Piper v Minister Administering the Water Management Act 2000 [2016] NSWLEC 136

Land and Environment Court New South Wales

Medium Neutral Citation: Piper v Minister Administering the Water Management Act 2000 [2016] NSWLEC 136 Hearing dates: 21 October 2016 Date of orders: 21 October 2016 Decision date: 24 October 2016 Jurisdiction: Class 1 Before: Pepper J Decision: See orders at [26]. Catchwords: SEPARATE QUESTION: adequacy of formulated separate question – question reformulated – whether lay person to appear as agent for applicant. Legislation Cited: Land and Environment Court Act 1979, s 63(3) Land and Environment Court Rules 2007, rr 3.7, 7.7 Water Act 1912 Water Management Act 2000, s 368 Cases Cited: Fobitu Pty Ltd v Marrickville Council [2012] NSWLEC 81 Rural Funds Management Limited v The Minister Administering the Water Management Act 2000 [2016] NSWLEC 19 Young v Parramatta City Council [2006] NSWLEC 116; (2006) 144 LGERA 193 Texts Cited: Category: Procedural and other rulings Parties: Corie Bruce Piper (First Applicant) Nicole Louise Piper (Second Applicant) Minister Administering the Water Management Act 2000 (Respondent) Representation: Counsel: Mr P Mahaffy (Agent) (Applicants) Ms R Mansted (Respondent)

Solicitors: N/A (Applicants) NSW Department of Industry, Skills and Regional Development File Number(s): 2016/162319 Publication restriction: Nil

Judgment

A Separate Question is Ordered 1. On 10 August 2016 the Court ordered the following question to be heard and determined separately in a Class 1 appeal under s 368(1)(i) of the Water Management Act 2000 ("the WMA"): Whether the applicants' appeal is competent. 1. The Class 1 application, filed on 9 May 2016 is in the following terms: 1 Schedule 3 condition DK2733-00001 in the Statement of Approval number 90FW833762 be completely removed from the Approval 2 A copy of the approval plan held by DPI Water as stated in condition DK2631-00001 be updated to reflect the removal of condition DK2733-00001 in order 1 above 3 Costs are awarded to the Applicant 4 Any other order the court considers appropriate 1. The separate question, framed as it was in such broad terms, suffered from the vice that it may not have been, and was not understood by the applicants, Mr Corie Piper and Ms Nicole Piper ("the Pipers"), or their agent, Mr Peter Mahaffy, to have been, dispositive of the proceedings because it was not necessarily amenable to an unqualified negative answer. 2. As has been stated on numerous occasions in this Court (Young v Parramatta City Council [2006] NSWLEC 116; (2006) 144 LGERA 193 at [6(3)] per Jagot J, adopted by Biscoe J in Fobitu Pty Ltd v Marrickville Council [2012] NSWLEC 81 at [11(3)]): (3) Where the issue sought to be separated involves a question of law, there should be "a clear definition of what the point of law raised is" (National Real Estate and Finance Co Ltd v Hassan[1939] 2 KB 61 at 77) and the facts upon which that question has to be considered should be "clearly ascertainable" (Radstock Co-operative Industrial Society v Norton-Radstock Urban District Council [1968] 1 Ch. 605 at 632, referred to in Delbant Pty Limited v North Sydney Council [2005] NSWLEC 657 at [9] to [12]). 1. It is perhaps for this reason that Mr Mahaffy's submissions sought to address, amongst other things, the merits of the Class 1 appeal and raised issues that did not appear to be relevant to the determination of the separate question. Indeed, during the hearing, it became apparent that Mr Mahaffy did not understand the scope and import of the separate question posed. 2. The Court therefore, with the assistance of, in particular, the respondent, the Minister Administering the Water Management Act 2000 ("the Minister"), sought to refine and narrow the separate question, in order to formulate a question that would permit the proceedings to be entirely disposed of depending on its answer. 3. Therefore, after considerable discussion, the following two questions emerged and were settled upon: Whether the replacement of: a. condition 1 on approval 90CW810650 with DK2631-00001 on floodwork approval 90FW833762; and/or b. condition 5 on approval 90CW810650 with DK2733-00001 on floodwork approval 90FW833762 under the Water Management Act 2000 ("the Act") constituted a "decision imposing a discretionary condition of approval" under s 368(1)(i) of the Act; and 2 If so, whether the appeal filed under s 368(1)(i) of that Act on 9 May 2016, has been brought "more than 28 days after the date on which the decision was made" under s 368(3) of the Act. 1. The gravamen of the separate questions is, as I understand the parties' arguments at this nascent stage of the proceedings, as follows: 1. upon the conversion and update, on 16 September 2015, of conditions of a flood work approval granted in 2005 pursuant to the now repealed Water Act 1912 ("the WA"), to conditions of approval under the WMA, the conditions were amended, albeit in a manner that was directed arguably to their substance and not merely their form; 2. the question therefore is whether or not these amendments constitute, in effect, new conditions, and therefore, the conversion and updating process amounts to "a decision imposing a discretionary condition on an approval" under s 368(1)(i) of the WMA; 3. if it does not, then, as the appeal is presently framed, the Court has no jurisdiction to entertain the appeal under s 368 of the WMA; and 4. if, however, it does, then this gives rise to the question precisely of when was the operative decision for the purpose of that provision. If that date is 16 September 2015, then the appeal is time barred pursuant to s 368(3) of the WMA (see Rural Funds Management Limited v The Minister Administering the Water Management Act 2000 [2016] NSWLEC 19). Whereas, if the date is 11 April 2016 – the date upon which the conversion and update was notified to the Pipers (curiously, eight months later) – then the appeal was filed within the time stipulated by s 368. 1. As reformulated, these more targeted separate questions retain the benefit of having the capacity to wholly dispose of the appeal while obviating the necessity for the parties, and the Court, to delve, to any substantial depth, into the merits of the matter. They will, moreover, afford the Pipers with the opportunity of focusing their submissions on these issues, and these issues alone, without having to answer some wider enquiry which may not eventuate. 2. The Minister, while consenting to the redrafting of the separate question in these terms, noted that additional documentary evidence may be required to meet the separate question, but that this would be in short compass. It was hence agreed that both parties would be afforded the opportunity of filing further evidence and submissions to meet the refined separate questions. But, as was emphasised before the parties, it is difficult to conceive of much additional evidence or substantial written submissions being needed. If anything, less, and not more, will be required, especially from the Pipers.