Civil and Administrative Tribunal New South Wales Medium Neutral Citation: WaterNSW v Goldfinch [2020] NSWCATAD 139 Hearing dates: 1 August 2019 Date of orders: 25 May 2020 Decision date: 25 May 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: K Ransome, Senior Member Decision: The Tribunal determines that the application made by Leo Michael Cleary and Susan Ailsa Cleary for the permanent transfer of the surface water rights previously authorised by licence 30SL043470 for one 80 mm centrifugal pump on the Pappinbarra River situated on Lots 49, 60 and 70 of DP 754442, Parish of Pappinbarra, County of Macquarie for irrigation purposes should be granted, for a period of five years subject to the conditions set out in paragraph 37 of these reasons. Catchwords: ADMINISTRATIVE LAW – administrative review – Inquiry into desirability of grant of surface water licence – consideration of factors to be taken into account – whether respondents interests may be affected – transfer of existing entitlement – minimal impact Legislation Cited: Water Act 2012 Water Management Act 2000 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Cases Cited: Water Administration Ministerial Corporation v Wear [2017] NSWCATAD 172 Category: Principal judgment Parties: WaterNSW (First Applicant) Leo & Susan Cleary (Second Applicants) Dale Goldfinch (First Respondent) Ron & Julie-Anne Murphy (Second Respondents) Steve Hadfield (Third Respondent) Representation: Solicitors: WaterNSW (Respondent) Second Applicants (Self Represented) Respondents (Self Represented) File Number(s): 2019/00056072 Publication restriction: Nil REASONS FOR DECISION Background 1. Leo and Susan Cleary own a property known as Clover Hills located on the Pappinbarra River in the Parish of Pappinbarra, County of Macquarie. On 16 March 2018 WaterNSW received an application from Mr and Mrs Cleary for the permanent transfer to them of Surface Water Rights from Amanda and John Coote of 60ML per year in Licence No 30SL43470. The property owned by Mr and Mrs Coote is about 19 km upstream on the Pappinbarra River. The transfer, if approved, would give Mr and Mrs Cleary a water entitlement of 60ML per year. In order to use the entitlement they also require a licence. Mr and Mrs Cleary therefore also applied for a Surface Water Licence for a 150mm centrifugal pump on the Pappinbarra River. The size of the pump was later revised down to 80mm. Mr and Mrs Cleary intend to use the water for the irrigation of improved pasture on the property. The property is used for dairy farming. 2. WaterNSW has functions under sections 10, 11 and 12 of the Water Act 1912 (the Water Act) to receive and determine applications for a licence to construct works to take and use water for the purpose of water conservation, irrigation, water supply or drainage. After receiving an application for a licence, WaterNSW must arrange for publication of a notice containing particulars of the application in the Government Gazette and in such other manner as it is satisfied is likely to bring the notice to the attention of members of the public in the district where the work is proposed to be situated. Accordingly, a notice of the application by Mr and Mrs Cleary was published in the Government Gazette on 25 May 2018 and in the Wauchope Gazette newspaper on 31 May 2018. 3. Under s 11(2A) of the Water Act, a person whose interests may be affected by the granting of the application may lodge an objection with WaterNSW. In response to the notices, WaterNSW received objections from Dale Goldfinch, Ron and Julie-Anne Murphy and Steve Hadfield. They objected to the licence on various grounds which will be referred to in more detail below. WaterNSW held a meeting with the objectors on 5 July 2018 to discuss their concerns and whether amendments to the licence could be made to meet those concerns. No agreement was reached on suitable amendments. I note the objections were not withdrawn by the objectors. 4. WaterNSW 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. The assessment noted that: 1. there were no aboriginal or cultural sites on the property identified from a search of the Aboriginal Information Management System; 2. the proposed works is not likely to have an impact on any endangered species of plant or animal; 3. a search indicated that there are no endangered species on Mr and Mrs Cleary's property; 4. there is no expected increase demand on natural resources that are more likely to become in short supply or any cumulative environment impact with existing or likely future activities there is not likely to be a degradation of the quality of the environment; 5. salinity impacts were considered unlikely and no acid sulphate soils or contaminated lands were identified on the property; 6. long-term impacts on the environment are considered to be unlikely as there were no groundwater dependent ecosystems or wetlands identified on the property; and 7. the impact on ecosystems and safety of the environment is considered unlikely if licence conditions are observed and. Extraction of water is within the permitted entitlement. 1. Approval was given on 4 October 2018 to grant the application and issue a licence for a period of five years subject to a number of conditions which were set out in a condition statement. 2. If objections are received within 28 days of the publication of the notices referred to above and WaterNSW decides to grant the licence for the works, then WaterNSW must apply to the Tribunal for an Inquiry into the desirability of granting the application for a licence (s 11(5) of the Water Act). That application was made on 20 February 2019. 3. Since the application was made there have been some changes to water access rules. Mr and Mrs Cleary's property is located on the Pappinbarra River Water Source. The rules for access to that water source are now incorporated into the Water Sharing Plan for the Hastings River Unregulated and Alluvial Water Sources which commenced on 1 July 2019. Any approved entitlement will therefore be converted to a Water Access Licence and water supply work approval under the Water Management Act 2000 which will permit the licence holders to use and extract water from the river subject to the extraction components of the licence, for example, times, rates and monitoring. 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. 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. 1. 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. 2. WaterNSW initially sought to argue that the respondents are not persons whose interests may be affected by any matter to which the Inquiry relates, and therefore could not make submissions to the Inquiry. Each of the respondents is the owner of property downstream from Clover Hills, are holders of Surface Water Licences which authorise them to extract water from the Pappinbarra River and was an objector to the application by Mr and Mrs Cleary for the licence. It was conceded at the hearing that they have standing to make submissions. The evidence of the respondents 1. Ms Dale Goldfinch lives on the property directly below Clover Hills and runs cattle on the property. She also agists stock on a property on the other side of the river. She states that she and many others downstream from Clover Hills pump from the river to water their stock and for household supply and this demand should be met before irrigators are permitted to water pasture. Ms Goldfinch also states that water from the river is also relied upon for firefighting purposes. She states that none of the water licences held by property owners in the vicinity have been used for irrigation, with the exception of Clover Hills. 2. Ms Goldfinch also states that river heights are used as a natural barrier to stop stock straying and this will be adversely affected by lower river flows as a result of the extraction of water under the proposed licence. She also referred to another licence which enables Mr Cleary to pump 53 ML of water. 3. Ms Goldfinch refers to diminishing river flows and lower rainfall being experienced over the last several years. In her view the river flow will be adversely affected if the licence is granted which will have consequential adverse effects on other water users and the environment. She states that there has been a lack of independent investigation into the effects of the granting of the licence on the health of the river as a whole and its impact on other water users. She states that in the assessment by WaterNSW environmental effects, including the leaching of fertilisers into the river, have not been considered and in particular effects upon the platypus habitat have not been taken into account. 4. Ron and Julie-Anne Murphy also raise concerns about the diminishing water flows in the Pappinbarra River and stated that extracting a further 60 ML from the river would have an adverse effect upon the health of the river and on those properties downstream, including their own, which rely on the water from the river for domestic use and to water stock. They also expressed concern that the fertilisers used on the irrigated pasture will wash into the river causing pollution which would endanger the aquatic life in the river, in particular the platypus population which inhabits the few deep pools that still exist, and make it dangerous for those downstream to use the river water safely. 5. Ms Goldfinch and Mr and Mrs Murphy provided written statements at the hearing which they sought to be taken into account in the Inquiry. Ms Goldfinch and Mrs Murphy also provided some photographs of the river at the hearing which they stated demonstrated low flows in the river. One photograph showed dead fish. Mr Elliott for WaterNSW objected to the inclusion of the new material. I allowed the material in as it did not raise new issues, but rather expanded upon those already raised in their objections which had been fully considered in the assessment process. 6. Mr Steve Hadfield states that he runs a herd of 75 cattle on his property and relies on the river for stock and household water. He states he has seen the water level in the Pappinbarra River diminish over the past 10 years and he has trouble finding water to pump. He believes that the pumping of water from the river to irrigate pasture will affect his stock and household water supply. He also raises questions about whether Mr and Mrs Cleary will comply with licence conditions and use more than their allocation. 7. Mr Hadfield also referred to a licence which gave the previous owners of the property an entitlement to extract 143 ML from the river. That licence had lapsed and he was of the view that no new entitlement should be granted. 8. All of the objectors were concerned that Mr and Mrs Cleary would use the water entitlement to grow fodder to take to their other property. Evidence of the applicants for the licences 1. The evidence that was put forward at the hearing by Mr Leo Cleary and Mr Luke Cleary is that for the past 25 years they have run a family business on the Hastings River with 250 to 300 dairy cows and during that time have been responsible irrigators. Mr Leo Cleary said that he had been involved in the water reform process around water sharing plans for the Hastings River and is the Chair of the Hastings River Water Users Association. In that role he keeps an eye on river flow levels and provides advice to farmers in that regard. He said that just below the improved pasture site which is proposed to be irrigated, there is a concrete causeway with a gauge at the bottom end which allows for the monitoring of flow levels. 2. Mr Leo Cleary said that the property is used to raise heifers and the pasture is improved every 12 weeks under the supervision of an agronomist. He does not believe that there is a risk of any pollutants entering the river as he has taken advice on this aspect. He also stated that there was infrastructure on the property to stop any pollutants from entering the river. 3. Mr Cleary does not intend to grow fodder to take to his other property. He intends to fatten dairy heifers and take them to his nearby dairy farm for milk production. He said that the reference to another water entitlement of 53 ML is irrelevant to consideration of this licence as it is on another property. 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 total Surface Water Entitlement on the Pappinbarra Creek Water Source is 1466 ML per year. The amount of the proposed entitlement of 60 ML per year represents 4.55% of the total available resource. Given the volume of water under consideration, the state of water resources should be considered at a local and regional level only. The Report Card for the Pappinbarra Creek Water Source and the Assessment Sheet completed by WaterNSW sets out the state of the water resource including flow rates and the environment generally at the local and regional level. 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, 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 Licence Application is the result of the proposed transfer of surface water rights of 60 ML previously allocated to Mr and Mrs Coote. Given the water concerned was previously available for their use prior to the licence application made by Mr and Mrs Cleary, the overall impact on the allocation of the water resource is considered to be low as there is no net increase in demand. The demand is moving 19 km downstream where the water resource is more plentiful. This is considered to be beneficial for the water resource. A previous licence entitlement at the property involved an entitlement of 143 ML which has since lapsed. The proposed entitlement of 60 ML is substantially less than this amount. The proposed location of the proposed work is at a wider deep section of the Pappinbarra River. 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. (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 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 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 5 July 2018 concluded: "No acid sulphate soils contaminated, or other environmental concerns identified on property which comprise issue of licence. No new dam construction or other works proposed as part of this Application. Small dam on Lot 76, and several water holes along gullies and Creek, no other water management works identified on property." "No other environmental concerns evident from inspection." 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 and the findings of the property inspection report, 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) The impact in relation to the management, protection and enhancement of the State's water resources The Pappinbarra Creek Water Source has been protected by an existing cease to pump arrangement when flows are equal to or less than 1 ML per day at the Pappinbarra Creek gauge, which has now been incorporated into the Water Sharing Plan for the Hastings River Unregulated and Alluvial Water Sources. The No Visible Flow Ruling in condition 7 of the Statement of Conditions should provide comfort to the objectors who are seeking to protect the water source during low flows in the Pappinbarra Creek. The Access Rules under the Water Sharing Plan for the Hastings River Unregulated and Alluvial Water Sources provide: • commence to take: Take of water is not permitted for 24 hours after the flows at the reference point have first exceeded cease to take rule. • daily take restrictions: Take of water is permitted for a maximum of 12 hours per day when flows are between one and five ML per day. Given the commencement of the water sharing plan and the conditions to be included and as the licence relates to a transfer of an existing water allocation, it is open to 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. 1. 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 the plan had in fact commenced and that has been reflected above. 2. WaterNSW submitted that when considering the application made by Mr and Mrs Cleary it had undertaken a thorough assessment and taken into account all the relevant and available information, including the Report Card for the Pappinbarra River, which shows the availability of the water resource. The assessment considered the matters required under various pieces of legislation and conducted a property inspection informing its view that the licence should be granted. A meeting had been held with the objectors and their concerns had been taken into account where relevant. 3. In general, WaterNSW submitted that either the matters raised by Ms Goldfinch, Mr and Mrs Murphy and Mr Hadfield were not necessarily interests which the Tribunal is able to take into account for the purposes of the Inquiry being interests that can be shared by any member of the general public or the concerns they raised were at best allegations unsupported by any independent evidence or assessment. Discussion 1. WaterNSW supplied a volume of material to the Inquiry which I have read. The material put forward by the objectors, although much briefer, has also been taken into account. 2. Many of the matters raised by the objectors are general in nature and involve concerns about the ongoing health of the river. I am mindful that the photographs provided at the hearing depict the river at time of drought. While not in any way wishing to diminish the concerns of the objectors, depiction of the river in drought at a particular point in time is not necessarily indicative of the condition of the river in the future. 3. I accept that the objectors, and no doubt others who live along the river, have a keen interest in the health of the river 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. I do accept that 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 the Pappinbarra River. Equally, however, the rules around access and water flows apply to the objectors in the same way as they do to the applicants for the licence. 4. 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 the river 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. Similarly, allegations have been made about run-off and pollutants entering the water course without any evidence being put forward to support such assertions. The proposed conditions attached to the licence make provision for a vegetated buffer zone and the evidence of Mr Cleary is that he has engaged an agronomist and taken advice on this aspect. 5. Importantly, the application relates to the transfer of an existing water allocation from Mr and Mrs Coote to Mr and Mrs Cleary. The proposal does not involve any new allocation of water from the Pappinbarra River and would not result in any increase in existing entitlements. I accept the submission made by WaterNSW the fact that the entitlement is being transferred 19 km downstream to a location where water is more plentiful may be beneficial for the water resource. 6. WaterNSW also referred to the fact that an existing entitlement of 143 ML under a previous licence has lapsed and inferred that, as the proposed entitlement was substantially less than this amount, this was a factor in favour of granting the licence. I would agree that, if the application for the licence involved a new allocation, this may be a matter to be taken into account. In the circumstances of this application, however, the fact that previous owners had a lapsed entitlement is irrelevant. The important factor is that this is a transfer of a currently existing entitlement. 7. 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 river flows. 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. 8. I am satisfied that the transfer of water allocation from Mr and Mrs Coote to Mrs and Mrs Cleary and the application for a 80 mm centrifugal pump on the Pappinbarra River should be allowed. 9. 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. 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, an 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; - 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 Pappinbarra River. (6) (A) Subject to any access of flow condition contained in the licence, the holder may in one year commencing 1 July divert up to the licenced volume of 60 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 approval holder must not take any water from an approved work for the purpose of irrigation, unless there is visible flow in Pappinbarra River at the pump site. (8) From years 1 to 10 of the water sharing plan for the Hastings River unregulated and alluvial water sources, the licence holder will cease to pump from the authorized work when daily flows reach 1 ml/day (95th %tile critical month) (9) From years 1 to 10 of the water sharing plan for the Hastings River unregulated and alluvial water sources, pumping is permitted to commence from the authorized work 24 hours after daily flows return above 1 ml/day. (10) From years 1 to 10 of the water sharing plan for the Hastings River unregulated and alluvial water sources, pumping is permitted for a maximum of 12 hours per day when flow is equal to or below 5 ml/day and greater than 1 ml/day (90th %tile). (11) The reference point referred to in conditions 8, 9 and 10, is stream gauge No. 207010, located on Pappinbarra River at Beechwood. Orders 1. The Tribunal determines that the application made by Leo Michael Cleary and Susan Ailsa Cleary for the permanent transfer of the surface water rights previously authorised by licence 30SL043470 for one 80 mm centrifugal pump on the Pappinbarra River situated on Lots 49, 60 and 70 of DP 754442, Parish of Pappinbarra, County of Macquarie for irrigation purposes should be granted, for a period of five years subject to the conditions set out in paragraph 37 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: 25 May 2020