Department of Environment, Climate Change and Water v November Foxtrot Sierra Pty Limited [2012] NSWLC 2

Department of Environment, Climate Change and Water v November Foxtrot Sierra Pty Limited [2012] NSWLC 2

The offence was proved because the admitted facts established ownership, construction of the earthen embankment, issue of the direction, non-removal by 21 December 2008 and absence of any relevant licence or right, and the Prosecution proved beyond reasonable doubt that Nowlands Creek at the point where the earthen dam was constructed was a river: first, because it was at least a third order stream under the Strahler system, and alternatively because it was a stream of water with intermittent flow within section 5 of the Water Act 1912.

Jurisdiction
Australia
Judgment Date
05 March 2012
Procedural Posture
Criminal Prosecution for Failure to Comply With a Direction Under Section 21 B(1)(b) Water Act 1912 (nsw) / Principal Judgment After Substantive Hearing
Outcome
The offence has been proved.
Legal Topics
['failure to Comply With Direction to Remove Work' 'definition of River Under Water Act 1912' 'strahler System for Stream Order' 'burden of Proof' 'admissibility of Admissions']
['criminal Law' 'water Law' 'statutory Interpretation' 'evidence'] ['failure to Comply With Direction to Remove Work' 'definition of River Under Water Act 1912' 'strahler System for Stream Order' 'burden of Proof' 'admissibility of Admissions']

Case Brief

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Procedural Posture

Criminal Prosecution for Failure to Comply With a Direction Under Section 21 B(1)(b) Water Act 1912 (nsw) / Principal Judgment After Substantive Hearing

Legal Issues

  1. 1 ['Whether Nowlands Creek at the location of the earthen embankment was a river for the purposes of section 5 of the Water Act 1912.' 'Whether the 24 March 2006 Gazetted order created an exemption, proviso or exclusion that the Defendant had to prove, or formed part of the statutory definition of river.' 'Whether the Strahler system should be applied by reference to the topographical maps listed in the Gazetted order or should require ground truthing.' 'Whether Nowlands Creek had a perennial, permanent, continuous or intermittent flow of water at the relevant location.' 'Whether the Prosecution proved beyond reasonable doubt that the offence under section 21B(1)(b) Water Act 1912 was committed.']

Ratio Decidendi

The offence was proved because the admitted facts established ownership, construction of the earthen embankment, issue of the direction, non-removal by 21 December 2008 and absence of any relevant licence or right, and the Prosecution proved beyond reasonable doubt that Nowlands Creek at the point where the earthen dam was constructed was a river: first, because it was at least a third order stream under the Strahler system, and alternatively because it was a stream of water with intermittent flow within section 5 of the Water Act 1912.

Court Disposition

The offence has been proved.

Orders

  • ['The Prosecution has proved its case on one of two bases.' 'Nowlands Creek at the point where the earthen dam was constructed is at least a third order stream and, accordingly, it is a river.' 'In the alternative, Nowlands Creek at the point where the earthen dam was constructed is a river because the evidence...