Cowan v Chief Executive, Primary Industries Corporation
[1995] QLC 89
•31 August 1995
|
BRISBANE
31 August 1995
Re: Appeal under Section 4.26 of the Water
Resources Act 1989 against the decision
of the Chief Executive, Primary Industries
Corporation, to grant Waterworks Licences.
(A94-11).
George Cowan and Margaret Joyce Cowan
v.
Chief Executive, Primary Industries Corporation
(Hearing at Biloela)
D E C I S I O N
On 1 July 1993, Mr RW Horrocks made application to the Chief Executive, Primary Industries Corporation, under section 4.17(1) of the Water Resources Act 1989, for waterworks licences to authorise works to be located on, and to supply, Portion 38, Parish of Greycliffe, (now described as Lot 38 on RP 859961). These applications were in respect of two excavations, one of 17,600 cubic metres and the other of 11,500 cubic metres (applications 52745 and 52746 respectively). The other application (No 52744) was in respect of a centrifugal pump of 150mm. Application No 52744 stated that the works were to be sited on Neville Creek for the purposes of stock watering, domestic water supply, aquaculture and waterharvesting.
In accordance with the provisions of section 4.17(2), the applications were advertised and one objection was received from Mr and Mrs Cowan, the present appellants.
Background
Mr and Mrs Cowan are the registered proprietors of an aggregation of land comprising Portions 118, 119, 121, 122, 123, and 124, Parish of Earlsfield, and Portions 23 and 24, Parish of Greycliffe. The parcels in the Parish of Earlsfield are riparian to Neville Creek and situated downstream of the applicants' property.
Mr Horrocks intends to establish a red claw crayfish farming project which requires a reliable water supply. He proposes to construct a number of crayfish ponds, each with a capacity of 2 megalitres.
The applications are intended to allow Mr Horrocks to provide for that reliable water supply. He proposes to pump water directly to the crayfish ponds and also to an existing 18 megalitre off-stream dam from which water will be drawn when supply is unavailable from Neville Creek. The evidence indicates that there was an excavation in Neville Creek of approximately 8,000 cubic yards, which was not licensed. Application No 52745 is in respect of that excavation, enlarged to the capacity of 17,600 cubic metres. It emerged in the evidence that this excavation had already been enlarged, notwithstanding the appeal by Mr and Mrs Cowan.
The lands in the Parish of Earlsfield have been in Mr Cowan's family for many years. In the early years Neville Creek was regarded as well watered. The waterholes, the "Dip Hole" in Portion 123 and the "21 Waterhole" in Portion 121, were regarded as permanent. The remaining waterholes sometimes went dry in the latter part of the year, depending on replenishment storms falling upstream. However, the creek was totally dry in 1969 and again in 1993.
In their objection to the applications by Mr Horrocks dated 31 August 1993, Mr and Mrs Cowan stated that they have no objection to floodlifting of water from Neville Creek and no objection to the proposed aquaculture project. However, as their property has several semi-permanent waterholes providing stock and domestic supply, they were uneasy about earthworks in the creek itself. They expressed concern that further inhibition of small waterflows could prevent a small stream flow from reaching their property. They suggested that the excavation could be located away from the channel and be replenished by floodlift, thereby ensuring that small flows continue downstream.
Following an investigation by the Department, Waterworks Licence 52745 was granted for an excavation with a storage capacity of 16 megalitres, Waterworks Licence 52746 was granted for an excavation with a storage capacity of 12 megalitres and Waterworks Licence 52744 was granted for a 150mm centrifugal pump.
Grounds of Appeal
In their appeal against the Chief Executive's decision dated 8 February 1994, Mr and Mrs Cowan stated as follows:
"1.The licence would allow water to be pumped from the excavation on which the licenced pump is installed when there is no flow into the excavation. This will enable the licencee to pump water when there is no flow in the Neville Creek.
During periods of low flow in the Neville Creek, the flow will replenish the licencee's excavation in Neville Creek, denying down-stream land owners of any benefits of low flows in the Neville Creek.
2.The size and extent of the excavation in the Neville Creek is excessive.
3.The usage of the water is for aquaculture which creates a demand far beyond domestic and stock requirements.
4.In allowing the excavations pursuant to Waterworks licences 52745 and 52746, the Chief Executive has allowed the licencee to derive a substantial benefit from the flow of water in the Neville Creek, and therefore denying landholders downstream from the excavations the benefit of low flows in the Neville Creek."
The Appellants' Evidence
Mr Cowan gave evidence on behalf of the appellants. He stated that the farming and cattle husbandry practices on their property have been planned around the reliability of Neville Creek. He explained that there was no problem with Neville Creek in times of normal rainfall. However, in the dry period of late spring and early summer, the only rain was often from small scattered storms. The appellants relied on the resulting small flows to freshen up their pastures in the creek and to recharge the waterholes. He said this had occurred until in the mid-1960s the owner of Portion 129, situated between the Horrocks and the appellants' properties, had dammed the creek.
It seems two dams were constructed on Portion 129 and, while the larger of the two has been breached, there is still a dam in Neville Creek on that land, with a capacity of approximately 10 megalitres.
Mr Cowan said that sometimes a storm of only a couple of inches of rain will run the creek. However, the flow is being inhibited by the dam on Portion 129 and he contends that the proposed excavations will lessen the chances of the appellants' land receiving water from low flows in Neville Creek.
Mr Cowan stated that it was shortly after the dam on Portion 129 was constructed, that the up-until-then permanent holes, the Dip Hole and the 21 Hole, went dry in 1969.
Mr Cowan said that with the approval of some 29 megalitres of in-stream storage by the Chief Executive on the Horrocks property, combined with the 10 megalitre dam on Portion 129, meant that the total in-stream storage on Neville Creek was 39 megalitres. He said that this was further building up the storage in the stream that has to be replenished before water can go further down.
Mr Cowan went on to say that because of the interlacing network of channels in the area, a small flow in any particular channel depends upon where a storm falls, and it was the timing of the small flows that this appeal was all about. He said that he has never known a flow in Orange Creek alone to run Neville Creek. It was his opinion that a shower of rain in the Orange Creek catchment was not going to run Neville Creek. He was concerned that his property could be affected by the reduced flow which would result from the in-stream excavations during periods of small flows in spring and early summer.
Mr Cowan explained that there are artificial water supplies on the appellants' property in addition to Neville Creek. There is a bore between Portion 123 and Portion 124; there is a bore on Portion 122 that also feeds a trough on Portion 123; on Portion 121 there is a well; on Portion 118 there is a disused well; and there are two small dams on Portions 23 and 24, parish of Greycliffe.
The Respondent's Evidence
Mr GR Griffin, Water Adviser, employed by the Department of Primary Industries (Water Resources) at Biloela, gave evidence for the respondent. He explained that the aquaculture project proposed by Mr Horrocks required a reliable water supply while the excavations would provide the water supply for the aquaculture project, they would also be an important source of water for stock and domestic purposes. Without the excavations, Mr Horrocks' stock and domestic water supplies would be placed in jeopardy.
Mr Griffin had undertaken investigations into the applications. He said that Neville Creek has a large catchment of approximately 22,400 hectares upstream of Mr Horrocks' property. The creek channel is relatively small and there is no significant in-stream storage capacity up-stream of that property.
According to Mr Griffin, there are additional catchment areas which provide runoff to Neville Creek between Horrocks' property and the Cowans' property, two of which provide substantial runoff to the latter. The first of these provides runoff downstream of Mr Horrocks' licensed works by way of the Kroombit Creek west channel. The main source of this channel is from the 11,500 hectare Orange Creek catchment. In addition, Kroombit Creek west channel carries flood overflows from Prospect and Kroombit Creeks.
A second catchment area greater than 1500 hectares provides runoff to Neville Creek between Horrocks' property and the appellants' property.
These catchment areas downstream of the licensed works provide significant catchment area which contributes runoff to Neville Creek between Horrocks' property and the appellants' property.
Mr Griffin states that a third catchment area, the Back Creek catchment area of approximately 10,000 hectares, has been disregarded because of existing storages on that Creek which intercept runoff.
Mr Griffin goes on to state that the characteristics of the Neville Creek catchment are such that base flows do not generally occur for long periods of time. Therefore any water requirements from Neville Creek would need to be obtained primarily from water stored in waterholes in the creek and not from extended low flows.
Mr Griffin's report explains that there were two dams on Neville Creek between the licensed works and Cowans' property. The first was licensed in 1972 and has an estimated storage capacity of 10 megalitres. The excavations, the subject of this appeal are to be located within the storage area of the dam authorised by that licence.
The report goes on to say that a second larger dam was constructed on the same property downstream of the first dam sometime during the mid-1980s. This dam was not licensed and its existence only came to the attention of the Department during the investigation of Mr Horrocks' applications. However, this dam failed during flood flows in Neville Creek in March 1994 and it no longer stores water within the bed and banks of the watercourse and has no effect upon flows in Neville Creek.
Mr Griffin went on to explain that an assessment of the Neville Creek catchment upstream of Mr Horrocks' property was carried out to determine whether the proposed excavations were likely to diminish supply to Mr Cowan's property. In this assessment, predicted monthly runoff quantities derived from 30 years of reliable rainfall records from rainfall stations at Rannes, Banana and Biloela were used, as it was considered that data from those stations would be representative of the catchment.
Mr Griffin said the aim of the assessment was to determine if, on any occasion during the 30-year record, 21 Hole would have been dry and not receive replenishment because runoff had been intercepted by Mr Horrocks' excavations. The assessment showed that on four occasions for each rainfall station, 21 Hole would have been dry; that is, a period of greater than 12 months had elapsed with no flow in Neville Creek upstream from the Horrocks' property.
However, Mr Cowan had told Mr Griffin during the investigation that 21 Hole had been dry on only one occasion prior to 1993. Therefore, Mr Griffin concluded that the assessment is clearly conservative.
Separate assessments were made to determine the runoff that could be expected to reach 21 Hole if Mr Horrocks' excavations were in place and if they were not constructed.
Mr Griffin reported that results based on Biloela-Rannes records showed that Mr Horrocks' excavations would not have diminished supply to the Cowans' larger waterholes during the 30 year period. Results based on Banana records showed only one occasion during the 30 year period when the works may have prevented supply to 21 Hole. On that occasion the Cowans' waterholes would have been dry and a small flow occurred which would not have been sufficient to fill all of those waterholes had the Horrocks' excavations been in place.
Mr Griffin concluded that the records do not support Mr Cowan's concern that water supply to their property would be diminished by small flows being contained within Mr Horrocks' excavations. He reasoned that the catchment above the excavations is approximately 60% of the total catchment available to the Cowans' property. The assessment showed annual runoff of the area will exceed 4.5 millimetres in 75% of years. This represents an annual runoff volume of 1,000 megalitres for the Neville Creek catchment upstream of the Horrocks' licensed work and 590 megalitres for the two downstream catchments available to the Cowan property. The 28 megalitre capacity of the licensed excavations represents only 1.8% of the total runoff volume which could be expected to pass the appellants' property in most years. Mr Griffin concluded that the works which are the subject of this appeal would have an insignificant effect on the availability of water to the Cowans' property.
Mr Griffin said that to provide reliable stockwater supply it was necessary to supplement shallow instream waterholes with supply from another source. He added that the Cowans have an alternative stock water supply from a bore on Portion 122.
Mr Griffin went on to say that following the investigation it was decided to grant the applications, and licences were issued on 19 January 1994. Waterworks Licence 52744, the pumping licence for a proposed 150 millimetre centrifugal pump for waterharvesting and aquaculture purposes, was issued with the following restrictive term:"Pumping under the authority of this licence is permitted only when the flow exceeds 1.0 cubic metres per second at McCanns Road as indicated by the 0.5 metre mark on a gauge board installed by the Chief Executive, or by other means specified in the letter accompanying this licence or when there is no flow entering the waterhole on which the licensed pump is installed. The gauge board or mark may be altered from time to time to reflect more accurately the prescribed surface flow."
Waterworks Licence 52745 issued in respect of a 16 megalitre excavation for aquaculture, stock watering and domestic supply purposes (this licence is for the enlarged existing waterhole), and Waterworks Licence 52746 is in respect of a proposed 12 megalitre excavation for aquaculture, stock watering and domestic supply purposes.
The Respondent's Answer to the Grounds of Appeal
In responding to the grounds of appeal, Mr Griffin stated that it is highly improbable that a runoff event would occur which would only be sufficient to fill the excavations. However, Mr Cowan gave evidence that this does occur from time to time and the excavations will prevent low flows from reaching his waterholes.
In concluding that the granting of the licences will not deny downstream landowners the benefit of low flows, Mr Griffin has relied upon the assessments of the runoff characteristics of the Neville Creek catchment and the fact that the Cowans have access to flows from approximately 13,000 hectares of catchment which is independent of the Horrocks' licensed works or any other significant in-stream storage. However, Mr Cowan refutes the suggestion that these other catchments contribute to flows in Neville Creek, except when there are significant rainfall events and there is water in all the channels.
In particular, he rejects the suggestion that the Orange Creek catchment will provide water to Neville Creek during low flows as he said this just does not happen until there are significant falls in the catchment. However, Mr Griffin said that he not only had regard to aerial photographs and topographical maps, but he had walked the channel of Neville Creek in that area and is satisfied from the various respective levels of the channels that his conclusion is correct, that flow from Orange Creek catchment would pass into Kroombit Creek west channel and on into Neville Creek.
The Statutory Requirements
The requirements relating to a licence are set out in the Water Resources Act 1989. Once an application for a waterworks licence has been made under section 4.17 and an objection thereto has been lodged, the Chief Executive must cause inquiry to be made into the availability and sufficiency of water to supply the requirements not only of the applicant, but also of others including riparian owners, licensees and permittees. The Chief Executive may either refuse the application or grant it absolutely or subject to any modifications or variations in a particular case. A person aggrieved by a decision of the Chief Executive with respect to an objection duly lodged to an application for a licence may appeal to the Land Court. The Land Court must hear and determine the appeal and confirm, vary or revoke the decision of the Chief Executive, the subject of the appeal.
In this case, Mr Griffin is the person delegated by the Chief Executive with his powers with regard to the granting of a licence. Mr Griffin has carried out due inquiry and has made his determination on the basis of the results obtained. He is well aware of the Cowans' concern regarding low flows in Neville Creek. He has come to the conclusion that the proposed excavation will have minimal effect on the Cowans' riparian rights.
It is common ground that there is no problem during periods of "normal" rainfall. It is agreed that Neville Creek carries sufficient water during such periods and that the excavations would have no effect upon the flows. However, it is during periods of low flow from late spring to the early summer months that are of concern. The results of Mr Griffin's investigation seem to indicate that the excavations will have negligible effect upon the Cowans' property. On the other hand, Mr Cowan said that since the mid-1960s when the first dam was constructed in the channel of Neville Creek on Portion 129, he has noticed a difference in the low flows. He has concluded that any interference with the channel would further diminish the supplies during such periods reaching his property.
The Water Resources Act places the burden of proving the grounds of appeal on the appellant. In this case, Mr Cowan has raised some very real issues about the supply of water to his property during periods of low flow. On the other hand, Mr Griffin has given evidence of his investigations and has explained the basis for his conclusions that the excavations would have minimal effect on the flows. Mr Griffin has used the rainfall data from rainfall recording stations to assess the runoff that would occur in the catchment area. He has also considered alternative catchments which would not be affected by the excavations. He has concluded that there is sufficient water for the applicant and also for riparian owners such as Mr and Mrs Cowan. He has also taken into account the water needed for Mr Horrocks' projects and the alternative water supplies available to Mr Cowan. In the event he has concluded that the licences should be granted.
I can understand the concerns raised by Mr Cowan. He has noted alterations to the flow in Neville Creek since the mid-1960s. However, it is apparent through much of Queensland that streams that once flowed are no longer flowing and that waterholes that were considered to be permanent have gone dry during drought periods. From the state of the evidence it is not clear whether Neville Creek is suffering the same fate as many other streams, or whether it is interference with the channel that is making the situation worse.
Mr Cowan has not been able to demonstrate to my satisfaction that the Chief Executive should not have made the decision to license the excavations. While Mr Griffin has not demonstrated that the excavations in Neville Creek will never detrimentally affect the flow of water to the Cowans' property, he has shown that the occasions will be so infrequent that it would be wrong to deny Mr Horrocks his licences.
Therefore, although I must dismiss the appeal, I would say for future guidance that I consider that there must be a limit to further interference with the low flows in Neville Creek. Mr Cowan suggests that the alternative would be to allow waterharvesting during periods of higher flows to off-stream storages. I would tend to agree. Therefore, I suggest that Departmental officers very carefully consider this aspect before any further licences are granted for excavations in the Neville Creek channel. It goes without saying that any future waterharvesting licences that are granted should be so restricted that they will not have any effect upon low flows.
However, in this case the appellants have not proven to my satisfaction the grounds of their appeal. Therefore, the appeal is dismissed and the decision of the Chief Executive to grant the three waterworks licences is affirmed.
JJ Trickett
Member of the Land Court
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