Zizza v Minister Administering the Water Management Act 2000 [2013] NSWLEC 1095

Land and Environment Court New South Wales

Medium Neutral Citation: Zizza v Minister Administering the Water Management Act 2000 [2013] NSWLEC 1095 Hearing dates: 28-29 May 2013 Decision date: 03 June 2013 Jurisdiction: Class 1 Before: O'Neill C Decision: See para 43 Catchwords: APPEAL - Direction to remove unlawful water management work - whether power exists to issue the direction under the Water Management Act 2000 Legislation Cited: Water Management Act 2000 Protection of the Environment Operations Act 1997 Interpretation Act 1987 Land and Environment Court Act 1979 Category: Procedural and other rulings Parties: Mr Anthony Samuel Zizza (Applicant) The Minister administering the Water Management Act 2000 (Respondent) Representation: Mr Ian Hemmings, Barrister (Applicant) Mr Chris Norton, Barrister (Respondent) LAS Lawyers and Consultants (Applicant) NSW Department of Trade and Investment (Respondent) File Number(s): 10388 of 2012

Judgment 1COMMISSIONER: This is an appeal pursuant to the provisions of s 368(1)(n) of the Water Management Act 2000 (the WM Act) against a Direction to Remove Unlawful Water Management Work (the Direction), made pursuant to s 329(2) of the WM Act by the Office of Water, Department of Primary Industries (the Office of Water), at 105 Goolara Road, Mangrove Mountain (the site).

Issues 2The Applicant's contention in the matter is that there is no statutory basis upon which to issue the Direction, as the dam is exempted from the operation of s 91B of the WM Act because it was constructed prior to 1 January 1999. 3This requires consideration of whether s 329 of the WM Act applies. If I conclude that s 329 does not apply, there is no power to issue the Direction and the appeal will be upheld. If I conclude that s 329 does apply, then the matter will need to proceed to determine whether the Applicant is to be directed to take specified measures to demolish, remove, modify or dismantle the work, pursuant to s 39(2) of the LEC Act.