Legal Insights

Natural Resources Access Regulator – Between a water meter and a hard place

By Michael Winram & Jessica Dorricott & Hayley Tan

• 28 August 2020 • 5 min read

A recent decision handed down by Pain J in the Land and Environment Court, Natural Resources Access Regulator v Harris; Natural Resources Access Regulator v Timmins [2020] NSWLEC 104 (Harris), will have significant implications for the Natural Resources Access Regulator’s (NRAR) prosecutions under the Water Management Act 2000 (WM Act).

The prosecution related to six sets of proceedings: three charges of the failure of an occupier, Mr Harris, to operate or operate properly water metering equipment and three charges of the failure of a farm manager, Mr Timmins, to operate or operate properly water metering equipment in early August 2015 on properties known as Mercadool and Four G near Walgett.

Pain J ultimately found that NRAR had not proven its case beyond reasonable doubt for all six offences.

The elements of the offences

The charges were drafted in similar terms for each offence. NRAR claimed the Defendants committed offences contrary to s 91I(2) of the WM Act including:

  • water was taken from the Barwon River (Element 1)
  • from a water source to which Part 3 of Chapter 3 of the WM Act applied (Element 2)
  • by means of a metered work (i.e. a water management work in connection with which metering equipment has been installed), in this case three water pumps (Element 3)
  • while its metering equipment was not operating or not operating properly during the relevant period in early August (Element 4) and, in the case of Mr Harris,
  • on land occupied by Mr Harris (his liability being pursuant to s 91L of the WM Act as an occupier) (Element 5).

Pain J had found Elements 1–2 and in the case of Mr Harris, Element 5 were proven.

The Defendants disputed NRAR had proved Elements 3 and 4 beyond reasonable doubt and Pain J agreed.

Elements 3 and 4 not proven

Metering equipment includes any device used for or in connection with measuring the flow of water. NRAR claimed engine hour meters and MACE meters were the metering equipment installed on the pumps. Regarding the engine hour meters, all of NRAR’s evidence referred to analogue engine hour meters. NRAR claimed the engine hour meters were not working properly and the MACE meters were not working at all in the charge periods.

The Defendants submitted that the pumps were not metered works to which s 91I(2) of the WM Act applies, as in 2015 metering was not a mandatory condition of a water supply work. The Defendants made a number of submissions on the statutory construction of s 91I(2).

The Defendants also submitted the MACE meters were not installed at the time of the alleged offence. The Defendants relied on the affidavit evidence of Mr Timmins, disclosed for the first time at the hearing, of the installation of digital engine hour meters on the pumps prior to, and their use during, the charge periods. Mr Timmins stated the MACE meters were not installed as they were not connected to the pump for the purpose of calculating volume flow.

Mr Timmins’ evidence was fatal to NRAR’s case as it could not exclude the possibility the pumps had functioning digital engine hour meters installed on them in the charge periods. The case as pleaded required that NRAR establish analogue engine hour meters and MACE meters were installed at each of the pumps.

Pain J accepted how the Defendants had construed s 91I(2) of the WM Act and Mr Timmins’ evidence. In conclusion, Pain J found:

  • First, none of the MACE meters were required to be used by the Water Supply Works Approval.
  • Second, the evidence does not establish the MACE meters were actually being used by Mr Timmins at the relevant time (August 2015). In these circumstances there has been no contravention of s 91I(2).

Additional submission

The Defendants made an additional submission which, while unnecessary for Pain J to determine in order to resolve liability, if correct has substantial implications for similar prosecutions in the future.

The Defendants argued that properly construed, s 91I(2) is not breached where the work has a meter installed which is used to measure flow and the meter is working properly. Where that circumstance exists, it cannot be said that when water was taken by the work its metering equipment is not operating properly or is not operating. There may also be some other metering equipment installed on the pump which does not operate properly. The section does not provide that where there are multiple meters that they all work properly. Instead, the section is directed to a broader question, i.e. whether, when viewed as a whole, on the day water was taken “its metering equipment is not operating properly”.

If the Court shares this view it is going to be difficult for NRAR to prove this offence where at least one or more of a defendant’s metering equipment was working properly. Pain J’s reference to this submission in the judgment leaves the door open to future challenges on this point and could signify the need for legislative amendment.

Moving forward

There have been 24 prosecutions commenced by NRAR since its establishment in April 2018. Of the nine matters that have been concluded, Harris is NRAR’s first loss.

NRAR Chief Regulatory Officer Grant Barnes has stated NRAR is carefully reviewing the judgment and considering its legal options.

Whether or not NRAR decides to appeal the judgment, it is clear that this judgment will result in careful review of the evidence in the other NRAR prosecutions.

Do you require further guidance on the Water Management Act?

Contact a member of the Planning & Environment team to find out more.

By Michael Winram & Jessica Dorricott & Hayley Tan

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