Leaky Unlicensed Dam Approved By Court

08 May 2013

In Shaw v The Minister Administering the Water Management Act 2000, the Land and Environment Court upheld an appeal by a landholder against a decision by the Minister to refuse that landholder’s application for a water supply work approval for a leaky dam.

Facts

In May 2010, Mr & Mrs Shaw constructed a dam on their property for domestic purposes. The dam, which had a capacity of 4.5 megalitres and which was fed from a small watercourse to the north, was situated to the west of the ridgeline on the Shaws’ property. The neighbour’s property was situated east of this ridgeline.

In June 2011, a geotechnical engineer, who has been engaged by the neighbour, prepared a report to the effect that the dam was leaking into the neighbour’s property, damaging pastures and making parts of the property untrafficable. This report led to an investigation of the dam by NSW Office of Water and, at this time, the Shaws lodged the application for a water supply work approval.

During the investigation, it was found that the affected parts of the neighbour's property were naturally prone to water logging to some degree.  Despite this, the application was refused.

Legal position

Under the Water Management Act 2000 (“WMA”), the Shaws’ dam was a “water supply work” for which the Shaws required an approval.  After considering all matters relevant to an application, the Minister must determine such application by either granting an approval or refusing the application (section 95(1) of WMA).  However, an approval must not be granted unless the Minister is satisfied that “adequate arrangements are in force to ensure that no more than minimal harm will be done to any water source, or its dependent ecosystems, as a consequence of the construction or use of the proposed water management work” (section 97(2) of WMA).

Decision

Even though the Court found that the neighbour’s property had a natural predisposition to water logging on certain parts (because of the presence of natural springs) and that water leaking from the dam caused more than minimal harm because it exacerbated that natural predisposition, the Court was not satisfied that the extent of degradation required the application to be refused.  The Court regarded the fact that the dam had been constructed without approval was irrelevant to the Court’s determination.

The Court upheld the Shaws’ appeal and ordered that a water supply work approval be granted for the dam subject to certain conditions including that the water in the dam not exceed a specified level, that a pipe spillway be installed and that bentonite (suitable for sealing farm dams) be applied to the water storage area.

If you are considering the construction of any dam on your property, you should obtain advice from qualified consultants but before doing so you may first have regard to relevant information about dams on the website of NSW Office of Water which contains guidelines and factsheets on what dams may be constructed without a licence or approval.

 

 

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