McKeown v Minister Administering the Water Management Act 2000 [2012] NSWLEC 1354

Land and Environment Court New South Wales

Medium Neutral Citation: McKeown v Minister Administering the Water Management Act 2000 [2012] NSWLEC 1354 Hearing dates: 17, 19 December 2012 Decision date: 20 December 2012 Jurisdiction: Class 1 Before: Pearson C Decision: Appeal upheld Catchwords: APPEAL - Direction - Controlled activity - Deposition of material on driveway - Adverse effect on water source Legislation Cited: Water Management Act 2000 Land and Environment Court Act 1979 Category: Principal judgment Parties: Michael John Francis McKeown (Applicant) Minister Administering the Water Management Act 2000 (Respondent) Representation: Mr P Clay SC (Applicant) Dr J Lucy (Respondent) Mr P James, MJO Legal (Applicant) Mr D Stewart, NSW Office of Water (Respondent) File Number(s): 10219 of 2012

Judgment 1This is an appeal pursuant to s 368 of the Water Management Act 2000 (the WM Act) against a Direction issued by a delegate of the respondent Minister under s 333(2) of the WM Act on 2 February 2012 (the Direction) in respect of land owned by the applicant Mr McKeown, at 1897 Pacific Highway Cowper (the property). 2The property is located approximately 19km north of Grafton, between the Clarence River and the Pacific Highway, and has a total area of 18.99ha. Access to the property from the Pacific Highway is across an unsealed track, which traverses an area described by the applicant as a "depression", and by the respondent's experts as a "water body", which is below the level of the Pacific Highway and the level of the larger part of Mr McKeown's land on which his house and other buildings are located. Access to the land owned by Mr McKeown's neighbours to the north and south is similar. The "depression" extends over 3km, and is bounded by the high Clarence River banks on one side, the Pacific Highway on the other, and the large levee bank adjacent to the Cowper No 2 drain at its southern extremity. In times of flood, waters flow from the Clarence River and flood the land over which Mr McKeown and his neighbours obtain access. 3Between 9 July 2010 and 20 August 2010 Mr McKeown undertook work to upgrade the track, including raising the track by approximately 0.5m. In January 2011 there was a significant rain event and the Clarence River flooded. In late January 2011 officers of the respondent inspected the property. The background to that inspection, subsequent investigations and inspections, and the issuing of the Direction, is outlined in the respondent's written submissions. 4In July 2011 the applicant lodged an application under s 92 of the WM Act for a Controlled Activity Approval for works including the placing of pipes under the access road to improve drainage. That application has not yet been determined. 5The Direction issued on 3 February 2012 stated that Mr McKeown, the registered landholder, "has carried out a controlled activity, namely the deposition of material on land, or has carried out an activity that affects the quantity or flow of water in a water source, by raising the level of a previous access track ("the Crossing") at the Property which traverses waterfront land". The Direction stated that the controlled activity was carried out in, on or under waterfront land, without a controlled activity approval, which is an offence under s 91E(1) of the WM Act; and that there are no exemptions from s 91E(1) of the WM Act applicable to the controlled activity. The Direction stated that the delegate issuing the Direction was of the opinion that the controlled activity "is having, has had, or is likely to have an adverse effect on a water source or waterfront land", and required the applicant to take the measures specified under the heading "Specified Measures" to prevent and/or minimise and/or mitigate any adverse effect on a water source or waterfront land as a consequence of the carrying out of the controlled activity. 6The Direction described the Specified Measures as follows: 1.Excavate and remove material from the road crossing to leave a finished road surface at the cattle grid ("the grid"), marked Site B on Attachment A, at the current grid level evenly sloping to a level of 1.72 metres AHD (Australian Height Datum) to a point 8 metres in a north westerly direction along the road crossing from the northern side of the edge of the grid, marked Site B on Attachment A (as shown on Attachment B). Material is to be removed laterally for the full width of the road. 2.Excavate and remove material from the crossing to leave a level finished road crossing surface of 1.72 metres AHD from a point 8 metres from the northern side of the grid, marked Site B on Attachment A to a point 33 metres in a north westerly direction along the road crossing from the northern side of the grid, marked site B on Attachment A (as shown on Attachment B). Material is to be removed for the full width of the road. 3.Excavate and remove material from the crossing to leave a finished road crossing surface graded from a level of 1.72 metres AHD from a point 33 metres from the northern side of the edge of the grid, marked Site B on Attachment A evenly sloping to the current road surface level at a point 73 metres in a north westerly direct along the road crossing from the northern side of the grid, marked site B on Attachment A (as shown on Attachment B). Material is to be removed laterally for the full width of the road. 4. Remove all the spoil material as a result of works described at "1", "2" and "3" of "Specified Measures" and place the material no closer to the Crossing than the cattle grid marked "Site C" on "Attachment A - Location of Works" and no closer than 40 metres from the top of the high bank of the Clarence River or the water course over which the crossing the subject of this direction has been constructed. 5. Ensure that the removal and rehabilitation works described at 1-3 above do not cause any further adverse effects on waterfront land. 7Mr McKeown appealed to the Court under s 368(1)(n) of the WM Act, seeking orders that the Direction be set aside. The parties have now reached agreement as to the terms of an amended Direction, and seek orders by consent.