Schutz v Minister for Environment & Conservation No ERD-02-457 [2003] SAERDC 12 (23 January 2003)

Last Updated: 27 January 2003

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Her Honour Judge Trenorden, Commissioner Botting and Commissioner Brine (ex tempore)

Hearing

23/01/2003.

Catchwords and Materials Considered

ENERGY AND RESOURCES --- WATER RESOURCES

Appeal against Minister's decision not to increase water allocation - relevant Water Allocation Plan - Lacepede Kongorong Prescribed Wells Area - no water available for pasture irrigation - decision of Minister upheld.

• Water Resources Act 1997 S35, referred to.

Representation

Appellant: ANDREW, TREVOR & CATHERINE SCHUTZ
Counsel: MR W DEGARIS - Solicitors: WS DEGARIS & CO

Respondent: MINISTER FOR ENVIRONMENT & CONSERVATION
Counsel: MS S BEAZLEY - Solicitors: CROWN SOLICITOR'S OFFICE

ERD-02-457

Judgment No. [2003] SAERDC 12

23 January 2003

ANDREW, TREVOR & CATHERINE SCHUTZ

v

MINISTER FOR ENVIRONMENT & CONSERVATION

(ERD NO. 457 OF 2002)

[2003] SAERDC 12

THE COURT DELIVERED THE FOLLOWING EX TEMPORE JUDGMENT:

1. We thank you, Mr DeGaris, and Ms Beazley, for your assistance. We have considered everything that has been put to us.

2. We have no reason to doubt the evidence of Mr Andrew Schutz. He presented as an honest witness and we do not doubt that events occurred as he told the Court.

3. However, at the end of the day this is a very sad case. We must act as Ms Beazley reminded us, and pursuant to Section 35 of the Water Resources Act 1997. We stand in the shoes of the Minister and thus our decision has to be consistent, or not inconsistent with the relevant Water Allocation Plan. That Plan is the one dated 27 July 2000, as varied by the amendment gazetted on 17 August 2000.

4. That Plan indicates that there was, at the relevant time, no water available for pasture irrigation purposes and accordingly the decision of the Minister was the only decision that could be made on the application that is before the Court. That decision we say, seriously, sadly, has to be upheld. We must uphold it because in addition to making a decision consistent with the Plan, we have to make a decision in the public interest, in accordance with the objects of the Act and the purpose of the Plan.

5. Mr DeGaris for the appellants urged us to take a "Lord Denning" approach to the law. Unfortunately for the appellants there is no room to strike out and make, as it were, new law. The Act limits what we can do on appeal. There is no basis upon which we can, for example, go back and treat this application as if it had been made prior to the commencement of the freeze which started in August 1999. There is no basis for us to do that because the appellants did not even look at this property until March 2000, some nine months after the freeze commenced.

6. There is as we see it nothing that we can do. There is no point in remitting this to the Minister. The Minister could not make any decision other than the decision that has been made given the situation at the relevant time.

7. So the appeal is dismissed. We uphold the Minister's decision, with regret for the situation the Schutzs find themselves in.

8. We can only add that on the evidence of Mr Schutz the attitude and actions of the departmental officer concerned, Mr Mike Smith as we were informed, were absolutely outrageous and appalling. Be that as it may, there is nothing that we can do, I am afraid.