Redfern v Water Administration Ministerial Corporation [2004] NSWSC 267

New South Wales Supreme Court

CITATION : Redfern v Water Administration Ministerial Corporation [2004] NSWSC 267 HEARING DATE(S) : 31 March 2004 JUDGMENT DATE : 7 April 2004

JURISDICTION: Common Law Division Administrative Law List JUDGMENT OF : Studdert J DECISION : 1. Declaration in the terms sought in para 2 of the summons. 2. Costs are reserved. In the event that the parties are unable to agree as to the appropriate order for costs, the matter may be relisted for the purpose of submissions as to costs on a date to be arranged with my associate.

LEGISLATION CITED : Water Act, ss 5, 10, 11, 13, 13A, 18F, 20, 20K, 31, 112, 131, 151, 167 CASES CITED : Siderovich v Water Conservation and Irrigation Commission (1965) 90 WN 356 PARTIES : Peter William Redfern (Plaintiff) Water Administration Ministerial Corporation (Defendant) FILE NUMBER(S) : SC 30077/03 COUNSEL : J.E. Robson (Plaintiff) B. Green (Defendant) SOLICITORS : Michael McHugh Lawyers (Plaintiff) Department of Infrastructure Planning & Natural Resources (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

STUDDERT J

Wednesday 7 April 2004

30077/03 PETER WILLIAM REDFERN v WATER ADMINISTRATION MINISTERIAL CORPORATION OF NEW SOUTH WALES

JUDGMENT 1 HIS HONOUR: The plaintiff, Peter William Redfern, has applied by way of summons for the following declaration: "A declaration that the plaintiff's application dated 17 February 2000 is a valid application under s 13A of the Water Act 1912." 2 Other relief is sought in the summons, but it is agreed between the plaintiff and the defendant that if the plaintiff is entitled to relief, a declaration in the terms above expressed would meet the requirements of the case. 3 The parties have agreed on a statement of facts filed on 25 November 2003, and it is only necessary that I draw upon those agreed facts before addressing the question that arises under the Water Act 1912. 4 The plaintiff is a primary producer and he owns and occupies a property near Wee Waa, which property is named "Warrawee". "Warrawee" is located some twelve kilometres from the Namoi River. 5 At the centre of this claim is that precious natural resource, water. The plaintiff owns certain ground water irrigation licences and certain surface water irrigation licences. However, what the application is concerned with is access to water from the Namoi River. 6 On 17 February 2000 the plaintiff lodged an application pursuant to s 13A of the Water Act but the defendant contends that that application does not meet the requirements of the section and cannot proceed. This application is brought to test that contention. 7 What the plaintiff seeks to do is to pump water from the Namoi River for its conveyance to "Warrawee". A parish map attached to the application lodged shows the intended course for that water from the location of the proposed pump on to "Warrawee". Commencing about twenty metres from the northern bank of the river, there is a water channel that extends for some twelve kilometres in a northerly direction. This was constructed in the mid 1960s by a number of resident families for the purposes of water supply, and has been maintained by members of the syndicate, being those occupying the various private properties through which the channel runs. At the southern end of the channel adjacent to the river itself, the channel crosses Crown land, but otherwise along its length it passes through properties owned by the various syndicate members. The syndicate channel extends to a point some twenty-one metres from the boundary of "Warrawee". The plaintiff is not a member of the syndicate. 8 The plaintiff's objective, reflected in the application lodged, is to install a pump at the riverbank and to convey water pumped by this device through a discharge pipe to a point where the water would be discharged into the syndicate channel. This discharge point is shown in a sketch, being Annexure C to the application lodged with the defendant. At the end of the section of the syndicate channel, the plaintiff proposes to construct a pipe under the shire road shown on the parish map. That pipe would run for some twenty-one metres to the plaintiff's property. This is again shown on the copy of the map attached to the plaintiff's application. 9 Whilst the plaintiff proposes in the main to use the syndicate supply channel, he also proposes to construct a new augmented channel over two kilometres of private lands at a point shown in yellow marking on the copy parish map, thus bypassing the syndicate channel over that distance. Failing permission to construct this channel, the applicant proposes to use the adjacent syndicate supply channel. 10 The riparian occupier, Merced Holdings, is the only syndicate member which has indicated that it does not object to the access sought through its property. The plaintiff's proposed discharge pipe would introduce water pumped from the river by him into the syndicate channel on Merced Holdings property. The remaining syndicate supply channel members do not consent to the plaintiff's use of their supply channel. The Department of Lands has advised by letter of 8 October 2003, that it supports the granting of the proposed licence, even though this would mean water passing through that Crown land earlier described. In its letter, the Department indicates a preference for the use of the existing channel rather than for the creation of another one. 11 I propose to set out the relevant correspondence between the Land and Water Conservation Department and the plaintiff's solicitors because this defines what is in dispute. 12 The lodging of the plaintiff's application in February 2000 prompted the Department to write to the plaintiff on 11 April 2000: "I refer to your application dated 17 February 2000 for a licence under Section 13A of the Water Act. The application proposes the use of an existing channel running from the pump discharge point on the Namoi River to a point near your property. There is some construction of works proposed under the application, for example from the end of the existing works to your property and possibly some works within the existing channel. However the greater part of the 'conveying work' proposed to take the water from the river to your property is already in existence and is currently being utilised by other land holders under a joint arrangement. The Department's interpretation of Section 13A is that it does not allow for conveying works, which are already in existence, to be the subject of an application. The section does not have in contemplation the utilisation of an existing work which has already been constructed and is being used by others under some joint arrangement. Rather, the section contemplates that the conveying work which is to be the subject of a s.13A licence is to be constructed after the grant of the licence. Accordingly, the Department is of the opinion that your application, as submitted, does not conform to the requirements of Section 13A of the Water Act and as such cannot be processed in its present form. The Department invites you to make submissions as to why the application does conform to the Act and therefore should be processed. On receipt of such submissions the Department will make a decision as to whether your application is in compliance with the Water Act and able to be processed." 13 There was no response to the above letter for some three years but it has not been argued that the delay affects this application to the Court. Eventually the plaintiff's solicitors responded on 9 May 2003 stating the plaintiff's reasons for maintaining that his application conformed with the requirements of the Act: "1. The requirements of Section 13A of the Act have been satisfied.