Water NSW v Edwards

Background

1. Water NSW provided a chronology of event leading up to the commencement of the proceedings in the Tribunal. This chronology appears to be accurate.

• The Applicants submitted the Licence Application in January 2016. The Licence Application was accompanied by an Application for Permanent Transfer of Surface Water Rights ("the Transfer of Water Rights").
• The Transfer of Water Rights seeks the transfer of the rights to 66 megalitres of surface water per year from Adam J Kelly and Kylie M Hartnell to the Applicants for a consideration of $13,200.
• In March 2016, particulars of the Licence Application were published in the Government Gazette and the Daily Examiner. Any objections to the Licence Application were required to be submitted within 28 days of that publication.
• The Ministerial Corporation received a number of objections to the Licence Application within the specified 28 days period. Objections were received from Gai Weisse (subsequently withdrawn), Donald Caldwell, Walter and Annette Murray, Robyn Cooke, Rebecca and Aaron Elks, Alan and Glenys Wallbridge, Jeanette Egan and Terry Peisley (subsequently withdrawn), Robert Caldwell (subsequently withdrawn), Wendy Hedge, Gary Cropper, Clarence Environment Centre Inc., Douglas McGregor and Enid E Connors.
• In May 2016 the Ministerial Corporation conducted an assessment of the Licence Application in accordance with the criteria set out in section 5A of the Environmental Planning and Assessment Act 1979 and clause 228 of the Environmental Planning and Assessment Regulation 2000.
• As a result of its assessments the Ministerial Corporation determined that the Licence Application should be approved subject to the withdrawal of the outstanding objections.
• In June 2016 a meeting was held to discuss the objectors' concerns regarding the application.
• On 1 July 2016 responsibility for the management of the matter transferred from the Ministerial Corporation to Water NSW.
• In August 2016 Water NSW informed the Applicants and the Objectors of the determination to grant the Licence Application subject to conditions.
• A number of objectors advised Water NSW that they would not be withdrawing their objections.
• In October 2016 Water NSW referred the matter to the Tribunal in accordance with section 11(5)(a) of the Water Act.

The Proposed Licence Conditions

1. Water NSW proposed that a number of conditions be imposed on the Licence: (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 tail water 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 works shall not be constructed or installed so as to obstruct the reasonable passage of floodwaters flowing into or from a river. (5) A vegetated buffer zone of not less than 20 metres must be maintained between the irrigated area and the high bank of Orara River & 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 66 megalitres of water for irrigation & farming 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 pump shall not be used for the purpose of irrigation unless the discharge of the Orara River at the Glenreagh gauge is greater than 25 megalitres per day (such discharge corresponding to a reading of 0.46 metres on the said gauge or such other reading as may be determined from time to time).

Applicable Legislation

1. Section 4A of the Water Act sets out the matters that must be taken into account in conducting an inquiry. Section 4A 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(6A)(b) of the Water Act provides that an inquiry by the Tribunal is to be by way of a hearing that is open to the public. Section 11(6B) 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.
3. Section 11(6C) provides that in determining the inquiry, the 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
4. I discussed these provisions and other applicable legislation in my decision in Water Administration Ministerial Corporation v Wear [2017] NSWCATAD 172. I stated at paragraphs [29] - [34] of that decision: 29. …[I]n 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. 30. 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. 31. 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. 32. 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. 33. 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. 34. As noted, it is common ground that the Respondents are entitled to make submissions pursuant to section 11(6B) of the Act.
5. 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. That is, there must be an identified "interest" and that interest must be relevant. It is not sufficient that the person is affected. It is necessary that that person's interests must be affected. The interest should be actually affected. Sometimes the affect will be direct and sometimes indirect. It is for the objector to identify their interest and to establish to the Tribunal's satisfaction exactly how their interest is affected.
2. It is not sufficient to say, for example, that a person has an interest because he or she or their families formerly owned land in the water catchment area and remains emotionally or sentimentally attached to the locality.
3. Further, to establish a present interest it is not sufficient for a person to assert that they have a general love of the environment, an interest in water quality, an objection to blueberry farming practices in the river catchment or an interest or concern for a threatened species. These are interests that may be shared by any member of the general public.
4. In this matter, the application relates to a 150mm centrifugal pump on the Orara River. Therefore, the relevant interest must be one that is affected by a matter to which the inquiry relates i.e. the pump.

The Objections

1. Each of the objectors lodged written objections and several of them raised their objections at the inquiry hearing. The objections are largely concerned with the impact of the Applicant's operations on the environment. The concerns that were expressed included:

• Concern about the impact of chemicals on:
• human health;
• livestock;
• wild life, including bees and a number of endangered species;
• organic fruit and vegetable accreditation.
• Concern that chemicals can leach into the Orara River and watercourses, contaminating the water and affecting users downstream and marine life.
• Concern that the orchard will attract flying foxes and their diseases.
• Concern about the proposed 'new dam' on Chain of Ponds.
• Concern that a farming business of this magnitude will cause permanent damage to a vital watercourse.
• Concern that there has been over-allocation of extraction licences leading to a reduction in the flow of the river. Concerns were expressed that the pumping could:
• impact on trees and other plant life, including unique vegetation;
• impact on the health of the Orara River and the flow down to the Clarence River;
• reduced water flow at the driest time of the year;
• reduced fresh water flow which would allow salt water to flow further up the river;
• result in silting up of the Orara River because there is insufficient water in the river;
• impact badly on the environment and affect the already diminishing fish, birds, platypus, frogs and other wild life;
• impact on the availability of water for stock and domestic use;
• result in loss of access to permanent fresh drinking water and other domestic freshwater due to excessive water extraction.
• Concern about the measures that would be put in place to ensure that the water allocation can't be breached and whether compliance with the proposed conditions could be guaranteed if the licence is granted.
• Concern about the cumulative overall and associated impacts of the entire irrigation scheme.

1. Inquiry hearing was held as an open public forum. A number of the objectors attended the hearing and spoke in support of their position. The concerns that they expressed largely relate to the Applicant's proposed farming practices, such as the use of herbicides and pesticides, and how those practices might impact on both humans and the environment.
2. Alan Wallbridge spoke on behalf of the Fourth Respondents. He is a neighbour of the Applicants and grows vegetables. He is concerned about the effect of the Applicants practices on the environment and on his farming enterprises.
3. John Edwards represented the Clarence Environment Centre Inc and expressed concerns about the blueberry industry generally and its impact on the environment. In particular he raised issues in regard to the use of water - the amount of water used; how it is delivered; the cumulative impact of the industry on the availability of water; and the lack of regulatory control over the use of water. He noted that the requirement that usage is linked to measurement of flow taken at the gauge at Glenreagh, which is some 30 km from the premises, is not a measurement of the amount of water taken from the river.
4. Gary Cropper and Robert Caldwell both live downstream from the Applicant and are concerned that with decreased flow of the river the salinity levels will rise. They are concerned about the silting up of the river and that as a consequence the tidal impact is becoming greater and salt water flows further up the river.
5. While there is little doubt that the Applicant's farming practices, particularly the use of chemicals, are of legitimate concern to those living nearby and those downstream, those issues are outside the scope of this inquiry and the objections that were based on those concerns do not fall within the scope of section 11(6B). The concerns do not relate to interests that may be affected by any matter to which the inquiry relates.
6. However, there is a legislative requirement to consider a range of matters and many of the issues that have been raised regarding the impact of the proposed development have been addressed in that process.

Relevant considerations

1. As noted above, section 4A of the Water Act sets out the matters that must be taken into account in conducting an inquiry. The Tribunal is required to have regard to the impact that the determination could or might have in relation to a number of identified factors. The material that has been filed by Water NSW indicates that the Ministerial Corporation undertook an assessment and provided a report in relation to the section 4A factors.
2. Water NSW has provided a summary the Ministerial Corporation assessment report. In relation to that assessment Water NSW submitted that: a) 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 - Given that the volume of water under consideration amounts to approximately 66 megalitres per annum, the state of water resources and of the environment generally should be considered at a local and regional level only. - It would be open to the Tribunal to find that, given the state of water resources and the environment, as evidenced in the Ministerial Corporation's report for the Lower Orara River Water Source, it is desirable to grant the Licence Application. b) i) Impact on the allocation of water resources at a local, regional and State-wide level - The Licence Application is consequential to the Transfer of Water Rights which reduces the water allocated to Mr Kelly and Ms Hartnell from 100 megalitres to 34 megalitres per year. Given the water concerned was available for use by Mr Kelly and Ms Hartnell prior to the Licence Application, the overall impact on the allocation of water resources is minimal. Any impact could be considered beneficial as the water allocation is being transferred downstream. - 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. ii) Impact on other persons who are entitled to take and use water (apart from those to whom the inquiry or appeal relates) - No other impacted persons have been identified as the Licence relates to a transfer of an existing water allocation. - 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. iii) Impact on the state of water resources, and on the state of the environment generally, at a local, regional and State-wide level - On the basis of the conclusions outlined in the Ministerial Corporation's assessment, and because the Licence relates to a transfer of an existing water allocation, 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. iv) Impact in relation to the management, protection and enhancement of the State's water resources - The Water Sharing Plan for the Clarence River Unregulated and Alluvial Water Sources 2016 ("the WSP") commenced on 1 July 2016. If the Tribunal determines to grant the Licence Application, the Licence will be subject to the rules set out in the WSP. - The rules for the WSP are based on the volume of water extracted relative to stream flows, risk to environmental values and the level of social and economic dependence on water extracted. - Given the commencement of the WSP and because the Licence relates to a transfer of an existing water allocation, 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.
3. I have read the material prepared by the Ministerial Corporation in response to the Licence Application and I am satisfied that Water NSW has provided an accurate summary of that material.

Water NSW's Response to objections

1. In its submissions Water NSW provided a response to the issues raised by the objectors. Water NSW's position is that the concerns are addressed adequately by the proposed conditions.
2. For example, in regard to the concern that there will be insufficient flow in the Orara River and in particular that there will be reduced water flow at the driest time of the year, Water NSW contends that the concerns are mitigated adequately by proposed conditions 6 and 7. Proposed Condition 6 restricts the volume of water that may be extracted on a yearly basis. Proposed Condition 7 prescribes that the pump shall not be used for the purpose of irrigation unless the discharge of the Orara River at the Glenreagh Gauge is greater than 25 megalitres per day. Further, Proposed Condition 1 requires the installation of a meter upon being called to do so by Water NSW.
3. Water NSW also noted that the enforcement provisions contained in Chapter 7 of the Water Management Act 2000 provide Water NSW with the relevant enforcement powers to ensure compliance with the proposed conditions.
4. In regard to the concerns about nutrient, sediment and chemical run off from the Applicants' property Water NSW contends that the concerns are mitigated adequately by proposed conditions 3 and 5. Proposed Condition 3 prohibits the licensee from allowing any tailwater containing nutrients, sediments or chemicals to discharge into other properties. Proposed Condition 5 is intended to ensure that runoff from storm water is filtered before it enters the stream.
5. In regard to the concerns about a 'new dam' on Chain of Ponds, Water NSW also noted that the dam is covered by Harvestable Rights provisions and is not a consideration in the assessment of this Licence Application.
6. In regard to the concerns about the environmental impact of the Proposed Work, Water NSW noted that the Ministerial Corporation determined that the Proposed Work will have no cumulative effect on the environment. The Threatened Species Assessment assessed the Proposed Work as having no impact on those species. Further, the Ministerial Corporation assessed the Proposed Work as unlikely to have any impact on the habitat of protected fauna and unlikely to endanger any species of animal, plant or other form of life in water or the air.
7. In regard to the concerns about the possibility that Mr Kelly and Ms Hartnells might not comply with their reduced water entitlements, Water NSW again referred to the compliance and enforcement measures adequately provide for the enforcement of Mr Kelly's and Ms Hartnell's amended water entitlements.
8. Water NSW noted in summary that the Ministerial Corporation's assessment found that the Proposed Work would have no cumulative environmental effect, including minimal impact on water flows to the Orara River. It submitted that in these circumstances it would be open to the Tribunal to find that the grant of the proposed Licence is desirable and to recommend that the Proposed Conditions be imposed.

The Applicants' position

1. Mr Dosanjh appeared on behalf of the Applicants and noted that they are not seeking any extra water from the catchment. They have purchased the rights to an existing allocation of 66 megalitres of water and they are not seeking a greater allocation. They also contend that it is not in their interests to be pumping when the water is low. They intend to pump into a "turkey nest" dam when there is plenty of water. Mr Dosanjh noted that he and his family live on the farm and that the issues that are of concern to their neighbours would also affect them. As they are closer than the neighbours they would suffer any impact before the neighbours. They intend to abide by the proposed conditions as a safeguard against any potential danger.
2. The Applicants rely on a report prepared by Mr Duncan Thompson of environmental and engineering consultants GeoLINK. Mr Thompson also attended the inquiry hearing on behalf of the Applicants.
3. Mr Thompson is of the view that the objectors' concerns can be managed if best management practices are adopted. The proposed conditions add safeguards.
4. He stated that the Applicants do not want to waste water and propose to incorporate an automated drip irrigation system into their farming practice. They will monitor water requirements and where possible they will apply nutrients through the irrigation system. However, the actual method of applying chemicals will depend on the situation. Chemicals such as pesticides, insecticides and fungicides would be sprayed. Mr Thompson is of the view that spray drift can be managed by if best management practices are adopted.

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. Further, as I have noted above, I am unable to consider much of the material that has been presented by the objectors as it is not related to an interest affected by the inquiry.
2. 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.
3. I accept that many of those who live and work along the river, in close proximity to the premises, have been in a position to observe the river over a long period of time and to make observations about the health of the river. I am satisfied that the Applicants' practices in regard to pumping of water from the river could potentially impact on the health of the river. However, a general interest in the health of the river is not an interest within the scope of section 11(6B) of the Water Act.
4. I have referred above to many of the issues that the objectors have raised and the bases of their concerns. I accept that for the most part these are legitimate concerns. However, they are not interests within the scope of section 11(6B) of the Water Act.
5. As has been noted, the Licence Application relates to the transfer of an existing water allocation from Mr Kelly and Ms Hartnells to the Applicants. I am satisfied that the proposal is to transfer part of the existing allocation and that the Licence Application does not concern any new allocation of water from the river catchment. 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 river catchment.
6. I agree with Water NSW that the enforcement provisions provide an avenue to address issues that might arise relating to excessive water usage by either Mr Kelly and Ms Hartnells or the Applicants or relating to any other water entitlements in the catchment area.
7. It is my view that the transfer of water allocation from Mr Kelly and Ms Hartnells to the Applicants should be allowed. The pump that is under consideration would allow the Applicants to access and extract the water available under that part of the allocation that they propose to purchase.
8. In the circumstances, where there is no evidence to contradict the Ministerial Corporation's assessment, I am satisfied that impact of the grant of the licence would be minimal and that the proposed licence conditions will be adequate to address the issues that the objectors have raised. However, I do share the objectors' concerns that monitoring of usage will be difficult; that the Glenreagh Weir is some 30 km from the premises; and that the measurement taken at the Glenreagh Weir is not a measurement of the amount of water taken from the river. I recommend that the water usage be monitored carefully with a view to steps being taken under Proposed Condition 1 should it be warranted.
9. 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 the river and associated issues is minimised. I note the Applicant's intention to adopt best business practices and that should provide some comfort to the objectors. If issues do arise in regard to the health of the river or other environmental issues, avenues exist to address those concerns. I encourage all concerned to bring any such issues to the attention of the appropriate regulator.
10. In these circumstances, it is my view that the proposed grant is desirable. However, the grant should be made subject to the conditions proposed by Water NSW. Those conditions are: (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 tail water 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 works shall not be constructed or installed so as to obstruct the reasonable passage of floodwaters flowing into or from a river. (5) A vegetated buffer zone of not less than 20 metres must be maintained between the irrigated area and the high bank of Orara River & 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 66 megalitres of water for irrigation & farming 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 pump shall not be used for the purpose of irrigation unless the discharge of the Orara River at the Glenreagh gauge is greater than 25 megalitres per day (such discharge corresponding to a reading of 0.46 metres on the said gauge or such other reading as may be determined from time to time).

Orders 1. The Tribunal determines that the application for a licence made under Section 10 of the Water Act 1912 by Dosanjh Investments Pty Ltd and Golden Eagle Berry Farms Corporation Pty Limited of Lot 262 DP 751383 for a 150mm centrifugal pump on the Orara River for water supply for farming and irrigation purposes should be granted, for a period of five years subject to the conditions set out in paragraph 46 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: 14 August 2017