Karreman Quarries Pty Ltd v. Chief Executive under the Water Act 2000
[2007] QPEC 111
•12 December 2007
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Karreman Quarries Pty Ltd v Chief Executive under the Water Act 2000 [2007] QPEC 111
PARTIES:
KARREMAN QUARRIES PTY LTD
Appellant
V
CHIEF EXECUTIVE UNDER THE WATER ACT 2000
Respondent
FILE NO:
1646/2007 – Brisbane
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
12 December 2007
DELIVERED AT:
Maroochydore
HEARING DATE:
3 & 4 October 2007
JUDGE:
K.S. Dodds DCJ
ORDER:
The land to the extent it is above AHD 84.5 is not within the jurisdiction of the respondent.
CATCHWORDS:
PLANNING – PLANNING LAW – Jurisdiction of Chief Executive under Water Act 2000 – Whether land within a watercourse – words and phases – “watercourse” – “bed and banks” – “floodwater”
Integrated Planning Act 1997 (Qld) s 3.5.24(1)
Water Act 2000 (Qld) s 21, s 279, s 280, schedule 4
Cases cited:
Cornerstone Properties Ltd v Caloundra City Council & Anor [2005] QPELR 96
Gartner v Kidman (1962) 108 CLR 12
Hindson v Ashby (1896) 1 Ch 78
Karreman Quarries Pty Ltd v Esk Shire Council [2006] QPELR 481
Kingdon v Hutt River Board (1904-5) 25 NZLR 145
Knesovic v Shire of Swan-Guildford (1968) 118 CLR 468
Maugeri v Commissioner of Irrigation and Water Supply [1972] Qd R 411
Randell v Brisbane City Council No.2 [1990] Qd R 440
COUNSEL:
D Gore QC with J Houston for the appellant
M Hinson SC with W Cochrane for the respondent
SOLICITORS:
Connor O’Meara Solicitors for the appellant
Crown Law for the respondent
This matter concerns whether the respondent has any jurisdiction over land adjacent to waters flowing in the upper reaches of the Brisbane River. Jurisdiction depends upon whether the land of concern (the land) is part of a watercourse as that term is defined in the Water Act 2000 (the Act). If it is, then the appellant’s removal of quarry material therefrom is assessable development[1] and the respondent is the assessment manager.[2]
[1]Integrated Planning Act 1997 schedule 1, part 8, table 5.
[2]Integrated Planning Act 1997 schedule 8, table 3, item 5.
The land is part of an area of land over which an allocation notice was issued to the appellant by the Department of Natural Resources and Water on 24 November 2006 authorising the allocation of quarry material under the Act. In January 2007 an officer of the department issued a compliance notice under the Act requiring the appellant to cease excavation on the land. The appellant then in February 2007 lodged a development application with the respondent, but under protest. The application was approved on 4 May 2007 with conditions. This appeal was instituted on 12 May 2007.
A ground of appeal asserted that it should be determined the quarry material the subject of the approval was contained within Lot 2 of RP806767 and was outside the bed and banks of the Brisbane River. On 19 July 2007 a Judge of this court ordered that the issue whether the respondent had jurisdiction over the appellant’s removal of quarry material from the land be dealt with as a preliminary legal issue.
It is not necessary to examine whether or not the Brisbane River in the area of concern is a watercourse. It plainly is. The question rather is whether the land is within the “watercourse” as that term is used in the Act. “Quarry material that is in the part of a watercourse --- the beds and banks of which are the property of the State, is the property of the State”.[3] “The bed and banks of all watercourses and lakes forming all or part of the boundary of land are and always have been the property of the State”.[4]
[3]Water Act 2000 section 279.
[4]Water Act 2000 section 21.
Schedule 4 to the Act contains definitions. “Watercourse” relevantly is defined to mean a river, creek or stream in which water flows permanently or intermittently in a natural channel, whether artificially improved or not and includes the bed and banks and any other element of the river, creek or stream confining or containing water.
“Bed and Banks” is also defined. Applying this definition to the definition of watercourse results in a “watercourse” relevantly being “the bed and banks of a river, creek or stream in which water normally flows whether permanently or intermittently in a natural channel, but does not include land adjoining or adjacent to the bed or banks from time to time covered by flood water”.
But for the exclusion of land covered by flood water from the meaning of “bed and banks” a “watercourse” as defined in the Act would have a wide reach. “Flood” may be regarded as a normal event in a weather cycle and floodwater may flow in a channel.
“Floodwater” is defined in the Act as water overflowing or that has overflowed from a watercourse, that is from the bed and banks in which water normally flows permanently or intermittently in a natural channel, onto or over riparian land, not submerged when the watercourse flows between or is contained within its bed and banks. The definition is not restricted to any particular size of flood.
“Normally” according to the New Shorter Oxford English Dictionary means 1. “in a regular manner, regularly” and 2. “under normal or ordinary conditions; as a rule ordinarily”. According to the Macquarie Dictionary it means “as a rule, regularly”.
In Cornerstone Properties Ltd v Caloundra City Council & Anor [2005] QPELR 96 this court (amongst other things) was required to determine the extent of a watercourse. The opposing contentions were between a “low bank” and a “high bank”. The low bank contained the base flow of the watercourse, the level of water during a dry spell. It was however capable of containing and confining flow levels significantly in excess of the base flow level. In any significant rain event water levels would rise and the base flow exceeded. However expert hydrological opinion was that the low bank would be overtopped on only about 5 occasions per year and only for 1 or 2 hours. This meant that in an average year the flow of water in the watercourse could be expected to be contained within the low bank for in excess of 99% of the time. That evidence supported the court finding that the normal flow of water was contained within the low bank.
The river or stream in Cornerstone was Obi Obi creek at Maleny. The river or stream this case is concerned with is the Brisbane River in its upper reach. There are high banks on each side, an abandoned flood plain between those high banks on which are a number of lower banks and a channel containing a flow of water. A short distance downstream of the land a barrage has in the past been constructed across the channel causing the water in the channel to back up.
I was provided with references to a number of cases in which “watercourse” was discussed. None were of any real assistance to the question involved in this case. For example:
Randell v Brisbane City Council No.2 [1990] Qd R 440 (a personal injury case in negligence).
Maugeri v Commissioner of Irrigation and Water Supply [1972] Qd R 411 (whether a depression, part of a system of natural drainage, was a watercourse).
Gartner v Kidman (1962) 108 CLR 12 (whether an artificially enlarged depression which drained a swampy basin was a watercourse).
Knesovic v Shire of Swan- Guildford (1968) 118 CLR 468 (whether a depression the flow of which mainly consisted of overflow from an area of swamp in the rainy months was a watercourse).
Karreman Quarries Pty Ltd v Esk Shire Council [2006] QPELR 481 (a case involving a deemed refusal of an application for a minor change to a town planning consent permit for extractive industry. The area for extractive industry of concern was the Brisbane River a short distance upstream of the land in the present appeal. The appeal was primarily concerned with the question whether the change sought was a “minor change” within the meaning of section 3.5.24(1) Integrated Planning Act 1997 (IPA). In the reasons for judgement allowing the appeal reference is made to the content of a letter from the Department of Natural Resources, Mines and Energy (as it then was) to the respondent council which stated that officers of the department had inspected the site and determined the limits of the bed and banks of the river which did not include a terrace “adjacent to the normal flow channel of the watercourse. This determination was made on the basis that –
§ water in the watercourse flows permanently or intermittently within the well defined channel adjacent to the terrace
§ water breaks out onto the terrace only in times of flood.
Hence there is no jurisdiction under the Water Act 2000 to control the extraction of material from within the terrace”.
Robin QC DCJ who heard the appeal referring to the letter said “That letter reflects a new understanding of the meaning of watercourse consistent with the decision in Cornerstone Properties Ltd v Caloundra City Council & Anor”).
Hindson v Ashby (1896) 1 Ch 78 (a common law case requiring a determination whether land was part of the bed of a river).
Kingdon v Hutt River Board (1904-5) 25 NZLR 145 (a New Zealand case which involved, amongst other matters, determination of the bed of the Hutt River which in an ordinary rainy season had water frequently extending from bank to bank.)
The appellant commissioned Dr Johnson, an engineer with extensive hydrological experience to determine the extent of the normal flow of river adjacent to the land. Dr Johnson was aware of the Cornerstone decision. In simplified terms he determined the upper limit of the flow adjacent to the land by utilising approximately 45 years of data from the Grigor creek flow gauging station on the river immediately adjacent to the land. From the entire length of record he determined a flow rate with an Average Recurrence Interval (ARI) of one year (Q1) and from that derived a flow rate for a Q3 month event i.e. an event occurring on average four times a year. Using information provided by the gauging station and the Department of Natural Resources and Water he then derived an Australian Height Datum (AHD) level for the flow for the Q3 month event. This was (conservatively) 84.48 rounded up to 84.5, a level overtopped less and significantly less than five times a year. The land (with the exception of a small section in the north west corner below 84 AHD and thus not mineable in any event) was above AHD 84.5.
The respondent commissioned a firm of specialist soil and water scientists Gilbert and Sutherland to examine (amongst other things) the boundaries of the “watercourse”. A report was produced.[5] Mr Sutherland gave evidence supporting the report. The thrust of the report and Mr Sutherland’s evidence was that the land was within the bed and banks of the watercourse (the Sutherland evidence).
[5] Exhibit 5.
The Sutherland evidence, contended that Dr Johnson’s approach to ascertaining the land over which the water of a watercourse normally flows permanently or intermittently in a natural channel failed to properly identify the channel which contained the maximum non flood flow i.e. the flow beyond which water leaves the channel and floods adjoining land. This point the report identified as “bankful discharge point” said to be a “widely recognised hydrological description of the location and extent of a river channel”. According to this evidence “bankful” can be identified by a number of visual indicators set out in Exhibit 5. These indicated Dr Johnson had not correctly identified the banks of the river channel. The landform of the land provided ample evidence where the bed and banks finished. The Sutherland evidence appeared to dismiss the utility of determining from fairly extensive records a flow which may be regarded as a normal flow. It maintained it was necessary to focus attention on the land over which the water normally flowed, the channel and the boundary of the channel with the flood plain. These things may be determined by the “bankful discharge point” which in turn may be determined by the landform.
It was difficult to pin down why “bankful” and “bankful discharge” should define the land over which waters normally (emphasis added) flowed excluding flood. According to Dr Johnson the bankful discharge “defines the extent of flow where the sediment transport within the reach of the river is maximised. --- The bankful discharge by its own definition must include floodwaters because under non flood conditions there is virtually no sediment transport occurring within this river at this location. So the bankful discharge corresponds in most literature to a recurrence interval of about one and a half years and that’s consistently used in descriptions of Australian conditions”. He went on to refer to a research paper by Williams (apparently the source of some of the material in the Sutherland evidence) considered to be the “seminal paper on bankful discharge issues” where the point is made that bankful discharge depends upon what is defined as bankful. Williams noted that previous researchers had defined bankful conditions in eleven different ways none related to the other and came up with significantly varying estimates of bankful depending on which method was chosen. Williams noted that vegetation was a poor index of bankful discharge. He did not use it. Rather he relied upon only two methods, “elevation of the active flood plain and the height of the valley flat which are to do predominantly with defining that part of the flood plain which is considered to move actively under flood flow conditions”.
In support of the Sutherland evidence, counsel for the respondent submitted that the determination of whether land is part of the bed of a river is a question of fact informed by all the material circumstances including fluctuations to which the river has been and is subject, the nature of the land, the character of the soil and vegetation as produced by the pressure and action of water. In making that submission he called in aid the judgement of Romer J in Hindson v Ashby (1896) 1 Ch 78. In that case the common law rule ad medium filum aquae, abolished many years ago by the water legislation in Queensland, applied. Romer J was called upon to decide whether the plaintiff or defendant was entitled to a piece of land on the margin of the Thames River which at one time had been in the bed of the river but regarding which it was said the river had receded. Romer J said that whether any particular land was or was not part of the bed of a river at a particular time and place was a question of fact to be determined “by regarding all the material circumstances of the case including the fluctuations to which the river has been and is subject, the nature of the land and its growth and its uses”.[6] He referred with approval to a passage in a judgement in the Supreme Court of the United States, Howard v Ingersoll where Curtis J had said that the line dividing the bed from the banks can be found by examining the bed and banks and “ascertaining where the presence and action of water are so common and usual and so long continued in ordinary years as to mark upon the soil of the bed a character distinct from that of the banks, in respect to vegetation, as well as in respect to the nature of the soil itself”. He submitted the appellant’s approach failed to have regard to all the material circumstances, rather, adopted a hard and fast approach, a Q3 month criterion.
[6] At 84.
It is no doubt correct that the question is one of fact to be determined by regarding all the material circumstances. The question is the normal flow. The matter must be approached in the terms of the Act and in the light of the evidence. I think the submission not supportable. Rather than a hard and fast approach, the appellant’s approach was to make use of the extensive flow data fortuitously available as a reliable source from which to interpret normal flow.
When all the evidence is considered the Sutherland evidence does not in my opinion establish that the bankful discharge point, however that may be determined, is the determinant of normal flow of the river. Since it is necessary to decide where the river normally flows I consider the evidence establishing this is more reliably informed by the work done by Dr Johnson. The gauging station records provided extensive long term data from which, by using accepted hydrological engineering tools, could be estimated the height in AHD of the river level on average overtopped less and significantly less than 5 times a year. It seems to me on the evidence that it should be concluded that the bed and banks of the river in which water normally flows in a natural channel should be determined to be that part of the channel presently containing water up to AHD 84.5.
The question should be answered; the land to the extent it is above AHD 84.5 is not within the jurisdiction of the respondent.
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