Adams v The Warrumbullen Drainage Board

[1991] QLC 14

[1991] QLC 14

 

  LAND COURT,

BRISBANE.

27th June, 1991.

Re: Appeal under Section 9.48 of the
Water Resources Act of 1989 -
  A90-70

K.J. and J.A. Adams

v.

The Warrumbullen Drainage Board

D E C I S I O N

This is an appeal under the provisions of Section 9.48 of the Water Resources Act of 1989 against a rate assessment of $287.35 levied by the respondent Warrumbullen Drainage Board for the sixth month period ending on 31st December, 1990. The appellants' property is described as Resubdivision 2 of Subdivision 3 of Portion 155, Subdivision 2 of Resubdivision 1 of Subdivision 2 of Portion 155 and Subdivision 1 of Resubdivision 1 of Subdivision 2 of Portion 155, Parish of Mourilyan and is situated in the Innisfail District. The area rated under the assessment was 42.57 hectares and the rate levied $6.75 per hectare. This is the rate set by the Board presumably under the authority of Section 9.40 (2) (d) of the Water Resources Act. This matter is somewhat unusual in that it is an uncontested issue, the legal representative of the respondent Board after having appeared, informed the Court that he had instructions to withdraw and this he did.
                  Kevin John Adams, who is a fitter and turner by occupation furnished evidence in support of his appeal and contends that his property should not be rated at all by the Warrumbullen Drainage Board.  Mr Adams has owned the land for some 14 years and his ownership extends to a period before the drainage scheme was implemented.  At that time he objected to his land being included in the scheme.  Mr Adams says his property has two natural creeks through it and without the scheme, already had more than adequate drainage for his use of the property for grazing cattle.  Mr Adams says his property is disadvantaged by the scheme, which he suggests, was put in to benefit about a dozen cane farmers within the Drainage Board Area.  Mr Adams' property adjoins grazing country on its northern boundary and has cane farms on its western and southern boundaries.  Mr Adams objects to his farm being included within the scheme and requests exemption as a rate payer for the reason that a number of changes over the years have been implemented  which he says have been unreasonable and unjust, especially the extension of the scheme to include more of his land in 1985.  Mr Adams suggests that the scheme poses a situation which is the exact opposite to what his requirements and needs are to improve the productivity and profitability of his land.
                  Mr Adams informed the Court that in spite of his objection to being part of the Warrumbullen Drainage Scheme in 1980, all his worst fears have become a sorry reality.  He objected on the basis that the proposal would lower the productivity of his property by lowering the water levels of his creeks.  Both the creeks on his property now fall to a low level or the flow stops completely during the months of August to December, thus reducing his capability of irrigating grass land for his cattle and small crops.  The quality of the water has also deteriorated due to lack of flow in the streams, this making the water unsuitable for drinking or for stock and household use. 
                  Mr Adams says that the scheme was applied for by cane growers of the District only, without any consideration for anyone elses' needs and was designed only for their benefit.  He suggests that the scheme has left him with major costs to remove huge heaps of soil and debris at his own expense.  These heaps of soil dug out of creeks have acted to actually dam his paddocks from any drainage during the wet season causing the grassland to be water logged with the result that grass dies back, decreasing the carrying capacity.  Mr Adams says that a matter which irritates him is that after being told that removal of this soil was the responsibility of the landowner, he found out that in previous years certain cane farmers have had their soil removed and spread over their paddocks at great cost to all ratepayers in the scheme.
                  Mr Adams says that at the start of the scheme landholders were told that directors of the Board would be constantly inspecting all drains for blockages and for any deterioration occurring to the drains as part of their duty.  Over the last 10 years there has never been any inspection of his property, and no capital spent towards maintenance.  When the scheme was introduced it was with the understanding that the initial costs would be its major outlay and from this time forward water rates would decrease until a very minimum outlay would be required.  However Mr Adams suggests that unrealistic spending by present and past directors has made the scheme really part of a farm improvement project.  Mr Adams indicated in evidence where his property is situated in respect of some of the drains.  It is bounded partly on the northern boundary by a drain which runs down the western boundary and along the southern boundary of his property. 
                  There have been some cases involving appeals against water rate assessments.  In the Appeal against Water Rate Assessment - H.O. Mathews v. The Grevillen Rural Water Supply (1970) 37 C.L.L.R. 157 the appeal was made against a water rate assessment on the basis that it was inequitable because no water was used from the Scheme supply. The assessment was then made under the provisions of Section 29A of the now repealed Water Act 1926 - 1968. The former learned President of the Court, Mr Smith, held that under Section 29A the degree of benefit derived from a scheme was no longer relevant. It was merely a mathematical calculation according to the rate in the dollar adopted by the Board on the unimproved value of the property concerned. In N.A.M. Graving v. The Grevillea Rural Water Supply Board (1970) 37 C.L.L.R. 153, Mr Smith examined the law as it then stood. He said Section 29 of the Water Act provided the basis of rating based on a rate per acre of the land benefited, and the question of the basis of rating was for a Board to decide. Further it was held that if the Court was satisfied that the particular assessment was properly made and levied according to which ever of the bases of rating the Board had adopted, then there existed no power for the Court to direct that a different basis apply.
Now Section 9.40 (2) (d) of the Water Resources Act, (under which subsection this appeal is drawn) provides that rates or charges by a board may be, in connection with drainage works, a rate per hectare on the whole of the land within the Board area, or a rate per hectare on land within the area benefited by the works.
Now the evidence of Mr Adams is unchallenged and satisfies me that the declared benefited area on his property does not benefit at all from the Drainage Scheme. It is deleteriously affected by the scheme. This being so, it is unjust to expect him to contribute to the scheme financially by way of payment of a rate assessment. Here we have no evidence from the respondent board as to the basis of the assessment under appeal, nor as to the proclamation of the Order in Council approval for that basis of rating. I might say that this Court has no power to direct the Warrumbullen Drainage Board to exclude Mr Adams' property from the scheme as he has requested. The jurisdiction of the Land Court is vested in the provisions of Section 9.48 of the Water Resources Act of 1989, and this extends only to the matter of grievance of a person by the amount of an assessment rate or charge made and levied by a Board. The appeal is allowed and the rate assessment levied by the Warrumbullen Drainage Board for the six month period ending 31st December, 1990 is determined at nil.

(C.H. Carter)                
  Member of the Land Court.