Water cases

The cases below are on the NSW Land and Environment pages of Caselaw NSW.

Cases concerning civil enforcement for pollution of waters

Blue Mountains Conservation Society Inc v Delta Electricity [2009] NSWLEC 150; 170 LGERA 1 [2010] ALMD 217; [2010] ALMD 212 (protective costs order made for applicant acting in the public interest; points of claim stated that defendant introduced salt, copper, zinc, aluminium, boron, fluoride and arsenic into the waters of the Cox’s River)

Blue Mountains Conservation Society Inc v Delta Electricity (No 3)[2011] NSWLEC 145 (the Court refused an application by the respondent company to have the proceedings summarily dismissed or struck out in whole or part on the basis that no reasonable cause of action was disclosed; the Court held that the applicants were not precluded from bringing proceedings under s 252 of the Protection of the Environment Operations Act 1997 to remedy or restrain alleged breaches by the respondent company of s 120 of the Protection of the Environment Operations Act 1997 prohibiting pollution of waters)

Brown v Environment Protection Authority [1992] NSWLEC 101; (1992) 78 LGERA 119 (unsuccessful challenge to the Environmental Protection Authority’s decision to renew a pollution control licence for a paper mill company operating on the banks of the Shoalhaven River permitting it to discharge effluent into that River)

McCallum v Sandercock [2011] NSWLEC 175; (2011) 183 LGERA 399 (an application for an order seeking to restrain the respondent from using a quarry was not successful; pollution of waters within the meaning of s 120 of the Protection of the Environment Operations Act 1997 found, but no environmental harm proved).

Cases concerning clearing of native vegetation for artificial water bodies

Director-General Department of Land and Water Conservation v Jackson [2003] NSWLEC 81; 125 LGERA 304 (in a judgment involving preliminary questions relating to prosecutions for offences of clearing native vegetation, a water structure, the construction of which involved clearing native vegetation, was found to be a rural structure within the meaning of the (now repealed) State Environmental Planning Policy No. 46 – Protection and Management of Native Vegetation )

Director-General of the Department of Land and Water Conservation v Bailey [2003] NSWLEC 160; (2003) 128 LGERA 1 (Bailey was acquitted of the offence of clearing land and building an artificial water body because an exception in the (now repealed) State Environmental Planning Policy No. 46 – Protection and Management of Native Vegetation applied to the clearing, relating to clearing for rural structures; the NSW Court of Criminal Appeal affirmed the Land and Environment Court’s decision in Director-General, Department of Land and Water Conservation v Bailey [2003] NSWCCA 361; (2003) 136 LGERA 242).

Cases concerning judicial review of decisions relating to development in waters, near waters or relating to waters

Barrington - Gloucester - Stroud Preservation Alliance Inc v Minister for Planning and Infrastructure [2012] NSWLEC 197 (unsuccessful challenge to an approval of a coal seam gas project under Part 3A of the Environmental Planning and Assessment Act 1979. The project had been subject to conditions requiring, among other things, groundwater monitoring and management. Those conditions relating to groundwater and wastewater were challenged, and it was alleged that the Minister failed to correctly formulate and properly consider the precautionary principle in respect of the project approval)

BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399; (2004) 138 LGERA 237 (dismissal of appeal against refusal of application for subdivision development because of, amongst other things, unacceptable impacts on nearby wetland)

Brown v Environment Protection Authority (No 2) [1992] NSWLEC 101; (1992) 78 LGERA 119 (unsuccessful challenge to the renewal of a pollution control licence granted under the (now repealed) Pollution Control Act 1970 for a paper mill to discharge effluent to the Shoalhaven River)

Central West Environment Council Inc v Orange City Council And Anor [2003] NSWLEC 131; 128 LGERA 169 (Court refused application to have rowing course development on river declared invalid)

Oshlack v Rous Water [2011] NSWLEC 73 (preliminary questions regarding whether the Minister was required to consider certain environmental impacts or conduct impact studies as provided in ss 111 and 112 of the Environmental Planning and Assessment Act 1979 in approving construction of fluoridation plants)

Oshlack v Rous Water (No 2) [2012] NSWLEC 111 (the Court found that the local council and Rous Water had adequately discharged their duty pursuant to s 111 of the Environmental Planning and Assessment Act 1979 insofar as each took into account to the fullest extent reasonably possible all matters affecting or likely to affect the environment by reason of the uplift in water fluoridation; the applicant did not pursue the challenge founded upon s 112 of the Environmental Planning and Assessment Act 1979)

Oshlack v Rous Water [2013] NSWCA 169; (2013) 194 LGERA 39; [2013] ALMD 3527 (unsuccessful challenge to decisions made by Rous Water and Ballina Council to approve the construction and operation of four fluoridation plants under s 24 of the Local Government Act 1993 on the basis of a constructive failure to exercise jurisdiction: (1) under s 24 of the Local Government Act (both Rous Water and Ballina Council) and (2) in accordance with the duty in s 111 of the Environmental Planning and Assessment Act 1979, requiring consideration of the environmental impacts of an activity (in the case of Rous Water only))

Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213; (2009) 178 LGERA 347 (longwall mine development involved undermining of swamps with real risk of subsidence; the Minister for Planning’s decision to approve the mine was challenged, unsuccessfully, on numerous grounds, including that the Minister had not complied with requirements relating to the approval of undermining of swamps)

Snowy River Alliance Inc v Water Administration Ministerial Corporation [2011] NSWSC 652 (unsuccessful challenge to the review and variation of Snowy Hydro Limited’s licence; the Supreme Court of NSW held that the review did not miscarry by reason of the exclusion of the topic of the adequacy of environmental flows from the review and the absence of any state of the environment report of the Snowy Scientific Committee did not prevent the review being carried out and did not affect the validity of the review or variations)

Ulan Coal Mines Ltd v Minister for Planning [2008] NSWLEC 185; (2008) 160 LGERA 20 (unsuccessful judicial review challenge of coal mine development approval; condition of Minister’s approval was to ensure sufficient water for project and if necessary adjust scale of mining operations to match water supply).

Cases concerning prosecution for pollution of waters

Environment Protection Authority v Austar Coal Mine Pty [2011] NSWLEC 252 (escape of detergent and effluent into creek running adjacent to coal handling and preparation plant; effluent present downstream in creek for approximately two kilometres; Court ordered defendant to pay money towards a threatened species rehabilitation project and issue publication notices)

Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280; (2008) 163 LGERA 71 (escape of 1,000,000 litres of effluent from poultry property affecting 1.1 kilometres of river; Court ordered defendant to pay money towards a conservation project and issue publication notices)

Environment Protection Authority v Forestry Commission of New South Wales [2013] NSWLEC 101 (defendant found guilty of a water pollution offence under s 120(1) of the Protection of the Environment Operations Act 1997)

Environment Protection Authority v Lithgow City Council [2007] NSWLEC 695 (discharge of alum/alum sludge into river in breach of environment protection licences)

Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65 (multiple discharges of sediment-laden waters into creek; conditional approval for the project required erosion and sediment control plan describing measures to be in place before land clearing commenced; the majority of measures were not in place when substantial clearing commenced)

Environment Protection Authority v Moolarben Coal Operations Pty Ltd (No 2) [2012] NSWLEC 80 (release of sediment-laden water by unblocking a culvert beneath an embankment retaining that water; inadequate pumping capacity to move retained sediment run-off to dirty water storage dams)

Environment Protection Authority v New South Wales (Department of Environment, Climate Change and Water) [2010] NSWLEC 67; (2010) 174 LGERA 19 (employer of government agency failed to operate equipment for discharge of treated sewage in a proper and efficient manner, breaching a condition of the agency’s environment protection licence)

Environment Protection Authority v Queanbeyan City Council[2010] NSWLEC 237; 182 LGERA 36 (Court refused an application to stay proceedings for pollution of waters based on refusal of regulatory agency to issue an environment protection licence; in Queanbeyan City Council v Environment Protection Authority[2011] NSWCCA 108, the NSW Court of Criminal Appeal refused leave to appeal the stay proceedings)

Environment Protection Authority v Sibelco Australia Limited[2011] NSWLEC 160 (sediment laden water was discharged from the defendant's property as a result of a dam wall failing; the Court ordered the defendant to make a payment to an environmental organisation for use for general environmental objectives in lieu of a fine and to issue publication notices)

Environment Protection Authority v Snowy Hydro Ltd [2008] NSWLEC 264 (river water was polluted during the connection of a dam to a river at the end of dam upgrade works; the pollutant sediment laden waters contained soil, earth, clay or similar inorganic matter)

Environment Protection Authority v Straits (Hillgrove) Gold Pty Ltd[2010] NSWLEC 114; (2010) 174 LGERA 314 (spill of approximately 1,000 to 3,000 litres of slimes into a creek from ore processing plant)

Environment Protection Authority v Sydney Water Corporation[2000] NSWLEC 156 (sewerage overflow into sensitive waterway; the fact Sydney Water Corporation’s resources for maintenance and upgrading of sewer works were fixed in an amount that did not allow preventative maintence was not a mitigating factor in the commission of the offence)

Environment Protection Authority v Tea Garden Farms Pty Ltd[2012] NSWLEC 89 (discharge of sediment-laden water from rural dam into the waters of a marine park, the Port Stephens - Great Lakes Marine Park)

Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 (overflow of approximately 116,000 to 124,000 litres of toxic leachate into creek, with pollution occurring for about 800 metres; the polluter pays principle was taken into account in sentencing the offender for the offence)

Morrison v Ausmarine Fisheries Pty Ltd [1995] NSWLEC 166 (convictions and sentences of a ship owner and chief engineer for offences against s 8(1) of the Marine Pollution Act 1987 relating to the leak of oil while a vessel was receiving light diesel oil from road tankers; more than 200 litres of oil escaped onto the decks of the vessel and a smaller amount reached the harbour; the leak was caused by a tank valve being left open after forward fuel tanks had been filled and during the loading of the stern tanks, resulting in fuel being forced into the already full forward tank, which then overflowed)

Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd [2013] NSWLEC 68 (respondents were found to have breached s 120(1) of the Protection of the Environment Operations Act 1997 by polluting waters without obtaining the requisite approvals)

Cases concerning sustainable use of waters

Water allocation plans

Arnold v Minister Administering the Water Management Act 2000[2007] NSWLEC 531; (2007) 157 LGERA 379 (unsuccessful judicial review application to have the Lower Murrumbidgee Groundwater Source Plan declared invalid and quashed, made after applicants’ water extraction entitlements were reduced under the Water Management Act 2000 and the Water Sharing Plan for the Lower Murray Groundwater Source 2006 as part of a national water sustainability arrangement; in Arnold v Minister Administering the Water Management Act 2000 [2008] NSWCA 338; 163 LGERA 429, the NSW Court of Appeal dismissed the applicants’ appeal; and in Arnold v Minister Administering the Water Management Act 2000[2010] HCA 3; (2010) 240 CLR 242; (2010) 172 LGERA 82, the High Court dismissed the applicants’ appeal against the NSW Court of Appeal’s decision)

Arnold v Minister Administering the Water Management Act 2000 (No 6) [2013] NSWLEC 73 (unsuccessful challenge to the legal validity of a water sharing plan for the Lower Murray Groundwater Source made under s 50 of the Water Management Act, and the Water Management (General) Amendment (Lower Murray) Regulation 2006). In Arnold v Minister Administering the Water Management Act 2000 [2014] NSWCA 386, the NSW Court of Appeal dismissed the applicant’s appeal against the first instance decision)

Harvey v Minister Administering the Water Management Act 2000[2008] NSWLEC 165; (2008) 160 LGERA 50 (the Court dismissed an application to have the Water Sharing Plan for the Lower Murrumbidgee Groundwater Sources 2003 Amendment Order 2006 declared invalid; in Tubbo Pty Ltd v Minister Administering the Water Management Act 2000; Harvey v Minister Administering the Water Management Act 2000 [2008] NSWCA 356, the NSW Court of Appeal upheld the first instance decision; in Harvey v Minister Administering the Water Management Act 2000 [2009] HCATrans 178, the High Court refused leave to appeal the NSW Court of Appeal’s decision)

Murrumbidgee Ground-Water Preservation Association v Minister for Natural Resources [2004] NSWLEC 122 (unsuccessful judicial review challenge to the water sharing plan for the lower Murrumbidgee region; the plan reduced the theoretical entitlement of licence holders to approximately 52 per cent of their original entitlement; in Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; (2005) 138 LGERA 11 the NSW Court of Appeal upheld the first instance decision)

Murrumbidgee Horticulture Council Inc v Minister for Land and Water Conservation [2003] NSWLEC 213; (2003) 127 LGERA 450 (unsuccessful judicial review challenge to water sharing plan which prevented dealing in water allocations if application was received after a certain amount of time)

NA & J Investments Pty Ltd v Minister Administering Water Management Act 2000 and Another; Arnold v Minister Administering Water Management Act 2000 and Another [2011] NSWLEC 51; 181 LGERA 166 (finding that the Water Management Act 2000 did not require the Minister administering the Act to consider the representation relied upon by the applicants in making or varying water sharing plans)

Nature Conservation Council of New South Wales Inc v Minister for Sustainable Natural Resources [2004] NSWLEC 33; (2004) 133 LGERA 168 (application to have a water sharing management plan for the Gwydir River Water Source made by the Minister under the Water Management Act 2000 declared invalid dismissed by the Court; one of the applicant’s grounds of challenge was that environmental health water rules had to be established before a bulk access regime was established; in Nature Conservation Council of New South Wales Inc v Minister Administering the Water Management Act 2000 [2005] NSWCA 9; (2005) 137 LGERA 320, the NSW Court of Appeal dismissed an appeal against the first instance decision)

O'Keefe v Water Administration Ministerial Corporation [2010] NSWLEC 9 (unsuccessful appeal against decision of local land board to issue water licence to take and use water; beneficiary of licence had an easement for water and electricity supply over their neighbour’s property)

Randren House Pty Ltd v Water Administration Ministerial Corporation (No 4) [2019] NSWLEC 5 (unsuccessful judicial review of Water Sharing Plans - whether making of the Water Sharing Plan for the Murrumbidgee Regulated River Water Source 2003 and thereafter the Water Sharing Plan for the Murrumbidgee Regulated River Water Source 2016 were invalid for failing to consider particular water body - whether Water Sharing Plan for the Murrumbidgee Unregulated and Alluvial Water Sources 2012 invalid due to failure to consider impacts on a particular water body)

Regulating and charging for water use

Harris v Harrison [2014] NSWCCA 84 (appeal - sentence for meter tampering contrary to s 91K(1) Water Management Act 2000 - whether error in primary judge's assessment of objective gravity - whether primary judge erred in construction of s 52 Water Management Act - whether primary judge erred by failing to take into account relevant consideration - error found - appeal allowed - conviction confirmed - substituted orders made)

Harrison v Baring [2012] NSWLEC 117 (defendant found guilty of multiple offences in the Water Management Act 2000 of taking water from a water source otherwise than in accordance with an access licence and using water supply work to take water otherwise than in accordance with a water supply work approval)

Harrison v Harris [2013] NSWLEC 105 (defendant found guilty of offence under s 91K(1) of the Water Mangement Act 2000 in that he intentionally or recklessly interfered with or disconnected metering equipment that had been installed in connection with a water supply work)

Murray Irrigation Limited v ICW Pty Ltd and Meares Nominees Pty Ltd [2005] NSWLEC 304 (convictions under the Water Management Act 2000 of taking water from a supply point without authority and interfering with a water meter)

Water NSW v Barlow [2019] NSWLEC 30 (prosecution for contravention of Minister's direction - prosecution for taking water when metering equipment not working - taking water during embargo - guilty plea - sentencing).

Application of the precautionary principle where there is uncertainty in water resources and use

David Kettle Consulting Pty Ltd v Gosford City Council [2008] NSWLEC 1385 (application for permanent development consent for water bottling project refused and further trial consent granted)

Gerroa Environment Protection Society Inc v Minister for Planning and Cleary Bros (Bombo) Pty Ltd [2008] NSWLEC 173 (the Court determined that an extension to a sand quarry, which was the subject of a development application, was unlikely to sufficiently alter groundwater behaviour so as to materially affect a groundwater-dependent, swamp sclerophyll forest; the Court required high hydraulic conductivity materials to be placed at intervals along the length of a pond extension in order to reduce the groundwater impacts that could be caused by the placement of backfill in the pond to create batters)

GHD Pty Ltd v Palerang Council [2009] NSWLEC 1342 (unsuccessful merits appeal against Council decision to refuse development of a 40 lot residential subdivision involving excavation and filling of land and the diversion of a nearby creek to form an artificial wetland; the proposed development was not shown to be consistent with the principles of ecologically sustainable development and did not adequately address the riparian, geomorphological and hydrological issues associated with the development relating to a nearby creek, including the risk of channel avulsion; Court did not refuse to grant development consent on the basis of the application of the precautionary principle but held that the precautionary principle would be a basis for refusal of the application having regard to the balancing of considerations required)

Hunter Environment Lobby Inc v Minister for Planning [2011] NSWLEC 221 (objector appeal against the Minister’s decision to approve an extension to an open-cut and underground coal mine; Court approved the mine subject to conditions, including that water licences should be purchased and retired unless the coal mine operator could provide alternative proposals for methods to offset baseflow losses to the Goulburn and Talbragar Rivers within specified timeframes; the Court refused to impose a condition requiring remediation of groundwater and demonstration of no impact of the project at the time of the project’s completion because there was no clear evidence that remediation was, or would in the future become, practical and feasible (for example, through reinjection of water into groundwater systems))

Ironstone Community Action Group Inc v NSW Minister for Planning and Duralie Coal Pty Ltd [2011] NSWLEC 195 (approval granted by Court for coal mine on detailed conditions relating to water discharges, base flow offsets, compensatory water supply and irrigation; proponent required to prepare a study on a water-dependent, listed threatened species, the Giant Barred Frog, and ensure the project had no more than a negligible impact on the species)

Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited [ 2010] NSWLEC 48 (objector appeal against Council’s decision to grant consent to a limestone quarry; one of the Court’s considerations was whether there were caverns in the limestone to be quarried with subterranean aquatic habitats for biota constituting a groundwater dependent ecosystem; Court found that as were likely to be small, interconnected voids and fissures in the limestone to be quarried but not large caves, it was scientifically likely that some form of biota would be found within the limestone on the site and the precautionary principle was therefore activated; the Court found the appropriate and proportionate response to the threat of environmental damage to biota within the limestone was to implement a step-wise or adaptive management approach which involved imposition of conditions of consent requiring monitoring linked to adaptive management)

Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213; (2009) 178 LGERA 347 (decision to approve longwall mine was challenged, unsuccessfully, on numerous grounds, including that the Minister had not complied with requirements relating to the approval of undermining of swamps)

Use of waters in an urban context

Drake-Brockman v Minister for Planning [2007] NSWLEC 490; (2007) 158 LGERA 349 (unsuccessful judicial review challenge of Minister’s approval of concept plan for development in Chippendale; conditions of approval included requirements for future development relating to water use and waste water re-use)

Cases concerning the impact of floods on development and the impact of development on floods

Impact of floods on development

Australian Coal Alliance Incorporated v Wyong Coal Pty Ltd [2019] NSWLEC 31 (unsuccessful judicial review of consent granted to Wallarah 2 Coal Project - alleged failure to consider flood impacts - alleged error of fact in relation to flooding impacts)

Hackett v Hawkesbury City Council [2006] NSWLEC 503 (development application for existing building located in a high hazard floodway to be used as a limited stay tourist facility refused due to inappropriateness of the site)

Mandalong Progress Association Inc v Minister for Planning [2003] NSWLEC 141; (2003) 126 LGERA 408 (the Court enforced conditions of consent requiring a flood study to be completed in an approval for the development of an underground coal mine)

Walker v Minister for Planning [2007] NSWLEC 741; (2007) 157 LGERA 124 (successful challenge of Minister’s decision to approve concept plan based partly on Minister’s failure to consider the impact flooding could have on development on the land; in Minister for Planning v Walker [2008] NSWCA 224; (2008) 161 LGERA 423, the NSW Court of Appeal overturned the Land and Environment Court’s decision but upheld parts of the reasoning of the decision relating to the need to take into account the public interest and principles of ecologically sustainable development when determining development applications)

Impact of development on floods

Ilim College of Australia Inc. v Fairfield City Council [2011] NSWLEC 1216 (the Court granted development consent to a development on flood-liable land, finding that if recommended drainage works were completed, there would be no increase in flooding and downstream properties would benefit from the works in regard to flooding)

Kidman Group Pty Limited v Tamworth Regional Council [2010] NSWLEC 1244 (the Court refused to grant development consent to construct 11 industrial units above the designated flood level and a 70 metre-long retaining wall; the proposed development involved substantial filling with the consequence that existing overland flows would be diverted, resulting in increased velocities along the western boundary of the land, within the adjoining farmland; in larger storm events there would also be general overland flows following the land contours onto the subject land and the retaining wall would block this flow; the failure to resolve these matters were considered negative aspects of the application)

Pavliuk v Gosford City Council [2010] NSWLEC 1048 (in refusing development consent for development in a floodway, the Court took into account the local government area’s adopted Floodplain Management Plan, which restricted development in the floodplain and included a progressive floodway land acquisition program so that the amenity of other land in the area was maintained by the mitigation of flooding impacts)

The Sabian Mandean Association in Australia Limited v Wollondilly Shire Council [2010] NSWLEC 1079 (development consent granted for the construction of a baptismal pond and other works adjacent to the Nepean River; flood impact modelling indicated that the proposed development would not significantly impact flooding of the Nepean River)

Cases concerning the management of fisheries

Director-General, New South Wales Department of Industry and Investment v Mato Investments Pty Ltd (No 4) [2011] NSWLEC 227(defendant charged but not found guilty of offences relating to the destruction of habitats of threatened and vulnerable fish species and an endangered ecological community by the removal of snags and woody debris in the Murray River and adjacent waters)

Professional Fishers Association Inc v Minister for Fisheries [2002] NSWLEC 15; (2002) 120 LGERA 61 (unsuccessful judicial review challenge to the validity of commercial fishing closures and a proposal by the Minister to acquire certain commercial fishing entitlements; the commercial fishing closures and acquisition of entitlements were part of a fisheries policy which included new legislative amendments expressly requiring that the application of the relevant legislation was to be guided by ecologically sustainable development principles, including the precautionary principle)

Sidhom v Robinson [2007] NSWLEC 408; (2007) 154 LGERA 169 (unsuccessful application for leave to appeal conviction imposed by the Local Court for an offence against the Marine Parks Regulation 1999 relating to the pumping of nippers (an animal) in a declared sanctuary zone)

Sustainable Fishing and Tourism Inc v Minister for Fisheries and Anor [2000] NSWLEC 2 (successful judicial review challenge to the granting of a commercial fishing licence; Court found that the Minister had not examined and taken into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of the granting of the licence; evidence from experts retained by the applicant indicated that there was a real prospect of physical damage to the seagrass beds which were the subject of hauling activities with consequential adverse effect on organisms occurring within those beds, but the Court did not make a finding in relation to whether an environmental impact statement should have been required)