Hoult v Chief Executive, Primary Industries Corporation (now Department of Natural Resources)
[1997] QLC 135
•10 September 1997
LAND COURT
[1997] QLC 135
BRISBANE
10 SEPTEMBER 1997
Re:Appeal under Section 51 of the Water Resources Act 1989
A95-80
Lawrence W and Beverley A Hoult
v.
Chief Executive, Primary Industries Corporation
(now Department of Natural Resources)(Hearing at Bundaberg)
D E C I S I O N
Lawrence W and Beverley A Hoult have appealed against the decision of the Chief Executive, Primary Industries Corporation to refuse to issue a Waterworks Licence for an irrigation bore on their land in the Bundaberg district which is described as Lot 14 on RP 197213, Parish of Kalkie, containing an area of 2.78 ha. The application for the licence which is dated 22 October 1993 was for a bore 120 feet to 130 feet in depth with a 5-inch diameter to irrigate 2.3 ha of small crops and trees with a required annual allocation of 2 megalitres.
By letter dated 2 October 1995, the respondent Chief Executive advised the appellants that due to the then current level of commitment within the polygon in which Lot 14 is situated, the Department was not prepared to approve the requested 2 megalitre allocation, or any additional allocation, and that permanent transfers of allocation are not permitted under the provisions of the Water Resources Act 1989. The Chief Executive further advised the appellants that he was only prepared to approve a bore on their property subject to the following conditions:
·"The nominal annual allocation will be 0 Ml. (Allocation is to be obtained through temporary transfers which would need to be reviewed annually).
·The bore would be required to be fitted with a water meter which would be supplied and installed by this department at the expense of the licensee.
·The licensee shall pay the annual charges as determined by this Department.
·The bore is not to be used unless a temporary transfer is in force.
·The water being temporarily transferred to this property must come from within the same polygon i.e. W39. This will allow you to use Mauloni's water until such time as permanent transfer becomes an option. I am now hopeful this will not be too long."
It is against the decision refusing the application dated 22 October 1995 that the appeal was filed on the following grounds:
"1.The Executive Director has not acted capriciously in carrying out or administering the Water Resources Act.
2.A permanent transfer of 10 megalitres to the adjoining Lot 17 on RP 197213 has been permitted.
3.It is an unreasonable ask to construct/equip a bore with no nominal allocation and without guarantee of a permanent transfer from Water Commercial. It is an unfair ask that a water meter be at our expense by comparison to other licensees.
4.It is not unreasonable that Water Commercial grant us an allocation of 2 megalitres, as this would not significantly deplete the underground resource."
Lawrence Wain Hoult furnished evidence in support of the grounds of the appeal, and informed the Court that the first ground in the Notice of Appeal should have read "has acted capriciously" rather than "has not acted capriciously".
Mr Hoult outlined the history of dealings with the then Water Resources Commission concerning his applications for water licences. The appellants purchased Lot 14 on RP 197213 on 7 August 1985. The lot is but one of four lots subdivided by BH Taske during 1984 from land originally described as Subdivision 1 of Portion 37 and Subdivision 3 of Portion 109, Parish of Kalkie. Lot 14 contained an area of 2.78 ha, Lot 15 an area of 2.002 ha, Lot 16 an area of 2 ha, and Lot 17 (the balance area) an area of 25.75 ha. The subdivisional plan was approved by the then Woongarra Shire Council subject to the approval of the then Queensland Water Resources Commission. The District Engineer in the Bundaberg office of the Commission advised the surveyor for Mr Taske that it had no objection to the proposed subdivision, and further advised that under the conditions set down by the Commission, the owner (Taske) will be allowed only two domestic bores on the subdivision. This information became known to the Hoults subsequent to their purchase of the land.
On 14 October 1985, the appellants made application to the then Commission for a licence to use a disused bore for domestic and stock watering purposes. The bore had been located on Lot 14 for many years. This application was refused on the grounds that the two available domestic bores for the subdivision were allocated by Mr Taske to Lots 15 and 16 in the subdivision.
Mr Hoult told us that Mr Taske then offered to transfer 2 megalitres from his home farm allocation, but this offer failed when it was not approved (verbally) by the Commission on the ground that if further subdivision was allowed and similar allocations were approved, the allocation attaching to Mr Taske's cane farm would be inadequate.
Mr Hoult informed the Court that subsequent to that time, all applications made by the appellants for a domestic bore permit, a stock water permit, a permanent transfer of 2 megalitres from Lot 2 on RP 24869 - a farm owned by RJ and LJ Leadbeatter, have been refused. This it seems, is the background leading up to the application for the Waterworks Licence which gives rise to these proceedings.
Mr Hoult told us that he approached the Minister for Water Resources and Marine Services (Mr Martin Tenni) in 1986 for assistance, but this was not successful. He provided the Court with the text of the Minister's reply to his submission dated 4 June 1986, but I do not find it helpful nor relevant to the outcome in this case to refer to this written material, especially as there was no-one at the Court from the Minister's office to inform us as to the source of the comments made by the Minister.
Mr Hoult feels that the respondent Chief Executive has acted capriciously in dealing with his application, especially in comparison with his decision on another occasion when he allowed Mr Taske in 1991 to subdivide his home farm (Lot 8 on RP 205510) into Lots 8 and 9 on RP 835525, with Lot 9 subsequently being sold as an irrigated cane farm and Lot 8 as a rural homesite with a domestic bore permit with an allocation of 1.5 megalitres. Mr Hoult sees the Taske situation in a similar light to his own situation.
Mr Hoult submits in respect to Ground 2 in his Notice of Appeal that actual bore and equipment costs obtained from neighbours suggest that about $5,000 plus the cost of a water meter would be required to develop a bore. Mr Hoult feels it is unrealistic to expect the appellants to invest this capital in water provision when a licence may only be for one year.
Mr Hoult feels that the condition offered by the responded that a water meter be installed on a bore at the owner's expense is unfair in comparison with other licences. He points as an example to an adjoining property (Lot 15 on RP 197213) owned by the Thorogoods, where a condition of the licence was that the licensee may be required to pay for the supply and installation by the Commission of a water meter. It is noted that the Thorogood Licence (No. B95039) issued on 22 September 1993, and is for a bore to supply water for domestic purposes with a nominal allocation of 1.5 megalitres. Mr Hoult told us that to date a water meter has not been installed on the Thorogood bore and he believes that domestic bores in rural areas, or for isolated small allocations of 1 to 2 megalitres, are generally not metered, or alternatively, are uneconomical to meter.
With respect to Ground 4 in the Notice of Appeal, Mr Hoult submits that the appellants' land is located within the Water Resources declared Polygon No. 39 and is mainly designated as "rural protected" with a small part being "rural general" under the Burnett Shire Strategic Land Use Plan. He further suggests that the land uses are predominantly for sugar cane and small crop growing in the rural protected zone, and grazing in the general rural areas. Mr Hoult says that Polygon 39 has a total allocation of 898.5 megalitres of which 884 megalitres is for irrigation and 14.5 megalitres is for stock/domestic purposes. Further, it is said by the respondent that there is a deficit of 248.5 megalitres, although in good years the announced allocations have been in excess of 100%. Mr Hoult submits that, as there is no public access system to the Water Resources records on properties without water allocations, then the number of properties within Polygon 39 which do not have a water allocation is not known. But Mr Hoult suggests that the appellants' property may be the only one. If this is the case, then Mr Hoult believes an additional 2 megalitres allocation to the appellants would represent an increase of only 0.2% above the existing allocation in Polygon 39.
Mr Hoult referred the Court to two decisions resulting from appeals under s.4.26 (as it then was) of the Water Resources Act. They are from PA and CR Conroy v. Commissioner of Water Resources, and The Council of the Shire of Isis v. Chief Executive, Primary Industries Corporation. I have considered these decisions, but I find them of little assistance to me in coming to a finding in this matter. The licence granted by the Court to the Conroys was for a 286 megalitre allocation for an irrigation bore on a property in the Norwin district on the Darling Downs, while in the Council for the Shire of Isis case, the Court affirmed a decision by the Chief Executive, Primary Industries Corporation to grant a Waterworks Licence for irrigation using surface water from the Gregory River for irrigation purposes. Each case depends for its outcome on the evidence produced in individual cases. Nor is the reference by Mr Hoult to examples given by him where nominal applications of about 1.5 megalitres were issued in the case of subdivisions since 1975 of any assistance.
Mr Hoult, in summarising his claim that the decision of the Chief Executive should be revoked, says that no objections were received to his application for a Waterworks Licence. Further, that two property owners within Polygon 39 have been approached and both have agreed to permanent transfers of allocation. In addition, Mr Hoult says it is extremely unlikely that the Burnett Shire Council would ever extend water to his property as it is outside a town boundary and nearly all properties in the area are already serviced by the Bundaberg Irrigation Scheme. Mr Hoult again stresses that the granting of a 2 megalitre allocation would have an insignificant effect on Polygon 39 groundwater resources. Further, Mr Hoult says the granting of a 2 megalitre allocation would not open the floodgates to many more applications as there are very few properties in the area which do not already have an allocation.
Evidence for the respondent Chief Executive was led through David James Dempster, who is employed as an hydrologist within the Department of Natural Resources - State Water Projects. Mr Dempster told us that the Bundaberg Subartesian Area was declared on 11 June 1970 as a district within which subartesian licensing provisions were to apply. As a consequence, licences are required in the Bundaberg Subartesian Area for all works used to extract groundwater for other than domestic purposes. The licensing provisions applicable to the Bundaberg Subartesian Area were amended on 10 July 1975 to include groundwater facilities used for domestic purposes.
Mr Dempster told us that the Orders in Council were repealed and replaced by the Water Resources (Subartesian Localities) Order (No. 1) 1992, refining the boundaries of the Bundaberg Subartesian Locality in which the provisions of the Water Resources Act 1989 apply to subartesian wells and bores used for domestic purposes.
Mr Dempster has outlined the history of groundwater development in the Bundaberg area. He says that during the period 1977-79 when rainfall was well below average, and the surface water scheme was still under construction, water levels in the Bargara-Burnett Heads area were drawn down below sea level by more than 3 metres and increased saltwater intrusion occurred. Since 1988 there has been a succession of droughts and further seawater intrusion has been recorded. By 1994 it was estimated that seawater had intruded under a total of 11,600 ha of land, but management practices have resulted in the saltwater front stabilising since that time.
Since 1970, management strategies for the groundwater area have been implemented by the Department of Natural Resources (formerly the Water Resources Commission). Initial management policies were formulated with the assistance of the Bundaberg Irrigation Committee, a group set up to assist the Department in establishing the irrigation scheme. Of more recent times, a Groundwater Advisory Group has been established for the whole of the Bundaberg groundwater area.
Mr Dempster informed the Court as to how groundwater irrigation allocations are calculated. Insofar as they relate to cane growing, the basis is the area of 1970 cane assignment (hectares) x 4.8 megalitres per hectare. As surface water becomes available for cane growers, licences for bores are cancelled. Mr Dempster provided the Court with copies of the Licensing Policy Rules which have been use in the Bundaberg Subartesian Area since its inception.
Mr Dempster confirmed that no objections were received subsequent to the advertisement of the Hoult application for the licence. He says that the lack of objections by neighbours and other licensees would be a reflection of their knowledge of his Department's management policies, the over commitment of the polygon, and the expectation that any decision on an application would be limited to policy standard.
Mr Dempster outlined the history of his Department's investigation into the application. Aerial photographs taken on 9 May 1970 indicate that 8.1 ha of sugarcane was grown on the original parcel of the Taske land, all of which was grown on what became Lot 17 after the subdivision. Since irrigation allocations were only granted for sugarcane assignment and/or small crops and/or for tobacco grown in 1970, under the strictly adhered to guidelines, then there would be nil entitlement for an irrigation allocation on Mr Hoult's Lot 14 on RP 197213.
Following the investigation into the application, and considering what Mr Dempster says is a lack of entitlement to groundwater allocation, the over commitment of Polygon 39, and the water level performance by the Department's Nodal Observation Bore in Polygon 39 (No. 13700171), the application was refused.
Mr Dempster says that further to the application of 22 October 1993, the appellants sought permission on 9 September 1994 to permanently transfer 1 megalitre of groundwater allocation from EG and SA Mauloni from Lot 1 on RP 204889. The Maulonis agreed in writing to the transfer to the Hoults of 1 megalitre from their 10 megalitre groundwater allocation. Now Mr Dempster says that the Department allows temporary transfers of allocation under the applicable legislation, but not permanent transfers. So the issue of a Waterworks Licence with 1 megalitre allocation, permanently transferred from EG and SA Mauloni, cannot, says Mr Dempster, be done legally. But in the result, by letter of 2 October 1995, the District Manager, Water Resources, Department of Primary Industries, Bundaberg, advised the appellants that he is prepared to issue a Waterworks Licence under the conditions I have already outlined on page 1 of this decision.
Mr Dempster has reacted in his written submission to the Court by way of response to the grounds of appeal. He says that the Executive Director has acted both judiciously and reasonably within his powers in administering the Water Resources Act 1989. Further, Mr Dempster acknowledges that a 10 metre allocation was transferred to Lot 17 on RP 197213 following approval in January 1990. But he points out that sugarcane was grown on Lot 17 on RP 197213 prior to 1970 as part of an assignment of 24.3 ha on that lot and other property owned at that time by the grower. A groundwater allocation of 117 megalitres was granted across all blocks. But as a result of an application made for the transfer of a 10 metre allocation to Lot 17, it was approved under what was then a trial period for permanent transfer of allocation.
Mr Dempster told us that water meters were installed, at departmental expense, on all irrigation bores which were in existence in 1970. It is departmental policy that any bores installed additional to the number in existence in 1970 have to be metered at the expense of the licensees. It is on the same basis that the decision for the requirement to meter the bore at the licensee's expense was applied to the Hoults, and on the same basis as for every other groundwater user within the Bundaberg Irrigation Area.
Mr Dempster is of the opinion that an additional allocation of 2 megalitres will further increase the over commitment on the groundwater system in Polygon 39. He concedes that incremental increases in allocation may not have an apparent effect immediately, but contends that it would have a lowering effect in the long term.
Section 43(1)(b) of the Water Resources Act 1989 sets out the duties of the Chief Executive in respect of his inquiry into an application for a groundwater licence. The subsection reads:
"(1) Upon an application under Section 42 and an objection thereto, the Chief Executive must cause inquiry to be made -
(b)where the application relates to underground water - into -
(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;".
Now I am satisfied on the whole of the evidence that the respondent Chief Executive has thoroughly and competently considered the application by the Hoults in accordance with s.43(1)(b), and in so doing has not acted capriciously in the process of making his decision upon it. But for this appeal to succeed, it must necessarily involve the Court's decision, in the aspects of this case, to grant an exception from the longstanding stated policy of not issuing new groundwater irrigation licences to owners of land which was not used for cropping prior to 1970. Mr Hoult takes no issue with the policy, but seeks exemption for the reasons already discussed. That Lot 14 on RP 197213 (the Hoult land), was not used for cropping prior to 1970 is not in dispute. It seems to me to be unfortunate that Mr Hoult was not informed, or did not inquire about the distribution of the two domestic water allocations to Lots 15 and 16 prior to his purchase of the subject land. It would, or could, have been a factor of influence with the appellants in their decision to purchase the land.
It must also be obvious that the allocation of 2 megalitres of groundwater would not significantly deplete the underground resource, but I agree with the respondent Chief Executive's concern that if the appeal is allowed, then it might open the way for a flood of applications for licences for groundwater allocation in an already over committed groundwater resource within the Bundaberg Irrigation Area. In addition, one has to be mindful that it is essential that the Corporation's control over the saltwater intrusion into the groundwater reserves be not in any way jeopardised by the issue of further allocations. I make this observation notwithstanding the location of Polygon 39 (within which the Hoult land is situated), and which can be seen to be some distance from the most vulnerable areas - eg Polygons 1-15.
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. The appeal is dismissed and the decision by the respondent Chief Executive to refuse the application for a licence to install the requested bore with an annual allocation of 2 megalitres to irrigate 2.3 ha of small crops and trees on Lot 14 on RP 197213, Parish of Kalkie, is, in accordance with s.51(7) of the Water Resources Act 1989, confirmed.
CH CARTER
MEMBER OF THE LAND COURT
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