Hill v Chief Executive, Primary Industries Corporation

[1996] QLC 1

[1996] QLC 1

 

  LAND COURT

BRISBANE

23 January 1996

Re:Appeal under Section 4.26 of the Water Resources Act 1989 against the decision of the Chief Executive, Primary Industries Corporation, requiring construction of by-wash facilities with respect to Licence No. G-54236.

(A93-62).

John Winton Hill and Rosa Maria Hill
  v.
  Chief Executive, Primary Industries Corporation

(Hearing at St. George)

D E C I S I O N

On 14 October 1991, JW and RM Hill made application (Application No. 54236) for a waterworks licence for a ring tank with a wall height of 4.5 metres to be located on what the application described as an unnamed tributary of the Culgoa River.
           At the same time they made application (Application No. 54235) for a 200 millimetre pump to divert water from the Culgoa River to the ring tank.  The works were stated to be for water harvesting for domestic and stock water purposes.
In accordance with section 4.17 of the Water Resources Act 1989 (the Act), the applications were advertised in the "Balonne Beacon" on 24 October 1991. Objections were received on 15 November 1991, from Mr HID Stevenson, the registered proprietor of the adjoining property to the south-west known as "Clarkes".
           As required by the provisions of section 4.18 of the Act, the Chief Executive caused inquiry to be made.  Following that inquiry, both licences were issued.  However, Waterworks Licence No. 54236 was issued on 4 June 1993, subject to a number of terms, including term 3.032 which stated:

"The licensee shall construct and maintain to the satisfaction of the Chief Executive bywash facilities which will ensure that the natural flow of water into the flood channel flowing into "Clarkes" is not restricted.  The licensee shall provide plans and specifications of the works for the approval of the Chief Executive.  "

On 20 July 1993, Mr and Mrs Hill filed an appeal in the Land Court registry against the decision of the Chief Executive.  The grounds of the appeal were that the provisions of term 3.032 of the Schedule of Terms attached to Licence No. 54236 requiring construction of bywash facilities were unnecessary to maintain a natural and unrestricted flow of water into the property known as "Clarkes".  The appellants sought an order that term 3.032 be revoked.
           At the hearing of the appeal, the appellants were represented by Mr M Stewart, while evidence was given by Mr JW Hill, one of the appellants, and by Mr RW Betts, a grazier from an adjoining property known as "Balgi".  The respondent was represented by Mr R Vize, while evidence was given by Mr MJ Moran, a Technical Officer (Advisory/Resource Management), employed by the Department of Primary Industries (Water Resources).
           There was a large measure of agreement between the parties as to the facts of the case.  Mr and Mrs Hill are the owners of Grazing Homestead Freeholding Lease No. 39/3254, known as "Mugangulla" and described as Lot 6 on Plan BLM 959, Parish of Briarie, County of Belmore, containing an area of 3,039.009 hectares.  "Mugangulla" is situated south-west of Dirranbandi, on the Culgoa River, which forms its north-western boundary.  The property is almost rectangular in shape, lying in a north-west, south-east direction on the Culgoa Flood Plain.  The property known as "Clarkes" adjoins it on its south-western boundary and the property known as "Balgi" joins both "Mugangulla" and "Clarkes" on their south-eastern boundaries.
           The Balonne River system flows generally in a south-westerly direction from the town of St. George.  To the north of Dirranbandi it bifurcates, with the stream to the east being the Balonne Minor River and the stream to the west being the Culgoa River.  In times of flood they break their banks and inundate virtually all the land between the two rivers.  The properties between the two rivers rely upon the periodic flooding for the natural irrigation of their pastures.  As the country is flat, the water moves so slowly that they have ample time to move their stock.
           "Mugangulla" homestead is situated close to the Culgoa River on a feature which has been described by the various witnesses as a swamp, a lagoon and the former bed or anabranch of the Culgoa River.  This feature in its natural state formed a horse-shoe-shaped depression, which for convenience I will refer to as the swamp, adjacent to the Culgoa River.
           It seems that moderate flooding of the river ran water into the swamp at its south-western junction with the river (the swamp breakout) and as the flood waters rose higher, the swamp filled with water backing up from that direction, even though the flow of the river was in the opposite direction.  However, the evidence of both Mr Hill and Mr Betts was to the effect that it was only in very high floods that the swamp re-joined the Culgoa River at the northern end, as there was an area of higher land at that point, between the end of the swamp and the river.  Their evidence was that on such occasions the whole area was flooded, except for occasional areas of higher land.  The swamp lost its identity, the Culgoa burst its banks and the waters merged with those moving over the flood plain.
           As the river fell, the water in the swamp drained out the way it had entered, but some of the water remained, leaving a swampy area in the shape of a horse-shoe, which varied in depth.  However, the swamp was not permanent. In order to create a permanent supply, after obtaining the waterworks licence, the owners engaged contractors to construct an earth wall around the entire circumference of the swamp, by using scrapers to excavate inside the wall and dump soil over it.  The dam wall was about 1 kilometre in length and had an average height of about 1 metre over the natural level.  However, at the swamp breakout, the former inlet to the Culgoa River on the south-western side, the dam wall was some 4.5 metres in height.
           It is common ground that much of the flooding to the northern areas of both "Mugangulla" and "Clarkes" is caused by breakouts from the Culgoa River.  At the time that water from the river was backing up into the swamp, water from these breakouts was moving across the flood plain. 
           Of particular importance in this case was a breakout from the southern extremity of the swamp, which has been variously described by the witnesses as a flood channel and a scour (Mr Moran) and a depression (Mr Hill).  As water rose in the swamp, it flowed into the depression which was quite deep at its breakout point from the swamp for a short distance.  It then became a slight depression until at a point approximately 350 metres from the swamp, it entirely lost definition and merged into the flood plain (the control point). 
           The parties disagree as to the extent to which the waters from the depression contributed to the flow of floodwaters into "Clarkes".  The appellants think that it was insignificant, because by the time the water in the depression had backed up to overtop the control point, floodwaters from other breakouts had reached, or would soon reach, the area.  While accepting that water from the depression did not greatly contribute to flooding of "Clarkes", the respondent formed the opinion that there was some degree of flow. 
           Mr Stevenson's objection was based on the fact that the constructed wall of the ring tank blocked the flow into the depression, water from which would have made its way down the flood plain to "Clarkes".  It was his contention that beneficial flooding of "Clarkes" was prevented by the construction of the ring tank.  This was the reason for the respondent issuing the licence subject to term 3.032 requiring the construction of a bywash.
           It was submitted by Mr I Coutts, who made the closing submissions on behalf of the appellants, that the respondent had no jurisdiction over the works. To have jurisdiction, he argued, the respondent must prove:

1.that the appellants have constructed the subject works on or upon a water course (as defined) that flows through or past the land of two or more owners or occupiers; or

2.that they have constructed the works upon a lake (as defined) which is situated within or abuts the land of two or more owners or occupiers; or

3.that they have constructed a levee bank as referred to in section 4.13(1)(f).

Mr Coutts referred to the provisions of section 2.1 of the Act which states:

"The right to the use and flow and control of water at any time -

(a)in a watercourse that flows through or past the land of two or more owners or occupiers or a lake or spring that is situated within or abuts the land of two or more owners or occupiers;...

vests subject to the restrictions contained in this Act or until appropriated under this Act or any other Act in the Crown.  "

Mr Coutts contended that the swamp is neither a watercourse nor a lake within the definitions of such terms.  He submitted that the dam was constructed over what was the old bed of the river. 
           However, Mr Coutts went on to argue that if the swamp was a watercourse as defined in section 1.4, it did not flow past the land of two or more owners or occupiers, as it is totally confined within the boundaries of "Mugangulla".  Similarly, he argued that if the swamp was a "lake" as defined by section 1.4, it was not situated within nor did it abut the land of two or more owners or occupiers.  It was totally confined within the boundaries of "Mugangulla".
           Mr Vize submitted on behalf of the respondent, that the wall of the ring tank is a levee bank as defined in section 1.4.  However, Mr Coutts contended that a levee bank must be an embankment or structure which relates to a watercourse.  If the swamp was not a watercourse, then the embankment constructed by the appellants is not a levee bank.
           Section 1.4(1) of the Act contains the following definition:

"'levee bank' means any embankment or other structure within or without or partly within or without the bed and banks of a watercourse for the purpose of -

(a)keeping wholly or partly within a channel the water, including floodwater, of that watercourse; or

(b)preventing, regulating or controlling in any manner the flow of water out of that watercourse.   "

The provisions of section 4.13(1) of the Act require the licensing of, among other things, works constructed on a watercourse to conserve water and the construction of a levee bank.  Whatever the merits of Mr Coutts' argument in respect of other matters, it is clear that the definition of the term "levee bank" includes an embankment within or without the bed and banks of a watercourse for the purpose of keeping wholly or partly within a channel the water, including flood water, or which prevents, regulates, or controls in any manner the flow of water out of the watercourse. 
           Whether or not the swamp or the breakout depression from the lagoon would come within the definition of "watercourse" is irrelevant.  There is no doubt that the Culgoa River itself is a watercourse.  The works constructed by the appellants prevent the outbreak of water into the lagoon and are designed to confine outflows from the river.  The evidence has established that the works come within the definition of "levee bank" as the outbreak from the Culgoa River has been prevented, regulated or controlled.
           Therefore, since the appellants have constructed a levee bank within the terms of the definition, the respondent had jurisdiction to license the works. 
           Mr JW Hill has lived on "Mugangulla" since he purchased it in 1958 and was very familiar with the manner in which it and other properties in the immediate vicinity were affected by flood waters.  Mr Hill explained how breakouts from the Culgoa River in moderate to high floods spread flood water slowly across the northern parts of both "Mugangulla" and "Clarkes".  These breakouts occur at several locations, particularly relevant in this case is water from one near the old "Urandool" woolshed, situated two properties to the north of "Mugangulla", and from another breakout near the boundary of "Woolerbilla" and "Clarkes" to the south of "Mugangulla".  At the same time, floodwaters from the Briarie Creek system spread slowly over the southern parts of both "Mugangulla" and "Clarkes".  In major floods, these waters combine until virtually the whole of the properties are covered by water apart from occasional higher knolls.
           Mr Hill said that it takes from 10 days to a fortnight for flood waters to travel from St. George to "Mugangulla", a distance of over 100 kilometres.  He thought that the swamp may have, at one time, been the bed of the Culgoa River, but that its northern end had silted up and water no longer flowed in from that direction.  He explained how the water entered the swamp and that at a certain height, prior to the construction of the ring tank, water broke out into the natural depression from the swamp and backed up until it met with the water backing up from the breakout on "Woolerbilla".  According to Mr Hill, that water backed up across "Clarkes" and into "Mugangulla".
           Mr Hill contended that the bywash was not necessary because the water that inundates "Mugangulla" and "Clarkes" comes from the other breakouts.  He said that it would be on rare occasions only that water would run into the depression before it flowed onto the area from other breakouts.  From its breakout point on the swamp, the depression quickly became shallow.  Water would gradually back up to a point where the depression lost definition (near the control point) and then run down a graded track towards "Clarkes".  Mr Hill emphasised that there was no sign of a channel past the control point.  It was just part of the flood plain which had no defined channels  As the water rose further, all the water from the various sources joined to become one large expanse of flood water.  Because of the merging of the waters from the other breakouts, Mr Hill considered that any contribution of flow from the depression would have been quite insignificant.
           Mr RW Betts was in a better position to observe flood waters than any of the witnesses.  He acquired "Balgi" in 1948 and in 1956 purchased an aeroplane to observe approaching floods and ensure livestock were moved to high ground before the flood waters arrived.  He also assisted other property owners in the area with advice about flood waters.  He spent a lot of time flying between the two rivers in times of flood and he had become familiar with the manner in which the land became flooded, the streams, channels and watercourses which carried the flood water, the manner in which they spread out as the floods rose and the effect that they had on property management.
           Mr Betts' evidence generally supported that of Mr Hill as far as the flooding from the various breakouts was concerned.  He said that he had never seen water flowing from the depression into "Clarkes" before water from the other breakouts merged with it.  He said that the flood path from those breakouts "blocks" the effect of water from the depression.  By that time, the land was virtually totally submerged and the channels and watercourses had lost their definition.  He said that water from the depression did not add to the flooding to the northern parts of "Mugangulla" and "Clarkes" until there was a moderate rise in the river.  By that time, the channel systems from the other breakouts were already spreading flood waters over the land.  He too thought that the water reaching "Clarkes" from the depression was insignificant, as the whole area by that time was flooded.
           Mr Moran was not the original inspecting officer, being based in St. George since November 1993.  He therefore did not have the advantage of seeing the area prior to the construction of the ring tank and had to rely on Departmental records of the views of his predecessors and of their discussions with the various parties.
           Mr Moran gave evidence that on 1 December 1993, together with another technical officer, he had surveyed the depression (or the flood channel as he called it) leading away from the dam, to establish that the control point for the depression (the point where it lost definition and merged with the flood plain) was approximately 350 metres south of the dam.  The control was assigned an assumed datum of elevation 49.20 metres.  This level was transferred to the top of a stake placed on the river bank at the ring tank, to enable observation of the flow in the Culgoa River in relation to the control. 
           In February/March 1994, a flow in the river occurred which was observed from the air on 14, 17 and 18 March 1994.  Flows were observed over the flood plain and in the river in relation to "Mugangulla" and "Clarkes".  Field inspection and survey of the site during the flood was carried out on 23 March 1994.  This revealed the flood height in the river to be O.5 metres above the control point, but the wall of the ring tank was blocking any outflow into the depression.  He therefore concluded that the ring tank had the effect of reducing the frequency of flooding from the river at the breakout point. 
           Based on his observations of the water in the river, Mr Moran came to the conclusion that prior to the construction of the ring tank, the water would have flowed out and filled the flood channel (the depression), then flowed down towards the control point and started to spread over the flood plain.  Mr Moran conceded that its contribution to the flooding on "Clarkes" would not have been great in comparison with the water from other breakouts. 
           However, Mr Moran readily admitted that in making these statements, he did not have the knowledge of others, like Mr Betts and Mr Hill, who could give more reliable evidence of how the water ran and behaved before the ring tank was constructed.  In their opinion the contribution of the water flowing from the depression was negligible and quite insignificant.
           Mr Moran was of the opinion that the wall of the ring tank acted as a levee bank preventing water leaving the river.  He felt it was necessary for the Chief Executive to require the construction of the bywash.  The Department had commissioned a Flood Plain Management Report because of community concerns about changing flood flow paths.  He said that the principles of sharing the flood plain flows were to be implemented in the area with the development of the Flood Plain Management Plan, to allow traditional flow paths to remain open.  He therefore considered it was the Department's duty, to start introducing the policies and principles which would in the near future be implemented in the entire flood plain area.  
           Mr Moran was of the opinion that there would be times when the river system would flow before the water from the breakouts had moved down the flood plain to the general area.  At the time of his inspection on 23 March 1994, water had not reached the subject area before the river had risen to a level higher than the control point.  However, he conceded that within a few days there was a lot of water in the general area.  He accepted that for water to break out of the swamp into the depression, the river level would have to be so high that it would also break out at the other locations.
           The survey of the swamp conducted by a Mr Bass on 24 August 1989 (Exhibit 9) showed the depression leaving the swamp at elevation 47.37 metres.  Mr Moran's survey (Exhibit 6) indicated that the depression quickly rose to elevation 49.17 metres and then rose further to the control point at elevation 49.2 metres.  Therefore, apart from its point of breakout, for most of its 350 metre length, the depression is very shallow.  At the control point, the depression lost all identity and merged with the flood plain at a track which runs south into "Clarkes".  Mr Moran's plan indicates that the flood plain then falls slowly towards "Clarkes" in a southerly direction.  Levels taken at intervals down the track show elevations of 48.93 metres, 48.98 metres, and 48.89 metres.

           A further matter was raised by the appellants.  One of the results of the construction of the dam wall is that during periods of flood, the wall can be used as a causeway to enable stock to be moved from the high area near the homestead to another high area in the north-west of "Mugangulla".  This previously was not available because of the lower-lying depression between them.  If the by-wash was constructed as required by term 3.032, then it seems that access would be denied, unless an expensive culvert system was constructed.
           However, it is clear from the application for the waterworks licence submitted by the appellants that the purpose of the works were for water harvesting for stock water and domestic purposes.  The fact that it also acts as a causeway is not something that could or should have influenced the respondent's decision, nor is it something that this Court should consider. 
           The question for consideration is whether or not prior to the construction of the ring tank, the depression from the breakout from the swamp contributed to the beneficial flooding on "Clarkes" to such an extent as to warrant construction of the bywash by the appellants to restore that flow?
           The point made by the appellants, which Mr Moran does not deny, is that on most occasions the breakouts from the other locations on the Culgoa River would merge with the waters from the breakout from the swamp, either before or shortly after the level of water in the depression backed up to the control point.  Mr Moran relied heavily upon his inspection conducted on 23 March 1994, when the area at the control point had not been flooded.  However, he conceded that soon afterwards the whole area was well under water.
           I was particularly impressed by the evidence of Mr Betts who had observed the flooding in the area from the air since 1956.  He stated that he had never seen water from the depression flowing into "Clarkes" before water from the other breakouts had merged with it.  That was not challenged by the respondent and I accept Mr Betts' evidence.
           I have reached the conclusion that the waters contributed by the breakout from the swamp to the flow of water into "Clarkes" was, on the weight of the evidence, quite insignificant.  The flood waters from the other breakouts were and remain the source of the beneficial flooding on "Clarkes".  Because the land is so flat and the movement of water so slow, none of the witnesses was able to say with any certainty whether there would have been occasions when the water from the other breakouts would have reached the control point before the water backing from the swamp in the depression would have reached that point.
           However, there was no evidence to indicate that there were occasions when water backing up from the breakout on the swamp through the depression and down the flood plain would have been the only water reaching "Clarkes".  Indeed, Mr Betts' evidence was otherwise.  For the river to have reached the level where water would have backed up in the depression to the control point and then flowed slowly down the flood plain, it would seem, on the balance of probabilities, that water from the other breakouts would have arrived either at the same time or shortly thereafter.
           Having made these findings, then I consider that the term 3.032 requiring the appellants to construct the by-wash is unnecessary, as water from the depression would not have contributed in any meaningful way to the beneficial flooding of "Clarkes".  In my opinion, the construction of the wall of the ring tank resulted in the blocking of a minor drain which, on the evidence, contributed an insignificant amount of water to the flood plain flows when the whole of the flood plain was being flooded from other sources.
           Therefore, I am of the view that term 3.032 is unnecessary and should be revoked.
           Accordingly, the appeal is allowed and the decision of the Chief Executive to grant Waterworks Licence No. 54236 is varied by revoking the term 3.032 requiring the construction of bywash facilities.

(JJ Trickett)        
  Member of the Land Court