Sharkey v Minister administering the Water Management Act 2000  NSWLEC 47 (28 April 2017)
The applicant is the owner of a property which he claims has rights to a water access licence that was issued in 2003 for a period of five years to a lot included with the property. The licence was issued under the Water Act 1992 (NSW). The Water Management Act 2000 (NSW) repealed the Water Act 1992 (NSW) yet provided transitional amendment whereby licences were converted depending on whether the river was regulate or unregulated. A regulated river is defined in the Dictionary of the Water Management Act 2000 (NSW) to be a river that the Minister declares, by order published in the Gazette, to be a regulated river.
The applicant’s lot that relates to the licence is on the Murray River, east or upstream of the wall of the Hume Dam. In 2003 and 2004, the Minister declared the Murray River, from the upper limit of the storage of Hume Dam downstream to the South Australian border, to be a regulated river. The Murray River is otherwise an unregulated river. The applicant’s licence was determined to be congruent to the unregulated portion of the river. The issue was whether the applicant’s licence was within the limits of the regulated river and thus a matter of statutory interpretation to determine the meaning of the upper limit of the storage of the Hume Dam. The determination of whether the applicant’s lot is connected to the Hume Dam would affect whether regulated or unregulated licencing conditions apply.
The respondent determined the licence to be relevant to the unregulated portion of the river and thus the licence was converted into an unregulated licence in 2012. In making this decision, the Minister stated that the upper limit of the storage of Hume Dam is a line drawn across the Murray River between two points on opposite banks of the river, each of which is the point where the bank of the river first reaches an elevation of 192m. This determination was said to be consistent with the ordinary interpretation of the words, rather than considering upper limit to include flooded tributaries as the applicant contended. Further, the Minister reasoned that the purpose of regulated rivers supports this determination referring to the dammed nature of regulated rivers. Lastly, the Minister reasoned that on a practical level this interpretation was reasonable and would ensure consistency in administrative determinations.
Preston CJ rejected all three arguments put forward by the Minister, preferring the statutory interpretation put forward by the applicant. The Court will determine whether this approach to determining the point at which the river is considered regulated impacts the applicant and his claim later this week.
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