Dairy farmers cleared of water offence charges

Two NSW dairy farmers have had water offence charges dismissed in the Land and Environment Court. See why.

Two southern NSW dairy farmers have had water offence charges dismissed in the Land and Environment Court. Pictured: the Murrumbidgee River. Photo: NRAR

The NSW water regulator is considering its legal options after a judge dismissed water offence charges against two dairy farmers, ruling the offending was “accidental”.

Father and son Kenneth and Luke Kimber faced court in August for two charges each of pumping water from the Murrumbidgee River during a drought in 2019 when pumping was prohibited.

Under a condition of their water licence, the irrigators were not allowed to pump water from the river when flows at the Billilingra gauge dropped below 27ML a day.

The pair pleaded guilty to pumping a total of 95.18ML of water — the equivalent of 38 Olympic-sized swimming pools — over 13 days while flows in the river dropped to between 1ML and 13ML a day.

They used the water to irrigate corn on their dairy farm Dromore station, the largest milk supplier in the Bega Valley.

In their defence, the Kimbers argued they had not been aware the cease-to-pump rule was in place, and said they had stopped pumping as soon as they were told to do so by the NSW Natural Resources Access Regulator.

Luke Kimber told NRAR investigators he had been operating under the impression a previous condition of the property’s water licence, which had since been superseded, was still in place. But he acknowledged that had that condition still been in place, he would have violated it.

Under the previous condition, it was illegal to pump water when the height of the river at the Billilingra gauge fell below 0.58m — an event which occurred on multiple occasions during the period of the offending.

NRAR staff checking a pump. Picture: NRAR

Luke Kimber told the court: “I also realise that in relation to some (although not all) of the pumping the subject of the offences in November/December 2019, the river height at the Billilingra Gauge was below 0.58 metres and, at those times, I should not have irrigated even with my belief that the cease to pump condition was based on a 0.58m river height.”

“I realise now that I was complacent and not diligent enough in approaching the issue of the water level and flow in the river when I irrigated in November and December 2019,” he said.

In a judgment handed down on September 29, Justice Nicola Pain dismissed the charges based on what she said was Kenneth and Luke Kimber’s good character and the “very low objective seriousness” of the offending.

The pair were ordered to pay NRAR’s legal costs.

A spokesperson for NRAR said the regulator was “carefully reviewing the court’s judgment and considering its legal options”.

In December 2022, when NRAR announced it was taking the pair to court, the regulator’s director of investigation and enforcement Lisa Stockley said the case was “particularly concerning” because “these offences are alleged to have occurred at the time when the entire region was struggling with the dry conditions including communities, the environment and other water-users.

“It is the responsibility of the landholder to know and act on the data relevant to their licence – in this case WaterNSW provides real time data on WaterInsights,” Ms Stockley said.

Justice Pain told the court the NSW Natural Resources Access Regulator failed to prove the offending had caused environmental harm or impacted the rights of other water users.

The case comes after the NSW water regulator successfully prosecuted prominent Griffith irrigator Dean Salvestro in March for pumping 7352ML of groundwater without approval, and fined Griffith irrigator Robert Beltrame $26,250 for pumping 97.50ML above his extraction limit the same month.