VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
PLANNING AND ENVIRONMENT List	vcat reference No. P948/2024	
CATCHWORDS	
Application for review under section 83(1)(m) of the Water Act 1989 (Vic) of a Direction issued by the Minister for Water (under its delegate Gippsland Southern Rural Water Corporation) under section 78 of the Water Act 1989 (Vic). Direction relates to a dam and the removal of unauthorised works intersecting on a waterway.	

Applicant	Ian Miller	
Decision Maker	Gippsland and Southern Rural Water Corporation	
SUBJECT LAND	52 Miller Road
MEREDITH VIC 3333	
HEARING TYPE	Hearing	
DATE OF HEARING	26 February 2025	
DATE OF ORDER	27 February 2025	
citation	Miller v Gippsland and Southern Rural Water Corporation [2025] VCAT 181	

Order
Direction varied 
1	Pursuant to section 51(2) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) in application P948/2024, the decision of the decision maker is varied.  
2	The Tribunal directs that the decision maker issues an amended direction. The direction dated 1 August 2024, to the applicant, made pursuant to section 78 of the Water Act 1989 (Vic) at Paragraph 4 (Measures Required) is varied as follows:
(a)	Measure 1 is deleted.  
(b)	Measure 2 is amended to read: 
Before 1 April 2025 make an application, requesting a licence pursuant to section 67 of ‘the Act’ detailing the removal of unauthorised works intersecting the waterway and reinstatement of the waterway on the Property, provided the original dam (generally as existed in 2014) may be reinstated subject to such reinstated dam remaining off the waterway. 
(c)	Measure 3 is confirmed.
(d)	Measures in the direction are renumbered accordingly.
Costs
3	No order as to costs.
Hearing vacated
4	Days 2 and 3 of the hearing listed on 27 & 28 February 2025 are vacated. No attendance is necessary.

Claire Bennett
Member

Appearances
For the applicant	Ian Miller
Assisted by Ian Wood and Kylie Miller	
For the decision maker	Andrew Sherman, Lawyer of Russell Kennedy Pty Ltd
Assisted by Mathew Grivas, Officer of Gippsland and Southern Rural Water Corporation	

Reasons
NATURE OF PROCEEDING 
1	This proceeding involves an application pursuant to section 83(1)(m) of the Water Act 1989 (Vic) (‘Water Act’) for a review of the decision maker’s decision to give a direction under section 78(1).
2	On 1 August 2024, the Minister for Water through their delegate the Gippsland and Southern Rural Water Corporation (‘SRW’) (the ‘decision maker’), issued a direction (‘Direction’) under section 78(1) of the Water Act to the applicant. Specifically, the decision maker relies upon:
a	section 78(1)(b)(i) – to secure compliance with the Water Act given that the works have taken in the absence of the requisite approvals required by the Water Act; 
b	section 78(1)(b)(ii) – to prevent the waste, misuse or pollution of water given that the dam, as now constructed on the Subject Land (Dam) can impact downstream users; and
c	section 78(1)(b)(iii) – to protect the environment, including riverine and riparian environment given that the Dam is now situated on a waterway.
3	The applicant is the owner and occupier of land at 52 Miller Road, Meredith (‘subject land’), identified as the ‘Property Address’ on the Direction. A watercourse, which meets the definition of a ‘waterway’ pursuant to section 3(1)(a) or 3(1)(b), or both, of the Water Act, runs through the subject land (‘waterway’).
4	The Direction was served on the owner of the subject land.
5	The Direction provided the following background:
2.	Background
Southern Rural Water (SRW) have been undertaking a review of private dams in the Moorabool Catchment and identified this as one dam that required further inquiry. SRW investigations indicate the dam is located on a waterway and has been constructed without the appropriate licence under the Water Act 1989 (the Act). Aerial imagery indicates that the dam was constructed between 2014-2016. SRW requested further and better particular information as to the construction of the dam, the nature of the works and details of any pumping occurring from the dam.
You have advised that the dam was cleaned out in 2014.
6	The Direction required the following measures to be taken:
4.	Measures Required
1.	Engage a suitably qualified engineer, (means a person eligible for membership of the Institution of Engineers Australia who is able to demonstrate competence in the design, construction supervision and surveillance of dams) to provide written advice on the proposed approach to decommissioning the dam. Details of this engineer are to be provided to SRW no later than 29 August 2024.
2.	Before 26 September 2024 provide SRW with a report on the above and an application requesting a licence pursuant to Section 67 of ‘the Act’ detailing the planned decommissioning of the dam, including indicative timelines for the works to be completed.
3.	Monitor the dam during this period and notify SRW of any changes.
7	The Direction required the following measures to be undertaken by:
5.	Compliance Date
Measures described above must be undertaken by: 26 September 2024.
8	On 2 December 2024, as part of the compulsory conference process, the Tribunal made amendments by consent in respect of the dates appearing in the Direction. Order 3 of the Tribunal’s orders dated 2 December 2024 was as follows:

Delegations
9	Mr Sherman of Russell Kennedy Lawyers appeared at the hearing. The Tribunal understands that his firm is engaged by SRW to appear in these proceedings for the decision maker because the Minister for Water has authorised SRW to act as their delegate.
10	In response to Tribunal questions at the hearing, Russell Kennedy Lawyers provided an instrument of delegation by the Minister for Water under section 306 of the Water Act to SRW and certain employees dated 10 May 2024. 
11	Item 33 of this instrument delegates to ‘SRW’, ‘Managing director’, and ‘Managers, work licences’ certain powers, functions and duties including pursuant to section 78(1) of the Water Act. 
12	The Direction has been issued by an Officer of SRW as a Delegate of the Minister for Water (Minister). The Direction is signed by Alisha Clark. On the day of the hearing Russell Kennedy Lawyers provided an email confirming that ‘Ms Clark holds the position description of Manager Water Licencing which is one of the Manager Works Licences positions as described in the dekegations (sic).’
Consent position 
13	At the start of the hearing on 26 February 2025 the parties sought a brief adjournment to discuss a potential consent position. When the hearing resumed after the brief adjournment on 26 February 2025, the parties advised that they had reached a consent position and filed minutes of consent orders as follows:
1.	The application for review is allowed in part. 
2.	Pursuant to section 51 (2) of the Victorian Civil Administrative Tribunal Act 1998 the Direction of the Decision Maker dated 1 August 2024, to the Applicant, made pursuant to section 78 of the Water Act 1989 at Paragraph 4 (Measures Required) is varied as follows: 
(a)	Measure 1 is removed. 
(b)	Measure 2 is amended to read: 
Before 1 April 2025 make an application, requesting a licence pursuant to section 67 of ‘the Act” detailing the removal of unauthorised works intersecting the waterway and reinstatement of the waterway on the Property, provided the original dam may be reinstated subject to such reinstated dam remaining off the waterway.
(c)	Measure 3 is confirmed. 
3. 	No orders as to cost. 
14	The parties advised that during their discussions, and by referring to Google Earth images of various dates, they had come to an agreement on the general form of the original dam to be reinstated and the general extent of unauthorised works intersecting the waterway to be removed. 
15	Upon questioning by the Tribunal as to whether the amended Direction should include a date of reference for the general form of the original dam to be reinstated, the parties agreed that the words ‘generally as existed in 2014’ should be included in the amended Direction. The parties also agreed that the following images of the dam in October 2014 (refer Figure 1) and November 2016 (refer Figure 2) should be included in the reasons of this decision. These are produced below. 

Figure 1	Google Earth image of the dam on the subject land dated October 2014

Figure 2	Google Earth image of the dam on the subject land dated November 2016
16	The parties agreed that the annotation shown on Figure 1 and Figure 2 of ‘Previously existing small dam’ indicates the location of the ‘original dam’ that ‘may be reinstated subject to such reinstated dam remaining off the waterway’, as referred to in the proposed amendment to Measure 2.
17	The parties agreed that the annotation shown on Figure 2 of ‘Newer dam embankment’ indicates the ‘unauthorised works intersecting the waterway’ referred to in the proposed amendment to Measure 2. 
18	Having heard from the parties, the Tribunal is prepared to make orders to vary the decision of the decision maker and direct that the decision maker issues an amended direction, in line with the consent position, because:
a	The orders are made with the consent of the parties.
b	The Tribunal gives the consent of the decision maker significant weight.
c	The images of the dam in October 2014 (refer Figure 1) and November 2016 (refer Figure 2) provide sufficient information as to:
i.	the ‘original dam’ that ‘may be reinstated subject to such reinstated dam remaining off the waterway’, as referred to in the proposed amendment to Measure 2.
ii.	the ‘unauthorised works intersecting the waterway’, as referred to in the proposed amendment to Measure 2. 
d	Measure 3 of the Direction requires the applicant to ‘monitor the dam during this period and notify SRW of any changes’. The decision maker did not consider that any further monitoring of the dam was necessary, as the dam is not considered to be hazardous.  
19	The Tribunal has made the orders as sought by the parties, with slight amendments to the wording, as agreed orally by the parties, so as to be consistent with the Tribunals standard orders.

Claire Bennett
Member