Land and Environment Court New South Wales Medium Neutral Citation: Piper v Minister Administering the Water Management Act 2000 (No 2) [2017] NSWLEC 15 Hearing dates: 23 February 2017 Date of orders: 06 March 2017 Decision date: 06 March 2017 Jurisdiction: Class 1 Before: Sheahan J Decision: The Applicant's Notice of Motion to amend is dismissed. See paragraph [84] Catchwords: APPEAL: application to amend a Class 1 application – principles to be applied – separated question outstanding in respect of the competency of appeal – construction of relevant provisions affecting replacement of former legislation – costs. Legislation Cited: Civil Procedure Act 2005 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Water Act 1912 Water Management Act 2000 Water Management Amendment Act 2014 Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Barrington-Gloucester-Stroud Preservation Alliance Inc v Minister for Planning and Infrastructure [2012] NSWLEC 197 Charles and Howard Pty Ltd v Redland Shire Council [2007] QCA 200 Greek Australian Finance Corporation Pty Ltd v Sydney City Council (1974) 29 LGRA 130 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Piper v Minister Administering the Water Management Act 2000 [2016] NSWLEC 136 Rural Funds Management Limited v The Minister Administering the Water Management Act 2000 [2016] NSWLEC 19 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 S Docker, barrister (Applicants) Ms R Mansted, barrister (Respondent) Solicitors: N/A (Applicants) Department of Industry, Skills and Regional Development File Number(s): 2016/162319 Judgment Introduction 1. The applicants ("the Pipers") seek leave of the Court to amend their Class 1 application concerning levee works on a property known as "Auburn", near Wee Waa (Portion 48, Parish of Bolcarol, County Jamison). The Appeal 1. As filed on 9 May 2016, by their then authorised agent, Peter Mahaffy, the Pipers' application appealed, under s 368(1)(i) of the Water Management Act 2000 ("the WMA"), and pursuant to s 17(c) of the Land and Environment Court Act 1979 (the Court Act), against conditions imposed on their "Flood Work approval", No. 90FW833762, dated 21 September 2015. 2. The application refers to, and annexes, a letter dated 11 April 2016, from the NSW Department of Primary Industries Water, and an attached Statement of Approval No 90FW833762. 3. The letter relevantly explained to the Pipers that their "controlled work approval had been replaced by a flood work approval", a copy of which was attached. The letter invited them to "read the conditions carefully to ensure" they understood them, and "can continue to comply with them". 4. The orders sought in the Class 1 application were: 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 conditions on the approval (attached to the Class 1 application) were as follows (with the challenged condition now emphasised): DK2631-00001 The location and specifications of the flood work authorised by this approval, as shown on the approved plan, must not be altered. A copy of the plan is held by DPI Water. DK2633-00001 The flood work authorised by this approval must be constructed and maintained in a way that will: A. ensure the work's safe construction and operation, and B. prevent the possibility of damage being caused by the work, or resulting from the work, to any public or private interest. DK2733-00001 The Auburn floodway must be 325 m wide, indicated at the point A on the approved plan. A copy of the plan is held at DPI Water. 1. There is, in fact, no "point A" indicated on any plan in the material seen by the Court. 2. The nominated respondent on the Class 1 application was "NSW Department of Primary Industries, Water", but "the Minister Administering the Water Management Act 2000" was substituted as respondent, by the Registrar, on 7 June 2016. Question(s) Separated 1. The conversion of old legislative scheme approvals (under the Water Act 1912) to approvals under the new scheme (WMA) in fact occurred in September 2015, effective 21 September 2015, but was not notified to the applicants until 11 April 2016. 2. If the time for appealing should be dated from September 2015, rather than 11 April 2016, the 9 May 2016 appeal would be out of time. 3. On 15 July 2016, the Minister filed a Notice of Motion ("NOM") seeking an order for a "separate question" in terms "whether the applicant's appeal is competent" (my emphasis). 4. On 10 August 2016, I, as Duty Judge, considered the respondent's written submissions, which included (in par 5) the following: ... The applicants' appeal is only competent if the notification of the conversion and updated conditions constitutes a "decision to impose a condition" within the meaning of the language in s 368(1)(i) of the WMA. The respondent says that the statutory mechanism by which the conversion occurred does not give rise to a right of merits review where the decision to grant the original application and impose the relevant condition was made over a decade ago. (The submission went on to refer to the time limit in s 368 of the WMA, but erroneously referred to sub s (4) instead of sub s (3) – see [41] below.) 1. I made the "separate question" order, with the agreement of the parties, and reserved their costs of that day. The parties were referred to the Registrar to secure a hearing date, and I set a timetable for evidence and submissions on the competency question. 2. The question was listed before Pepper J for hearing on 21 October 2016. Mr Mahaffy appeared for the Pipers, and the Minister was represented by counsel (Ms R Mansted), who submitted (written subs 23 September 2016, par 2): ... the question should be answered in the negative. The conditions of approval sought to be appealed by the applicants were not "imposed" 28 days prior to the lodgement of the appeal, and therefore the applicants do not have a right of merits review under s 368 of the [WMA]. 1. Her Honour gave her decision on 24 October 2016: Piper v Minister Administering the Water Management Act 2000 [2016] NSWLEC 136. 2. Her Honour decided that the separate question should be reformulated, as "it became apparent that Mr Mahaffy did not understand the scope and import of the separate question posed" and he had "sought to address ... the merits of the Class 1 appeal and raised issues that did not appear to be relevant to the determination of the separate question" ([5]). Her Honour noted (in [6]) that it was desirable that the answer to a separate question "entirely" disposed of the proceedings. 3. The separate question(s), as reformulated, became ([7]): 1 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. Her Honour commented ([9]): 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. The Agent's Role 1. Her Honour went on to deal with Mr Mahaffy's role in the proceedings. 2. She observed ([15]) that he "has considerable experience as an irrigation and construction surveyor in the State. As part of his business as an irrigation and construction surveyor in New South Wales, Mr Mahaffy has lodged many applications for controlled works on flood plains ...", but ([16]) that he is not "legally qualified". 3. Her Honour said ([19]): Real concern therefore exists as to the extent to which Mr Mahaffy's services, well intentioned though they are and especially should the matter proceed to a merits hearing, will be in the interests of the applicants during the hearing and determination of the separate questions. In my opinion, they will not. The separate questions concern technical and complex questions of law, and not questions going to the merits of the appeal. Unless they are answered favourably towards the applicants, the merit matters sought to be raised by the appeal will not be ventilated because the proceedings will almost certainly come to an end. 1. Her Honour "noted" ([27]), after her orders, that Mr Mahaffy's "leave to appear as agent for the applicants did not extend beyond" a telephone directions hearing Her Honour listed for 27 October 2016. 2. On 26 October 2016, Mr Mahaffy filed "Written Submission for Costs Thrown Away because of reformulation" of the separate question, and, on 27 October 2016, "Written Comments and Corrections on Judgement (sic) of Justice Pepper of 24th October 2016". 3. On 27 October 2016 the applicants attended the telephone directions hearing in person, and the matter was (eventually) stood over to 30 November 2016, in the courtroom. 4. On that latter occasion, and since, the applicants have been represented by Mr Sean Docker of Counsel, but, on 24 November 2016, Mr Mahaffy emailed Pepper J's associate, saying, inter alia, that: ... after talking to Sean Docker and Corie and Nicole Piper, it would be best if I remained the authorised agent (acting as the solicitor on record) so that the LEC has reasonable access to my clients (the Pipers matters) in the event that this is necessary. For the moment this just means that my leave has been revoked by Justice Pepper to appear, which for the separate question proceedings, I won't be needing. At least in this way the LEC can have normal contact and I will also be expecting it, which hopefully will make it easier for all. Application to Amend 1. As foreshadowed to the Court on 30 November 2016, the applicants filed a NOM on 31 January 2017, seeking leave to file an amended Class 1 application, in the following terms (c.f. [5] above): 1 Schedule 3 condition DK2733-00001 in the Statement of Approval number 90FW833762 be completely removed from the Approval. 2 The approved 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 and the current location of the levee. 2A Further or in the alternative, Schedule 3 condition DK2733-00001 in the Statement of Approval number 90FW833762 be replaced by the following conditions: "The location and specifications of the work authorised by approval 90CW810650 issued under the Water Act 1912 and this approval (which replaced approval 90CW810650) were modified pursuant to the Memorandum of Agreement for Narrabri Wee Waa Floodplain Remedial Works, Orien and Auburn Floodways, Wee Waa between the Namoi Catchment Management Authority, JK Hatton Farming Pty Ltd, the Applicants, NSW Office of Water and NSW Office of Environment and Heritage dated on or about 8 June 2012. The flood work authorised by this approval must be constructed and maintained in the location identified at point "H" in Schedule 3 of the Memorandum of Agreement." 3 Costs are awarded to the Applicant 4 Any other order the court considers appropriate 1. As ordered by Pepper J on 30 November 2016, that NOM was listed for hearing on 23 February 2017, and I duly heard argument on it on that day. 2. Clearly the issues before the Court on the question of amendment are different from, if related to, the issues covered by the proposed separate question(s). Relevant Statutory Provisions 1. Section 17(c) of the Court Act includes in Class 1 of the Court's jurisdiction "appeals under s 368 of the [WMA]". 2. Section 22 of the Court Act provides, under the heading "Determination of matter completely and finally", that: the Court shall, in every matter before the Court, grant either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by that party in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided. 1. Section 39(2) of the Court Act provides (emphasis mine): In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal. 1. The Civil Procedure Act 2005 ("CP Act") relevantly provides as follows: 56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. ... 57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects: (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. ... 58 Court to follow dictates of justice (1) In deciding: (a) whether to make any order or direction for the management of proceedings, including: (i) any order for the amendment of a document, and ... (b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice. (2) For the purpose of determining what are the dictates of justice in a particular case, the court: (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant: (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, ... (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case. ... 64 Amendment of documents generally (1) At any stage of proceedings, the court may order: (a) that any document in the proceedings be amended, or (b) that leave be granted to a party to amend any document in the proceedings. (2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings. ... On making the amendments, see Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175. 1. Sections 175 to 176A of the (now replaced) Water Act 1912 provided for approvals, their renewal, and the imposition of conditions. 2. In respect of conditions, s 176A relevantly provided: (1) An approval is subject to such conditions as may be imposed by the Ministerial Corporation, by notice served on the affected person: (a) on the grant or renewal of the approval, or (b) at any time during the currency of the approval. (2) The Ministerial Corporation may, by notice served on an affected person, vary or revoke any conditions of an approval. (3) If the Ministerial Corporation intends to impose a condition on an approval, or to vary or revoke a condition, the Ministerial Corporation: (a) must cause notice of its intention to be served on the affected person, and (b) must give that person a reasonable opportunity to make written submissions to the Ministerial Corporation with respect to the condition concerned, and (c) must have regard to any submission that is made. ... (6) In this section: affected person means: (a) in the case of a condition imposed on the grant or renewal of an approval—the person who applied for the grant or renewal, or (b) in any other case—the occupier of the land on which the controlled work that is the subject of the approval is situated. 1. Section 178A provided for appeals, by an applicant for approval/renewal, to this Court, in specified circumstances. 2. The new regime introduced by the WMA includes the following processes for obtaining approvals: 92 Applications for approvals (1) Subject to any embargo, any person may apply for an approval. (2) An application for an approval must be made to the Minister in accordance with the regulations. (3) The regulations may require the application to be accompanied by a management program for the land to which the application relates. (4) An application may relate to more than one approval, whether of the same or of a different kind, unless the Minister requires a separate application to be made in relation to one or more of them. (5) The Minister: (a) may require an applicant for an approval to provide additional information within a specified time if of the opinion that additional information would be relevant to consideration of the application, and (b) may delay consideration of the application until the information is provided or, if the information is not provided within the time specified, may refuse to consider the application. (6) The Minister may refuse to accept an application for an approval if it appears to the Minister that the application is incomplete. (7) The regulations may require any application, or any specified class of applications, to be advertised. (8) An applicant for an approval may, by notice in writing to the Minister, amend or withdraw the application for the approval at any time before the application is determined. Note. Approvals are listed in section 91 of the Environmental Planning and Assessment Act 1979. Development that requires an approval is consequently integrated development for the purposes of that Act. 93 Objections to applications for approvals (1) Any person may, in accordance with the regulations, object to the granting of an approval that has been advertised pursuant to section 92. (2) The Minister must inform the applicant for an approval of the grounds of any objection to the granting of the approval and must allow the applicant a specified time within which to make a written response to the Minister in relation to the objection. (3) The Minister: (a) may require an objector or applicant to provide additional information within a specified time if of the opinion that additional information would be relevant to consideration of the objection or response, and (b) may delay consideration of the objection or response until the information is provided or, if the information is not provided within the time specified, may refuse to consider the objection or response. (4) If there is a deficiency in an objection or response, the Minister may notify the objector or applicant accordingly and allow further time to enable the deficiency to be rectified. (5) Before making a decision on an application for the approval in respect of which any objection has been made, the Minister must endeavour to resolve the issues raised by the objection by means of consultation with the applicant and the objector, with a view to reaching agreement on the matters raised by the objection. (6) For the purpose of reaching such an agreement, the Minister may propose that the matters raised by the objection be dealt with by way of mediation or neutral evaluation involving an independent mediator or evaluator appointed by agreement between the applicant, the objector and the Minister. (7) The costs of any such mediation or neutral evaluation are to be paid for by the Minister. (8) An application or objection may be dismissed by the Minister if the applicant or objector, as the case may be, fails to participate in any mediation or neutral evaluation proceedings referred to in subsection (6). ... 95 Determination of applications (1) After considering an application and all matters relevant to the application, the Minister is to determine the application: (a) by granting the approval to which the application relates, or (b) by refusing the application. Note. Section 99A enables the Minister to grant combined approvals at the time an application is granted for one or more of the approvals concerned or subsequently. (1A) An approval may be granted unconditionally or subject to such conditions as are required or permitted to be imposed under Division 3. (2) (Repealed) (3) An approval may not be granted in contravention of the provisions of any relevant management plan. (4) An approval is to be in such form as the Minister may determine. (5) An approval takes effect on the day on which notice of the decision to grant the approval has been given to the applicant. 1. Conditions are dealt with in more detail in s 100. If required by "any relevant management plan", they would be "mandatory conditions", and any others would be "discretionary conditions". 2. Discretionary conditions (i.e. those the "Minister thinks fit") might give effect to any agreement reached between an applicant and an objector, and/or might relate to the protection of the environment. If inconsistent with a mandatory condition, the mandatory condition prevails. Section 101(3) identifies possible subject matter for discretionary conditions. 3. Section 102 enables the imposition of conditions after approval, but only on the giving of notice, and after considering submissions. It provides: (1) The Minister may impose discretionary conditions on an approval after it has been granted, or may amend a discretionary condition, but only if the Minister: (a) has given written notice to the holder of the approval that the Minister proposes to impose such conditions or make such an amendment, and (b) has given the holder of the approval a reasonable opportunity to make submissions to the Minister with respect to the proposed conditions or amendment, and (c) has taken any such submissions into consideration. (2) Subsection (1) does not apply to conditions imposed on an approval, or an amendment made, at the request of or with the consent of the holder of the approval. (3) Mandatory conditions of an approval may be imposed, amended, revoked or suspended by the Minister whenever it is necessary to do so in order to enable compliance with or to give effect to this Act, the regulations or a relevant management plan. (4) The Minister must cause written notice of any conditions imposed, amended, revoked or suspended under this section to be served on the holder of the approval concerned. (5) A condition imposed or a change referred to in subsection (4) takes effect on the day on which the notice referred to in that subsection is served on the holder of the approval or on such later day as may be specified in the notice in that regard. (6) The regulations may make provision for or with respect to the manner in which written notices may be given for the purposes of this section 1. Section 107 enables the Minister to amend an approval, on the giving of notice, and after considering submissions. Section 107(5) relevantly provides (emphasis mine): 107 Amendment of approvals ... (5) If the granting of an application under this section would result in the approval concerned relating to additional uses, works, activities or land, the application is to be advertised, assessed and determined in accordance with this Part in the same way as an application for a new approval, but only in relation to the additional uses, works, activities or land. ... 1. Section 368 deals with appeals to this Court, and relevantly provides: (1) An appeal lies to the Land and Environment Court against any of the following decisions made by the Minister: ... (i) in relation to the recording of any matter in the Access Register, or ... (k) a decision refusing to amend an approval in accordance with an application made by its holder, (k1) a decision to amend an approval otherwise than on the basis of an application made by the holder of the approval, ... (3) An appeal is to be made in accordance with rules of court, but may not be made more than 28 days after the date on which the decision was made. ... 1. Schedule 10 to the WMA deals with "conversion of former entitlements to access licences and approvals" (my emphasis). 2. Item/clause 3 of sch 10 provides: Access licences and approvals arising from former entitlements (1) Subject to this Schedule, an entitlement that, immediately before the appointed day, was in force under the 1912 Act, the 1948 Act or the 1994 Act is taken to have been replaced: (a) to the extent to which it entitles any person or body to take a specified quantity of water, by an access licence held by that person or body (subject to such of the conditions of the entitlement as are applicable to an access licence): (i) for the quantity of water so specified, or (ii) if the relevant management plan, and regulations made for the purposes of this paragraph, indicate that a different quantity of water calculated in accordance with a specified methodology may be taken under an access licence issued in relation to the water management area or water source to which the management plan applies—for a different quantity of water calculated in accordance with that methodology, and (b) to the extent to which it entitles any person or body to use a specified water management work, by a water management work approval held by that person or body in respect of that work (subject to such of the conditions of the entitlement as are applicable to an approval of that kind), and (c) to the extent to which it entitles any person or body to use water on any land, by a water use approval held by that person or body in respect of that land (subject to such of the conditions of the entitlement as are applicable to an approval of that kind), and (d) to the extent to which it entitles any person or body to carry out a specified activity, by an activity approval held by that person or body in respect of that activity (subject to such of the conditions of the entitlement as are applicable to an approval of that kind). (2) Subclause (1) does not apply to an entitlement that, immediately before the appointed day, was held by a local water utility for the purposes of town water supply. (3) An access licence that replaces an entitlement may provide for a specified reduction over a specified period of the quantity of water that the holder of the licence is entitled to take or of the share component of the licence if the relevant management plan and any regulations made for the purposes of this subclause allow the licence to provide for those matters. 1. Item/clause 20 provides: Notification of licences (1) The Minister must cause written notice of the terms of each access licence or approval arising by operation of this Schedule to be given to the holder of each such access licence or approval. (2) A replacement access licence or approval: (a) is to include any mandatory conditions that are required to be imposed on the licence or approval, and (b may include such other conditions (discretionary conditions) as the Minister thinks fit, including (but not limited to) conditions relating to the protection of the environment. (2A) Notice of any mandatory or discretionary conditions of a replacement access licence or approval may be given in the written notice given under subclause (1) or by one or more subsequent written notices. (2B) Discretionary conditions imposed on a replacement access licence or approval before the commencement of this subclause are taken to have been validly imposed (and always to have been validly imposed) to the extent that the conditions would have been validly imposed had subclauses (2) and (2A) (as substituted or inserted by the Water Management Amendment Act 2014) been in force at the time that they were imposed. (3) A replacement access licence or approval is to be in such form as the Minister may determine. The Evidence 1. Mr Docker relied upon an affidavit sworn by the applicant Corie Bruce Piper, on 31 January 2017, supplemented by his earlier affidavit of 31 August 2016 (pars [6] to [12], [23] to [45], and [47]), and by Mr Mahaffy's affidavit of 10 August 2016 (pars [17] – [31]). 2. Ms Mansted again appeared for the Minister. She relied upon Exhibit TAL1 to an affidavit of Tracey Anne Lawson (pages 7 to 9), sworn 25 July 2016, and Annexure "F" to Mr Mahaffy's affidavit of 10 August 2016. Exhibit TAL1 is a copy of an application, made to the NSW water agency of the day, by DF and VA Blows of "Auburn", Wee Waa, on 1 August 1995 (including a plan drawn by Mahaffy), seeking approval for proposed levee bank works, which would have related to works approved in 1988 (approval No 90CW800118, which was renewed in 1993, 1998, 2003, 2008 and 2013. As to that relationship, see aerial plan at p34 of Piper's affidavit of 31 January 2017) Annexure "F" is a letter from Mahaffy to Jeremy Cape of the Namoi Catchment Management Authority ("CMA"), dated 22 May 2012, estimating that floodway realignment works on "Auburn" would cost $142,640, plus GST. 1. Corie Piper deposed that he worked for David Blows on developing "Auburn" as an irrigation farm, a project in which Blows engaged Mahaffy. 2. The Pipers purchased "Auburn" from the Blows in late 2000, and took a close interest in the Government's on-going work on Flood Plain Management. 3. Ultimately, the Blows' 1995 application (Exhibit TAL1, [46] above) was approved, as amended, under the Water Act 1912 (s 175), on 3 May 2005 (approval No 90CW810650 – p14 of Piper 31.1.17). (The 2005 approval was renewed in 2010, and again in 2015, when its term was extended to 2020). 4. The conditions attached to the 2005 approval were: (1) THE LOCATION AND NATURE OF THE APPROVED CONTROLLED WORK, AS SHOWN ON A PLAN RETAINED IN THE OFFICE OF THE DEPARTMENT OF INFRASTRUCTURE, PLANNING AND NATURAL RESOURCES (COPY ATTACHED), SHALL NOT BE ALTERED. (2) THE RESPONSIBILITY FOR THE MANNER OF CONSTRUCTION AND MAINTENANCE OF THE APPROVED WORKS RESTS WITH THE HOLDER OF THE APPROVAL. (3) THE APPROVED WORKS SHALL BE CONTRUCTED AND MAINTAINED IN A MANNER THAT WILL ENSURE THEIR SAFETY AND WILL MINIMISE THE POSSIBILITY OF DAMAGE BEING OCCASIONED BY THEM, OR RESULTING FROM THEM, TO ANY PUBLIC OR PRIVATE INTEREST. (4) IF DURING THE CURRENCY OF THIS APPROVAL A FLOODPLAIN INVESTIGATION BY THE DEPARTMENT OF INFRASTRUCTURE, PLANNING AND NATURAL RESOURCES REVEALS THAT THE WORK SHOULD BE MODIFIED IN THE PUBLIC INTEREST SO AS TO PERMIT A MORE SATISFACTORY FLOW OF WATER WITHIN THE FLOODPLAIN THE LANDHOLDER SHALL UPON RECEIPT OF NOTICE BY THE DEPARTMENT MODIFY THE WORK IN ACCORDANCE WITH SUCH NOTICE. (5) THE AUBURN FLOODWAY AT "A" IS TO BE 325 METERS WIDE. THE MODIFICATION TO FLOODWAY NOTED AT "A" TO BE CARRIED OUT AT IMPLEMENTAION (SIC) OF 'THE RELEVANT NARRABRI-WEE WAA FLOODPLAIN MANAGEMENT PLAN' OR 2(TWO) YEARS. 1. No appeal was brought against the approval or those conditions (under s 178A of the Water Act 1912). 2. Those conditions are repeated on the 2015 renewal (p20, Piper 31.1.17). The first four of them are also attached to the 2013 renewal of the other Auburn approval (p24). 3. Piper relied upon Mahaffy, including in respect of a 2012 "Memorandum of Agreement" ("MOA") proposed by the NSW Office of Water ("NOW"). Piper signed that MOA, on or about 8 January 2012, but has not received a signed copy. 4. Relevantly, the MOA, to which the Pipers and their neighbours the Hattons are parties, along with the Namoi CMA, the NSW Office of Water, and the NSW Office of Environment and Heritage, provides (pp29 – 30 – some emphasis added): The Owners agree: 1. to permit to be undertaken on their lands within the construction period the works specified in schedule 2 at the locations depicted on the attached works plans or on other plans prepared from time to time as agreed upon by the parties to this agreement and not being inconsistent with the attached Plan; 2. to provide sufficient funding either as cash or as an in-kind contribution, as specified in Schedule 3, to enable the works as specified in schedule 2 to be constructed within the construction period at the locations depicted on the attached works plan; 3. to permit Namoi CMA, the NSW Office of Environment and Heritage and the NSW Office of Water to enter the owner's lands to inspect the works thereon, which are the subject of this agreement, at all reasonable times; 4. to inspect and/or provide maintenance at their own cost, to the works, as detailed in Schedule 2, and subject area on their own properties, including debris and silt removal, rank grass removal, weed control and erosion control; 5. to take all reasonable steps to ensure that industry standard best management practices complementary to the works are carried out at all times; 6. make applications for any licences or authorities or renewals thereof that might be necessary in respect of the works or any part thereof and to pay any fees in respect thereof and if requested to execute all legal documents for the purposes of the works as may be required; 7. that in the event of any of the owners disposing of their interest in any of the lands specified in Schedule 1 and depicted on the attached plans, the owners will cause an appropriate reference to this agreement and any works extant as a consequence of this agreement at the time of the said land being disposed of, being included in the contract of sale or lease effecting the change of ownership or occupation of such land; 8. to separately sign a joint venture agreement with the Namoi CMA to undertake the works on the owner's property, if the owner is receiving a contribution from Namoi CMA The Namoi CMA agrees: 9. to provide funds as a contribution to the cost of constructing the works as specified in Schedule 2, within the construction period to a maximum value of $70,000 ex GST to the parties, disbursed as follows: • JK Hatton Farming Pty Ltd $70,000.00 10. to sign a joint venture partnership agreement with each recipient of funding The NSW Office of Water Agrees: 11. to inspect the works and ensure necessary updated approvals under Part VllI of the Water Act 1912 have been applied for and approved 12. to inspect the works to ensure that it meets the specifications required in the OEH Orien and Auburn floodway remediation works plan The NSW Office of Environment and Heritage Agrees: 13. to verify the design and specifications of the works such that the works meet the flood flow requirements for the "Orien" Floodway as detailed in the Narrabri Wee Waa Floodplain Management Plan. All parties Agree: 14. that the works as specified in Schedule 2 and depicted on the attached works plans will be constructed to a standard acceptable by OEH; 15. that in the event of any-parties being unable to reach agreement in respect to any clause, the parties will, before any other action is taken, refer such matters to the General Manager, Namoi CMA, for mediation; 16. to neither damage, interfere with nor demolish the works. 1. Schedule 3 to the MOA (p34) illustrates the proposed floodway remediation works, and Schedule 4 (p35) commits the Pipers to works costing $49,534. However, Corie Piper deposes (par 13 of 31.1.17) that the works he says the MOA required cost him $142,640. 2. The works done included removal of the earlier-approved levee bank works (at locations "I" and "J" on relevant plans), and replacement of them by a "blocking" levee to the south (at location "H". Refer again to p34 of Piper's affidavit 31.1.17). Those works were completed on or about 2 April 2013, but no application was made, as required by cl 6 of the MOA. 3. Piper deposes (par 14) that it was his understanding that, by having those works done, he had fulfilled his obligations under the MOA. Mr Docker notes (subs par 11, as amended): The NOW did not inspect the works or provide the applicants with any applications or legal documents relating to the update, modification or amendment of their existing approvals prior to the commencement of these proceedings on 9 May 2016. No such application has ever been made by the applicants. 1. Corie Piper also annexes (Annexure "H") the September 2005 Narrabri-Wee Waa Floodplain Management Plan (pp36 – 67); a copy of the plan held by the Department relevant to approval 90FW833762 (Annexure "I"); a copy of approval 90FW833345 (Annexure "J"); and correspondence between Mahaffy and the Department (Annexures "K" to "O"). 2. In September 2015, the WMA superseded relevant sections of the 1912 Act, and "flood work approvals" replaced "controlled work approvals". As noted in the respondent's submissions (August par 10, and 23 September par 11): The conversion process was managed by the Department. Notification was given to approval holders of the conversion. Before issuing a notification of the converted approval, the Department undertook a process of updating conditions. 1. As already noted ([3] above), in April 2016, the Pipers received their "new" approval 90FW833762, but no plans. 2. The Pipers instructed Mahaffy to commence these proceedings – within 28 days of 11 April 2016 – with a view to having (a) condition DK2733-00001 removed, and (b) the plan held by the Department "updated to reflect where the levee bank is currently located on Auburn, being the location designated in the MOA" (affidavit 31 January, par 21). 3. During these proceedings, there have been (par 25) "without prejudice" negotiations, during which the Minister appears to the Pipers to have asserted that there are "non-compliant works on Auburn, which will not be compliant upon resolution of the proceedings". 4. Piper (through Mahaffy) replied on 15 June 2016 that he "has never been made aware of this at all and believes that the orders sought by the LEC application would completely legalise and authorise all the flood works on Auburn". Particulars of "those works" were sought, but apparently never provided, pending a decision on the competency of the appeal. 5. In the respondent's August submissions, the Minister said (par 16): The separate question will turn on whether the conversion and update of the conditions of the flood work approval constituted a "decision imposing a discretionary condition on an approval" under s 368(1). The respondent's position is that it was not such a decision. 1. In the September submissions, the Minister said (pars 13 to 15): 13. The applicants' appeal is only competent if the 11 April 2016 notification of the conversion and updated conditions constitutes a "decision to impose a condition" within the meaning of the language in s 368(1)(i) of the WMA. 14. The update of the original conditions, which resulted in condition DK2733-00001, was an update to remove references to the date by which the modification had to be carried out. These dates had already passed. The Narrabri-Wee Waa Floodplain Management Plan was implemented in 2005. Two years had elapsed. ... 15. The separate question turns on whether the conversion and update of the conditions of the flood work approval constituted a "decision imposing a discretionary condition on an approval" under s 368(1)(i). The respondent's position is that it was not such a decision. 1. The respondent argued (par 18) that the April 2016 approval is a "replacement" approval, not a new approval – "simply an administrative process of bringing the existing approval under the new legislation" – and (par 20) that: While there is no express statutory power to update conditions, it is implicit that the conversion process involve changes to wording that are necessary to give effect to the previous entitlement in the context of the WMA approval. 1. The earlier condition had been implemented. Section 368(1)(i) deals only with conditions which are "imposed", and s 102 distinguishes between "imposition" and "amendment" of conditions. Here the amendment was only "administrative", and not substantive (September subs pars 25 and 26). 2. In any event, before competency of the appeal can be decided, the Court has to decide whether or not to grant the applicant leave to amend it. Consideration 1. As set out in Mr Docker's written submissions (pars 22 – 29), the applicants' argument on amendment is as follows: 22. ... by executing or entering into the Memorandum of Agreement on or about 8 June 2012, the NOW gave notice to the applicants to modify the work the subject of the Former Approval pursuant to condition 4 of the Former [2005] Approval. The consequence of this was that the modified works became the approved works and/or the location of the approved works was modified. The applicants constructed the modified works and removed the existing works. 23. The applicants say that when the Minister (or delegate) was considering what conditions to include in the Statement of Approval for the Current [2016] Approval, it was necessary to consider both the conditions of the Former Approval and what had relevantly occurred in respect of the Former Approval. In particular, the Minister (or delegate) should have taken into account the plan and conditions 4 and 5 of the Former Approval, the Memorandum of Agreement and the modified works. If this had occurred the Current Approval should have been issued without condition DK2733-00001 and with a different plan showing the works where they are currently located. ... 26. The proposed amendments to the Application in prayers 2 and 2A seek to make clear that the Current Approval should have been granted on conditions that effectively approve the levee in its current form and location, which came about because of the Memorandum of Agreement to which the NOW was a party and condition 4 of the Former Approval. This issue was already raised by the appeal, which is wide enough to include all the discretionary conditions imposed on the Current Approval. 27. The proposed amendments to prayer 2 of the Application and proposed prayer 2A also arise from the removal of condition DK2733-00001 of the Current Approval, which is the subject of prayer 1 in the Application, because they set out expressly what should have been in its place and what it should be replaced with. The Court has power to make such orders on appeal by reason of s. 39(2) of the [Court Act] or, alternatively, s. 22. 28. It follows that the amendments should be granted under s. 64(2) of the [CP Act], subject to s. 58. Given that the proceedings are yet to receive a hearing date, inter partes disclosure has not yet occurred and evidence has not yet been filed and served on the substantive appeal, the factors in s. 58 of the [CP Act], which include case management issues and any prejudice to the Minister, should not result in the amendments being disallowed. 29. In the alternative, if the proposed amendments are not necessary within the meaning of s. 64(2) of the [CP Act], the Court has discretion to allow them under s. 64(1). The Court should allow the amendments because they are arguable, the factors in s. 58 of the [CP Act] should not result in the amendments being disallowed and the applicants have given an explanation for any delay in seeking to amend, which is at most slight delay when the time taken up with the separate question (an unrelated issue) is taken into account. The explanation is that the applicants did not understand until about 14 October 2016, when written submissions were prepared for the separate question, that amendments may be required in circumstances where they had not received legal advice prior to that point. Following the hearing on 21 October 2016 when the separate questions were reformulated, the applicants briefed counsel on or about 8 November 2016 and notified of the proposed amendments on 29 November 2016 as soon as the amendments were drafted by counsel. 1. The respondent argues that the amendment seeks relief from the Court which the Minister could not grant, so offending s 39(2) of the Court Act ([31] above), and, if the Class 1 appeal, as so amended, were to succeed, it would offend some fundamental principles this Court always follows: 2. In Greek Australian Finance Corporation Pty Ltd v Sydney City Council (1974) 29 LGRA 130, Holland J, sitting in the Equity Division of the Supreme Court, before this Court was established, said (at p144) when dealing with a requirement for a financial contribution for parking: ... the correct view to take in the present case is that the condition objected to was a fundamental element of the approval which the council gave, and that in dealing with the application the council proceeded on a false basis, either as to its powers to impose the condition, or as to its expectation that the applicant would voluntarily pay the contribution required. I think it is clear that the council has never considered or approved the application simply on the basis that no car-parking space was to be provided and no contribution in lieu thereof was to be made by the applicant. On this view the condition in question cannot, in my opinion, be struck out as severable and its invalidity renders the whole approval invalid. ... 1. In Mison v Randwick Municipal Council ("Mison") (1991) 23 NSWLR 734, the Court of Appeal majority held (at 737) that: ... if a condition imposed upon a purported consent to a particular development application has the effect of significantly altering the development in respect of which the application is made, then the purported consent is not a consent to the application. 1. As the Queensland Court of Appeal noted in Charles and Howard Pty Ltd v Redland Shire Council [2007] QCA 200 (at [25]): ... approving without notice a quite different application to that made could well affect the rights and interests of third party objectors. 1. In Barrington-Gloucester-Stroud Preservation Alliance Inc v Minister for Planning and Infrastructure [2012] NSWLEC 197, this Court confirmed that conditions on a development consent that leave open the possibility that the development would be significantly different from that for which approvals were sought may not be in accordance with a statutory scheme for conditions to be imposed on approvals. 2. The respondent argues that the "condition" fixing the specifications and location of the levee was the actual substance of the 2005 approval, and that the amended conditions now sought by the applicant will "fundamentally" alter the work contemplated by that approval, making it "significantly" different, in breach of the so-called Mison principles I have set out above. The levee would be entirely relocated, differently oriented, and of a different length. It can be inferred that its hydrological impact will be different. 3. Also, as the Minister would not have power to impose such conditions, the respondent submits that s 39(2) would not authorize the Court to do so on appeal. The respondent says that the applicants should lodge a new application, which would then follow the statutory approval process, including stakeholder consultations, e.g. with downstream property owners, steps not required for the imposition of a condition. In that context, I note that by not following cl 6 of the MOA, the applicants may well have been in breach of condition 4 of the 2005 approval. 4. The applicant's answer to these submissions (subs par 24) is that more than an "administrative process", conversion of conditions under cl 3(1)(d) of sch 10, is involved ([43] above) – the Minister must have made a decision to impose three discretionary conditions, pursuant to cl 20(2)(b) of sch 10; that decision was made (for the purposes of s 368(3) when it was notified; as that was no earlier than the date on the letter (11 April 2016) the appeal is competent; and, as noted above, the currently sought amendments make clear that the approval should have been granted on conditions that effectively approve the levee constructed in accordance with the MOA (see [69] 26 above). (Whether time runs from the date on the letter, or the date of its transmission, or of its receipt, was the central issue considered by Moore J in Rural Funds Management Limited v The Minister Administering the Water Management Act 2000 [2016] NSWLEC 19). Conclusion 1. In the absence of clear authority, and with some sympathy for the dilemmas faced by the applicants, who may indeed have been caught by what counsel for the Minister called a "legislative happenstance", I prefer the construction advanced by the Minister. 2. It is, in my opinion, highly unlikely indeed that the legislature intended that such a substantive amendment could be made to an approval, simply by the unilateral, non-participatory decision to impose or amend a condition. 3. The NOM seeking leave to amend the Class 1 appeal should and will be dismissed. 4. That leaves the Class 1 appeal to proceed, if at all, as originally constituted, subject to the determination of the preliminary question(s). 5. The further disposition of the matter should be managed by the Registrar. 6. As requested by the Minister, the parties' costs on the NOM will be reserved. Orders 1. The orders of the Court are: 1. The Applicant's Notice of Motion dated 31 January 2017 is dismissed, and leave to amend is refused. 2. The parties' costs on that Notice of Motion are reserved. 3. The matter is stood over to the Registrar's list on Wednesday, 15 March 2017, for further case management and directions. ********** 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: 01 May 2018