WaterNSW v Hurrell

The Inquiry

1. The function of the Tribunal is to inquire into the desirability of granting the licence. If the Tribunal determines that the licence should be granted, it must also recommend the period, terms, limitations and conditions to be applied to the licence (s 11(6C) of the Water Act). An Inquiry is to be by way of a hearing that is open to the public. Notice of the Inquiry must be given and that task was undertaken by WaterNSW. In addition to WaterNSW and the applicants for the licence, the 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.
2. Section 4A of the Water Act sets out the matters that must be taken into account in the conduct of an Inquiry as follows: (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.

Evidence of the applicants for the licences

1. Mr Patrick states that the small amount of water proposed to be extracted from Toms Creek (13 ML) is a form of insurance to underpin the water reserves currently in place for the avocado farm. He states that the water will only be extracted when conditions are heading towards a dry period, not during any dry period as cease to pump rules will apply when water levels are low. Extraction from Toms Creek is only intended to supplement the water storage in the bywash dam. He refers to WaterNSW flow records at the Bunnoo Road junction measuring station which show that the low flow index measured in the critical month of October is 52 ML per day.
2. Mr Patrick states that he and Mrs Patrick have made significant investments in their avocado plantation which cascades through the local community and improves the lives of local people, providing employment opportunities and purchases with local businesses. He also states that, while different to timbers originally cleared from the property, the avocado trees planted on the property absorb carbon dioxide and only use the water that they need. Mr Patrick said the trees are good for the environment and are a much more sustainable form of farming with a better utilisation of natural resources than traditional type of farming in the area.
3. Mr and Mrs Patrick provided a submission/report by Mr Murray Thompson, a water engineer. Mr Thompson noted that the entitlement of 13 ML per annum will be used when required to supplement the water storage in the bywash dam located on lot 2. The bywash dam will at all times act as an off-creek storage which can be refilled using the 13 ML per annum entitlement when there is sufficient water flow available in Toms Creek. In this regard he noted that the proposed location of the 150 mm centrifugal pump on Toms Creek is a deep pool within the creek and that there is a suitable monitoring point immediately downstream from that location to determine the impact of any water pumping activities upon the flow in the creek. He states that this accords with proposed condition 16 of the licence which states that no water can be taken unless there is a visible flow in Toms Creek at the pump site. He also notes that Mr Patrick is investing in a Harvestable Rights Dam with a maximum capacity of 12.9 ML to supplement the water irrigation needs for this property.
4. Mr Thompson stated that the irrigation system in use on the property includes drip irrigation for each tree and ground moisture sensors to ensure the efficient usage of all water applied. He states that there needs to be appropriate record-keeping practices to ensure that all the conditions of the license are accurately monitored and recorded. In his view, the decision by WaterNSW to grant the licence should be supported as the proposed conditions would protect low flows in Toms Creek.

Submissions by WaterNSW

1. As stated above, s 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. WaterNSW undertook an assessment of the licence application and its likely impacts. In relation to the s 4A factors WaterNSW 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 The state of water resources and the environment generally should be considered at a local and regional level only. Although Toms Creek is a small watercourse which does not carry significant flows during dry periods the volume of water under consideration amounts to the transfer of an existing entitlement of 13 ML per annum under Licence No 30SL065383. It would be open to the Tribunal to find that, given the state of water resources and the environment, as evidenced in the Assessment Sheet - Licences, Authorities, Permits or Approvals under Part 2 of the Water Act 1912 and the Assessment Summary Sheet 30SL065383, it is desirable to grant the application. (b) The impact on the allocation of water resources at a local, regional and State-wide level The impact on the allocation of water resources at local and is considered relevant at the regional level is considered minimal as Mr and Mrs Patrick currently have an existing entitlement of 13 ML per annum. The licence application is not for an additional extraction amount. There is no alteration of the allocation of the water resource at local or regional level. It is open for the Tribunal to find that the granting of the Licence represents a minimal impact on the allocation of the water resource as there is no increase in the permitted extraction of water. (c) 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. Mr and Mrs Patrick have not made an application for an additional entitlement but proposed to use an existing entitlement of numerals 13 ML per annum. WaterNSW considers this amount as a relatively small entitlement. It would be open to the Tribunal to find that the granting of the Licence will have no impact, or at the most minimal impact, on other persons entitled to take water. (d) Impact on the state of water resources, and on the state of the environment generally, at a local, regional and State-wide level The Licensing Inspection Report dated 14 December 2017 concluded: "Inspection indicates no adverse impacts on environment, resource or other users as a result of the issue of the Licence. No tree clearing necessary at irrigation area or for placement of pump on Toms Creek." "No significant environmental concerns identified as result of pump, bywash dam or irrigation area proposed by this application." 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. This finding can be based on the conclusions outlined in the Assessment Sheet - Licences, Authorities, Permits or Approvals under Part 2 of the Water Act 1912 and the Assessment Summary Sheet 30SL065383. (e) The impact in relation to the management, protection and enhancement of the State's water resources The Access Rules for the Ellenborough River Water Source under the Water Sharing Plan for the Hastings River Unregulated and Alluvial Water Sources impose the following pumping access arrangements during dry conditions: • Cease to pump at 10 ML4 years 1 - 5 of the plan and 15 M L per day for years 6 - 10 of the plan; and • pumping restrictions of 8 hours per day when flows are equal to or less than 26 ML per day and greater than 10 ML per day (years 1 - 5 of the Plan) and 15 ML per day (years 6 - 10 of the Plan). The access rules seek to preserve the minimum flow rates in Toms Creek during dry times to ensure an equitable and sustainable use of the water resource. These rules would be incorporated into any licence issued to Mr and Mrs Patrick. The Report Card for the Ellenborough River Water Source dated June 2016 sets out the state of the water resource including flow rates. The access rules for the Ellenborough River Water Source incorporated into the Water Sharing Plan and the existing license entitlement of 13 ML provide grounds for the Tribunal to find that it is desirable to grant the Licence as it would have no impact on minimal impact on the management, protection and enhancement of the State's water resources.
2. In relation to (e), the written submissions referred to the proposed commencement of the Water Sharing Plan for the Hastings River Unregulated and Alluvial Water Sources. By the time of the hearing for the public Inquiry the plan had in fact commenced and that has been reflected above.
3. WaterNSW submitted that when considering the application made by Mr and Mrs Patrick it had undertaken a thorough assessment and taken into account all the relevant and available information. The assessment considered the matters required under various pieces of legislation and a property inspection informed its view that the licence should be granted. It was submitted that on the basis of the conclusions outlined in the Assessment Sheet - Licences, Authorities, Permits or Approvals under Part 2 of the Water Act 1912 and the Assessment Summary Sheet 30SL065383 and the property inspection it is open to the Tribunal to find that there is a minimal impact on the state of water resources and on the state of the environment generally, at the local, regional and State-wide level.
4. WaterNSW referred to new Metering Policy Requirements for pumps exceeding 100 mm in diameter which will require Mr and Mrs Patrick to install metres on the 150 mm pumps. To that end, proposed condition 1 to the licence if granted has been amended to incorporate that requirement and would provide additional protections for the water source and the environment. It was submitted that the new access rules will preserve minimum flows in the water source during dry times and ensure an equitable and sustainable use of the resource in dry times which is consistent with the principles contained in the Water Management Act 2000.
5. WaterNSW submits that it is relevant that the new pump to be located on Toms Creek is proposed to supplement Mr and Mrs Patrick's main water supply in an authorised dam. The pump on Toms Creek is a secondary supply when the main dam is depleted. It is also relevant that Mr and Mrs Patrick do not seek an additional entitlement but propose to use their existing entitlement of 13 ML per year. It is noted that they also are proposing to supplement their existing water storage by means of a Harvestable Right Dam of 10 - 12 ML capacity to the west of the existing license dam. The new dam will have the potential to further reduce the impacts and reliance on water from Toms Creek.

The evidence of the respondents

1. Mr John Gardiner is a neighbour of Mrs and Mrs Patrick being next to Lot 3 of DP1099964. This is the lot which is the proposed site for the 150mm centrifugal pump on Toms Creek. Mr Gardiner queries the basis upon which a licence can be a "replacement" licence, particularly as Lot 3 has no existing water allocation. He states that Toms Creek is a platypus stream so it would be an environmental disaster to flora and fauna if the stream is depleted of its natural flow to the point of running dry. He believes that farmers downstream of the proposed Works will be severely affected by approval of the application. He states that there are a lot of allocations on Toms Creek and the creek is struggling to keep flowing when seasonal conditions are not ideal and that approval to allow the pumping of an extra 13 ML of water from Toms Creek is strongly opposed.
2. Mr Gardiner states that, if the licence is approved, water will be extracted well beyond the capacity of the watercourse. He is also concerned about noise at night from the pumping site which would directly affect him. Mr Gardiner provided a video which showed low flow in the creek and states that the creek cannot sustain a 150mm pump. Mr Gardiner raised concerns about sediment entering Toms Creek as a result of erosion due to the requirement that avocado tree require large contoured banks to be constructed to provide high tree bed planting and trucks for mobile harvesters. He states that the sediment will have a catastrophic effect on the few remaining pools in Toms Creek.
3. Ms Cardia Patterson's property fronts onto Toms Creek. She strongly objects to the granting of the licence and states that the extraction of 13 ML of water from Toms Creek will have a substantial negative effect upon the environment and wildlife, including protected species such as platypus. She indicates that an avocado farm is not in keeping with its surrounds and will take drinking water from households along the creek. Ms Patterson states that the loss of water and consequential degradation of the environment will have a negative impact on the value of her property. She also refers to her loss of view/outlook as a result of the proposal. Ms Patterson refers to low flows in the creek at the present time and provided a video taken in March 2019 which she states shows that Toms Creek is in poor health.
4. Ms Patterson raises concerns that there has been no environmental impact report in relation to the proposed licence.
5. Mr Ben Latimore is an environmental engineer. He provided a copy of a petition signed by 26 residents of the Toms Creek district objecting to the proposed licence. He states that in his opinion and that of the petitioners the construction of the Works would negatively impact upon the environmental values of the greater Toms Creek water system and place undue stress on the already declining ecosystem. He states that in recent years residents have noted a reduction in baseflow within Toms Creek and a subsequent decline in the abundance, number and range of aquatics species, most notably the platypus, which was once quite common along the length of the creek. Mr Lattimore states that any further reduction in baseflow would cause stagnation and render the water unsuitable as drinking water and/or for domestic use.
6. Mr Michael Flannagan lives on Toms Creek and states that the creek is the water supply for his 80 head of cattle and he also relies on it for drinking and house use. He queries the capacity of the creek to support the extraction of a further 13 ML of water. He states that the health of Toms Creek and other watercourses in the area have deteriorated in the last 5 to 10 years.
7. Peter and Kathleen Hurrell, who own property directly beside Lot 3 of DP1099964, state that the granting of the licence would deprive them of using their current water licence effectively. They state that Toms Creek does not hold sufficient water to enable them to irrigate their property as well as provide water for their cattle, let alone someone else using the creek for irrigation purposes. If there are lower flows in the creek, they will not be able to pump water for their use. They also believe there would be an impact on the platypus which reside in the creek.
8. Gavin Holmes adopts the submissions made by his neighbours, Peter and Kathleen Hurrell.
9. Francis McWhirter, Paul Latimore and Victor Pritchard also object to the granting of the licence because of the impact it will have on flows in Toms Creek, the environment and other water users.
10. Many of the respondents raised general objections to commercial avocado farming in the area. Concerns were also expressed that Mr and Mrs Patrick may extract more water than permitted from the creek if the licence is granted. In relation to this last concern it was noted by a number of the respondents that Mr and Mrs Patrick have a planted a large number of avocado trees and there are intentions to expand their operation.

Report provided by the respondents

1. Prior to the holding of the Inquiry on 31 July 2019, the Tribunal had made directions about the filing and serving of evidence. On the day of the Inquiry the objectors sought to rely on a report by Ben Latimore titled "Report on Environmental Impacts and Reasoning for Respondents Objection". The report had not previously been served on the applicants. Accordingly, the applicants were given further time after the hearing to respond to the contents of the report.
2. The report, in essence, expands upon matters raised by the objectors, including that:

• There has been a reduction in creek flows in recent years and the area is currently considered to be drought affected;
• The cease to pump rules relevant to the licence are not appropriate for managing water use in the Toms Creek catchment;
• The water needs of the avocado industry in the Toms Creek catchment are unsustainable;
• Domestic water users downstream from the proposed Works rely on direct pumping from Toms Creek for potable water and the quality of the water will be affected by decreased flows;
• The assessment of the environmental impacts of the proposed licence was inadequate;
• Many of the proposed licence conditions are too subjective; and
• Further reductions in flows in Toms Creek are expected to diminish populations of native wildlife, including platypus.

1. The report puts forward a number of proposals aimed at remedying stated deficiencies in the proposal.
2. Mr and Mrs Patrick and WaterNSW both submitted that the report by Ben Latimore should be given little weight. It was submitted that the report is not an expert report as Mr Latimore does not state his qualifications as an expert on the grant of the water licence and has not provided a report in accordance with the Tribunal's Experts' Code of Conduct. They questioned the impartiality and objectivity of the report as Mr Latimore is one of the objectors to the granting of the licence and prepared the report as an advocate on behalf of the objectors who all consider that the application should be refused. It was noted that the report contains a paucity of independent evidence for many of the alleged facts and opinion contained in it.
3. I agree that the report by Mr Latimore cannot be characterised as an expert report and is lacking in objectivity. Many of the statements contained within the report are not based upon independent, objective material but rely upon subjective observations by persons opposed to the granting of the licence.

Are the respondents persons whose interests may be affected by any matter to which the Inquiry relates?

1. In Water Administration Ministerial Corporation v Wear [2017] NSWCATAD 172, while acknowledging that s 11(6B) may be interpreted broadly, Senior Member Montgomery stated at [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.
2. The Senior Member stated that there must be an identified relevant "interest" which must be affected, either directly or indirectly. It is not sufficient that the person is affected.
3. In general, WaterNSW submitted that many of the matters raised by the respondents do not establish that they have a relevant interest which the Tribunal is able to take into account for the purposes of the Inquiry and that the interest may be affected by any matter to which the Inquiry relates. WaterNSW submits that interests which may be shared by any member of the general public such as:

• environmental considerations related to the protection of flora and fauna;
• protection of aquatic wildlife;
• a dislike of the applicants;
• changing land use patterns;
• an objection to avocados as a crop;
• overdevelopment; and
• an interest in water quality are not interests which the Tribunal is able to take into account for the purposes of the Inquiry.

1. I agree that many of the matters put forward by the respondents, while no doubt representative of genuinely held views, are general in nature and their submissions do not particularise how any relevant interest will be affected by any matter to which the Inquiry relates. Some objectors refer to an impact on available water on their property, which may constitute an interest, but their statements are not necessarily supported by objective evidence of the nature and degree of any such impact.

Discussion

1. All parties provided written material to the Inquiry and I have had regard to that material as well as submissions made at the Inquiry hearing in reaching my conclusions set out below.
2. There appears to be some confusion among some of the respondents about the proposed licence. Some refer to an additional water allocation of 13 ML resulting from the new pump on Toms Creek. This is not, however, an additional entitlement but rather a relocation of Mr and Mrs Patrick's water entitlement from the unnamed water source to Toms Creek. I agree with the applicants that there does not appear to be any legislative or other impediment to the relocation of the entitlement.
3. Some of the objections to the proposal relate to an antipathy to avocado farming in the area. The issue before me concerns the desirability of granting the application. That is, the proposed transfer of the water entitlement of 13 ML from an unnamed watercourse in Lot 2 of DP 10999642 to a pump site on Toms Creek. In considering whether it is desirable to grant the application, the purpose for which the water is to be used is irrelevant. The proposed licence does not impose any strictures on the purpose for which the water can be used in the same way that no such restrictions are imposed on any licences held by the objectors or anybody else who has an entitlement to extract water from Toms Creek.
4. Concerns have also been raised about Mr and Mrs Patrick's plans to plant more avocado trees over an irrigation area of 25-30 hectares. Plantings of this size will undoubtedly require more water than is currently available under their existing entitlement. This application does not involve any increase in water entitlement and any further entitlement will need to be dealt with in the future. I understand, however, the concerns expressed about the risk of the allocation being exceeded. That is a mater, however, which can be dealt with through the conditions attached to the licence and I will return to that below.
5. As noted above, many of the matters raised by the respondents are general in nature and involve concerns about the ongoing health of Toms Creek. WaterNSW acknowledges that Toms Creek is a small watercourse which does not carry significant flows during dry periods. I accept that the objectors of have a keen interest in the health of the watercourse and are in a unique position to observe changes over time. However, a general interest in the health of the river is not an interest within the scope of s 11(6B) of the Water Act. Furthermore, information, including photographs and videos, provided by the objectors do not adequately indicate whether low flows pictured are as a result of current drought conditions.
6. I do accept that some of the objectors have an interest in the granting of the licence as there could be an impact on their ability to take and use water from Toms Creek. As noted above, however, there is lack of evidence and particularity about any claimed impact.
7. Concerns have been raised about the environmental impact of the granting of the licence and, in particular, the effect upon the platypus population. No evidence has been provided, however, about the existing platypus population in Toms Creek or how the granting of the licence may have an adverse impact upon them. The objectors have merely asserted that the platypus population will be affected without providing any detail or independent evidence, including in the report by Mr Latimore. Other than assertions, no evidence has been provided about how granting the application will have a deleterious cumulative impact on the environment in general.
8. The application proposed to relocate the existing entitlement from an unnamed watercourse to Toms Creek. Both watercourses are within the Ellenborough River Water Source and I am satisfied that granting the application would not result in an additional entitlement. Water allocations at the local level would therefore remain the same.
9. In my view, the access rules under the Water Sharing Plan for the Hastings River Unregulated and Alluvial Water Sources concerning ceasing to pump when flows reach a certain level and other restrictions go quite some way to allaying concerns raised about the effect of the allocation on water flows during dry periods. Some of the objectors stated that the fact that the gauge used to measure flows is on the Ellenborough River at the junction with the Bunnoo River is not reasonable as it is too far from Toms Creek. However, all water users, including the objectors, are subject to the same rules. The visible flow requirement in the proposed licence conditions also assists in this regard. I am satisfied that the 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.
10. I am satisfied that the replacement licence for one 150mm centrifugal pump on an unnamed watercourse on lot 2 in DP 1099964, one bywash dam on an unnamed watercourse on lot 2 in DP 1099964 and one 150mm centrifugal pump on Toms Creek on lot 3 in DP 1099964 should be allowed.
11. 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 WaterNSW. A revised condition 1 has been proposed which would require Mr and Mrs Patrick to install metering equipment for the purpose of recording the amount of extracted water. This requirement addresses the potential compliance issues raised by the objectors. WaterNSW points out that there are penalties for failing to comply with any conditions imposed on a licence. I agree that enforcement proceedings under the Water Management Act 2000 are the appropriate mechanism for dealing with any such failures.
12. The conditions therefore are: (1) The holder(s) of the authority shall install to the satisfaction of NSW Office of Water in respect of location, form, type and construction, an appliance or appliances for the measurement of the quantity of water taken by means of the authorised works, 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 record the measurements of all water diverted or taken by means of the authorised works and shall whenever required be the Department 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 holders of the authority 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; - And 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 Toms Creek and the unnamed watercourse. (6) The level of the crest of the bywash of the upstream dam shall be fixed at not higher than 1.17 metres below the level of a bench mark established on a nail on top of a strainer post on the left bank of the watercourse near the work and particulars of which are retained in the office of NSW Office of Water. (7) If and when called upon to do so by NSW Office of Water, the licensee shall construct through the dam referred to in Condition (6), 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 6.53 metres below the level of the bench mark referred to in Condition (6) 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. (8) Subject to Condition (7) when a flow is entering the storage of the dam the pipes referred to in Condition (7) 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. (9) The location of the dam(s) as shown on a plan retained in the office of NSW Office of Water shall not be altered. (10) 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. (11) (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 13 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. (12) From years 1 to 5 of the water sharing plan for the Hastings River unregulated and alluvial water sources ('The Plan'), the licence holder will cease to pump from the authorized work when daily flows reach 10 ml/day. From years 6 to 10 of the plan the licence holder will cease to pump from the authorized work when daily flows reach 15 ml/day (13) From years 1 to 5 of The Plan pumping is permitted to commence from the authorized work 24 hours after daily flows return above 10 ml/day. From year 6 to 10 of The Plan, pumping is permitted to commence from the authorized work 24 hours after daily flows return above 15 ml/day. (14) Pumping is permitted for a maximum of 8 hours per day when flow is equal to or less than 26 ml/day and greater than 10 ml/day for years 1 to 5 of The Plan, and equal to or less than 26 ml/day and greater than 15 ml/day for years 6 to 10 of The Plan. (15) The reference point referred to in Conditions 12, 13 and 14 is stream gauge no. 206013, located on Ellenborough River downstream of the Bunnoo Rd Junction. (16) The approval holder must not take any water from an approved work for the purpose of irrigation, unless there is a visible flow in Toms Creek at the pump site.

Orders 1. The Tribunal determines that the application made by John Anthony and Christine Joy Patrick for a replacement surface water licence for authorisation of one 150mm centrifugal pump on an unnamed watercourse on lot 2 in DP 1099964, one bywash dam on an unnamed watercourse on lot 2 in DP 1099964 and one 150mm centrifugal pump on Toms Creek on lot 3 in DP 1099964, Parish of Comboyne, County of Macquarie for irrigation purposes should be granted, for a period of five years subject to the conditions set out in paragraph 52 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: 27 May 2020