QUININUP HOLDINGS PTY LTD and PROGRAM MANAGER SOUTH WEST REGION AS THE DELEGATE FOR THE MINISTER FOR WATER [2026] WASAT 76

[2026] WASAT 76 Page 1 JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : RIGHTS IN WATER AND IRRIGATION ACT 1914 (WA) CITATION : QUININUP HOLDINGS PTY LTD and PROGRAM MANAGER SOUTH WEST REGION AS THE DELEGATE FOR THE MINISTER FOR WATER [2026] WASAT 76 MEMBER : MS C BARTON, MEMBER MS H BROOKES, SESSIONAL MEMBER HEARD : 8, 9, 10 AND 11 DECEMBER 2025 AND 19 MARCH 2026 DELIVERED : 2 JULY 2026 FILE NO/S : DR 154 of 2023 BETWEEN : QUININUP HOLDINGS PTY LTD Applicant AND PROGRAM MANAGER SOUTH WEST REGION AS THE DELEGATE FOR THE MINISTER FOR WATER Respondent Catchwords: Water licensing - Licence to take water - Licence condition - Farm dam - Watercourse - Winter take period - Bypass flows - Transitional flows - Downstream environment - Hydrological features of dam wall - 'Leaky' dam wall - Whether dam seepage contributes to downstream flow - Ecological water -- 1 of 40 -- [2026] WASAT 76 Page 2 requirement - Water-dependent ecosystems - Stream ecology - Aquatic fauna - Ecological values - Application of water allocation plan - Application of policy - Consistently applied policy - Whether the take and use of water is ecologically sustainable - Whether the take and use of water is environmentally acceptable - Social and cultural significance - Public interest Legislation: Aboriginal Heritage Act 1972 (WA) Environmental Protection Act 1986 (WA), Sch 5, cl 2 Rights in Water and Irrigation Act 1914 (WA), s 2, s 2(1), s 3, s 3(1), s 3(1)(c), s 3(2)(c), s 4(1), s 4(1)(a)(i), s 4(2), s 4(3), s 5A, s 5C, s 5C(1)(c), s 5C(1)(d), s 5C(3), s 5D, s 6(3), s 20, s 20(1), s 20(1)(c), s 26GG(1)(d), Sch 1, cl 1, cl 4(1), cl 4(3), cl 6(1), cl 6(2), cl 6(4), cl 7(2), cl 7(2)(a), cl 7(2)(b), cl 7(2)(c), cl 7(2)(d), cl 7(2)(e), cl 7(2)(f), cl 7(2)(g), cl 7(2)(g)(iv), cl 7(2)(h), cl 8, cl 15, cl 15(2), Pt III, Div 2, Div 3D, Appendix, item 2 State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2), s 28, s 29(3), s 32(2)(b) Result: Application allowed in part Respondent's decision varied Category: B Representation: Counsel: Applicant : Mr P Fletcher Respondent : Mr E Heywood & Ms E Wignell Solicitors: Applicant : McWilliams Davis Lawyers Respondent : State Solicitor's Office -- 2 of 40 -- [2026] WASAT 76 Page 3 Case(s) referred to in decision(s): Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 Crossley v English [2025] WASCA 141 Crossley v English [No.2] [2024] WASC 268 ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51; (2009) 240 CLR 140 More and Water and Rivers Commission [2006] WASAT 112 Ord Irrigation Co-Operative Limited and Department of Water and Environmental Regulation [2020] WASAT 68 Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83 Prestidge and Department of Water and Environmental Regulation [2023] WASAT 9 Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196 -- 3 of 40 -- [2026] WASAT 76 Page 4 REASONS FOR DECISION OF THE TRIBUNAL: Introduction 1 On 13 September 2023, the Minister for Water (Minister) granted to the applicant, Quininup Holdings Pty Ltd (applicant), a licence to take surface water pursuant to s 5C of the Rights in Water and Irrigation Act 1914 (WA) (Current Licence) (RIWI Act). The delegate of the Minister, and the respondent in this proceeding, is the Program Manager South West Region (respondent). 2 A farm dam, which is an authorised activity under the Current Licence, is located on the applicant's property in Wilyabrup (Lot 131 Dam). The Lot 131 Dam is filled by the diversion of surface water from Quininup Brook (Quininup Brook or watercourse) via pumping from a downstream dam located on the tributaries of Quininup Brook (Lot 14 Dam). 3 The Current Licence enables the taking of an Annual Water Entitlement (AWE) of 17,500 kilolitres and was granted subject to conditions. 4 On 30 September 2023, pursuant to s 26GG(1)(d) of the RIWI Act, the applicant commenced a proceeding in the Tribunal seeking a review of two of the four conditions imposed on the Current Licence. The first condition, subject to review, only permits the applicant to take water from the watercourse to fill the Lot 14 Dam during the winter take period between 1 June and 30 September, or as otherwise directed by the Department of Water and Environmental Regulation (Department) (WTP Condition). The second condition, subject to review, requires the applicant to bypass all flows in the watercourse between 1 October and 31 May next (Bypass Condition). The applicant seeks orders from the Tribunal that the two conditions should be set aside. 5 The Tribunal must review the respondent's decision by way of a hearing de novo for the purposes of producing the correct and preferable decision based on the material at the time of the review.1 The Tribunal is to act according to equity, good conscience, and the substantial merits of the case without regard to technicalities and legal forms.2 Section 29(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) confers specific power on the Tribunal to make any 1 State Administrative Tribunal Act 2004 (WA) (SAT Act), s 27(1) and s 27(2). 2 SAT Act, s 32(2)(b). -- 4 of 40 -- [2026] WASAT 76 Page 5 order that it considers appropriate, including an order to affirm, vary or set aside the respondent's decision. 6 For the reasons that follow, we have concluded that the correct and preferable decision is to allow the review application in part and vary the respondent's decision to impose the WTP Condition and Bypass Condition by modifying the winter take period. Issues for determination 7 The Tribunal must determine whether the correct and preferable decision is to impose the WTP Condition and/or the Bypass Condition on the Current Licence and, if so, what should be the terms of the condition(s). Factual background 8 There were certain factual matters that were not in dispute between the parties. We make the findings set out in this paragraph in relation to those matters. (1) The applicant is the registered proprietor of Lot 131 Caves Road, Wilyabrup, formally known as Lot 131 on Plan 25420, Volume 2519 Folio 600 (Lot 131).3 (2) Cape Falls Pty Ltd is the registered proprietor of Lot 14 Caves Road, Wilyabrup, formally known as Lot 14 on Diagram 68610, Volume 1705 Folio 117 (Lot 14).4 (3) Lot 14 is located to the east of Lot 131. (4) On 24 January 2013, the applicant made an application for a licence pursuant to s 5C of the RIWI Act to take surface water from Lot 14.5 (5) On 12 July 2013, the Minister granted a licence to the applicant to take surface water, which was issued under Instrument No. SWL177061(1) (First Licence).6 3 Respondent's Statement of Issues, Facts and Contentions filed on 19 September 2024 (Respondent's SIFC), para 1; Applicant's Statements of Issues Facts and Contentions filed on 10 October 2025 (Applicant's SIFC), page 1. 4 Respondent's SIFC, para 2; Applicant's SIFC, page 1. 5 Respondent's SIFC, para 3; Applicant's SIFC, page 1; Respondent's s 24 Bundle, filed on 19 September 2024 (Exhibit 1) (Respondent's Bundle), page 15. 6 Respondent's SIFC, para 4; Applicant's SIFC, page 1; Respondent's Bundle, page 15. -- 5 of 40 -- [2026] WASAT 76 Page 6 (6) The First Licence had an AWE of 17,500 kilolitres.7 It specified the location of the water source to be Lot 14 and permitted the diversion and storage of surface water from Lot 14 to Lot 131, respectively.8 (7) The First Licence was issued subject to two conditions, namely:9 (a) the annual water year for water taken under the licence is defined as 1 July to 30 June next; and (b) the licensee is to provide a completed 'Water Use Return' to the Department of Water by 31 July each year. (8) The First Licence was valid for a ten-year period and, consequently, had an expiry date of 1 July 2023.10 (9) The applicant applied to renew the First Licence on 28 July 2023.11 The application was made after the First Licence had expired.12 Consequently, the Department treated the application for renewal as an application for a new licence under s 5C of the RIWI Act.13 (10) On 13 September 2023, the respondent granted the applicant a new licence to take surface water under Instrument No. SWL209115(1) which has an AWE of 17,500 kilolitres (or Current Licence).14 (11) The location of the water source specified on the Current Licence is Lot 14.15 The Current Licence permits the diversion and storage of surface water from Lot 14 to Lot 131, respectively.16 7 Respondent's SIFC, para 5; Applicant's SIFC, page 1; ts 194 - 195, 10 December 2025; Witness Statement of Owen Bennett filed on 31 October 2025 (Exhibit 4) (Mr Bennett's statement) paras 58 - 61; Respondent's Bundle, page 15. 8 Respondent's SIFC, para 5; Applicant's SIFC, page 1; Respondent's Bundle, page 15. 9 Respondent's SIFC, para 6; Applicant's SIFC, page 1; Respondent's Bundle, page 15. 10 Respondent's SIFC, para 7; Applicant's SIFC, page 1; Respondent's Bundle, page 15. 11 Respondent's SIFC, para 9; Applicant's SIFC, page 1; Respondent's Bundle, page 16. 12 Respondent's SIFC, para 10; Applicant's SIFC, page 1; Respondent's Bundle, page 16. 13 Respondent's SIFC, para 10; Applicant's SIFC, page 1; Respondent's Bundle, page 16. 14 Respondent's SIFC, para 11; Applicant's SIFC, page 1; Respondent's Bundle, page 25. 15 Respondent's SIFC, para 12; Applicant's SIFC, page 1; Respondent's Bundle, page 25. 16 Respondent's SIFC, para 12; Applicant's SIFC, page 1; Respondent's Bundle, page 25. -- 6 of 40 -- [2026] WASAT 76 Page 7 (12) The Current Licence was issued subject to four conditions, namely:17 (a) the annual water year for water taken under the licence is defined as 1 July to 30 June (Condition 1); (b) the licensee must not, in any water year, take more water than the AWE specified in the licence (Condition 2); (c) the licensee shall only take water from watercourse to fill the dam between 1 June and 30 September, or as otherwise directed by the Department (or WTP Condition); and (d) the licensee shall bypass all flows in the watercourse between 1 October and 31 May next (or Bypass Condition). (13) Conditions 1 and 2 are not in dispute in this proceeding.18 The conduct of the hearing and witness evidence 9 The applicant relied on the evidence of Mr Chistopher Mulcahy, who is a director of SW Hydrology. Mr Mulcahy gave evidence in respect of matters relating to hydrology, geomorphology and ecology. He holds a Bachelor of Environmental Science degree (with honours) from the University of Notre Dame and the University of Western Australia. Mr Mulcahy prepared a witness statement dated 3 November 2025 which he adopted as his evidence-in-chief and was cross-examined. 10 Mr Brettney Fogarty, who is a director of the applicant and Cape Falls Pty Ltd, prepared a witness statement dated 3 November 2025 which he adopted as his evidence-in-chief and was cross-examined. 11 The respondent relied on the evidence of the following witnesses: (1) Dr Phillip Jordan, a principal hydrologist with HARC Services Pty Ltd. Dr Jordan holds a Bachelor of Engineering (with honours) in civil engineering from the University of Queensland and a Doctor of Philosophy in hydrology from Monash University. He provided evidence in respect of matters relating to hydrology, including catchment modelling to 17 Respondent's SIFC, para 13; Applicant's SIFC, page 1; Respondent's Bundle, page 25. 18 Respondent's SIFC, para 14; Applicant's SIFC, page 1; Respondent's Bundle, page 25. -- 7 of 40 -- [2026] WASAT 76 Page 8 simulate streamflow on Lot 14. Dr Jordan prepared a witness statement dated 28 October 2025 which he adopted as his evidence-in-chief and was cross-examined. (2) Mr Adam Green, Principal Water Planner, Water Allocation Planning at the Department. Mr Green gave evidence in respect of matters relating to ecohydrology, riverine ecology and geomorphology. He holds a Bachelor of Science degree (with honours) in natural resource management from the University of Western Australia. Mr Green prepared a witness statement dated 31 October 2025 which he adopted as his evidence-in-chief and was cross-examined. (3) Mr Owen Bennett, Acting District Manager of the Geographe Capes District at the Department. Mr Bennett undertakes delegated decision-making on applications for licences to take water under the RIWI Act and determined the application for the Current Licence. He holds a Bachelor of Social Science degree in environmental management from Edith Cowan University. Mr Bennett prepared a witness statement dated 30 October 2025 which he adopted as his evidence-in-chief and was cross-examined. 12 Following a chaired expert conferral held on 28 November 2025, Mr Mulcahy, Dr Jordan and Mr Green prepared a joint statement dated 5 December 2025 relating to matters of hydrology within their knowledge and expertise. At the final hearing, those witnesses gave their evidence concurrently. 13 The Tribunal had the benefit of a site view on 8 December 2025 which was attended by the parties and their legal counsel. The locations visited during the site view included the banks and western edge of the Lot 14 Dam, the Lot 14 dam wall and spillway, and the tributaries that flow into the Lot 14 Dam. The Tribunal also viewed the applicant's monitoring sites, including the location of two v-notch weirs upstream and downstream of the Lot 14 Dam, as well as the Quininup Brook main channel and its confluence downstream of the Lot 14 Dam. The statutory framework 14 We will next outline the statutory framework under the RIWI Act that applies to licensing decisions by the Minister, including the -- 8 of 40 -- [2026] WASAT 76 Page 9 Minister's power (and the power of the Tribunal on review) to grant or refuse a licence and impose licence conditions. The statutory requirement for a licence to take water 15 The management, use and protection of water resources across the State is regulated by the provisions of the RIWI Act. The right to the use and control of water in any watercourse, wetland or underground water source is vested in the Crown except as allocated under the RIWI Act or another written law.19 16 Relevantly, a 'watercourse' is defined in s 3(1) of the RIWI Act to mean any river, creek, stream or brook in which water flows, and any collection of water (including a reservoir) into, through, or out of which those surface waters flow. The definition extends to any place where water flows that is prescribed to be a watercourse.20 It is immaterial that a watercourse has been diverted from its natural course or may have been artificially improved or altered.21 17 Pt III of the RIWI Act provides for the ownership and control of water resources in the State. It is an offence to take water from any watercourse except under, and in accordance with, a licence granted by the Minister under s 5C(1)(d) of the RIWI Act (s 5C licence), or a right conferred by the RIWI Act or another written law.22 18 The word 'take' is defined in s 2(1) of the RIWI Act as follows: take, in relation to water, means to remove water from, or reduce the flow of water in, a watercourse, wetland or underground water source, including by - (a) pumping or siphoning water; or (b) stopping, impeding or diverting the flow of water; or (c) releasing water from a wetland; or (d) permitting water to flow under natural pressure from a well; or (e) permitting stock to drink from a watercourse or wetland, 19 RIWI Act, s 5A. The right to take and divert water cannot be established by length of time of use, or otherwise, except in accordance with the RIWI Act or any other written law: RIWI Act, s 5D. 20 RIWI Act, s 3(1)(c). 21 RIWI Act, s 3(2)(c). 22 RIWI Act, s 5C(1)(c). -- 9 of 40 -- [2026] WASAT 76 Page 10 and includes storing water during, or ancillary to, any of those processes or activities[.] 19 The Minister, and other persons performing functions under Pt III of the RIWI Act, must seek to ensure that the objects listed in s 4(1) of the RIWI Act are achieved23 including a decision whether to grant or refuse a 5C licence and, if granted, the terms, conditions and restrictions to be included in the 5C licence. Section 4(1) of the RIWI Act provides: (1) The objects of this Part are - (a) to provide for the management of water resources, and in particular - (i) for their sustainable use and development to meet the needs of current and future users; and (ii) for the protection of their ecosystems and the environment in which water resources are situated, including by the regulation of activities detrimental to them; and (b) to promote the orderly, equitable and efficient use of water resources; and (c) to foster consultation with members of local communities in the local administration of this Part, and to enable them to participate in that administration; and (d) to assist the integration of the management of water resources with the management of other natural resources. 20 The expression 'use and development' in subsection 4(1)(a)(i) is defined in s 4(2) of the RIWI Act to include the use and development for domestic, commercial, recreational, cultural and navigational purposes. 21 Section 5C(3) of the RIWI Act provides that Sch 1 to the RIWI Act has effect to make provision for a 5C licence. 23 RIWI Act, s 4(3). -- 10 of 40 -- [2026] WASAT 76 Page 11 The Minister's power to grant a s 5C licence subject to conditions 22 Division 2 of Sch 1 to the RIWI Act governs the grant or refusal of a 5C licence. Where the Minister proposes to refuse an application for a 5C licence or to grant a 5C licence subject to the inclusion of a term, condition or restriction that the Minister considers is inconsistent with the terms of the application, the applicant must be afforded an opportunity to make written submissions in respect of the proposed decision.24 The Minister must have regard to any submissions made before making a final decision.25 23 The matters to which licence terms, conditions or restrictions may relate are contained in the Appendix to Sch 1 to the RIWI Act and, relevantly, include the use, management, protection and enhancement of any water resource and its ecosystem, or the environment in which the water resource is situated.26 24 At the Minister's discretion, the Minister may include any term, condition or restriction on the grant of a s 5C licence.27 In exercising that discretion, the Minister is to have regard to all matters that the Minister considers relevant, including the mandatory relevant considerations identified in cl 7(2)(a)-(h) of Sch 1 to the RIWI Act.28 25 Clause 7(2) of Sch 1 to the RIWI Act provides: (2) In exercising that discretion, the Minister is to have regard to all matters that the Minister considers relevant, including whether the proposed taking and use of water - (a) are in the public interest; or (b) are ecologically sustainable; or (c) are environmentally acceptable; or (d) may prejudice other current and future needs for water; or (e) would, in the opinion of the Minister, have a detrimental effect on another person; or 24 RIWI Act, cl 6(1) - 6(2) of Sch 1. 25 RIWI Act, cl 6(4) of Sch 1. 26 RIWI Act, Appendix to Sch 1, item 2. 27 RIWI Act, cl 15(2) of Sch 1. 28 RIWI Act, cl 15(2) of Sch 1. Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83 at [66]; Ord Irrigation Co-Operative Limited and Department of Water and Environmental Regulation [2020] WASAT 68 at [96]. -- 11 of 40 -- [2026] WASAT 76 Page 12 (f) could be provided for by another source; or (g) are in keeping with - (i) local practices; or (ii) a relevant local by-law; or (iii) a plan approved under Part III Division 3D Subdivision 2; or (iv) relevant previous decisions of the Minister; or (h) are consistent with - (i) land use planning instruments; or (ii) the requirements and policies of other government agencies; or (iii) any intergovernmental agreement or arrangement. 26 The Minister must refuse to grant a 5C licence if the Minister considers that the person would not be willing or able to comply with any terms, conditions or restrictions.29 27 We will next consider the geomorphological, hydrological and cultural attributes of the Quininup Brook catchment in which the Lot 14 Dam, the subject of a s 5C licence (the Current Licence), is located. The Quininup Brook catchment 28 Located in the Leeuwin Naturalist National Park, downstream of Lot 14, is Quininup Falls which is highly seasonal. Quininup Falls is a recreational and tourist attraction with social and cultural values in both the Falls and the area surrounding it, including the Cape to Cape walking track.30 Within the vicinity of Quininup Falls, there are two sites registered under the Aboriginal Heritage Act 1972 (WA) which include reaches of Quininup Brook.31 29 RIWI Act, Sch 1, cl 8. 30 Mr Bennett's statement, paras 183 - 184 and 188; ts 329, 11 December 2025. 31 Mr Bennett's statement, paras 185 - 187, OB6 and OB7; ts 329, 11 December 2025. -- 12 of 40 -- [2026] WASAT 76 Page 13 29 The Leeuwin Naturaliste Ridge is Orthoclasic and Plagioclasic granite. The granite underlies the entire Quininup Brook catchment, which is overlain with colluvium and alluvium deposits in the valleys.32 30 The soils of the Quininup Brook catchment are not uniform.33 The portion of the catchment to the west of the Lot 14 Dam has sand/limestone deposits of marine origin overlying granite.34 The eastern catchment contains gravel loams and duplex soils with interspersed sand veins. Clay loams are found within valleys to the west of Caves Road, along the main channel of Quininup Brook, with coastal dunes and limestone present closer to the coast.35 To the south of the Lot 14 Dam, the catchment has perched water tables where sand deposits overlay clay and granite.36 There is an exposed granite ridge known as 'Moses Rock' which generates runoff towards the central tributary feeding the Lot 14 Dam.37 31 Stream gauging station 610063 is located on the main channel of the eastern Quininup Brook catchment and measures volumetric flow (streamflow gauge).38 The streamflow gauge was operational between 27 May 2015 and 26 April 2022 but had missing data between 12 August 2020 and 31 May 2021, which may have been caused by a malfunction in the recording equipment several months earlier.39 32 In the Quininup Brook catchment, there is high variability when flows cease in different streams and different stream reaches within different stream catchments, due to variations in catchment size, topography, vegetation, soils and geology.40 Streamflow in a rainfall-runoff driven catchment, without headwater springs and gaining and losing reaches (stream lengths that gain flow from or lose flow to groundwater), would cease earlier in the year higher in the catchment.41 32 Joint statement of expert witnesses filed on 5 December 2025, (Exhibit 6) (Joint Statement), pages 13 - 14. 33 ts 81 - 82, 9 December 2025; ts 117 - 119, 10 December 2025. 34 Joint Statement, pages 13 - 14. 35 Joint Statement, pages 13 - 14. 36 Joint Statement, pages 13 - 14. 37 Joint Statement, pages 13 - 14. 38 Expert opinion report of Dr Phillip Jordan dated 28 October 2025 (Exhibit 5) (Dr Jordan's expert report), pages 3 - 4; Figure 5-1. 39 Expert report of Dr Jordan, page 3. 40 Joint Statement, page 4. 41 Joint Statement, page 18. -- 13 of 40 -- [2026] WASAT 76 Page 14 33 The reach of Quininup Brook just upstream of the Quininup Falls and below the Lot 14 Dam is likely to be perennial.42 Reaches of Quininup Brook further upstream, including the catchment upstream of the Lot 14 Dam are unlikely to be perennial.43 Quininup Brook upstream of the streamflow gauge, for example, typically ceases to flow between December and May when the groundwater table falls below the base level of the river channel.44 Tribunal's consideration 34 Section 6(3) of the RIWI Act provides for the proclamation of surface water areas so that surface water within a proclaimed area is surface water to which the RIWI Act applies. On 21 September 2007, the Cape to Cape North, Cape to Cape South, Lower Blackwood River and Geographe Bay Rivers surface water areas in the South West were proclaimed under the RIWI Act.45 There was no dispute that the Quininup Brook catchment area is within the Cape to Cape North Surface Water Area and is surface water to which s 5C of the RIWI Act applies.46 35 The Cape to Cape North Surface Water Area is within the Whicher Area for the purpose of the Department's management and allocation of surface water (Whicher Area). The Whicher Area is divided into three sections, namely, Capel River, Busselton Coast and Lower Blackwood. These subsections are further divided into subareas for hydrological and allocation planning purposes. One of those subareas is Quininup, which is within the Busselton Coast, and the proclaimed Cape to Cape North Surface Water Area (Quininup subarea).47 36 The parties agreed that Lot 14 and Lot 131 are located within the Quininup subarea of the Whicher Area for the purpose of surface water allocation.48 Whicher Area Surface Water Allocation Plan 37 The main policy framework for the allocation of surface water in the Whicher Area is the Whicher Area Surface Water Allocation Plan 42 Joint Statement, page 4. 43 Joint Statement, page 4. 44 Witness statement of Adam Green, filed on 31 October 2025 (Exhibit 3) (Mr Green's statement), para 58. 45 Respondent's SIFC, para 19; Applicant's SIFC, page 1; Respondent's Bundle, page 829. 46 Respondent's SIFC, para 19; Applicant's SIFC, page 1; Respondent's Bundle, page 829. 47 Respondent's SIFC, para 20; Applicant's SIFC, page 1; Respondent's Bundle, pages 63, 91 - 95. 48 Respondent's SIFC, para 21; Applicant's SIFC, page 1. -- 14 of 40 -- [2026] WASAT 76 Page 15 (Whicher Allocation Plan). The purpose of the Whicher Allocation Plan is to provide the Department with direction on how surface water resources in the Whicher Area will be allocated, and actively managed through licensing, to provide greater security for water users and the environment.49 38 There are a number of objectives for managing surface water in the Whicher Area which are set out in cl 3.1 of the Whicher Allocation Plan as follows: • minimise impacts of new surface water developments on existing water users • protect key ecological, cultural and social values so they are kept at an acceptable level of risk from the effects of surface water use • manage commercial use in proclaimed areas through licensing • provide regular statements against the management objectives outlined in this plan and update the community on the ongoing work to review this plan • implement effective water management through measurement, monitoring, auditing, compliance and reporting to provide transparency and accountability of water use. 39 The relevant subarea in this proceeding, shown in Figure 11 of the Whicher Allocation Plan, is the Quininup subarea, which is fully allocated.50 40 The Whicher Allocation Plan sets out, in Table 4, allocation and licensing policies which apply to the Whicher Area (and Quininup subarea), including as follows: (1) Clause 3.3.1 provides that the Department may, at its discretion, include in a licence any terms, conditions or restrictions as stated in Sch 1, cl 15 of the RIWI Act.51 (2) Clause 3.3.2 provides that licence conditions may state when flows must be bypassed during the year.52 49 Respondent's Bundle, page 59. 50 Respondent's SIFC, para 52; Applicant's SIFC, page 3; Respondent's Bundle, pages 95 - 96. 51 Respondent's SIFC, para 54; Applicant's SIFC, page 3; Respondent's Bundle, page 102. 52 Respondent's SIFC, para 54; Applicant's SIFC, page 3; Respondent's Bundle, page 102. -- 15 of 40 -- [2026] WASAT 76 Page 16 (3) Clause 5 provides that allocation and licensing decisions for the Whicher Allocation Plan will take into account a relatively drier climate period, based on rainfall data from the period 1975 - 2005.53 (4) Clause 6.1.4 provides, relevantly, that the Department:54 may require existing on-stream dams to have a bypass system to control flows, as well as other controls that allow for the migration of aquatic species. The [D]epartment will implement this policy as required, which is consistent with the [D]epartment's Statewide policy no. 5 - Environmental water provisions policy (WRC 2000b) on providing water for environmental flows and passage of aquatic life. (5) Clause 6.1.5 provides that:55 The [D]epartment is unlikely to approve new applications to take surface water (including direct pumping) from a watercourse during periods of low flow (generally in summer), due to the ecological needs of the system during that time. 41 Whilst a draft version of the Whicher Allocation Plan was subject to public comment,56 it is not a statutory management plan because it was not approved under Pt III Div 3D of the RIWI Act. Consequently, it is not a statement of government policy to which we must have regard for the purposes of s 28 of the SAT Act. Nevertheless, the Whicher Allocation Plan informed the respondent's decision to impose the WTP Condition and Bypass Condition and, consequently, is a policy that is relevant to our determination. 42 We will next consider the manner in which surface water is diverted from the watercourse on Lot 14 to Lot 131. Diversion of water from Lot 14 to Lot 131 43 The Lot 14 Dam is constructed over a natural low point in the landscape where three tributaries of Quininup Brook converge. 53 Respondent's Bundle, page 102. 54 Respondent's Bundle, page 103. 55 Respondent's Bundle, page 103. 56 Respondent's Bundle, page 65. -- 16 of 40 -- [2026] WASAT 76 Page 17 These tributaries meet at confluences to the south, south-east and east57 of the Lot 14 Dam.58 44 There is also a smaller dam located on the main channel of Quininup Brook (Riparian Dam or QB Dam) that is generally not regarded as being the subject of the Current Licence, or of any licence to take surface water on the basis that the surface water in the Riparian Dam or QB Dam would only be taken for riparian uses.59 45 The applicant pumps water from the Lot 14 Dam to the Lot 131 Dam.60 The Lot 131 Dam is used by the applicant on Lot 131 for irrigation and, when necessary, firefighting.61 The Lot 131 Dam is not licenced under the RIWI Act.62 A plan showing the location of Lot 14 and Lot 131 and the tributaries intercepted by the Lot 14 Dam is Annexure A to these reasons. 46 The applicant contends that the decision to impose the WTP Condition and the Bypass Condition was based on the application of policy with no, or insufficient, consideration of the specific circumstances of the Lot 14 Dam and the Quininup subarea.63 The applicant further contends that a sump and pipe bypass for the Lot 14 Dam would require ongoing maintenance, operate inefficiently and be expensive to install.64 In contrast, it is the respondent's position that without the WTP Condition and Bypass Condition, transitional flows will be impeded by the Lot 14 Dam and, consequently, both conditions are necessary to protect the downstream water-dependent social, cultural and environmental values of Quininup Brook.65 47 We will next consider the unique hydrological features of the Lot 14 Dam. 57 The tributary to the east of the Lot 14 Dam is also referred to in the proceeding as the north-east channel or the northern most tributary: see Joint Statement, page 8; ts 22, 9 December 2025. 58 Respondent's SIFC, para 23; ts 22, 9 December 2025. 59 Respondent's SIFC, para 21; Applicant's SIFC, page 1. 60 Witness statement of Brettney Fogarty (Exhibit 7) (Mr Fogarty's statement), para 9; ts 22, 9 December 2025. 61 Mr Fogarty's statement, para 60. 62 Mr Bennett's statement, para 53; Respondent's SIFC, para 99; Applicant's SIFC, page 6. 63 Applicant's opening submissions filed on 3 December 2025, para 9. 64 Applicant's closing submissions filed on 3 March 2026, (Applicant's closing submissions) D7; Mr Fogarty's statement, paras 33 - 34. 65 Respondent's closing submissions filed on 3 March 2026, (Respondent's closing submissions), para 44. -- 17 of 40 -- [2026] WASAT 76 Page 18 The hydrological features of the Lot 14 Dam 48 The Lot 14 Dam has been in place for over 40 years.66 It intercepts water from three tributaries of Quininup Brook. The water is held back in part by a leaky earthen wall, located at the northern end of the reservoir, and in part by a naturally occurring porous sand barrier.67 The Lot 14 Dam is a fill and spill dam. Once its capacity is reached (at the end of winter), the Lot 14 Dam loses water down a lower section that acts as a spillway, located at the eastern end of the dam wall (spillway).68 According to Mr Fogarty, the Lot 14 Dam has overflowed every year since his company purchased Lot 14.69 Spills from the Lot 14 Dam flow along an unnamed tributary of Quininup Brook for a distance of approximately 100 metres before entering the main channel of Quininup Brook.70 49 There was no dispute that the Lot 14 Dam is the last farm dam before Quininup Falls. Due to the location of the Lot 14 Dam, the respondent contends that downstream flows outside the winter take period, and during the transitional or 'shoulder period', are particularly important to the social and cultural values of the Falls.71 50 To measure stream flow at the Lot 14 Dam, the applicant installed two 90 degree v-notch weirs (V-notch). Measurements of depth of flow at the first V-notch provided for calculation of the rate of volumetric flow, in litres per second, entering the Lot 14 Dam (site A) and, at the second V-Notch, provided for calculation of the volume of water leaking from the dam (site B).72 Based on Mr Mulcahy's measurements taken at site A and site B on 28 October 2025 (10 days after flow ceased at the spillway), the applicant says that 726 kilolitres per day flow directly below the Lot 14 Dam.73 51 Mr Mulcahy also monitored the rate of flow at two open channels, namely site C (downstream of the Riparian Dam) and site D (downstream of the Lot 14 Dam).74 66 Witness statement of Christopher Mulcahy filed on 13 November 2025, (Exhibit 8) (Mr Mulcahy's expert report), page 8. 67 ts 352 - 53, 19 March 2026. 68 Dr Jordan's expert report, page 64. 69 ts 306 - 307, 11 December 2025. 70 Dr Jordan's expert report, page 64. 71 Respondent's SIFC, paras 61 and 87. 72 Mr Mulcahy's expert report, page 3; Exhibit 14 and Exhibit 15. 73 Applicant's closing submissions, para B3, B6. 74 Mr Mulcahy's expert report, page 5; Exhibit 14 and Exhibit 15. -- 18 of 40 -- [2026] WASAT 76 Page 19 52 The joint experts agreed, and we find, that Lot 14 Dam has a surveyed volume of 112.48 million litres or 112.48 megalitres.75 Based on this volume, at the point in time of cessation of spill, the applicant estimates that the volume lost to evaporation is approximately 36 megalitres.76 The applicant says it pumps approximately 12 megalitres per year from the Lot 14 Dam and that, according to Mr Fogarty, approximately 5 megalitres remains in the dam at the end of February which is unable to be released by seepage.77 Based on these figures, the applicant calculated that from October to February, more than 50 megalitres are progressively discharged into Quininup Brook from the Lot 14 Dam by seepage.78 53 Relying on a rate of flow of approximately 700 kilolitres per day, it is the applicant's position that it would take 71 days from the cessation of flow at the spillway (usually in September each year) to discharge 50 megalitres.79 54 Consequently, the applicant contends that the Lot 14 Dam delivers, by continuous seepage, a substantial volume of water for the benefit of the downstream environment throughout much of the dry months of the year.80 The applicant further contends that this includes the period of cessation of flow in the northern tributary of Quininup Brook which, according to gauge data, occurs in mid-November in most years.81 Findings 55 Based on the evidence of the joint experts, we find that the catchment area of the Lot 14 Dam is approximately 7.6 km².82 The catchment area of the streamflow gauge is approximately 10 km² and that the total catchment area of Quininup Brook to Quininup Falls is approximately 18.5 km². 56 The joint experts agreed, and we find, that there is considerable variability in the amount and timing of both rainfall and potential 75 Joint Statement, page 3; Exhibit 20. 76 Applicant's closing submissions, para B1. 77 Applicant's closing submissions, para B2. 78 Applicant's closing submissions, para B1; para 12.4(h); ts 355, 19 March 2026. 79 Applicant's closing submissions, para B4; ts 358, 19 March 2026. 80 Applicant's closing submissions, para B7. 81 Applicant's closing submissions, para B7. 82 Joint Statement, page 3. -- 19 of 40 -- [2026] WASAT 76 Page 20 evapotranspiration, which causes year to year variations in the volume and timing of inflows to the Lot 14 Dam.83 57 We further find, based on the evidence of the joint experts, that the flows recorded at V-notch weir sites A and B and estimated at open channel sites C and D represent a 'snapshot in time' of flows on the monitored days and are subject to certain limitations and assumptions.84 Mr Mulcahy acknowledged, for example, that the upstream pool area had not been accurately surveyed.85 58 We are unable to rely on the applicant's calculations for the purposes of determining the leakage rate of the Lot 14 Dam or the length of time that the seepage continues after the cessation of flow from the spillway. Whilst we accept that certain losses to Quininup Brook occur as a result seepage through the dam wall and from evapotranspiration, it is also possible that the Lot 14 Dam loses water via other pathways, including by infiltration to contribute to the recharge of local groundwater aquifers. 59 Moreover, the joint experts agreed, and we find, that the recorded flows at site A and B is a 'snapshot in time' and, consequently, we cannot be satisfied that the measurements accurately depict the leakage rates through the wall of the Lot 14 Dam. The joint experts agreed, and we find, that it is not possible to determine how the leakage rate would change with the depth of water stored in the Lot 14 Dam without additional data.86 We find, based on the evidence of the joint experts, that the leakage rates from Lot 14 Dam would reduce as the depth of the water stored in it fell (due to reduced head and pressure) and that, at some point in time, water would stop seeping from the dam.87 The applicant's calculations did not account for the reduction in head height and leakage rates over time and, consequently, we are unable to accept its position that more than 50 megalitres is discharged from the Lot 14 Dam wall by seepage each year. 60 We will next consider the impact that farm dams may have on water-dependent ecosystems, such as the Quininup Brook catchment. 83 Joint Statement, page 4; ts 80, 9 December 2025. 84 Joint Statement, page 3. 85 Mr Mulcahy's expert report, page 4. 86 Joint Statement, page 3. 87 Joint Statement, page 3. -- 20 of 40 -- [2026] WASAT 76 Page 21 The impact of farm dams on riverine ecology 61 The water-dependent ecological values of a stream include those parts of the ecosystem that rely on the presence of water, including any aquatic or semi-aquatic flora and fauna.88 There was no dispute, and we find, that the environment downstream from the Lot 14 Dam is a water-dependent ecosystem. 62 The ecological water requirement (EWR) of a stream is a key consideration in water resource management decisions, including the sustainable level of farm dam development and water licensing strategies.89 Mr Green described the EWR of a stream, also known as environmental flow, as the minimum flow needed to maintain its associated values of water-dependent ecosystems at a low level of risk.90 In Mr Green's opinion, a flow regime that meets the EWR of a stream will 'often also meets its social and cultural values'.91 63 It is the applicant's position that there is insufficient data to determine an EWR for Quininup Brook. It observed that the only available stream flow data for Quininup Brook is from a faulty gauge (the streamflow gauge) which produced six years of data until it was discontinued in 2021.92 64 Whilst no EWR studies have been conducted within the Quininup Brook catchment, Mr Green referred to studies that had been completed in the nearby Wilyabrup Brook and Cowaramup Brook catchments.93 In Mr Green's opinion, these studies can be relied on to provide an understanding of flow rate and ecological function for streams in the Leeuwin-Naturaliste region, which includes Quininup Brook.94 Mr Green expected there to be similar rainfall-runoff patterns between the Cowaramup Brook catchment and the Quininup Brook catchment (due to their comparable size) which, in his opinion, can be used to inform water resource management decisions, including how surface water can be taken from Quininup Brook at a low risk to existing water-dependent ecological values.95 88 Mr Green's statement, para 39. 89 Mr Green's statement, para 38. 90 Mr Green's statement, para 35. 91 Mr Green's statement, paras 29 and 154. 92 Applicant's closing submissions, paras E2 and E3. 93 Mr Green's statement, paras 119 - 120. 94 Mr Green's statement, paras 121 - 122; Figure 1. 95 Mr Green's statement, paras 121 - 122; Figure 1. -- 21 of 40 -- [2026] WASAT 76 Page 22 65 Mr Green described the highly seasonal flow regime of streams in the South West, including Quininup Brook, and its relationship to aquatic species, as follows:96 The annual pattern of summer (dry season) drought and winter (wet season) flood is a key feature of rivers in the South West (Kennard et al. 2010). This sequence of a wet season followed by a dry season during which flow may cease, is a fundamental pattern in South West streams. It has been shown to have a strong influence on the morphology of aquatic species (e.g. their size, appearance, structure etc), their life-history strategies (e.g. how they move, eat, breed etc), and variations in their abundance and diversity. 66 It was not in contest that on-stream dams modify the downstream flow regime which can present a risk to the water-dependent riverine ecology, particularly in low flow years and due to the effects of climate change.97 In Mr Green's opinion, on-stream dams can have a significant impact on dry season low flows, early season 'freshes' and late season recessional flows.98 He explained that, at the start of the flow season, on-stream dams capture flow while they are filling which prevents water passing downstream until the dams fill and spill.99 Mr Green referred to the importance of early season 'freshes' as follows:100 Early-season flows relieve stress in river pools and areas of permanent water (the stresses for the species being high temperatures and low dissolved oxygen), provide cues for breeding migrations of native fish, and provide habitat for microcrustaceans, aquatic insects, waterbirds, and the larval stages of some terrestrial insects. 67 The Western pygmy perch (Edelia vittata)101 and the Gilgie (Cherax quinquecarinatus)102 were found in Quininup Brook near the base of Quininup Falls when sampling was performed by the Department in February 2024.103 Mr Green said it is likely that aquatic fauna species present in the Quininup Brook catchment also include Western minnow (Galaxias occidentalis),104 Western mud minnow 96 Mr Green's statement, paras 29, 42 and 117. 97 Mr Green's statement, para 31. 98 Mr Green's statement, paras 46, 159 - 160. 99 Mr Green's statement, para 90. 100 Mr Green's statement, para 53. 101 Mr Green's statement, paras 123 - 124. 102 Mr Green's statement, paras 140 - 141. 103 Mr Green's statement, paras 144 - 148. 104 Mr Green's statement, paras 123 - 124. -- 22 of 40 -- [2026] WASAT 76 Page 23 (Galaxiella munda),105 Nightfish (Bostockia porosa),106 and Carter's freshwater mussel (Westralunio carteri).107 68 The Western minnow, Western pygmy perch, Western mud minnow and Nightfish are dependent on predictable timing and magnitude of seasonal water flows to trigger migration and for their survival and breeding success.108 The life cycles of many aquatic invertebrates, including Carter's freshwater mussel which requires permanent freshwater to survive, are affected by changes in flow.109 Gilgies rely on moist soils to remain hydrated in the dry season, and must have access to permanent flows, pools or shallow groundwater for their populations to be maintained.110 69 The applicant contends that the current hydrological regime in Quininup Brook below the Lot 14 Dam is not detrimental to any aquatic fauna species111 and no threatened species had been reported in the area.112 The applicant says that there was no evidence before the Tribunal of any species decline in Quininup Brook or that the Lot 14 Dam affected the survival of specific species, such as the Western Mud Minnow.113 To the contrary, the applicant pointed to evidence from Mr Green that the dissolved oxygen concentration in Quininup Brook upstream of Quininup Falls, during one of the hottest days in the summer of 2024, was within the tolerance range for all native aquatic fauna species likely to be present in the stream.114 70 The applicant further contends that Mr Green's evidence regarding transitional flows does not apply to the Lot 14 Dam because it is leaky,115 and that in respect of the significant contribution the dam makes for the benefit of the downstream environment, the evidence of Mr Mulcahy should be preferred.116 It is the applicant's position that the discharge of water from the Lot 14 Dam through seepage delivers the very recessional flows that trigger the downstream migration of 105 Mr Green's statement, paras 132 and 153. 106 Mr Green's statement, paras 124 and 126. 107 Mr Green's statement, para 136. 108 Mr Green's statement, paras 124 - 133. 109 Mr Green's statement, paras 135 - 137. 110 Mr Green's statement, paras 140 - 141. 111 Applicant's closing submissions, para E10. 112 Applicant's closing submissions, para E18; Exhibit 17. 113 Applicant's closing submissions, paras E5, E8. 114 Applicant's closing submissions, para E9. 115 Applicant's closing submissions, para E7; ts 44, 9 December 2025. 116 Applicant's closing submissions, para B11. -- 23 of 40 -- [2026] WASAT 76 Page 24 aquatic fauna species because the discharge gradually reduces over time as the water level in the dam drops.117 Findings 71 There was no dispute that the wall of the Lot 14 Dam is 'leaky' in that it allows some water to seep through (or under) it. However, for the reasons already given, we are not satisfied that the evidence about the rate at which water is seeping through the dam wall, particularly during early and late season transitional flows, is reliable. Further, the applicant did not produce any independent evidence from a qualified ecologist to support a finding that the life cycles of aquatic fauna species downstream of the Lot 14 Dam are unaffected by the dam because it is leaky. 72 Based on the uncontested evidence of Mr Green, which we accept, we find that 'shoulder period' or transitional flows play an important role for the riverine ecology of Quininup Brook, including seasonal cues for the breeding and migration of aquatic species. We further find, based on Mr Green's uncontested evidence, that on-stream dams modify the downstream flow regime and can have a significant impact on 'shoulder period' or transitional flows and dry season low flows. 73 In determining the terms, conditions and restrictions to be included in a s 5C licence, we must have regard to all matters we consider relevant, including the matters listed in cl 7(2) of Sch 1 to the RIWI Act.118 Those matters include whether the proposed taking and use of water is ecologically sustainable and environmentally acceptable.119 It also includes whether the proposed taking and use of water is in the public interest.120 74 The expression 'public interest' is defined in cl 1 of Sch 1 to the RIWI Act to mean 'public interest having regard to any economic, social or recreational benefits to the public, or to a section of the public'. The meaning of the expression 'public interest' is broad in scope and 'imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question'.121 The objects of Pt III of the RIWI Act, which are relevant to delineating the scope of 117 Applicant's closing submissions, para E13; ts 44, 9 December 2025. 118 RIWI Act, Sch 1, cl 15(2). 119 RIWI Act, Sch 1, cl 7(2)(b) and (c). 120 RIWI Act, Sch 1, cl 7(2)(b) and (a). 121 ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51; (2009) 240 CLR 140 at [20]. -- 24 of 40 -- [2026] WASAT 76 Page 25 the 'public interest' are set out in cl 4(1) of the RIWI Act. The objects which inform the scope of the expression 'public interest' are to provide for the 'sustainable use and development [of water resources] to meet the needs of current and future users', 'to promote the orderly, equitable and efficient use of water resources', and to provide for 'the protection of [water-dependant] ecosystems and the environment in which water resources are situated, including by the regulation of activities detrimental to them'. 75 We find, based on the uncontested evidence of Mr Green, which we accept, that the WTP Condition and Bypass Condition are ecologically sustainable and environmentally acceptable because they aim to protect transitional flows which support the ecological values of Quininup Brook. We further find that protecting transitional flows is particularly important to aquatic fauna because of the impact of a drying climate on streamflow in the South West. Because transitional flows help protect the downstream ecological values of Quininup Brook and, ultimately, support the social, recreational and cultural values of Quininup Falls, we find that the WTP Condition and the Bypass Condition are in the public interest. 76 Because the Lot 14 Dam reservoir is extensive and supports low established vegetation, the applicant contends that it is a 'wetland' for the purposes of the Environmental Protection Act 1986 (WA) (EP Act) and, consequently, its environmental values must be protected.122 In support of its contention, the applicant relied on the evidence of Mr Mulcahy. Mr Mulcahy considered that the swamp paperbark (Melaleuca rhaphiophylla) in the vicinity of the Lot 14 Dam had adapted to the presence of the dam and 'are in very good health'.123 In Mr Mulcahy's opinion, dams create environmental habitat by retaining water during dry months which benefit both flora and fauna, and act as refuges for aquatic invertebrate species during summer months.124 In contrast, it is Mr Green's opinion that the Lot 14 Dam does not provide an ecological benefit to the Quininup Brook catchment.125 He said that farm dams create a closed environment for aquatic species by restricting where they can access a river system.126 122 Applicant's closing submissions, para 6, A1 and A2; para 12.3; ts 347, 19 March 2026. The applicant also referred to the Environmental Protection Authority, Environmental Factor Guideline: Inland Waters, 2018 in support of its contention. 123 Mr Mulcahy's expert report, page 8. 124 Mr Mulcahy's expert report, page 8; Joint Statement, page 8. 125 Joint Statement, page 8. 126 Joint Statement, page 9. -- 25 of 40 -- [2026] WASAT 76 Page 26 Mr Green provided the following evidence about the impact of the Lot 14 Dam on the existing swamp paperbarks:127 …Flooding of Melaleuca rhaphiophylla for prolonged periods can lead to death of the species as has been observed over recent years in Lake Joondalup due to high water levels. I observed dead Melaleuca rhaphiophylla in the [Lot 14 Dam's] footprint on 30/05/2025. … Areas of Melaleuca rhaphiophylla in good health near the Quininup Brook tributaries are present due to access to shallow groundwater, expected to be less than 2 metres below the land surface for large parts of the year. … 77 In the context of conserving native vegetation, the term 'wetland' is defined in the EP Act to mean 'an area of seasonally, intermittently or permanently waterlogged or inundated land, whether natural or otherwise, and includes a lake swamp, marsh, spring, dampland, tidal flat or estuary'.128 Whilst we acknowledge the presence of groundwater-dependent vegetation adjacent to the reservoir of the Lot 14 Dam, including an extensive stand of swamp paperbark, the evidence produced by the applicant did not support a finding that compliance with the WTP Condition and Bypass Condition would fail to maintain the dam's hydrological processes so as to adversely impact its environmental values. Consequently, for the purposes of cl 7(2) of Sch 1 to the RIWI Act, we are not satisfied that the ecological sustainability and environmental acceptability of the conditions, which are intended to help protect the EWR of the downstream ecosystem, is diminished by their purported detriment to the riparian flora and fauna at and around the Lot 14 Dam. 78 We will next consider whether the correct and preferable decision is to impose the WTP Condition and Bypass Condition on the Current Licence and, if so, what is the appropriate length of the WTP. Before doing so, we will consider the policy basis for the imposition of a winter take period on the Current Licence. What is the policy basis for a winter take period? 79 The imposition of a winter take period condition, and bypassing flows outside that period, helps ensure that farm dams do not capture all transitional flows, particularly in low flow years where the impact of 127 Joint Statement, page 9. 128 EP Act, Sch 5, cl 2. A 'wetland' is similarly defined in s 2 of the RIWI Act to mean a natural collection of water, whether permanent or temporary, on the surface of any land and includes - (a) any lake, lagoon, swamp or marsh; and (b) a natural collection of water that has been artificially altered, but does not include a watercourse. -- 26 of 40 -- [2026] WASAT 76 Page 27 dams on downstream ecological values would be greater.129 The seasonal impact of farm dams is shown in Figure 5-3 of the Sinclair Knight Mertz report entitled, Impacts of Farm Dams on Streamflow, November 2008.130 Figure 5-3 is reproduced below. 80 As stated earlier, the Whicher Allocation Plan sets out how the Department will allocate and licence surface water in the Quininup subarea of the Whicher Area, which includes the Quininup Brook catchment. The Whicher Allocation Plan provides that on-stream dams may be subject to licence conditions for when and how streamflow may be taken.131 It also provides that existing onstream dams may be required to have a low-flow bypass system132 and that licence conditions may state when flows must be bypassed during the year.133 81 In determining the terms, conditions and restrictions to be included in a s 5C licence, we must have regard to the matters listed in cl 7(2) of 129 See Prestidge and Department of Water and Environmental Regulation [2023] WASAT 9 (Prestidge) at [65]. The winter take period is derived from the sustainable diversion limit (SDL) method. An SDL is an estimate of the winterfill diversion potential, being an upper limit beyond which there is an unacceptable risk that additional extractions may degrade the riverine environment: See Estimation of Sustainable Diversion Limits for South West Western Australian Catchments, Sinclair Knight Mertz, 5 January 2009, page 1; Respondent's Bundle, page 342. 130 See Respondent's Bundle, page 221. 131 Whicher Allocation Plan, page 10; Respondent's Bundle, page 66. 132 Whicher Allocation Plan, page 10; page 47; Respondent's Bundle, pages 66 and 103. 133 Whicher Allocation Plan, page 46; Respondent's Bundle, page 102. -- 27 of 40 -- [2026] WASAT 76 Page 28 Sch 1 to the RIWI Act which include whether the term, condition or restriction is in keeping with previous decisions of the Minister.134 82 It is the respondent's position that, consistent with the Whicher Allocation Plan, the WTP Condition and Bypass Condition are generally imposed on surface water licences within the Quininup subarea.135 The respondent says that it has been including winter take period and bypass conditions at licence renewal, and on new licences, since January 2016.136 At the time that the Current Licence was issued, the directive to licensing officers was to impose winter take period and bypass conditions on surface water licences in the Whicher Area.137 83 The applicant says that the Department's approach to the imposition of the WTP Condition and Bypass Condition, as revealed by the evidence of Mr Bennett,138 was policy driven despite the circumstances of the particular case.139 Specifically, the applicant points to the continuous contribution the Lot 14 Dam makes to Quininup Brook from seepage throughout the year, including a significant part of the summer months when there is no prospect of such a contribution via a by-pass system (in the absence of an extraordinary rainfall event).140 In addition, at the time the conditions were imposed, the applicant says that there was no evidence of environmental detriment to Quininup Brook below the Lot 14 Dam (which it contends is supported by Mr Green's evidence).141 Findings 84 We find that the imposition of the WTP Condition and Bypass Condition reflects the purpose of the Whicher Allocation Plan which is to facilitate the active management of surface water resources in order to provide greater security for water users and the downstream environment.142 Further, based on the evidence of Mr Bennett, which we accept, we find that the Department has consistently imposed winter take period and by-pass conditions at licence renewal, and on new licences, since January 2016. We accept Mr Bennet's evidence, and we 134 RIWI Act, Sch 1, cl 7(2)(g)(iv). 135 Respondent's closing submissions, para 28(e); Respondent's Supplementary Bundle filed on 31 October 2025 (Exhibit 2), page 37; ts 190 - 191, 10 December 2025. 136 Respondent's opening submissions, para 55; Respondent's Bundle, pages 733 - 734. 137 Mr Bennett's statement, paras 76, 116 and 139; Respondent's Bundle, pages 733 - 734. 138 ts 200 - 201, 10 December 2025. 139 Applicant's closing submissions, para B16; ts 358, 19 March 2026. 140 Applicant's closing submissions, para B16(i). 141 Applicant's closing submissions, para B16(i). 142 Respondent's Bundle, page 59. -- 28 of 40 -- [2026] WASAT 76 Page 29 find, that the respondent imposed the WTP Condition and Bypass Condition on the Current Licence to help ensure transitional flows in the tributaries of Quininup Brook are not captured by the Lot 14 Dam but are permitted to flow downstream to the main channel of Quininup Brook and, ultimately, to Quininup Falls.143 85 We will next consider whether there is a cogent reason to depart from the policy that informed the respondent's decision to impose the WTP Condition and Bypass Condition having regard to, amongst other things, the unique hydrological features of the Lot 14 Dam. Is there a cogent reason to depart from the Whicher Allocation Plan? 86 The Whicher Allocation Plan sets out a number of objectives for managing surface water, which include to protect key ecological, cultural and social values so they are kept at an acceptable level of risk from the effect of surface water use.144 It is a policy which is relevant to our determination because it applies to the management of surface water in the Quininup subarea and informed the respondent's decision to impose the WTP Condition and Bypass Condition. We are entitled to depart from the application of that policy if there are cogent reasons or a sound basis to do so having regard to the merits of the case.145 Whilst we have considered the provisions of the Whicher Allocation Plan in making our decision, they cannot be inflexibly applied so as to fetter the exercise of our discretion.146 87 For the reasons that follow, we do not consider there is a cogent reason to depart from the application of the policy that informed the respondent's decision to impose the conditions. 88 First, we are satisfied that the WTP Condition and the Bypass Condition help ensure that transitional flows in the tributaries of Quininup Brook are able to flow downstream to meet the EWR of the main channel of Quininup Brook, including seasonal cues for the breeding and migration of aquatic species. The Department has not conducted a site-specific environment or EWR study to determine if the conditions are required to protect the ecological values of the Whicher 143 Mr Bennett's statement, paras 98 - 107. 144 Respondent's Bundle, page 89. 145 Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 644-5. For a summary of the principles relating to the application of policy, see More and Water and Rivers Commission [2006] WASAT 112 at [33] - [36]. See also Prestidge at [110] - [112]. 146 Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196 at [37] citing Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 at [24] - [26]. -- 29 of 40 -- [2026] WASAT 76 Page 30 Area, including Quininup Brook. Nevertheless, for the reasons already given, we are satisfied that the EWR studies completed in the nearby Wilyabrup Brook and Cowaramup Brook catchments can be relied on to provide an understanding of flow rate and ecological function for Quininup Brook. 89 Second, whilst there was no dispute that the Lot 14 Dam is leaky and might satisfy the Bypass Condition on certain days in October,147 the rate and period of seepage through the dam wall was not supported by reliable evidence for the reasons already given. Consequently, we are not satisfied that the 'leaky' nature of the dam wall would consistently allow sufficient seepage to reach the downstream environment and meet the EWR of Quininup Brook, particularly during dry season low flows. Further, we do not consider that the imposition of the Bypass Condition will impact the riparian vegetation of the Lot 14 Dam or that protecting its ecological values outweighs the importance of safeguarding transitional flows for the benefit of downstream water-dependent ecosystems. 90 Third, the Lot 14 Dam has a surveyed volume of 112.48 megalitres.148 There was no evidence before us to suggest that the imposition of the WTP Condition and Bypass Condition would prevent the applicant from utilising its full AWE of 17 megalitres. 91 Fourth, the Bypass Condition could be achieved by the installation of a siphon pipe system which is not cost prohibitive.149 Whilst Mr Fogarty considers a siphon would be more effective if it were installed on the Riparian Dam,150 we are satisfied that older dams, like the Lot 14 Dam, are suitable for such a system and it would be the most practical solution.151 Notably, a consultant engaged by Mr Fogarty to carry out a safety inspection of the Lot 14 Dam recommended, amongst other things, that a 'simple siphon pipe system' could be installed to provide a low-flow bypass.152 Further, even with the siphon in place, the applicant can continue to use surface water for its established activities on Lot 131 by pumping water from the Lot 14 Dam. 147 The Bypass Condition was likely being met at the time of Mr Owen's site visits on 29 October 2024 and 16 October 2025, see Mr Bennett's statement, paras 171 - 177; ts 198, 200, 211, 10 December 2025. 148 Joint Statement, page 3. 149 Mr Bennett's witness statement, para 147; Mr Mulcahy's expert report, page 6; Respondent's Bundle; pages 737, 769 and 810; ts 212, 10 December 2025 (Mr Bennett's evidence); ts 248 - 249 (Mr Mulcahy's evidence). 150 ts 323, 11 December 2025. 151 ts 212, 10 December 2025; ts 249, 11 December 2025. 152 Exhibit 11, page 5. -- 30 of 40 -- [2026] WASAT 76 Page 31 92 Fifth, the Lot 14 Dam is the last farm dam before Quininup Falls, which is a recreational, tourist and culturally significant site in the South West. As stated above, the scope of the 'public interest' for the purposes of Pt III of the RIWI Act may extend to economic, social or recreational benefits to the public, or a section of the public.153 We consider that protecting transitional flows in Quininup Brook, downstream of the Lot 14 Dam, particularly in a drying climate, is in the public interest and consistent with the purpose of Part III of the RIWI Act which is the management of scarce water resources for the benefit of the public generally.154 93 Because we have not found a cogent reason to depart from the application of the Whicher Allocation Plan and having regard to the mandatory relevant considerations in cl 7(2) of the Sch 1 to the RIWI Act, we are satisfied that the correct and preferable decision is to impose the WTP Condition and Bypass Condition on the Current Licence. However, based on the evidence of the joint experts, we consider that the winter take period should be modified. What is the appropriate winter take period? 94 Mr Green observed that depending on where the four-month winter take period is positioned in the calendar year, it is possible that the dates could capture the entire wet season flow in some years and, consequently, not pass any transitional flows to the downstream environment.155 95 The WTP Condition provides that the applicant 'shall only take water from the watercourse to fill the Lot 14 Dam between 1 June and 30 September, or as otherwise directed by the Department'. The applicant contends that if the Tribunal decides not to remove the WTP Condition, the winter take period should be extended to 15 October.156 96 The joint hydrology experts were questioned extensively at the final hearing about the accuracy of data generated by the streamflow gauge on Quininup Brook. Dr Jordan used a STEDI157 model to calculate unimpacted daily flows at the streamflow gauge for 2015 - 153 RIWI Act, Sch 1, cl 1. 154 Crossley at [205]. 155 Mr Green's statement, paras 118, 159 - 187. 156 Applicant's SIFC, para 71. 157 Spatial Tool for Estimation of Dam Impacts. -- 31 of 40 -- [2026] WASAT 76 Page 32 2019 and 2021.158 He determined the unimpacted flow for the Quininup Brook catchment using recorded flow, for the days when reliable data was available (2015 - 2019 and 2021), and daily flows derived from the Sacramento model for the remaining days between 2000 and 2025.159 For those periods when the Sacramento model was applied, i.e. before 2015, after 2021 and for the period of missing and unreliable gauge data in 2020, the Sacramento model under-predicted the inflow volumes by 4.3% on average.160 For those periods when gauge data was applied (2015-2019 and 2021) there was no bias in inflows.161 97 A STEDI model was also used to calculate daily inflows to the Lot 14 Dam for January 2000 to July 2025. Because the STEDI model assumed that the daily runoff generated per unit catchment area on each day between January 2000 and July 2025 was the same across the catchment upstream of the streamflow gauge and the catchment of the Lot 14 Dam, Dr Jordan multiplied the unimpacted flows on each day at the streamflow gauge by 76.3% to produce the daily unimpacted flow to the Lot 14 Dam.162 98 In Mr Mulcahy's opinion, the clay loam soils above the streamflow gauge would generate runoff more quickly than the Lot 14 Dam catchment which comprises around 30% deep sands (which are more permeable).163 He also considered that the terrain above the streamflow gauge was of a higher gradient than the catchment of the Lot 14 Dam.164 Based on soil type and terrain, Mr Mulcahy said that the streamflow gauge would experience greater flows than the flows upstream of the Lot 14 Dam, which would generate less runoff.165 Consequently, Mr Mulcahy did not agree with Dr Jordan's assumption that the flow volume into the Lot 14 Dam was 76.3% of the flow recorded in the streamflow gauge on Quininup Brook.166 Because of Mr Mulcahy's personal observations and knowledge of soil types, and the fact that only one tributary was flowing into the Lot 14 Dam on 31 October 2025, the applicant says that Dr Jordan's assumption is wrong.167 It is the applicant's position that inflow to the Lot 14 Dam is 158 Joint Statement, page 2. 159 Joint Statement, page 3. 160 Dr Jordan's expert report, page 31. 161 Dr Jordan's expert report, page 31. 162 Joint Statement, page 3. 163 ts 86, 9 December 2025; ts 131, 10 December 2025. 164 ts 86, 9 December 2025. 165 ts 118, 122, 10 December 2025. 166 ts 135, 10 December 2025. 167 ts 146 - 47; ts 245; Applicant's closing submissions, C27-28. -- 32 of 40 -- [2026] WASAT 76 Page 33 significantly less than 50% of the flow rate measured at the streamflow gauge.168 99 Dr Jordan said that he had not visited the catchment above the streamflow gauge.169 He also acknowledged that it might not perform in the same way as the Lot 14 Dam catchment area because Quininup Brook, on which the stream flow gauge is located, runs through a steeper incised channel than the terrain above the dam.170 Nevertheless, the joint experts agreed, and we find, that the data produced by the streamflow gauge is the best available data for modelling the likely runoff from the three tributaries which flow into the Lot 14 Dam.171 100 Mr Mulcahy did not perform any modelling of inflows to the Lot 14 Dam. In the absence of any other model, we find that the assessment carried out by Dr Jordan of monthly inflow volumes to the Lot 14 Dam between January 2000 and July 2025 is based on the best available stream flow data for the Quininup Brook catchment. That assessment shows, and we find, that since the year 2000 there have been inflows in June in 15 - 20% of years, in July in 81 - 100% of years, in August in 100% of years, in September and October in 96 - 100% of years and in November in 60 - 72% of years.172 We further find that in every year from 2015 to 2024, there were inflows to the Lot 14 Dam from the three tributaries in September and October.173 Whilst the STEDI modelling relied on the best available data, we acknowledge that it might not reflect the precise inflows to the Lot 14 Dam by percentage. For example, Dr Jordan said that he did not adjust the parameters of the STEDI model to account for potential differences in soil characteristics174 or the terrain (due to his concerns about how accurately the contour maps disclose the form of stream channels).175 101 Ultimately, the results of the STEDI modelling support a modification to the end date of the winter take period because it shows higher catchment rainfall in September and October. The modelling also shows that rainfall in June is significantly lower than in July. Whilst we have found that the data collected by the applicant is not entirely reliable, we are satisfied that it does show that there were 168 Applicant's closing submissions, C28. 169 ts 83, 9 December 2025. 170 ts 83, 9 December 2025; ts 121, 134, 10 December 2025. 171 ts 119, 122, 10 December 2025. 172 Dr Jordan's expert report, page 34; Table 7-4. 173 Dr Jordan's expert report, page 35; Table 7-5. 174 ts 134, 10 December 2025. 175 ts 83 - 84, 9 December 2025. -- 33 of 40 -- [2026] WASAT 76 Page 34 inflows from the eastern tributary of Lot 14 to the Lot 14 Dam between 25 October 2025 and 30 October 2025.176 In Mr Fogarty's experience, inflows to the Lot 14 Dam do not normally occur in October but July 2025 had 'extraordinary rainfall'.177 102 For these reasons, and to reduce the risk of transitional flows being captured by the Lot 14 Dam, we are satisfied that the winter take period should start on 15 June (rather than 1 June) and end on 15 October (instead of 30 September). Consequently, we will make an order to vary the WTP Condition to reflect the change to the winter take period. We will make a further order to vary the dates set out in the Bypass Condition to '16 October and 14 June next' to account for the adjustment in the winter take period. This means that all flows in the watercourse (of which the Lot 14 Dam forms part) must be bypassed during that period. The terms of the WTP Condition 103 The respondent's counsel referred the Tribunal to the decision in Crossley v English [2025] WASCA 141 (Crossley) in which the WA Court of Appeal considered whether a downstream landowner has a private cause of action against an upstream landowner for a breach of statutory duty under s 20(1)(c) of the RIWI Act.178 Section 20(1)(c) of the RIWI Act provides that an owner or occupier of riparian land has the right to take water from a watercourse which runs through their land to the extent that the flow of water is not sensibly diminished. 104 The trial judge found the respondent had 'sensibly diminished' the flow of water to the appellant's downstream property.179 Consequently, the trial judge concluded that the appellant had a cause of action for breach of statutory duty pursuant to s 20(1) of the RIWI Act but that it was statute barred because the proceeding was commenced more than six years after the dam was constructed.180 On appeal, the Court did not unanimously agree that s 20(1) of the RIWI Act gives rise to a private cause of action for breach of statutory duty.181 However, the Court 176 Mr Mulcahy's expert report, page 5. A site inspection on 31 October 2025 confirmed that flow entering the Lot 14 Dam from the central tributary had stopped flowing due to the presence of sand substrate: Joint Statement, page 5. 177 Mr Fogarty's statement, para 30. 178 Because the properties of the landowners were located in unproclaimed areas, they were subject to the provisions of Div 2 of the RIWI Act: Crossley at [24]. 179 Crossley v English [No.2] [2024] WASC 268 (Crossley v English [No. 2]) at [332]. 180 Crossley v English [No.2] at [397] - [401]. 181 Crossley at [107] per Thomson J; [208] per Mitchell & Archer JJA. -- 34 of 40 -- [2026] WASAT 76 Page 35 unanimously agreed that such an action would be statute barred and dismissed the appeal for that reason.182 105 The Court in Crossley explained that a dam constructed on a watercourse 'takes' water for the purposes of the definition of 'take' in s 2(1) of the RIWI Act because the dam is 'stopping, impeding or diverting the flow of water'.183 As a result, an action for breach of s 20(1) of the RIWI Act must be commenced within the six year limitation period from the dam's construction.184 Thomson P considered the meaning of 'stopping, impeding or diverting the flow of water' in s 2(1) of the RIWI Act and determined that it is 'concerned with a singular event which affects the flow of water, rather than an event that continually affects the water which is flowing'.185 His Honour's interpretation of 'stopping, impeding or diverting the flow of water' was supported because, by reason of the definition of 'watercourse' in s 3 of the RIWI Act, once a dam is constructed on a watercourse it becomes part of the watercourse.186 Consequently, in the context of s 20(1)(c) of the RIWI Act, Thomson P said that it was difficult to see that a dam, which becomes part of the watercourse, could be regarded as continually taking water from the watercourse.187 106 Because the installation of the Lot 14 Dam was the event that 'takes' water for the purposes of s 2(1) of the RIWI Act, the respondent's counsel suggests that the WTP Condition could be modified to delete the word 'take' and substitute it for the word 'allow' so that the applicant must only 'allow' water from the watercourse to fill the dam between 1 June and 30 September (or another date range as determined by the Tribunal).188 107 In our view, the respondent's proposed amendment is unnecessary because the use of the word 'take' in the WTP Condition is consistent with the language of s 5C of the RIWI Act, which provides, relevantly, that a person must not 'take' water from any watercourse except under a licence granted by the Minister in accordance with Sch 1 to the RIWI Act. 182 Crossley at [152] - [153] per Thomson P; [209] per Mitchelle & Archer JJA. 183 Crossley at [123]; see para (b) of the definition of 'take' in RIWI Act, s 2(1). 184 Crossley at [151]. 185 Crossley at [122]. 186 Crossley at [123]. 187 Crossley at [125]. 188 Respondent's closing submissions, para 11. -- 35 of 40 -- [2026] WASAT 76 Page 36 108 Further, for the purposes of a s 5C licence, we are satisfied that the Lot 14 Dam is continually taking water from Quininup Brook. According to Crossley, the Lot 14 Dam would have 'taken' water when it was installed by the singular event of affecting the flow of water and, therefore, must cease to 'take' water if the dam is removed from Quininup Brook. Because the 'take' ceases immediately upon the dam's removal, we consider that the dam is 'taking' (that is, it stops, impedes or diverts the flow of) water from the watercourse continually up until that point in time. 109 For these reasons, we consider that the use of the word 'take' in the WTP Condition is appropriate. 110 As a consequence of Crossley, the applicant contends that it is not required to hold a s 5C licence to lawfully 'capture' surface water because the Lot 14 Dam forms part of the watercourse and the 'take' occurred by the installation of the dam.189 (The applicant, however, acknowledged it would require a licence to pump water from the Lot 14 Dam).190 Consequently, the applicant contends that the WTP Condition and Bypass Condition are ultra vires by purporting to prohibit the applicant from 'capturing' water in the Lot 14 Dam outside particular months of the year.191 We reject those contentions because the applicant is taking water from a watercourse (of which the Lot 14 Dam forms part) by stopping, impeding or diverting the flow of water by virtue of the presence of the dam wall, and the watercourse is located in a proclaimed area to which s 5C of the RIWI Act applies. Finally, for the reasons already given, we do not consider that Crossley affects the Department's policy to impose a winter take period on new surface water licences, and at licence renewal, or gives rise to a cogent reason to depart from the application of that policy to the Lot 14 Dam as the applicant contends.192 111 As stated above, the modelling of flow rates for the Quininup Brook catchment does support an amendment to the WTP Condition to account for higher September and October rainfall. Also, because the applicant pumps water from the Lot 14 Dam to the Lot 131 Dam, we will amend the WTP Condition to refer to the dam on Lot 14 to avoid 189 Applicant's closing submissions, para 4.7; ts 350, 19 March 2026. 190 Applicant's closing submissions, para 4.5; ts 350, 19 March 2026. 191 Applicant's closing submissions, paras 4.6, and 4.11; ts 249, 19 March 2026. 192 ts 355, 19 March 2026. -- 36 of 40 -- [2026] WASAT 76 Page 37 ambiguity.193 Consequently, we will vary the respondent's decision so that the terms of the WTP Condition are as follows: 3. The licensee shall only take water from the watercourse to fill the dam on Lot 14 between 15 June and 15 October or as otherwise directed by the Department of Water and Environmental Regulation. Conclusion 112 The WTP condition and Bypass Condition are not exclusive to the Current Licence; the Department has consistently applied a winter take period on new surface water licences in the Whicher Area or at licence renewal. 113 In determining whether the Current Licence should be granted subject to the WTP Condition and the Bypass Condition, we must seek to ensure the objects set out in s 4(1) of Pt III the RIWI Act are achieved.194 We are also required to consider the matters set out in cl 7(2) of Sch 1 to the RIWI Act. Otherwise, we can have regard to all matters that we consider relevant, which includes the provisions of the Whicher Allocation Plan, the policy basis for the imposition of a winter take period on the Current Licence. 114 The winter take period helps protect the ecological values of Quininup Brook, including the habitat of downstream aquatic fauna, by the maintenance of transitional flows, which is consistent with the objects of the RIWI Act to protect water-dependent ecosystems. Maintaining transitional flows is not only ecologically sustainable but also in the public interest because those flows help support the environmental, social and cultural values of the Quininup Brook catchment, including Quininup Falls. 115 The Lot 14 Dam has unique hydrologic features in that it allows the flow of water downstream via a 'leaky' dam wall. However, we have not identified a cogent reason to depart from the application of the Whicher Allocation Plan having regard to the circumstances of this case. Based on the evidence, we are not satisfied that seepage from the dam wall is sufficient to consistently meet the EWR of Quininup Brook, particularly in respect of transitional flows, and dry season low flows. Nevertheless, the modelling of flow rates for the Quininup Brook catchment does support an amendment to the winter take period. 193 Mr Fogarty's statement, para 26. 194 RIWI Act, Sch 1, cl 4(3). -- 37 of 40 -- [2026] WASAT 76 Page 38 116 Consequently, we conclude that the correct and preferable decision is to allow the review application in part and vary the respondent's decision so that the WTP Condition and the Bypass Condition read as follows: 3. The licensee shall only take water from the watercourse to fill the dam on Lot 14 between 15 June and 15 October or as otherwise directed by the Department of Water and Environmental Regulation. 4 The licensee shall bypass all flows in the watercourse between 16 October and 14 June next. Orders The Tribunal orders: 1. The application for review is allowed in part. 2. The respondent's decision made on 13 September 2023 to grant the applicant a licence to take surface water pursuant to s 5C of the Rights in Water and Irrigation Act 1914 (WA) by Instrument No. SWL209115(1) is varied as follows: (a) The licensee shall only take water from the watercourse to fill the dam on Lot 14 between 15 June and 15 October or as otherwise directed by the Department of Water and Environmental Regulation. (b) The licensee shall bypass all flows in the watercourse between 16 October and 14 June next. -- 38 of 40 -- [2026] WASAT 76 Page 39 ANNEXURE A -- 39 of 40 -- [2026] WASAT 76 Page 40 I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal. MS C BARTON, MEMBER 2 JULY 2026 -- 40 of 40 --