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
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
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
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
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
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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Kemp Strang has received acknowledgements for the quality of
our work in the most recent editions of Chambers & Partners,
Best Lawyers and IFLR1000.
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