Bathurst Regional Council v Natural Resources Access Regulator [2022] NSWSC 846

Supreme Court New South Wales

Medium Neutral Citation: Bathurst Regional Council v Natural Resources Access Regulator [2022] NSWSC 846 Hearing dates: 17 June 2022 Date of orders: 28 June 2022 Decision date: 28 June 2022 Jurisdiction: Common Law Before: Basten AJ Decision: (1) Direct that the Natural Resource Access Regulator be named as the defendant. (2) Declare that the primary obligation of the Council with respect to the discharge of water from the Winburndale Dam, pursuant to the condition DK3944 of Approval No 80CA723483, is to release from the dam a volume of water equal to the daily inflow, but not exceeding the daily capacity of the 300mm discharge pipe, given the water level of the dam. (3) Otherwise dismiss the amended summons. Catchwords: ADMINISTRATIVE LAW – judicial review of official caution – effect of caution on legal rights – availability of declaration – establishing basis of alleged error ENVIRONMENT AND PLANNING – water – water management work approval – interpretation – condition to maintain outflow equal to lesser of inflow or pipe capacity – condition to release percentage of storage conserved in preceding inflow event – determining volume of releases ENVIRONMENT AND PLANNING – offences – penalty notice offence – use of water supply work otherwise than as approved – effect of official caution – Water Management Act 2000 (NSW), s 91B – Fines Act 1966 (NSW), s 23A Legislation Cited: Fines Act 1996 (NSW) ss 19A, 23A Natural Resources Access Regulator Act 2017 (NSW), s 4 Water Act 1912 (NSW) Water Management Act 2000 (NSW) ss 91B, 365 Water Management (General) Regulation 2018 (NSW), Sch 7 Cases Cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44 Category: Principal judgment Parties: Bathurst Regional Council (Plaintiff) Natural Resources Access Regulator (Defendant) Representation: Counsel: Mr M Seymour / Mr C Koikas (Plaintiff) Ms Z Heger / Mr A Brown (Defendant)