Garthe v Chief Executive, Department of Natural Resources
[2000] QLC 32
•26 May 2000
|
BRISBANE
26 MAY 2000
Re: Appeal against the decision of the
Chief Executive to grant an increased
water allocation.
Water Resources Act 1989
(A99-38)
Aaron B Garthe and Ann M Bundesen-Garthe
v.
Chief Executive, Department of Natural Resources
(Hearing at Dalby)
D E C I S I O N
Background:
This appeal relates to the refusal by the Chief Executive to grant an increase in water allocation in respect of land at "Ellerslie", Carters Road, Bowenville, and described as Lot 1 on RP 56353, Parish of Jondaryan. The subject land is located about 13 km south-west of the Town of Bowenville, and to the south of Oakey Creek. The appellants had applied under s.42 of the Water Resources Act for a new subartesian bore licence to replace a former bore which had collapsed. The appellants also applied to have their current water allocation increased from 31 megalitres to 160 megalitres. The Chief Executive approved the new replacement bore (Licence No. 100865), but refused to increase the water allocation beyond its current level of 31 megalitres. The appellants then appealed to this Court under s.51 of the Act.
Mr FL Lippett of Counsel, instructed by Carvosso & Winship, Solicitors, appeared for the appellants, calling evidence from Aaron Bruce Garthe. Mr D Grealy, Counsel of Crown Law, appeared for the respondent, calling evidence from Adrian John McKay, Senior Technical Officer, Resource Management Unit of the Department of Natural Resources, now accepting responsibility for the decision to refuse the increase in water allocation.
(1) The History of the Site -
The appellants are experienced dry land farmers of 30 years' duration, including 20 years in the western area of Hannaford, where they were mainly involved on 1,560 ha in grain and cereal growing, with some grazing. The appellants then relocated to a small property (48 ha) at Marburg, before acquiring "Ellerslie" (200 ha) on 12 April 1999. Prior to acquiring "Ellerslie" all of their experience had been in dry land farming, with no exposure to irrigation.
Part of the attractiveness of "Ellerslie" was its better capability to store moisture, and to be tilled. Their intention on purchasing "Ellerslie" was to fully utilise the land for dry land grain growing. The relatively unused subartesian bore, with the 31 megalitre water allocation, was seen merely as a bonus to assist in that process, and to assist in making the property more viable. At the time the appellants saw "Ellerslie" as a good buy for dry land farming purposes.
Prior to signing the contract of sale, the appellants were only aware of the need to transfer the then current Water Licence No. 32675, which authorised the annual nominal water allocation of 31 megalitres for irrigation purposes. They had made no inquiries into the condition of the bore, which subsequently proved to be unserviceable, as the borehole collapsed when tested by the appellants on taking over the property. The previous owner had made only limited use of the bore.
Subsequent to acquiring "Ellerslie" the market for grains and cereals commenced a downward spiral due to a decline in world commodity prices. The appellants had foreseen some decline in market prices, but were completely surprised by the very large fall that eventuated. At the date of contract in April 1999 the price of sorghum had been about $210 per tonne, but that quickly fell to $130 per tonne, and has continued to decline to its present level of about $90 per tonne ex farm. Because of that dramatic downturn in cereal crop prices, the appellants are now faced with the dilemma that "Ellerslie" may not be a viable production unit.
To that end the appellants have sought possible alternative strategies which may increase the economic viability of the property. They became aware that the Department of Primary Industries (DPI) agronomy notes indicate that irrigated cotton crops can yield a profit of about $2,000 per ha. While their 31 megalitre allocation could sustain an area of about 7 ha to 8 ha of cotton, the practicalities of cotton harvesting dictate that larger areas of cotton are needed in order to attract contractors to work the crop. Based upon the recommended usage of 4 megalitres per ha, the appellants sought approval for an allocation of 160 megalitres, which would ensure irrigation of some 40 ha, or 20% of the total area of "Ellerslie" for irrigation purposes, possibly for cotton. Mr Garthe based his estimate of 160 megalitres on a formula supplied by the respondent, at 0.8 megalitres per ha. It is also noted that Mr Williams of "Landform" had based his calculations for allocation, for sorghum at 1.5 megalitres per ha.
Mr Garthe agrees that cotton would appear to provide the best return per ha, compared to other crops such as grains or horticulture. However, he argues that other crops would also require a similar water allocation for irrigation, in order to remain viable in dry times. For that reason, he does not see the need for an increased water allocation as being tied to any one particular crop (ie cotton), but merely to ensure the economic viability of the property. Under his current cropping arrangements, "'Ellerslie' is carrying 112 ha of sorghum, and 84 ha of mung bean, although 70% of the mung bean has had to be replanted due to recent hailstorm damage." At current prices Mr Garthe argues that he is currently barely meeting his costs, and after allowing for depreciation on machinery, the property is running at a loss. While those prices are accepted as a 20 year low in world markets, it is his opinion that those conditions are likely to continue for some time.
(2) The Need for Water -
To support their argument that "Ellerslie" is not viable as a dry farming property, the appellants provide a statutory declaration from Peter Wylie, an agricultural consultant. Dr Wylie analysed the agricultural potential of "Ellerslie", concluding the following:
"1.The farm is not viable with dryland grain production at present grain prices - a loss of $10,000 is projected.
2.At grain prices which have been received in recent years, and at the time of purchase, the farm was viable, with a profit projection of $5,400.
3.With an allocation of 160 megalitres of bore water for irrigation, and after payment of interest on extra borrowings for irrigation, the projected profit is $7,690 p.a.
4.Development of irrigation with an allocation of 31 megalitres is unviable, with a projected loss of $10,000 p.a."
Dr Wylie further notes that it is not viable to equip the bore on the property and purchase irrigation equipment within the constraints of a 31 megalitre annual allocation. Dr Wylie recommends an increase in the water allocation to 160 megalitres, to ensure viability of the property. Dr Wylie bases his estimates on the production of cereal crops including wheat, chick peas, barley, sorghum, mung beans and irrigated corn. There was no prediction based upon the growth of cotton, which would require a considerable increase in allocation for effective irrigation purposes.
Mr Garthe concedes that if "Ellerslie" had an allocation of 130 megalitres, instead of 31 megalitres at the date of purchase, then it would have been more costly to acquire. He notes further that while it would have been a more attractive property to purchase, it may also have made the property unaffordable for the appellants (transcript p.10). Mr Garthe also notes that the appellants only became aware of the cap on allocations after they had signed the contract. However, from discussions with local people, Mr Garthe argues that there would seem to be a lack of knowledge about the Oakey Creek system cap, as to his knowledge, there were not many bores in the shallower system. Mr Garthe understands that people were only generally aware of the cap on the Condamine River Basin.
(3) Alternative Solutions -
Before proceeding with the application for an increase in water allocation, on advice from staff of the respondent, the appellants investigated alternative methods of ensuring viability of the property. From personal inquiries, Mr Garthe became aware that there were some existing land owners who were not fully utilising their current nominal water allocations. Mr McKay has subsequently confirmed that there are a total of 44, either existing bores (30), or proposed bores (14), which were formally approved in the Lower Oakey Creek Alluvial Aquifer Area. Collectively that represents 5,387 megalitres of water allocation which exists, and a further 2,767 megalitres proposed to be developed, giving a total of 8,154 megalitres currently allocated.
Mr Garthe then sought to approach some licensees, who were not utilising their total allocation, seeking to ascertain whether they would be prepared to lease part of their entitlement. Mr Garthe approached at least eight people in his immediate area, and he gradually became aware of a lack of cooperation in such a proposal. He subsequently ceased to record the names of others to whom he spoke. He notes, in particular, that some persons had quite large nominal allocations, and currently only used a small portion of that figure. One person with a small allocation was willing to lease part of his right, however, in view of the small quantity available, that was not pursued as it was felt the impact might be too severe on that person, bearing in mind the perceived lack of use of the available water by others.
Subsequent to those inquiries, Mr Garthe had a verbal offer to lease some water at a yearly cost of $100 per megalitre. However that offer was seen as too expensive, and well beyond the general industry expectation of about $30 to $40 per megalitre. The offer was also only on a yearly basis, and provided no guarantee of continuity of service for the leased water.
The appellants also investigated the option of collecting water from overland flows, with the construction of either a ring tank or a dam. To that end quotations were obtained from "Landform" consultants in the field of designing and constructing ring tanks. "Landform" reported that there was definite potential to harvest flood waters passing through "Ellerslie", although it warned that upstream proposals by other owners in the 3,800 ha catchment were likely to significantly reduce storage reliability. "Landform" based those predictions upon an extended period of 47 years of daily rainfall data, and in the knowledge of a number of proposed ring tank projects in the same catchment, although there was then only one existing storage harvesting in the same flows as "Ellerslie". Mr Garthe was unable to comment on why those owners were persisting in developing overland flows. "Landform" predicted that the catchment model indicated that runoff of 135 megalitres could be exceeded or equalled in 75% of years, and 590 megalitres in 50% of years.
As a measure of storage performance, "Landform" adopted a theoretical sorghum crop of 80 ha for which it allowed a daily rate of irrigation at 120 megalitres. On that availability of water, "Landform" predicted that a crop performance factor of 51% may be assumed, noting that for the other 50% of the time there would be some restrictions upon the total needs of the crop. In addition to that analysis of storage reliability, "Landform" provides an estimate of costs to provide a 300 megalitre ring tank at approximately $200,000. Allowing for the cost of irrigation lines, a submersible pump, and the provision of power, would take the total cost of providing irrigation to between $290,000 and $360,000. The initial minimal cost of providing irrigation, perhaps using some secondhand equipment, even without the construction of a ring tank, was estimated at between $50,000 and $70,000.
Based upon the above predictions, and considering the level of uncertainty involved in collecting adequate and consistent overland flows, the appellants decided that a ring tank alternative was not viable, and would be an almost reckless approach to the problem.
(4) A New Application -
At the time of acquiring the subject land in April 1999, there was an existing licensed subartesian bore known to be to a depth of about 36 metres. On seeking to reactivate that bore the appellants engaged a licensed water drilling contractor (Peter Robert Burton) to pump test and rework the original borehole. During those operations the bore collapsed at a depth of about 27 to 30 metres, although some water was encountered at that level prior to withdrawing the drilling rig. The original bore (Licence No. 32675) was drilled about 1971 and the appellants argue that the water level in that borehole appeared to have not varied in depth since it was first drilled in 1971.
In order to recover their water entitlement, the appellants sought approval of the respondent to place a new borehole within 10 metres of the former bore, and also to have the water allocation increased from 31 megalitres to 160 megalitres. Mr Garthe notes that installation costs are about the same for an allocation of 31 megalitres as for 160 megalitres. The Chief Executive formally advertised the application, seeking objections from interested parties within a radius of 0.5 km from the subject land in accordance with s.41(10)(d) of the Act. In that respect it is noted that the Chief Executive may extend the prescribed distance from a subartesian bore under s.41(11), but in the current matter he has not exercised that option. There were no objections lodged with the Chief Executive.
Following consideration of all matters referred to in s.43 of the Act, the Chief Executive issued a new licence for a subartesian bore to a depth of 120 metres, with the nominal groundwater allocation remaining at 31 megalitres per water year, and refusing the application to increase the allocation to 160 megalitres. The main reasons given for the refusal were:
(a)The groundwater resources of the southern and eastern Darling Downs are extensively developed as sources of water supply for irrigation, town/urban, stock, stock intensive, industrial, commercial and domestic water supply.
(b)Development density is high in a number of aquifer systems and there is increasing competition for available supplies.
(c)Existing allocation commitments in many systems have reached levels necessitating the introduction of strategies of limit usage to sustainable limits.
(d)During the period of the cap, detailed management strategies are to be determined on the basis of the outcomes of sustainable yield assessments for each major aquifer system.
The refusal was in line with the current policy of implementing a cap on groundwater allocations, which was introduced on 25 March 1996, after extensive public consultation with the farming community in that locality. The new bore under Licence No. 100865 was sunk to a depth of about 43 metres, where adequate water was obtained, at a rate of 18,000 gallons per hour. The cost of that new bore was approximately $29,000 and the water was suitable for irrigation purposes or stock watering.
(5) Policy Implications -
A key issue in this matter is the impact of the Lower Oakey Creek Alluvial Cap. That policy decision of the Chief Executive has been in place since March 1996, as a measure to help sustain the Lower Oakey Creek Alluvial Aquifer, which was identified as vulnerable to over development. Under that policy all existing water allocations are capped at their March 1996 levels, and no new or increased allocations have been approved since March 1996. The cap was installed after wide community consultation, and with the overall support of the farming community.
Mr McKay advises that the existence of the cap is widely known in the farming community in that locality, and all inquirers are informed of its operation on any new proposals. While persons may continue to apply for new allocations, they are left in no doubt that refusal was likely to occur. Mr McKay further advises that there have been no exceptions to that policy since its inception. Mr McKay further advises that the cap was implemented in response to evidence from monitoring of water levels, which showed a steady decline over an extended period of time. The cap was implemented by an Order in Council under the Water Act 1926.
As a means of monitoring water quality and levels, the Chief Executive has established and monitored, on a three monthly basis, a network of departmental monitoring bores, some of which are in the immediate locality of "Ellerslie". Three of those bores in particular are depicted in Mr McKay's statement (Attachment 2). Evidence was given of a shallow monitoring bore (No. 42231291) of depth 25 metres in the upper (eastern) end of the Oakey Creek Catchment, and another bore (No. 42231316) of depth 105.5 metres in the lower (western) end of the Oakey Creek Catchment. The shallow bore shows a decline of about 3 metres in water levels between 1990 and 1996/97; while the deeper bore shows a decline of about 7 metres in the same period.
Another deeper bore to 110 metres (No. 42231193), just outside the capped area, supports an overall decline in levels since it was first installed in 1978. Concern is expressed by Mr McKay that, in spite of the cap in place since 1996, the levels in bore No. 42231193 are continuing to decline, showing, in his opinion, that extraction is still exceeding the long-term yield of the aquifer in that area. Mr McKay advises that the Lower Oakey Creek Alluvium is recharged from Oakey Creek flows, and is therefore reasonably varied according to rainfall, and percolation through the alluvial beds. Mr McKay argues that the current monitoring of the catchment indicates a fine balance between current usage and yield, which should not be upset by further increases in allocations. He also expresses concern that, when current approved allocations are brought on line, then the long-term performance of the aquifer may come into further decline. The Lower Oakey Creek Cap is just part of an extended series of capped areas throughout the central and upper Condamine Catchments (Attachment 3).
(6) The Hydrology of the Area -
In order to explain the hydrology of the area, from his experience, Mr McKay provides a sectional view of the interface of the subsurface alluvial beds (Exhibit 7). It is his opinion that the sand, gravel and clay alluvial aquifers, are stratified as lenses within the saturated zones of both the Lower Oakey Creek and the Condamine River. While Mr McKay concedes that the Chief Executive has not undertaken a complete hydrological investigation of the interlinking of the two catchments, from his extensive experience as a hydraulics and groundwater expert, he believes that gravity forces dictate the interflow between the two structures. He argues that a contour plot of water levels in the various basins would support his conclusion.
It is Mr McKay's opinion that the water levels percolate through the aquifers from the higher upstream end of the Oakey Creek aquifer, at about 50 to 60 metres depth, to the lower end at about 110 metres. Any bore that penetrates those lenses, increases the flow of water to the lower levels. The higher adjoining upstream level Oakey Creek Groundwater Management Area has been capped since 1992, and has subsequently in 1996 had enforced a 90% announced allocation level on all existing nominal allocations in that area. It is Mr McKay's opinion that as the Oakey Creek and Condamine River Basins are hydrologically connected, any additional water drawn from Oakey Creek would impact the Condamine River.
Downstream of the Lower Oakey Creek Alluvium are the alluvial aquifers of the Condamine Groundwater Management Area. In that zone allocations have been closed by capping since 1970, and since 1996 have been subject to 70% announced allocations of those approved nominal allocations, which are rigorously metered. There have been no new allocations approved in either the Oakey Creek or Condamine Groundwater Management Areas since 1996. Mr McKay argues that any new allocation was likely to draw down the water table in the form of a groundwater depression around the new bore, causing adverse impacts upon other existing users.
Mr Garthe, however, argues that he is informed that the local aquifers in his locality tend to be separated from the surrounding deeper waters associated with the Condamine River Basin. Mr Garthe agrees that the Condamine River Basin is well known to have water sustainability problems, and he agrees that the further pumping from those aquifers would be detrimental to the water levels. However, Mr Garthe argues that, while flows in the shallower Lower Oakey Creek Catchment are never as good as the deeper water flows, it is possible to pump water from the shallow areas near his land without impacting surrounding users. During the drilling of the new bore under Licence No. 100865, Mr Burton put test holes down in the deeper Condamine basin system, which proved dry; while the Oakey Creek system provided good water, for both the appellants and other clients in that area. However, Mr Garthe provides no further evidence to support that conclusion.
Decision:
(i) The Legislation -
Before proceeding to the merits of the application, I look first to the legislation. I note that the right to the use and flow and control of water at any time in a subartesian bore, or any other underground source of supply, is vested in the Crown under 3(c) of the Water Resources Act 1989. In that respect I also note that a "subartesian bore" is defined under s.2(1) to include:
"'subartesian bore' includes any shaft, well, gallery, spear or excavation and all works constructed in connection with any subartesian bore, shaft, well, gallery, spear or excavation which intersects an underground source of water and from which water does not flow naturally to the surface."
By those directions the respondent clearly has the power to control access to any underground water supplies within the subject land.
It is also noted that where the Chief Executive is satisfied, after due inquiry, that the quantity of water flowing from an artesian bore is surplus to the reasonable requirements of an owner of land on which the bore is situated, the Chief Executive may reallocate the surplus water to other lands insufficiently watered (s.30(1)(b)). While the current application deals only with a subartesian bore, the guidance of s.30 is towards maintaining the supply of water from underground sources. Where an owner seeks to construct a subartesian bore, or use a subartesian bore so constructed, or to enlarge, deepen or alter a subartesian bore in a declared subartesian area, then a licence is required under s.38(1); and the power for an owner to make an application for a licence is provided for in s.39.
Where alterations to a subartesian bore are required, other than for repairs or maintenance of the bore, they are processed under s.42(1); and the notice of the application must be advertised in a local newspaper under s.42(6). Any objections to the application for a subartesian bore may be exercised under s.42(9), by an owner of land, the boundary of which is situated within a radius of 0.5 km from the site of the subartesian bore (s.42(10)(d)).
Upon receipt of the application, the Chief Executive is required to cause an inquiry to be made of the application under s.43(1)(b) which states:
"43(1) Upon an application under section 42 and an objection thereto, the chief executive must cause inquiry to be made into anything the chief executive considers appropriate, including any of the following that are relevant to the application.
(b) where the application relates to underground water -
(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;"
Following the inquiry, the Chief Executive may, under s.43(2), either grant the application absolutely, or with modification as determined by the Chief Executive, or he may refuse the application. Where the decision of the Chief Executive is in relation to a subartesian bore there is no requirement for the decision to be published in a local newspaper under s.43(A)(1). However, the Chief Executive is required to give notice of his decision to the applicant under s.43(B)(2), and must state his reasons for not granting in full the application under s.43(B)(3); from which the applicant may then appeal to the Land Court under s.51. Provisions for the transferring of licences are covered in s.47, and amendments to a licence under s.50.
A person dissatisfied with the decision of the Chief Executive may appeal to the Land Court under s.51(1) as follows:
"51(1) A dissatisfied person may appeal to the Land Court against a decision of the chief executive with respect to -
(a) an application for -
(i) a licence;
(c)any amendment, variation, cancellation, revocation or suspension of a licence;"
However, under s.51(3) an appeal does not lie from a decision of the Chief Executive with respect to -
"(d)an objection to an application for a licence to construct or use an artesian bore or a subartesian bore;"
In the circumstances of the current matter there were no objections received in respect of the application, and there are no implications of s.51(3).
Any appeal to the Land Court must be exercised under s.51(4)(A); and must state the grounds of appeal under s.51(5); and serve a copy on the Chief Executive under s.51(6). The Land Court then has the power to determine any appeal under s.51(7) which states:
"51(7) The Land Court must hear and determine the appeal and may confirm, vary or revoke the decision of the chief executive the subject of the appeal."
The burden of proof lies upon the appellant under s.51(9), and the decision of the Land Court is final and is not further justiciable under s.51(10).
In the matter of the use of Temporary Transfer of water allocations, I note that power is exercised under s.47, which provides:
"47(1) On application, the chief executive may transfer a licence from an existing holder to someone else to take into account a change in ownership of land to which the licence relates.
(2) The application must be in a form approved by the chief executive.
(3) The application must be accompanied by the fee that may be prescribed under a regulation.
(4) The chief executive may amend the terms of a licence for the purpose of its transfer."
In the Oakey Creek Groundwater Management Area the Chief Executive's policy is to allow for one licensee to transfer announced allocations to another within a water year, and subject to the hydrological conditions in the area at the time of the application. The onus to source potential transferors lies with the applicant. The temporary transfer of allocation must be used, and cannot be carried over from one year to the next.
Another key direction relevant in the current matter is the authority for the creation of Water Management Plans under s.25B of the Act. While those provisions were introduced in 1996, they consolidated the ongoing Water Management Plans extant in many areas of the State. It is particularly noted that s.25E directs that in preparing a draft Water Management Plan the following principles and policies must be considered:
(a) the total water rights vested in the Crown;
(b)existing entitlements to water under the Act, including, for example, entitlements of riparian owners, licensees and permittees and entitlements under agreements;
(c) the provision of water for ecosystems;
(d) the extent of beneficial flooding currently enjoyed by landowners;
(e) future water needs;
(f) water flows;
(g) underground water levels.
Those provisions also enshrine the need for public participation in any decision-making process, the objective of which is environmental sustainability. It is particularly noted that actions taken in respect of a decision on an application for a licence for "works" such as a subartesian bore in a Water Management Area, must not be inconsistent with the plan (s.25P(1) and (2)(e)).
(ii) The Supply of Water -
In considering the potential impact of the application to extend the nominal water allocation on the subject land, I am aware that the Chief Executive is charged with the overriding general responsibility to protect the water resources of Queensland. The broad scope of that responsibility is espoused in s.8(2) of the Act which states:
"8(2). The chief executive must -
(a)prepare and keep a description of the natural water resources of Queensland, both surface and underground; and
(b)measure, make and keep a record of the natural waters of Queensland both surface and underground for the purposes of -
(ii)ascertaining and recording available information relating to the artesian waters of Queensland and the underground waters of Queensland not classified as artesian waters; and
(c)evaluate the present and future water requirements of Queensland; and
(d)make recommendations to the Minister concerning the development of the water resources of Queensland;
and may -
(f)take all steps and do all acts and things as the chief executive thinks fit to protect the water resources of Queensland from anything that results in or is likely to result in a diminution of their quantity or, subject to the Environmental Protection Act 1994, from anything detrimental to their quality; and
(i)investigate and survey any natural water resource, surface or underground, in Queensland in order to -
(ii)enable plans to be formulated, coordinated and implemented for the conservation, replenishment, utilisation and distribution of the waters of Queensland;"
The role of the Chief Executive in that regard was noted in the decision of this Court in LP Shooter & Ors v. The Commissioner of Irrigation and Water Supply (1972) 39 CLLR 11. In that matter the learned Member noted that the legislation at that time was not merely directed towards avoiding the over appropriation of water entitlements "so much as with 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" (p.18). The member saw some significance in that matter in the fact that there had been no objections to the application, which he interpreted as reflecting a lack of concern by other licensees in the area. The Member also noted that nominal allocations in that matter had not been fully appropriated, and the lack of any objections may have indicated that full appropriation may never happen. In the current matter a similar under utilisation of allocations also prevails.
In the current matter there were also no objections to the application, however, I believe that can be distinguished as the local community is fully aware of the prevailing Oakey Creek Groundwater Management Area, and the existing cap on water allocations. Indeed, Mr McKay expressed the view that as the cap had been introduced in consultation with the community for over four years, he was not surprised that no-one had seen the need to object. He also noted that a similar scenario had occurred in the Condamine River Basin, where the Chief Executive's policy was seen to not require any need to object to new applications.
The impact of water management policies was also noted in the decision of RG & ND Rogers v. Chief Executive, Primary Industries Corporation [1994-95] 15 QLCR 119, where the President said at p.128:
" Whilst I see these grounds as having no support in law in dealing with riparian rights inter se, the spirit of the 1993 legislation and the strategy anticipated in the management of the river catchment, would imply that there is a duty on the decision maker to consider matters contained in the proposed policies. I note that s.4.18(1)(c) provides that the decision maker may inquire into any other matter or things he thinks fit. Where policies have been adopted it seems to me that there is a duty (rather than a discretion) to consider such policies."
Indeed, that direction of the Court has subsequently been reinforced by the inclusion of s.25(P). In the context of the Lower Oakey Creek Management Plan, that also includes the current cap on further extensions of existing water allocations. The duty of the Chief Executive to manage, monitor and review the water supply system in an area, was also noted in KG & EK Moir v. Commissioner of Water Resources [1992-93] 14 QLCR 125, where the Member (later President) said at p.133:
" I merely wish to add that the philosophy of the current Act is no different from that of the former Act. The Commissioner has a duty to manage the system. The term includes the continual monitoring and review of the system."
The duty of the Chief Executive to give consideration to all relevant matters when deciding to reduce a nominal water allocation, which had not been beneficially used, was also addressed in ER & MR Martin v. Chief Executive, Primary Industries Corporation [1994-95] 15 QLCR 150, at p.159. That matter raised the issue of "relevant matters" to a particular application, which were noted to vary according to the different circumstances of a particular catchment area. In the circumstances of the current matter, relevant issues for consideration would, in my opinion, have included the existence of the water allocation cap, and would have also included not only the extent of allocations currently being used, but also the likelihood of the existing nominal allocations still to be activated. It was Mr McKay's evidence that should the latter occur in the Oakey Creek aquifers, they were likely to draw down the water table in that area. He further predicted that any new increases in allocations would exacerbate the problem.
The duty of the Chief Executive to manage the water system was further noted in MP Stephen Pty Ltd v. Chief Executive, Primary Industries Corporation [1994-95] 15 QLCR 351. In that matter the appellants had appealed against the decision of the Chief Executive to introduce new conditions into a licence, which would require the installation of meters, following a review of the water resource. The Stephen appeal dealt with the pumping of water from Oakey Creek, and not from a subartesian source, but the duty of care of the Chief Executive is similar. The president noted at p.365:
"The arrangements which have been implemented and are currently being reviewed under the 1994 guidelines (including, I emphasise, a requirement to meter all pumps) have been determined by a democratic process involving both users and DPI. … Whilst inherent in the Act is the principle that 'rights' having been granted cannot be taken away without good cause, there stands beside that principle the philosophy I have just discussed coupled with a duty on DPI to manage the system in the interests of users and in the public interest. Management in the context of the Act includes the power to regulate -"
The duty of the Chief Executive to cause an inquiry into the water supply under s.43(1) (formerly s.4.18(1)(a)), was also addressed in The Council of the Shire of Isis v. Chief Executive, Primary Industries Corporation [1994-95] 15 QLCR 439 at 447.
The matter of a water management policy addressing depletion of a subartesian irrigation area was also addressed in JF, BG & JJ Hicks v. Chief Executive, Primary Industries Corporation (A93-13), 6 July 1993, unreported; and also in JF & C Fairley v. The Commissioner of Water Resources (A92-20), 3 July 1992, unreported. The need for such a policy to be decided on rational grounds, was recognised in the Fairley matter, where the history of the appeal has some similarities to the current matter. The Fairleys had purchased the property in 1986 for use initially for the growing of lucerne, but had subsequently changed to growing cotton. The Irrigators Association at that time had pressed the Chief Executive for augmentation of the original licences to cope with the increased demand for an expanding area of irrigation. The Chief Executive had implemented a policy of metering all bores by 1982, and was aware that water levels in the area were declining. Following a comprehensive review, and in consultation with the community, the Chief Executive implemented a policy of redistribution of the available supply. The Member found that the criteria adopted in that policy was reasonable.
Another matter of some comparability is WR & DM Cahill v. Chief Executive, Primary Industries Corporation A95-45), 22 March 1996, unreported. In that matter the appellants irrigated their property from an allocation of 51 megalitres from a subartesian bore in the Callide Valley. The appellants argued for an increase in their nominal water allocation to 93 megalitres in order to improve the productivity of the land. The learned member noted at p.16:
"The appellants' case supports an additional allocation in their interests, but it does not support a case in terms of the 'public interest' given the present level allocations in Section 2B.
The chief executive is responsible among other things for 'the conservation, replenishment, utilisation and distribution of the waters of Queensland'. The total nominal allocations issued and, more importantly, the total use of Section 2B is greater than the safe yield. Any allocation greater than 51 megalitres would result in other existing users having a reduction in the reliability of supply."
A similar finding was also found in LW & BA Hoult v. Chief Executive, Primary Industries Corporation (A95-80), 10 September 1997, unreported. In that matter the appellants sought approval for a licence for an irrigation bore with an annual water allocation of 2 megalitres for small crops and trees in the Bundaberg district. The appellants argued that the allocation of 2 megalitres would not have any significant effect on adjoining owners, and would not be seen as some precedent as few properties in the area did not already have an allocation (p.4). The learned Member found at p.8:
" In all the circumstances, I cannot conclude that this is a case where the longstanding policy of not issuing irrigation licences to owners of land which was not used for cropping in 1970 should be disturbed."
In reviewing the precedents in this matter I am aware that sometimes cases are determined on their own facts, and I have considered the findings of PA & CR Conroy v. Commissioner of Water Resources (A92-2) 13 August 1992, unreported. In that matter the appellants sought a waterworks licence to construct a bore for irrigation purposes in the Upper Condamine Basin, with an allocation of 286 megalitres, for the irrigation of grain, cotton and cereals. A previously issued licence had not been exercised due to insufficient funds, and the licence had been cancelled in the early 1970s as providing no beneficial use. In the special circumstances of that matter, the learned Member granted the licence on the grounds that one more licence of 286 megalitres annually would not significantly deplete the resource. However, the Member also noted that such a decision should not be taken as forming some precedent for other licences. That bore was within the Condamine Groundwater Management Area.
However, I believe that Conroy can be distinguished in so far as it preceded the installation of the Lower Oakey Creek Alluvial Cap in March 1996. Since 1996 there has clearly been a firm policy of refusing to extend water allocations, while maintaining a consistent monitoring of the water resource. There is no evidence to suggest that the water levels have increased since 1996, and in fact are continuing to decline.
Summary:
I believe that the Chief Executive has undertaken his responsibilities to investigate the water resources of the area in a fair and reasonable manner. The policy development has involved the community in consultation, and the Chief Executive continues to obtain empirical testing through the regular monitoring of test bores. The fact of the existence of the official cap is widely known, and apparently has the support of the community.
While an increase in the nominal water allocation for "Ellerslie" would have a significant impact upon the productivity of that property, that increase should not be achieved to the detriment of the surrounding property owners. The history of a gradual depletion of some artesian water supplies is well documented in the literature. There is now an increasing awareness in the farming community of the need for planning measures, which will ensure the maintenance of an environmentally sustainable water resource. On the evidence supplied, I accept Mr McKay's conclusion that the sub aquifers of Oakey Creek and the Condamine River are hydrologically connected. The fact that other farmers in the Oakey Creek Catchment see the future need for the installation of ring tanks or dams, in order to retain overland flows, in my opinion, would appear to support the view of the community that existing water resources should not be further depleted.
The failure to extend the water allocation from the former level of 31 megalitres to 160 megalitres, in no way reduces the benefit previously accruing to the subject land, which would have been considered when the appellants acquired "Ellerslie" in April 1999. The appeal is dismissed, and the decision of the Chief Executive to retain the former annual allocation at 31 megalitres is confirmed.
NG DIVETT
MEMBER OF THE LAND COURT
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