WaterNSW v Hurrell [2020] NSWCATAD 140

WaterNSW v Hurrell [2020] NSWCATAD 140

The Tribunal found that the application sought to relocate, not increase, the water entitlement, and that the evidence did not substantiate that any respondent had a specific, adversely affected legal interest. The environmental impacts were minimal and properly managed by conditions. Compliance concerns are addressed by new metering obligations and enforcement under the Water Management Act, and the rules of the Water Sharing Plan preserve flows in Toms Creek during dry periods. No legislative or regulatory barrier to the grant was identified. The replacement licence was desirable and should be granted, subject to strict conditions.

Parties
First Applicant: Water NSW; Second Applicants: John & Christine Patrick; First Respondent: John Gardiner; Second Respondents: Peter & Kathleen Hurrell; Third Respondent: Cardia Patterson; Fourth Respondent: Victor Pritchard; Fifth Respondent: Paul Latimore; Sixth Respondent: Ben Latimore; Seventh Respondent: Gavin Holmes; Eight Respondent: Michael Flannigan; Ninth Respondent: Francis McWhirter
Jurisdiction
Australia
Judgment Date
27 May 2020
Procedural Posture
Administrative Law – Administrative Review / Merits Review of Grant of Replacement Surface Water Licence After Objections and Public Inquiry
Outcome
Application for replacement surface water licence granted
Legal Topics
Surface Water Licence, Administrative Review, Water Allocation, Irrigation Works, Environmental Assessment
Administrative Law Environmental Law Surface Water Licence Administrative Review Water Allocation Irrigation Works Environmental Assessment

Case Brief

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Parties

Water NSW

First Applicant

John & Christine Patrick

Second Applicants

John Gardiner

First Respondent

Peter & Kathleen Hurrell

Second Respondents

Cardia Patterson

Third Respondent

Victor Pritchard

Fourth Respondent

Paul Latimore

Fifth Respondent

Ben Latimore

Sixth Respondent

Gavin Holmes

Seventh Respondent

Michael Flannigan

Eight Respondent

Francis McWhirter

Ninth Respondent

Procedural Posture

Administrative Law – Administrative Review / Merits Review of Grant of Replacement Surface Water Licence After Objections and Public Inquiry

Legal Issues

  1. 1 Whether to grant a replacement surface water licence for irrigation works under the Water Act 1912 and Water Management Act 2000
  2. 2 Whether respondents' interests may be affected by grant of the licence
  3. 3 Assessment of environmental impacts of proposed water extraction

Ratio Decidendi

The Tribunal found that the application sought to relocate, not increase, the water entitlement, and that the evidence did not substantiate that any respondent had a specific, adversely affected legal interest. The environmental impacts were minimal and properly managed by conditions. Compliance concerns are addressed by new metering obligations and enforcement under the Water Management Act, and the rules of the Water Sharing Plan preserve flows in Toms Creek during dry periods. No legislative or regulatory barrier to the grant was identified. The replacement licence was desirable and should be granted, subject to strict conditions.

Court Disposition

Application for replacement surface water licence granted

Orders

  • The application by John Anthony and Christine Joy Patrick for a replacement surface water licence authorising (1) one 150mm centrifugal pump on an unnamed watercourse on lot 2 in DP 1099964; (2) one bywash dam on an unnamed watercourse on lot 2 in DP 1099964; and (3) one 150mm centrifugal pump on Toms Creek on lot 3...