Cavill v The Commissioner of Water Resources

[1989] QLC 50

[1989] QLC 50

 

LAND COURT, BRISBANE.

9th November, 1989.

Re: In the matter of appeals under Section 12 of the Water Act 1926 - 1987

Lindsay Roy Cavill

- v -

The Commissioner of Water Resources

(A88-22)

Lindsay Roy Cavill and Joy Verine Cavill

- v -

The Commissioner of Water Resources

(A89-21)

D E C I S I O N

(Hearing at Townsville)

On 16th February, 1988 the abovenamed made application to the Commissioner of Water Resources for a waterworks licence to authorise the installation of a 80 mm centrifugal pump in Major Creek adjacent to Lot 1 Registered Plan No. 40915, Parish of Magenta to irrigate 14 hectares of mixed crops on that parcel of land and 16 hectares of fruit trees and small crops on Lots 1 and 2 on Registered Plan No. 709204, Parish of Rokeby. The application was duly advertised and a number of objections were received. By letter dated 28th February, 1989 the applicants were advised that the Commissioner had decided to grant separate licences addressing the total works applied for in relation to each parcel of land. His decision for separate licences followed a search indicating that Lindsay Roy Cavill was the Registered Proprietor of Lot 1 on RP40915, Parish of Magenta and Lindsay Roy Cavill and Joy Verine Cavill were the Registered Proprietors of Lots 1 and 2 on RP709204, Parish of Rokeby. Accordingly they were deemed separate properties by the Commissioner. The licences which were issued on 6th March, 1989 were issued subject to the general standard conditions of such licences and were also subject to special conditions. Licence 48961 which authorised the 80 mm centrifugal pump adjacent to Lot

1 on RP40915, Parish of Magenta is to supply water to that lot from Major Creek for the

irrigation of miscellaneous vegetables. The special conditions applying to this licence are:-

"1.051The work authorised by this licence shall be installed and used only on the storage of the work authorised by licence number 45114.

1.052Only one pump may be used at any time under the authority of this licence and licence number 48961.

Special Condition:

Notwithstanding the above conditions diversion of water under the authority of this licence may continue whilst surface flows occur of a magnitude precluding, within reason, the construction of the works authorised under Licence no. 45114 and from a spear inserted into the bed sands when water from the storage of the works authorised under Licence No. 45114 has been depleted. Surface flows precluding construction will be considered as those preventing other licencees constructing similar works within Major Creek."

Licence 48961-1 also issued on 6th March, 1989 for an 80 mm centrifugal pump adjacent to Lot 1 on RP40915, Parish of Magenta to pump water from Major Creek for the purpose of irrigating miscellaneous vegetables/fruit trees on Lots 1 and 2 on RP709204, Parish of Rokeby. The special conditions attached to this licence are:-

"1.031Diversion of water under the authority of this licence is prohibited whenever the surface flow at the  Giru-Woodstock Road Bridge is less than two (2) cubic metres per second (175M1/day) as indicated by the mark established or to be established by the Commissioner, or by other means specified in the letter accompanying this licence. The mark may be altered from time to time to reflect more accurately the prescribed surface flow.

1.044The mark referred to in the text of condition number 1.031 is the bottom on a black line painted and marked W.R.C. on the upstream face of the central pier of the Giru-Woodstock Road Bridge over Major Creek.

1.052Only one pump may be used at any time under the authority of this licence and licence number 48961.

1.065This licence does not convey the authority to install pumps or construct pipelines in, on, under or over any intervening properties without the prior written agreement of the intervening landholders.  Upon transfer of either the property to which this

Licence pertains, or the transfer of any of the properties traversed by the pipeline, it is the responsibility of the licence to ensure that such private agreements are renegotiated with the new owners.

Special Condition:

Notwithstanding the above conditions the Commissioner or his district representative may give permission to allow pumping to continue at a lower stream flow level provided there is a continuous surface flow throughout the length of Major Creek to the Commission's gauging station No. 119006A situated at AMTD 8.7 km."

The appellants have exercised their right of appeal to the Land Court against the decision of the Commissioner. Their Grounds of Appeal in respect of Licence 48961 are:-

"1.            That the decision is unfair, unjust and inequitable;

2.The Commissioner erred in treating our original application in respect of the said lands and those lands described as Lots 1 and 2 on Registered Plan 709204 County of Elphinstone Parish of Rokeby as separate properties for the purposes of the application as such properties are separated only by gazetted road and were at the relevant time occupied by us as they had been for many years as the Commissioner well knew or should have known.

3.That the Commissioner has been aware for a considerable number of years of the appellants' desire for an increased water allocation to the subject properties and which has been the subject of previous applications.

4.Since the time of the lodgment of the appellants' application new Water Works Licences had been granted to other applicants in the Major Creek area.

5.That condition 1.051 is unreasonable and unfair.

6.The special condition is unfair, unreasonable and inappropriate to the circumstances of the application.

7.That the effect of the Commissioner's decision is to prejudice us these appellants who are long time farmers in the Major Creek area especially having regard to the commissioner's treatment of similar applications from other farmers in the area."

The Grounds of Appeal in respect of Licence 48961-1 are as follows:-

"1.            That the decision is unfair, unjust and inequitable;

2.The Commissioner erred in treating our original application in respect of the said lands and those lands described as Lot 1 on Registered Plan 40915 County of Elphinstone Parish of Magenta as separate properties for the purposes of the application as such properties are separated only by gazetted road and were at the relevant time occupied by us as they had been for many years as the Commissioner well knew or should have known.

3.That the Commissioner has been aware for a considerable number of years of the appellants' desire for an increased water allocation to the subject properties and which has been the subject of previous applications.

4.Since the time of the lodgment of the appellants' application new

Water Works Licences had been granted to other applicants in the Major Creek area.

5.That condition 1.031 is unreasonable and unfair.

6.That condition 1.044 is unreasonable and unfair.

7.That condition 1.065 is not a proper condition of the licence.

8.That   the   special   condition   is   unfair,   unreasonable   and inappropriate in the circumstances of the subject application.

9.That the effect of the Commissioner's decision is to prejudice us these appellants who are long time farmers in the Major Creek area especially having regard to the Commissioner's treatment of similar applications from other farmers in the area."

Under the provisions of Section 12 of the Water Act, the appeal is limited to the grounds stated in the notice of appeal and the burden of proving any grounds stated shall be upon the appellants.

There is a complicated web enveloping the lands involved here and the various Waterworks Licences which have been issued or applied for. Some riparian owners along Major Creek have over many years taken water from the creek using unlicenced works. The first application for a licence so far as the subject lands are concerned was made by Archibald Steer Cavill on 6th June, 1961 to install a 3 inch centrifugal pump within Portion 70 (of which Lot 1 on RP40915 is part). This was to irrigate 40 acres of small crops on Portion 70. The Major Creek Management Policy of the Commission at that time was for a maximum allocation of 25 acres in area (also expressed as 50 acre feet) per riparian property based on available water, the known characteristics of the water course and the number of riparian properties that existed. Waterworks Licence 12220 was issued on 22nd August, 1961 to install the pump to irrigate 25 acres of fruit and vegetable with the volume of water annually not to exceed 50 acre feet. The area selected for irrigation was that part of Portion 70 which is now Lot 1 which had a total area of 16.01 ha. There were renewals of this licence from time to time with the renewal on 3rd May, 1977 amending the area to 10 ha with the pump size of 80 mm as the metric equivalent of the previous licences. Mr. Lindsay Roy Cavill applied for and received a renewal of licence on 6th May, 1980 with the expiry date of February 1983 and at his request it was further renewed till February 1986.

On 24th January, 1986 there was an application for renewal of Licence 12220 in the

name of L.R. and J.V. Cavill.  The renewal was authorised for issue to L.R. and J.V. Cavill with Mrs. Cavill indicated as a lawful occupier.  The licence was renewed until 28th February, 1989. At the same time an application for a waterworks licence was lodged by Mr. Cavill in his name for a new licence proposing an increase in the area to be irrigated over that authorised under Licence 12220.  The details of the application read that the work is to be situated on Lot 1 RP40915 Parish of Magenta County of Elphinstone to supply water to Lot 1 RP40915, subs 1 and 2 Portion 49V (now Lots 1 and 2 on RP709204) Rokeby, Lot 3 RP40915.  80 mm centrifugal pump.  Irrigation of small crops, mango trees, with the area to be irrigated 30 ha.  A title search by the Commissioner revealed that Lots 1 and 3 on RP40915 were registered in the name of Mr. Cavill and Lots 1 and 2 on RP709204 in the name of Mr. and Mrs. Cavill. Mr. Cavill was advised that as the properties were in different ownership and were not contiguous, it was unlikely that the application would meet approval.   Mr. Cavill was advised by Mr. J.W. Scorse, the Senior Stream Control Officer of the respondent Commission to apply for licences for each of the properties indicating specific requirements and usage for each.  It was also suggested that he

might consider the use of on stream storage in the form of sand dams.

In the result the original application was cancelled and new applications were submitted. Mr. Cavill made an application No. 45114 on 24th January, 1986 for the construction of a sand dam 3 metres high, 100 metres in length on Major Creek, another No. 45113 for an increase in the area presently licenced under Licence 12220 of 10 hectares to 14 hectares and a further application No. 45115 to use the existing pump in the creek to supply water to irrigate 16 hectares by trickle/ spray irrigation of mango trees on Lots 1 and 2 RP709204. There were objections and during the investigations of the proposals it was observed that the appellants were planting some 12 to 14 hectares of potatoes on Lots 1 and 2 of RP709204 and in July 1986 on a further inspection Mr. Cavill admitted that he had been diverting water to this land without a licence.

On 11th September, 1986 Waterworks Licence 45113 to irrigate 14 ha on Lot 1 of RP40915, Parish of Magenta was issued with an increase of 4 ha in area over the previous Licence 12220 which authorised 10 ha. The old licence was cancelled. The licence was endorsed, "Water may be diverted under the authority of this licence when surface flows exist or, water is

available from within storage provided by the work authorised under Licence no. 45114. When such surface water is depleted, pumping when necessary, may continue only by using spears placed in the bed sands." Waterworks Licence 45114 authorising the construction of a sand dam on stream was also issued on 11th September, 1986.   The expiry date of these licences was 28th February, 1988.   The licencee was

advised that a review at the time of expiry with consideration of renewal would take into account the construction and proper use of the on stream storage and effects that the increased area to be irrigated has on other licenced irrigation in the area.  The application No. 45115 to divert water to irrigate on the non-riparian lands was refused on the grounds that available surface water supplies in Major Creek were fully committed. The applicants were advised as were the objectors of the right of appeal against the decisions and no appeal was lodged by the objectors or the applicants to any of these actions.

In an application dated 16th February, 1988 in the name of L.R. and J.V. Cavill, a licence was requested to supply water to the riparian block to irrigate 14 ha of mixed crops and to the non-riparian block to irrigate 16 ha of fruit trees and small crops. The application was discussed with Mr. Cavill and it was suggested that two (2) applications should be lodged - one for each property but he requested that the application proceed. The application was advertised and objections were received. The application was recommended by the Major Creek Water Advisory Board that a licence should be issued as applied for.

The Commissioner determined that the works be severed and dealt with as separate applications. Relying on his powers under Section 12 (vii) of the Water Act "except in cases where a

single licence has been issued for combined works, a separate application for a licence may be required in respect of each works; and the determination as to what work may be included in  each licence shall rest with the Commissioner."

In summary the Commissioner decided to consider the previous usage of the on stream

storage authorised under Licence 45114 for the purpose of this application as though the applicants had constructed such and used the work effectively in association with the previous Licence no. 45113 (expired) and intended to continue to use this work as per the intention of the issue of the licence and to regard the intended use of water, in the absence of requested advice, on the basis that the water requirements for the non-riparian lands would be for the irrigation of

16 ha of small crops rather than the lesser requirement that would occur for 16 ha of mango trees or a combined area of trees and small crops and in the absence of an indicated route of the delivery main from the riparian land to the non-riparian land accept that the applicants had legal access over the road reservation.

It is contended by the Commissioner that the special condition placed on Licence 48961 is similar to and has the same intent as the special condition placed on expired Licence 45113 with the alteration in the wording made to eliminate misinterpretation of the condition. The condition imposed and placed on Licence 48961-1 number 1.031 which deals with the flow rate of 2 cu metres per second (175 Ml/day) was established in previous appeals to the Land Court A88-3 and others where these appellants lodged Appeal A88-5 objecting to the issue of a licence upon the grounds which included the ground "the flow rate set is insufficient". The licence in dispute allowed diversion of high flow water in excess of 1 cu metre per second (87 Ml/day). The appeals were allowed by consent and the condition on Waterworks Licence 45181 was varied to 175 Ml/day. The special condition endorsed on the current licence is of benefit to the licencees.

Evidence was given by Mr. Lindsay R. Cavill in support of the Grounds of Appeal. In a written statement he gives a history of the acquisition of lands in this area and of the irrigating of such lands from Major Creek. He gives the history of the lands which have been farmed for many years. He says that in 1972 the non-riparian lands were purchased to make a viable farming operation. He said there were some 600 mango trees established on the non-riparian land and until 1986 trees were irrigated by means of the pump established in Major Creek under the licence authorising irrigation on the riparian land. On purchasing the non-riparian land some of it was cleared and by 1973 potato crops were planted to supplement the cropping established on the riparian land. The decision each year to plant a potato crop was made depending upon the amount of water available in Major Creek.  He said that the practice ceased in 1986 when an application for a waterworks licence was made. When the 1986 application was refused the right of appeal was not exercised. This was upon legal advice that it would be preferable to obtain the necessary authorisation to construct a pipeline across the road reservation and then to make a fresh application. The necessary permission of the Thuringowa City Council was obtained and the fresh application was made.

He is aggrieved by the decision of the Commissioner in these matters - firstly on the basis that only one licence should issue and not two because his wife and he have occupied and worked both properties as one and for all practical purposes the lands should be treated as one farming block. He says that he is being penalised because the Commissioner states that the commitment of the resource is considered as being fully committed in relation to direct irrigation on a normal basis. Other applicants have been granted licences on a direct irrigation basis from Major Creek and he is aware of a number of other cases where farmers have applied prior to his application and whose licences were not granted until after his application was lodged and that in fairness he should be permitted to irrigate from Major Creek and for that reason condition

1.051 is unfair.

In his written statement Mr. Cavill explains why he considers that the previous licence approving his application for the construction of a sand dam is also unfair. Other farmers have been granted licences which do not require construction of a sand dam.

In dealing with Licence 48961-1 he says that the effects of the conditions 1.031, 1.044 and 1.065 render the benefit of the licence to be almost nothing because at any time when there is a flow in Major Creek sufficient to allow irrigation under the terms of the licence it would be during the wet season or following heavy rainfall when irrigation would not be necessary. He says the terms of the licence do not allow them to water harvest and it would be impossible for them to viably farm the land.

Mr. Cavill agrees in cross-examination that his case is really that he sees himself as being singled out and unfairly treated when compared to other licence holders on the creek and that, while he did not appeal the rejection of the 1986 decision, he did not inform the Commission that he was still interested in obtaining water from the creek but in the final result his complaint is that he believes that he has been unfairly treated in the quantity of water he will be able to use.

Evidence for the respondent was given by Mr. Scorse who tenders a detailed statement tracing the history of various licences which have issued from time to time in respect of these lands. He details the activities which were undertaken by the Commission to endeavour to regulate the pumping of water from Major Creek.  In his evidence he details particulars of the

licences issued to other persons including the recommendations he made in respect of the various applications. He acknowledges that he recommended against the issue of a licence on the application in respect of the non-riparian land and also in the case of applications by Clarke and Tucker he had recommended against the issue of waterworks licences but they were in fact issued to both Clarke and Tucker and he appreciates how the appellants feel that they have been discriminated against. He was taken at length in cross-examination through the various licences which have issued on Major Creek particularly as to any restrictive conditions imposed on such licences.

The evidence shows that an application was made by Clarke on 20th June, 1986 for a Waterworks Licence which was granted on 24th August, 1987 to irrigate 20 ha by means of an 80 mm pump. An application by Tucker was made on 2nd June, 1986 and a licence issued on 24th August, 1987 to irrigate 16 ha by means of a 75 mm pump.  The point which distresses the appellants here is that their first application was made on 24th June, 1986 which predated both of these applications and because of advice received from an officer of the Commission they withdrew that application and made application for the construction of a sand dam, an increase in the area to be irrigated on the riparian land and a further application to use the same pump to supply water to irrigate an area on the non-riparian lands. Two of the applications were successful while the application in respect of the non-riparian lands was refused on the grounds that the available surface water supplies in Major Creek were fully committed. The appellants are aggrieved that, despite this decision, new licences were issued after that date. Counsel for the respondent submits that the appellants have themselves to blame in not pursuing the original application made in 1986 and advising the Commissioner of their desire to pursue the matter of increased water allocation. Acting on legal advice no appeal was made against that decision and they delayed further action to regularise the question of piping across the road reservation.

In summary the Solicitor for the appellants really puts the case that while the Queensland Water Advisory Board saw fit to recommend this application as well as the applications by Clarke and Tucker the Commissioner granted those two and did not grant the appellants' application. He submits that these licences should have been granted with no special conditions.   He submits that in respect of Licence 48961 special condition 1.051 should be

deleted unless I found that the sand dam should be retained. His other submission is that the special condition should be deleted.  In relation to Licence 48961-1 he submits that condition

1.031 and 1.044 and the special condition should be deleted and that condition 1.065 is not an appropriate condition for the Commission to impose and it should be deleted, but he concedes that it does not in any way really affect the use of the licence.

There are a number of peripheral matters which have arisen in this matter. The appellants argue that an application was made for one licence and this should have issued instead of separate licences because both parcels of land are worked together. As I have already stated the Commissioner has exercised his powers under Section 12(vii) of the Water Act to determine what works may be included in each licence. This is a matter which rests with the Commissioner and not with the Court. There is also some suggestion that I dispense with the necessity for the construction of the sand dam. A licence for a sand dam was applied for and Waterworks Licence 45114 authorising the construction of the sand dam on stream was issued on 11th September, 1986. While the dam has not been constructed it is something that was applied for and granted and the Court has no jurisdiction to deal with the matter. It is a matter for the appellants to elect whether to proceed with the works authorised or not.

I turn now to consider the submissions that certain of the special conditions attaching to the licences should be deleted. On Licence 48961 Special Condition 1.051 says that work authorised by this licence shall be installed and used only on the storage of the work authorised by Licence No. 45114 which licence covers the sand dam applied for and approved. I find there are no grounds in the evidence for deleting this special condition in the licence. It is also submitted that the special condition attaching to this licence should be deleted. I find on the evidence that this special condition is a benefit to the licencees and there are no grounds for its deletion.

Turning to the licence No. 48961-1 there is no evidence before me to enable me to conclude that these conditions are repressive. Indeed the appellants were a party to other proceedings in the Land Court and consented to the issue of a licence establishing the surface flow referred to in Special Condition 1.031. No technical evidence has been advanced to support a finding that Conditions 1.031 and 1.044 should be deleted.  There is a submission that Special

Condition 1.065 should be deleted as not being an appropriate condition for the Commissioner to impose. It is conceded that this in no way affects the use of the licence and it would appear to me to simply state the position of the Commissioner as to the construction of pipelines upon lands of intervening landholders.                  In the result I find that the appellants have failed to establish that within the grounds of appeal there is evidence which will allow the Court to vary the licences granted. Accordingly the appeals are dismissed and the decision of the Commissioner in each case is affirmed.

President of the Land Court