Original language


Date of text
Type of court
Court name
Land and Environment Court of New South Wales
Reference number
[2011] NSWLEC 51
Civil, Jurisdiction, Licences, Declaratory Relief, Damages, Torts, Wildlife, Biodiversity, Wetlands, Standing
Free tags
Environment gen.
The applicants in these proceedings were farmers or corporations who held licences concerning two water sources. The Minister made amendments to water sharing plans in relation to the water sources in 2006 pursuant to the Water Management Act 2000 (“WMA”) which affected those licences. Both applicants claimed the respective water sharing plans were invalid. The applicants sought both declaratory relief and also sought damages. The respondents sought to strike out two parts of the applicants’ pleadings. First, the pleading alleging that the Minister was required, but failed, to consider mandatory considerations in the form of representations said to have been made by or on behalf of the respondents to some or all of the applicants as to the content of the respective water sharing plans. Secondly, the respondents sought to strike out the pleading that the applicants were entitled to recover damages for negligent misrepresentation arising from those representations. The issues: were (1) whether the WMA expressly or impliedly imposed an obligation upon the Minister to consider the representations relied upon by the applicants before making or amending the relevant water sharing plans under the WMA; and (2) whether the claim for damages for negligent misrepresentation was incidental or ancillary to the claim challenging the plans on administrative law grounds. The Court held: motion to strike out upheld: (1) the WMA did not expressly or impliedly impose upon the Minister an obligation to consider the representations in question when making or amending a management plan. The applicants needed to demonstrate that the Act either expressly or impliedly bound the Minister to consider the representations made to them in order to demonstrate that they had a reasonable cause of action within the meaning of the Uniform Civil Procedure Rules 2005 (“UCPR”) 13.4 and r 14.28: at [92]; (2) the discretion conferred under s 45(1)(a) of the WMA to amend a water sharing plan is expressed in broad terms and, following Harvey v Minister Administering the Water Management Act 2000 [2008].