2015, I received a telephone call from Brett McCulloch, Water Regulation Officer for DPI Water - Murwillumbah. He said that DPI Water was responding to a complaint regarding the size of the New Dam and that he would be attending the Site to investigate whether or not we had exceeded the MHRDC for the Site. Concerned that we may have inadvertently exceeded the MHRDC, I commissioned Blairlanskey Russell Surveying (registered surveyors) to undertake a survey of the Old Dam and the New Dam for the purposes of calculating their storage capacity (volume). ... I was shocked to discover from the Dam Volumes Survey that the volume estimates for the Old Dam and the New Dam totalled 16,600 cubic metres (16.6 ML) rather than the 5 ML we had planned for and believed they were. The Dam Volumes Survey reported that the dams had the following volume estimates: (a) Old Dam (shown as Dam 'A') = 4,200 cubic metres (4.2 ML) (b) New Dam (shown as Dam 'B') = 12,400 cubic metres (12.4 ML) I subsequently learned that in constructing the New Dam, the plant operator excavated too deep and built the dam wall too high. I did not pick up those errors until after the New Dam was surveyed in July 2015. … On or about 5 August 2015, DPI Water's Mr McCulloch (and another person whose name I do not recall) attended the Site to investigate whether or not we had exceeded the MHRDC for the Site. During his attendance, they examined the Old Dam and the New Dam, as well as the Site generally, taking notes and photographs. Whilst Mr McCulloch was at the Site, I discussed the Dam Volumes Survey with him and provided him with a copy I had received from Blairlanskey Russell Surveying. I also discussed with him, our plans for the blueberry farm, the agreement with Mr Lee to purchase 15 ML of his surface water rights to irrigating the farm and the Transfer Application. I recall also discussing with him, our plans to lodge an application for a surface water licence in respect of the 15 ML of surface water rights, the Old Dam, the New Dam and the two centrifugal pumps extracting water from those dams to irrigate our blueberry farm. I recall Mr McCulloch advising me, in effect, that once our applications were assessed and approved by DPI Water, the surface water licence would permit us to irrigate our blueberry farm from the Old Dam and the New Dam. Prior to leaving the Site, Mr McCulloch advised me that a 'warning letter' would be sent to us in due course regarding his attendance that day. As foreshadowed by Mr McCulloch on 5 August 2015, DPI Water subsequently sent us a 'warning letter' dated 19 October 2015 ... Application for Surface Water Licence On 5 August 2015, we completed an Application for Surface Water Licence which included environmental impact information and an assessment. ...
5. In regard to Mr Wear's concerns related to reduced water flow in Bucca Bucca Creek at the driest time of the year Mr Singh stated that:

• There will be minimal (if any) impacts on water flows at the driest time of the year, as no water will be extracted from the Creek and the New Dam will only fill during major rain events when water runs off the land;
• During dry periods, no water will be flowing in the first order watercourse to feed the New Dam;
• In times of rain, any excess water from the New Dam will continue to flow into the watercourses and out to the Creek, as will the water from the catchment in the forest west of the Site that feeds the third order watercourse in the north-western corner of the Site.

1. In regard to Mr Wear's concerns related to nutrient, sediment and chemical run off from the irrigated area Mr Singh stated that: (a) The irrigated area has been carefully planned and is managed to minimise any run-off of nutrients, sediment and chemicals to the Site's watercourses, Old Dam and New Dam; (b) The drip irrigation system is computer controlled and carefully monitored, optimising water and fertiliser usage; (c) Mats are in place between the blueberry plants to control weeds which also help to reduce water loss, control sediment movement and minimise water usage in irrigation. We have fewer weeds, therefore smaller amounts of chemicals are required to control them, and chemical run-off is minimal; (d) Fertilisers are applied directly to the root zones of the blueberries through the computerised irrigation system, minimising any nutrient loss, waste and run-off; (e) There are grassed buffer zones around the irrigated area and within the rows between the blueberry plantings, which we maintain to minimise and slow any run-off; (f) Silt traps are also in place to help catch any nutrient, sediment and chemical run-off that may get through the buffer zones.
2. In regard to Mr Wear's concerns related to creek 'silting' due to water level drop and that the creek no longer forms an adequate boundary Mr Singh stated that: (a) A drop in water level in the creek does not cause 'silting'. It is a drop in velocity of the stream water travelling in the stream that may allow silt that otherwise may stay in suspension to fall out of the stream. However my understanding is that the practices we put in place on our farm will not give rise to sediments in the stream in the first place and that the water that we use will essentially come from surface flow run-off; (b) If the water level of the streams are dropping from farming practices in the catchment and the Creek is 'silting', which I do not accept, then all landowners in the catchment should be involved in addressing those concerns; (c) Neither of the Objectors' properties … shares any common boundary with the Site, which is about 1 km south of the Objectors' properties at the nearest point …; (d) Any concerns the Objectors have with neighbouring cattle crossing the Creek should be addressed directly with their neighbours across the Creek,.
3. In regard to Mr Wear's concerns related to lack of policing of the amount and timing of the water removal Mr Singh stated that: (a) The DPI Water Approval includes strict conditions … which we accept and agree to comply with; (b) Our compliance with the conditions will be monitored and policed by DPI Water; (c) Any concerns the Objectors' have with DPI Water's policing can be taken up with that authority; (d) Whilst we acknowledge the NSW DPI Primefact 827 comment regarding mature blueberry plants requiring 2-3 ML/ha irrigation per year, our experience at the Site is that our plants would only require those volumes in a worst case scenario where there is no rainfall throughout the year. There is good reliable rainfall generally speaking in the Coffs Harbour area. Presently, if irrigation is required, we irrigate 10 minutes per block per day at an estimate of 300 litres per minute. With 14 blocks to irrigate, that equates to approximately 42,000 litres of water per day if irrigation is required. Depending on the weather and soil conditions, the frequency of irrigation varies from no irrigation at all (if the ground is wet) to up to 5 to 6 days of irrigation per week (during a very dry period). Assuming a worst case scenario (i.e. during a drought, with no rain throughout the year - which is rare, in my experience), our 14 blocks of blueberry plants at the Site would require up to 18.9 ML of irrigation per year, calculated as follows: (i) 15 minutes per block per day x 14 blocks x 300 litres per minute = 63,000 litres per day for the 14 blocks (ii) x 25 days per month = 1,575,000 litres (1.575 ML) per month (iii) x 12 months per year = 18,900,000 litres (18.9 ML) per year

Dr Joliffe's Report and Reply

1. Dr Joliffe is Principal Engineer with GHD Pty Ltd. He has wide experience in flooding, urban development and related civil engineering, drainage and stormwater design and investigation projects. His Report was prepared to address the concerns raised by the Respondents and to undertake a hydrological assessment of likely flow impacts of the granting of the licences.
2. Dr Joliffe's opinion is reflected in the views expressed by Mr Sign that I have referred to above. He summarised his conclusion as follows: My review has been undertaken of the hydrologic conditions and impacts of the proposed licence approval shows that there is no reason why the licence should not be granted. The approval relates to two dams and associated pumps at 407 Central Bucca Road, Bucca together with the transfer of an extraction licence to the same property. An examination of the engineering and hydrological impact components of the assessment completed by DPI Water as part of the licence application review was completed and the finding of that examination was that the review and assessment was considered appropriate. A more detailed hydrological assessment of the impacts of the proposed works was then completed to be able to specifically address points of objections that had been raised by objectors. Each point of objection has been examined and based upon my experience and farming operational experience consider the granting of the licence to be appropriate.
3. In his statement in reply to Mr Wear's submissions Dr Joliffe stated: Insufficient Water Flow at driest time, water level and quality is below that for healthy environment In paragraph 1 of the Wear Submission, Mr Wear states that he believes the DPI assessment has not been correctly assessed under the Environmental Planning and Assessment Act 1979 ("Act") and there has been no consideration of the potential future activation of "sleeper licences" which could have a cumulative impact if activated. I make no comment on this matter. The subject application is not one that requires development consent under the Act. I have no direct knowledge of the process applied within the DPI assessment. As indicated in my report (at 1.6), I have nevertheless reviewed the hydrological aspects of DPI's assessment and agree with the details of that assessment. Nutrient, sediment and chemical runoff In paragraph 4 of the Wear Submission, Mr Wear refers to a requirement of the licence conditions relating to tail water drainage. He indicates that blueberry rows are located directly on the ground slope (uphill to downhill) and discusses historical runoff from the site. The irrigation is by drip irrigation. This technique minimises the potential for tailwater runoff and except for the potential circumstance of a failure of the irrigation system it is not expected that tailwater runoff will ever occur. I observed during my visit, that some bare soil was visible on the mounds where the blueberries are actually planted. Weed matting is placed to assist in weed suppression and minimise runoff while also providing stabilisation of the soil surface. In paragraph 5 of the Wear Submission, Mr Wear states that the blueberry plantation potentially encroaches into the vegetative buffer distance of 20 m from the unnamed watercourse. Mr Wear then goes on to raise the matter that grass alone is an inadequate buffer. The irrigation system has fertilisers added to the irrigation water which will then be applied to the plantation through drip irrigation. Using that process, spray drift of fertiliser chemicals is highly unlikely to occur. Silting of Bucca Creek In paragraph 7 of the Wear Submission, Mr Wear discusses progressive siltation of Bucca Creek and says that approximately 21 years ago Bucca Creek formed a property boundary / barrier to cattle movement. He also comments on the potential for cattle to enter deep water to drink, the potential for cattle to cross water approximately 200 mm deep and the statement in my report that gauging of Bucca Creek was discontinued in 1991. My responses are: (a) The depths of flow and potential siltation will occur as a result of the broad changes in land use and changes in the climate of the catchment. These changes are thus a result of past historical decisions and parameters outside the control of regulators and cannot now be a determining factor in this assessment. (b) I am aware that cattle will enter deep water, where it exists, to both drink and to cool themselves on hot days. The fact that they will enter deep water does not necessarily mean that they will exit the deep water to the other side of a watercourse. (c) I reiterate my own experience that cattle do not, as a generalisation, tend to cross even relatively shallow water to graze unless there is a good reason such as better pasture being available across the water. The use of a watercourse as a property barrier is an opportunistic situation and is not one that is reliable. (d) The last sentence in Mr Wear's paragraph seems to be implying that since there is no recent gauging of Bucca Creek it would be inappropriate to grant the licence as there is no reliable recent records of flows. That would preclude the granting of any future licence until there has been an acceptable period of data gathering and that could sterilise granting licences for many years. I expect that flow rates in Bucca Creek will have changed over the years with the changes of land use within the entire catchment, as a result of changes in climate patterns and also potentially as a result of changed irrigation extraction patterns and amounts. Lack of policing of water extraction from Bucca Creek In paragraph 8 of the Wear Submission, Mr Wear discusses the forecast water usage for irrigation purposes. He raises 2 matters of the forecast volumes of water use and the application of nutrients to the blueberries. He has made several assumptions when arriving at future claimed water usage values for the site. It is unclear to me whether all those assumptions are justified or correct. For example, drip irrigation is proposed to minimise water consumption to a value as low as practicable for the operation. In paragraph 12 of the Wear Submission Mr Wear discusses there being a claimed net loss of water resulting from the proposed transfer. He has based his response around Mr Lee having a "sleeper licence". However, I have assumed in giving my opinions that Mr Lee was always entitled to use his full extraction (or any part of it) and under that assumption there can be no net loss of volume in Bucca Creek.
4. Dr Joliffe concluded: I am of the opinion that there has not been any matter raised m the Wear Submission that warrants refusal of the subject application.

Dr Beck's Report and Reply.

1. Dr Beck is a Hydro geochemist with wide experience in environmental science and geotechnical engineering. His report sets out the sampling, analysis and quality control program for monitoring of surface water quality at the site.
2. Dr Beck concluded that the analytical results for the samples collected indicated that nutrient concentrations were below the adopted water quality criteria and no herbicide or pesticides were detected in the water samples. Therefore there was no evidence to suggest that the current blueberry horticulture activates at the site had any discernible impacts on surface water quality. He observed: Water quality sampling was undertaken at four (4) of the eight (8) selected locations and occurred in a period of dry conditions when rainfall in the catchment for four months preceding the sampling event was only 46% of the average rainfall that normally occurs over this period. Therefore the surface sampling event would have occurred under near worst case conditions when limited flushing of the catchment had occurred and above average irrigation was used on the blueberry horticulture. The water quality results from the monitoring event undertaken on 3 May 2016 show no evidence of any adverse impacts to the surface water quality by nutrients leaving the site via the creek. Results for the four (4) monitoring locations sampled had measured nutrient concentrations below the adopted environmental, stock and drinking water quality guidelines. This suggests that there are no unacceptable adverse impacts on surface water quality by nutrients associated with blueberry horticulture at the site. Based on the test results, the nutrient concentrations entering the property at the New Dam (Location #1) and the third order creek at location 3 (Location #3) are higher than those leaving the site in the third order creek at location 5 (Location #5). This suggests an attenuation of nutrients across the site. The surface water samples had measured colour and turbidity values above the adopted water quality guidelines values. As with the nutrients, the colour and turbidity values measured in the sample of water leaving the site at location 5 (Location #5) is lower than those measured in surface water flowing onto the site at locations 1 (Location #1) and 3 (Location #3). Given the low flow conditions the turbidity of the samples is likely to be higher than under normal flow conditions.. The measured coliform bacteria concentrations are elevated and exceed the stock and drinking water quality guidelines. The Faecal Coliform and E-coli counts are lower in the sample of water leaving the site at location 5 (Location #5) than those counted in the samples flowing onto the site at locations 1 (Location #1) and 3 (Location #3). The faecal coliforms and E-coli would not be associated with blueberry horticulture but are more likely due to a combination of natural background, run-off from cattle grazing areas and discharges from septic systems. The measured bacteria concentrations are likely higher than under normal flow conditions when the creek is subject to greater flushing. No pesticides or herbicides were detected in any of the water samples analysed. While some of the detection limits for pesticides were not low enough to confirm all concentrations were below the adopted criteria, there were no detections for those where the detection limit was low enough. Those for which the detection limits were not low enough are generally no longer in use having been phased out more than 20 years ago and are therefore not associated with current blueberry horticulture activities at the site. The results of the pesticide and herbicide analysis in the water samples collected from the site suggests that discharge of pesticides upstream off and on the site would not be a significant issue that adversely impacts surface water quality. Overall the assessment of water quality sampling and analysis indicates that there are no unacceptable adverse impacts on surface water quality due to nutrient and agricultural chemical discharge from the irrigation on the blueberry horticulture areas on the site.
3. Dr Beck provided a statement in which he responded to the concerns that Mr Wear raised in his submissions. Having reviewed and considered Mr Wear's submissions he concluded that he did not alter the opinions reached in his Report.

The evidence of Mr Simon Proust

1. As noted above, Mr Proust prepared a 'Whole Farm Plan' for the Applicants. Mr Proust also provided a statement in reply to concerns that Mr Wear raised in his submissions. He noted that on the basis of his observations he formed the opinion that the New Dam was 'spring fed' rather than relying solely on runoff.
2. Having reviewed and considered Mr Wear's submissions he concluded that: The Whole Farm Plan is a strategic medium to long term plan for the property, with implementation to be staged over the years and regularly reviewed. The Whole Farm Plan complements management of sediment, controlling erosion, managing nutrient runoff and maintaining groundcover that Mr Wear aspires to achieve in maintaining Bucca Creek as a healthy ecosystem. The Whole Farm Plan supports I believe what Mr Wear wants to achieve. For example, he wants fencing out and managing the native vegetation along riparian zones. ... The maintenance of vegetative groundcover on the property in the grazing paddocks and between blueberry rows will assist in minimising soil loss and subsequent nutrient rich runoff. As noted in the WFP, the property has excellent vegetation groundcover (over 70%) between the blueberry rows and grazing paddocks.

The evidence of Mr Kent Lee

1. As noted above, Mr Kent Lee is the son of Mr Peter Lee, the transferor of the 15 megalitres surface water rights to the Applicants. Mr Kent Lee provided a statement in which he clarified some issues that had been raised in the submissions. He stated: The Lee family holds a 75 ML (not 65 ML) surface water licence (the Lee licence) per year, of which 15 ML per year has been sold by dad and mum to the Singhs. The reference to 65 ML in the Application for Permanent Transfer of Surface Water Rights between my father and the Singhs dated 25 June 2015 (Transfer Application) is incorrect. It should have read 75 ML, not 65 ML, an inadvertent error. Contrary to Mr Wear's assertion, the Lee licence is not a 'sleeper', as water is periodically extracted from Bucca Bucca Creek (the Creek) under the licence to irrigate the Lee farm. In recent years, the amount of water extracted from the Creek under the Lee licence has been low due to the relatively high cost to irrigate the Lee farm and given the low returns for beef production from the farm. Beef profits have improved over the last year or so. The amount of water that we might extract from the Creek under the Lee licence may increase for fodder production. It is my understanding that the surface water rights under the Lee licence will reduce from 75 ML per year to 60 ML per year once the transfer of the 15 ML per year to the Singhs is granted under the Transfer Application. The Lee licence draws from the Creek and does not require any change in capacity of any on-farm storage. The farming operations at the Lee farm comply with all relevant legislation, including the Water Act 1912, so far as I am aware and will continue to do so. The reduction in surface water allocation to 60 ML per year will be assiduously adhered to and all necessary records kept and maintained in accordance with the conditions of the Lee licence to confirm compliance with the relevant legislation.
2. Mr Tomasetti submitted that those matters that the Respondents have raised that are relevant to the Inquiry have all been adequately addressed, assessed and considered as required by the applicable legislation. The Applicants submitted that the Tribunal ought to grant the Application in accordance with approval referred to above subject to the necessary amendments related to the exclusion of dam 2. The Applicants accept that the grant of the licence would be subject to the period, terms, limitations and conditions as set out above.

The Ministerial Corporation's submissions

1. I have set out above the Ministerial Corporation's position in regard to the relevant considerations under section 4A of the Act. The Ministerial Corporation has provided further written submissions and noted: The Ministerial Corporation, in assessing the licence application, concluded that there was no expected cumulative environmental effect with other existing or likely future activities. This conclusion was reached on the basis that: the Dam would collect water that was transferred from an existing allocation of water. The existing allocation of water belongs to Mr Lee who extracts the water from Bucca Bucca Creek. Consequently, the net cumulative effect on the water flow into Bucca Bucca Creek is nil, regardless of whether the water is being extracted by the Licence Applicants or by Mr Lee. Proposed Condition 9, which requires the installation of a low flow bypass pipe with a diameter of no less than 80mm, would maintain a minimum level of flow in the watercourse and minimise the impact of the Dam on water flow. There is no reliable evidence before the Tribunal that establishes adverse cumulative environmental effects of the Dam with existing or likely future activities. There is no reliable evidence before the Tribunal to establish that there is currently an over-allocation of water entitlements in the Bucca Bucca Creek catchment area, or to establish that the construction, use and maintenance of dams on creeks that flow into the Bucca Bucca Creek catchment area is causing a major adverse impact on the flow of water to the Bucca Bucca Creek catchment area. Some of the Objectors submit that the Tribunal must consider the cumulative effect of the Dam when considered in combination with other existing and likely future dams that may be built by blueberry farmers in the region, and with respect to over-allocation of water within the Bucca Bucca Creek catchment area. In response, the Ministerial Corporation submits that, while cl 228(2)(o) of [Environmental Planning and Assessment Regulation 2000] the EPA Regulation requires the consideration of the cumulative impact of the Dam with likely future activities, this does not require or permit the Tribunal to take into account entirely hypothetical matters such as the potential for other blueberry farmers to also construct dams in the local region. It is untenable, in assessing the Licence Applicant's licence application, to consider the environmental impact of potential licence applications in the future from an unknown number of blueberry farmers which the Ministerial Corporation has not received, assessed or approved. Even if the Tribunal considers that potential applications for a licence by blueberry farmers are a relevant consideration, the Tribunal is not presented with any reliable evidence as to the adverse environmental impact of these future potential licences. … The question to be determined by the Tribunal is the impact of the Dam and does not permit considerations of the potential impact of an entire industry or range of activities. Therefore, the Ministerial Corporation submits that the intended purpose of cl 228(2)(o) of the EPA Regulation requires consideration to be given to the cumulative environmental effect of existing and likely future activities that are associated with the Dam alone.
2. In regard to Whether the Dam is likely to have an adverse impact on any flora, fauna or ecosystems in the region, the Ministerial Corporation considered the impact on: a) The Giant Barred Frog (Mixophyes Iterates) b) The Golden-tipped Bat c) The Black Bittern d) The Platypus
3. Based on the Threatened Species Assessment dated 17 December 2015, it concluded the Dam will have minimal or no adverse impact on any flora, fauna or ecosystems in the region.
4. The Ministerial Corporation submits that submissions relating to farming practices carried out by the Licence Applicants, including submissions relating to practices involving spray drift from the irrigated area on the Applicants' property to neighbouring properties, and the removal of trees for further expansion of the Applicants' activities on their property, are irrelevant considerations for the Tribunal in determining the desirability of granting a Licence for the Dam. These submissions do not address the environmental impact of the Dam itself and the issues raised were not relevant considerations for the Ministerial Corporation when assessing the licence application.
5. The Ministerial Corporation further submits that there is no reliable evidence to support submissions that runoff from the Licence Applicants' property during substantial rainfall contains nutrients, sediments or chemicals.
6. The Ministerial Corporation also made submissions in regard to proposed additional and amended conditions. It submitted that it is open to the Tribunal to impose the condition that metering of the Dam to be commenced within three months of the licence application being approved by the Tribunal.
7. In regard to the amendment of Proposed Condition 5, which provides for a vegetated buffer zone of no less than 10 metres that is to be planted and maintained with vegetation in accordance with a re-vegetation plan approved by the Ministerial Corporation, it is submitted that in light of the evidence given by Dr Beck that there does not appear to be any contamination to the unnamed watercourse from the irrigated area on the site, and the evidence given by Mr Peter Hackett that Proposed Condition 5 is not a mandatory condition and that the distance required for a vegetated buffer zone can be altered where the Ministerial Corporation is satisfied with the vegetation to be planted in the buffer zone, it is open to the Tribunal to amend Proposed Condition 5.
8. The Ministerial Corporation does not consider that other additional or amended conditions are necessary.

Discussion

1. In these reasons I have referred to specific material and submissions relied on by each of the parties. However I do not refer to all of the material that has been filed. With the exception of the section 11(6B) submissions that I have referred to above, I have had regard to all of the filed material, including material that I do not refer to in these reasons.
2. I accept that many of those who live and work along and in close proximity to the Bucca Bucca creek have been in a position to observe the creek over a long period of time and to make observations about the health of the creek. However, as I have noted above, I am not satisfied that this is sufficient to bring the interests within the scope of section 11(6B) of the Act.
3. I have referred above to many of the issues that the Respondents have raised and the bases of their concerns. While I accept that for the most part these are legitimate concerns, the material in support is anecdotal. There is no data against which the observed changes can be assessed to determine the actual causes of the changes that have been observed.
4. In contrast, the Applicants evidence is based in recent sampling and analysis. Dr Beck and Dr Joliffe have specifically addressed the concerns that have been raised and I am satisfied that their views are reasonable in the circumstances.
5. This material provides a basis on which the impact of development can be monitored in the future and where risks are identified on the basis of empirical data measures can be taken to address those risks. This will allow more accurate consideration of the cumulative impact on the protected flora and fauna.
6. As has been noted, the Licence Application relates to the transfer of an existing water allocation from Mr Lee to the Applicants. I am satisfied that the Licence Application does not concern any new allocation of water from the Bucca Bucca creek Catchment. The proposal is to transfer part of Mr Lee's allocation. It concerns a transfer within the same catchment area and there is no net change to the allocation of water that can be taken from the Bucca Bucca creek catchment.
7. On the basis of the evidence of Mr Kent Lee I am not satisfied that Mr Lee's water allocation was a "sleeper" allocation. In any event, the Tribunal has no power to impose conditions on Mr Lee's water usage. Mr Lee's water entitlements and use are not under review in these proceedings. If he exercises his right to take water from the creek, the actual amount of water taken from the creek catchment may well increase when compared to recent years but there is no reason to believe that his water usage would not be within his entitlements. Concerns that he might exceed that entitlement appear to be unwarranted. If the transfer of 15 megalitres to the Applicants were not permitted, Mr Lee would be entitled to use those 15 megalitres for his own purposes. With that transfer, the overall entitlement to water is not altered.
8. The enforcement provisions available under the Act and the Water Management Act 2000 provide an avenue to address issues relating to excessive water usage from either Mr Lee's entitlement or any other water entitlements in the catchment area.
9. In my view, the appropriate response is to allow the transfer of 15 megalitres of surface water per year from Mr Lee's allocation to the Applicants and to impose conditions that are designed to ensure that the concerns that have been raised are addressed.
10. As has been noted above, fourteen licence conditions were proposed by the Ministerial Corporation at the time of the original determination. It is common ground that several of those conditions are no longer relevant because of the amended application. As the application no longer seeks orders in relation to Dam 2, conditions 11 to 13 of the Conditions Statement do not arise. The Applicants have proposed an amendment to condition 5. The Respondents have opposed that amendment but the Ministerial Corporation has submitted that it is open to the Tribunal to allow that amendment.
11. Mr Wear has expressed concerned that the proposed licence conditions will not be adequate to address the issues that he has raised. I do not share that concern. In my view, the combination of the proposed conditions and the regulatory powers provided for by the legislation should be sufficient to ensure that the impact of the proposed development on the rate of flow of Bucca Bucca creek and associated issues is minimised. I am also satisfied that the measures put in place by the Applicants as part of the Whole Farm Plan should be sufficient to address the remaining concerns related to nutrient, sediment and chemical run off from the irrigated area.
12. Nevertheless, I propose that there be regular monitoring of compliance with the conditions to which the licence would be subject and that those conditions be reviewed after a period of two years in order to assess their effectiveness.
13. In these circumstances, it is my view that the proposed grant is desirable. The grant should be subject to the conditions proposed by the Ministerial Corporation with the exception of conditions 11 to 13. I am also satisfied that the proposed amendment to Condition 5 should be allowed.
14. The approval is also to be subject to the additional conditions that metering of the Dam is to be commenced within three months and the conditions are to be reviewed after a period of two years in order to assess their effectiveness in limiting the environmental impact of the proposed work.
15. The applicable conditions are therefore: (1) THE HOLDER OF THE LICENSE SHALL WITHIN THREE MONTHS OF THE GRANT OF THE LICENCE, INSTALL TO THE SATISFACTION OF THE DEPARTMENT IN RESPECT OF LOCATION, FORM, TYPE AND CONSTRUCTION, AN APPLIANCE OR APPLIANCES FOR THE MEASUREMENT OF THE QUANTITY OF WATER DIVERTED OR TAKEN BY MEANS OF THE LICENSED WORK, SUCH APPLIANCE OR APPLIANCES TO CONSIST OF EITHER A MEASURING WEIR OR WEIRS WITH AUTOMATIC RECORDER OR METER OR METERS OF THE DETHRIDGE TYPE, OR SUCH OTHER CLASS OF METER OR MEANS OF MEASUREMENT AS MAY BE APPROVED BY THE DEPARTMENT, AND SHALL CONTINUOUSLY MAINTAIN SUCH APPLIANCE OR APPLIANCES IN GOOD WORKING ORDER AND CONDITION, AND SHALL, AFTER THE INSTALLATION OF SUCH APPLIANCE OR APPLIANCES, RECORD THE MEASUREMENTS OF ALL WATER DIVERTED OR TAKEN BY MEANS OF THE LICENSED WORK AND SUPPLY PARTICULARS OF SUCH MEASUREMENTS TO THE DEPARTMENT AT SUCH INTERVALS AS SHALL BE DIRECTED BY THE DEPARTMENT. WHENEVER CALLED UPON TO DO SO A TEST CERTIFICATE FURNISHED EITHER BY THE MANUFACTURER CONCERNED OR BY SOME PERSON OR AUTHORITY DULY QUALIFIED SHALL BE SUPPLIED BY THE HOLDER OF THE LICENCE AS TO THE ACCURACY OF THE APPLIANCE OR APPLIANCES INSTALLED. (2) WATER EXTRACTED BY MEANS OF THE LICENSED WORKS SHALL NOT BE USED FOR THE IRRIGATION OF GRASSES OR PASTURES WHICH ARE NOT SOWN GRASSES OR IMPROVED PASTURES. (3) THE LICENSEE SHALL NOT ALLOW ANY TAILWATER DRAINAGE TO DISCHARGE INTO OR ONTO; - ANY ADJOINING PUBLIC OR CROWN ROAD; - ANY OTHER PERSONS LAND; - ANY CROWN LAND; - ANY RIVER, CREEK OR WATERCOURSE; - ANY GROUNDWATER AQUIFER; - ANY NATIVE VEGETATION AS DESCRIBED UNDER THE NATIVE VEGETATION CONSERVATION ACT 1997 OR THE NATIVE VEGETATION ACT 2003; - ANY WETLANDS OF ENVIRONMENTAL SIGNIFICANCE. (4) WORKS USED FOR THE PURPOSE OF CONVEYING, DISTRIBUTING OR STORING WATER TAKEN BY MEANS OF THE LICENSED WORK SHALL NOT BE CONSTRUCTED OR INSTALLED SO AS TO OBSTRUCT THE REASONABLE PASSAGE OF FLOODWATERS OTHER THAN WATER TO BE IMPOUNDED OR OBSTRUCTED. (5) A VEGETATED BUFFER ZONE OF NOT LESS THAN 10 METRES MUST BE PLANTED MAINTAINED BETWEEN THE IRRIGATED AREA AND THE HIGH BANK OF UNNAMED WATERCOURSE IN ACCORDANCE WITH A RE-VEGETATION PLAN APPROVED BY THE MINISTERIAL CORPORATION. (6) (A) SUBJECT TO ANY ACCESS OR FLOW CONDITION CONTAINED IN THE LICENCE, THE HOLDER MAY IN ANY ONE YEAR COMMENCING 1 JULY DIVERT UP TO THE LICENCED VOLUME OF 15 MEGALITRES OF WATER FOR IRRIGATION USE. (B) NOTWITHSTANDING PARAGRAPH (A), THE HOLDER MAY DIVERT UP TO TWICE THE LICENCED VOLUME IN ONE YEAR PROVIDED DIVERSIONS DO NOT EXCEED THREE TIMES THE LICENCED VOLUME IN ANY THREE YEAR PERIOD. (C) THE HOLDER SHALL MAINTAIN RECORDS OF WATER USAGE AS SPECIFIED BY THE DEPARTMENT AND WHEN REQUESTED TO DO SO, SHALL FURNISH THE RECORDS TO THE DEPARTMENT. (7) THE LOCATION OF THE DAM(S) AS SHOWN ON A PLAN RETAINED IN THE OFFICE OF NSW OFFICE OF WATER SHALL NOT BE ALTERED. (8) THE LEVEL OF THE INVERT OF THE PIPE SPILLWAY OF THE DAM SHOWN AS NUMBER 1 ON THE PLAN REFERRED TO IN CONDITION 7 SHALL BE FIXED AT NOT HIGHER THAN 1.8 METRES BELOW THE LEVEL OF A BENCH MARK ESTABLISHED ON A NAIL AT THE BASE OF A TREE ON THE LEFT BANK OF THE WATERCOURSE NEAR THE WORK AND PARTICULARS OF WHICH ARE RETAINED IN DEPARTMENT OF PRIMARY INDUSTRIES WATER. (9) IF AND WHEN CALLED UPON TO DO SO BY DEPARTMENT OF PRIMARY INDUSTRIES WATER THE LICENSEE SHALL CONSTRUCT THROUGH DAM 1 A PIPE WITH A DIAMETER OF NOT LESS THAN 80 MILLIMETRES FITTED WITH A STOP VALVE OR OTHER CONTROL DEVICE TO THE SATISFACTION OF THE SAID DEPARTMENT. THE LEVEL OF THE INVERT OF THE SAID PIPE SHALL BE FIXED AT NOT HIGHER THAN 2.4 METRES BELOW THE LEVEL OF THE BENCH MARK REFERRED TO IN CONDITION 8 OR, ALTERNATIVELY, THE LICENSEE SHALL PROVIDE AN 80 MILLIMETRE DIAMETER PIPE SIPHON OR OTHER APPROVED DEVICE FOR PASSING FLOWS THROUGH THE STORAGE OF THE DAM. (10) WHEN A FLOW IS ENTERING THE STORAGE OF DAM 1 THE PIPE REFERRED TO IN CONDITION 9, SHALL BE SO OPERATED AS TO MAINTAIN A FLOW IN THE WATERCOURSE DOWNSTREAM OF THE SAID DAM EQUIVALENT TO THE FLOW ENTERING THE STORAGE OF THE DAM FOR THE TIME BEING OR THE CAPACITY OF THE SAID PIPE, WHICHEVER IS THE LESSER. (14) THE WORK SHALL BE CONSTRUCTED AND MAINTAINED IN A SAFE AND PROPER MANNER THAT WILL MINIMISE THE POSSIBILITY OF DAMAGE BEING OCCASIONED BY IT, OR RESULTING FROM IT TO ANY PUBLIC OR PRIVATE INTEREST. (15) THESE CONDITIONS ARE TO BE REVIEWED AFTER A PERIOD OF TWO YEARS IN ORDER TO ASSESS THEIR EFFECTIVENESS IN LIMITING THE ENVIRONMENTAL IMPACT OF THE PROPOSED CONSTRUCTION OF A DAM AND A PUMP ON THE PROPERTY.

Orders 1. The Tribunal determines that the application for a licence made under Section 10 of the Water Act 1912 by Mangit Singh and Mukhtiar Singh of 407 Central Bucca Road, Bucca NSW 2450 for one dam and one pump on an unnamed watercourse situated on Lot 17 DP 876733, Parish Moonee, County Fitzroy for irrigation purposes should be granted, for a period of five years subject to the conditions set out in paragraphs 112 of these reasons.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 31 May 2017