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More and Water and Rivers Commission [2006] WASAT 112 (9 May 2006)

Last Updated: 22 May 2006

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM : DEVELOPMENT & RESOURCES

ACT :  RIGHTS IN WATER AND IRRIGATION ACT 1914  (WA)

CITATION : MORE and WATER AND RIVERS COMMISSION [2006] WASAT 112

MEMBER : JUSTICE M L BARKER (PRESIDENT)

MR A GARDNER (SENIOR SESSIONAL MEMBER)

HEARD : 6 FEBRUARY 2006 AND 16 FEBRUARY 2006

DELIVERED : 9 MAY 2006

FILE NO/S : DR 544 of 2005

BETWEEN : HAMISH ALLAN MORE

Applicant

AND

WATER AND RIVERS COMMISSION

Respondent

Catchwords:
Water resources -  Rights in Water and Irrigation Act 1914 - Whether Commission should have refused licence to take underground water - Whether Confined Aquifer Policy applies - Whether extenuating circumstances exception applies - Whether personal circumstances of applicant relevant

Legislation:
Environmental Protection Act 1986 (WA)
Planning and Development Act 2005 (WA), s 3(1)(c)
 Rights in Water and Irrigation Act 1914  (WA),  s 4 ,  s 5C ,  s 5C(1) ,  s 5(2)(c) ,  s 9 , s 10,  s 20 ,  s 21 ,  s 25A ,  s 26A ,  s 26C ,  s 26D ,  s 26GU(1) ,  s 26GU(1)(a) ,  s 26GU(1)(b) ,  s 26GU(2) , s 26GZE, Sch 1, cl 3, cl 4, cl 5, cl 6, cl 7, cl 7(2), cl 7(2)(d), cl 7(2)(e), cl 8, cl 9 , cl 10, cl 11, cl 12, cl 13, cl 14, cl 22, cl 23, cl 23(2), cl 24(2)(b), cl 24(2)(d), cl 40, cl 41, Div 3D, Div 7, Div 9,  Pt III 
State Administrative Tribunal Act 2004 (WA), s 21, s 28, s 29
Swan Valley Planning Act 1995 (WA), s 8
Water and Rivers Commission Act 1995 (WA), s 10

Result:
Decision of Water and Rivers Commission affirmed.
Application for review dismissed.

Category: A

Representation:

Counsel:

Applicant : Mr P G Brunner

Respondent : Mr F Sunderland

Solicitors:

Applicant : Kott Gunning

Respondent : State Solicitor's Office

Case(s) referred to in decision(s):

Clive Elliott Jennings and Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433

Lenzo and Executive Director, Department of Fisheries (WA) [2005] WASAT 218

Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR (WA) 1

Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366

Re Drake and Minister for Immigration and Ethnic Affairs (No.2) [1979] AATA 179; (1979) 2 ALD 634

Re Musgrave and Secretary, Department of Primary Industry (1986) 11 ALD 218

Re Robinson and Secretary, Department of Primary Industry (1985) 8 ALD 302

Singer v Statutory & Other Offices Remuneration Tribunal (1986) 5 NSWLR 646

Skoljarev v Australian Fisheries Management Authority (1995) 39 ALD 517

Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133

Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492

Case(s) also cited:

Re A Herron and Australia Fisheries Management Authority [20002] AATA 683

Re Sawyer and Secretary, Department of Primary Industry (1987) 12 ALD 523

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 In July 2005, the Water and Rivers Commission granted the applicant the renewal of a licence under the  Rights in Water and Irrigation Act 1914  (WA) to take 12 700 kL per annum of groundwater from the Leederville aquifer at the location of the applicant's land at Millendon in the Swan Valley, in the north-east of the Perth region. The licence also authorised the applicant to use the water for the purposes of irrigating 1.1 hectares of citrus orchard, 0.5 hectares of lawns and gardens and for watering stock on the same land.
2 The applicant appealed against this decision by the Commission for two reasons:

1. His licence renewal application also sought an additional allocation of 27870 kL per annum to irrigate 4.2 hectares of citrus orchard, which the Commission has refused; and

2. He objected to the imposition of conditions on the renewed licence requiring the installation of a cumulative water meter, the monthly recording of the volume of groundwater drawn monthly and the annual reporting of those records to the Commission.

3 The principal issue in this appeal was whether the Commission properly applied its 2003 Policy on Accessing the Leederville and Yarragadee Aquifers in Perth to refuse the applicant the additional allocation of water. The import of the Confined Aquifers Policy is that monitoring data suggests that both aquifers in the Perth region are stressed and that no new long term licences for accessing the fresh groundwater resources from them should be granted. The applicant argued, in the alternative, that either the Confined Aquifers Policy should not apply or that his application for an additional allocation comes within an exception by which the Commission will consider granting licences for small volumes (up to 50 000 kL/annum) in extenuating circumstances and for purposes relating to the public good. He also argued that the Commission's statutory licensing discretion should be exercised to grant his application because of his personal circumstances.
4 The Tribunal examined the evidence and submissions presented by the Commission about the management of the Leederville Aquifer and the administration of this application in light of the Confined Aquifers Policy. It also examined the applicant's evidence about his application and his submissions about the Policy, his personal circumstances and the exercise of the Commission's statutory powers. The Tribunal concluded that the Confined Aquifers Policy was applicable to the determination of the applicant's application, that the application should not be granted under the extenuating circumstances exception of the Policy, and that the applicant had not shown that his personal circumstances presented cogent reasons for departing from the Policy in exercise of the statutory authority under the  Rights in Water and Irrigation Act 1914  Schedule 1, cl 7(2).

The Water Resources and the Confined Aquifers Policy

5 The applicant and his wife own Lot 110 on Plan 43230 on Certificate of Title vol 2573 folio 851 (the land), which is located in the Central Swan Sub area (CSS) of the Swan Groundwater Area (SGA) and within an area proclaimed as a management area under the Rights in Water and Irrigation Act 1914 (WA) (RiWI Act). It is, therefore, a requirement to hold to a licence under s 5C of the RiWI Act to take and use groundwater on the land.
6 The groundwater resources to be found in the CSS are the Superficial Aquifer, the Leederville Aquifer and the Yarragadee Aquifer as was presented in evidence by the expert witnesses for the Water and Rivers Commission (Commission), and is not challenged by the applicant. The Superficial Aquifer is the uppermost, occurring at the surface. It is underlain by the Leederville Aquifer, which is in turn underlain by the Yarragadee Aquifer. The latter two are regarded as "confined aquifers" because they are generally separated by "aquicludes", which prevent the aquifers from directly interacting except in areas where these confining layers are absent. Groundwater recharges the lower aquifers by flowing between the aquifers where the confining layers are absent. The confining layers are mostly absent in the area of the Gnangara Mound, to the west of the CSS, and that is the location of most recharge of the Leederville Aquifer. Some recharge of the Leederville Aquifer also occurs beneath the Dandaragan Plateau, which lies to the north of the SGA. However, it is believed that the Superficial Aquifer is interacting with the Leederville Aquifer in the CSS and is providing recharge to it. This recharge may present a problem because pockets of water in the Superficial Aquifer are of poor quality and may contaminate the better quality freshwater of the Leederville Aquifer. Overall, the Leederville Aquifer has a low rate of flow and a low rate of recharge.
7 In the CSS, the Superficial Aquifer is more than 100% allocated, so the Commission will not issue any new allocations to take water from it. The licence currently authorises the applicant to take water from the Leederville Aquifer and his application for an additional allocation also relates to that aquifer. His application has been assessed and determined in light of the Confined Aquifers Policy. Before considering the terms of that application and the Commission's decision, it is helpful to describe briefly the history, objectives and provisions of the Confined Aquifers Policy and how it amends the allocation limits of the Commission's 1997 Groundwater Allocation Plan for the Swan Groundwater Area (1997 Plan): "Water and Rivers Commission Report No. WRAP 12, 1997".
8 When the SGA was proclaimed in 1975, the Leederville Aquifer was considered to be nearly fully allocated. When the 1997 Plan was made, it was believed that groundwater abstraction from the Leederville Aquifer in the SGA was exceeding annual recharge but that assuming no new abstraction from this Aquifer "the potentiometric surface will reach equilibrium over time from induced additional groundwater throughflow": 1997 Plan p 17. Whilst the Aquifer as a whole in the Area was believed to be 93% allocated, it was considered to be only 50% allocated in the CSS. The allocation limit for the sub area was set at 800 000 kL. At present, licensed allocations from the Leederville Aquifer in the CSS are officially just under 70% of the 1997 allocation limit.
9 By 2000, however, the Commission was becoming concerned about the increasing demands from public utilities and private industries to access groundwater resources of the Leederville and Yarragadee Aquifers as the Superficial Aquifer had reached full allocation status. Monitoring data suggested that both the Leederville and Yarragadee Aquifers were stressed, as potentiometric heads had been falling over a number of years in response to pumping and climatic conditions. The Commission, in conjunction with the Water Corporation, began developing a computer modelling system (Perth Regional Aquifer Modelling System) that would enable it to better determine allocation policies and limits. Until that work is completed, the Commission has adopted a policy to limit groundwater allocations.
10 In December 2000, the Board of the Commission adopted the Interim Policy on Assessing the Leederville and Yarragadee Aquifers in Perth (Interim Policy). This Interim Policy purported to override any other previous policy or strategy relating to these water resources in the Perth area. It provided that the Commission would honour past commitments but that it would make no new long term allocations from the two confined aquifers, "other than for extenuating circumstances". The exceptions of "extenuating circumstances" were defined to be applications for small volumes (up to 50 000 kL/year) for four purposes related to public good. Those four public good purposes are described as: domestic supplies, high economic value, environmental use and public purposes such as school ovals, fire fighting and police. However, to obtain an allocation for one of these purposes the applicant "must demonstrate to the satisfaction of the Commission that there is no other groundwater or surface water source that can be utilised instead".
11 The Interim Policy was developed by the Commission in 2000-2001 with minimal public consultation. The third statement of evidence in the proceedings by Ms Carolyn Hills, Senior Natural Resources Management Officer in the Commission's Swan Goldfields Agricultural Region Office, shows that the Interim Policy was approved in principle by the Board of the Commission in September 2000, approved as a text by the Board in December 2000, proposed for printing in March 2001, notified to the Minister on 23 August 2001 and approved for Internet and Intranet publication in November 2001. There is evidence that it had been applied to licensing decisions by August 2001. Although it is not clear when there was initial broad publication of it to the public, we may assume that it would have been accessible to them by early 2002. The ease of accessibility then is not known.
12 The Interim Policy was reviewed in 2003 and approved in revised form as the Policy on Accessing the Leederville and Yarragadee Aquifers in Perth (Confined Aquifers Policy). It was re-endorsed by the Board of the Commission in 2005.
13 Although there are exceptions provided, the Confined Aquifers Policy is intended to operate as an allocation limit that overrides any allocation limits expressed in the 1997 Plan for the Leederville Aquifer. The reasons for maintaining this policy limit are evidenced in the statement by Dr Ryan Vogwill, a hydro geologist working for the Commission, explaining the results of the 2005 review of aquifer performance in the SGA by S L McHugh of the Department of Environment. Dr Vogwill states that the monitoring bores in the deep Leederville Aquifer "are all showing a steady decline in potentiometric heads since the time of bore installation". The deep monitoring bore closest to the applicant's land (AM 31A) shows a distinctly declining trend with the head dropping 25 metres since 1975. The closest monitoring bore to the applicant's land is screened in the upper part of the Leederville Aquifer (3-87). It shows slowly declining heads, which Dr Vogwill suggests could be because the upper Leederville in this area is being replenished by water coming down from the Superficial Aquifer and also by water moving up from the deep Leederville Aquifer (which is under higher pressure). Dr Vogwill's opinion was that "it is most likely that the upper Leederville in this area is in contact with the Superficial and that therefore impacts on the upper Leederville are being masked to some extent by recharge from the Superficial". As a consequence of these monitoring data, the McHugh review recommends adopting revised allocation limits, reducing the present SGA limit of 6.13 GL/yr to 2.10 GL/yr. In addition, McHugh says that there are many licensed bores in the SGA that are incorrectly assigned to aquifers. It is estimated that approximately 960 000 kL/yr of water allocation that is currently assigned to other aquifers (principally the Mirrabooka Aquifer) should be assigned to the Leederville Aquifer, and that many of these bores are in the CSS. Dr Vogwill concludes that "historical allocation limits were not sufficiently precautionary. Management actions to reduce abstraction in the Leederville Aquifer are now required to stabilize declining groundwater heads".
14 The evidence of Dr Vogwill and of Mr Andrew Lawson, the Commission's Acting Program Manager, Gnangara and Jandakot, described the management problems that could arise if the allocations were not limited in accordance with the Confined Aquifers Policy. For instance, some users of groundwater have already had to lower their pumps because of declining groundwater levels. Increases in abstraction could degrade the aquifers by causing the movement of existing saline groundwater into fresh water areas currently used for abstraction, and the decline in groundwater pressures increased the potential for that movement of groundwater. However, at this stage, the understanding of the saline groundwater distribution in the Leederville Aquifer is not sufficient to ascertain the areas most at risk, other than by reference to the falling potentiometric heads. Continued over-abstraction may result in the government having to reduce groundwater entitlements.
15 Although the Commission has not yet revised the groundwater allocation limits in the SGA, the belief that present allocations are at or in excess of sustainable abstraction levels means that the Commission is pursuing a policy of recouping unused allocations upon renewal or transfer of licences and of not re-allocating them. For these reasons, the Confined Aquifers Policy creates a presumption against allocation for ordinary horticultural use.
16 Allocations for domestic supply are one of the exemptions in the Confined Aquifers Policy. By s 26A of the RiWI Act, a person is prohibited from constructing an artesian well without a licence under s 26D of the Act, and a bore into the Leederville Aquifer falls under that provision. Similarly, a person who takes water from an artesian well must have authority under a s 5C licence. However, the Commission has adopted the policy of always granting s 5C licences to take up to 1500 kL/yr of water from the Leederville Aquifer for "domestic and ordinary use" and stock watering. This policy is said to reflect the "right to water for life" embodied in the statutory exemption that permits a person to take ground water without a licence from a non-artesian well for domestic and ordinary use and stock watering: see s 25A of the RiWI Act, which exempts from licensing the taking of water for these purposes in "prescribed areas", and s 26C of the RiWI Act authorising the "Rights in Water and Irrigation Exemption and Repeal (Section 26C) Order 2001", Government Gazette, WA, 21 December 2001, No. 251, 6551-6552, which exempts from licensing the taking of water for these purposes in "proclaimed areas". The notion of a right to water for basic living arguably draws on the common law traditions of riparian rights, which are now codified as statutory rights to take water from surface water resources for domestic and ordinary use and for watering stock: RiWI Act s 9, s 10, s 20 and s 21. In the ground water context, this right to water would normally be exercised to abstract water from the Superficial Aquifer but, as it is fully allocated in the SGA and water of a suitable quality for domestic use may not be found there anyway, the Commission has adopted the policy of granting licences to take water from the Leederville Aquifer for domestic and ordinary use. However, these "right to water" licences tend to be allocated on a geographically dispersed basis and contrast with the increased allocation sought by the applicant for horticultural purposes.

The applicant's land and the licence

17 The applicant originally acquired a licence to take and use water on the land in circumstances that were a little irregular. The Commission performed its licensing functions in a manner generous to him and the former holder of the licence.
18 The applicant and his wife purchased the land from Ian and Margaret Symington on 25 October 2002, that being the date of the transfer. Ian Symington had previously held GWL 0059430, which was issued in April 1997 and expired on 4 April 1999. It authorised the licensee to take 12 700 kL of groundwater from the Leederville aquifer (though the source was specified in an accompanying letter from the Water and Rivers Commission rather than in the licence) for the purposes of irrigating 3.5 hectares of wine grapes and stock watering.
19 On 1 October 2002, Mr Symington applied for a new licence in the same terms as the one that had expired. In October 2002, the Commission appears to have re-issued Mr Symington the expired licence, GWL 59430(1) with an expiry date of 4 April 1999, and to have granted a new licence, GWL 151383(1), with a licence period of 28 October 2002 to 1 November 2004. Both of these licences were in the same terms as the original licence. The new licence was granted on the basis that there was an "existing licence – historical usage". The approval process checklist for the new licence notes that the "Confined Aquifers Policy" (a reference to the Interim Policy) applied and meant that "no new licences or increases in allocation permitted from confined aquifer".
20 On 2 October 2002, the Applicant lodged an application dated 1 October 2002 for the transfer from Mr Symington of GWL 59430. Although the groundwater survey sheet completed by the Commission's officer on 23 October 2002 showed that there appeared to be irrigation of only 2.3 hectares of pasture and no irrigation of grapes, this transfer was completed on 30 October 2002 by the Commission's issue to the Applicant of GWL 151383(2) with a term of 30 October 2002 to 1 November 2004. This licence authorised the applicant to take 12 700 kL of water from the Leederville Aquifer for the purposes of irrigating 4.2 hectares of wine grapes and stock watering. The increase in the area of vines was due to a revision of the amount of water required to irrigate vines in that location. It was a condition of the licence that the irrigation project be completed by 1 November 2004.
21 As to these facts concerning the transfer of a water entitlement from Mr Symington to the applicant, the Tribunal would make these observations, though it is not necessary to draw a conclusion on them. First, the issue of GWL 151383(1) to Mr Symington in October 2002 could be seen as the grant of a new licence separate from GWL 59430(1), rather than the renewal of an expired licence under the RiWI Act, Sch 1, cl 22. The Commission could have taken the approach in October 2002 that, three and a half years after the expiry of the initial licence, Mr Symington had no existing licence and no legitimate historical use that would support the grant of a new licence to him consistently with the Interim Policy. Secondly, it may be that when the new licence was issued to Mr Symington on 28 October 2002 he was no longer eligible to hold the licence under Sch 1, cl 3, as the Symingtons had transferred the land to the applicant and his wife on 25 October 2002.
22 The Commission's administration of the licence transactions was clearly designed to secure the transfer of a water entitlement from Mr Symington to the applicant, when the circumstances may have suggested that the applicant should have made his own application for a new licence and that the Commission should have rejected it in accordance with the Interim Policy.
23 Nonetheless, the Commission may have seen various reasons to assist the transfer of the water entitlement. The Symingtons constructed a bore on the land in May 1997, and made some use of the water entitlement. The land is within the Swan Valley Rural Zone, Area B under the Swan Valley Planning Act 1995 (WA). By s 8 of that Act, the planning objectives for Area B include the protection of viticulture, the provision of water for viticulture and horticulture and the discouragement of other activities that have high water demands. When the applicant was preparing to acquire the land and the licence, he clearly intended to develop an agricultural enterprise and he discussed this intention with an officer of the Commission. According to the applicant's evidence, the Commission's officer told him that for "ease of transition ... it would be best to put the current activities down as per the previous owner's proposed activities" and to advise the Commission of any changes in due course.

The licence amendment application and the Commission's decision

24 When purchasing the land in 2002, the applicant proposed to use the groundwater in accordance with the purposes stated in the licence; namely, to grow 4.2 hectares of wine grapes. The applicant says that he "did actually make enquiries with the Commission at the time of the land purchase and was informed that there was a possibility that he would not be granted any further allocation initially, but that there were many avenues of appeal via the Commission and further to a higher body". Whilst the applicant says that he did not consider this response to be a "total loss of any hope of receiving an allocation" should he change his business program, it cannot be said that the Commission made any representation that he might expect to receive an increased allocation. The applicant says further that, at that time, the Commission's officer did not advise him of the Interim Policy. Though the Commission's counsel questioned this at the hearing, there did not appear to be evidence adduced to controvert this statement by the applicant. However, the Commission stated to the applicant in a covering letter dated 29 October 2002 sent with the licence "that your water requirements must remain within the specified annual water entitlement of 12 700 kL as no further water allocations are permitted from the Leederville aquifer and the superficial aquifer is currently fully allocated".
25 Across the course of the next two years, the applicant's ideas for productive use of the land and water entitlement changed for various reasons, including his family and employment circumstances. He did not develop the irrigation of the wine grapes, as stipulated in GWL 151383(2). On 26 August 2004, officers of the Commission carried out a survey of the land because the licence was due for renewal before 1 November 2004. The survey revealed that no development of irrigation had commenced. The applicant's wife told the officers that they were going to change their crop to citrus and had already started planting citrus trees. The applicant also says that in 2003-2004 he and his wife were building a house on the land and settling into the local community. In addition, he had maintained his employment with Landmark and was spending a lot of time travelling, which limited his opportunity to develop the land. However, it would appear that a major reason for not developing the wine grapes was that the applicant was changing his mind about what would be the most commercially viable crop to grow so that he could work at home and support his family primarily from an agricultural enterprise on the land.
26 On 14 September 2004, the applicant applied to renew the licence and to amend it so as to permit the planting of 4.2 hectares of citrus. It appears that officers of the Commission contacted the applicant to inform him that his proposed crop required a lot more water than wine grapes. On 11 October 2004, the applicant wrote to the Commission amending the application to seek an additional 27 800 kL/year of water to irrigate citrus, which would make his total allocation approximately 40 570 kL/year. Mr Whittaker, an officer of the Commission, contacted the applicant on 12 October 2004 to explain the application of the "Confined Aquifers Policy" to the Leederville Aquifer (the water source under the licence), the process of refusing an application and the right of appeal. Mr Whittaker also discussed with the applicant alternative means of obtaining extra water for his development, including "trading and transfer, grey water use, stormwater collection and the opportunity to irrigate a larger area if he installs a meter and supplies regular readings". The applicant responded that he would pursue the application process and make his best submission in support of the application. He did not wish to pursue alternative means of obtaining water.
27 The Commission's process of considering and finally rejecting the application for renewal and amendment of the licence was conducted from November 2004 through to July 2005. The process is based on RiWI Act, Sch 1, clauses 5 – 10. The extensive documentation of the Commission's decision-making process shows that the Commission followed that process assiduously. In February 2005, the applicant sought to amend the application for an increased allocation by proposing to irrigate 2 ha of vegetables and 1.5 ha of citrus, but in May reverted to his original amendment application because it was explained to him that his revised amendment proposal would require yet more water. Ultimately, the Commission made its decision on the original renewal and amendment application of September/October 2004. The applicant mounts no specific challenge to the process by which the Commission made its decision. The applicant's arguments are addressed more to the grounds on which the Commission decided to refuse the application.
28 The principal reason for the Commission refusing the application for an increased allocation of 27 870 kL/year was that the proposal was inconsistent with the Confined Aquifers Policy. This reason was given in both the letter by the Regional Manager on 12 January 2005 inviting comment from the applicant on the Commission's proposed decision to refuse the application, and in the letter by the Regional Manager on 22 July 2005 informing the applicant of the Commission's decision to reject the increased allocation. The Commission issued the applicant with GWL 151383(4), i.e. the Licence, which was amended to authorise the applicant to take 12 700 kL/year to irrigate .5 ha of lawns and gardens, to irrigate 1.1 ha of citrus trees and to water stock. The Licence has a term of two years (22 July 2005 – 22 July 2007). It includes conditions that the irrigation project shall be completed by 22 July 2007 and that the licensee shall install and maintain a cumulative water meter to record the volume of groundwater drawn monthly and to report that information to the Commission each year.
29 In addition to the Regional Manager's letter of 22 July 2005, the Commission's Director of Regional Services provided a written statement of reasons for the decision to refuse the application for an increased allocation, which was given under s 21 of the State Administrative Tribunal Act 2004 (WA). The statement identified the Confined Aquifers Policy as relevant to the decision and acknowledged the requirement to have regard to the factors listed in RiWI Act, Sch 1, cl 7(2). It set out in paragraphs 18 – 23 a summary of factors considered and brief reasons in response to consideration of various relevant factors. Those reasons referred to:

• the public interest in potential employment on the proposal, and promotion of horticulture in the State;

• ecological sustainability and environmental acceptability, with reference to the Confined Aquifers Policy;

• the extenuating circumstances provision in s 2.4 of the Confined Aquifers Policy; noting that "the private benefit to the Applicant in granting the application does not have sufficient benefit to the public interest to justify a departure from Commission policy" and that the decision was "consistent with four previous refusals by the Commission in the relevant Central Swan groundwater sub area, three of which related to the superficial aquifer and one of which related to the Leederville Aquifer"; and

• prejudice to current and future needs for water by putting additional pressure on a resource that is in the Commission's assessment already stressed.

30 The Commission's response on these statutory factors was elaborated before the Tribunal in the Statement of Evidence of Carolyn Hills, dated 23 January 2006. It will be adequate to refer to these enhanced reasons in response to the applicant's arguments in these review proceedings.

The applicant's arguments on review

31 The applicant argued, in the alternative, that

1. the Confined Aquifers Policy should not apply to his application because it is inconsistent with the RiWI Act and / or that it has not been applied consistently;

2. his application for an additional allocation comes within the exception to the Confined Aquifers Policy by which the Commission will consider granting licences for small volumes (up to 50 000 kL/annum) in extenuating circumstances and for purposes relating to the public good; and

3. the Commission should grant his application on compassionate grounds having regard to his personal circumstances.

Whether the Aquifer Policy applies

32 What is the appropriate application of the Confined Aquifers Policy to the determination of this application? As the Policy is not a statutory policy, the Tribunal is not bound by s 28 of the State Administrative Tribunal Act 2004 to have regard to it.
33 Notwithstanding this, the Commission made various submissions on the authority of Re Drake and Minister for Immigration and Ethnic Affairs (No.2) [1979] AATA 179; (1979) 2 ALD 634 at 636, 639 and 641 arguing that the Tribunal should have regard to the Policy and apply it unless the applicant can show cogent reasons for departing from the Policy to make the correct and preferable decision in his case.
34 We agree with the submissions made by the Commission and believe that their essential effect is well summarised by another passage from the judgement of Brennan J at 645 in that case. Speaking as President of the Administrative Appeals Tribunal, his Honour said:

"When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny."

35 In another passage earlier on the same page, his Honour explained what would be a cogent reason for not applying a general policy. "If it were shown that the application of ministerial policy would work an injustice in a particular case, a cogent reason would be shown, for consistency is not preferable to justice".
36 Brennan J's approach is applicable to the role of this Tribunal determining this case, where the discretionary power to licence the taking and use of water and the power to make a general policy are vested in the Commission. The Tribunal will apply the Policy unless the applicant can show cogent reasons for not accepting the Policy or for not applying it to his case. A similar approach has been adopted in relation to non-statutory policies in the application of town planning controls: see Clive Elliott Jennings and Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 at [24].
37 The applicant made two submissions that the Confined Aquifers Policy should not be applied because it was inconsistent with the RiWI Act.
38 First, counsel for the applicant made a brief oral submission that the Confined Aquifers Policy should not be applied because it was not made according to Part III, Div 3D of the RiWI Act relating to "plans for management of water resources". This argument is misconceived. The Commission is empowered to make a statutory plan "if in the opinion of the Commission it is desirable to do so": s 26GU(1)(b). The Commission has no duty to prepare a statutory plan unless directed by the Minister to do so: s 26GU(1)(a). As there was no relevant ministerial direction, it was within the discretion of the Commission to prepare a non-statutory policy in exercise of its functions under s 10 of the Water and Rivers Commission Act 1995 (WA). Even though the RiWI Act s 26GU(2) and s 26GZE say that a plan does not have effect unless it is approved under the Act by the Minister or the Commission as the delegate of the Minister, this does not mean that a non-statutory plan or policy can have no effect.
39 Secondly, the applicant's amended Statement of Issues, Facts and Contentions, paragraphs 15-17, assert that "the Tribunal cannot have regard to the Commission's Policy as it is clearly inconsistent with the requirements of the Act". The applicant cited Singer v Statutory & Other Offices Remuneration Tribunal (1986) 5 NSWLR 646, which is a good illustration of the proposition that a Tribunal must not have regard to a government policy that is inconsistent with the terms of a discretionary power conferred by legislation. The applicant's arguments as to the inconsistency of the Policy with the RiWI Act are developed in paragraphs 16 and 17.

"16. In having recourse to the Policy alone (as is acknowledged in this and all other cases) the decision maker is not considering the provisions of Clause 7(2) of Schedule 1 to the Act, nor any other "relevant consideration" as required under that clause. Further, distinctions are drawn within the Policy as to "domestic use" and "high economic value" that are not matters reflected in the Act.
"17. The Policy also discriminates on the basis of drawing distinctions between large and small business, by determining that the latter is of no public benefit whatsoever."

40 There appear to be three arguments here. The first argument that the Commission has had recourse to the Policy alone is unsustainable in light of the description of the Commission's reasons for decision given above, and the following points. The Commission's record of the initial licence application assessment in November 2004 was signed by Ms Hills and records the consideration of the relevant statutory criteria. The same statutory criteria and more were considered by Ms Hills in paragraph 6 of her Statement of Evidence to the Tribunal dated 23 January 2006. Besides noting that the approval of the application would involve a departure from the Confined Aquifers Policy, Ms Hills statement records the following assessments of the statutory criteria in Sch, clauses 7(2)(d) and (e).

"6.2(d) [T]he grant of the application may prejudice the current and future needs for water by putting additional pressure on a resource that is in the Commission's best assessment, already stressed. This adverse effect could be the result of water level decline and / or saline intrusion as well as by potentially increasing the likelihood of water entitlement reductions. In the event of across the board reductions to reach a new allocation target, the grant of a further allocation may mean that existing users would suffer a greater overall reduction than they otherwise may have done.

...

6.2(e) The grant of the application may have a detrimental effect on existing users by placing additional pressure on an already stressed resource. The reasons set out in 6.2(d) above are applicable here."

41 The second argument asserts the use of concepts that are not reflected in the Act. The concept of "domestic use" and the notion in the Policy of providing water allocations especially for that purpose have likely been drawn from the RiWI Act (eg s 9, s 10, s 20, s 21, s 25A and s 26C) and the traditions of water resources law explained in par 13 above. It is not inconsistent with the Act.
42 The concept of "high economic value" does not have such obvious origins in water law and the RiWI Act. In fact, the RiWI Act provides sparse guidance on the criteria to be applied for determining priority between competing applications for scarce water resources. The s 4 objects include the management of water resources for their sustainable use and development and for the protection of their ecosystems and environment, and the orderly, equitable and efficient use of water resources. One could mount an argument that the equitable use of water resources suggests that water should be allocated to promote equality of socio-economic opportunity, but that theme is not evident in the licensing provisions of Sch 1, clauses 4-14. The prevalent themes in those provisions are eligibility and suitability of the applicant to hold a water licence and, in cl 7(2), sustainability of the natural environment and other authorised uses of water, as well as consistency with government plans and policies.
43 As a matter of historical practice, the primary, but not exclusive, criterion applied in Western Australia to the resolution of competition for the allocation of water has been the "first in time" principle; that is, the first person to make a proper licence application has obtained the grant in priority to other applicants, regardless of the merits of the proposed uses as outlined in Gardner A, "Water Resources Law Reform in Western Australia – Implementing the CoAG Water Reforms", (2002) 19 Environmental and Planning Law Journal 6 at 22.
44 The best means of ascertaining the "high economic value" of the proposed use of the water may, however, be found in the specific provisions in Sch 1 of clauses 40 – 41 for the allocation of water upon the payment of a premium. Thus, whilst the phrase "high economic value" has no overt statutory origins, the Tribunal does not accept the submission that the use of the concept in the Confined Aquifers Policy is inconsistent with the RiWI Act.
45 The final argument was that the Policy also discriminates on the basis of drawing distinctions between large and small business. The text of the Policy provides no basis for this assertion. The Tribunal has also reviewed pages 32-35 of the transcript of oral evidence given by Ms Hills on 16 February when counsel for the applicant questioned her about the Commission's definition of "high economic value" and asserted that the Commission's approach was that it was not going to provide any further allocations for small businesses because it took the view that small businesses are not in the public interest. Taken as a whole, the Tribunal does not believe that Ms Hill's oral evidence supports the view that the Commission has adopted a discriminatory view or practice that a small business cannot satisfy the "high economic value" criterion. However, the apparent difficulty Ms Hill had in responding to the applicant's questions about this issue tends to show that this aspect of the Policy (allocating small volumes of groundwater for projects of high economic value in the public interest) is difficult to communicate and not easily understood. As discussed further below, it is an aspect of the Policy that should be reviewed.
46 The Tribunal concludes that the Policy is not inconsistent with the RiWI Act.
47 Alternatively, it was submitted for the applicant that the Confined Aquifers Policy was not a politically legitimate policy amendment of the 1997 Plan because it was made without public consultation and without ministerial approval. Whilst the benefit of public consultation is undoubted and may affect the weight to be given to a non-statutory policy, it is but one of five factors referred to in evaluating the significance of a non-statutory policy: Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR (WA) 1 at 16. In this case, it is understandable that, first, the Interim Policy and, later, the Confined Aquifers Policy were adopted by the Board of the Commission with minimal public consultation. They are, in a sense, "holding" policies pending the Commission's development of the Perth Regional Aquifer Modelling System and more reliable allocation limits. Given the nature of the interim cap on water allocations expressed in the interim Policy, it is arguable that public consultation on it would have excited numerous water licence applications aimed at beating the implementation of the Policy. Further, the 1997 Plan was itself only a non-statutory plan ultimately approved by the Board of the Water and Rivers Commission, the same body that has approved the Confined Aquifers Policy: the 1997 Plan p 2. We reject the applicant's argument that the allocation limits of the 1997 Plan should be applied in preference to the Confined Aquifers Policy. It would be expected, of course, that a plan to replace the Confined Aquifers Policy and set new allocation limits would be the subject of extensive public consultation and ministerial approval.
48 The applicant's main argument for not applying the Confined Aquifers Policy was that it had not been applied consistently and, therefore, should not be applied to the applicant. An aspect of this argument was that, when all the licensed allocations issued in the CSS since 2001 were added up, there was less water allocated under those licences than the amount of water recorded as allocated on the Commission's Water Resources Licensing System. It was suggested that this gap in the allocated water was available to be granted to the applicant.
49 The initial contention of inconsistency in the application of the Confined Aquifers Policy was the grant between 19 April and 4 July 2001 of six licence applications to abstract water from the Leederville Aquifer in the CSS, the applications having been made between January and April 2001. These applications sought allocations of between 11 000 and 16 550 kL/yr and, in most cases, the bores for abstracting the water were constructed after the grant of the licences, one as late as January 2004. As noted above, the Interim Policy was approved by the Board of the Commission in December 2000, so it would appear that the grant of these six licences was inconsistent with it. The Commission's explanation of this apparent inconsistency was that the central office policy section failed for up to six months to communicate the Interim Policy to the Swan Regional Office, which was responsible for determining the grant of the six applications. As a consequence, the Commission says, the allocations were made in ignorance of the Interim Policy. At the hearing on 6 February, the applicant questioned how this could be so, and requested to be shown copies of the Commission's files for each of the six applications to verify the Commission's explanation. Copies of the Commission's files were made available to the applicant and to the Tribunal. At the resumption of the hearing on 16 February, the applicant was not able to point to any evidence in the files that the Interim Policy had been considered by the Commission's regional officers in granting the six licences. The Tribunal's own perusal of the files arrived at the same result. In fact, in each case, the allocation made appears to have been the redirection of an application for an allocation from the Superficial Aquifer, which was fully allocated. The Tribunal concludes that the six licences were granted by the regional officers in ignorance of the Interim Policy. Whilst one may criticise the Commission for poor communication of the Interim Policy to its regional officers, the Tribunal concludes that the grant of these six licences does not demonstrate inconsistency by the Commission in the application of the Interim Policy and the subsequent Confined Aquifers Policy.
50 The second contention of inconsistency relates to the Commission's grant, since 1 January 2001, of twelve licences with allocations from the Leederville Aquifer of 1500 kL/yr or less for domestic, garden and stock watering, and fire fighting purposes. Only four of these twelve licences relate to the SGA and only two of them relate to abstraction of water from the CSS. Of the four licences, three clearly relate to domestic, stock and garden watering, and fire fighting purposes, which are the traditionally accepted purposes for which water has been allocated in recognition of the "right to water for life", explained earlier. Because s 5C(1) and s 5(2)(c) of the RiWI Act require the licensing of all water taken from an artesian well (i.e. a bore into a confined aquifer), the Commission has adopted a policy of granting licences to take water for domestic and ordinary uses from the Leederville Aquifer if no water is available from the Superficial Aquifer for these purposes. However, the fourth of these licences is a little different; it was granted to Bristile Operations Pty Ltd for 1500 kL/yr to irrigate 0.3 ha of landscaped gardens associated with its brick and roofing tile display area. It was not a domestic bore allocation, and thus not within that exception to the Confined Aquifers Policy. According to the evidence of Ms Hills, the Commission granted the licence because it was for a use equivalent to a domestic allocation for lawns and gardens, there was a commitment to install and monitor a cumulative water meter, there was no alternative supply, and the allocation was of high economic value. The Commission, therefore, saw the grant of the licence to Bristile as within another exception to the Confined Aquifers Policy; a small allocation for a high economic value purpose.
51 The applicant mounted a strong argument that the grant of the Bristile licence evidenced discrimination against small businesses in favour of large businesses and was inconsistent with the policy advice given to the applicant that it should consider seeking an alternative source of water, including by water trading. It was suggested that a large business like Bristile could have afforded to purchase a water entitlement. Although the Confined Aquifers Policy contains no discussion of water trading, not even as an appropriate response to the denial of a water allocation under the Policy, it is possible to see the "high economic value" exception as inconsistent with the basic premise of the Policy that there be no new commercial allocations. One would normally anticipate that the high economic value of a water use is best tested by the market re-allocation of water from a lower economic value use. This application of the Policy to the Bristile licence may identify an aspect of the Policy that is due for review. However, it is not enough by itself for the Tribunal to conclude that the Policy has not been consistently applied and should not be applied to the applicant in this case.
52 The third allegation of inconsistency was made in respect of a licence granted in July 2002 for 13 150 kL/yr in the Jarrahdale sub area of the Perth Groundwater Area. According to the statement by the Commission's Officer, Ms Carolyn Hills, on 23 January 2006, the Leederville Aquifer in that location, "if it exists at all, is very shallow and unlike the Leederville in other areas". As a result, the Commission's officers appear to have considered that what would normally be regarded as a superficial aquifer bore should be constructed as if it was one accessing the Leederville Aquifer. As a precautionary measure, they required the bore to be grouted to prevent the movement of water between aquifers. Under the Commission's rules, a licence with a grouted bore must be recorded as accessing an artesian aquifer, and so this licence was recorded as accessing the Leederville Aquifer. Whilst Ms Hill's statement was the only evidence available regarding this allocation, we see no reason to doubt the effect of it. Jarrahdale is a long way from the CSS and the Tribunal believes that this licence cannot be seen as significant evidence of an inconsistent application of the Confined Aquifer Policy.
53 Besides the evidence of the licences that have been granted, there have also been a number of licences that have been refused. In her original statement of evidence on 23 January 2006 and her further statement of evidence on 2 February 2006, Ms Hills referred to a number of licence applications that have been refused. At one point, Ms Hills states that she has been involved in reviewing 15 licence applications in the SGA in the past twelve months, eight of which have been formally refused and seven of which are proposed for refusal. It is not clear what proportion of these applications were for allocations from the Leederville Aquifer in the CSS, but there is evidence that the Commission has developed a practice of regularly refusing applications for allocations of freshwater from both the Superficial and the Leederville Aquifers. There would, therefore, need to be cogent reasons for the granting of this application when there seems to be a fairly consistent practice in refusing new allocations from the Leederville Aquifer.
54 In addition to the licences mentioned above, Ms Hills further statement of evidence on 2 February 2006 notes that there have been two other sets of licences issued for public purposes to abstract water from the Leederville Aquifer since 1 January 2001. Two licences were issued to the Water and Rivers Commission for supplementation of wetlands to comply with Ministerial Conditions under the Environmental Protection Act 1986 (WA) and ten licences for public water supply issued to the Water Corporation. The applicant did not question the issue of these licences in the context of the Confined Aquifers Policy.
55 The final consistency point raised by the applicant concerns the "gap" in the volume of licensed water allocations from the Leederville Aquifer in the CSS since 2001 compared with the amount of water recorded as allocated on the Commission's Water Resource Licensing database (WRL) over the same period. Counsel for the applicant identified this gap in the latter part of the hearing on 6 February 2006 and suggested that this water was available to be granted to the applicant. Ms Bronwyn Ray, the Commission's Program Manager, Water Licensing and Support Unit in the Perth Central Office, gave a further statement of evidence dated 14 February 2006 explaining why the "balance" of water allocated on the WRL database changes both upwards and downwards despite there being no new licences issued. The reasons for changing the balance of water allocated included:

• "data cleansing" – updating the register to include new information, such as when it is discovered that a bore is deeper than previously thought or that aquifer presence is different, so that a water allocation has to be re-allocated to a different aquifer;

• "rounding" of water allocations – especially for stock watering purposes;

• Adjustments to record the issue of a new licence in place of an expired licence (for example, where there has been a trade of water rights), but where the continuing use means that there has been no new allocation;

• Recoupment of un-used water entitlements on renewal, amendment or transfer of water licences; and

• Cancellation of licences for various reasons.

56 Ms Ray's further statement of evidence included an attached report of the adjustments to the water balance of the WRL database from February 2001 to November 2005. Whilst there are some adjustments that are described as "unaccounted for – likely to be data cleansing activity (movement of water between resources)", the Tribunal sees no cause for concern in the adjustments of the water balance recorded there. At the resumption of the hearing on 16 February 2006, the applicant did not pursue the issue of the "gap" any further.
57 The Tribunal concludes that there is not sufficient evidence of inconsistency in the Commission's application of the Confined Aquifers Policy to suggest that the Policy should not be applied to the applicant.

Whether application is within the extenuating circumstances exception of the Policy

58 Section 2.4 of the Confined Aquifers Policy is titled "Extenuating circumstances" and says that the Commission

"will consider further applications for accessing the fresh groundwater resources of the Leederville or Yarragadee aquifers if they are for the following purposes:

• domestic supplies

• high economic value

• environmental use

• public purposes such as school ovals, fire fighting, police,

and if the volumes requested are small (up to 50,000 kL/year) and the applicant demonstrates that there are no other suitable alternative groundwater or surface water source [sic] available.
Even though the aquifers are assessed to be fully allocated, small volumes of groundwater may still be licensed in extenuating circumstances for purposes related to the public good. This may include public purposes, domestic supplies, environmental use and for high economic value purposes."

59 The Macquarie Dictionary definition of "extenuate" suggests that extenuating circumstances are those which serve to make a fault or offence less serious. In this context, the extenuating circumstances of an application for a water allocation would serve to make the water allocation that is otherwise exacerbating the problem of over-allocation less serious by some compensating public good benefit.
60 The applicant says, in his letter of submission accompanying his application to the Tribunal, that his "personal situation alone is extenuating". He lists the circumstances of his wife's injury from a car accident in 1998, the special needs of three of his six young children, and his need to be able to earn an income primarily from an activity based at home. He argues that it would be better for him to earn an income from his proposed irrigation enterprise than to seek social welfare payments at public expense.
61 The Commission's response to the applicant's application for review, filed on 16 September 2005, argues that these sorts of personal circumstances are not the "extenuating circumstances" contemplated by the Confined Aquifers Policy. The Commission made the following points:

• Under the Policy, private commercial benefit is only a consideration that goes to the public interest where it is of high economic value, and the Commission did not consider the applicant's proposed enterprise to be of high economic value;

• The refusal of an application for an entitlement for commercial purposes does not place the applicant in any different position from other persons seeking an allocation from the relevant aquifer; and

• Personal circumstances of a licence holder are not extenuating circumstances under the Policy; decisions about private commercial enterprises must be made subject to the availability of water.

62 In summary, the Commission is saying that a licensee's personal circumstances cannot be "extenuating circumstances", and that an application for water for a private commercial project could only be seen as within the "extenuating circumstances" if it were of high economic value so as to present some public good value.
63 In reply on 30 September 2005, the applicant asserted that his proposed citrus orchard development was within the extenuating circumstances exception because it would provide an increased supply of citrus from new rootstock in the Swan Valley, near to the metropolitan market. He also pointed out that the value of a farming enterprise would depend on conditions from year to year. In October 2005, the Tribunal ordered the Commission to give further written details of the meaning of "high economic value". The Commission's Manager of the Water Licensing Branch provided this written description on 21 October 2005. Some of the key points were that:

• a small horticultural activity does not have high economic value in a general economic sense because horticulture is widespread in the State,

• horticulture does not, compared to other industries, produce a significant economic return per unit of water,

• comparisons between different horticultural products do not appear to indicate differences that are sufficiently significant to characterise one small horticultural activity as being of 'high economic value' compared to the rest,

• the meaning of "high economic value" needs to be defined narrowly in the context of a policy that prohibits abstraction from an aquifer and provides a limited range of exceptions related to public good, and

• for allocations up to 50 000 kL/year to be considered of high economic value, "there must be present some significant and relatively unique feature which clearly distinguishes it from other competing uses in terms of economic value and contribution to the "public good".

64 The Commission mentioned a landmark tourist development in the Swan Valley as an example of a water allocation of high economic value but, given the land use zoning applicable to the applicant's case, it is not clear how pertinent such an example is.
65 With respect to both parties, these attempts to define a high economic value activity contributing to the public good are not all that helpful to the Tribunal in determining this application. Whilst the applicant's proposed project is a worthy aspiration, the Tribunal is not persuaded that its likely economic value is sufficient to compensate the community for the cumulative harm to the problem of over-allocation of the water resource. Also, the Tribunal considers that there are good reasons to suggest this aspect of the Policy is poorly conceived and contentious to apply, as is evidenced by the licence granted to Bristile. Were the Tribunal to hold that there was approximately 30 000 kL / year available for allocation in the CSS to an economically valuable enterprise, it would remit the matter to the Commission with the recommendation that any allocation be auctioned or otherwise processed under the RiWI Act Sch 1, clauses 40-41 in a way that would more transparently identify the economic value of the application: State Administrative Tribunal Act s 29. This manner of allocation would also much better protect any incipient trade in water resources that the Commission is trying to foster as an alternative to new allocations granted by the Commission.

Whether application should be granted on compassionate grounds /or personal circumstances

66 The Tribunal's conclusion on allocations in extenuating circumstances under the Confined Aquifers Policy does not mean that the applicant's personal circumstances described earlier are irrelevant to the determination of his application for an increased water allocation. If personal circumstances are relevant considerations under the RiWI Act for determination of applications for water allocations, then they may amount to cogent reasons for departing from the Policy to make the correct and preferable decision in this case.
67 Does the RiWI Act require or permit the Commission and the Tribunal to take into account the applicant's personal circumstances in determining this application under Sch 1, cl 23? Clause 23(2) makes applicable to the determination of an application for the amendment of a licence the provisions for the initial application process, including cl 7. There is nothing in those or any other provisions of the RiWI Act that expressly requires the consideration of personal circumstances of hardship and the desire to earn an income from an irrigated agricultural enterprise. Whilst the prevalent theme of the s 4 objects is the ecologically sustainable management of water resources, it may be arguable that the "sustainable use and development [of water resources] to meet the needs of current and future users" and promotion of the "orderly, equitable and efficient use of water resources", incorporate considerations of personal needs and social equity into the considerations that are relevant to the Commission's performance of the allocation functions. Thus, although Sch 1, cl 7(2) provides that, in exercising its licensing discretion, "the Commission is to have regard to all matters that it considers relevant, including [certain specified matters]" (emphasis added), it may be arguable that the s 4 objectives impliedly permit the consideration of personal circumstances. At least, it is arguable that the terms of cl 7(2), read with the s 4 objects, permit the Commission to consider personal circumstances if the Commission considers that they are relevant to the determination of a licence application: Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492. As the Commission accepted that personal circumstances could be relevant to determining allocations for the purposes of this case, the Tribunal accepts this may be so.
68 What weight should be given to the applicant's personal circumstances in determining this application? Counsel for the applicant argued, relevantly, that the Commission:

1. Simply applied the Confined Aquifers Policy and did not consider the full range of considerations that it could do under the RiWI Act, including personal circumstances; and

2. Could exercise its powers to reduce entitlements of other licensees so as to make available water to allocate to future users, one of whom was the applicant.

69 As discussed earlier, the first assertion is unsustainable as a general proposition. However, there is the further question here whether the Commission considered the applicant's personal circumstances. The Commission's record of the initial licence application assessment in November 2004 was signed by Ms Hills and records the consideration of the relevant statutory criteria but does not make mention of the applicant's personal circumstances. The Commission's Statement of Reasons appears briefly to consider the applicant's personal circumstances when it says, in par 22, that "the private benefit to the applicant in granting the application does not have sufficient benefit to the public interest to justify a departure from Commission policy". In par 6 of Ms Hills statement of evidence to the Tribunal dated 23 January 2006, particularly at paragraphs 6.7 and 6.8, there is further evidence that the Sch 1, cl 7 statutory criteria and more were considered by the Commission in making its decision. Ms Hills says that the "Commission afforded the applicant the right to make representations as required by clause 6 of Schedule 1. The submission received was assessed as containing no new information to justify a departure from Commission policy. The private benefit to the applicant was the primary justification provided in the submission." It appears to the Tribunal that the Commission did have regard to the applicant's personal circumstances in deciding to refuse his application. The applicant has also repeated the evidence about his personal circumstances before the Tribunal, so they can be considered in this appeal determination.
70 A related aspect of this argument concerned the hydro geological assessment of the application. The cl 7.2 checklist that accompanied the original assessment of the amendment application recorded that the particular application was not "referred to Hydrologist [sic]", and Ms Hills acknowledged this in oral evidence at the hearing. Whether or not the application warranted specific consideration by a hydro geologist at that stage, the Tribunal has had the benefit of receiving much hydro geological expert evidence, albeit mostly general in nature rather than a particular assessment of hydrogeology of the particular location. The applicant did not submit particular expert evidence to refute the general conclusions that the Commission's experts provided in relation to this application, either at the stage of the initial licence application or before the Tribunal. Instead, counsel for the applicant argued that the Commission should be exercising its statutory powers to reduce the allocations of existing licensees and make water available for allocation at no cost to new people with proposed future uses.
71 This second argument raises a novel assertion about how the Commission should exercise its statutory powers. The argument was not well supported by reference to relevant provisions of the RiWI Act: see applicant's amended Statement of Issues, Facts and Contentions, paragraphs 34-38. Counsel for the applicant did refer to a standard condition of licences to the effect that "should the licensee's draw adversely affect the aquifer or other users in the area, the Water and Rivers Commission may reduce the amount that may drawn". This condition appears to be a reference to the Commission's powers under RiWI Act Sch 1, cl 24(2)(b) that authorise it unilaterally to vary a term or condition of a licence if, in the opinion of the Commission, the licensed activity is having detrimental effects on another person, or damaging the water resource or its associated environment. Counsel for the applicant seemed to connect these powers with the terms of Sch 1, cl 7(2)(d), by which the Commission is bound to consider whether the proposed taking and use of water under a licence application "may prejudice other current and future needs for water". The applicant's amended Statement, par 37, contends: "It cannot be in the best interests of the public, nor for the management of the resource for current and future users, for the Commission, through the advent and application of the Policy, to provide or allow a significant financial reward to current users merely because such current users were fortuitous enough to have a licence prior to this Policy".
72 With respect, whilst this submission identifies the difficult policy issues that attend the imposition of allocation limits when a water resource reaches or passes full allocation, the argument fundamentally misconceives the scheme of the RiWI Act. The terms of cl 7(2)(d) are to be considered at the time of determining the grant of a new licence making a new allocation of water. That clause is not relevant to an exercise of power under cl 24(2)(b), which is only to be exercised to protect existing water resources values, whether those values be the rights of existing licensees and water users, the water resource itself or its dependent ecosystems. The Commission does have power under cl 24(2)(d) to vary a licence condition if the quantity of water that may be taken under the licence has consistently not been taken - the so-called "use it or lose it" clause. However, this provision does not authorise the Commission to reduce one licensee's allocation that is being used in order to re-allocate the water to a new aspiring water user. The policy of the Act is that the transfer of the benefit of a water right from one licensee to another is to be effected by a market transaction (Sch 1, Div 7) or by an acquisition that is compensated (Sch 1, Div 9). The scheme of the Act is to respect existing licensed allocations that are being used; such allocations can only be varied in accordance with a strict interpretation of the RiWI Act. This second argument does not assist the applicant at all.
73 This brings the Tribunal to the question whether the applicant's personal circumstances provide cogent reasons for departing from the Confined Aquifers Policy? The Commission submitted that, whilst it is not possible to say with certainty that the additional allocation in this case would, of itself, cause saline intrusion, the cumulative effects of continued abstraction would increase the likelihood that this would occur. It was appropriate that a precautionary approach be taken as the primary issue is one of protecting and managing important water resources that can be difficult to understand and assess in an accurate and detailed way. The Commission argued that, whilst it would be regrettable that the water resources are insufficient to support the applicant's commercial development and may have an adverse financial impact upon him and his family, the public interest in protecting and managing water resources must in this case be given primacy. The difficulties faced by the applicant were not unique to him and, as he purchased the land after the Policy was in place, he bears some responsibility for ensuring that his commercial operations may be lawfully carried on.
74 The Tribunal asked at the hearing whether there were any case authorities that the parties might supply to assist the Tribunal. Since the hearing, the Commission has referred the Tribunal to various decisions of the Administrative Appeals Tribunal and the Federal Court that relate to the consideration of personal circumstances in the determination of fisheries licences in resource management situations very similar to that confronted here; namely, the introduction of plan or policy restrictions on licensing for the purposes of the sustainable management of the resource. These cases all concerned situations in which the applicant was seeking to establish an existing level of commitment to the particular fishing industry or region so as to obtain a licence to fish in that industry with a quota of an allowable catch. Most of the cases involve arguments about how the applicant's personal circumstances prevented them from participating, wholly or partly, in the industry during the relevant qualification period. The cases are, arguably, distinct from the situation of the applicant, who is seeking to obtain an increased resource allocation on the basis of future plans rather than an existing commitment.
75 Nonetheless, it is helpful to summarise the propositions submitted by the Commission on the basis of these cases:

1. The categories of circumstances that may justify departure from policy are not capable of definition or delineation in advance: Skoljarev v Australian Fisheries Management Authority (1995) 39 ALD 517 at 522.

2. The term "injustice in a particular case" does not mean that the matter should be governed entirely by the hardship to the individual but rather must involve an assessment of the disproportion between the detriment to the individual and the benefit to the public: Skoljarev v Australian Fisheries Management Authority (1995) 39 ALD 517 at 523 citing Brennan J in Drake (No.2) at 645.

3. Natural resource management policies are more concerned with broad and relatively binding rules set down to protect and manage the resource rather than assessment of each particular case. This can be contrasted to immigration cases where the unique circumstances of each case are more important: Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366 at 376; Skoljarev v Australian Fisheries Management Authority (1995) 39 ALD 517 at 523.

4. Whether or not the decision is likely to cause a precedent is of relevance: Re Robinson and Secretary, Department of Primary Industry (1985) 8 ALD 302 at 316.

5. Whether or not the applicant has been misled by the licensing authority is of relevance when considering injustice or hardship: Re Robinson v Secretary, Department of Primary Industry at 302.

6. Matters of equity regarding the eligibility of persons under the policy are of some relevance. In Re Musgrave and Secretary, Department of Primary Industry (1986) 11 ALD 218 the Tribunal found that the applicant had probably qualified under the eligibility criteria but that also, as a pioneer of the industry in that area, he had clearly shown a "commitment to the prawn trawl" in that area, which was the essence of the criteria for eligibility.

76 In this case, the Tribunal does not believe that the Commission has misled the applicant, despite an assertion to this effect in the applicant's amended Statement of Issues, Facts and Contentions: paragraphs 32-33. Further, the circumstances of the applicant, including his personal and family circumstances, are not unique in the sense that the grant of the additional water allocation in this case could be seen to set a precedent for many applicants to argue that they too should be granted an allocation of water to alleviate some personal misfortune. The potential cumulative effects of many small entitlements being granted are high in comparison to the individual benefit of the applicant and his family. Importantly, the applicant's plans to change his enterprise and seek an increased allocation of water were, on the evidence, formed after he was specifically informed in writing in October 2002, that there was no more water available for allocation from the Leederville or Superficial Aquifers.
77 The Tribunal concludes that this is a situation where the Confined Aquifers Policy should be applied because the applicant has not shown that his personal circumstances present a cogent reason why the Policy should not be applied to the determination of his application.

Conclusion and Orders

78 As the Tribunal accepted in Lenzo and Executive Director, Department of Fisheries (WA) [2005] WASAT 218 at [133]:

"in developing policies for the allocation of scarce resources such as fish resources, it may be appropriate to adopt a precautionary approach and thereby to 'cap activity' ... at known levels at a particular date. This leaves it open to the Minister on advice, and the decision-maker in due course, to assess whether the cap placed on activity according to an historic level of activity should be altered, either upwards or downwards."

79 Although the Ministerial Policy Guideline applicable in that case had a statutory basis, unlike the Confined Aquifers Policy here, the statutory force of the Guideline was only that of a relevant consideration and it did not derogate from the Executive Director's, or the Tribunal's, duty to exercise his discretion in a particular case. The Confined Aquifers Policy has a similar effect here.
80 Further, although the RiWI Act does not expressly state that the Commission, or the Tribunal on review, should apply a precautionary approach to decision-making, the Tribunal agrees with the Commission that this is a case where, under Sch 1, cl 7(2) and cl 23(2), it is appropriate to adopt a precautionary approach because of the uncertainty surrounding the effects of granting the increased allocation and the potentially very serious harm that may occur from increasing the stress on the Leederville Aquifer. See generally, Roberts A, Gardner A, "Challenges for the management of water resources in Western Australia: A legal response to the findings of the public sector performance report, 2003" (2004) 22 Environmental and Planning Law Journal 40 at 46-47.
81 While the RiWI Act does not make express reference to a precautionary approach or "the precautionary principle", as it is usually referred to in the literature, the objects specified in the RiWI Act for the purposes of Pt III – Control of Water Resources, set out in s 4 include:

"(a) To provide for the management of water resources, and in particular –

(i) for their sustainable use and development to meet the needs of current and of future users; and

(ii) for the protection of their ecosystems and the environment in which water resources are situated, including by the regulation of activities to them."

82 The fact that the RiWI Act outlines these objectives in relation to the control of water resources rather suggests that a precautionary approach is indeed appropriate. While made in a particular and different statutory context, the observations of Preston CJ in the New South Wales Land and Environment Court in Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133 at [107] – [183] on the inter-relationship of the principles of ecologically sustainable development and the precautionary principle help to understand the significance of the inclusion of the s 4 objects in the RiWI Act.
83 It is also interesting to note in this vein that the recently proclaimed Planning and Development Act 2005 (WA) s 3(1)(c) makes it one of the purposes of that Act to "promote the sustainable use and development of land in this State".
84 In this way, the need to promote the sustainable use and development of resources in the State is expressly becoming an important part of resource management.
85 The Tribunal concludes that the Confined Aquifers Policy is applicable to determination of the applicant's application, that the application should not be granted under the extenuating circumstances exception of the Policy, and that the applicant has not shown that his personal circumstances present cogent reasons for departing from the Policy in exercise of the statutory authority under RiWI Act Sch 1, cl 7(2).
86 The Tribunal makes the following orders:

(1) The Tribunal affirms the decision of the Commission to issue the licence in the terms granted.
(2) The Tribunal otherwise dismisses the applicant's application.

I certify that this and the preceding [86] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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JUSTICE M L BARKER, PRESIDENT