Hobday v Minister Administering the Water Management Act 2000 [2022] NSWLEC 1132

Land and Environment Court New South Wales

Medium Neutral Citation: Hobday v Minister Administering the Water Management Act 2000 [2022] NSWLEC 1132 Hearing dates: Conciliation conference held on 24 February 2022 Date of orders: 15 March 2022 Decision date: 15 March 2022 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders: (1)The appeal is upheld (2) Approval is granted to application no. A025310, as follows: (a) Pursuant to s.95(1)(a) of the Water Management Act 2000 (WM Act); approval is granted to the construction and use of the water supply work known as Bore C (Latitude: -33.292682; Longitude: 151.1553029) (Bore C) on the land located at 385 Waratah Road Mangrove Mountain, legally described as Lot 1 DP 780268 (Land); (b) Pursuant to s.95(1)(a) of the WM Act, approval is granted to the use of water for the purposes of irrigation at the Land (Water Use); and (c) Pursuant to s.95(1)(a) and s.107(1)(a) and s.107(5) of the WM Act, Approval number 20CA211264 dated 5 April 2011 for water supply works and water use on the Land (Approval), is amended as follows: (i) to include Bore C and the Water Use; (ii) to include the conditions set out in Annexure A to this Agreement. (3) The Approval, as amended, is at Annexure B. Catchwords: WATER SUPPLY WORKS APPROVAL – additional bore – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979, s 34 Water Management Act, ss 95, 368 Category: Principal judgment Parties: Stephen Bernard Hobday (First Applicant) Tania Louise Hobday (Second Applicant) Minister Administering the Water Management Act 2000 (Respondent) Representation: Counsel: P Wright (Solicitor) (First and Second Applicant) J Farrell (Respondent)

Solicitors: P J Donnellan & Co (First and Second Applicant) Water NSW (Respondent) File Number(s): 2021/297986 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal against refusal by the Minister Administering the Water Management Act 2000 (hereafter the Minister) to amend a water supply works approval (20CA211264) granted on 5 April 2011, seeking to include 'Bore C', located on Lot 1 DP 780268, also known as 385 Waratah Road, Mangrove Mountain (hereafter the site). 2. The Minister refused amendment to the water supply works approval 20CA211264 (hereafter the Approval) seeking to include an existing groundwater bore (Bore C), based on advice received from Water NSW that the addition of Bore C, in its current location and design would detrimentally impact nearby groundwater dependent ecosystems (GDE's) during its operation and use. 3. This Class 1 appeal against the refusal of the amendment sought to the Approval is made under s 368(1)(g) of the Water Management Act 2000 (WM Act). 4. The Court agreed to the parties' request for a conciliation conference, pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was conducted by MS Teams and without a site view. 5. Based on the amended Approval, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The future use of Bore C is agreed by the parties as being in accordance with the capacity of the water source and re-design of the bore. The amended Approval ensures that no more than minimal harm occurs to surrounding GDE's due to the use of works as approved. 6. The parties agree that the contentions of the Minister (and Water NSW) have been considered and are resolved by the agreed amendments to the approval. The parties agree that the terms of the amended Approval are capable of being complied with in the timeframe as identified. 7. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 95(1) of the WM Act, to amend the Approval, as described in Annexures 'A' and 'B'. 8. The parties identified the jurisdictional prerequisites of relevance in these proceedings, as being consistent with the WM Act and Environmental Planning and Assessment Act 1979. The terms of the amendments to the Approval have been considered in the context of the reasonable needs of the existing landholder, the capacity of the water source, location of sensitive receptors and relevant legislative provisions. 9. As explained to the Court, the parties agree that all jurisdictional requirements are resolved, and that the Court should not be constrained to amend the Approval, as agreed. The merit assessment requirements to amend the Approval have been undertaken by the Minister and Water NSW. 10. Based on the evidence before me, as provided by the parties in the conciliation, I am satisfied that there are no jurisdictional impediments to the amendment to the water supply works approval 20CA211264, pursuant to s 95(1)(a) of the WM Act. 11. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 12. The Court orders: 1. The appeal is upheld. 2. Approval is granted to application no. A025310, as follows: 1. Pursuant to s.95(1)(a) of the Water Management Act 2000 (WM Act); approval is granted to the construction and use of the water supply work known as Bore C (Latitude: -33.292682; Longitude: 151.1553029) (Bore C) on the land located at 385 Waratah Road Mangrove Mountain, legally described as Lot 1 DP 780268 (Land); 2. Pursuant to s.95(1)(a) of the WM Act, approval is granted to the use of water for the purposes of irrigation at the Land (Water Use); and 3. Pursuant to s.95(1)(a) and s.107(1)(a) and s.107(5) of the WM Act, Approval number 20CA211264 dated 5 April 2011 for water supply works and water use on the Land (Approval), is amended as follows: 1. (1) to include Bore C and the Water use; 2. (2) to include the conditions set out in Annexure A to this Agreement. 1. The Approval, as amended, is at Annexure B.

Sarah Bish

Commissioner of the Court Annexure A (99019, pdf) Annexure B (1767607, pdf)

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Amendments 06 April 2022 - Pursuant to UCPR r36.17 the coversheet is amended to reflect correct representative details and also to remove a text that was cited on the coversheet in error. 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: 06 April 2022