Betts v Chief Executive, Primary Industries Corporation
[1994] QLC 9
•11 April 1994
|
BRISBANE
11TH APRIL 1994.
Re: Appeals against a decision with respect
to an application for a Waterworks Licence -
A93-47 and A93-48
R.W., H.J. and O.J. Betts
and
J.W. and R.M. Hill
v.
The Chief Executive, Primary Industries Corporation
D E C I S I O N
BACKGROUND:
"Cubbie" is an aggregation of property situated in a locality of braided watercourses known as the "Lower Balonne River System".
Northerly of Dirranbandi and about 60 km south-westerly of St. George, the Balonne River divides into the Culgoa River to the west and the Balonne Minor River to the east. The Culgoa flows to the south-west into New South Wales joining the Darling River near Bourke. Downstream of Dirranbandi the Balonne Minor divides, continuing downstream as the Balonne Minor to the west and the Narran River to the east. The Narran terminates in a lakes system in New South Wales. The Balonne Minor divides again within the "Cubbie" aggregation to form the Bokhara and Ballandool Rivers which rejoin near the Queensland/New South Wales border. The Bokhara divides within New South Wales, continuing to eventually join the Barwon River while the Birrie River, to the west, eventually joins the Culgoa.
The Culgoa, Balonne Minor, Narran, Bokhara and Ballandool, either flow through or bound "Cubbie".
Under natural conditions floodwater first discharges from the eastern bank of Culgoa River onto "Cubbie" land by overflowing from "Chinaman's Lagoon" otherwise known as "Humptyback Lagoon". Two other features, known as Doctor's Creek and Bore Creek discharge floodwater onto "Cubbie". Those creeks are supplied either from the east bank of the Culgoa, upstream of Chinaman's Lagoon or Toobeah Creek which is first fed by outbreaks from the west bank of the Balonne Minor upstream of Dirranbandi.
The discharge of floodwater into the several outbreaks occurs at various stages of river flow, the volume of which is capable of being gauged, based on the natural flow in the Balonne River at St. George. The discharged floodwaters follow paths in a general south-west direction, eventually spreading over the lands between and adjacent to the river systems.
The grazing potential of the river country is largely dependent on the natural irrigation of the floodplain by seasonal flooding. Interference to the natural flow of water, diminishing the floodwater available and/or diverting the flow paths, may have deleterious effect through either decreased spread of water or alternatively increased flow of redirected water over down floodplain lands. Denial of natural flooding causes degeneration of natural pastures, then places greater grazing stress with further pasture degeneration on those lighter soil lands normally free of flooding. Conversely, uncontrolled natural flooding is deleterious to those floodplain lands redeveloped from grazing use to agricultural use and relying on water supplies for irrigation.
There is obvious conflict of primary production interests between the use of the natural flooded country for the original grazing pursuits on the one hand and on the other the cultivation of such land for irrigated cropping.
PROPOSAL FOR THE LOWER BALONNE DESIGNATED AREA:
Conflict between the competitors for the floodplain resources resulted in the constitution, under Part VII of the Water Resources Act 1989 (the Act) of the Lower Balonne Designated Area, the object of which was to provide for the "integrated management of both watercourse and floodplain flows". The purpose was to "co-ordinate the management, through licensing, of the construction, use and maintenance of works that obstruct, divert or otherwise interfere with the flow of water over land" within the Designated Area. The relevant Order in Council approving the constitution of the Designated Area was made on 30th January, 1992. The boundaries, however, included a lesser area than was originally notified - after a recommendation to the Minister following consideration of various objections. On application to the Supreme Court (by the applicants for the licence in this matter) the Order in Council was, on 1st May, 1992, found to be invalid, based on the amendment to the notified boundaries.
The Government proceeded to establish a Lower Balonne Advisory Committee to advise on management and regulatory control strategies for the area. It appears that while the Government maintains the view "that designation is the appropriate method for orderly development of the floodplain", the Minister for Primary Industries "is prepared to consider alternative approaches that the community may wish to suggest through the Advisory Committee". Consultants have been engaged to facilitate the development of a floodplain management plan. At the time of the Land Court hearing, a report on the first phase of the consultants' work had not been publicly released but that was imminent.
There are currently no regulatory controls on works on the floodplain.
ISSUE OF LICENCE:
Subsequent to an application dated 8th March, 1991, eventually on 7th May, 1993, the chief executive of the Corporation issued Waterworks Licence No. G49300 to Stevenson Finance Corp. Pty. Ltd. and H.I.D. Stevenson of "Cubbie Station", Dirranbandi. The description of the licensed works is as follows:An earth dam with the following dimensions:
Height to Top 10.0 m
Base Width 80.0 m
Crest Width 8.0 m
Crest Length 20,000 m
Capacity 100,000 Ml
The dimensions of "bywash height", "bywash width" and "outlet diameter" are not specified.
The works which fall within the meaning of a "referable dam" as defined in s.1.4(1) of the Act, are to be located on Portion 7, Parish of Codernah and Portion 11, Parish of Cubbie. The purpose of the works, which are stated to be "not on a watercourse" is for "water conservation for irrigation". Conditions apply to the licence as granted.
The proposed works refer to what has been described in the hearing as the Barneedoo storage. It adjoins to the south an existing storage known as Gunathaby, which is of significant proportion in terms of size and storage volume, yet is less than the dimension criteria which would place it within the referable dam category. Gunathaby is not, and is not required to be, a licensed works.
APPEALS TO THE LAND COURT:
R.W., H.J., and O.J. Betts (A93-47) and J.W. and R.M. Hill (A93-48) being objectors to the application, instituted appeals against the chief executive's decision to grant the application. The grounds of appeal were identical in each case.
POINT OF JURISDICTION:
Prior to the appeals being set down for hearing, the chief executive advised the Court that it was "the opinion of the Department that there is no basis for appeal to the Land Court for the reasons outlined below, namely:
•the proposed dam is not located on a watercourse being sited on a section of the Lower Balonne floodplain;
•the Department presently has no jurisdiction with respect to the use, control and flow of water on the floodplain;
•the matters which the Chief executive could consider with respect to the application are confined to issues of safety and the protection of life and property.
Section 4.26(2)(b) of the Water Resources Act 1989 states that an appeal does not lie from a decision of the Chief Executive with respect to a referable dam that concerns safety or the protection of life and property."
At a preliminary hearing it was determined that the appeals should proceed to be heard allowing the question of jurisdiction and any resultant determination to be decided based on the evidence and submissions presented.
It is agreed between the parties that an appeal does not lie with respect to a referable dam, from a decision of the chief executive that concerns the safety or protection of life or property (see s.4.26(2)(b) of the Act). The submission by the chief executive is that the decision was based on the opinion that the application was for a licence for a referable dam "not on a watercourse", and not being within a designated area, the matters which could be taken into consideration in dealing with the application were limited to the control of safety. It is conceded by the chief executive that an appeal could lie in circumstances where application was made for a referable dam "on a watercourse".
The appellants' case includes the submission that the location of the referable dam is "on a watercourse". Even if it was found not to be, it is submitted that, as a licence is required for a referable dam, regardless of whether it is on a watercourse or not, certain procedural requirements need to be satisfied in dealing with an application for a licence. Any failure by the chief executive to comply with statutory provisions, would in their opinion, constitute a valid ground of appeal.
It seems to me to be illogical that the legislation should be interpreted to allow an objection to an application but then to effectively deny the objector the right of appeal against a decision to grant the application on any ground. This would effectively be the situation if the chief executive's submission was accepted.
I am persuaded that the right of appeal to the Land Court is denied only in terms of s.4.26(2)(b). Section 4.26(3) limits the grounds of appeal to those stated in the notice. Section 4.26(4) places the burden of proof of a ground of appeal on the appellant.
GROUNDS OF APPEAL:
In each case, the grounds in the Notice of Appeal are as follows:"1.The Commissioner of Water Resources (`the Commissioner') erred in failing to consider the application for the abovementioned licence (`the application') on the basis that the works proposed to be the subject of the licence (`the works') would be constructed on or in one or more watercourses.
2.The Commissioner erred on considering the application on the basis that the only matters which could be taken into account were the safety and protection of life and property.
3.The Commissioner erred in finding that he had no jurisdiction with respect to the use, control or flow of the water upstream of the works.
4.The Commissioner erred in failing to take into account or to give adequate weight to the following matters when considering the application:
(1)That the works would dam watercourses and thereby deprive the Appellants and others of their right as lower riparian owners to take water from such watercourses.
(2)That the works would dam surface waters which would otherwise have flowed onto the Appellants' and other lower land holders' land to their benefit.
(3)That the capacity of the works was so great that it would facilitate other works (`the channels') diverting so much water out of the Balonne Minor and Culgoa Rivers and their tributaries that those rivers and other streams from time to time would run dry below their intersections with the channels and would thereby deprive the Appellants and others of their right as lower riparian owners to take water from such rivers and streams.
(4)That as a result of the matters referred to in the last preceding subparagraph hereof downstream land holders would be deprived of the benefit of licences, permits and other authorities to use water which had been issued to them by the Commissioner.
(5)That the capacity of the works was so great that it would facilitate the channels diverting so much water out of the 2 mentioned rivers that from time to time the levels of water in such rivers would be so low as to diminish the extent to which the Appellants and others could exercise their right as lower riparian owners to take water from such rivers.
(6)As a result of the matters referred to in the last preceding subparagraph hereof the benefit of such licences, permits and other authorities to use water issued by the Commissioner to downstream land holders would be diminished.
(7)That the only or principal means of causing water to flow to the works was the channels which had been constructed in contravention of Section 4.13 of the Water Resources Act 1989 in that they were constructed and used without a licence under that Act.
(8)That in times of high flood the presence of the works would pose a risk to the lives and property of the Appellants and other land holders downstream in that a collapse or breaching of the works would cause a flood wave to fall upon their land.
(9)That in times of high flow in the said rivers, the combination of the works and the channels would divert water from its natural course and concentrate it upon the land of the Appellants and other downstream land holders and thereby cause damage to such land.
(10)That the terms of the licence granted are inconsistent with those of the other licences issued by the Commissioner in the area.
(11)That the potential cost of loss of life or property or of personal injury or damage to property should the work collapse or be breached is far greater than $5,000,000.00.
(12)That the cost of demolishing the works would be far greater than $40,000.00.
5.The Commissioner erred in considering the application in circumstances where it had not been advertised in accordance with the requirements of the Water Resources Act 1989 in that the advertisement placed in respect of the application asserted that the works were not to be constructed on a watercourse."
I find that sub-grounds (8), (9), (11) and (12) of ground 4 are related to matters against which no appeal lies.
I will now deal with other grounds as follows:
Grounds 1 and 5:
At the relevant date s.1.4(1) of the Act interpreted "watercourse" as
meaning "a river, creek or stream in which water flows permanently or
intermittently -
(a) in a natural channel;
(b) in a natural channel artificially improved;
(c)in an artificial channel that has changed the course of the watercourse,
but, in any case, only at every place upstream of the point to which the spring tide normally flows and reflows therein whether due to a natural cause or an artificial barrier therein or, when the chief executive has declared by noti fication under this Act a downstream limit then, during the continuance in force of that notification, only at every place upstream of that limit. For the exercise of the right to the use and flow and control of water at any time and for the control of quarry material a watercourse includes the bed and banks thereof together with all the elements of a river, creek or stream that confine or contain water".
"Bed and banks" with reference to a watercourse means "land over which the water of that watercourse or lake normally flows or that is normally covered by that water whether permanently or intermittently: The term does not include land abutting or adjacent to the bed or banks that is from time to time covered by flood water: For the purposes of this definition `bed' means the relatively flat and `banks' the relatively steep portions of the firstmentioned land".
"Flood water" means "water overflowing or erupting or that has overflowed or erupted from a watercourse or lake onto or over riparian land that is not submerged when the watercourse or, as the case may be, lake flows between or is contained within its bed and banks".
The thrust of the evidence for the appellants was related to the opinion that depressions in the contour of the very gently sloping floodplain, at least as
those depressions or channels intersected the Barneedoo site, were watercourses within the meaning of the Act. I accept on the evidence that a secondary flow path of lead floodwaters discharging from the rivers and creeks system upstream of the Barneedoo site do traverse that site. I also accept that those lead floodwaters follow a continuous and natural path which is capable of identification, particularly to those experienced over a long period of time (and I refer particularly to Mr R W Betts, one of the appellants and a witness in the proceedings) in observation of the pattern of floodwater flowing down the floodplain.
For reasons which will become obvious, I do not propose to discuss the evidence, or the matters which have and which needed to be considered, at length. I have been referred to and have considered the observations of the High Court of Australia in Knezovic v. Shire of Swan-Guilford (1968) 118 C.L.R. 468 and Gartner v. Kidman (1962) 108 C.L.R. 12, and the particular references to those cases and the judgment of Wanstall SPJ in Maugeri v. Commissioner of Irrigation and Water Supply (1972) QdR 422. I have not been convinced that the channels containing the lead floodwaters across the Barneedoo site are "streams" or are sharply distinguished from "a drainage depression in the contours of the land". As Barwick CJ said in the Knezovic case (supra) at p.475 -
"but though it is quite true that a watercourse may exist though its bed be dry for some periods, the watercourse, in my opinion, must exhibit features of continuity, permanence and unity, best seen, of course, in the existence of a defined bed and banks with flowing water. It must, in my opinion, essentially be a stream and be sharply distinguished from a mere drain, or a drainage depression in the contours of the land which serves to relieve upper land of excess water in times of major precipitation. It is not enough that the water, when it does flow, does so in what may be seen as a defined course or channel. In the case of a drainage depression, the water being drained off can be expected to flow in the lowest portion of the contours confined by the rising levels of the adjacent land: thus water can be seen when flowing to do so in what could be called a defined channel."
Reference was made to a bore drain which, apart from its designed function, in times of flood carries lead floodwater which finds its way into the drain upstream. It is not clear on the evidence, but while the route of the drain may have followed, for part of its route northerly of Barneedoo, a natural depression or channel, I do not accept that this artificial channel through Barneedoo has "changed the course of a watercourse", to qualify as a "watercourse" as defined.
I find that no feature through the Barneedoo site constitutes a watercourse within the meaning of the Act. It follows that Ground 1 of the appeals is not proved by the appellants.
It also follows that the main thrust of Ground 5 as it was argued, fails. The notice, under the provisions of s.4.17(3)(b) was not defective on the ground that the referable dam as proposed, was "not on a watercourse". It is observed, however, that because the works were not on a watercourse, a notice in terms of s.4.17(3)(b)(i)(A) and (B)as was the subject notice, would not correctly identify the owners of land situated as prescribed. Unless the chief executive intended to extend the criteria for land situated as prescribed, (and the evidence is that he did not), the notice should have been in terms of s.4.17(3)(b)(iii). It does not mean, however, that in terms of s.4.17(3)(a) or (b), the defective notice denied owners entitled to object, the right to object under the Act. The appellants here have not been denied their rights. I would not allow the appeals on the basis of Ground 5.
Grounds 2 and 4(10):
The submissions by counsel for the appellants embrace matters going to the application process, and apart from the notice, refer to the statutory requirements of the chief executive under the provisions of s.4.17(1), and particularly the following:"The chief executive, where the chief executive is of the opinion that the works the subject of an application affect or are likely to affect the rights and interests of persons other than the applicant, may, by requisition in writing addressed to the applicant, call upon him to furnish to the chief executive plans, details and other information with respect to those works as the chief executive specifies in the requisition.
The chief executive may not deal with the application until the requisition has been complied with in all respects or the information requested has been otherwise furnished."
An allegation that the chief executive did, by requisition in writing addressed to the applicant, call for the furnishing of "plans, details and other information", is supported by the evidence, given under cross-examination, by Mr G.K. Claydon, a regional manager with the Corporation, and who has been closely involved in this matter. It seems that part only of the requisition was answered, but due to the cost involved, the applicant refused to go to the expense of obtaining detailed engineering plans until approval in principle of the application had been indicated. Conditions of the licence were eventually negotiated whereby works could not be commenced until the required information was provided.
The appellants' submission is effectively that the chief executive was statute barred from dealing with the application in the manner which occurred.
The respondent argues that the appellants' submission in the first place is not embraced in the grounds of appeal but, in any event, would relate to the safety aspect of the decision to grant the application..
The appellants' response was that Ground 4(10) is relevant and confirmed by the evidence, which I accept, that the "normal" process in dealing with applications for referable dams, was not followed. They say that it was not possible for the chief executive to make an informed decision with regard to the inquiry into matters of safety and protection of life and property unless the proposal was specific in terms of both location and construction detail.
This becomes a matter of statutory interpretation. Is the relevant legislation mandatory or directory in this regard? The intention of Part (V) of the Act is clearly to ensure the control of safety of referable dams. The special conditions attaching to the licence, in my opinion, are both practical and effective in that regard. I would not allow the appeal on the basis of Ground 4(10) on the appellants' submissions in that regard.
The appellants' specific submissions as they relate to Ground 2, in the end result, go to the question of the proper interpretation of s.4.18(1) of the Act which provides as follows:"Inquiry by chief executive and grant or refusal of application.
(1)Upon an application under section 4.17 and an objection thereto, the chief executive must cause inquiry to be made -
(a)where the application relates to water other than underground water, into -
(i)the availability and sufficiency of water to supply the requirements of -
(A) riparian owners;
(B) licensees;
(C) permittees;
(D) the applicant;
and
(E) persons specified in section 2.2(a);
(ii)the effect that the granting of the application will have or is likely to have on entitlements of riparian owners, licensees and permittees;
(b)where the application relates to underground water, into -
(i)the availability and sufficiency of water to satisfy the requirements of -
(A) licensees;
and
(B) the applicant;
(ii)the effect that the granting of the application will have or is likely to have on the requirements of owners of neighbouring land and licensees;
(c)in a case to which paragraph (a) or (b) applies, into any other matters or things the chief executive thinks fit."
The chief executive does not dispute the fact that, having decided that the works were not on a watercourse, no inquiry was instigated as to matters other than those relating to safety. Counsel for the chief executive repeatedly asserted that the works subject of the application and the only matters over which the chief executive had control "relate to" an earth wall barrier, and the control of its safety.
The words "where an application relates to water" (emphasis added) in s.4.18(1), in the submission of the chief executive, refers solely to an application for licensing of waterworks for the use of water, the rights to which vest in the Crown (Part II of the Act). These rights, it is submitted, do not extend to "flood water" as defined, except in circumstances associated with a designated area. In the case of "Cubbie" lands, a series of waterworks licences have been granted in the past, with conditions, for the use and diversion of water from watercourses. It is submitted that any necessary inquiry in connection with the availability and sufficiency of water was conducted prior to those licences being granted and objections to the applications for those licences were open to the owners of land as prescribed, at that time. The chief executive's case is that the only reason application to license the subject works was necessary is because the structure itself (including its storage capacity) is of referable dam proportions. Had the applicants seen fit to construct a storage (such as the Gunathaby storage), in a floodplain location with potential to cause similar problems as the appellants envisage with the Barneedoo storage, no licence application would have been necessary - even if regulatory control was seen to be desirable.
The appellants' submission is in essence, that it would be a nonsense to accept that a licence application for a structure with storage capacity similar, for example, to the Beardmore Dam, and specifically for the purpose of "water conservation for irrigation" does not "relate to" water. They say that if the application did not relate to the water to be contained in the storage, no inquiry into safety would be necessary.
It becomes necessary to consider the intent of the legislation as it relates to referable dams.
A "referable dam" means (s.1.4) -
"(a)works or proposed works that include or would include a barrier whether permanent or temporary that does or could or would impound, divert or control water, which barrier -
(i)is 10 metres or more in height and creates a reservoir storage capacity of more than 20 000 cubic metres;
or
(ii)is more than 5 metres in height and creates a reservoir storage capacity of 50 000 cubic metres or more;
(b) works -
(i)that consist of or include or would consist of or include a barrier whether permanent or temporary that does or could or would impound, divert or control water or hazardous waste, other than a barrier defined in paragraph (a) of this definition;
(ii)other than a barrier whether permanent or temporary that do or could or would impound, contain, divert or control hazardous waste;
declared by the chief executive by notification published in the Gazette to be a referable dam by reason of the danger to life or property that could or would eventuate upon the collapse or failure of or the escape of hazardous waste from those works:
The term includes the storage area created by the works but does not include a tank constructed of steel or concrete or a combination of those materials."
"`Water' when used in relation to a referable dam includes any other liquid or a mixture that includes water or any other liquid or suspended solid." (s.1.4).
Provision for the licensing and control of referable dams was first introduced in the Water Act 1926, by the Water Act Amendment Act of 1975. That legislation when considered with the reading speeches of the then Minister for Water Resources (Hansard, 10th April 1975, commencing at p.603) indicates that the primary concern of the Government was to ensure the safety of such works, whether on a watercourse or not. Licensing provisions existed for works on a watercourse. There was need to extend those provisions to works not on a watercourse, and to the "control of the design, construction, alteration, repair, maintenance, operation, abandonment and removal" of a referable dam for the purposes of ensuring the safety of the dam and the protection of life or property. The procedure involved in an application for and the granting of a licence for a referable dam was similar to other waterworks and the existing legislation was amended to provide specifically for referable dams. The amending legislation did not, as I interpret it, limit the considerations involved in dealing with an application to matters of safety and the protection of life and property. Indeed s.12(4) of the Water Act, which referred to matters into which inquiry was to be made, before a licence issued was amended to include reference in respect of a referable dam. s.12(4) then provided that (the Commissioner) ....
"(a)shall make inquiry into -
(i)the availability and sufficiency of water to satisfy the requirements of riparian owners, existing licensees and the applicant;
(ii)the effect that the granting of the application is likely to have on entitlements of riparian owners and licensees under existing licenses;
(b)shall make inquiry into such other matters as he thinks fit;
(c)shall have and may exercise all the powers, authorities, rights, privileges, protection and jurisdiction of a Commission of Inquiry under The Commissions of Inquiry Acts 1950 to 1954 save such as are by those Acts reserved to a chairman of a Commission who is a Judge of the Supreme Court, and the provisions of those Acts shall apply to any witness or person summoned by or appearing before the Commissioner or person appointed at any such inquiry.
Upon the completion of inquiry made, the Commissioner may grant or refuse the application and, if he grants it, cause to be issued to the applicant a license in respect of so much of the land specified in the application and use of so much of the water specified therein as he thinks fit, or in respect of the referable dam specified in the application." (amendment emphasis added).
By that same Amendment Act, s.12(4A) was amended as follows:
"If any applicant or objector is dissatisfied with the decision of the Commissioner upon an application under this section, other than a decision that concerns the safety of a referable dam or the protection of life or property in connexion with a referable dam, that person may appeal therefrom ....." (amendment emphasis added).
As I interpret it, the intent of the legislation as it was introduced, in respect of a referable dam, whether on a watercourse or not, was not to limit the inquiry to be made to specific matters, but to provide the Commissioner, as he then was, with the discretion to make inquiry into matters as he thought fit. Once the inquiry had been completed, the Commissioner was to make a decision on the application, which was appealable except on grounds concerning safety or the protection of life or property.
There is seen to be nothing illogical in the Commissioner, having been provided with the power of inquiry into matters other than safety when, as in this case, works providing a storage capacity equivalent to that of Beardmore Dam are involved. Similarly it would not be seen as unreasonable that the Commissioner should have the right to inquire into matters other than safety, if an application was made for a licence for a referable dam for the purpose of the storage of some liquid other than water.
In specific cases the right of appeal against decisions which might concern, for example, the environment, would not be an unreasonable expectation of an applicant or objector.
It would be seen as reasonable that no appeal should lie against a decision concerning safety or the protection of life or property.
On repeal of the Water Act by the Water Resources Act, s.4.18 of the new legislation replaced the existing s.12(4). The words added to those previously in s.12(4)(a) create the issue to be decided. Those words are "where the application relates to water other than underground water". The provisions of s.4.18(1)(a)(i) and (ii) are then generally similar to the previous legislation while (b)(i) and (ii) are new provisions where an application relates to "underground" water, specifically. Paragraph (c) of the new legislation is similar to paragraph (b) of the old, except, importantly the provision is relevant only "in a case to which paragraph (a) and (b) applies".
The discretion of the chief executive to inquire "into any other matters or things" thought fit, is limited to the interpretation of the words "relates to water" in paragraph (a). With respect to the subject referable dam, the argument is in the first place whether the application relates to "water", and if so, only "water" the rights to which vest in the Crown.
I am persuaded by the appellants' argument that the subject application for a licence for the works of a referable dam, "relates to water" through the purpose of the works being for "water conservation for irrigation".
Finally, I have come to the conclusion that the term "water other than underground water", should not be interpreted so narrowly as to exclude "water as it relates to a referable dam". To do so would, in my opinion, be in conflict with the intent of the original legislation and deny an objector the right to appeal on any ground other than failure of the chief executive to comply with the procedural requirements of the legislation as it applies to applications for licences.
In the subject matter, had it not been for the chief executive's interpretation of paragraph (a) of s.4.18, would it have been thought fit for the discretion to be exercised to inquire into "other matters or things"? (paragraph (c)).
That question may have been difficult to decide had it not been for the evidence presented to the Court by Mrs L.E. Boully, a concerned down floodplain owner, as a witness for the appellants. Mrs Boully, apart from being associated with two water-user groups, is a member of the Lower Balonne Advisory Committee and a Community Advisory Committee representative for the Murray-Darling Basin Commission. Through her was tendered various correspondence either addressed to, or passed onto, her, in connection with matters associated with both the local Lower Balonne and wider water management issues. Mrs Boully had been provided with a copy of a report by the Queensland Government to the Murray-Darling Basin Commission, dated August 1992, titled "Surface Water Resources Development and Management in the Queensland Section of the Lower Balonne River System". (The Queensland Government formally "started working within the spirit of the Murray-Darling Basin Agreement on 1st July, 1992".) A copy of the report was included in the tendered material. Noting that the Government has established a relevant Advisory Committee then after considering Mrs Boully's evidence and the tendered material, I am left with no doubt that, had the chief executive been operating under the regulatory control which would have been provided by the constitution of the Lower Balonne Designated Area, an application for the licence for the subject referable dam would have instigated inquiry by the chief executive into "other matters or things" including desirable water management, environmental issues and flood flow paths. Given an interpretation of the words "relates to water" in paragraph (a) of section 4.18(1), as I have indicated I would adopt in terms of the subject application, I take the view that the chief executive should have caused inquiry to be made whether a matter of discretion or not, in terms of paragraph (c).
The appellants further submit that, in any event, the chief executive was required to ensure, with a development of the nature of the proposed Barneedoo referable dam, that proper account was taken of the environmental effects in terms of s.29 of the State Development and Public Works Organisation Act 1971.
While that may have been one of the things which the chief executive would consider in an inquiry, I do not propose to discuss that aspect of the submissions in light of my finding relative to s.4.18 of the Water Resources Act.
Other Grounds:
It becomes unnecessary to discuss the validity or relevance of the remaining grounds. It should be said, however, that matters associated with the floodplain surface waters, external to the Barneedoo site, and not under the regulatory control of the chief executive, do not fall within the jurisdiction of the Land Court. Similarly if the proposed works are not located on a watercourse, then any matter associated with the riparian rights of others is not a relevant issue.
FINDING
I find that the Land Court had jurisdiction to hear and determine these appeals under s.4.26(1)(b) of the Act.
The appellants in each case have carried the burden of proving that the chief executive erred in considering the application on the basis that the only matters which could be taken into account were those concerning the safety and protection of life and property.
The chief executive caused no inquiry to be made under the provisions of s.4.18 of the Act and I find that, in so far as the application for the licence related to water, other than underground water, as provided in s.4.18(1)(a), inquiry may have, and should have been made into "any other matters or things" in terms of s.4.18(1)(c). The application should not have been granted until such inquiry had been completed.
The appeals are allowed and the decision of the chief executive to grant the licence is revoked.
R E WENCK
MEMBER OF THE LAND COURT
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