Citation: Department of Environment, Climate Change and Water v November Foxtrot Sierra Pty Limited [2012] NSWLC 2
Court: Local Court of NSW
Date: 05 March 2012
Judge(s): Richardson LCM
Background
The defendant company owned a rural property called Wards Mistake Station near Guyra in northern NSW. Nowlands Creek runs through the property. In around December 2006, the company constructed an earthen embankment across that creek without any licence, permit, or authority required under Part 2 of the Water Act 1912.
In November 2008, the Water Administration Ministerial Corporation issued a direction under s 21B(1)(b) of the Water Act 1912 requiring the company to remove the embankment within 30 days. The company did not comply by the 21 December 2008 deadline and had not done so at any point thereafter.
The company was charged with failing to comply with that direction. It admitted the core factual matters, including ownership of the land, the construction of the embankment, receipt of the direction, and non-compliance. The contested issue at the substantive hearing was whether Nowlands Creek, at the location of the embankment, qualified as a "river" under s 5 of the Water Act 1912, because only if it did would the direction have been validly issued and the offence made out.
Legal Issues
- Whether the defendant's earlier solicitor-made admission that the embankment was a "work to which this Part extends" was admissible, or should be excluded as unfair under s 90 of the Evidence Act 1995.
- Whether Nowlands Creek at the location of the embankment constituted a "river" within the meaning of s 5 of the Water Act 1912, specifically:
- Whether the creek was a stream of water flowing in a natural channel (perennial or intermittent) under s 5(1)(a); and
- Whether the creek qualified as a third or higher order stream under the Strahler System referenced in the Gazette order of 24 March 2006, which determined which watercourses were and were not declared "rivers" for the purposes of the Act.
Decision
Admissibility of the solicitor's admission. A notice from the defendant's solicitors had admitted that the earthen embankment fell within the definition of a "work to which this Part extends" under s 5 of the Water Act 1912. This admission was potentially fatal to the defence. The court found it would be unfair to admit the evidence under s 90 of the Evidence Act 1995 and ruled it inadmissible. The prosecution was therefore required to prove its case in full.
Stream order under the Gazette declaration. The Director General had published a gazette order on 24 March 2006 declaring certain watercourses to be or not to be rivers, using the Strahler System to classify stream order. Under that system, a third or higher order stream is treated as a river. The prosecution called Dr David Outhet as an expert witness, and the defendant called Professor Mark Taylor. The court accepted the prosecution's evidence and found that Nowlands Creek at the point of the dam was at least a third order stream and therefore a river within the meaning of the Gazette order.
Intermittent flow as an independent basis. Even leaving aside the Strahler stream-order analysis, the court found a second independent basis for concluding that Nowlands Creek was a "river." The statutory definition in s 5(1)(a) includes any stream flowing in a natural channel "whether perennial or intermittent." Drawing on dictionary definitions, the court found that while the creek's flow was not perennial or permanent, the evidence supported a finding that its flow was intermittent. An intermittent stream flowing in a natural channel satisfies the statutory definition.
Conclusion. Having found on both bases that Nowlands Creek was a river, and given the admitted facts about the embankment, the direction, and non-compliance, the court was satisfied beyond reasonable doubt that the offence had been proved.
Orders Made
No orders were made in this decision.
Key Takeaways
- The Local Court confirmed that the definition of "river" in s 5 of the Water Act 1912 captures intermittent streams flowing in natural channels, not only those with perennial or permanent flow.
- Under the Gazette order of 24 March 2006, a watercourse classified as a third or higher order stream under the Strahler System qualifies as a "river" for the purposes of Part 2 of the Water Act 1912.
- A conviction for failing to comply with a direction under s 21B(1)(b) of the Water Act 1912 requires proof that the relevant watercourse is a "river" within s 5, making stream classification a live issue even where other elements of the offence are admitted.
- In dismissing the admissibility of the solicitor's notice of admission, the court applied s 90 of the Evidence Act 1995 to exclude evidence of an admission where admission would be unfair to the defendant, effectively restoring the prosecution's burden of proof on all elements.
- Proof of a watercourse's character as a "river" may be established on alternative grounds: either through expert evidence on stream order under the Strahler System, or through evidence of intermittent flow in a natural channel satisfying the statutory definition directly.
Legislation and Cases Referenced
Legislation
- Water Act 1912 (NSW), ss 5, 21B(1)(b)
- Evidence Act 1995 (NSW), s 90
- Water Management Act 2000 (NSW)
- Interpretation Act 1987 (NSW)
- Crimes Act 1900 (NSW)
Cases
- Department of Environment, Climate Change and Water v November Foxtrot Sierra Pty Limited [2011] NSWLC 39 (preliminary delegation decision)
- O'Keefe v Water Management Ministerial Corporation [2010] NSWLEC 9
- Director General Department of Land and Water Conservation v Bailey [2003] NSWCCA 361
- ADI Ltd v Environment Protection Authority (2000) 118 A Crim R 335
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
- DPP v United Telecasters Sydney Pty Ltd (1990) 168 CLR 594
- Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249
- DPP v Yigit [2008] NSWCA 226
- Office of Fair Trading v El Homsi [2009] 74 NSWLR 443
- RTA v Baldock [2007] NSWCCA 35
- Knezovic v Shire of Swan-Guildford (1908) 118 CLR 468