Enforceable undertaking for Pegela Pty Ltd
July 2021
Mayfield Garden enforceable undertaking
We have a variety of tools we can use when dealing with serious breaches of the Water Management Act. Kirsty Ruddock, Director of the Water Enforcement Taskforce, discusses the use of an Enforceable Undertaking as an alternative to a prosecution.
This EU is an innovative response that demonstrated the cooperation of the company in remedying the offence. Because there was no information about how much water had been taken during the period of non-compliance and so it couldn’t be accurately charged for by NRAR, Pegela offered an alternative – setting up three community programs at its gardens.
These were:
- working with local mental health organisations to give clients access to the garden for walking and drumming rehabilitation programs
- developing a tour schedule for water education, relevant for primary, secondary and TAFE colleges
- working with local correctional facilities to be part of prisoner rehabilitation and reward programs.
Background
Pegela Pty Ltd runs a total of 66ha of gardens in Oberon, operating as Mayfield Garden and Hawkins Family Garden. In 2014 the gardens were opened to the public and an admission fee charged. There is also a café and nursery produce store, and the gardens can be hired for corporate events and weddings.
Pegela operated 12 bores to water the gardens. The bores had had works approvals under stock and domestic rights for decades. However after 2014 when the gardens started operating as a commercial enterprise, the legal requirements changed. It became necessary to obtain extra authorisations to take the water for the commercial part of the gardens - a water licence, a water use approval and an allocation from the water source (in this case the Lachlan Fold Belt Murray Darling Basin Groundwater Source, which is subject to a water sharing plan).
As a separate issue, Pegela had also constructed two stock watering holes without controlled activity approvals (required for works on waterfront land).
The offences
As a result of the commercial use of the gardens from 2014, NRAR alleges the following breaches took place from that time on:
- taking water without a water access licence
- using water without a water use approval
- contravening terms and conditions of approval (for bores)
- carrying out controlled activities without an approval (stock watering holes).
The undertaking
Pegela proposed an EU as an alternative to other enforcement action. The undertaking included:
- steps to obtain the required licences and approvals including purchasing water through a controlled allocation to service the gardens annually – about 183ML a year
- installing authorised metering equipment on the bores
- undertaking community programs at the gardens to recompense the community for unauthorised water take
- Reimbursing NRAR $2500 to cover costs of investigation and monitoring the undertaking.
NRAR accepted the undertaking, in this case instead of enforcement action such as fines, stop-work orders, charges for the water unlawfully taken or prosecution.
The EU commenced in July 2021. Pegela must report to NRAR on its compliance with the EU within three months of its commencement.
These programs, which must be implemented by 1 October 2021, mean the Oberon community from whom the water was taken will receive the benefits (instead of the cost of the water being paid to the government).
NRAR considered the benefits to the community of Oberon of providing time to the garden to become compliant and of providing remedies that benefitted the community in its acceptance of the undertaking.
Pegela confirmed its positive attitude to the outcome in the wording of the undertaking:
“Through this EU we are ensuring transparent compliance with water laws going forward and also building on Mayfield’s unique standing in the community by implementing the actions set out.”
The Pegela Pty Ltd enforceable undertaking is on the NRAR website public register.