BEAMISH and REGIONAL DIRECTOR, SWAN AVON REGION AS DELEGATE OF THE MINISTER FOR WATER [2026] WASAT 50

[2026] WASAT 50 Page 1 JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : RIGHTS IN WATER AND IRRIGATION ACT 1914 (WA) CITATION : BEAMISH and REGIONAL DIRECTOR, SWAN AVON REGION AS DELEGATE OF THE MINISTER FOR WATER [2026] WASAT 50 MEMBER : DR S WILLEY, SENIOR MEMBER HEARD : 5 MAY 2026 DELIVERED : 11 MAY 2026 FILE NO/S : DR 178 of 2025 BETWEEN : ANTHONY BEAMISH Applicant AND REGIONAL DIRECTOR, SWAN AVON REGION AS DELEGATE OF THE MINISTER FOR WATER Respondent Catchwords: Water licensing - Licence to take water - Application to amend licence - Middle Canning River - Management of natural resources - Relevance of policy instruments - Water allocation planning - Environmental considerations - Land formerly used for commercial purposes Legislation: Fisheries Act 1952 (Cth) -- 1 of 31 -- [2026] WASAT 50 Page 2 Rights in Water and Irrigation Act 1914 (WA), s 2(1), s 3, s 4(1), s 4(1)(a), s 4(1)(a)(i), s 4(1)(b), s 4(2), s 5, s 5A, s 5C, s 5C(1)(d), s 5C(3), s 5D, s 26GG(1)(e), Sch 1, cl 1, cl 4, cl 6, cl 6(4), cl 7, cl 7(1), cl 7(2), cl 7(2)(a), cl 7(2)(b), cl 7(2)(c), cl 7(2)(d), cl 7(2)(e), cl 8, cl 10, cl 12, cl 15(3), cl 23, cl 24, cl 24(2)(d), Div 1, Div 1A, Div 2, Div 3B, Div 3C, Div 6, Pt III State Administrative Tribunal Act 2004 (WA), s 17, s 27, s 28, s 77 Result: Decision under review is affirmed Application for review is dismissed Category: B Representation: Counsel: Applicant : In Person Respondent : Ms F Negus Solicitors: Applicant : N/A Respondent : State Solicitor's Office Case(s) referred to in decision(s): Clive Elliot Jennings v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 Crossley v English [2025] WASCA 141; (2025) 61 WAR 35 Hutchings and Shire of Augusta Margaret River [2023] WASAT 96 Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126; 50 WAR 313 Kirwan and Department of Water [2011] WASAT 137 LS v Mental Health Review Board [2013] WASCA 128 More and Water and Rivers Commission [2006] WASAT 112 Murcia Holdings Pty Ltd v City of Nedlands [1999] WASC 241; (1999) 22 WAR 1 Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331 -- 2 of 31 -- [2026] WASAT 50 Page 3 Prestidge and Department of Water and Environmental Regulation [2023] WASAT 9; (2023) 108 SR (WA) 239 Re Robinson and Secretary of Department of Primary Industry (1986) 10 ALD 302 Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 -- 3 of 31 -- [2026] WASAT 50 Page 4 REASONS FOR DECISION OF THE TRIBUNAL: 1 Mr Anthony Beamish and Mrs Alison Beamish (together, the Applicants) jointly own a property on Croydon Road, in the suburb of Roleystone (subject land). 2 On 11 April 2025, pursuant to div 2 of sch 1 to the Rights in Water and Irrigation Act 1914 (WA) (RIWI Act), they applied to amend their licence (SWL98943(8) (Licence) to increase their annual entitlement to take surface water from the stretch of the Djarlgarro Beelier (Canning River) known as the middle Canning River (Middle Canning River), from 3,970 kilolitres (kL) to 30,000 kL (Application). 3 On 6 November 2025, the Regional Director, Swan Valley Region, as the delegate of the Minister for Water (Respondent) refused the Application because the water resource (the Middle Canning River) has reached its allocation limit and any additional allocation of water would be both environmentally unacceptable and prejudicial to the needs of other water users (Refusal Decision).1 4 The Applicants seek a Review of the Refusal Decision. The Applicants challenge the decision that the water allocation for the Middle Canning River has been exhausted. They assert that the subject land once had an allocation of 50,000 kL, and the Application only seeks to 'reinstate 30,000 kL of the past [allocation of 50,000 kL]'.2 5 For the reasons that follow, in the exercise of discretion, the correct and preferable decision is to affirm the Refusal Decision and dismiss the Review. Issue 6 The ultimate issue is whether, in all the relevant circumstances, the Application to amend the Licence, to allow the Applicants to abstract 30,000 kL/year from the Middle Canning River, should be granted. Jurisdiction 7 This proceeding arises in the Tribunal's review jurisdiction.3 My task is to hear the matter de novo and to make the correct and 1 Exhibit 2, Respondent's s 24 Bundle, Document 21a (Respondent's Bundle). 2 Exhibit 3, Applicant's Statement of Issues, Facts and Contentions, dated 27 March 2026, para 37 (Applicants' SIFC). 3 State Administrative Tribunal Act 2004 (WA) (SAT Act), s 17. -- 4 of 31 -- [2026] WASAT 50 Page 5 preferable decision at the time of the decision upon the review.4 Neither party bears any legal or practical onus.5 8 In LS v Mental Health Review Board,6 Murphy JA (Newnes JA agreeing) explained that the reference to 'correct and preferable' recognises that, particularly in the exercise of discretion, there may be more than one correct decision available and that, in such cases, the decision must be the preferable one. 9 I am required to include in my reasons my findings on material questions of fact.7 In these reasons, where I state that I am satisfied as to the existence of a fact, I mean I am satisfied on the balance of probabilities that the fact has been proven. Factual background Applicants' purchase of the subject land 10 On 14 October 2023, the Applicants contracted to purchase the subject land,8 which has an area of approximately 6.4 hectares (ha). The contract annexed a copy of the Licence (being SWL98943(7)), which had an annual water entitlement of 3,970 kL. On 15 January 2024, the Applicants became the registered proprietors of the subject land. 11 On 2 February 2024, the Applicants submitted an application to the Department of Water and Environmental Regulation (Department) to transfer, to themselves, the Licence. On 7 May 2024, the Licence was issued to the Applicants. The Licence provides for an annual extraction of 3,970 kL and has effect from 7 May 2024 until 4 February 2030. The making, and determination, of the Application 12 On 11 April 2025, the Applicants applied to amend the Licence. The details relating to the proposed water use were as follows: (a) horticultural use across 3.3 ha; (b) 3,300 Pinus radiata (Monetary pine) trees per ha, to be irrigated by sprinkler; and 4 SAT Act, s 27. 5 Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331 [115] (the Court). 6 LS v Mental Health Review Board [2013] WASCA 128 [92]. 7 SAT Act, s 77. 8 Being Lot 104 on DP 40071, Volume 2559, Folio 481. -- 5 of 31 -- [2026] WASAT 50 Page 6 (c) an estimated annual quantity of water of 30,000 kL. 13 The Applicant later clarified that the Application was to increase the allocation to, not by, 30,000 kL.9 14 On 31 July 2025, the Department advised the Applicants that the Application was proposed to be refused because the abstraction from the Middle Canning River resource has exceeded the allocation limit. The Applicants were invited to provide written submissions in support of the Application. These submissions, which I will shortly come to, were made on 1 October 2025.10 15 Also on 31 July 2025, the Applicants made inquiries with the Department as to previous water entitlements relating to the subject land, which had previously been operated as a commercial rose farm. Via a Freedom of Information application, the Applicant obtained a copy of SWL98943(2) which, from 28 June 2000 to 30 June 2004, provided for an annual water extraction of 50,550 kL.11 16 On 28 August 2025, the Applicants queried whether the Department would compensate them for the costs associated with bore installation and pumps on the subject land, which had cost approximately $50,000. Unsurprisingly, the Department advised it had not considered compensation claims of that nature. 17 On 1 October 2025, the Applicants made submissions in support of the Application. Those submissions were to the effect that:12 (1) the purpose of the Application was to irrigate an ultimate plantation of 9,000 Pinus radiata; (2) before purchasing the subject land, in July 2023, the Applicants (Mr Beamish) had spoken with a customer consultant service representative within the Department; (3) Mr Beamish had continued to liaise, by telephone, with a Departmental employee in the Business Support Unit, up until the Application was lodged on 11 April 2025; 9 Respondent's Bundle, Document 18c, page 94. 10 Respondent's Bundle, page 82. 11 Respondent's Bundle, page 81. 12 Exhibit 1: Respondent's Statement of Issues, Facts and Contentions, dated 20 March 2026, para 19 (Respondent's SIFC). -- 6 of 31 -- [2026] WASAT 50 Page 7 (4) the Applicants were never advised that the water allocation that once applied to the subject land, at the time that it operated as a rose farm, 'could not be increased back'; (5) the Department were 'encouraging' toward the Application, and advised it would review the allocation, on the basis that the Applicants were intending to, in-effect, reinstate commercial horticultural uses on the subject land; (6) a plantation of Pinus radiata would be expected to provide wider benefits, including local employment and tourism opportunities for Roleystone, given the subject land adjoins the Araluen Botanical Gardens (Araluen); and (7) the financial impact of a water bore and pumps would be $100,000. 18 The Refusal Decision was made on 6 November 2025. The Review was lodged on 19 November 2025. 19 I turn, now, to set out the relevant provisions of the RIWI Act, as they relate to the making, and determination, of the Application. The RIWI Act The licensing of the entitlement to take water 20 By its long title, the RIWI Act is directed to the regulation, management, use and protection of water resources across the State. 21 Part III of the RIWI Act deals with the control of water resources.13 The objects of pt III are set out in div 1 and by s 4(1) include, relevantly, to provide for the management of water resources, in particular for their sustainable 'use and development'14 to meet the needs of current and future users' and to protect 'their ecosystems and the environment in which the water resources are situated'.15 A further object is 'to promote the orderly, equitable and efficient use of water resources'.16 13 Crossley v English [2025] WASCA 141; (2025) 61 WAR 35 [26] (Thomson P). 14 RIWI Act, s 4(2) the reference to 'use and development' in s 4(1)(a)(i) includes use and development for domestic, commercial, recreational, cultural and navigational purposes. 15 RIWI Act, s 4(1)(a). 16 RIWI Act, s 4(1)(b). -- 7 of 31 -- [2026] WASAT 50 Page 8 22 The Minister, and other persons performing functions under the RIWI Act, are to seek to ensure that the objects set out in s 4(1) are achieved. 23 Division 1A of pt III sets out the ownership and control of waters. By s 5A, right to the use and control of water in any 'watercourse',17 wetland or underground water source is vested in the Crown, except as allocated under the RIWI Act or another written law.18 The right to take water cannot be established by length of use, or otherwise, except in accordance with the RIWI Act.19 24 By s 5C, it is an offence to 'take'20 water from any watercourse, except in accordance with a licence granted by the Minister in accordance with sch 1 to the RIWI Act, which has effect to make provision for, and in relation to, licences provided for in s 5C(1)(d) (5C licence) which, relevantly, includes Licence.21 25 The Canning River was proclaimed under the RIWI Act in 1942,22 the effect of which is that non-riparian use of the water resource is to be regulated by way of a licence, granted pursuant to s 5C of the RIWI Act. The Minister's power to amend a 5C licence 26 Schedule 1 to the RIWI Act is directed to licensing and related provisions. The follow features of that legislative scheme may be noted. 27 Division 1 addresses preliminary matters, including that a reference to 'licence' in sch 1 means a 5C licence. The term 'public interest' means the 'public interest having regard to any economic, social or recreational benefits to the public, or to a section of the public'.23 28 Division 2 addresses applications for licences and decisions thereon. Where the Minister proposes to refuse an application for a 5C licence, the Minister is to notify the applicant of the Minister's proposed refusal, and the applicant has a right to make written 17 RIWI Act, s 3 defines 'watercourse' to mean relevantly, 'any river, creek, stream or brook in which water flows'[.] 18 RIWI Act, s 5, which is not relevant to the Review, sets out waters to which the RIWI Act does not apply. 19 RIWI Act, s 5D. 20 RIWI Act, s 2(1) defines 'take' to mean, relevantly, 'to remove water from … a watercourse … by pumping or siphoning water'. 21 RIWI Act, s 5C(3). 22 Respondent's Bundle, page 351. 23 RIWI Act, Sch 1, cl 1. -- 8 of 31 -- [2026] WASAT 50 Page 9 submissions or be heard by a delegate for that purpose.24 The Minister is to have regard to any written submission made by an applicant.25 29 Pursuant to cl 7(1), the grant or refusal of a 5C licence, and the applicable conditions and restrictions are, subject to cl 8, at the discretion of the Minister. Clause 8 directs the Minister to refuse to grant a 5C licence if the Minister considers that the person will not be willing or able to comply with any terms, conditions or restrictions. 30 Clause 7(2) sets out a range of matters that the Minister is to, if considered relevant, have regard to in relation to the proposal to take water. I shall return to discuss the terms of cl 7(2) of sch 1 later in these reasons. However, for ease of reference, they are set out below: (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 (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 - 24 RIWI Act, Sch 1, cl 6. 25 RIWI Act, Sch 1, cl 6(4). -- 9 of 31 -- [2026] WASAT 50 Page 10 (i) land use planning instruments; or (ii) the requirements and policies of other government agencies; or (iii) any intergovernmental agreement or arrangement. 31 Division 3 of sch 1 addresses the terms, conditions and restrictions of a 5C licence. The matters to which licence, terms, conditions or restrictions may relate are contained in the Appendix to sch 1 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 32 Division 6 deals with, relevantly, applications to amend a 5C licence.27 Pursuant to cl 23, a licensee may apply to amend a 5C licence. Where an application to amend a license is made, cls 4, 6, 7, 10 and 12, as well as div 3, apply, with all necessary modifications, as if it were an application for a grant of a 5C licence. By cl 24, the Minister has power, at any time, to vary the duration, as well as any term, condition or restriction on a 5C licence, and to include a new term, condition or restriction.28 33 Division 3B of pt III provides a right of review in relation to a decision on a 5C licence, including a decision on an application to amend.29 Allocation planning for the Middle Canning River 34 As I have set out, the subject land is within the Middle Canning River catchment, being the stretch of the Canning River that runs through the cities of Armadale, Gosnells, Kalamunda and Canning between the Canning Dam and the Kent Street Weir.30 35 The Middle Canning River is a highly modified system. That is due to dams and pumping stations associated with Perth's Integrated Water Supply Scheme (IWSS). The infrastructure associated with the IWSS is managed by the Water Corporation, and includes three public water supply dams (Canning, Churchman Brook and Victoria) and two 26 RWI Act, Sch 1, cl 15(3) read with Appendix to Sch 1, item 2. 27 Ord Irrigation Cooperative Ltd v Department of Water [32] - [36]. 28 Prestidge and Department of Water and Environmental Regulation [2023] WASAT 9; (2023) 108 SR (WA) 239 [124]. 29 RIWI Act, s 26GG(1)(e). 30 Respondent's Bundle, page 347. -- 10 of 31 -- [2026] WASAT 50 Page 11 pumpback stations (Araluen and Bickley). The completion of the Canning Dam in 1940, Perth's primary water source until the 1960s, prompted the 1942 proclamation of the Canning River under the RIWI Act.31 36 Following the construction of the dams, downstream flows reduced dramatically. As a result, each summer some treated IWSS water has been released downstream. The purpose of these seasonal releases was, initially, to enable those living alongside the river to access water for economic and domestic purposes. This demand has gradually reduced over time as the catchment has urbanised and direct access for water users from the IWSS has increased. However, summer releases have contributed to maintaining the river's ecological, social and cultural values. 37 Since 1940, almost all water from the Canning River has been stored to provide water for the IWSS. The Canning River is fed by local catchment runoff during winter and the summer releases. Winter rainfall is declining and there are competing demands for IWSS water from the broader region.32 The combination of low flows and ongoing abstraction mean that not all needs can be met, especially in dry years. 38 Despite its altered nature and urbanised catchment, the Middle Canning River retains significant values and benefits the community, and continues to support both ecological and cultural features, and contributes to the overall health of the Derbarl Yerrigan (Swan River).33 39 The planning for the allocation of water for the Middle Canning River is set out in the (then) Department of Water's 2012 Middle Canning River: surface water allocation plan (Water Allocation Plan)34 and the 2024 Evaluation Statement of the Water Allocation Plan (2024 Evaluation),35 which I now turn to. Water Allocation Plan 40 The Water Allocation Plan replaced the Canning River: interim allocation policy (1996) (Interim Policy). The Water Allocation Plan emphasises that the Canning River continues to be fed by local catchment 31 Respondent's Bundle, page 351. 32 Respondent's Bundle, page 126. 33 Respondent's Bundle, page 150. 34 Respondent's Bundle, Document 23. 35 Respondent's Bundle, Document 29. -- 11 of 31 -- [2026] WASAT 50 Page 12 runoff during winter and, as part of the IWSS, summer releases of water continue to meet downstream social and ecological needs. Winter rainfall is declining and there are competing demands for IWSS water from outside the Water Allocation Plan area.36 41 The Water Allocation Plan establishes an allocation limit, which takes account of both the inflows from the catchment, and releases from the IWSS. Noting the reduced rainfall and declining runoff from streams, the Water Allocation Plan states that 'the [Canning River] cannot sustain the current levels of abstraction'.37 42 The demand for water with the Canning Middle River exceeds the volume of water available for allocation. Furthermore, the volume of water available for allocation is decreasing. In dry years, the differential between the demand for water, and the volume of water available to be allocated, is more pronounced.38 43 To bring the extracted volume of water closer to a level that is sustainable, the Water Allocation Plan reduced the allocation limit by 10% (to 650,000 kL/year).39 The status of the Canning River as a water resource for the purposes of licensing was stated to be '[no] new water available (over-allocated)'.40 The policy for the allocation of water is designed to maximise the beneficial use of what is a high-value resource, by providing some water for use and some for key environmental flows. The licensing process will be used to share the available water, up to the allocation limit.41 44 Under the Water Allocation Plan, the Department manages the Middle Canning River as an overallocated water resource. The Department's policy is to recoup unused licence entitlements and will not reallocate recouped water entitlements. As land uses change, the Department takes the opportunity to recoup water, and may, consistent with the objectives of the Water Allocation Plan, review the allocation limit.42 45 The Water Allocation Plan explains that the allocation limit will be reviewed at the point that water is recouped: 36 Respondent's Bundle, page 126. 37 Respondent's Bundle, page 134. 38 Respondent's Bundle, page 137. 39 Respondent's Bundle, pages 134 - 135. 40 Respondent's Bundle, page 135. 41 Respondent's Bundle, page 137. 42 Respondent's Bundle, pages 137, 139. -- 12 of 31 -- [2026] WASAT 50 Page 13 • such that total entitlements are below the licensable component of the allocation limit; and • water has been recouped to a level within 5% of the allocation limit.43 The 2024 Evaluation 46 The 2024 Evaluation is, in effect, a review of whether the Water Allocation Plan has operated to meet its objectives for managing the use of the water resource, whilst maintaining the river and its surrounds as a significant urban river environment.44 47 The 2024 Evaluation explains that the Middle Canning River provides water to 63 licence users, and up to 30 properties with a riparian right, for the purposes of watering of gardens, orchards or vegetables for personal use: irrigation of pasture or stock watering, and irrigation of public open space. Of the 63 licence holders, 40 of these entitlements are for less than 5,000 kL/year.45 48 The 2024 Evaluation found: (a) in the context of climatic factors, rainfall levels had continued to reduce, such that the streamflow in the Canning River is being impacted, and the declines in rainfall, especially during autumn and early winter, have been more pronounced than anywhere else in Australia;46 (b) future climate projections indicate that rainfall will continue to decline, and temperatures increase, presenting significant challenges for managing the use of water from the river, as well as the summer releases from the IWSS which support the river's ecological, cultural and community values;47 (c) since the 2012 adoption of the Water Allocation Plan, the policy of recouping unused water entitlements had resulted in the general licencing component being reduced from 608,000 kL/year to 390,000 kL/year;48 43 Respondent's Bundle, page 150. 44 Respondent’s Bundle, page 347. 45 Respondent's Bundle, page 364. 46 Respondent's Bundle, page 360. 47 Respondent's Bundle, page 347. 48 Respondent's Bundle, page 358. -- 13 of 31 -- [2026] WASAT 50 Page 14 (d) since the 1996 release of the Interim Policy, the surface water resources of the Middle Canning River have been fully allocated;49 (e) owing to long-term declines in rainfall as a result of climate change; the reduction in surface water use has not translated to increased river streamflow;50 and (f) in the context of continuing declines in rainfall and surface water streamflow, the Department will continue to recoup unused water entitlements and review and further reduce the allocation limit so that total entitlements: (i) are below the general licensing component of the allocation limit; and (ii) fall to within 5% of the allocation limit. Other Department policies 49 The Department has prepared three further policies which arise for consideration in the Review. 1. Principles and guidelines for assessing water licence and permit application in Western Australia 50 The intent of the Principles and guidelines for assessing water licence and permit applications in WA (November 2024) (Assessment Policy),51 is to, relevantly, provide advice and guidance to officers exercising discretion pursuant to cl 7(2) of Sch 1 to the RIWI Act, and to develop and formalise a consistent process and interpretation of the considerations to be used by licensing offices throughout Western Australia.52 51 The Assessment Policy informs and guides the exercise of discretion with respect to the relevant considerations identified in cl 7(2), including inter alia: (a) as to the public interest (cl 7(2)(a)), relevant considerations include:53 49 Respondent's Bundle, page 365. 50 Respondent's Bundle, page 365. 51 Respondent's Bundle, Document 28, being Operational Policy No. 3. 52 Respondent's Bundle, page 271. 53 Respondent's Bundle, page 285. -- 14 of 31 -- [2026] WASAT 50 Page 15 (i) whether the proposal benefits the public as a whole or is solely for the personal gain of an individual; (ii) the public interest in terms of whether environmental benefits, social benefits, economic benefits (including employment opportunities) or recreational benefits would be affected positively or negatively; and (iii) potential environmental, economic, social or recreational gains or losses to the community. (b) that ecologically sustainability (cl 7(2)(b)) and environmental acceptability (cl 7(2)(c)) each require an integrated consideration of environmental, social and economic elements with the objectives of achieving sustainability and ensuring environmental assets are properly valued, providing for equity within and between generations;54 (c) the question of prejudice to other current and future needs for water (cl 7(2)(d)) involves ensuring the quality and productivity of the environment and water resources are maintained or enhanced for future generations;55 and (d) whether the proposal would have a detrimental effect on another person (cl 7(2)(e)) involves consideration of potential local or regional impacts, including impacts to neighbouring water- related activities and the local community, including having regard to current demand in that area to take, and use, water. 56 52 The Assessment Policy emphasises that consideration of many of the cl 7(2) factors will, in the exercise of discretion, direct attention on the need for the assessment to take account of 'any relevant water management plans and other relevant policies'.57 2. Management of unused licensed water entitlements policy 53 The intent of the Management of unused licensed water entitlements policy (October 2020) (UE Policy)58 is to: 54 Respondent's Bundle, page 287. 55 Respondent's Bundle, page 292. 56 Respondent's Bundle, page 294. 57 See, example, Respondents' Bundle, page 288 (cl 7(2)(b)); page 291 (cl 7(2)(c)); page 292 (cl 7(2)(d)); and page 294 (cl 7(2)(e)). 58 Respondent's Bundle, Document 27, page 242. -- 15 of 31 -- [2026] WASAT 50 Page 16 (a) reduce unused licensed water entitlements to a minimum; (b) ensure that licensed water entitlements are fully utilised for the benefit of the licence holder, the community and the state; (c) reduce speculation in water allocations; and (d) ensure that decisions on managing, and in some circumstances recouping, unused licensed water entitlements are fair and equitable. 54 The UE Policy provides that: (a) an unused water entitlement is that part or all of the licensed annual water entitlement that has not been taken (used) for more than three consecutive years;59 (b) the Department will manage unused water entitlements to ensure that entitlements are fully and effectively used, in accordance with Sch 1 cl 24(2)(d) of the RIWI Act;60 (c) where the water resource is fully or over allocated, the Department will seek to actively recoup the water entitlement not being utilised;61and (d) in most situations, recouped water entitlements will be redistributed to applicants that have demonstrated a need for the water. However, circumstances may arise that require these entitlements to be retired and not be available for redistribution (for example, prevention and mitigation of environmental impacts).62 3. Extenuating circumstances for granting water entitlements resulting in Allocation Limits being temporarily exceeded 55 The Extenuating circumstances for granting water entitlements resulting in Allocation Limits being temporarily exceeded policy (August 2008) (EC Policy).63 56 The EC Policy provides that applications for additional water entitlements that exceed the Allocation Limit will generally be refused. 59 Respondent's Bundle, page 249. 60 Respondent's Bundle, page 251. 61 Respondent's Bundle, page 256. 62 Respondent's Bundle, page 258. 63 Respondent's Bundle, Document 22, page 103. -- 16 of 31 -- [2026] WASAT 50 Page 17 However, circumstances occasionally arise where there is a need to grant additional water entitlements that result in the Allocation Limit being exceeded.64 57 The Department may consider granting new water entitlements that will result in the Allocation Limit being exceeded, in 'defined circumstances', if it is determined that the risks to:65 (a) the water resource; (b) the environment; (c) other water users; (d) the Department's water resource management objectives; are acceptable and taking into account the: (i) social, cultural and economic factors; (ii) contentious issues; (iii) extenuating circumstances; and (iv) previous decisions. 58 The defined circumstances include private and commercial projects where there is significant community support and/or where it is determined by a Water Resources Management (Advisory) Committee66 that the granting of the entitlement is in the best interest of the State or community (e.g. to maintain a major industry that is vital to the State's economy or essential community facilities such as a school oval).67 59 Applications that do not comply with defined circumstances will be refused. However, if it is considered that the application has merit, it should be supported by hydrogeological, hydrological and ecological reports then a review, and possible amendment, of the Allocation Limit should be considered. An increase to the Allocation Limit will be required prior to granting any new water entitlement that is outside the defined circumstances.68 64 Respondent's Bundle, page 106. 65 Respondent's Bundle, page 108. 66 Established pursuant to Div 3C of Pt III of the RIWI Act. 67 Respondent's Bundle, page 110. 68 Respondent's Bundle, page 110. -- 17 of 31 -- [2026] WASAT 50 Page 18 Respondent's submissions 60 The Department submits that, having regard to the statutory criteria set out in cl 7(2) of sch 1, the correct and preferable decision is to affirm the Refusal Decision. 61 The Respondent contends that the Application must be evaluated on the basis as to whether inter alia it is ecologically sustainable; environmentally acceptable; prejudices both current and future needs for water and potential detrimental impacts on others.69 62 The Water Management Plan sets out the basis on which the Department will manage the beneficial use of the Middle Canning River, whilst maintain its ecological, social and cultural values, in the context of declining rainfall and increasing pressure on the water resources of the IWSS.70 63 The Water Management Plan explains that the Middle Canning River has been fully allocated since 1996 and has for some time been over-allocated; such that there is no new water available. It is a longstanding policy which draws from the Department's expertise in relation to the environmental challenges confronting the Middle Canning River, and how best to balance that considerations in the context of the community's needs. 64 The fact that the Middle Canning River is over-allocated supports the Respondent's Refusal Decision. By reference to the decision of the Tribunal in More and Water and Rivers Commission (More),71 the Respondent submits that the general policy principles embedded within the Water Management Plan should ordinarily be applied, unless the application of such principles would be unjust in the circumstances. If it is not to be applied, there should be cogent reasons for the departure. 65 The Middle Canning River continues to be under pressure and faces significant challenges looking forward. While reductions to abstraction levels have been imposed since the Water Management Plan, the challenges arising from climate change, particularly declining rainfall, has meant that there has been no increase in river flow. 69 Respondent's SIFC, para 35. 70 Respondent's SIFC, para 36. 71 More and Water and Rivers Commission [2006] WASAT 112 [34]. -- 18 of 31 -- [2026] WASAT 50 Page 19 66 Furthermore, no support for the Application can be drawn from the range of Department policies that arise for consideration. 67 While the EC Policy does provide some allowance for the allocation limit to be exceeded in defined circumstances, the policy provides that applications for private and commercial water extraction and use will generally be refused. While projects with significant community support or which are otherwise vital to the economy or an essential community facility may constitute a 'defined circumstance', the proposal for a tree farm plantation of Pinus radiata is not such a project. 68 To the extent that the Applicants seek to justify the Application based on a previously granted water entitlement (SWL98943(2)), such reliance is misplaced. At the time the Applicants contracted to purchase the subject land, the then applicable allocation (of 3,970 kL/year) under the Licence was apparent. The unused entitlements of previous owners have been retired so as to manage the issues arising from the Middle Canning River being over-allocated. Those water entitlements are no longer available to be reallocated to anybody, including the Applicants. 69 The Assessment Policy, which provides guidance on the consideration and application of the cl 7(2) factors, also support the Refusal Decision. Considerations of ecological sustainability (cl 7(2)(b)) and environmental acceptability (cl 7(2)(c)) require that the decision- maker deal carefully with issues such as risk, and to ensure that environmental assets (such as the Middle Canning River) are properly valued, and to provide for both inter-generational, and intra-generational, equity.72 70 The Middle Canning River, while being a heavily modified system, still retains important ecological, community and cultural values downstream of the dams. These values have been supported and maintained by the IWSS, of which summer river releases have been part. The ecological values include sustaining diverse communities of both flora and fauna, as well as fish and crayfish species. There is also community connection to the river, including its ecological values. The river provides important recreational and aesthetic opportunities. Furthermore, the Canning River holds particular significance to the Whadjuk Noongar people:73 72 Respondent's SIFC, para 45. 73 Respondent's Bundle, page 352. -- 19 of 31 -- [2026] WASAT 50 Page 20 … who have a deep sense of respect for, and kinship with, the river and adjacent Country. There are many places of cultural significance along the river, such as ancestral birthing, burial, hunting and gathering, camping, and fishing sites which are still recognised and visited by Noongar people today[.] 71 The Respondent submits that the Middle Canning River's ecological, community and cultural value would be significantly prejudiced if the Application were approved, to allow the annual entitlement to take water to be increased to 30,000 kL/year. The allocation limit has been set to gradually reduce the annual extraction limit down to a level that is 'closer to sustainable abstraction levels'.74 72 The combination of a decline in both annual rainfall and surface water streamflow has put the river's downstream, ecological, community and cultural values at risk, and any allocations beyond the allocation limit will further compromise flows that support these important values.75 73 The Application also raises questions of potential prejudice to current and future needs (cl 7(2)(d)) as well as detrimental effects on others (cl 7(2)(e)). That is, the Application poses both an immediate threat to those that rely on the river's values across the local and regional community, as well as future generations. 74 The Respondent further submits that the Middle Canning River is already an over-allocated resource. A decision to allow the Applicants to take 30,000 kL/year would prejudice the capacity of other users to take their licensed entitlements, and reduces long-term reliability of the resource for users, both present and future. 75 The Application is to facilitate a commercial plantation of Pinus radiata. It is a venture directed to extracting a private benefit for the Applicants. While the Applicants' submissions make general reference to possible tourism and employment opportunities, no credible evidence of community benefit has been offered.76 In any event, any such benefits must be considered against the negative impacts on the long-term viability and reliability of the water resource arising from that additional abstraction. 74 Respondent's Bundle, page 134. 75 Respondent's SIFC, para 47. 76 Respondent's SIFC, para 51. -- 20 of 31 -- [2026] WASAT 50 Page 21 76 There is no cogent reason to depart from the guidance provided by the Water Allocation Plan. Accordingly, the Application to amend the Licence should be refused. Applicants' submissions 77 Before the purchase of the subject land, Mr Beamish contacted the Department and was told he could apply to increase the annual abstraction permitted under the Licence. However, he explains that he was not told that the Middle Canning River was over-allocated or that there might be any issue in seeking to increase the abstraction entitlement under the Licence. 78 The Applicants submit that the subject land had previously been allocated 50,000 kL/year to run the Brenton Rose Farm, a commercial venture that was well supported by the community and which complemented the adjacent Araluen.77 79 While the entitlement to take the permitted volume of water was withdrawn when the rose farm ceased, it should now be reinstated as the subject land is again proposed to be used for commercial purposes, in a manner that compliments the region.78 In doing so, the Applicants seek only to reinstate 60% of these previous entitlements that apply to the subject land (being 30,000 kL/year). 80 Accordingly, the Review should be allowed, so as to allow the current entitlement to take water to be increased to 30,000 kL/year. Disposition 81 For the following seven reasons, the correct and preferable decision is to affirm the Refusal Decision and to dismiss the Review. 82 Firstly, the Review arises in the context of the licensing regime for the management of water resources, including the abstraction of water, provided for by the RIWI Act. The objects of the RIWI Act, which I have referred to above, unsurprisingly focus on the management of water resources, such as the Middle Canning River, for the longer term, to ensure their sustainable use and development to meet the needs of current and future users. These objects extend to protecting their 77 Applicants' SIFC, para 41. 78 Applicants' SIFC, para 42. -- 21 of 31 -- [2026] WASAT 50 Page 22 ecosystems and environment, to regulate detrimental activities and to promote the orderly, equitable and efficient use of water resources. 83 The RIWI Act also acknowledges, by the meaning attributed to 'use and development', that water resources are of broad significance across the community, and are relevant to domestic, commercial, cultural and navigational application. That is, it is evident that there are competing demands on access to, and use of, water resources. 84 While the objects of the RIWI Act provide for the 'orderly, equitable and efficient use' of water resources, and acknowledge that water resources have application in commercial uses, these objects, read and understood together, are overwhelming directed to the long-term sustainable management of water resources as a community asset. In More,79 the Tribunal observed that the 'prevalent theme of the s 4 objects is the ecologically sustainable management of water resources'. Furthermore, the management of water resources includes the protection of the ecosystems and environments where the water resources are situated. 85 The Minister and other persons that have relevant functions under the RIWI Act, including the Tribunal in the context of the Review, are to seek to ensure that the objects set out in s 4(1) of the RIWI Act are achieved. 86 Those objectives provide that the statutory context in which applications for 5C licences are made and determined, including, relevantly, the Licence. 87 Secondly, and following on from above, by s 5A of the RIWI Act, the right to use and flow, and to the control, of the water at any time in any watercourse vests with the Crown. That is, the natural waters within the State are public assets. 88 Therefore, like any application for a licence to take water under pt III of the RIWI Act, the Application seeks to access and exploit a water resource, which is a finite natural resource. 89 Accordingly, as the Tribunal explained in More,80 the management of public assets, including natural resources, are primarily focused on the protection and management of the resource. This can be contrasted with, 79 More [67]. 80 More [75(3)]. -- 22 of 31 -- [2026] WASAT 50 Page 23 for example, immigration cases where the focus is on the individual circumstances of an applicant. 90 Furthermore, as the Tribunal explained in More,81 and as I set out in Hutchings and Shire of Augusta Margaret River,82 where I was dealing with a proposal to clear native vegetation, regard must be had to the cumulative effect of a series of seemingly modest applications to exploit a common and natural resource. The overall cumulative impact on the resource, and thus the community, may well far exceed the incremental benefits that accrue to individuals. That is, the importance of the resource from the community perspective needs to be considered when evaluating individual applications to exploit that resource. 91 In More, the Tribunal, which included then Barker P, found that the objects of the RIWI Act indicate that a precautionary approach is to be taken to the management of water resources.83 I agree. The common thread that runs through the objects in s 4(1) is the need for water resources to be sustainably managed, not only by the Minister, but anyone that performs functions under the RIWI Act, for the benefit of the public over the longer term. 92 Thirdly, the Respondent's case is premised on the principles which underpin the Water Allocation Plan and the 2024 Evaluation. Neither of these instruments are made pursuant to the terms of the RIWI Act, nor are they government policies for the purposes of s 28 of the SAT Act. They are each a non-statutory policy. The same can be said for the Assessment Policy, the UE Policy and the EC Policy (together the General Policies). 93 However, I am satisfied that the Water Allocation Plan, the 2024 Evaluation, and the General Policies, are each relevant considerations, which I am entitled to have regard to, in the exercise of discretion. 94 The chapeau to cl 7(2) provides that, in exercising the discretion as to, relevantly, an application to amend a 5C licence, the Minister 'is to have regard to all matters that the Minister considers relevant including' those factors expressly identified in subclauses (a) to (h), which are themselves broadly stated. That is to say, the considerations to which 81 More [76]. 82 Hutchings and Shire of Augusta Margaret River [2023] WASAT 96. 83 More [82]. -- 23 of 31 -- [2026] WASAT 50 Page 24 the Minister may have regard under cl 7(2), includes, but is not limited to, those matters identified in subclauses (a) to (h). 95 In Water Conservation and Irrigation Commission (NSW) v Browning (Browning),84 the transfer of irrigation-farm leases required the consent of the relevant water commission, and that the granting or refusal of consent 'shall be entirely in the discretion of the' water commission. 96 In Browning, Dixon J characterised the water commission's discretion as being 'unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments … '.85 97 Accordingly, in the context of the Review, the scope of considerations the Minister, or Delegate, may have regard to under cl 7(2) are broad and wide ranging, limited only by the subject matter, scope and purpose of the RIWI Act. 98 I am satisfied that the Water Allocation Plan and the 2024 Evaluation each fall within the subject matter, scope and purpose of the RIWI Act. They are each policy instruments directed to managing abstraction from the Middle Canning River and inform an understanding of the public interest, questions of ecological sustainability and the current and future needs of both the water resources, and those who benefit from it. The General Policies, together, set out the Department's general policy principles that apply to the management of water resources across the State. 99 The fact that the terms of the RIWI Act do not expressly provide for such policy instruments is not to the point. As then Barker J explained in Clive Elliot Jennings v Western Australian Planning Commission (Clive Elliot Jennings),86 the adoption of policies to guide the exercise of administrative power, has long been regarded by courts and tribunals as desirable. 100 Of course, no policy can be applied slavishly; nor operate to displace the exercise of discretion. Even so, as explained in Clive Elliot Jennings, in many cases the question will be why the principles embedded within the policy should not be applied. That is, in the context 84 Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21 (1947) 74 CLR 492, (Browning) 505 - 506. 85 Browning 505. 86 Clive Elliot Jennings v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 (Clive Elliot Jennings) [25]. -- 24 of 31 -- [2026] WASAT 50 Page 25 of the Review, why the water management and abstraction principles which find expression in the Water Allocation Plan and the 2024 Evaluation should not be applied. Good public administration demands no less an approach.87 101 Because I am satisfied that the Water Allocation Plan, the 2024 Evaluation and the General Policies are each relevant considerations under the RIWI Act, there is no need for me to consider whether I am required to regard these policies as 'mandatory' or merely 'permissive' considerations under the RIWI Act, in the sense explained by McLure P in Jacob v Save Beeliar Wetlands (Inc).88 For present purposes, it is sufficient that I am satisfied that each are a relevant consideration which I am entitled to have regard to. 102 Fourth, the Water Allocation Plan seeks to balance the needs of river users, including for domestic, commercial, recreational, ecological and cultural purposes. The premise of the Water Allocation Plan, at the time it was prepared in 2012, was that the Canning River was over- allocated and that, looking forward, there was a need to reduce the abstraction levels in the interests of the sustainable management of the river over the longer term. The annual abstraction level was reduced by 10% to 650,000 kL, and policy directives, such as recouping unused licence entitlements and, not reallocating recouped water entitlements were established, to reduce pressure on the water resource. 103 The 2024 Evaluation noted continued reduced rainfall levels and rising temperatures, such that the streamflow in the Canning River continues to be impacted. The surface water resources of the Middle Canning River remained fully allocated. While the general licensing component has reduced to 390,000 kL/year, because of these climatic factors, the reduction in surface water use has not translated to increased river streamflow. Therefore, despite the reduced abstraction levels, there remains a need to manage allocations as there is pressure on the water resource, which is presenting significant challenges in terms of its management, including the summer releases which support the river's ecological, cultural and community values. 104 The Respondent submits that no cogent reason has been put forward to justify a departure from the principles set out in the Water Allocation Plan and the 2024 Evaluation, the effect of which is that the Middle Canning River is, and has for some time, been over-allocated. 87 Clive Elliot Jennings [24]. 88 Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126; 50 WAR 313 [61] (McLure P, Buss JA agreeing). -- 25 of 31 -- [2026] WASAT 50 Page 26 Furthermore, there is a need for the overall abstraction of the Middle Canning River to continue to be reduced as part of the management of the water-resource for the longer term, given the effects of climate change, in particular long-term declines in rainfall. The overall abstraction rate needs to be reduced to preserve the water resource, such that it can continue to be released downstream as part of Perth's IWSS. 105 I find that consideration of both the Water Allocation Plan and the 2024 Evaluation, militate heavily against approval of the Application. While, I accept, they are policy instruments that inform, but cannot dictate, the exercise of discretion, in my view, they each, and together, should be given significant weight. That is because they inform questions of the public interest, environmental and ecological considerations, as well as the needs of current and future needs for water, which are all factors to which regard is to be had under cl 7(2). 106 It is apparent that the management of the abstraction levels from the Canning River has reached, and then, for some time, has even breached, a level that the Department, which has expertise in the management of water resources, regards as being sustainable. Hence, the Water Allocation Plan, later supplemented by the 2024 Evaluation, is, in effect, a policy reversal to attempt to better manage and preserve the waters within the Canning River to preserve broader regional needs, including the summer releases. 107 Accordingly, as was explained in Clive Elliot Jennings, in the light of policy instruments which establish sound management principles inclining against discretion being exercised to grant approval, the relevant question that arises, in the exercise of discretion, is why those principles do not have application or should otherwise not be applied in the context of the Application. 108 Fifth, by reference to the High Court's decision in Browning,89 the Tribunal in More,90 considered that it was, at least, arguable, that the requirement to 'have regard to all matters that the Minister considers relevant' in cl 7(2), read with the s 4(1) objects which refer to the 'equitable' use of water resources, may include the personal circumstances of an applicant, to the extent that they are considered relevant. 89 Browning 505 - 506 (Dixon J). 90 More [67]. -- 26 of 31 -- [2026] WASAT 50 Page 27 109 In Re Robinson and Secretary, Department of Primary Industry (Re Robinson),91 the Administrative Appeals Tribunal (AAT) was dealing with an application for a trawling licence where the applicant had expended a considerable sum of money in building a trawling boat, and had been lulled into a false sense of security by departmental officers administering the (then) Fisheries Act 1952 (Cth). The applicant had written to, and received communications from, the department as to the restrictions that would apply to licences in the new fishery (the South Eastern Trawl Fishery). 110 While the applicant was aware that the restrictions included that the relevant trawler had to exist or be under construction, with the keel laid, by the commencement date, he was not later advised that an additional requirement had been included, being that a prospective licensee had to be, in fact, trawling by a specific date. While the applicant's trawler was under construction, he was not yet trawling as at the specific date required to be eligible for a licence. The applicant had spent $250,000 in reliance on the communications, oral and written, he had received from department officers, including the acting secretary. 111 Despite these somewhat extensive communications, the department did not advise him that an additional requirement for a prospective licensee was added. On review, the AAT was satisfied that special circumstances applied so to justify a departure from the policy as to the eligibility of licensees. 112 In More,92 the Tribunal, by reference to Re Robinson, noted that if hardship arises as a valid consideration, whether or not an applicant was misled by the licensing authority may be relevant in the exercise of discretion. 113 I have had regard to the Applicants' submissions, both in making of the Refusal Decision and the Review. 114 In this case, Mr Beamish explains that before purchasing the subject land, he called the Department and was told that he may apply to amend the Licence, to increase the volume of water that may be abstracted. 115 Mr Beamish does not suggest he was told any such application would be approved. However, because he was aware that the subject land had previously been used put to commercial use as a rose farm, he 91 Re Robinson and Secretary of Department of Primary Industry (1986) 10 ALD 302, 317. 92 More [75(3)]. -- 27 of 31 -- [2026] WASAT 50 Page 28 assumed that seeking to increase the abstraction limit, to allow a commercial use to be recommenced, would be something of a formality. 116 Therefore, his complaint in the Review is that in various phone calls with Departmental officers, both before and after the purchase of the subject land, at no time was he advised that the Middle Canning River was over-allocated, nor of the existence of the Water Allocation Plan. 117 While I accept Mr Beamish's explanation of these events, it is simply not the role of Departmental officers, particularly those working in general call-centre type environments, to provide advice on the prospects of a proposal to amend a 5C licence being granted. That is especially so when one takes account of the vast range of water resources, encompassing almost one-third of Australia's land mass, which the Department manages throughout the State. 118 The facts here are, I find, far removed from those in Re Robinson, which involved detailed discussions, both written and oral, with departmental officers in relation to access to a commercial fishing licence at the point that the fishing scheme, and the eligibility criteria, were under development. Furthermore, the advice given by the department in Re Robinson was directed to eligibility criteria for a licencee, not the exercise of a discretionary power. 119 It is worth noting, at this point, that it is most inadvisable, indeed unwise, for any departmental officer to purport to give advice on how an administrative discretion that, in the context of this Review, ultimately rests with the Minister or nominated delegate, will likely be exercised. 120 In this regard, the decision of Anderson J in Murcia Holdings Pty Ltd v City of Nedlands (Murcia Holdings)93 is illustrative. In Murcia Holdings, a developer sued the City of Nedlands (City) for inter alia misfeasance in public office and negligence, arising from its administration and progression of a proposed amendment to the (then) City of Nedlands Town Planning Scheme No. 2. 121 The proposed amendment, which would have allowed three lots to be developed for seniors' housing at a greater density than otherwise permitted, was initially, but not ultimately, supported by the City. The developers' statement of claim included allegations that advice given by two (named) planning officers from the City, made representations to the effect that the proposed amendment would be supported by the City 93 Murcia Holdings Pty Ltd v City of Nedlands [1999] WASC 241; (1999) 22 WAR 1. -- 28 of 31 -- [2026] WASAT 50 Page 29 Council. While, on the evidence, Anderson J found that no such representations were made,94 Murcia Holdings continues to serve as something of a cautionary tale. 122 In this case, I am satisfied, and I find, that not only were no positive representations or assurances made by the Department, but it was also for the Applicants to satisfy themselves that the water that would be required for the proposed Pinus radiata plantation would be available for abstraction. It was not the role of the Departmental officers to speculate as to the likely outcome of any such application to amend a 5C licence would be. 123 In addition, as Ms Negus, counsel for the Respondent, submitted, at the time that the Applicants contracted to purchase the subject land, annexed to the offer and acceptance was a copy of the Licence which described the water source as being 'Canning River, Middle Canning'.95 It follows that the Applicants had sufficient information to undertake their own research on the management principles and policies applicable to the Middle Canning River, being the water resource from which they were seeking an increase in abstraction. 124 Neither Mr Beamish's assumptions, nor the fact that the Applicants were unaware that the Middle Canning River was over-allocated and that its proposal to amend the Licence, to allow for a significantly greater level of abstraction, would not be treated by the Department as a mere formality, are properly to be regarded as hardship, nor does it provide a sufficient basis for the Application to be approved. Also importantly, these considerations do not, in any way, provide an answer or response to the fundamental sustainability and management principles embedded within the Water Allocation Plan and the 2024 Evaluation. 125 Sixth, the Application is to increase the abstraction entitlement under the Licence to 30,000 kL/year constitutes an almost 900% increase as against the current entitlement. That is not only a significant increase but would constitute a significant abstraction in the context of the licensing for the Middle Canning River. Of the 63 licences, 40 of those have licensed entitlements less than 5,000 kL/year. Pursuant to the 2024 Evaluation, the abstraction for general licensing had been reduced to 308,000 kL/year. Therefore, the Application is for, in effect, 10% of the available water for general licensing in the Middle Canning River. 94 Murcia Holdings [111], [168]. 95 Review application, Annexure A2. -- 29 of 31 -- [2026] WASAT 50 Page 30 126 However, notwithstanding the significance of the Application in terms of the level of abstraction sought in the context of the licensing arrangements for the Middle Canning River, the Applicants have produced no hydrogeological, hydrological or ecological evidence directed to the likely implications or impacts on the management of the water resource or the environment. Nor has any credible evidence been put forward as to the employment opportunities or other community benefits that may result. 127 No evidence, expert or otherwise, has been put forward to provide the Tribunal with any level of comfort that the Application is acceptable in the context of the objects of the RIWI Act, or that it otherwise warrants support in the exercise of discretion. In the context where the management of natural resources embraces a precautionary approach, the absence of such evidence supporting the exercise of discretion constitutes, in my view, a significant lacuna. 128 Seventh, the Applicants' case that, in effect, it is only seeking to re- establish a portion of its former licensing entitlement cannot be accepted. 129 The licensing entitlement that applied long before the Applicants' purchase of the subject land is simply no longer relevant. As a matter of law, that entitlement has ceased and can no longer be relied upon. Likewise, the fact that the subject land was once used for commercial agricultural purposes is not, of itself, a basis on which discretion should now be exercised to approve the Application. The allocation entitlement that once applied to the subject land has been recouped. Time has moved on. 130 The UE Policy sets out that circumstances may be such that unused entitlements need to be retired and not be available for redistribution, to prevent and mitigate environmental impacts. The Department has recouped that former entitlement, and such recoupment is consistent with the Water Allocation Plan and the 2024 Evaluation. 131 In Kirwan and Department of Water,96 the applicants had an annual water entitlement of 36,000 kL for their Carnarvon plantations. The relevant water resource was significantly over-allocated above sustainable yields. Upon seeking renewal of the licences, the applicants' water entitlement was reduced to 18,000 kL/year. While the applicants pressed their case that the previous water entitlement was required to 96 Kirwan and Department of Water [2011] WASAT 137 [46]. -- 30 of 31 -- [2026] WASAT 50 Page 31 enable it to supply a 'niche' market for peaches in Perth, the Tribunal found: … [the applicants'] business plan to supply this 'niche' market, with a consequent heightened need for water, is not a cogent reason to depart from the application of the Strategy which, as noted earlier, is intended to achieve the important public purposes of equitable allocation and sustainable use of groundwater resources in the long term for the benefit of the Carnarvon community. 132 Such comments are apposite in the context of the Review. Conclusion 133 The Water Allocation Plan and the 2024 Evaluation incline heavily against the Application be granted, as do the considerations set out in the objects of s 4(1) of the RIWI Act. While cl 7(2) provides that the discretion in relation to an application for a 5C licence, or amendment thereto, may take account of a broad range of factors, on the evidence before me, the Applicants have not put forward a cogent basis that would justify the Application being granted. 134 In the exercise of discretion, the correct and preferable decision is to affirm the Refusal Decision and dismiss the Review. Orders The Tribunal orders: 1. The decision under review is affirmed. 2. The application for review is dismissed. I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal. DR S WILLEY, SENIOR MEMBER 11 MAY 2026 -- 31 of 31 --