Randren House Pty Ltd v Water Administration Ministerial Corporation

1. [1]

   BASTEN JA: For the reasons given by Leeming JA, I agree that the proper course in this case is to refuse the extension of time required for the proposed appeal. It follows that the applicants must pay the costs of the respondents in this Court.

2. [2]

   The following observations address two issues. First, and by way of an immaterial qualification to the approach of Leeming JA, a number of concerns are identified with respect to ground 11C, concerning the operation of s 47 of the Water Management Act 2000 (NSW). Secondly, it is suggested that the proposed grounds relating to errors committed by the Minister reflect a failure to appreciate the particular problems with respect to judicial review of polycentric decision-making.

Water Management Act, s 47

1. [3]

   The critical provisions of s 47 of the Water Management Act are as follows:

2. [4]

   The trial judge (Molesworth AJ) concluded, with respect to the 2016 Regulated Water Sharing Plan, published on the NSW Legislation website on 1 July 2016, that the Court had no jurisdiction because proceedings to challenge the validity of the plan had not been commenced within the three month period permitted under s 47, namely by 1 October 2016. [1] The judge concluded that because the applicants before him had not sought to review the plan within the judicial review period, the Court had no jurisdiction to hear the claim, which should be struck out. [2] The steps by which the judge reasoned to this conclusion were as follows:

   1. (1)

      the proceedings having been commenced by summons, prior to the publication of the 2016 plan, required either an amendment to the existing summons (or a fresh summons) to challenge the plan;

   2. (2)

      no further summons was issued; the only amendment to the existing summons made after 1 July 2016 occurred 16 months later on 13 November 2017;

   3. (3)

      an amendment to the points of claim, filed on 21 September 2016, did not directly refer to the 2016 plan, but referred to a decision made in July 2016 “varying and extending the water sharing plan”, which was not language apt to include the approval and publication of an entirely new plan.

3. [5]

   The judge also noted that, although the respondents had taken issue with respect to other challenges on the basis that they were statute barred, s 47 had not been pleaded with respect to any challenge to the 2016 plan. Nevertheless, being satisfied that the Court had no jurisdiction, the judge said he would have dismissed the challenge on that basis. [3] However, he proceeded to consider the merits of the challenges to the validity of the 2016 plan and held that the challenge should, in any event, be dismissed. [4]

4. [6]

   As explained by Leeming JA, orders having been made on 15 February 2019 dismissing the proceedings, that was the “material date” for calculating the period within which notice of intention to appeal was to be given, or a notice of appeal lodged. That did not happen. The first notice of appeal was filed on 14 August 2019, but contained no express challenge to the finding under s 47 of the Water Management Act. Ground 11C, which did challenge this finding, first appeared in an amended notice of appeal dated 26 September 2019. The ground did not identify the basis upon which the finding was challenged.

5. [7]

   The written submissions, also dated 26 September 2019, identified the ground as procedural unfairness in determining the issue in circumstances where the respondents had not pleaded a limitation defence, nor had the issue been addressed in submissions.

6. [8]

   The appeal submissions were unsatisfactory in three respects. First, there being no express pleading as to the invalidity of the 2016 plan, the applicants could hardly complain that the respondents failed to defend such a challenge by reference to the limitation period (or otherwise). Secondly, where jurisdiction is in issue and was understood to be in issue by the trial judge, it would generally be a sufficient answer to a claim of procedural unfairness that the judge had raised the issue with the applicants and sought submissions. According to the respondents, such an exchange took place in the present case. In oral argument on the appeal, counsel for the applicants denied that assertion, but did not put before the Court the relevant parts of the transcript in the Court below. On that basis alone, they failed to make good a claim of procedural unfairness. Thirdly, there was no substantive argument presented in this Court in support of the proposition that the Land and Environment Court had jurisdiction to hear the challenge. Ground 11C was therefore without merit and the amendment to insert the ground, out of time, should be refused. No separate order is necessary because the general order refusing to extend time to appeal has the same effect.

7. [9]

   One further matter should be noted in relation to the operation of s 47. In a footnote to written submissions filed in the Land and Environment Court, counsel for the respondents stated that “there may be a question as to whether s 47 could validly oust review for jurisdictional error”. [5] That suggestion elided the effect of s 47 in limiting the jurisdiction of the Land and Environment Court with its entirely separate effect in limiting the jurisdiction of this Court. There can be no tenable suggestion that the jurisdiction conferred on a specialist statutory court such as the Land and Environment Court is constitutionally protected. No issue arose before the trial judge as to the exercise of this Court’s supervisory jurisdiction.

8. [10]

   In principle, this Court should be slow to find error on the part of a trial judge in concluding that an applicant has failed to establish that the lower court had jurisdiction to determine a claim, on the basis that the applicant had no reasonable opportunity to address that issue, in the absence of clear evidence of a denial of such an opportunity.

The nature of polycentric decisions

1. [11]

   The second principal error identified on the appeal was founded on statements by the trial judge that decisions under the Act are made at a “high level” and not by reference to specific circumstances of individual landowners. This approach was illustrated by reference to the following passages in the judgment below:

2. [12]

   Although the label of “high level” decision-making may not be entirely apt, it is tolerably clear that the trial judge was grappling with an issue which is identified in the literature as polycentricity in administrative decision-making. [6] The nature of the problem was succinctly stated in a comparable statutory context by Spigelman CJ (Allsop P and Sackville AJA agreeing) in Tubbo Pty Ltd v Minister Administering the Water Management Act 2000, [7] a case involving water licence entitlements under a water sharing plan for ground water in the lower Murrumbidgee:

3. [13]

   Polycentric decisions come in various kinds; they may involve allocation of limited resources among a class of individuals, or the siting of public infrastructure, such as an airport or highway, for the public benefit, albeit at the expense of interests of individual landholders in the vicinity, including loss of land or loss of amenity. As explained by Professor Lon L Fuller in a seminal article in 1978: [8]

4. [14]

   Fuller considered that such characteristics would, at some point, render a dispute no longer a proper subject for judicial adjudication. That may be accepted: a decision to pursue a public purpose, such as the construction of an airport, is ordinarily not justiciable, despite the consequences for individual landowners and local residents. More relevantly, as considered in Tubbo and in Castle v Director-General State Emergency Service, [9] polycentricity may affect the scope of statutory duties to consult or accord procedural fairness, with respect to particular forms of decision-making.

5. [15]

   In the present case, this analysis has two kinds of consequence. First, it will significantly affect the construction of statutory provisions expressing, for example, “the duty of all persons exercising functions under this Act”, in s 9(1) of the Water Management Act. Secondly, it will affect the content of specific procedural obligations, such as a duty to take into account mandatory considerations. For example, where a person is entitled to a protection visa if he or she has a well-founded fear of persecution on Convention grounds, a decision to refuse a visa without considering credible and material evidence of such a fear may well be invalid. By contrast, the fact that the adoption of a water sharing plan may cause or continue to cause degradation of an area of land, to the knowledge of the Minister, is not a fact that need be given any particular weight in determining whether to adopt a proposed plan. As explained by Leeming JA, the submissions for the applicants failed to construe the statutory language in the context described above.

6. [16]

   A failure to recognise the nature of the power to make a water sharing plan underlay the difficulties faced by the applicants in attempting to formulate appropriate relief in a manner which would protect the legitimate interests of persons not party to the proceedings. The same elements of polycentricity may explain the strict time limit on the limited forms of judicial review which may be available, pursuant to s 47 of the Water Management Act.

7. [17]

   LEEMING JA: The first appellant, Randren House Pty Ltd, owns land known as “Somerset Park” on both sides of Yanco Creek in southern New South Wales. Yanco Creek is a tributary of the Murrumbidgee River. The second appellant, Mr Paul Andrew Andrews, is the occupier and manager of Somerset Park. His father, Mr Andrew Andrews, established an olive oil enterprise on parts of the property to the south of Yanco Creek. The issues in this litigation are entirely unrelated to a licence which permits water to be taken from the Creek to supply the olive trees. Rather, the focus is upon “Lake Paddock” – an area of some 450 hectares on the northern side of Yanco Creek.

Overview of appeal

1. [18]

   Randren and Mr Paul Andrews have purported to appeal as of right. Although, as will be seen below, they require an extension of time, it is simplest to refer to them as the appellants.

2. [19]

   The appellants claim that Lake Paddock is adversely affected by water regulated under a Minister’s plan made in 2016 pursuant to the Water Management Act 2000 (NSW). They claim that Lake Paddock is a “dependent ecosystem” within the meaning of the Act, which has been damaged by the operation of the plan. They also claim that Randren’s licence which authorises water to be diverted from Yanco Creek onto Lake Paddock should be subject to different conditions.

3. [20]

   The appeal is brought from orders made on 15 February 2019 accompanied by extensive reasons of some 236 pages, comprising 603 paragraphs and 305 endnotes after a trial occupying some 11 days in July, August and September 2018: Randren House Pty Ltd v Water Administration Ministerial Corporation (No 4) [2019] NSWLEC 5. There were many issues at trial which are not raised on appeal. The primary judge identified at [105] no fewer than eight decisions, made during a 25 year period dating from 1990 until 2015, of which the applicants sought judicial review. No challenge is made to the first seven of those decisions on appeal. The primary judge also addressed, and rejected, a challenge based upon s 100 of the Commonwealth Constitution at [561]-[580]. That challenge has not been renewed on appeal.

4. [21]

   The orders sought in this appeal are confined to so-called “Decision 8”, the decision made in June 2016 by the third respondent Minister to make the “Water Sharing Plan for the Murrumbidgee Regulated River Water Source 2016”, pursuant to s 50 of the Water Management Act 2000 (NSW). Speaking in very general terms, the appellants say that the 2016 plan is invalid, to the extent that it applies to them and their land (in particular Lake Paddock), on a suite of administrative law grounds. Those submissions represented the principal component of the appeal, although only a small portion of the reasons of the primary judge.

5. [22]

   Leave was granted at the hearing, by consent, to rely upon a further amended notice of appeal, which contains the following 15 grounds:

6. [23]

   Some of those grounds failed to comply with the obligation in UCPR r 51.18(1)(e) to state “briefly, but specifically, the grounds relied upon in support of the appeal”. Grounds that merely record an unidentified error of “construction and application”, such as Grounds 6, 7, 8 and 9, are deficient. A ground of appeal should specify what the error is said to be. In a judgment as long as that from which this appeal is brought, it is also desirable for the ground to identify where the error is said to have been made. Further, Ground 11B was not elucidated by a statement of the findings which were impugned, the facts which the appellants asked this Court to find, and the evidentiary references which bore upon those facts; cf UCPR r 51.36(2). This is significant given the length of the trial and the fact that most of the record is not reproduced in the appeal books.

7. [24]

   Further, the grounds do not mention, and the written submissions only obliquely mentioned, an issue which was arguably implicit in Grounds 9 and 11D but which loomed large in oral submissions. The appellants advanced a complex submission concerning the status of the licences and approvals granted under the Water Act 1912 and the Water Management Act 2000. In its current form, an access licence known as WAL 33313 is held by Randren and includes a “share component of 1000 units”, which (speaking very generally) translates to a qualified entitlement to divert up to 1000 megalitres of water annually onto Lake Paddock. The current licence and approval derive from a licence granted in 1986 pursuant to the Water Act 1912 (NSW) authorising water to be taken and certain works to be constructed and maintained in Lake Paddock. The licences and approvals were affected by the changing legislative regime, including transitional provisions, and an agreement compromising separate litigation between the parties in 2012.

8. [25]

   The point may be summarised as follows. The conditions attaching to the current licence and approval refer to “unregulated” water. The appellants submitted that Randren should be entitled to regulated water. What followed from that conclusion was that there should be, so it was said, a consequential effect on the bulk access regime under the 2016 plan. The distinction between regulated and unregulated water turns on the two different plans (explained below) which apply to the area.

9. [26]

   It may be seen that the appeal presents the following broad topics (rearranged into what I regard as a logical order).

   1. (1)

      Whether the primary judge erred in finding that the claims were time-barred (Ground 11C).

   2. (2)

      Whether the primary judge erred in determining the application on the basis that the Minister made decisions at a “high level” (Grounds 3, 5 and 6).

   3. (3)

      Whether the primary judge erred in failing to find the Minister had breached a duty to classify the water sources of the State (Ground 4).

   4. (4)

      Whether the primary judge erred in relation to regulated and unregulated water (Ground 11D).

   5. (5)

      Whether there was error in issuing a licence to Randren with a condition expressed in terms of unregulated water (arguably implicit in Grounds 9 and 11D).

   6. (6)

      Whether the primary judge erred in dismissing the application to adduce further evidence after judgment was reserved (Ground 1).

10. [27]

    Brief submissions were also made in support of Grounds 7, 8 and 11A. I did not understand that the remaining grounds (Grounds 10, 11B and 12) amounted to free-standing grounds of appeal. Ground 2 was not pressed.

11. [28]

    There is also a dispute whether the appeal is commenced within time, and, if it was not, whether leave should be granted to extend time.

The orders sought by the appellants

1. [29]

   I shall deal with all those issues in turn. However, it is convenient immediately to address a larger issue.

2. [30]

   The ordinary consequence of the judicial review of executive action is an order setting aside the decision or determination. The 2016 plan affects many users, and has done so for more than three years. Users will have used or traded entitlements to water pursuant to that plan in the past, and will have planned to conduct their affairs in the future on the basis of it. This has large consequences for the exercise of discretion, in the event that any ground for judicial review is made out, not to mention the entitlement of users whose legal interests are potentially affected by the challenge to be heard (see for example the regime ordered in Burwood Council v Ralan Burwood Pty Ltd (No 2) [2014] NSWCA 179).

3. [31]

   Doubtless with this in mind, the appellants proffered the following orders (as amended during their submissions in reply) in the event their challenge was successful:

4. [32]

   That circumscribed relief seeks to confine the plan’s invalidity to its operation on Somerset Park. The appellants suggested that this Court return to the form of the orders, permitting the parties to be heard further, in the event that any of their grounds were successful.

5. [33]

   The proposed orders as reformulated are problematic. If, as the appellants contend, the Minister’s exercise of power making the 2016 plan should be set aside in its operation to Somerset Park because the Minister misconceived the law, or failed to take into account relevant considerations, or for any of the other bases advanced by way of judicial review, how could the plan survive in its application to every other water user but be invalid in its application to the appellants? And how could the Minister be compelled to take the reasonable steps mentioned in the proposed order 6, the gravamen of which was the expenditure of public funds to redirect water around Somerset Park?

6. [34]

   Early on the first day, the Court raised these matters:

7. [35]

   On the view I take, questions of relief do not arise. But as presently advised I fail to see how the large hurdles mentioned above (including those going to parties, the nature of the challenge to the exercise of power, and discretion) can be sidestepped by confining the relief in the manner proposed by the appellants.

8. [36]

   If the exercise of power by the Minister when making the 2016 plan was vitiated because he misunderstood the law, or failed to take into account a mandatory relevant consideration (the damage to Lake Paddock as a dependent ecosystem), or any other of the bases upon which judicial review is sought, then the plan is not invalid merely in its application to part of the land owned by the appellants. It is invalid. That is how judicial review of a decision which applies over an area of land operates. The effect of judicially reviewable error is not to deny legal efficacy to a decision only insofar as it applies to the applicants who have brought proceedings.

9. [37]

   Those principles may of course be modified by statute. For example, s 25B of the Land and Environment Court Act 1979 (NSW) provides for a court-ordered regime which, if it is complied with, may lead to the validity of a development consent which otherwise would be invalid. That section is not applicable, but Mr King placed reliance on s 32(2) of the Interpretation Act 1987 (NSW) and the relief which issued in Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513; [1997] HCA 38 where the High Court declared that certain proclamations were “invalid to the extent that [they] effected acquisitions of property from Newcrest other than on just terms”.

10. [38]

    Section 32(2) of the Interpretation Act provides:

11. [39]

    Mr King submitted that:

12. [40]

    I interpolate that the so-called “principle of legality” was treated in Bropho v Western Australia (1990) 171 CLR 1 at 18; [1990] HCA 24 as being but one aspect of a more general rule of construction that clear words were required before legislation would be construed to achieve a particular result (most commonly, derogating from a “fundamental” common law rule). As Basten JA said, with the agreement of Macfarlan JA and me, in Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) (2016) 95 NSWLR 157; [2016] NSWCA 379 at [39], “[t]he label ‘principle of legality’ is apt to mislead”, even when the issue is one of the construction of statutes. The term has no application to reading down an instrument such as a plan.

13. [41]

    Still further, it is to be borne in mind that the Water Management Act unequivocally alters the position at common law concerning water, by s 393:

14. [42]

    That reflects a distinctively Australian approach, quite different from what occurred in England and the United States, summarised in Broughton v Leslie [2019] NSWSC 827 at [62]-[65]. It is difficult to see how a principle of construction relating to interference with common law rights could have application to other provisions of the statute in light of s 393.

15. [43]

    The respondents submitted that the plan was not severable in the way sought by the appellants. In part this was because of the nature of the plan, but it was also a consequence of the fact that there were two plans, one dealing with regulated water, the other dealing with water to which the other plan did not apply:

16. [44]

    The appellants’ approach to severance is not supported by Newcrest. The High Court declared that proclamations which added a large area of land to Kakadu National Park in the Northern Territory were invalid to the extent that they effected acquisitions of mining tenements held by Newcrest other than on just terms. The appellants correctly observed that Newcrest was a case where a limitation on power led to a partial invalidity of an instrument. But that is not sufficient.

17. [45]

    No reasons were given in Newcrest dealing with severance. Indeed, in litigation where a great deal was in contest, it appears so far as I can see that no issue was taken with the orders proposed. Certainly, the Court was not taken to any reasoning directed to the point. Decisions are only authority for what they decide, as opposed to what was held without argument. As Edelman J said in Spence v State of Queensland [2019] HCA 15; 93 ALJR 643 at [294], by reference to authority, “[Precedents] sub silentio without argument are of no moment”.

18. [46]

    There may well have been good reason on the particular facts of Newcrest to take that course. The question was whether a proclamation which added lands known as “Stage 3” to Kakadu was valid in its application to certain mining tenements held by Newcrest. The area comprising Stage 3 was defined by reference to other existing mining tenements. It presumably comprised numerous individual parcels of land. Notoriously, the national park entirely surrounds the Jabiru township and the Ranger uranium mine (the history of which may be seen in Margarula v Northern Territory of Australia (2016) 257 FCR 226; [2016] FCA 1018 at [11]ff).

19. [47]

    I see no reason why s 15A of the Acts Interpretation Act 1901 (Cth) (which is similar to s 32(2) of the Interpretation Act) should not have been regarded as uncontroversially applicable in the Newcrest litigation. It is one thing to limit the area of land which may well comprise numerous individual parcels of land, and which is already delineated by existing mining tenements. It is another thing entirely to so in relation to a water source. It is difficult to see how one could invalidate the plan insofar as it applies to Lake Paddock, while leaving it operative in relation to the same body of water both upstream and downstream of Lake Paddock (disregarding at this point the problem that the plan did not address the unregulated water flooding Lake Paddock).

20. [48]

    On one view, the difficulties concerning relief are a complete answer to the appeal. There is much to be said for taking a streamlined approach to resolving the balance of the appellants’ submissions, especially in light of the fact that (as will be seen immediately below) they require an extension of time and their justification is deficient. Nonetheless, having heard full argument on the grounds of appeal, I shall address those grounds on their merits.

Extension of time for the appeal

1. [49]

   Orders dismissing the appellants’ claims were made when reasons for judgment were delivered on 15 February 2019. Costs were disputed and were ultimately resolved, after an exchange of submissions and a hearing on 14 May 2019, and on 16 May 2019: Randren House Pty Ltd v Water Administration Ministerial Corporation (No 5) [2019] NSWLEC 63.

2. [50]

   A notice of appeal was filed on 14 August 2019. It purported to be brought as of right, a notice of intention to appeal having been filed on 11 June 2019. Both of those documents identified 16 May 2019 as a “material date”. If that were the material date, then the appeal would have been brought in time.

3. [51]

   In written and oral submissions in this Court, the appellants maintained that no extension of time was needed, because they brought a non-colourable appeal and it was, so it was said, only the final order as to costs which resolved the proceedings. They placed reliance upon Baulkham Hills Shire Council v O’Donnell (1988) 66 LGRA 367 (an appeal from an interlocutory injunction which was regarded as a step in the proceedings leading to a final judgment) and Carr v Finance Corp Ltd (1981) 147 CLR 246; [1981] HCA 20 (a decision on the finality of an order). The respondents maintained that an extension of time was required, and opposed any such extension being granted.

4. [52]

   The right of appeal is conferred by s 58 of the Land and Environment Court Act 1979 (NSW). The time within which an appeal may be commenced is governed by Pt 51 of the Uniform Civil Procedure Rules. The rules define the “material date”, relevantly, as “the date on which the decision is pronounced or given”: r 51.2.

5. [53]

   Mr King pointed to the form of the primary judge’s order, “The Applicants’ claims with respect to all the Impugned Decisions the subject of these proceedings are dismissed”, and submitted that while the claims were dismissed, the proceedings remained extant. The distinction does not assist the appellants. The right of appeal created by s 58 is from the order or decision of the Land and Environment Court with which the appellants are dissatisfied. Orders dismissing all claims, including the challenge to Decision 8, were made on 15 February 2019. The appeal necessarily sought to set aside that order insofar as it extended to Decision 8.

6. [54]

   The deferral of the question of costs altered neither the timing nor the character of the order dismissing the proceedings. It was a final order. After that date, the only outstanding issue was costs. The authorities concerning interlocutory orders on which the appellants relied are not to the point.

7. [55]

   The 28 day period within which to file a notice of appeal commenced on 15 February 2019. It was open to the appellants to extend that time to a total of three months, by filing and serving a notice of intention to appeal within 28 days (the rules permitting that to occur are summarised in Olsen v Mentink [2019] NSWCA 279 at [5]-[12]). But the appellants did not exercise their right of appeal until August 2019. By that time they were some five months out of time.

8. [56]

   Against the possibility that they required an extension, the applicants made an application in the alternative. They read an affidavit from their solicitor, Mr John Andrew Andrews. Conspicuous by its absence from that affidavit was any explanation of why no steps were taken in the three months after 15 February 2019, save to say that “[a]t all material times the Appellants believe that they had complied with the rules regarding commencement of the Appeal in a timely manner” and that “the costs issue was important to the Appellants because they wished to focus on that and have it resolved before finally deciding whether or not to appeal”. No objection was taken to the form of the evidence.

9. [57]

   Taking the most charitable view of the position, Mr John Andrew Andrews, when he stated that at all material times the appellants believed they had complied with the rules regarding commencement of the appeal, was implicitly conveying that both he and his clients wrongly thought that time had not started to run until costs orders had been made. It is to be emphasised that the onus lies upon the applicant seeking an extension of time to explain why the extension has come to be needed, and that the explanation should be provided candidly, rather than being left to implication. There is no evidence as to when, if at all, Mr John Andrew Andrews advised his clients that time did not commence until the costs orders were made. It is also less than satisfactory that no evidence was provided from the appellants themselves concerning the desire to resolve costs before determining whether to appeal; cf Skalkos v T & S Recoveries Pty Ltd (2004) 65 NSWLR 151; [2004] NSWCA 281 at [11]. There is force in the respondents’ submissions that an extension should not be granted in the absence of a satisfactory justification for the delay: Zippoz Pty Ltd v National Australia Bank Ltd [2013] NSWCA 113 at [25].

10. [58]

    That said, I did not understand the respondents to point to any prejudice consequent upon the additional time required within which to appeal, and the respondents correctly accepted that it was necessary in the exercise of the discretion to extend time to examine the prospects of the appeal. It will be seen that there may be merit in one of those grounds (Ground 11C), although success on that ground would not of itself be sufficient to affect the outcome.

The Water Management Act 2000 (NSW)

1. [59]

   The Water Management Act is important, complex legislation directed to a variety of ends. In order to address the grounds of this appeal, it is necessary to summarise much of Chapters 1 and 2.

2. [60]

   The reasons of the primary judge, and the parties’ submissions on appeal, were directed to the provisions which, directly or indirectly, bore upon the power conferred in Part 4 of Chapter 2 to make a “Minister’s plan”.

3. [61]

   Chapter 2 is titled “Water management planning”. The only provision in Part 4 of Chapter 2 is s 50, which was in 2016 in the following terms (this section and the legislation reproduced below are in the form taken in July 2016):

4. [62]

   “Water source” was defined in the Dictionary to mean:

5. [63]

   It will be seen that the power conferred by s 50 was qualified in part by reference to many of the provisions of Part 3, which dealt with management plans, and as to part by the diluted obligation in s 50(2) to deal “in general terms” with matters that a management plan was required to deal with. The power extended to authorising a plan which dealt with any other matter which may have been dealt with in a management plan. Subject to the statute, a Minister’s plan had the same effect as a management plan. In that qualified way, most of the provisions of Part 3 were applicable to s 50.

6. [64]

   Chapter 1 comprised ss 1-4A and contained an objects provision in s 3:

7. [65]

   Parts 1 and 2 of Chapter 2 were relatively short. Part 1 (ss 5-10) was titled “General” and Part 2 (ss 11-14) was titled “Management committees”. Sections 5, 6, 7 and 8 were prominent in the parties’ submissions.

8. [66]

   Section 5 was as follows:

9. [67]

   It will be seen that the water management principles were expressed in language which fell short of mandated rules. Thus s 5(2) commenced with the qualifying adverb “generally”, and each of the eight principles were expressed as aims which “should” be achieved. The same pattern of objectives expressed in less than mandatory language may be seen in subsections (3)-(5).

10. [68]

    It may also readily be seen that some of the principles point in different directions. For example, while on the one hand “the cumulative impacts of water management licences and approvals and other activities on water sources and their dependent ecosystems, should be considered and minimised” (s 5(2)(d)), on the other hand “the social and economic benefits to the community should be maximised” (s 5(2)(g)).

11. [69]

    The water management principles are thus aptly defined as “principles”, rather than rules. This reflects the fact that principles will inform the exercise of the discretionary powers conferred by the Act (including the powers to make plans) which in turn may confer rights and impose obligations on users. The distinction is familiar in regulation, where there is a large body of literature on point: see for example E Lees, Interpreting Environmental Offences: The Need for Certainty (Bloomsbury, London, 2015), ch 3 “Legal Certainty”. An influential Australian contribution is J Braithwaite, “Rules and Principles: A Theory of Legal Certainty” (2002) 27 Aust J Leg Phil 47, contending and illustrating with examples that in moderately complex areas, more abstractly worded principles (or standards) will contribute to greater certainty than mere reliance upon prescriptive rules. This is consistent with Allsop CJ’s observation: “[N]o sophisticated legal system, or society, seeks intellectual refuge in the proposition that rules alone are the guardians of the security of certainty”: Paciocco v Australia and New Zealand Banking Group Ltd (2015) 236 FCR 199; [2015] FCAFC 50 at [266].

12. [70]

    For present purposes, it will be important to bear in mind that much of the language in the principles was not expressed to be mandatory, in the sense of being crisply stated rules which could either be obeyed or disobeyed. This directly bears upon the legal consequences of some of the appellants’ submissions, which were directed to identifying a “breach” of a “duty” in either the water management principles per se, or else in other sections of the statute, which are now addressed.

13. [71]

    Sections 6, 7 and 8 provided as follows:

14. [72]

    Those provisions are central to Grounds 3, 4, 5 and 6 of the appeal.

15. [73]

    It will be seen that ss 6(1) and 7(1) empowered the Governor and the Minister respectively, by order published in the Gazette, to establish a State Water Management Outcomes Plan and to classify water sources across the State. The former had as one of its objects the promotion of the water management principles articulated in s 5.

16. [74]

    There was no express obligation to make a State Water Management Outcomes Plan pursuant to s 6 at all. (In fact a State Water Management Outcomes Plan was made on 18 December 2002, and was in evidence.) In contrast, s 7(4) rather unusually stated an “intention of Parliament” that the water sources of the state be classified, and bulk access regimes be established for water sources classified as high risk, high stress or high conservation value, within 12 months after assent is given to the Act.

17. [75]

    The parties were at issue as to the nature of the duty, if any, upon the Minister to classify the State’s water sources pursuant to s 7. This in turn gave rise to a subsidiary issue as to whether this should have been pleaded at trial and the extent to which it was in issue before the primary judge.

18. [76]

    Section 8A-8F may be passed over. Division 3 of Part 1 comprised ss 9 and 10, of which the appellants attached importance to s 9:

19. [77]

    The parties were divided as to the effect of s 9, which imposed a “priority” between the water management principles and, unlike the sections preceding it, refered in terms to a “duty”. It will be necessary to return to this below.

20. [78]

    Part 3 comprised ss 15-49A, which dealt with management plans. Like s 8 mentioned above, those provisions indirectly informed the power to make a Minister’s plan conferred by s 50 in Part 4, and some were at the forefront of the appellants’ submissions.

21. [79]

    Section 15 conferred power upon the Minister to direct a management committee to prepare a draft management plan, and if that did not occur, s 15(3) authorised the Minister to make a Minister’s plan in respect of the matter. Section 16 required the management plan to be consistent with, relevantly, the State Water Management Outcomes Plan. Section 17 provided as follows:

22. [80]

    Thereafter Divisions 2, 3, 4, 5, 6 and 7 dealt respectively with water sharing, water use, drainage management, floodplain management, controlled activities and aquifer interference activities and environmental protection, identifying matters which may or must be within a management plan. In particular, s 20 provided as follows:

23. [81]

    Division 8 dealt with the procedures for making management plans. Section 35(1) dealt with the format of a plan:

24. [82]

    Sections 36-40 dealt with the process by which a management plan was made, and s 41 empowered the Minister to make a plan by order published on the NSW legislation website. The plan could be amended in accordance with s 42 and could last for some 10 years pursuant to s 43.

25. [83]

    Section 47, in Division 11 (Miscellaneous) was as follows:

26. [84]

    Sections 48 and 49 imposed obligations upon the Minister and public authorities when a plan had been made:

Minister’s plans on the Murrumbidgee Regulated and Unregulated Water Sources

1. [85]

   There were no management plans in evidence. There were three Minister’s plans:

   1. (1)

      the Water Sharing Plan for the Murrumbidgee Regulated River Water Source 2003 (“2003 plan”),

   2. (2)

      the Water Sharing Plan for the Murrumbidgee Regulated River Water Source 2016 (“2016 plan”), and

   3. (3)

      the Water Sharing Plan for the Murrumbidgee Unregulated and Alluvial Water Sources 2012 (“2012 plan”).

2. [86]

   At first instance, but not on appeal, review was sought of “Decision 4” and “Decision 5”, both of which concerned the 2012 plan. Those decisions were the making of that plan, and the inclusion of Lake Paddock within that plan as a “wetland” within a specified geographic area. To anticipate what follows, upon the making of the 2012 plan, the licence issued under the Water Act 1912 was converted into an approval and a water allocation licence under the Water Management Act by reason of cl 3 of Schedule 10 of that Act.

3. [87]

   The 2016 plan succeeded the 2003 plan. The latter expired on the earlier of 1 July 2016 and the commencement of a replacement management plan (following an extension made by the Minister on 19 May 2015). The latter applied to the entirety of the water source to which the former applied, which was defined in cl 4 of the 2003 plan thus:

4. [88]

   “Yanco Creek from its offtake from the Murrumbidgee River to its confluence with Billabong Creek” was the 42nd regulated river specified in each plan. Thus that part of Yanco Creek which ran through Somerset Park was part of the Murrumbidgee Regulated River Water Source.

5. [89]

   As will be seen below, shortly after earlier litigation between the parties was compromised, the 2012 plan came into force. The 2012 plan applied to some 39 unregulated water sources, but relevantly for present purposes extended to include “all water occurring naturally on the surface of the ground within the boundaries of the Murrumbidgee Unregulated Water Sources shown on the Plan Map” but excluded water which is “contained in the Murrumbidgee Regulated River Water Source to which the [2003 plan] applies”: cll 4(3) and 4(5)(c). Somerset Park is within the Plan Map (which extends to much of south western New South Wales).

6. [90]

   The upshot of those definitions is that:

   1. (1)

      water in Yanco Creek is within the Murrumbidgee Regulated River Water Source, but

   2. (2)

      water which is on Lake Paddock, having been diverted from Yanco Creek and no longer forming part of it, is not.

7. [91]

   The briefing paper placed before the Minister which recommended making the 2016 plan described the issue as “Replacement of three (3) Water Sharing Plans (WSPs) for southern inland regulated rivers in NSW” and against the heading “Critical Date” stated “Water Sharing Plans for these inland rivers commenced in 2004 and are due to expire on 30 June 2016. Replacement plans must be made by this date”.

8. [92]

   Under the heading “Water Sharing Plans and Water Resource Plans” the briefing note provided:

9. [93]

   The document repeatedly referred to the “strategy” deployed in creating the replacement plans as one of “minimal changes”. An analysis of the changes annexed to the briefing paper bears out the accuracy of the description. Rather, the appellants’ complaint was that it was wrong for the Minister not to have taken some further step to protect the damage claimed to be perpetuated on Lake Paddock.

Was the primary judge correct to conclude that the appellants were time-barred? (Ground 11C)

1. [94]

   The primary judge found that the time period in s 47 of the Water Management Act precluded a challenge to the making of the 2016 plan. The primary judge noted that, in contrast with some of the earlier decisions challenged in the litigation before him, the respondents did not rely upon s 47 as an answer to the grounds challenging the 2016 plan. His Honour nevertheless stated that s 47 defeated the claim, but went on to address the challenges to the 2016 plan on their merits.

2. [95]

   The primary judge noted the prohibition in s 47(3), which had the effect of precluding the availability of the discretion to extend time under UCPR r 59.10(4). His Honour accordingly said that it was “of critical importance to confirm whether the Applicants’ review of Decision 8 was brought within the three-month statutory time limit pursuant to s 47(2)(b)” because of the absence of power to extend time: at [521]. His Honour then distinguished between the summons and the points of claim, both of which were amended from time to time. The original and amended summonses pre-dated the making of the 2016 plan, while the further amended summons was only filed some 16 months later. That document was not contained in the appeal books. Of it, the primary judge said at [522] that it was “silent with respect to Decision 8”, that there was a “vague reference to the Minister approving the 2016 [plan]” and that “[t]he brutal fact is that even if the Further Amended Summons (Judicial Review) of 13 November 2017 could be imaginatively recast, it was nevertheless 16 months after the expiry of the allowable statutory review period with respect to Decision 8.” The primary judge noted in [523] that the Applicants’ points of claim was filed within 3 months after the making of the 2016 plan, but then added:

3. [96]

   The primary judge considered the possibility of applying the power in s 65 of the Civil Procedure Act to allow an amendment after the expiry of the limitation period, but concluded that this was not available, because “[t]he Court did not have before it a summons within the relevant period, being 1 July 2016 to 1 October 2016, that, even by vague or insufficient drafting, sought to review Decision 8. In short, there was nothing relevant to allow [it] to be amended”: at [524].

4. [97]

   The essential reasoning of the primary judge may be found at [525]-[527]:

5. [98]

   The appellants submitted that the primary judge erred in concluding that their claim was barred by s 47, because that had not been pleaded, because counsel then appearing for the respondents had acknowledged that no time-bar case in relation to Decision 8 had been pleaded, and that in consequence they had been denied procedural fairness. They added that the result was contrary to UCPR r 14.14(3), claiming that the Land and Environment Court was bound by that rule which required that statutes of limitation be specifically pleaded.

6. [99]

   This ground is not without force. The course taken by the primary judge in ruling against the challenge to Decision 8 was arguably adopted without adequate notice to the parties.

7. [100]

   The issue of timing was raised by the primary judge, generally, at the commencement of closing submissions. Thereafter the parties exchanged submissions on that issue. However, s 47 was not relied on by the respondents as an answer to the challenge to the making of the 2016 plan. Indeed, a conspicuous aspect of the defence was the selective reliance upon s 47 in answer to other challenges to decision-making, but not to the making of the 2016 plan.

8. [101]

   This was not a case where the litigation diverged from the pleadings; cf Banque Commerciale SA v Akhil Holdings Ltd (en liqn) (1990) 169 CLR 279 at 287; [1990] HCA 11. The respondents’ selective reliance on s 47 reflected the way the trial was run. The transcript of the parties’ closing submissions included statements by Mr King in relation to the challenge to the 2016 plan that “This is a decision which we say there’s no defence based on any time issue”. The respondents did not cavil with that submission, and drew to the Court’s attention authority to the effect that a privative clause could not protect a decision affected by jurisdictional error. Rather than seeking to rely on any timing point in relation to the making of the 2016 plan, the Minister positively contended that the decision should be rejected on its merits. So far as the transcript made available to this Court reveals (which is much less than all of it), the primary judge did not confront the parties with the possibility that, contrary to their common position, he would reject all of the grounds challenging the 2016 plan by reason of s 47. I incline to the view that what was said in the extracts of the transcript relied upon by the respondents (pp 420-421, 516 and 627-629) fell short of what is required in the particular circumstance of this litigation. Normally little is required to alert parties to the need to explain why a court has jurisdiction. But here the appellants were challenging no fewer than eight decisions, mostly made years before the proceedings were commenced, while “Decision 8” was made after the proceedings were commenced.

9. [102]

   Both parties were surprised at the Court’s decision to dismiss this aspect of the applicants’ case on the basis of s 47. In this Court, the respondents candidly submitted:

10. [103]

    Although this ground is not without force, I prefer not to express a concluded view as to whether it was made out. It is difficult to do so, because the record made available to this Court is incomplete. It is not necessary to do so, because any denial of procedural fairness alleged was a limited one, namely, one confined to that aspect of the judgment based on s 47, and the appellants accepted, very properly, that they needed to succeed on some or all of their other grounds of appeal in order for there to be any effect on the orders setting aside their challenge to Decision 8. As will be seen below, there is insufficient merit in any of those grounds to warrant an extension of time.

Incorrect adoption of “high level” construction of Act? (Grounds 3, 5 and part of 6)

1. [104]

   This was the principal submission advanced in writing and orally.

2. [105]

   The appellants’ written submissions focussed upon the statements by the primary judge that the Act operated only at a “high level”. Representative of these is the reasoning at [555]:

3. [106]

   The appellants submitted that Mr Andrew Andrews and his son Paul had specifically drawn to the department’s attention damage being caused by upstream storage releases and uncontrolled flows, such that the Minister was aware, when making the 2016 plan, not only of the wetland but also of the damage caused to it by flows. They said that “the key facts of resulting damage and causation the Respondents did not seriously contest, and which the Court accepted”. The consequence was said to be “that if the learned Acting Judge erred in his construction and application of the Act, then the Minister misunderstood the statutory obligations, proceeded upon an error of law, took into account an irrelevant consideration and acted unreasonably, rendering the decision in the Plan invalid on each ground, with consequential declaratory relief and mandamus”.

4. [107]

   The general theme in the appellants’ submission was that in the ordinary course, while Lake Paddock flooded from time to time, there were also times when the creek ran dry or almost dry, so as to permit grasses to grow. That no longer happened under the 2016 plan and its predecessor. The consequence was harm to the environment, namely, Lake Paddock.

5. [108]

   The respondents denied this submission at the factual level, but also said that even if Lake Paddock had been damaged as the appellants contended, there was no judicially reviewable error.

6. [109]

   This Court was not taken to compelling evidence concerning damage to the environment caused by the Minister’s plan. Photographs of what appeared to be dead or dying river gums fall short of what is required, although I am conscious that there was other evidence as to environmental damage to which the Court was not taken. Of course, establishing damage is one thing, while establishing that it was caused by the 2016 plan is another. Indeed, there is an anterior problem in establishing that the Minister’s plan caused the sustained flow of water down Yanco Creek. This was repeatedly raised with the appellants, who ultimately accepted that the plan merely authorised, but did not compel, such amounts of water flowing through Yanco Creek. Another factual issue was that it seemed that Randren had never complied with a condition upon all of its licences over the last few decades to construct a regulator on the diversion channel. It seems at least possible that had that occurred, such inundation of which the appellants complain would have been lessened.

7. [110]

   I have expressed the issues in the previous paragraphs at a level of generality, because it was neither possible nor necessary to attend to the facts in detail. There was a vast amount of documentary and testimonial evidence, much not included in the appeal books. And it is to be firmly borne in mind, after all, despite the rhetoric in the appellants’ submissions invoking protection of Lake Paddock, that the proceedings are an appeal from an application in the nature of judicial review. Factual matters are not ordinarily at the forefront of such litigation. Indeed, the fact that the litigation extended for some 10 days is an indication that the limits of the jurisdiction of judicial review may not have been observed.

8. [111]

   It will be convenient to resolve this appeal by making the assumption, favourable to the appellants, that there was damage as claimed, caused as a consequence of the Minister’s plans, from 2004, and to put to one side the effect of Randren’s non-compliance with the conditions on its licences.

9. [112]

   The appellants’ submissions referred to the first water management principle that “water sources … and dependent ecosystems should be protected and restored”. It was said in writing that the Lake Paddock wetland was both a water source and a wetland or dependent ecosystem which was being degraded by continuous inundation, which was also contrary to principles (d) and (f). However, oral submissions proceeded on the basis that Lake Paddock was an ecosystem which was dependent upon a water source (namely, Yanco Creek) but was not itself a water source. I regard that as the correct approach. In particular, I think that it is clear that neither Lake Paddock nor the man-made diversion channel from Yanco Creek into Lake Paddock is a “water source”. Water there is not part of Yanco Creek; it is an artificial diversion from Yanco Creek.

10. [113]

    The inundation of Lake Paddock was also said to be contrary to s 5(3), because the water sharing failed to “protect the water source and its dependent ecosystem” and to the obligation in s 5(4) to avoid or minimise land degradation.

11. [114]

    The appellants advanced as an additional basis of error submissions based on ss 7 and 20 and the requirements to establish a bulk access regime. They emphasised the mandatory language in those provisions. It was submitted that Yanco Creek was a water source, and the Lake Paddock dependent ecosystem was in 2016 “at risk” within the meaning of s 7(3)(a), (4)(b) and (5) which obliged the Minister to establish a bulk access regime.

12. [115]

    Mr King identified eight steps in his oral submissions that there was error in the primary judge failing to find that the Minister had breached a duty imposed by the Act, as follows:

    1. (1)

       First, the statute conferred power on the Minister to make a Minister’s plan or a management plan, and the Minister chose to make a Minister’s plan.

    2. (2)

       Secondly, the Minister in 2016 made a plan for a single water source, called in the plan “the Murrumbidgee Regulated River Water Source”. It followed that it was a plan falling within s 50(1)(b), for any water management area or water source.

    3. (3)

       Thirdly, the Act “established relevantly two and probably three facts which are jurisdictional in nature and largely in exercise of the statutory power or duty in this case in respect of such a plan, namely, the existence of a water source, and that’s identified in cl 4, and one of the more dependent ecosystems of it.” Mr King confirmed that there had to be a water source in order to make a plan, but the position in relation to dependent ecosystems was less clear:

    4. (4)

       Fourthly, Mr King said that “the area or size of the water source is a choice for the Minister in making his plan, but the dependent ecosystem, the number of them, are clearly not a matter of choice for the Minister, because that would mean the Minister could decide for himself capriciously the level of protection such places receive under the Act and under the plan.”

    5. (5)

       The fifth point was that the statute made no distinction between higher and lower order duties.

    6. (6)

       Sixthly, the duties to protect and restore, found in ss 3, 5 and 9, both the water system and the dependent ecosystem referable to a Minister’s plan was independent of the size of the water source or the size of the dependent ecosystem. It was put orally thus:

    7. (7)

       Seventhly, the duty of the Minister when formulating a plan with respect to water sharing was to give priority “to the principle that sharing of water must protect the water source and its dependent ecosystems over any other right, in particular, the right of all licence holders taking or sharing water to extract water under access licences”.

    8. (8)

       Eighthly, the statute’s intent and purpose was to invalidate the exercise of power by a Minister or anyone else which breaches the duties. The 2016 plan was therefore invalid subject to the operation of s 32(2) of the Interpretation Act because it failed those tests.

13. [116]

    Mr King added that there was also “a qualified duty upon the Minister ... actually to protect and restore degraded assets, which on the evidence [Lake Paddock] is”.

14. [117]

    It is convenient to deal with the oral submissions first. Of the eight propositions, the first and second propositions may be accepted. The third turns on Lake Paddock being a dependent ecosystem (or part of a dependent ecosystem) of Yanco Creek, and this being jurisdictional. The fourth proposition is linked to the third. This was elaborated thus:

15. [118]

    The submission equates Lake Paddock with a dependent ecosystem, and asserts that this is a jurisdictional fact. As Mr King said,

16. [119]

    I do not agree that Lake Paddock is a dependent ecosystem. I also do not agree that this is a jurisdictional fact.

17. [120]

    First, the Water Management Act does not define “ecosystem”. It is quite distinct from an area of land. An ecosystem comprises an interrelationship between populations of living things and the environment.

18. [121]

    An element of the ecosystem extending to Lake Paddock are aquatic animals such as fish. Their habitat is not confined to Lake Paddock. Very few if any populations of fish spend their lives in such a circumscribed area. It is possible that there are smaller plants and aquatic organisms which spend their lives within Lake Paddock. But it certainly has not been shown, and I would very much doubt, that there are populations which could sensibly be regarded as confined to Lake Paddock. The natural world does not respect cadastral boundaries.

19. [122]

    Secondly, it is clear from the Act that the ecosystems are associated with (s 3(b)) or dependent upon (s 5(2)(a) and (d)) the water sources. The Act is about managing water, and proceeds on the basis that a consequence of good management of water sources will be to enhance the ecosystems associated with or dependent upon those water sources.

20. [123]

    The point of the appellants’ submission that the existence of a dependent ecosystem in (or comprising) Lake Paddock was a jurisdictional fact was to advance the submission that a precondition to the exercise of the s 50 power was not established. But whether something is a jurisdictional fact is a question of construction: Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 at [6]. Textual and contextual considerations all point in the other direction:

    1. (1)

       The power is contained in s 50. That section does not mention ecosystem. It authorises the making of a Minister’s plan for any water source or part of any water source.

    2. (2)

       The references to ecosystems in the water management principles, and in some of the core and additional principles which a plan must and may contain, do not elevate an ecosystem into a jurisdictional fact. How can there be some unstated obligation to identify and assess damage to an ecosystem as a condition upon the power in s 50?

    3. (3)

       Thirdly, the existence of an ecosystem may be contestable, and even if its presence is clear, the metes and bounds of the area occupied by it is almost inevitably contestable. What are the precise boundaries of a rainforest or an alpine ecosystem? How much of a water source is occupied by an aquatic ecosystem is surely at least equally contestable. And the statute refers to a dependent ecosystem. All those elements of contestable judgment inherent in the term tell against its amounting to a jurisdictional fact.

21. [124]

    Like most decisions which apply over a large area, there are apt to be winners and losers from any plan. In Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10 at [126], Spigelman CJ reproduced, in the course of dismissing an appeal from another application for judicial review of decisions under the statute, what the trial judge, McClellan CJ of the Land and Environment Court had said:

22. [125]

    Further, it cannot be the case that an applicant can point to a miniscule part of a water source, and say that the water management principles require regard to be had to the effect of a Minister’s plan upon that part.

23. [126]

    The problem was confirmed during submissions:

24. [127]

    The appellants advanced the point with rhetoric (“It’s not a minor water body. It’s not a water body at all, it’s a dependent ecosystem that’s been damaged. Either that matters or it doesn’t. We say it does matter and the Minister failed to prioritise that concern”). I do not accept Lake Paddock is a dependent ecosystem, and even if it were, I do not accept that the appellants are entitled to insist that the Minister prioritise their concern over the hundreds or thousands of other aspects of the water source which would be affected by the plan.

25. [128]

    The submission continued by reference to s 9:

26. [129]

    The appellants relied upon evidence said to establish “the several practical and reasonable steps the Minister could and should have taken available to him in 2016”. These steps included considering ways of varying the flows to restore natural conditions, taking the minimal steps “in the Department Business Case which emerged as evidence after judgment was reserved”, declining to defer matters in 2016 until the water resource plans had been made in July 2019, following up with an enquiry as to the damage being done along Yanco Creek from uncontrolled flows, giving consideration to some interim measure under the class 4 powers in s 336. According to the appellants:

27. [130]

    Contrary to these submissions, the Act does distinguish between the water management “principles”, which inform the exercise of statutory powers, the duty imposed by s 9 and the particular rights and obligations which will arise as a consequence upon the exercise of the statutory powers.

28. [131]

    Turning to the “duty” imposed by s 9, its nature is left unstated. Who (if anyone) may enforce it and what the sanctions are for its breach are not expressed.

29. [132]

    Secondly, as noted above the Act itself sets out the principles, and does so in general terms, as distinct from rules which will be either obeyed or disobeyed. Indeed, the obligation in s 9(1)(b) to “give priority” to some principles as opposed to others is confirmatory of the fact that they point in different directions, and that adhering to them is apt to turn upon taking them into account to inform the exercise of a discretion, rather than their directly imposing norms of conduct.

30. [133]

    Thirdly, it will be seen that the duty is to “take all reasonable steps” so as to exercise functions “in accordance with, and so as to promote” the principles. Although the appellants emphasised the duty to take “all” reasonable steps, the duty is nonetheless qualified by reason of the general language of many of the principles.

31. [134]

    Fourthly, the “duty” in s 9 is expressed to apply to “all persons exercising functions under this Act”. Thus it applies to the Minister exercising functions at a State-wide level (such as making a plan), and to a departmental officer contemplating enforcing a condition on a particular access licence.

32. [135]

    This Court said of the Act in Tubbo Pty Ltd v Minister Administering the Water Management Act 2000; Harvey v Minister Administering the Water Management Act 2000 [2008] NSWCA 356 at [74] that:

33. [136]

    These considerations compel the conclusion that the “duty” in s 9 is not justiciable in the sense urged by the appellants. That is scarcely a surprising result. Duties which have political but not legal force are not unknown. Indeed, they are sufficiently common that they have a name: duties “of imperfect obligation”. Barton J once observed that “duties of imperfect obligation are familiar to students of Constitutional Law”: The King v The Governor of the State of South Australia (1907) 4 CLR 1497 at 1511; [1907] HCA 31; more recent decisions are reviewed in Hicks v Ruddock (2007) 156 FCR 574; [2007] FCA 299 at [62]-[66].

34. [137]

    Not only does s 9 not give rise to a directly enforceable duty in the manner for which the appellants contended, but also no directly enforceable duty flows directly from the water management principles themselves.

35. [138]

    Those conclusions do not entail that s 9 lacks all content. The better way of analysing the “duty” imposed by s 9 is as flagged during argument:

36. [139]

    But no such case was sought to be made out. In any event, there is nothing to suggest that the 2016 plan, which was a compromise between agricultural users but also incorporated significant environmental flows, did not accord with and promote the water management principles.

37. [140]

    Turning to Mr King’s eighth proposition made orally, let it be assumed that s 9 creates a duty enforceable at the instance of persons such as the appellants. The ultimate question is whether a breach of that duty invalidates the exercise of executive power in the making of a plan. That Project Blue Sky question is one of statutory construction. There is nothing in s 9 or anywhere else in the Act to suggest that even a serious contravention of the generally expressed “duty” in s 9 spells invalidity of the exercise of some other power or performance of some other function.

38. [141]

    The appellants’ written submissions take the matter no further. In substance, they rely on an enforceable duty, either based on s 9, or else directly from the water management principles. What has already been said above deals with those submissions. Insofar as they rely on s 7 and the requirement to make a bulk access regime, they are addressed immediately below.

Failure to classify water sources pursuant to s 7 (Ground 4)

1. [142]

   Neither the existence of a duty under s 7, nor its breach, was pleaded. It was asserted in a single paragraph of the appellant’s opening submissions (paragraph 64) supplied in advance of trial:

2. [143]

   It was accepted at the bar table that a call had been made for documents amounting to a gazetted classification of the State’s waters during the trial, in answer to which nothing was produced. The circumstances in which that occurred (and to what issue if any the call was directed) were unexplained. The respondents said from the Bar table that the call was narrowly framed, and the response did not mean that substantial amounts of work in classifying the State’s water sources had not taken place. The transcript of that part of the trial when this occurred was not in the appeal books.

3. [144]

   Section 7 contains unusual language of Parliament’s “intention”. The appellants argued that s 7 was mandatory, the respondents that it was discretionary.

4. [145]

   I struggle to see what realistically could turn on this question for the outcome of the appeal. I am conscious of the fact that the appellants challenge a Minister’s plan made more than a decade after the time when, on their case, the Minister should have classified the State’s water sources. I am also conscious that insofar as one reason to classify is for bulk access regimes to be established, the 2016 plan made provision for a bulk access regime.

5. [146]

   I note the following. First, as was put during submissions, it was far from clear that the Act would commence within 12 months of its assent. The bill was significantly amended during its passage through Parliament. Indeed the first draft did not contain the requirement in s 7(2) for the concurrence of the Minister for the Environment, nor the statement that it was Parliament’s intention that the classification occur within 12 months. (See the “first print” on the New South Wales Parliament website; the concurrence of the Minister for the Environment was introduced in the Legislative Council by an amendment proposed by Mr Jones MLC to which the government did not object: Parliamentary Debates (LC), 23 November 2000, p 10727.) Accordingly, the second reading speech which was supplied to the Court by the appellants was of little assistance.

6. [147]

   Secondly, parts of the Act – including Parts 2 and 3 of Chapter 3, which are central to the submissions in this appeal about the “conversion” of licences under the Water Act 1912 – did not commence until 1 July 2004, and then only after they had been amended by the Water Management Amendment Act 2004 (NSW): see Government Gazette No 110 of 1 July 2004, p 5002, and Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10 at [28]-[29].

7. [148]

   Thirdly, as was put by the presiding judge during submissions, it is difficult to discern a legislative purpose that a classification which occurred, say, 15 months after the Act was assented to, should be invalid. Still further, what if the Minister administering the Act, and the Minister for Climate Change and the Environment had disagreed? There is no mechanism for resolving any disagreement, let alone doing so within the 12 months specified in s 7(4).

8. [149]

   Those considerations lead to an explanation for the unusual wording in s 7(4) concerning the “intention of Parliament”. The subsection conveys and formalises an expectation. If either or both of the two relevant Ministers disappointed that expectation, they would be accountable to Parliament. But as presently advised I would not regard it as establishing a duty enforceable by a private person.

9. [150]

   It is clear from the foregoing that the Court did not receive full submissions on this point. It is sufficient for present purposes to conclude, in circumstances where many considerations point against the existence of an enforceable duty (and even if there were a duty which was breached, many considerations point against it having any legal consequence to the executive action which occurred more than a decade later) that this issue at best provides scant basis for granting the appellants the extension of time required to bring this appeal.

Regulated and unregulated water (Ground 11D)

1. [151]

   The appellants submitted that there was a critical difference between regulated and unregulated water, complaining of error by the primary judge between [529] and [548]. These submissions anticipated an argument elaborated orally to the effect that the appellants were entitled to a licence permitting the diversion of regulated water. It will be necessary in dealing with “conversion” in Grounds 9 and 11D below to address in some detail the appellants’ historical entitlements to water from Yanco Creek. However, this aspect is discrete and may be resolved concisely.

2. [152]

   The submission on regulated or unregulated water was advanced thus orally.

3. [153]

   The submission made reference to the reasons of the primary judge, of which the following from [534] (described by the appellants as “the nub of his Honour’s reasoning”) is representative:

4. [154]

   There is no error in that reasoning. The appellants’ submission in this respect turned on there being some difference between regulated and unregulated water. But it is water which is claimed to damage Lake Paddock. That water would once have been regulated water (when it was in one of the defined water sources in the 2016 plan) but, insofar as it had flowed through the diversion channel, it had ceased to be regulated water and therefore fell within the description of unregulated water under the 2013 plan. If the molecules returned to Yanco Creek, they would once again become regulated water. If they evaporated they would cease to be regulated or unregulated water.

5. [155]

   But, as the primary judge with respect correctly observed, the changing status of the molecules for the purposes of the plan is irrelevant to the environmental damage of which the appellants complained.

6. [156]

   A different point was made orally, based on the conditions of the current access licence, to which I shall now turn.

Conversion (arguably implicit in Grounds 9 and 11D)

1. [157]

   In order to address the appellants’ complaints concerning the conditions upon WAL 33313, it is necessary to summarise the history of that licence, in light of which the effect of the transitional provisions applicable when it became governed by the Water Management Act may be assessed.

2. [158]

   Randren applied for a licence under the Water Act 1912 in October 1984, describing that “up to 400” hectares would be irrigated by this work. The application also referred to “flood and/or spring irrigation from swamp (not a lake)”. A licence was granted under s 12 of the Act in April 1986, subject to 12 conditions including, relevantly:

   1. (1)

      Condition 7: “The licensee shall construct in the diversion channel near its point of offtake a timber or concrete regulator with a sill level fixed at not lower than 1.11 metres below the level of a bench mark established on a gum tree on the left bank of Yanco Creek near the work and particulars of which are retained in the office of the Water Resources Commission.”

   2. (2)

      Condition 8: “Drop boards or some similar form of effective control maybe [sic] used over the sill of the regulator referred to in condition 7 to a height of not less than 0.6 metres below the bench mark referred to in condition 7 and shall be operated in accordance with conditions 9 and 10."

   3. (3)

      Condition 9: “Subject to condition 10 the dropboards or control device may only be operated to provide flows in the diversion channel with the permission of the Manager Murrumbidgee Division of the Water Resource Commission at Leeton - such permission could be expected to coincide during periods when surplus flows have been declared as being available in Yanco Creek from its offtake from the Murrumbidgee River to Morundah.”

   4. (4)

      Condition 10: “Notwithstanding condition 9 the control device shall be operated so as to not cause any inundation of land by floodwaters.”

   5. (5)

      Condition 11: “The location of the diversion channel as shown on the plan retained in the office of the Water Resources Commission shall not be altered.”

   6. (6)

      Condition 12: “The works shall be constructed and maintained in such manner as will ensure their safety and as will preclude the possibility of damage being occasioned by them or resulting from them to any public or private interest.”

3. [159]

   The licence identified 400 hectares in nominated portions of land for irrigation. It did not contain any restriction as to the volume of water. The hand-drawn plan seemingly accompanying the application (which referred to water levels from May and June 1982 as well as marking a gum tree on the creek bank, which bears what appears to be a departmental stamp and signature and which presumably corresponds with the plan in condition 11) indicates a diversion channel from the northern bank of Yanco Creek. There is some obscurity in the language of the conditions relating to the timber or concrete regulator, but the appeal was conducted on the basis that the device would prevent inflows into the diversion channel except when surplus flows had been declared to be available. The appeal was also conducted on the basis that the regulator required by condition 7 was never constructed.

4. [160]

   The licence was renewed in October 1991 and again in 1996, subject to the same conditions.

5. [161]

   The gravamen of the current complaint is reflected in a file note made more than 22 years ago, on 10 February 1997, when Mr Andrew Andrews visited the department. The file note records:

6. [162]

   In June 1997, Mr Andrews confirmed that he wished not to cancel the licence but to maintain the area authorised for irrigation purposes and the works presently covered by his existing licence as is.

7. [163]

   The licence was once again renewed in 2001. At this time there was correspondence concerning the failure to comply with the condition to construct a regulator and steps were taken towards refusing to renew the licence. It seems that the licence was in fact only renewed in September 2002, although the renewal was backdated to the expiry of the previous licence, 23 April 2001.

8. [164]

   In 2002, Mr Andrews was told that his licence was a “special additional” licence which had not received an allocation, and that it was to be converted to supplementary licences under the new Water Management Act 2000, and would receive allocations based on the history of use. On the basis that he had not used the licence in the period between 1991 and 1996, the usage on this licence would be zero.

9. [165]

   The licence renewed with effect from 23 April 2001 seems not to have mentioned the estimated quantity of water to be taken. A letter dated 5 July 2007 also anticipated that the licence would contain a zero volumetric allocation.

10. [166]

    By letter dated 22 February 2011, the department advised that the licence would expire on 22 April 2011, and invited an application to renew it. There followed a series of correspondence repeating the invitation to apply for a renewed licence (on 28 July 2011, 17 October 2011 and 6 December 2011). From time to time, Mr Andrews responded that he was awaiting advice regarding the matter. Eventually, by letter dated 6 February 2012, the department referred to “numerous telephone calls and at least one facsimile” in the previous three months and advised that it was the department’s intention to refuse to renew the licence.

11. [167]

    The details of what occurred over the next year may be passed over, because following the commencement of proceedings in the Land and Environment Court, short minutes of order were made by consent on 22 August 2012 ordering the Water Administration Ministerial Corporation to renew the licence and noting an agreement that Randren would within 14 days apply to vary the renewed licence by amending condition 13 and providing for a term containing a volumetric allocation of 1000 Ml, and that within 28 days of receipt, the Water Administration Ministerial Corporation would grant the application including “any linked modification”.

12. [168]

    The orders also noted the agreement that within three months thereafter, the applicant would “install the meter referred to in condition (1) and on any pump, and the regulator referred to in condition (7)”.

13. [169]

    By letter dated 28 August 2012, a departmental officer enclosed a renewal certificate for the licence. The certificate, as reproduced in the appeal books, is illegible, but appears not to contain a volumetric allocation. The application for modification of the renewed licence was made by letter dated 29 August 2012 and 3 September 2012. Finally, under cover of a letter dated 28 September 2012, a further notice giving effect to the amendments and containing a volumetric allocation in condition 10 which was in the following form was provided:

14. [170]

    It is important to note that the licence including a volumetric allocation was issued at the end of September 2012. The “Water Management (Application of Act to Certain Water Sources) Proclamation (No 2) 2012” was made on 3 October 2012 pursuant to ss 55A and 88A of the Water Management Act. Clause 2 provides that it commenced on 4 October 2012. Clause 3 provided:

15. [171]

    The newly issued licence, now with a volumetric condition, was expressed to permit the diverting of unregulated water. But the appellants’ challenge to that condition may for immediate purposes be put to one side. Either the licence applied to unregulated water to which the 2012 plan (unregulated and alluvial water) applied, or in some way it applied to the 2003 plan (which applied to regulated water). Subclauses 3(1) and (2) of the Proclamation operate indifferently upon those possibilities. In either case, the effect of cl 3(1) is that Part 2 of Chapter 3 of the Act applied to access licences other than floodplain harvesting access licences, and the effect of cl 3(2) is that Part 3 of Chapter 3 of the Act applied to all approvals (other than presently immaterial exceptions).

16. [172]

    The application of Parts 2 and 3 of Chapter 3 of the Act engaged the transitional provisions, converting the licences and approvals under the Water Act to licences and approvals under the Water Management Act.

17. [173]

    Schedule 10 of the Water Management Act was titled “Schedule 10 Conversion of former entitlements to access licences and approvals”. The Schedule applied to licences and approvals which were the subject of a proclamation under ss 55A or 88A. Clause 2 defined “appointed day” and “entitlement” relevantly as follows.

18. [174]

    Clause 3 of Schedule 10 effected the conversion. That clause relevantly provided:

19. [175]

    It will be seen that for every licence under the former legislation, the clause deemed there to be an access licence and an approval under the Water Management Act; the former related to the taking of water, the latter (relevantly) to the using of a work.

20. [176]

    The Minister submitted that:

    1. (1)

       the Proclamation had the effect of making Parts 2 and 3 of Chapter 3 of the Water Management Act applicable to Randren’s licence on the “appointed day”, namely, 4 October 2012;

    2. (2)

       on 4 October 2012, Randren’s licence which had issued in later September 2012 was a licence under the Water Act which entitled Randren “to take a specified quantity of water” within the meaning of cl 3(1)(a), and

    3. (3)

       the result was that from 4 October 2012, Randren’s licence was taken to have been replaced by an access licence and an approval under the Water Management Act, but in each case, the new access licence and approval were “subject to such of the conditions of the [previous licence] as are applicable” to the access licence and approval respectively.

21. [177]

    That was reflected in the documents which thereafter issued. As it was put in the respondents’ oral submissions:

22. [178]

    The respondents’ submissions explaining the above result were in response to assertions by the appellants that the condition should be deleted and replaced with an entitlement to regulated water. Because the point is not without complexity and was seemingly regarded as being of significance, I have reproduced the analysis fully.

23. [179]

    It must be said that this aspect of the appeal was less than satisfactorily presented. There was force in the respondents’ complaint:

24. [180]

    But having set out at some length the factual background to this aspect of the appeal, it is easiest to resolve it on its merits.

25. [181]

    First, “Decision 3” which was challenged before the primary judge but not part of the appeal, was a raft of challenges to the issue in September 2012 of the licence with the volumetric condition. It was paragraph 9A of the Second Further Amended Points of Claim. That decision was not challenged in this Court.

26. [182]

    Secondly, the effect of the transitional provisions upon that licence is as set out above, which reflects the respondents’ submissions. In reply, Mr King said this at the conclusion of his submissions in reply:

27. [183]

    Neither in the individual passages to which Mr King directed the Court’s attention, nor anywhere else in the written submissions, is there any response to the effect of Schedule 10 upon the licence.

28. [184]

    The appellants sought to rely on Minister Administering the Water Management Act 2000 v Sharkey [2017] NSWCA 319, which also concerned the conversion of a water licence. The particular question was the proper construction of the expression “the upper limit of the storage of Hume Dam” in the Murray Water Management Area Regulated River Order (Murray). I do not see how anything in that decision detracts from the analysis set out above, or otherwise assists the appellants.

29. [185]

    I would reject the submission that Randren is entitled to a condition that is expressed in terms of regulated water.

The application to reopen so as to adduce further evidence (Ground 1)

1. [186]

   Judgment in the Court below was reserved on 2 August 2018. By notice of motion filed on 14 September 2018, the applicants applied to reopen, so as to adduce further evidence from Mr Paul Andrews and a further (fifth) report from Mr Purcell. The report referred to a document on a government website titled “Improved Flow Management Works at the Murrumbidgee River – Yanco Creek Offtake” and expressed the view that if the works contemplated in that document took place (including constructing a new regulator and fishway across the entrance to Yanco Creek from the Murrumbidgee River), then that would address most if not all of the inundation to Lake Paddock of which the appellants complained. The document was dated March 2017, and referred to a series of steps to be taken over the ensuing 12 months, including public consultation by the Murray Darling Basin Authority in late October 2017. Mr Andrews said that he first learnt of the proposal at a meeting on 8 August 2018, and Mr Purcell said he first learnt of it when Mr Andrews brought it to his attention.

2. [187]

   The respondents filed evidence in response, opposing reopening. There was a further hearing before the primary judge on 28 September 2018, who reserved on the application. In his substantive judgment, the primary judge addressed this at [80]-[97] and refused the application.

3. [188]

   The primary judge exercised a discretion in refusing the application. He reproduced and applied principles collected in The Movie Network Channels Pty Ltd v Optus Vision Pty Ltd [2009] NSWSC 132, informed by s 56 of the Civil Procedure Act, and summarised by asking whether the evidence was “credible, highly probative and not previously obtainable by reasonable diligence”. It was not said that there was any error in the formulation of principle.

4. [189]

   His Honour was of the view that it had not been established that the Minister was aware of the new material so as to make it probative, and was satisfied that the applicants’ witnesses should have been capable of being aware of the material, which had been publicly available more than a year earlier: at [96].

5. [190]

   The appellants’ written submissions were silent on this point. Orally, they raised two issues on appeal:

6. [191]

   Some aspects of this ground were unsatisfactory. The affidavits whose rejection was the subject of the ground were included in the appeal books with nothing to indicate they had been rejected. There were no transcript references for the argument on 28 September 2018. Indeed, none of the written or oral submissions made in support of the application were included in the appeal books. Notwithstanding that omission, it was put from the Bar table that “it was never put in cross examination to either Mr Purcell or Mr Andrews that they were aware of the material”, such that the trial judge’s findings were not open. The respondents (whose counsel did not appear at trial) accepted that the deponents had not been cross-examined on 28 September. There is force in what emerged from the following exchange:

7. [192]

   Notwithstanding those deficiencies in the way this aspect of the appeal was developed, it may be resolved concisely.

8. [193]

   There is nothing in the first aspect of this ground. The fact that a document brought into existence in the year after the impugned decision (the making of the 2016 plan) may be confirmatory of damage to (inter alia) Lake Paddock and proposed works to mitigate that damage does not make it highly probative of any matter in issue. It was at best corroborative of the claims that there was damage to Lake Paddock, and conceivably relevant to the mandatory injunction sought in the event that a breach of the Act was made out. That falls well short, in the circumstances of this litigation, of evidence which is highly probative.

9. [194]

   Nor is there anything in the second basis of this ground. The test for re-opening does not turn on subjective knowledge. There was no challenge to the formulation of principle to the effect that the exercise of the discretion turned on whether the evidence had been obtainable by reasonable diligence. As was pointed out during the hearing in this Court, that is an objective test. It was amply open to the primary judge to find that those assisting the appellants ought with reasonable diligence to have learned of the public process, instituted a year before the trial commenced, to consider construction works at the entrance of Yanco Creek.

10. [195]

    Indeed, the burden lay on the appellants to establish not only that they were not aware of the March 2017 document but also why it was not obtainable with reasonable diligence. So far as the materials relating to this application have been reproduced in the appeal books disclose, they did not attempt to address this.

Remaining grounds

1. [196]

   Other aspects of the appeal were not advanced in any detail, and may be addressed concisely.

2. [197]

   The appellants’ complaint that the primary judge had erred in the construction and application of ss 335 and 336 (Ground 7) was not advanced orally. It was not separately advanced in writing (the appellants’ written submissions referred to “Grounds 1 to 8, 10 to 12”). But in any event the availability of remedial orders is premised upon a breach, and none has been established.

3. [198]

   From time to time submissions were made on the position at common law, which might be regarded as bearing upon Ground 8. The ways in which the common law, as developed in England and the United States, addressed water in rivers is of considerable interest to comparative lawyers and legal historians, as may be seen in J Getzler, “A History of Water Rights at Common Law” (Oxford University Press, 2004). However, New South Wales took a different course in the 19th century, and abrogated private rights. Section 393 is reproduced above, and in light of it I did not understand how the common law was said to affect the outcome of the appeal. The history of statutory regulation of water in New South Wales, and the resultant divestment of any common law rights, is considered in ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140; [2009] HCA 51. The passages at [71]-[73], [144], [146] and [194]-[196] in the reasons of all members of the Court confirm the absence of rights at common law.

4. [199]

   There are a number of reasons why the failure to apply the engineering solutions propounded by the appellants in Ground 11 is not a valid ground of appeal, but it suffices once again to point to the absence of any breach of the Act being established.

5. [200]

   The primary judge was critical (at [597]) of the appellants’ failure to comply with condition 7 of the licence in constructing a regulator on the diversion channel, describing it as a “persuasive argument” against the exercise of discretion in favour of the appellants. However, this was not dispositive of the litigation, the appellants having failed at a stage anterior to discretion. There was no notice of contention. Ground 11A accordingly does not arise.

Orders

1. [201]

   For those reasons, there is no basis for granting the requisite extension of time within which to permit the appellants to appeal. The notice of appeal filed out of time should be dismissed as incompetent.

2. [202]

   The only proposed ground which might enjoy any merit is Ground 11C, in respect of s 47, as to which the respondents did not seek to defend the reasoning at first instance. Otherwise the appellants have failed. Costs should follow the event.

3. [203]

   I propose that leave be refused to extend the time within which to appeal, the notice of appeal dismissed as incompetent, and that the appellants pay the respondents’ costs.

4. [204]

   EMMETT AJA: These proceedings are concerned with the validity of a decision made on 29 June 2016 by the third respondent, the Minister Administering the Water Management Act 2000 (NSW) (the Minister), to make a Water Sharing Plan for the Murrumbidgee Regulated River Water Source 2016 (the Plan). The decision was made pursuant to s 50 of the Water Management Act 2000 (NSW) (the Water Act). The appellant, Randren House Pty Ltd (Randren), contends that the decision to make the Plan was invalid.

5. [205]

   Randren owns land known as “Somerset Park” situated on both sides of Yanco Creek in southern New South Wales. Yanco Creek is a tributary of the Murrumbidgee River. The second appellant, Mr Paul Andrew Andrews, a principal of Randren, is the occupier and manager of Somerset Park. His father, Mr Andrew Andrews, established an olive oil enterprise on parts of Somerset Park to the south of Yanco Creek. A licence permits water to be taken from the Creek to supply the olive trees. The issues in these proceedings focus on the effect that the Plan is alleged to have in relation to “Lake Paddock”, an area of some 450 hectares on the northern side of Yanco Creek. Lake Paddock is part of Somerset Park.

6. [206]

   By its further amended notice of appeal filed pursuant to leave granted at the hearing, Randren raises some 15 grounds of appeal. However, it is difficult to discern from the grounds of appeal the precise complaints made by Randren. The final form of the notice of appeal fails to comply in many respects with the requirements of Uniform Civil Procedure Rules 2005 (NSW), r 51.18(1)(e) to state briefly, but specifically, the grounds relied upon in support of the appeal.

7. [207]

   The first respondent is the Water Administration Ministerial Corporation (the Corporation) and the second respondent is the State of New South Wales (the State). The appeal is brought from orders made by a judge of the Land and Environment Court of New South Wales (the primary judge) on 15 February 2019. On that day, the primary judge made orders dismissing all of the claims made by Randren and Mr Andrews in the proceedings brought in the Land and Environment Court. However, costs were reserved for further argument and the question of costs was resolved by orders made by the primary judge on 16 May 2019.

8. [208]

   A notice of intention to appeal was filed on 11 June 2019 and a notice of appeal was filed on 14 August 2019. If 16 May 2019 was the material date, the appeal was brought in time. However, the substantive orders from which the appeal is brought, being the orders made on 15 February 2019, were final orders disposing of all of the claims made by Randren and Mr Andrews in the Land and Environment Court. The time for filing a notice of appeal therefore began to run from that date. It follows that proceedings were commenced out of time. All respondents opposed the grant of an extension of time.

9. [209]

   The only evidence relied on by the appellants in support of an extension of time consisted of an affidavit sworn by Mr John Andrews, the solicitor for the appellants, asserting, in a form that would probably have been rejected had objection been taken, that the appellants believed that, because the question of costs had not been resolved, time did not begin to run until 16 May 2019. The affidavit also asserted that the appellants wished to have the question of costs resolved before making a final decision as to whether or not to appeal from the orders made on 15 February 2019. The case for an extension of time was certainly not a strong one. On the other hand, none of the respondents pointed to any particular prejudice arising from the failure to file a notice of appeal or notice of intention to appeal in time. Accordingly, if there were any substance in any of the grounds of appeal, I would be disposed to extend the time for filing the notice of appeal.

10. [210]

    A further impediment in the way of success for the appeal is to be found in the relief sought by the appellants. The normal consequence for success in judicial review of an administrative decision such as the decision of the Minister that is the subject of these proceedings is that the decision would be set aside. The impugned decision concerns the making of the Plan in 2016. The Plan affects many water users who have used or traded entitlements to water pursuant to the Plan and must be presumed to have planned and conducted their affairs on the basis of the Plan. However, no other person whose rights have been affected by the Plan was a party to the proceedings in the Land and Environment Court or in this Court.

11. [211]

    In order to overcome that impediment, the appellants intimated that the relief that they sought would be limited to a declaration that the Plan was invalid to the extent of its application to the appellants in relation to Lake Paddock, such that the remainder of the Plan and its application to other persons would not be affected. However, if the exercise of the power to make a plan by the Minister was invalid, the Plan could not stand. It would be quite impractical for the Plan to be treated as valid as regards some citizens but invalid as regards other citizens. If any of the substantive grounds of appeal were to be established it would be impossible to formulate relief as proposed by the appellants.

Grounds of Appeal

1. [212]

   One of the grounds relied on by Randren is that the primary judge erred in concluding that the appellants were time barred. There may be some substance in that ground. However, unless one of the other grounds of complaint made by the appellants is established, any error in that regard is of no consequence.

2. [213]

   In the course of his reasons, the primary judge observed that the requirement in the Water Act, to apply water management principles in the priority order in which they appear in s 5 of the Act, did not require the Court to accept that, because one small water body and its unnamed linking channel had suffered from inundation, the relevant decision was flawed in an administrative law sense. His Honour considered that decisions under the Water Act are “made at a ‘high level’ as a matter of necessity”. His Honour considered that for the legislation to function many decisions under the Water Act had, “of necessity”, to be made at a “high level” rather than at the closer detail level contended for by the appellants. The principal submission relied on by the appellants was that the primary judge erred in determining the proceedings on the basis that the Minister made decisions at a “high level”.

3. [214]

   Section 9 of the Water Act provides that “it is the duty of all persons exercising functions” under the Act:

4. [215]

   The reference by the primary judge to the making of decisions at a “high level” may not be a particularly apt use of language. However, it is clear enough that his Honour was adverting to the nature of the decision under consideration. That is to say, the decision was in the nature of a political decision in so far as it was intended to benefit the community as a whole albeit that it might be to the detriment of a significant group of individuals. To that extent, the decision is not justiciable and is not subject to judicial review in the manner in which judicial review may be directed to an administrative decision that affects only a specific individual. The ground is not established.

5. [216]

   The appellants also asserted that the primary judge erred in failing to find that the Minister had breached a duty to classify the water sources of the State. Section 7(4) includes unusual wording concerning the “intention of Parliament” in relation to the classification of water sources. I agree with Leeming JA that the provision conveys an expectation that, if the relevant Ministers failed in the expectation expressed by Parliament, they would be accountable to Parliament. The provision does not give rise to any obligation enforceable by a private citizen.

6. [217]

   The appellants raised arguments concerning differences between regulated and unregulated water under the Water Act. They asserted that there was error in issuing a licence to Randren with a condition expressed in terms of unregulated water. The primary judge found that whether the relevant waters are regulated or unregulated, there was no material differential when it comes to the environmental protection concerns expressed by the appellants. His Honour found that there was no material differential with respect to obligations applying to decision-makers whether the water source concerned is within a regulated or unregulated system. There was no error in that reasoning.

7. [218]

   Judgment by the primary judge was reserved on 2 August 2018. By notice of motion filed on 14 September 2018, the appellants applied to reopen so as to adduce further evidence. The reopening was opposed by the respondents. After a further hearing on 28 September 2018, the primary judge refused the application. His Honour considered that the proposed additional material was publicly available and that the appellants’ witnesses should have been aware of it. No basis has been established for demonstrating that there was error on the part of the primary judge in the exercise of the discretion as to whether to permit a reopening.

8. [219]

   I have had the advantage of reading in draft form the proposed reasons of Basten JA and Leeming JA for concluding that there is, ultimately, no substance in any of the other grounds pressed by the appellants. In those circumstances, I consider that the application for extension of time should be refused. It follows that the appeal should be dismissed as incompetent. The appellants should pay the respondents’ costs of the appeal.