In Conroy v Goulburn Murray Water & Ors (Red Dot) [2009] VCAT 2108, Goulburn Murray Water failed to give notice to objectors of its decision to grant licences for the construction of a bore and to take and use groundwater until well after expiry of the period within which an application for review must be lodged under the Water Act 1989 (the Act).

The Tribunal identified gaps in the procedures in the Act. The gaps included that an objector to water licences is not required to be notified of a decision to grant a licence. The Tribunal stated that the gaps identified should be addressed by amendment of the legislation.

In the meantime, Tribunal advised water authorities to adopt good practice procedures to ensure notice of decisions is given to applicants and objectors to enable any party to exercise their rights of review under the Act within time. The Tribunal was very critical of the way Goulburn Murray Water had conducted itself in this matter, with the level of the Tribunal’s dissatisfaction shown by the order that Goulburn Murray Water pay the costs of the other parties involved.

In the end, after weighing up the impacts of the decision on the applicant and respondent, the Tribunal refused the application for an extension of time within which the objector can commence an application for review.

The tribunal found the following gaps with the Water Act;

• There is no obligation under the Act to give notice of an application for a works licence or a licence to take and use water. Giving notice of an application is at the discretion of the water authority.
• A person whose interests are affected by a decision has a right of review to the Tribunal, but if third persons do not know about the application, they may be denied an opportunity to exercise that right.
• There is no obligation imposed on the water authority to give notice of its decision to anyone, yet rights of review must be exercised within 28 days after the day on which the decision was made.
• If there is no obligation to give notice of a decision, a person’s right of review may be compromised by a failure to give notice in time for a person to exercise their right, which is what has occurred in this case.
• Rights of review are given to a person whose interests are affected. Rights of review are not limited to licence applicants or objectors.

• The full decision is available on Austlii