Gray v Chief Executive, Primary Industries Corporation; Crombie v Chief Executive, Primary Industries Corporation
[1997] QLC 103
•8 July 1997
LAND COURT
[1997] QLC 103
BRISBANE
8 JULY 1997
Re: Appeals against a decision to issue
Waterworks Licence No. G 54277 -
Water Resources Act 1989
A95-47 -
E.M., J.D. and L.S. Gray
v.
Chief Executive, Primary Industries CorporationAND
A95-50; A95-54; A95-55; A95-58; A95-59; A95-60; A95-61 and A95-72
P.A. Flipo; M.O’Brien; W.M., J.P., W.I.C. & A.D. Crombie;
T.J., D.R. and I.M. Hamblin; J. Hawker; R.J., R.I.S. Winks; K. Wilson;
The Corporation of the Synod of the Diocese of Newcastle
v.
Chief Executive, Primary Industries Corporation
(Hearing at St George and Brisbane)
D E C I S I O N
J.D., L.S. and E.M. Gray are the owners and occupiers of “Yartoo”, a property of about 14,500 ha including Lot 3 on BLM 566, Parish of Boogah, County of Belmore, situated about 45 km southerly of Bollon.
Wallam Creek flows through “Yartoo”. The creek heads southerly of Mitchell then flows to the south past Bollon, eventually through “Yartoo”, then the properties “Woolerina” (Winks); “Yendon” (Ham); “Belmore” (O’Brien) and “Whyenbirra” (Crombie). Wallam Creek then loses its watercourse definition within “Whyenbirra” where it breaks out into flood plain channels draining southerly through “Kulki” (Hamblin); “Combo” (Hawker/Perrottet); “Chaloner Park” (O’Brien); “Kuballi” (Flipo); “Brenda” (The Corporation of the Synod of the Diocese of Newcastle); “Tara” (Smith) then into the Culgoa Flood Plain National Park on the Queensland/New South Wales border.
Licence History
In 1984 Waterworks Licence (No. 43234) was issued to the Grays for water harvesting from Wallam Creek by means of a 650 mm centrifugal pump. That licence enabled pumping to commence when there was a flow of 1000 ML per day at the pump site. There had been no objections to the issue of that licence. In 1989 a 610 mm diameter axial flow pump was installed. A gauge board was not installed at the pump site until 1992. Stream gaugings were then conducted. The starting flow of 1000 ML/day was found not to occur until the creek was at a higher level than the licensees had at first thought. They had proposed to increase off-stream storage capacity to 1000 ML and applied, on 31 March, 1992 to have the starting flow restriction on pumping revised. The evidence is that they had suggested at that time that the starting flow should be reduced to 130 ML/day. The application, No. 54277, for the replacement of the existing licence and revision of the starting flow was duly advertised with the advice that the “closing date for objections from landholders within a radius of 8 km upstream and 24 km downstream” was 22 May, 1992. Advertisement of the application was in accordance with s.42(6) of the Water Resources Act 1989 (the Act). The advice relative to objections and the prescribed situation of objectors’ land was in accordance with ss.(9) and (10)(a)(i)(A) and (B) of s.42.
There were 11 letters of objection. Three of the objectors were associated with two properties within the advertised radius.
The evidence was that the concerns of the objectors related to the perceived impact of reduced starting flows on downstream stock and domestic supplies and beneficial flooding of grazing lands; the lack of data to allow evaluation of that impact; management of the licence conditions; chemical residue run-off and environmental impacts generally. The widespread downstream landholders’ concerns resulted in a formal meeting being held in Bollon, of Wallam Creek landholders. It seems that there had been, at that time, a general belief that Wallam Creek remained as a “defined watercourse” past the southern boundary of “Kulki” (a significant distance further downstream than is the now technically accepted limit of the watercourse - in “Whyenbirra”). The meeting failed to allay the downstream landholders’ concerns. Further gauge boards were subsequently installed downstream of the pump site at Andy’s Crossing (about 9 km) on “Woolerina” and at the North Kulki road crossing at “Belmore” (35 km).
Collection and analysis of data was delayed until there had been several flows which enabled the departmental investigating officer to analyse potential impacts from decrease in the starting flows for the licensees’ harvesting operation.
When the Department considered that sufficient information had been gathered, a draft licence with proposed conditions was formulated and taken to another meeting attended by the applicants’ representative (Mr J.D. Gray) and objectors on 28 November, 1994. Attendees at the meeting were invited to provide further information or comment by mid-January 1995.
The somewhat complex draft licence starting flow conditions were found to be unacceptable to objectors generally and were considered too restrictive by the applicants.
The original investigating officer, Mr B.J. Heck, employed by the Department as a technical officer, was transferred before final submissions from objectors and the applicants had been received. Mr A.T. Wallwork, Engineer and the District Manager (Water Resources) St George, had been involved, in a supervisory role, in the licence investigation procedures and then took an active part in the final analysis of starting flow conditions.
Licence Conditions
Licence No. 54277 eventually issued with a schedule of conditions, including flow reporting arrangements and the requirement to install a meter before diversion occurred. Conditions which were particularly relevant to the various parties involved were then as follows:
“1.031BDiversion of water under the authority of this licence is prohibited whenever the surface flow at the pump site is less than the levels shown on Attachment A as indicated by the corresponding marks on a gauge board installed by the Chief Executive at the pump site. The gauge board or mark may be altered from time to time by the Chief Executive to reflect more accurately the prescribed surface flow.
1.099FNotwithstanding the above terms, diversion of water shall not commence unless permission to water harvest, at all levels below 1000 ML/day at the pump site, has been notified by the Chief Executive or his district representative.
1.210Notwithstanding the above terms the Chief Executive or his district representative may restrict, suspend or prohibit diversion if in his opinion it is necessary to do so to protect the interests of downstream proprietors or may allow diversion to commence at a lower level and/or continue beyond the period normally permitted.”
Attachment A as referred to in Clause 1.031B is as follows:
CREEK
CONDITION
RESIDUAL
FLOW
ALLOWED TOPASS PUMP
GAUGEBOARD
LEVEL
VOLUME
RESTRICTION
SPECIAL
CONDITION
All
1000 Ml/day
1.50 m
Nil
Nil
Flow greater
than 130 Ml/day(0.3m) at the pump site for 5 days out of a 10 day period in the previous 60 days
300 Ml/day
0.65 m
Maximum of 1000 Ml in any financial year
Maximum pump rate of 100 Ml/day
Appeals
The applicants as well as a number of objectors exercised their rights under s.51 of the Act and appealed to this Court from the decision of the chief executive.
Grounds of Appeals
Applicants
In summary, the grounds of the applicants’ appeal related to the limitation imposed by the low flow conditions; undue influence on the decision by “emotional and common argument” as opposed to scientific facts, and lobbying by objectors outside the 24 km radius downstream; consideration of conditions which prevail on the flood plain rather than at the pump site; and consideration of things other than relevant matters.
Objectors
Summarised grounds of the objector or aggrieved person appeals are as follows:
P.A. Flipo:Effect on viability; insufficient provision for supply of stock and domestic water; decision based on poor interpretation of data available and lack of consideration of the available extensive local knowledge and experience; insufficient consideration of the environmental impact; viability considerations; wrong interpretation of the relevant Act, the law; wrongful and incorrect use of discretionary powers; disdainful treatment of objectors.
P.M. O’Brien: Effect of weir; disputation of data relied upon; degradation of plant species; lack of consideration of local knowledge; environmental damage; loss of grazing and land values.
(A separate licence was previously issued to the Grays for the construction of a weir in Wallam Creek. That structure is associated with the water harvesting scheme, but not otherwise related to the subject licence).
W.P, J.P, W.I.C Decision wrong in and contrary to law and proceeded on wrong and A.D. Crombie: principle; based on incorrect or unreliable data and incorrect analysis of data; inadequate provision for stock and domestic water supplies; effect on height and extent of beneficial flooding; effect on productivity, returns, land value and environment.
(The property “Whyenbirra” was sold subsequently to G.J. and A.F. Sevil who sought and were granted leave to continue the appeal).
T.J., D.R., I.M. Chief executive had insufficient evidence or acted on erroneous
Hamblin:evidence regarding the area surrounding the watercourse downstream of the site of the works and the manner in which water flowing downstream from the site behaved, to allow reliable assessment of the impact on the right of downstream riparian landholders to obtain stock and domestic water; on downstream beneficial flooding; the Culgoa National Park; the watercourse environment; or alternatively gave no or insufficient weight to those matters and gave no or insufficient weight to the proposed use of the harvested water being inefficient use and matters raised by objectors; failed to incorporate in the licence mechanisms to ensure compliance with conditions of the licence; had no power to include Condition 1.210 in the licence; and that the terms of the licence were unintelligible or alternatively uncertain.
J. Hawker:Similar to Hamblin above.
R.J. & R.I.S. Winks: Similar to Hamblin above, together with grounds that “Woolerina” relies solely on Wallam Creek for domestic water and stock water for four paddocks and flows in the creek are too irregular and unpredictable.
K. Wilson:Similar to Hamblin. Mr Wilson purchased “Belmore” subsequent to the closing date for objection. The owners at that time had objected. The question of the Court’s jurisdiction to hear that appeal had been raised at a preliminary Directions Hearing relative to all appeals. In light of the finding of the Court of Appeal in Stevenson & Anor v. Wenck & Ors (1995) 87 LGERA 409 relative to interpretation of the meaning of “a person aggrieved by a decision of the chief executive with respect to an application for a licence” (see s.51(1) of the Act), and given the circumstances of the matter, jurisdiction had been found to lie.
The Corporation of Similar to Hamblin.
the Synod of the
Diocese of Newcastle:
All appeals were heard together in St George and Brisbane. Mr T. Quinn, Barrister, appeared on behalf of the applicant appellants; Mr M. Stewart, Barrister on behalf of the objector appellants and Mr D. Grealy, Barrister (Crown Law) on behalf of the respondent chief executive.
Mr A.T. Wallwork and Mr B. Heck gave evidence for the chief executive. Mr. J.D. Gray, part owner of “Yartoo”, Mr N. Collins, Engineer with expertise in, inter alia, hydrology, river and estuary hydraulics; and Associate Professor B.J. Button, Earth Observation Systems, School of Resource Environmental and Heritage Sciences, Faculty of Applied Science, University of Canberra, gave evidence for the applicant appellants. Mr D.R. Lord, Engineer, also specialising in, inter alia, hydrology and hydraulics; Professor B.R. Roberts, Director, Land Use Study Centre, University of Southern Queensland; Mr P.M. O’Brien; Mr R.I.S. Winks; Mr D.T. Ham; Mr T.E. Perrottet; Mr P.A. Flipo and Mr T.J. Hamblin together with Mr S.G. Rankin, ranger in charge of the Culgoa Flood Plain National Park, gave evidence for the objector appellants.
On request and as arranged by the parties, the Court inspected the pump site and storage area on “Yartoo” then various selected downstream locations.
The Objector Appellants’ Case
The downstream landholders including both the riparian owners and those downstream of the watercourse breakout, are convinced that any significant diversions of water at locations upstream, will seriously affect that which they have historically accepted as being their right - the receival of beneficial flooding from Wallam Creek discharge. There is virtually no flood plain on “Yartoo”. On “Woolerina”, “Yendon”, “Belmore” and the northern part of “Whyenbirra”, flooding does not occur until flow in the creek breaks its banks, generally, it seems, when flows at “Yartoo” reach 1000 ML/day.
“Woolerina” and “Yendon” rely on low flows within the watercourse for extraction of domestic and some stock water for which licences have been obtained. There is an artificially deepened waterhole (Boomi) in the creek at “Belmore” at the North Kulki Road crossing. The evidence is that “Whyenbirra” does not now rely on low flows within the watercourse for domestic or stock water, having instead a reticulated artesian supply.
The higher flow flood events beneficially flood grazing land on “Woolerina” which also relies on those events to fill various dams important to effective management of the property. High flow beneficial pasture flooding also occurs on “Yendon”, “Belmore” and “Whyenbirra”. The flood channels immediately downstream of the watercourse in “Whyenbirra” through to “Kulki” are at first relatively narrow and fairly heavily vegetated with coolibah and lignum undergrowth.
Mr Hamblin’s evidence was that the lignum country is important to his management of “Kulki” under drought conditions when stock will obtain benefit from grazing the high protein content of the lignum which “leafs-up” after wetting of the channels. In this country there is also growth of nut grass which is palatable to sheep, after wetting by flows in the channels. There are stock watering dams within the “Kulki” flooded country of varying efficiency. Much of the evidence relative to “Kulki” however concentrated on the importance to the Hamblins of the drain diversion of the flood plain water to the house dam, during relatively low flow events. Reliable artesian water has in recent years been reticulated to the “Kulki” house, but that water is generally unsuitable for use on the gardens and orchard. Low flow flood events on “Kulki” are generally contained within the coolibah/lignum channels from the upstream boundary towards the house which is located a lengthy distance (about 6 km) downstream. Then, downstream of the house the flood plain widens as the vegetation becomes less dense (either naturally or as developed) and low flow events, depending on preceding events, length of flow, evaporation and seasonal conditions, may extend well into the increasingly widening flood plain on “Combo”.
It is on the more open flood plain where the beneficial effect on pastures is at its optimum. In the larger events which provide beneficial flooding to the riparian owners as well, the extent of downstream flooding widens along the “Kulki” channels and further into the downstream plains of “Kulki” and “Combo”. One dam on “Combo” is regarded as an important, near permanent facility. A program of artesian water reticulation has been undertaken for overall stock water reliability on “Combo”. “Kulki” has until recent years been formally serviced by artesian bore drains from the north. The owners have withdrawn from that supply although the drains have not as yet been closed.
It is during infrequent major flood events when beneficial pasture flooding from Wallam Creek extends into the furthest downstream properties (being for the purpose of these appeals, “Chaloner Park”, “Kuballi” and “Brenda”). During those events flooding extends, for example, to cover as much as 4,000 ha of the 11,500 ha “Kulki”. In comparison, in an event such as occurred in 1994 and which was relevant to the inquiry by the chief executive, it was estimated that about 1,300 ha of “Kulki” was flooded. The evidence suggests between 30% and 50% of that area contained significant lignum, although a much higher proportion remained heavily vegetated.
There can be no doubt that the flood plain graziers regard their flooded country as a prized possession and, because beneficial flooding of pastures is important to viability and management strategies, it is little wonder. At times when there is no, or insignificant, local rainfall, falls in the upper catchment many km distant can result in a flood plain flood event. It is well documented that significant benefit can result from even a relatively small area of pasture inundation, particularly during otherwise drought conditions. Photographic evidence on “Combo” portrayed the huge difference in pasture on flooded country to which inundation had extended in a particular event, in comparison to similar country which had not benefited.
I do not propose to discuss, except broadly, the evidence of the individual landholders. It is clear that they are as one as to their reluctance to see any water harvested upstream for irrigation in this semi-arid area which they believe has highest and best geographical use for grazing. In recognition of grazing potential in “average” seasons, the properties with a proportion of flooded country were originally considered by the Crown to require lesser land to provide a “living area”, than were properties which did not enjoy beneficial flooding, and holdings were surveyed accordingly. It is seen by the objectors as unreasonable that a larger riparian upstream property with no flood plain, should now be seen to have potential to harvest, for irrigation, water which would have otherwise found its way onto the flood plain.
The viability of the “Yartoo” irrigation proposal was questioned by some, for reasons which include the nature of the soils under cultivation and the unreliability of flows in Wallam Creek.
The general attitude of the objectors is that even extraction from the higher flows (1000 ML/day) is unwarranted, but at least it should only be those flows which are available for the irrigation proposal. Mr Lord’s evidence in the end result was that it was hydrologically acceptable for harvesting to occur when a residual flow of 1000 ML/day passed the pump site. However, he recommended that the annual volume from those events should be limited to 1000 ML as a contribution by the applicants towards a sharing of potential risks downstream. He had not extended his investigation to include a specific study of the low flow events. It was his opinion that the data which had been made available to him relative to the chief executive’s inquiry, was insufficient to enable a considered decision to be made.
The objector appellants were strongly of the opinion that diversion of water, in excess of that permitted under the existing licence, should not have been permitted until the previous licence conditions had been utilised and the actual downstream effect gauged. They say that, due to a number of natural conditions, similar flows at different times at an upstream location will result in the extent of flooding on the flood plain varying significantly. When the amended licence application had been first made they believed that there should have been a moratorium on the issue of further licences for a period of at least 10 years to allow study of flood behaviour patterns over a range of conditions.
Professor Roberts has an impressive academic background in matters associated with water and resource planning and management. He had not visited the Wallam Creek flood plain and much of his evidence was seen to be of a philosophical nature, the tenor of which, as it related to this matter might be summarised by his statement -
“To informed observers of enlightened water policy changes in Australia, it is surprising to find that applications such as the most recent at “Yartoo” are even considered. The disbenefits and net social losses from taking water from such low flows on such an erratic stream should be clear to all concerned.”
He rejected criticism that his submission to the Court was “very general, philosophical and of little direct relevance” to the case, because such criticism failed “to grasp the importance of principles and equity as the fundamental issues on which this case should be judged”. He saw the Act as narrow in its scope of admissible evidence but advocated the application of Ecologically Sustainable Development to water sharing (giving clear precedence to allocation options which benefit the greatest number of users over the longest period) and the Precautionary Principle (unless the outcomes of a decision affecting the community and their environment can be predicted with reasonable certainty, the decision should be postponed until more comprehensive information is available).
Professor Roberts suggested that in a “closed system” such as the Wallam, “the cause-and-effect of extraction is direct and inescapable”. His views on the natural expectations and historic rights of landholders relative to beneficial flooding; land value considerations; the value of water for purposes other than intensive cropping; effect of evaporation and the unsuitability of the Wallam system to sustainable irrigation; equitable allocation of the resource; effects on the ecosystem and water quality; and the decision-making process; left no doubt that not only was he opposed to the licence being granted, but that regions characterised by semi-arid climate and highly erratic flows should not be open to high volume irrigation extraction applications.
There was sufficient evidence, including that of Mr Rankin, to support a conclusion that the Wallam Creek flood plain provides a seasonal breeding ground for a variety of bird life and complements similar habitat of other watercourse systems in the region. The potential environmental effect was a generally common inclusion in the grounds of appeals. It is also clear from the evidence that the natural environment or the environment as it has now been developed on individual properties, is a factor which has not in the past, been given high priority by individual landholders in the development of the highest and best use of the flood plain system for grazing purposes.
Another of the issues raised by the objectors was the perception that it was inequitable (both to the objectors and the applicants) and wrong in law, for the “notwithstanding” conditions (1.099F and 1.2101) to be included in the licence.
Case for the Applicant Appellants
Basic to the applicants’ case is the fact that Wallam Creek is a defined watercourse through “Yartoo” and as riparian owners they are entitled to legislative water use considerations. Conversely, those non-riparian flood plain landholders in this case were seen to have no legislative rights to water whilst it was contained within the watercourse. It was seen as a paradox that the flood plain landholders whose use or diversion of water once it had left the watercourse, was not subject to control under the Act, should seek to receive specific water use considerations by the chief executive.
It was argued that any consideration by the chief executive relative to protection of artificial watering points constructed on the flood plain, amounted to unreasonable priority allocation of water whilst it remained under the control of the chief executive. In relation to low flow events, it was suggested that reservation of water to provide inundation of those lands largely contained within the heavily vegetated coolibah/lignum channels with little, if any, pasture to benefit, equated to an inefficient use of a valuable resource.
Mr Collins’ engineering approach had been to consider the potential effect of the licence on those specifically identified as having relevance under s.43(1) of the Act. He agreed that the factual data available to the chief executive at the time the decision was made, was not ideal but nevertheless sufficient to reasonably satisfy the necessary inquiry.
The factual data resulting from the Department’s investigation had been available to him for consideration. He had also considered the data collected by the applicants relevant to flood events subsequent to the issue of the licence together with flood height records of significant Wallam Creek events at Bollon. The data indicated that there had been no “large” floods in the period 1992 to 1996 and that the 1993 and 1994 peak flows (which were critical to the chief executive’s inquiry) had been lower than the long-term average. This conclusion was, he said, supported by regional rainfall records.
Although it was Mr Collins’ opinion that the area of legislative relevance to his study did not extend past “Whyenbirra” where Wallam Creek ceased as a watercourse, he did accept that “Kulki” and “perhaps” “Combo” had “direct relevance” to low flow considerations. He had formed the opinion “that residual flows of between 50 ML/day and 1000 ML/day produced little benefit to downstream properties, in terms of improved grassing, since inundation is restricted to the heavily timbered coolabah and lignum areas”. In his opinion the present limitation on unrestricted pumping under all creek conditions to 1000 ML/day residual flow could be amended downwards to 500 ML/day, with no significant downstream disbenefits.
He further concluded that a low flow condition in the licence requiring a volume of 500 ML to pass “Yartoo” in the previous 90 days before pumping could commence, then with pumping limited to allow a residual flow of 50 ML/day, would ensure that flows would extend beyond North Kulki Road. A minimum residual flow of 50 ML/day would not interfere with the water extraction licences for stock and domestic supply to “Woolerina” and “Yendon” or the existing reliability of the Boomi Waterhole.
He was aware that “some opportunistic stock watering is carried out” on properties downstream of North Kulki Road, but in his opinion all those properties had permanent reliable artesian bore systems for both stock and domestic usage and more than ample supply to satisfy the demand which he had analysed. It was his opinion that without the bores, those properties would not survive. With specific regard to “Kulki”, he perceived (although not necessarily correctly) the withdrawal of that property from the bore drain supply was indicative of “more than ample stock water”.
Mr Collins recognised that the effect of upstream water harvesting was not restricted to the heavily timbered channels, and that there could be as well, a reduction in the area of flood plain pasture which would otherwise receive beneficial flooding in various events. He referred however to consideration of the importance of beneficial flooding as being part of the Impact Assessment Study of a proposed off-stream storage at St George, conducted by Snowy Mountains Engineering Corporation in 1996. As he interpreted it, that study had concluded “that there can be a considerable loss in flood plain inundation with only a small economic effect on grazing compared to the significant economic gain from irrigation”.
Associate Professor Button had accepted instructions from the solicitors for the applicants to comment on the written evidence of Professor Roberts. These academics have clearly widely differing philosophies on many aspects of resource management. For example, Associate Professor Button took the view that “ecologically sustainable development” and the “precautionary principle” should be interpreted to the effect “that the absence of scientific information should not mean that no development should take place, but that caution should be exercised through staging of development proposals with appropriate monitoring, review and contingency planning ...”.
The Case for the Respondent
The evidence of Mr Wallwork was that the factual data relevant to low flows in Wallam Creek was insufficient at the time the licence application was made for the Department to make a considered decision relative to the harvesting of low flows at “Yartoo”. Record floods for the area had occurred in the first half of 1990, but there had then been no significant flows in Wallam Creek until February 1992, subsequent to which the application had been made and the downstream landholder concerns expressed.
Mr Heck had produced draft licence conditions based on flow events in October, November and December of 1993 then February/March 1994. After the November 1994 meeting in Bollon, the further invited submissions were received. As Mr Heck had been transferred, Mr Wallwork set about addressing the further issues raised in the various submissions.
Mr Wallwork reported that the matter was reviewed as follows:
“In trying to simplify the conditions several factors were taken into account:
a)If there had been no flow in Wallam Ck at the pump site for more than 2 months then flow should be allowed to pass unhindered unless the flow at ‘Yartoo’ was over 1000 Ml/d. The two month period was chosen as the Creek has very few larger waterholes and need replenishment on a frequent basis. Stock supplies in other river systems in the locality will generally last for approximately 6 months. This would allow on a normal year the first flow of the (sic) to proceed almost unaltered.
b)There must be no lessening of the filling of the stock dams in the flows analysed. The filling of some stock and domestic dams in the formed part of Wallam Ck (Watercourse) are dependent upon the height in the Creek. The tanks on the floodplain are very dependent upon the volume of flow over a period as well as the peak flow. This is due to the fact that the flow slows down, spreads out and decreases in depth as it reaches the floodplain.
c)Mr Gray should be allowed to take advantage of flows that would only be of marginal benefit to his downstream neighbours up to a limit of the storage volume that he had indicated that he would build of 1000 Ml.
d)The proportion of the flow volume extracted by Mr Gray should be no more than that proposed by Mr Heck in his case 2 conditions, where an analysis of respective benefits were compared while still achieving a useable volume for Mr Gray.
To analyse the options, all of the available data on the flows in Wallam Ck from October 1993 to March 1994 were used. As the flows in Wallam Ck are very peaky, ie: rise and fall rapidly; and to protect some of the more critical stock and domestic water supply dams or water holes, a period of sustained flow would be required to have stock and domestic water reach the Kulki house. This flow would also protect any environmental flow requirements to that section of the floodplain that has remnant sections of original vegetation ie: have not been cleared. This sustained flow was defined as 5 days out of a 10 day period when the flow at ‘Yartoo’ is over 130 Ml/day. The travel time to reach Kulki from Yartoo has been estimated at 4 days and thus the water would be assured to Kulki.”
Mr Wallwork produced a graph showing the Wallam Creek flows in the events which occurred in October, November and December 1993 then February/March, 1994. Residual flow rates had been analysed to allow licence conditions to be formulated on the basis of meeting the criteria adopted for downstream requirements. The conditions in the licence which issued would have allowed approximately 235 ML to have been pumped from the November 1993 event. This was approximately 7% of that flow compared to about 13% which would have been permitted under Mr Heck’s draft conditions. Then in the February/March 1994 events, the licence would have permitted approximately 735 ML or about 8% of the total flow to have been pumped. This compared with about 10% extraction under Mr Heck’s draft conditions. The result was that in the 1993/1994 financial year pumping of a total volume of 984 ML would have been permitted enabling the applicants to nearly fill the proposed 1000 ML off-stream storage. Subsequent to the issue of the licence a further analysis of the total flows in Wallam Creek had been conducted. In the full financial year 1993/94, the potential extraction under the licence of 984 ML would have been 6.3% of the total flow, as opposed to 100 ML under the previous licence. In 1994/95, no extraction out of a flow said to have been 3716 ML would have been permitted under either the old or the new licence. In 1995/96, up to 1800 ML (if storage had been available) would have been permitted under the new licence (6% of the total flow) as compared to 900 ML under the old. Of a total volume of 47,800 ML total flow at “Yartoo” over the three financial years, the new licence would have permitted a total extraction of about 6%. Mr Wallwork saw this as reasonable in terms of equitable sharing of the resource. It was his opinion that there was justification for allowing pumping from subsequent flows “after the flood plain has been wetted up”.
The total flooded area after the February/March 1994 event had been, on Mr Heck’s estimates, approximately 2,200 ha, about 530 ha of which was on the property “Combo”. The approximate volume of water which had passed “Yartoo” was 9250 ML indicating that on the average 4.2 ML was required to inundate each hectare. The flow had occurred on top of flows in late 1993.
Based on the indicated infiltration rate of 4.2 ML for each flooded hectare, on the average, he calculated that the licence extraction permitted during that event would have reduced the total flooded area by 190 ha (or 175 ha on my calculations).
Mr Wallwork referred to the results of recent “intense studies” (by Mottell Pty Ltd, Land and Water Management Consultants) of flood plain resources on the Lower Balonne flood plain in New South Wales. Mr Wallwork extrapolated that information to suggest an economic grazing loss of $9.50 per ha or $1,800 (for the 190 ha) would have been suffered had the licence been operating to allow extraction from the February/March 1994 event. In comparison the gross margin on a crop of wheat irrigated from the extracted water had been calculated by Mr Heck to equate $167,000.
One of the concerns of some of the flood plain landholders was the perceived difficulty in the Department’s control of the volume of water to be pumped. One of the conditions of the licence required the pump to be metered. The applicants were also required to maintain a daily record of flows measured on the gauge board at “Yartoo” and to supply that information to the Department. The daily extraction permitted was related to the practical capacity of the licensed pump.
Mr Wallwork was of the opinion that while the extent of flow data may not have been ideal, the inquiry which had been made was sufficient to enable a licence to be issued. It was now common practice for the “notwithstanding” clauses to be included in licence conditions, and he saw particular merit in those clauses being included in the subject licence, ideally to finetune the flow conditions if they were to be found to be either overly favourable or oppressive, based on actual events..
Submissions
Applicants
Mr Quinn pressed the point that while the flood plain landholders downstream of the defined watercourse may from time to time receive the benefit of flows having left the watercourse, they do not have any riparian right with respect to such flows. The rights of a riparian owner are subject to the rights of other riparian owners and he submitted that it is settled (Beaudesert Shire Council v. Smith (1966) 120 CLR 145 as explained in Nalder v. The Commissioner for Railways (1983) 1 QdR 620 at 627) that the legislation leads to the result that “the only rights which a riparian owner may exercise are those which are specified in the statute or in a licence issued under the statute”.
Mr Quinn submitted that “if the effect of the legislation is that a riparian owner has no ‘right’ to the use of water other than may arise under the statute, then so far as other remote owners are concerned, whilst their position and the effect of a proposal may be taken into account, they have no ‘right’ as such.” As the watercourse terminates in “Whyenbirra”, it was submitted that there was no security with respect to the flow of water over the flood plain beyond the watercourse and no entitlement of the owners of that flood plain, at common law or under the statute, to that flow.
Mr Quinn identified the real issue as being whether the public importance of water conservation and utilisation, as recognised by the Courts and as given effect to by the Act, was properly served by the chief executive’s decision to allow flows “to dissipate through the coolibah and lignum country through ‘Whyenbirra’ and ‘Kulki’ for the purposes of filling the house dam at ‘Kulki’, or whether it is sufficient to allow low flow conditions as suggested by Mr Collins to satisfy the stock and domestic requirements of the riparian owners down to and including ‘Whyenbirra’ and at the same time allowing some pumping by Mr Gray on ‘Yartoo’.”
He submitted that any condition requiring inflow into the “Kulki” house dam before the applicants were permitted to pump, did not “strike an equitable balance and involves a failure to discharge the Crown’s responsibility of conservation and beneficial use of water. The fact that the conditions involved are low flow conditions makes it all the more important to ensure that when water is scarce it is efficiently conserved and utilised.”
It was further submitted that the chief executive’s consideration of the availability and sufficiency of water as required by s.43(1)(a)(i) was flawed - first because it failed to take into account alternative artesian water supplies and second because undue weight was given to the perceived need “to see water flow not only through the watercourse but onto and across the flood plain in order to fill the ‘Kulki’ house dam”. If however, “Kulki” was to be considered by reference to s.43(1)(c) of the Act, “from the standpoint of a non-riparian owner its entitlements must be considered to be substantially subsidiary to those of the applicant” having regard to the “principle” referred to by this Court in Savorgnan v. Commissioner of Irrigation and Water Supply (1967) 34 QCLLR 107, where at p.108 it had been held as he interpreted it, that it was “a reasonable principle for general application” that an upstream riparian owner ought have “a reasonable degree of priority in the use of water” over a downstream riparian or non-riparian owner.
Mr Quinn saw the suggested economic analysis of the benefit in terms of conserving and using the water as resoundingly in favour of irrigation rather than beneficial flooding of the flood plain, particularly as the low flow events are largely contained within the coolibah/lignum channels, with limited beneficial effect.
The applicants accepted, in Mr Quinn’s submission, as opposed to his perception of the objectors’ case, that, not only does the licence have an expiry date but that renewal is not as of right. Also the entitlements under the licence are subject to restriction, suspension and prohibition as provided for in the notwithstanding Condition 1.210.
Objectors
Mr Stewart submitted that the applicants’ case to have the licence conditions significantly relaxed, both as those conditions related to high and low flow events, was flawed in that no recognition was given to effects of water harvesting on other than riparian owners, or if it had, on incorrect assumptions as to lack of effect. Further, it had, in the evidence for the applicants, been accepted that the irrigation proposal would remain viable, under the licence conditions as issued.
On the other hand, the chief executive had been correct in accepting that flood plain and flood plain landholders’ needs were matters to be considered in the necessary inquiry. The chief executive, it was submitted, had however failed to correctly assess the potential effect in the first place, because insufficient data was available on which to properly assess that effect. The decision was based on flood events which could not be accepted as representative of that which might consistently result from a complex, unpredictable watercourse system. The chief executive should not have made the decision until at least the effect of water harvesting of the high flow events (in excess of 1000 ML/day) as permitted under the previously existing licence, could have been assessed by direct on-the-ground considerations.
Although the chief executive, through Mr Wallwork, had accepted that the licence should not interfere with the filling of stock and domestic dams “that benefited from flows in the flood plain”, an arbitrary line had been drawn at the “Kulki” house dam, to the exclusion of dams on “Combo”, particularly one near the northern boundary.
Mr Stewart submitted that unless the “notwithstanding” clauses were intended to permit the chief executive to “tinker at the edges” they offended the principle of finality and denied, for example, the objectors’ statutory right to appeal against any interim decision which might allow greater extraction for the remaining term of the licence. It was important, in Mr Stewart’s submission, for the chief executive not to have to resort to s.44(2) of the Act to revoke or downgrade a licence, due to an unpredicted but later proven deleterious effect, but to first invoke the precautionary principle as advocated by Professor Roberts and then, if necessary, upgrade the conditions of the licence only after sufficient data was available to support such increased extraction.
The Respondent
It was the submission of Mr Grealy that the burden of proving the grounds of appeal lay with the appellants and the chief executive had been able to show through Mr Wallwork, that the various grounds had not been proved.
The application had been “fully considered with the balances held fairly and adjusted equitably as between the applicant and other riparian owners who may be affected”, as the Land Court had found was required of the chief executive in the discharge of his duties in Shooter & Ors v. The Commissioner of Irrigation and Water Supply (1972) 39 CLLR 11 at p.18. Furthermore, the chief executive had seen fit to inquire into things other than those specified in s.43(1)(a) and that included the effects on the flood plain.
While it had been accepted by Mr Wallwork that the data on which the decision had been made was not ideal, the available data had nevertheless been sufficient to make a proper decision. Mr Wallwork’s opinion in that regard had also been supported by Mr Collins, whose expertise in that field was accepted by the chief executive.
It was submitted that the chief executive’s decision to grant the licence with the conditions as imposed was:
“(i)based, on relevant consideration as to -
(a) riparian owners: the requirements of riparian owners for stock and domestic water supplies has been considered to the extent that these may reasonably be satisfied in other than very high flows ie as far as ‘Kulki’;
(b) licensees (including the Grays’ existing licence);
(c) the applicant: consideration has been given to the Grays’ contention that existing conditions on their licence made their irrigation proposal unviable and in designing the present licence conditions an attempt has been made to assist them achieve viability while balancing other relevant competing interests;
(d) other relevant matters, including -
·the effect on beneficial flooding on the Wallam Creek floodplain: Counsel for the objectors specifically conceded this had been considered;
·the effect on the relevant environment: the effect on the Culgoa National Park was considered to be negligible since waters from Wallam only enter the park in times of very high flow (e.g. 1983 flood). The low flow conditions are designed to allow the entry of water into the area of remnant vegetation on the flood plain where there is also some evidence of the existence of bird life. (As to the consideration of matters such as the environment under s.43, see Rogers & Anor v. Chief Executive, Department of Primary Industries (A92-52) 25 March 1994 (unreported).)
(ii) The decision is reasonable in terms of Shooter (supra).”
As it was submitted that the respective appellants had failed to discharge their onus in relation to the appeal, all of the appeals should be dismissed and the decision of the chief executive affirmed.
Findings
Objector Appeals
Data relied upon by chief executive
There is general agreement that the longer the period available for collection of data relevant to flood events, the greater should be the understanding of the behaviour of the system under a range of varying conditions. While the inquiry caused by the chief executive extended over a relatively long period, the data on which the final decision was made related to flood events in October, November, December 1993 and February, March of 1994. The data was, accordingly, limited, and while the grounds of appeal were valid in that respect, I have not been persuaded after hearing the evidence that the inquiry itself was deficient or that insufficient data was available on which a responsible decision, permitting harvesting of flows with residual volume less than 1000 ML/day could be made. I am also persuaded, against the opinion of Mr Lord, that the conditions which did exist allowed a decision to be made which related to drier than average seasonal conditions which indicated a cautious rather an overly optimistic assessment to be made.
The expert evidence as opposed to lay opinion is consistent in that the downstream effect of harvesting from flows with residual volume of 1000 ML/day passing the pump site, may be accepted as being insignificant. On that basis, if there is no assessable risk involved, then there is nothing to be achieved by restricting the volume capable of being harvested by the licence works, from the higher flow events, for the reasons suggested by Mr Lord.
Rights to Flood Plain Water
While I accept that potential effects of water harvesting, on flood plain uses is a matter which would be expected to be considered in responsible water management policies, I do not accept that the individual non-riparian flood plain landholders enjoy any statutory rights to water whilst it remains within the watercourse. It would be a different matter had a “designated area” been constituted for the Wallam Creek flood plain, pursuant to s.104 of the Act.
Stock and Domestic Water Supplies
Just as the chief executive has no control of the Wallam Creek water once it passes from the watercourse nor can control be exercised over particular works which any individual landholder has constructed or may construct, for the diversion and utilisation of flood plain water.
Although Mr Wallwork chose to adopt an assessment criterion relative to the “Kulki” house dam, which was seen, (at least even by some objectors) to be inconsistent with criteria for other flood plain storages, I am not convinced that there was any statutory obligation on the chief executive to inquire into the “availability and sufficiency of water to supply the requirements” of individual flood plain landholders. This aspect will be discussed further, later in the findings.
Effect on Beneficial Flooding
Again, the potential global effect on the flood plain land resource is considered a matter which a responsible resource manager would, and should, consider. It is clear that the chief executive was aware of the concerns of flood plain landholders. It is also clear that allocation of water for later use by the flood plain has been a particular consideration in dealing with the application.
Beneficial flooding of natural pastures is a very real and historical expectation of the flood plain graziers. Any significant reduction in flood plain water for uses influenced by nature, would be a serious disbenefit to individual landholders. Any expectation of beneficial flooding cannot however be translated into a statutory right and, as with most forms of land use, risks attach to historical expectations, with the passage of time. Diversion of upstream water will decrease the distance that low flow water might extend into the flood plain under otherwise comparable but uninterrupted flow conditions. If that risk was to become reality then, as the objectors fear, reduced production and deleterious effect on land values may result. At the same time, the enhanced potential of irrigable upstream land would be expected to increase the value of that original grazing land. The objectors see that as equivalent to “robbing Peter to pay Paul”.
I am satisfied that the inquiry provided reasonable understanding of the extent of beneficial flooding resulting from the specific events which were studied. The veracity in estimation of inundated areas was questioned by those graziers whose land was directly involved. The on-site knowledge of the landholders whose livelihood is associated with beneficial flooding would be expected to be more precise. Nevertheless, some care went into that aspect of the chief executive’s inquiry and flood lines were plotted on aerial photography after aerial inspection.
As it happens however the principle of equitable distribution which I believe to be relevant in deciding these appeals does not extend to specific consideration of matters such as precise estimation of flooded areas on individual properties but instead to the aggregated effects on the flood plain resource.
Environmental Effect
Concern is expressed as to the potential effect on biodiversity, habitat, fauna breeding patterns and the environment generally. At the time the application was made the evidence is that concern was expressed in objection form, by the Department of Environment and Heritage, as to potential effect on the Culgoa Flood Plain National Park. Those concerns were allayed at senior management level when it was explained that the water harvesting sought from flows in excess of 1000 ML/day would have insignificant effect on any part of the flood plain. It is those flows only which have the potential to reach the properties with relevance to these appeals “Chaloner Park”, “Kuballi” and “Brenda”, and eventually then the Culgoa Flood Plain.
It was no doubt seen as a topical response, in these enlightened times, for the objectors and their advisers to place importance on the unknown effect of the irrigation proposal on matters related to the environment. Professor Roberts believed that a botanical and zoology study, at least, should have been conducted before any decision was made, and then at the cost of the applicants. The facts are that while there is a wide range of birdlife, for example, known to use, at times, the Wallam Creek flood plain habitat, that use is not, according to Mr Rankin, an exclusive one. The Court was not directed to other than philosophical argument as to the potential environmental effect caused by some reduction in low flow flood events and no features of extraordinary merit, or features which will be placed in jeopardy were identified. Had there been any such features I am confident that they would have been exposed during the hearing.
The licence was issued on the analysis that in a specific season of below average rainfall, a relatively small proportion (less than 10%) of the total flow would have been lost to the flood plain. In particular, a flow of some significance would certainly have found its way into the flood plain after a period of dry creek conditions, before pumping would have been permitted.
I have not been persuaded that caution had not been employed by Mr Wallwork as a response to environmental considerations.
The suggestion of potential chemical pollution of the stream is again an intangible issue which is subject to control by wider legislation than the Water Resources Act. It is logical however that water, once diverted from the stream for irrigation, would not be wasted by any management practice which would allow it to re-enter the watercourse, in any condition contaminated or otherwise. It is seen as drawing a long bow in seeking to deny an application of this nature on the ground that water quality within the stream will be affected or that chemical pollution of downstream property is a likely result of the overall irrigation project.
Viability of Irrigation Project
Some objectors suggested that the irrigation project would prove to be economically unviable, if for no other reason than its reliance on erratic stream flows. There are suggestions of unsuitable soil quality and structure.
The applicants have and will, invest substantial capital in proving the viability of their proposal. If they are wrong, then there will be no continued harvesting of water.
Other objectors seemed to have inherent fear that the irrigation proposal if proved to be viable, would be permitted to expand through more relaxed future licence conditions. That potential cannot be a consideration for the Court in the appeals now before it. Clearly, it is in the objectors’ interests to closely monitor, for themselves, the overall and factual effects of the conditions of this licence.
Management of Licence Conditions
The licence requires pumping to be metered and sufficient safeguards are available to the chief executive to ensure compliance with licence conditions.
“Notwithstanding” Conditions
I agree with Mr Stewart’s submission that the “notwithstanding” conditions should not be utilised to effect other than temporary adjustment in recognition of specific circumstances that occur under individual flood events. The licence needs to be based on the principle of finality, at least for the term of the licence, and the conditions managed accordingly. It is seen as well nigh impossible for cogent licence conditions which would meet the circumstances of every seasonal flow event, to be effectively drafted, regardless of the period over which stream behaviour had been monitored.
Section 51 of the Act provides the machinery under which any significant changes may be made to a licence for the balance of its term. The rights of the licensees and persons who may be aggrieved by a decision to alter the conditions of a licence are then protected.
My decisions in these matters are made on the basis that the “notwithstanding” clauses, if invoked, have no other than temporary effect, related to specific flood events.
Summary of Findings - Objector Appeals
After review of the grounds of each of the downstream landholder appeals, together with the evidence and submissions in support of those appeals, I find no ground on which the decision of the chief executive should be amended to have the effect of reducing the pumping entitlements of the applicants.
Applicants’ Appeal
Geographical Location of Objector/Appellants’ Lands
Several of the objector landholders’ lands were further distant from the “Yartoo” pump site than 24 km which was the prescribed distance pursuant to s.42(10)(a)(i)(B) of the Act. Section 42(11) provides that a distance so specified is a minimum distance which the chief executive may generally or in a particular case, extend. It was not suggested that s.42(11) had been formally invoked when the chief executive extended the inquiry to include objections from holders of land further than 24 km distant. There seems no doubt that the appeals from those objectors were from persons who considered themselves aggrieved by the decision and the judgment of the Court of Appeal in Stevenson v. Wenck (supra) is interpreted to provide this Court with jurisdiction to hear those appeals. In any event, some of the objectors, with generally common grounds of appeal, were holders of land within the prescribed distance.
Priority Rights of Upstream Riparian Owners
It was submitted on the authority of the decision in Savorgnan v. Commissioner of Irrigation and Water Supply (supra) that “the reasonable principle for general application” should be applied to the effect that “an upstream riparian owner” ought have a reasonable degree of priority in the use of water “over a downstream riparian or non-riparian owner”. That is seen to be a liberal interpretation of the “reasonable principle for general application” comment in the Savorgnan decision. The circumstances in that matter were that three parties were competing for water contained within one discrete waterhole within a watercourse. The competitors were the owner of the abutting land, an owner of land abutting the watercourse but downstream of the waterhole, and a non-riparian owner. The learned Member commented at p.111:
“It seems to me to be a reasonable principle for general application, unless there are special circumstances, that a riparian owner should be given a reasonable degree of priority in the use of water available in that part of a watercourse abutting his land, as against an upstream or downstream owner’s or a non-riparian owner’s use of the water in that particular part of the watercourse.” (emphasis added)
It is my opinion that the allocation of any resource by a responsible manager must follow a primary principle of equitable distribution. Equitable distribution should be decided on the facts, and not purely on geographical location.
Other Matters or Things
The Chief Executive caused inquiry to be made pursuant to s.43(1) of the Act, which as far as is relevant to these matters provides as follows:
“43(1) Upon an application under section 42 and an objection thereto, the chief executive must cause inquiry to be made -
(a)where the application relates to water other than underground water -
into -
(i)the availability and sufficiency of water to supply the requirements of -
(A) riparian owners; and
(B) licensees; and
(C) ...
(D) the applicant; and
(E) ...
(ii)the effect that the granting of the application will have or is likely to have on entitlements of riparian owners, licensees and permittees:
....
(c)in a case to which paragraph (a) or (b) applies - into any other matters or things the chief executive thinks fit.”
As opposed to the opinion of the applicants themselves, as expressed in the formal notice of appeal, the chief executive, pursuant to s.43(1)(c) is instructed to inquire into “any other matters or things” thought fit. The discretion is provided to decide which matters or things. That discretion would extend into matters which could affect equitable distribution of the total resource, and not necessarily restricted to matters associated with riparian owners, licensees or the applicants.
Flood Plain Uses
Further to the comments under “Rights to Flood Plain Water” in the earlier findings relative to the objector appeals, it would follow that I accept that one of the “matters or things” a responsible manager would include in an inquiry, in the circumstances of this application, would have been the potential effect on flood plain uses. I see it as an obligation on the chief executive to consider, as one of the users of the total resource, the flood plain - in a global sense - requiring an allocation, to address the principle of equitable distribution. Once that principle has been followed and a proportion of the total resource allocated to the flood plain, the chief executive has no further authority to control the manner in which the resource is distributed to the various users.
In the circumstances of the Wallam Creek resource, I agree with the applicants’ submission inasmuch as the requirements of the “Kulki” house dam seemed to receive undue attention in the chief executive’s decision. That dam is an unreliable facility with apparently inefficient diversion works. A reliable alternative artesian supply has been reticulated to the house and environs. Even if the house dam became more unreliable as a result of upstream water harvesting, its utility has the potential to be affected but not totally destroyed. Any suggestion that artesian water which is not generally suitable for the gardening and orchard requirements of “Kulki” might have to be permanently used for that purpose, is seen as adding more gloss to an understandably emotive issue.
The applicants’ suggestion that flows of less than 1000 ML/day would have negligible effect on the flood plain is not, on my interpretation of the evidence, a correct representation of the facts. The evidence indicated to me that flows of much less volume than the 500 ML/day, which was the applicant’s suggested residual flow pumping trigger under “all creek conditions”, if recurring over a persistent period, provide beneficial flooding on the more open flood plain, downstream of the coolibah/lignum areas.
I am able to accept the argument that any beneficial grazing effect resulting from inundation of the coolibah/lignum channels, would be significantly less than the benefit from inundation of the more open flood plains. It is also clear that the water required to inundate the coolibah/lignum areas, before it extends into the more open flood plain, could be placed to greater productive use through being harvested for agricultural irrigation.
Economic analysis of potential tangible benefits from the primary production uses to which the water resource may be placed, could well assist in considerations relative to equitable distribution. However, the weight given to analyses such as those placed before the Court, should, in my opinion, be quite limited. I was referred to the report of Mottell Pty Ltd as the source of Mr Wallwork’s gross return calculations and indirectly, those of Mr Collins. The difficulties which the author of that report experienced in arriving at even broad estimates of the beneficial effect of flooding on grazing lands, on a unit of area basis, is made obvious from a reading of the report. Furthermore, the author drew attention to the fact that there are broader and more intangible issues involved in consideration of the overall effects of beneficial flooding than are capable of identification in a pure economic analysis.
I am inclined to the view that, in deciding equitable distribution of the water resource, and for any meaningful assistance to be gained from an analysis of gross return benefits on a unit of watered area basis, there would also need to be an analysis of the return on the improved capital value of that unit of area.
The applicants’ approach is that water allowed to inundate the coolibah/lignum areas is water “wasted” based on the pure economic argument. The integrity of the watercourse system, for considerations other than of a commercial nature, clearly does not rate highly in the applicants’ case, as a matter for consideration.
I am not persuaded on the overall evidence, that unrestricted pumping should be permitted from residual flows less than 1000 ML/day. Nor am I persuaded that a volume of 500 ML past the pump site should be adopted as the first trigger for permission to harvest low flow events, with the antecedent period increased from 60 days as suggested by Mr Wallwork, to 90 days as suggested by Mr Collins. The trigger mechanism adopted by Mr Wallwork is seen to have merit in ensuring recurrent flow of 130 ML/day on at least five days within a 10-day period and an antecedent period of 60 days, as providing a reasonable basis for prioritising the maintenance of the integrity of the overall system.
If the antecedent conditions as devised by Mr Wallwork should also have the result of diverting water into the “Kulki” house dam, then that is seen as incidental to wider priorities.
I am persuaded however that the residual flow condition as decided by Mr Wallwork, after the stream maintenance priority had been established, weighs the downstream balance too heavily against the applicants, based on the actual criteria provided by the 1993/94 flood events. It seems to me that subsequent to the antecedent condition, a residual flow maintained at 130 ML/day would have served the dual purpose of maintaining some flood plain moisture as well as allowing the applicants fairly significant access to the earlier low flow events. Had the applicants been given and taken the opportunity to fill their annual allocation from the certain events in late 1993, some benefit would still have extended into the flood plain while the early 1994 flows would have been allowed to inundate the flood plain virtually uninterrupted, to provide the maximum possible benefit. I see real merit in the risk-sharing principle suggested by Mr Lord being applied to the low flow events with annual allocation restricted to 1000 ML. The financial year qualification embraces the normal seasonal events.
Both the respondent and the objectors saw relevance of significance in the admission by Mr Gray whilst in the witness-box that the applicants’ irrigation proposal would not have been rendered unviable by the licence conditions as issued by the chief executive. My interpretation of that admission was however that Mr Gray was defending his argument that the irrigation proposal was viable provided access was provided to low flows as opposed to the suggestion from some of the objectors that the irrigation proposal per se lacked economic viability. Clearly any relaxation of the conditions which issued would provide added security to a project reliant on water harvesting.
I have given close consideration to the recorded data relevant to both Mr Wallwork’s and Mr Collins’ evidence on the particular flood events prior and subsequent to the licence being issued. With the residual flow condition reduced to 130 ML/day, the proportion of the individual 1993 flows available for pumping would have been naturally much higher than in the licence as issued. For a balanced consideration of the relative proportion however, the initial uninterrupted flow should not be ignored. The proportion of total annual flow in the years analysed by Mr Wallwork, would increase only marginally with the residual flow volume reduced from 300 ML/day to 130 ML/day, safeguarded by the limitation on annual extraction.
I have decided to vary the chief executive’s decision accordingly.
Orders
1. The “objector” appeals being those by the landholders P.A. Flipo; M. O’Brien; W.M., J.P., W.I.C. & A.D. Crombie; T.J., D.R. and I.M. Hamblin; J. Hawker; R.J., R.I.S. Winks; K. Wilson; and The Corporation of the Synod of the Diocese of Newcastle, are dismissed.
2. The “applicants’” appeal by E.M., J.D. and L.S. Gray is upheld. Attachment A to the licences referred to in Condition 1.031B is varied by substituting in the second “creek condition” reference, 130 ML/day for 300 ML/day as the “residual flow allowed to pass pump” and 0.3 metres for 0.65 metres as the “gauge board level”.
RE WENCK
MEMBER OF THE LAND COURT
0