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. The site 4The site consists of three lots, Lots 1, 2 and 3, DP 869539. The water management work is a large dam, located in the north-western corner of Lot 3, adjacent to the dwelling and swimming pool. The dam has a water surface area of 12,700m2 (the Direction, Figure 2). 5The hearing commenced on site and the Court, in the company of the parties and the Respondent's expert, conducted a view of the dam. The water level of the dam has been reduced, which was evident from the watermark higher up the dam wall. The dam embankment, on the southern side of the dam, has failure scarps in the centre of the southern side of the embankment and there is landslide debris below the failure scarps. There is a spillway in the south-western corner of the dam and a channel falling to the south, containing a hose used for siphoning water out of the dam. The hose passes through a concrete pipe under a culvert. The culvert is used for vehicular access from the dam embankment to the eastern portion of Lot 3. The Background 6The dam was constructed between 1984 and 1989 and took over a year to fill completely (Exhibit A, para 10). The Court and the parties were shown a video, dated December 1990, with footage of the completed and filled dam. 7The dam wall burst on the southern side in January 1991 (Exhibit A, para 12). Repair works were carried out between 1994 and 1999 (Exhibit A, para 18). 8The site was subdivided into four lots in 1997 and the shared boundary between Lots 2 and 3 changes angle, near the road and adjacent to the dam, to accommodate the dam entirely on Lot 3. The Applicant cites this as evidence of the existence of the dam in 1997 (Exhibit A, para 19). 9The southern wall of the dam seeped water from 2003 until 2005 (Exhibit A, paras 21-23) and repair works were carried out in 2006 (Exhibit A, para 31). 10In 2010, Mr Zizza noticed wetness at the toe of the dam and a bit of slippage (Exhibit A, para 32). In 2011, fill was added to the southern side of the dam embankment wall (Exhibit A, para 36). Following the addition of the fill, a significant crater was created in the middle of the downstream face of the dam wall and loose fill material slipped downstream, when a bulldozer was removed, having been bogged on the embankment wall, (Exhibit A, para 49). The embankment was further eroded by heavy rainfall (Exhibit A, para 58). Legislative framework 11Chapter 3 'Water management implementation' of the WM Act, s 52 'Domestic and stock rights', includes at (1)(b), that an owner or occupier can construct a water supply work without approval, however, at subsection (2)(b), that does not extend to constructing a dam. Section 53 'Harvestable rights', includes at (1) that an owner or occupier within harvestable rights areas can construct and use a dam, without approval, for the purpose of capturing and storing rainwater run-off and in accordance with the harvestable rights order by which the area is constituted, at (a). 12The evidence of the Respondent's expert, Mr Hanks, a Water Regulation Officer in the Licensing and Compliance Branch in the Office of Water (Exhibit 2, para 11), is that the capacity of the existing dam, which he estimates to be 54.3 ML, significantly exceeds the harvestable rights capacity of the site, which he estimates to be 7 ML. The Applicant does not dispute this. 13Part 3 of the WM Act, 'Approvals' includes, at s 90(1) 'Water management work approvals', that approval can be given for three kinds of water management work approvals; a water supply work approval, a drainage work approval and a flood work approval. 14Section 90(2) states that 'A water supply work approval authorises its holder to construct and use a specified water supply work at a specified location.' 15Section 91B of the WM Act, 'Constructing or using water supply work without, or otherwise as authorised by, a water supply work approval', includes at s 91B(1) that a person is guilty of an offence if they construct or use a water supply work and do not hold an approval for that work. 16It is a defence to a prosecution under s 91B(1) if the accused person establishes that the water supply work was constructed or used pursuant to a basic landholder right, at s 91B(5). 17In addition to the specific defences in s 91B, a general defence is provided in s 91M(2) to a prosecution under Division 1A of Part 3 of Chapter 7, which allows an accused person to establish that they were exempt, pursuant to the WM Act and the Regulation, from any requirement for an approval in relation to the doing of that thing. 18The dictionary of the WM Act includes the following relevant definitions of terms: * Basic landholder rights means domestic and stock rights, harvestable rights or native title rights. * Construct a work includes install, maintain, repair, alter or extend the work. * Water management work means a water supply work, a drainage work or a flood work, and includes any part of such a work. * Water supply work means [at (e)] any work (such as a weir) that has, or could have, the effect of impounding water in a water source. 19The Water Management (General) Regulation 2011 (WM Reg) includes, at Part 3 'Approvals', Subdivision 3 'Exemption from requirement for water supply work approval', cl 36 'Exemptions relating to both construction and use of water supply works', the following: (1) The following persons are exempt from section 91B (1) of the Act in relation to the construction or use of a water supply work if the work is constructed or used for any of the purposes, and in the circumstances, specified in relation to the work: (a) any person who is a landholder, in relation to the construction of an excluded work referred to in item 1, 2, 3, 4, 6, 7 or 9 in Schedule 1 that is situated on the land, or the use of the work for any of the purposes, and in the circumstances, specified in Schedule 1 in respect of the work 20The WM Reg, Schedule 1 'Excluded works', includes, at item 6, the following: Works impounding water that exceeds the harvestable rights referred to in an order under section 54 of the Act: (a) that were constructed before 1 January 1999, and (b) that are used solely for domestic consumption and stock watering or that do not result in the extraction of water, and (c) that are located on a minor stream, and (d) from which water is being used only on the landholding on which the dam is located. 21These items are conjunctive, requiring all to be satisfied for the work to be exempt from requiring approval. The parties agree that (b), (c) and (d) are satisfied. The parties disagree whether (a) is satisfied. 22Division 3 'Unlawful works and activities' of WM Act, includes at s 329 'Removal of unlawful water management works', the following: (1) This section applies to a water management work for which no water management work approval is in force. (2) The Minister may, by order in writing served on any person having control or management of the work, direct the person to take specified measures to demolish, remove, modify or dismantle the work or otherwise render it ineffective. (3) Such a direction may be given even if the work is not being used or is not capable of being used. (4) Such a direction may not be given in relation to a water supply work that is being used solely: (a) to take water from a water source pursuant to a landholder's domestic and stock rights, or (b) to capture and store rainwater run-off pursuant to a landholder's harvestable rights. (5) Without limiting subsection (2), the landholder on whose land the work is situated is taken to have control and management of the work. 23The Interpretation Act 1987 (Interpretation Act) includes, at s 35(1) 'Headings' that headings to chapters, parts, divisions or sub-divisions into which the Act is divided shall be taken to be part of the Act. 24The Interpretation Act states at s 35(2), headings to a provision of an Act shall not be taken to be part of the Act. 25The Interpretation Act states at s 34(1), 'Use of extrinsic material in the interpretation of Acts and statutory rules', that in interpreting a provision of an Act, if any material not forming part of the Act is capable of assisting in interpreting the meaning of the provision, consideration can be given to that material. Submissions and Findings The harvestable rights capacity of the site are exceeded by the dam Submissions 26The parties agree that the capacity of the dam exceeds the harvestable rights capacity of the site and therefore this cannot be used as a defence, pursuant to s 91B(5) of the WM Act and this does not prevent the Direction from being served, pursuant to s 329(4)(b). Whether the dam is exempt from a requirement for water supply work approval Submissions 27Mr Norton submits that the Respondent does not dispute the chronology provided by the Applicant and summarised above in paras 6 to 10, other than to say that the dam ceased to operate as a dam after the failure of the embankment in 1991 and it was not repaired and functioning again until after 1999. The Respondent supports this view with aerial photographs of the site (Exhibit 3, photos 6 -11). 28Mr Hemmings submits that the video shown to the Court is evidence that the dam was operating before 1 January 1999. Findings 29The definition of 'water supply work' in the Dictionary of WM Act, quoted above in para 18, defines a water supply work as being 'any work that has, or could have, the effect of impounding water in a water source'. The inclusion of the words, 'or could have', means, in my view, that the dam does not necessarily have to be functioning to be included in the definition of a water supply work. 30The video footage of the dam in December 1990 unequivocally demonstrates that the dam was in existence in December 1990. The fact that the dam embankment wall failed in 1991 and the dam was not functioning again until 1999 does not preclude the dam structure from being classified as a water supply work during the period it was not holding water. 31I am satisfied that the water supply work, being the dam, was in existence prior to 1 January 1999 and that the fact that it was not holding water on 20 April 1999 (Exhibit 3, photo 10) does not preclude the dam from being classified as having been constructed before 1 January 1999. Consequently, I find that Schedule 1, item 6(a) of the WMR is satisfied and the dam is exempt from a requirement for a water supply work approval. Whether repair works made to the dam, after 1 January 1999, are exempt from a requirement for a water supply work approval Submissions 32Mr Norton submits that the definition of 'construct' in the WM Act, includes the word 'repair'. Therefore the works, carried out to repair the dam embankment after 1 January 1999, are individually considered water management works and are in breach of s 91B of the WM Act. 33Mr Hemmings says that the dam itself is exempt from requiring approval, as it was in existence prior to 1 January 1999. The fact that it has required repairs in the time since its construction does not make the dam unlawful, as the dam falls within the expansive definition of cl 36 of the WM Reg. He says the Court should take a 'common sense approach', as the water supply work in this case is properly described as a dam, which is made up of all the parts of the dam, including the repairs of the embankment. Findings 34The definition of 'construct', in the Dictionary of the WM Act (which is taken to include all parts of speech) includes 'repair the work'. 35Clause 36(1) of the WM Reg includes the phrase, 'in relation to the construction or use of a water supply work'. Based on the definition of construct (and therefore construction) provided by the WM Act, this could be read as 'repair a water supply work'. In my view, the repair works made to the dam, since 1 January 1999, can be individually considered to be water management works and are therefore not exempted from requiring a water supply work approval, because Schedule 1, item 6(a) of the WMR is not satisfied in relation to these repair works. Whether s 329 applies Submissions 36Mr Norton submits that cl 36 of the WMR only provides an exemption for s 91B(1) of the WMA and does not exempt the Applicant from s 329. As no water management work approval is in force for the dam, pursuant to s 329(1), the Minister has the power to issue the Direction, pursuant to s 329(2) and serve it on the Applicant. Mr Norton says that the heading to s 329, 'Removal of unlawful water management works', does not form part of the WM Act, pursuant to s 35(2)(a) of the Interpretation Act. 37Mr Hemmings submits that s 329 is not enlivened, as there is no unlawfulness. He says that the Division heading ('Unlawful works and activities') is part of the Act, pursuant to s 35(1) of the Interpretation Act and that if there is any ambiguity in relation to the operation of s 329, which there clearly is, then s 34(1) of the Interpretation Act permits consideration to be given to any material not forming part of the Act that is capable of assisting in interpreting the meaning of the provision. He submits that the heading of the provision, 'Removal of unlawful water management works' can therefore be given consideration. Findings 38The competing submissions raise the issue of whether a direction can be served on a person, pursuant to s 329(2), if the water management work is exempt from a requirement for a water supply work approval. Mr Hemmings says it cannot, as s 329 is not enlivened and this is evident from the heading to the division, which includes the word 'unlawful' and an exempted water supply work is not unlawful. Mr Norton says that my findings, in relation to the whether the dam and repair works are exempt from a requirement for a water supply work approval, are irrelevant, because the power exists to make a direction under s 329 regardless. This is because the only exemption provided by cl 36 of the WM Regs is from the offence provision, s 91B. The owner of the water supply works are not, however, exempt from having an order served on them, pursuant to s 329. 39The only clue to the meaning of the word 'unlawful' in the division heading (which is part of the WM Act pursuant to s 35(1) of the Interpretation Act) is in s 329(1) of the WM Act, which states, 'This section applies to a water management work for which no water management work approval is in force'. The question is whether this provision stands independently of whether or not an offence has been committed under s 91B. 40It is conceivable that the Minister needs to retain a residual discretion to control works that are otherwise exempt from requiring approval, if circumstances dictate that such control is appropriate. Such a power is conferred, for example, on the appropriate regulatory authority to make directions, under s 96 of the Protection of the Environment Operations Act 1997, when it reasonably suspects that an activity has been carried out in an environmentally unsatisfactory manner. 41It is, however, not necessary for the Court to decide whether s 329 applies to a water supply work wholly exempted from a requirement for a water supply work approval, as I have found that the repair works to the dam, carried out since 1 January, 1999, are not exempt. Conclusion 42I am satisfied that the dam is excluded from requiring a water supply work approval, however, the repair works to the dam, carried out since 1 January 1999, are individually considered to be water management works and are therefore not exempted from requiring water supply work approval, because Schedule 1, item 6(a) of the WMR is not satisfied. Accordingly, s 329(1) is met and there is power to issue the Direction under s 329(2). Directions 43As it has been found that the appeal can proceed to a consideration of the merits, directions will be made after discussing the future conduct of the appeal with the parties. Susan O'Neill Commissioner of the Court ********** Amendments 03 June 2013 - Submissions heading added above para 32 Amended paragraphs: 32 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: 03 June 2013