Dowling v The Commissioner of Water Resources

[1990] QLC 9

[1990] QLC 9

 

  LAND COURT,

BRISBANE.

6th April, 1990.

Re:In the matter of an appeal under Section 12 of the Water Act 1926 (as amended).  A89-58

P.J. and S.R. Dowling
  - v -
  The Commissioner of Water Resources

D E C I S I O N

(Hearing at St. George)

I have before me for determination an appeal under Section 12 of the Water Act 1926 (as amended) against a decision of the Commissioner of Water Resources contained in a letter dated 14th November, 1989 whereby the Commissioner refused an Application No. 49130 for a 1,000 megalitre water allocation from Thuraggi Lagoon upon the ground:

"A separate irrigation allocation has not been granted under Licence No. 49130 on the grounds that P.J. Dowling owns an Irrigation Holding in the St. George Irrigation Area with Register of Lands No. 22 which, previously had been granted an annual water allocation of 960Ml, being in excess of 470Ml, and which was recently granted a 25% increase in Annual Nominal allocation.  The volume of irrigation allocation on the above Irrigation Holding is greater than the maximum of 470Ml available to be granted on a Waterworks Licence from the Regulated Streams of the St. George Irrigation Project under the current allocation system."

I set out hereunder some background to this matter which is to be found in the evidence given by the appellant Mr. Phillip John Dowling and Mr. Gregory Kenneth Claydon, the District Engineer at St. George of the respondent Commission.  Mr. Dowling in his evidence says that he is the owner of an irrigation farm known as Andermatt, described as Portion 149, Parish St. George acquired by ballot in 1970 with a water right for irrigation purposes supplied by channel.  In 1979 he acquired as a tenant in common in equal interests  with his  wife Sally Rosemary Dowling, a parcel of land described as Lot 1 on RP147809 and Lots 2, 3 and 4 on RP183978, Parish of St. George containing an area of 1100.932 hectares.  These lands are locally called The Bore.  It was used from time to time for the growing of wheat under dry farming conditions but it was found that this was not economical.  He is of the opinion that the land can only become an economic unit if used for irrigated crops.  The parcel is land locked and he devised a scheme providing for the construction of an open channel from Thuraggi Lagoon to The Bore through Town Reserve 120 to convey water by pump from the lagoon to the subject land.  An application was made to the Local Authority to construct a drain to cross the reserve and its consent was obtained on 22nd May, 1985.  In an application dated 25th February, 1985 Mr. and Mrs. Dowling made application for a Waterworks Licence for a 600mm centrifugal pump to pump water from Thuraggi Watercourse to The Bore with an annual water allocation of 375Ml.  The purpose of the works was for irrigation and water harvesting with the crops to be irrigated being cotton, wheat, corn and sunflower.  This Application No. 43286 was never finalised.  On 7th July, 1988 a further application was made which in effect was to increase the allocation under Application No. 43286 from 375Ml to 1,000Ml and to increase the pump size from 600mm to 750mm.  This application No. 49130 is the relevant application in these proceedings.  The application was duly advertised.  There were no objections to the granting of the application. 
              In his evidence Mr. Claydon traces the history of the St. George Irrigation Area. Both Andermatt and The Bore are within the boundaries of that area.  He says that the extension of the St. George Irrigation Undertaking approved by resolution of the Legislative Assembly on 23rd August, 1967 was established (GG 14th December, 1967 pp. 559 - 60).  The resolution approved the recommendations of the "Report on Extension of St. George Irrigation Project" which report proposed, amongst other things:

"The Commissioner should exercise control over the water supply in Thuraggi Watercourse and define the boundaries of the Extension Irrigation Area and the annual water allocations."

A Register of Land within the St. George Irrigation Area was to be prepared of all holdings within such Irrigation Area and the Register of Lands No. 22 contains the name of Phillip John Dowling with an Annual Water Right of 720Ml and a Total (Nominal) Allocation of 960Ml.
              In November 1987 a discussion paper titled "St. George Irrigation Project Proposal for Additional Water Allocations and Development" was released for public comment and consultation.  The proposed increases are in existing nominal allocations to the channel farms and also the nominal allocations on Thuraggi Watercourse and the Balonne River.  A further proposal was that a permanent pump station structure be installed at Beardmore Dam and the capital cost of the pump station be recovered through special additional water charges.
              Applications for additional nominal allocations from Thuraggi Watercourse and the Balonne River were called for.  Sixty-seven (67) applications were received from forty-six (46) land holders for an additional 32,244Ml of nominal allocation from the Regulated Sections of Thuraggi Watercourse and the Balonne River.
              Because the volume of additional nominal allocation applied for by the various parties significantly exceeded the volume of about 12,500Ml of additional nominal allocation proposed to be granted from the regulated sections of Thuraggi Watercourse and the Balonne River it was felt necessary for the Commissioner to fulfil his responsibilities to fairly and equitably distribute and manage the water supplies available from the project.  In the result the Commissioner decided to grant additional nominal irrigation allocations from the project based on the maximum:

(a)125% of pre-existing nominal irrigation allocations;

(b)470 megalitres;

(c)the volume applied for if that volume was less than 470Ml per irrigator, irrespective of property ownership or partnership.

A decision was made to auction 3,000Ml of irrigation allocation from the project to fund the construction of the proposed pump station at Beardmore Dam.  The auction was held on 16th November, 1989 and the appellants here purchased 45Ml in annual nominal allocation to supply by Agreement lands owned by them from Thuraggi Watercourse.
              In dealing with the subject Application No. 49130 Mr. Claydon says that the investigations undertaken showed that, subject to any requirements of the Land Administration Commission and the Balonne Shire Council, water could be pumped from Thuraggi Watercourse across the Town Reserve to The Bore.  It also showed that the subject land could be supplied from pumping from Buckinbah Main Channel subject to system supply rate constraints that may be imposed by the Commissioner such that other existing irrigators are not adversely affected.
              In the result Waterworks License 49130 issued on 14th November, 1989 for a 750 millimetre centrifugal pump on Thuraggi Watercourse for water harvesting irrigation to irrigate cotton, wheat, soybean.  No water allocation was granted on the grounds already stated.  Amongst the conditions in the schedule of conditions attached to the licence are:

"The authorised work shall not be used unless the Commissioner or his District Representative has been given prior notice of the intention to commence diversion and the Commissioner or his District Representative has issued notice that diversion may commence.  Such notice shall be given in the manner prescribed by the Commissioner.

Pumping under the authority of this license and any other licenced pump for waterharvesting purposes is permitted only during those periods announced by the Commissioner or his district representative via the local radio station and will commence generally when the flow is 5000 megalitres per day at St. George Weir and waterharvesting is permitted from the Balonne River.

Pumping may then commence when the flow at the pump site is higher than the mark established by the Commission or the peak of the flow has reached the pump site.

Pumping at the rates shown below from works authorised by this license and any other licensed pump used for waterharvesting purposes shall be restricted to the same number of days the flow exceeded the corresponding flow rates shown, and permission to waterharvest was notified by the Commissioner or his district representative."

Mr. Dowling gave evidence of the substantial cost which would be incurred in establishing a system of storing water which had been harvested and he has reached the conclusion that such a system is uneconomic. 
              Evidence was canvassed on the question of availability of water and the demand on the scheme generally.  There was also evidence suggesting that a substantial volume of water was available in the Thuraggi Watercourse which came from sources other than the water supplied by the Beardmore Dam, but in this particular case, no good purpose can be served in recounting all of this evidence. 
              This is an appeal against the decision of the Commissioner who has refused the application on the ground stated above that Mr. Dowling owns an irrigation holding which previously had been granted an annual water allocation of 960Ml being in excess of 470Ml and which was recently granted a 25% increase in annual nominal allocation.  This volume is greater than the maximum of 470Ml available to be granted on a waterworks licence under the current allocation system.  This is in accordance with his decision that, in considering the granting of additional irrigation allocations, nominal land holdings with elements of common property ownership shall be considered as one. 
              It was established in evidence that had the appellants here executed a lease in favour of another person and had it registered, the lessee, without an existing allocation, upon making an application for a water allocation for The Bore as the occupier would have been granted an allocation of 470Ml.  It is conceded that the lessee/occupier then could lease the land back to the appellant owners to work the land and use the water allocation.  Mr. Claydon says that he is aware that this circuitous route has been taken by other owners in this area resulting in such owners receiving the allocation sought.  No action is taken to cancel the licence notwithstanding the fact that the lessee applicant has not beneficially used the allocation.
              It is submitted by the Solicitor for the appellants that the appellants have acted openly in making their application but had they chosen the other path through a lease and lease back arrangement their application would have been successful to the extent of 470Ml of water allocation and that it is inequitable that the application has been refused on the grounds stated.  While Mr. Dowling had at the time of the application an allocation Mrs. Dowling did not have any allocation.  She submits that the discretion allowed by the Act to the Commissioner is intended to be exercised according to the rules of reason and justice.  She concedes that it is a proper exercise of discretion for the Commissioner to have a policy on a water allocation of 470Ml, but it is not a proper exercise of discretion to refuse an application by Mrs. Dowling for an allocation to a parcel within the area because her husband with a water allocation has an interest in that land. 

I have considered all of the documents and the evidence in this matter and am satisfied on the evidence that had the appellants here arranged a lease of these lands to another party, that party would have received a water allocation of 470Ml.  The land could then have been sublet back to them to derive the beneficial use of the water.  They are disadvantaged against others who gain an allocation by devious means.  They should not be penalised because they have presented the truthful picture in making the application themselves.  An allocation to them will take no more water than an allocation to a lessee from them.
              I agree that it is proper for the Commissioner to "fairly and equitably distribute and manage the water supplies available from the project" as stated by Mr. Claydon but as was said by Mr. Dodds a then Member of this Court in L.P. Shooter & Ors. -v- The Commissioner of Irrigation and Water Supply (1972) 39 C.L.L.R. 11 at P. 17:

"To me there is no suggestion in these provisions that the Legislature is simply concerned with over-appropriation so much as ensuring that each applicant is fully considered, with the balances held fairly, and adjusted equitably as between the applicant and other riparian owners who may be affected."

In the circumstances, therefore, I find that the appeal should succeed to the extent of the grant of an allocation of 470ml being the amount of water which would have been allocated had a lessee/occupier from them made the application.
              In the result the appeal is allowed.  The decision of the Commissioner is revoked.  I order that Waterworks Licence No. 49130 be amended as necessary to provide for an annual allocation of 470Ml in lieu of the provisions contained in the licence concerning diversion of water as therein stated but otherwise subject to the usual conditions attaching to such licences in that area.

President of the Land Court