Land and Environment Court New South Wales Medium Neutral Citation: Barker v Water Administration Ministerial Corporation of NSW [2012] NSWLEC 1039 Hearing dates: 23 February 2012 Decision date: 23 February 2012 Jurisdiction: Class 3 Before: Hussey C Decision: (1)The appeal is upheld. (2)The direction issued by the Respondent to the Applicant under s 180D of the Water Act 1912 is set aside. (3)The Applicant is directed under s 180D of the Water Act 1912 to carry out the following works on land described as Lot B of Deposited Plan 374154 Curlewis NSW, otherwise known as "Boonery Park" (" the Land "). (a)carry out the works specified in the Schedule below by 9 April 2012; (b)at the shared cost of the Applicant and the Respondent, obtain and provide to the Respondent a survey of the Embankment by a registered surveyor by 11 May 2012 demonstrating that the height of the Embankment satisfied the requirements of the Schedule; (c)on an ongoing basis, subsequent to the establishment of vegetation on the Embankment, ensure that herbicides do not drift into the vegetation on the Embankment; and (d)on an ongoing basis, prevent stock from grazing on the Embankment if the Embankment becomes wet or when feed volume on the Embankment is low. (4)No order as to costs. Catchwords: Consent Orders: Direction to undertake work to return land to natural ground levels. Legislation Cited: Water Act 1912 Category: Principal judgment Parties: Mr G Barker (Applicant) Water Administration Ministerial Corporation (Respondent) Representation: Mr A M Pickles (Applicant) Mr G Norton (Respondent) File Number(s): 30537 of 2011 Judgment 1This appeal was lodged against a s180D Direction under the Water Act 1912 requiring remedial earthworks to be undertaken on a rural property at Curlewis, which is described as Lot B in DP 374154 and known as "Boonery Park". 2From references to the Statement of Facts and Contentions it is apparent that the respondent undertook a "field investigation" of the subject and neighbouring land in September 2010 and further field work in 2011 and found that: No approval under Part 8 of the Water Act 1912 is in force with respect to a controlled work on Lot B in Deposited Plan 374154, contrary to the provisions of the Act. The controlled work in question is an elevated soil platform approximately 75 metres wide located on Lot B in Deposited Plan 374154. The elevated soil platform is located upon the Red Bobs Floodplain, Curlewis. .. 3Consequently the s 180D Direction required: The elevated soil platform is a reference to the elevated soil platform on Lot B in Deposited Plan 374154, the platform is delineated with a red line on Attachment A. 1. Within 30 days of the date of this direction the elevated soil platform located on Lot B in Deposited Plan 374154 at the area known as the "tri-post boundary" (which is referenced by coordinates GDA 94 Zone 56 East 226120 and North 6541263) must be removed for a distance of 75 metres (to a point which is referenced by coordinates GDA 94 Zone 56 East 226133 and North 6541337) along the boundary fence that delineates the boundary between Lot 52 in DP 755500 and Lot B in DP 374154, to a height of 295.5* metres as depicted on Attachment A. * All levels are to be on the same local datum as shown on the plan "Boonery Park" Curlewis dated 18 June 2008 prepared by Stewart Surveys. (i.e. use the bench mark being the Spike on the Post reduced level 297.085) (Plan Attached) 4In response to the appeal, the Respondent identified the following contention which is summarised as follows: Existence of a "controlled work: The Land is within a "floodplain" for the purposes of Pt 8 of the Water Act and is designated as a flood plain by the order "Designation of flood plain area" dated 13 December 1994 published in NSW Government Gazette, 16 December 1994, p 7494 and Namoi Valley Independent, Thursday 15 December 1994, p 23. 5The particular issues arising concern: (a)A levee bank has been constructed on the land running north from the tri-post boundary adjacent to the boundary between the Land and "Baresse" for a distance of at least 460m; (b)The levee bank is a "controlled work"; (c)There is not, and never has been, any approval in force in respect of the levee bank; (d)Accordingly, the power exists to issue a direction under s 180D in respect of the levee bank; and ... The controls 6This appeal is under the provisions of the Water Act 1912 wherein s 165A deals with the more controlled work and s 180 deals with directions for remedial work. As follows: 165A Controlled work - meaning (1) In this Part, a controlled work means: (a) an earthwork, embankment or levee that is situated, or proposed to be constructed, on land that: (i) is, or forms part of, the bank of a river or lake, or (ii) is within a floodplain... 180D Directions for remedial work (1) If the Ministerial Corporation is satisfied that: (a) there is no approval in force with respect to a controlled work, or (b) a controlled work has been constructed in contravention of an approval, or (c) a controlled work does not comply with the conditions to which an approval is subject, the Ministerial Corporation may, by notice in writing served on the occupier of the land on which the controlled work is situated, direct the occupier to carry out specified work in a specified manner and within a specified time. (2) Any one or more of the following types of work may be directed to be carried out by a notice under this section: (a) work to remove, modify, repair or restore the controlled work or to render the work ineffectual, ... (d) without limiting paragraphs (a) - (c), work to correct or restore any alteration caused by the controlled work to the flow of water in, to or fro, or the quantity of water contained in, any specified river or lake. 7In addition to this, I note the reference was made to a 1995 Floodplain Study for the area - i.e. "Red Bobs Flood plain Management and Study - Part one - around Baresse". The Appeal 8The appeal proceedings involved a s 34 conference that included a site inspection that was attended by various representatives, including engineers and surveyor who were able to point out the extent of the alleged authorised earthworks. 9As is the case with s 34 proceedings, various matters and options were considered in response to the contentions to endeavour to achieve an acceptable outcome to the parties. 10Whilst there was no agreement at the s34 conference, subsequent conferencing between the parties has resulted in an agreement to Consent Orders. The Consent Orders set aside the previous s 180 Direction and requires the applicant to carry out specified works including the establishment of vegetation on the resulting embankment. Conclusion 11One of the key elements in this appeal concerns the determination of the natural ground level (NGL) in the vicinity of the 'Tri post boundary'. The resolution of this element enables assessment of the direction of substantial overland water flows in this relatively flat area. 12The subsequent expert conferencing has involved detailed consideration of a recent survey of the area and the experts have considered the levels presumably in the context of the floodplain study details and also recent photos that were provided. 13From this, there is agreement by the engineers on the existing ground levels, which confirms that a form of soil platform appears to have been constructed along the common boundary between Boonery Park and Baresse. 14Consequently the engineers considered several options to achieve a satisfactory environmental outcome and agree that the following Option 2 best achieves this in the circumstances: Option 2 : Reinstate natural land levels along the full length of the fence line as determined by assessment of the survey. This would allow drainage of Baresse to the natural levels. 15In order to achieve this, the engineers have interpolated and agreed the appropriate levels, which have then been incorporated into the Consent Orders. 16In the ultimate, I am satisfied the engineers have assessed the issues in a systematic manner and in the circumstances the Court has the power on appeal to vary the original orders. As the appeal did not involve objections, I consider it appropriate to make the Consent Orders. Orders (1)The appeal is upheld. (2)The direction issued by the Respondent to the Applicant under s 180D of the Water Act 1912 is set aside. (3)The Applicant is directed under s 180D of the Water Act 1912 to carry out the following works on land described as Lot B of Deposited Plan 374154 Curlewis NSW, otherwise known as "Boonery Park" (" the Land "). (a)carry out the works specified in the Schedule below by 9 April 2012; (b)at the shared cost of the Applicant and the Respondent, obtain and provide to the Respondent a survey of the Embankment by a registered surveyor by 11 May 2012 demonstrating that the height of the Embankment satisfied the requirements of the Schedule; (c)on an ongoing basis, subsequent to the establishment of vegetation on the Embankment, ensure that herbicides do not drift into the vegetation on the Embankment; and (d)on an ongoing basis, prevent stock from grazing on the Embankment if the Embankment becomes wet or when feed volume on the Embankment is low. (4)No order as to costs. R Hussey Commissioner of the Court 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: 24 February 2012