Kearney v Chief Executive, Primary Industries Corporation
[1994] QLC 35
•25 July 1994
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BRISBANE
25 JULY 1994
Re: Appeal under Section 4.26
of the Water Resources Act 1989
(A93-63)PJ Kearney and BJ Kearney
v.
Chief Executive, Primary Industries Corporation(Hearing at Dalby)
D E C I S I O N
Messrs PJ and BJ Kearney are the owners of land described as Lot 49 on RP 36505, Parish of Isaac; Lot 1 on RP 36508, Lot 1 on RP 44053, Lot 17 on RP 36505 and Lot 18 on RP 169465, Parish of Watts, Lot 3 on RP 169463 and Lot 1 on RP 36537, Parish of Westbrook, County of Aubigny. The property is located on Oakey Creek approximately 3.5 kilometres south-west of the Town of Oakey. By letter dated 6th August, 1993, the owners appealed under the provisions of section 4.26 of the Water Resources Act 1989, against the decision of the Chief Executive, Primary Industries Corporation, to impose terms on the granting of Waterworks Licence No. G-45566. This licence was granted on 6th July 1993 for the use of a 65 mm centrifigual pump to irrigate 12 hectares of grain and fodder crops, and expires on 30th June 2003.
The licence was issued subject to the terms endorsed upon an attached schedule which included term 5.052 which reads as follows:"This licence is a Group B licence issued in accordance with the Operating Guidelines Gowrie-Oakey Creeks August 1991. At times when restrictions are imposed by the Commissioner on the diversion of water from Oakey Creek, or when voluntary restrictions have been recommended by the Oakey Creek Water Advisory Committee, the restrictions to which diversion under the authority of this licence shall be subject, shall be the restrictions announced for Group B licences."
Evidence in this matter was given by Mr. BJ Kearney, one of the owners, Mr CG Joseph, Deputy Chairman of the Oakey Creek Water Advisory Board, and Mr RW Robson, Senior Technical Officer, Water Resources Business Unit of the Department of Primary Industries. Most of the background to this matter was provided in the report tendered by Mr Robson.
The owners initially sought to irrigate from Oakey Creek in August 1971. However, the application was refused by the then Commissioner for Irrigation and Water Supply on the grounds that the available surface water in Oakey Creek was fully committed to existing licences. A further application was made in August 1973 and this resulted in the issue of Waterworks Licence No. 28766 in November 1974. This licence authorised a 65 mm centrifugal pump to irrigate 12 hectares and was subject to the following special condition:"Pumping under the authority of this licence is prohibited whenever restrictions are imposed on pumping for irrigation purposes from Oakey Creek. At such time the licensees will have to rely upon alternative supplies for irrigation purposes."
The issue of a licence depended upon the establishment of an alternative water supply for use at times when pumping was prohibited under the special condition.
This licence was renewed in 1977, 1980, 1983, 1986 and 1989, with the same special condition retained at each renewal until the 1989 renewal when it was replaced by term 1.020 which read as follows:"Pumping under the authority of this licence is prohibited whenever restrictions are imposed by the Commissioner on pumping from the watercourse, lake or spring on which the licensed works is authorised to be installed, or voluntary restrictions on irrigation have been recommended, by the Water Advisory Board in whose area the watercourse, lake or spring is located."
In the meantime the owners had made application No. 45566 in 1986 by which they sought to amend the terms of their existing licence, converting it from a conditional licence to an unconditional one. An objection to that application was lodged by Mr DJ Brennan, a nearby landowner and licensee. Consideration of that application was deferred with the licensees' consent, pending a full review of the Oakey Creek system.
The licensees sought further renewal of licence No. 28766 upon its expiry in June 1992. However, as application No. 45566 was yet to be determined, licence No. 28766 was not renewed. In July 1993, Waterworks Licence 45566 issued, subject to conditions which included term 5.052. The owners then appealed to the Land Court against those terms.
The owners' appeal states as follows:"Our grounds for appeal are against the terms of the licence.
When we first applied, approximately twenty odd years ago, we were informed there was insufficient water, in the Gowrie/Oakey Creek system.
In the interim period, we are of the belief an extra 40 licences have been granted.
We feel aggrieved by the Commissioner's decision, because plenty of time has passed and having applied on different occasions, to no avail, we feel justified in taking this matter to the Land Court."
The grounds of appeal were clarified in a letter sent to the Water Resources Toowoomba Office dated 4th August, 1993. This letter stated that the owners were of the opinion that licensees issued with conditional licences many years ago would automatically be issued with unconditional licences. However, they had heard that numerous conditional licences had been granted. They were of the opinion that with the development of Toowoomba and the extra volume of water in the system since they first applied for their licence, they should be granted an unconditional licence. They added that in their opinion the Group B or conditional licences are absolutely useless and not of any benefit.
Section 4.26 of the Water Resources Act 1989 provides that an appellant shall be bound by his grounds of appeal. However, the respondent appears to accept that the appellants' letter of 4th August, 1993 should be read with the letter of appeal in order to clarify the somewhat vague grounds contained therein.
The Gowrie/Oakey Creek system is some 120 kilometres long and comprises three principal creeks, Gowrie Creek from Toowoomba City to its confluence with Westbrook Creek, Westbrook Creek from Gowrie Creek downstream to its confluence with Oakey Creek and Oakey Creek from Westbrook Creek downstream to its confluence with the Condamine River. The base flow for the system is maintained by continuous effluent release into Gowrie Creek from the Toowoomba City Council's sewage treatment plant. This flow is supported by ground-water leakage and by storm run-off. The average flow into the system from these sources is approximately 45 megalitres per day, although this may fall to 20 megalitres per day in adverse seasonal conditions. The residual flow discharges from the downstream end of the system into the Condamine River.
Irrigation commenced on the Gowrie-Oakey Creek system in the 1950s with escalating demand for licences through the 1960s. This potentially overcommitted the system and no unconditional licences were issued after 1970. Licences thereafter issued subject to a condition which prohibited pumping whenever irrigation restrictions were imposed. The licence issued to the owners in 1974 was a conditional licence, and contained the special condition which later became term 1.020.
The respondent claims that this differential licensing system provided a licence priority which maximised irrigation access during periods of favourable flow, while protecting and preserving the historical entitlements at times of deficit in supply. This licensing approach continued until the late 1980s when a comprehensive system review was initiated. At the commencement of the review, the area licensed to irrigation on the system totalled 883 hectares, which comprised 599 hectares under unconditional licences and 284 hectares under conditional licences. The review was undertaken because of changing circumstances, which included the steady increase in conditional licences over the previous 20 years and concerns about use of water in excess of entitlements. There was also an increase in the base supply with increased release from the sewage treatment plant resulting from the growth of the City of Toowoomba.
Mr BJ Kearney gave evidence that he and his brother have owned their property, "The Pinnacle", since 1965. They first made inquiries of the then Irrigation and Water Supply Commission and were told that the stream was fully committed. Their formal application in 1971 was refused on the grounds that the available surface water supplies in Oakey Creek were fully allocated to the existing licensees.
A further application in 1974 resulted in them being granted a conditional licence. At that time, Mr Kearney said, they were given an undertaking by Mr Bruce Culliford of the Commission's Toowoomba Office that if they accepted the conditional licence, in the future when water became available, they would be given favourable consideration for an unconditional licence. Therefore, they decided to take the conditional licence and not appeal to the Land Court, as they expected it to be upgraded in the near future.
Mr Kearney said that between 1974 and 1986 the appellants had noticed an increase in the flow of water as the City of Toowoomba grew. In 1986 they again applied for an unconditional licence but this time they were told by Mr Rex Morey, an officer of the Commission, that if their application was dealt with then it would have to be refused. However, Mr Morey said that a review was being undertaken and that if they waited for the result of that review, they had a good chance of obtaining an unconditional licence. On that basis the appellants agreed to await the outcome.
This review took five years to complete and Mr Kearney said that the appellants were amazed when they were then given a Group B (or conditional) licence. During that five years, he said, there was plenty of water in Oakey Creek. However, he thought that in drier times people were cheating and were pumping more water than they were entitled to.
Mr Kearney tendered a list of waterworks licences on the Gowrie, Westbrook and Oakey Creek system which he obtained from the Water Resources Toowoomba Office in March 1994. This list shows that the last unconditional licences were granted in 1969 and from then on only conditional licences were granted. The Department's records show the only exception was in the case of AH and C Coles, who were granted an unconditional licence as a consequence of a successful appeal to the Land Court in December 1973.
Mr Kearney said that he considers the Group B (or conditional) licence is of little use because when they are allowed to pump water from the creek the conditions are such that they do not need to. However, in a dry time, restrictions are imposed prohibiting the Group B licensees from pumping, while the Group A licensees can continue to pump. Mr Kearney did not think that the downstream unconditional licence holders would suffer if the appellants were granted an unconditional licence. He thinks they suffer because people upstream are using more water than their licences allow.
Mr RW Robson gave evidence that as Senior Technical Officer in the Water Resources Toowoomba Office, his duties included the issue of licences and licence conditions. Following the review in the late 1980s, revised licensing arrangements were introduced in 1992 which provide for an ongoing differential licensing and management approach, but in a more relaxed form than previously. The former unconditional licences are now identified as Group A licences, while the previous conditional licences are identified as Group B licences. The Group A licences are essentially unchanged from the previous unconditional ones. However, the Group B licences have been released from the former special condition (later term 1.020) which attached to conditional licences, which prohibited pumping during any period of pumping restriction. They are now subject to term 5.052 as quoted above.
These new arrangements upgrade the status of conditional licences by providing some access during periods of pumping restrictions. However, there is a difference, as the restrictions applicable to Group B licences are more severe. These arrangements are intended to bring the conditional licences closer to the unconditional licences, while providing for circumstances which would arise if the supply should fail to increase or if it decreases. For example, if the Toowoomba City Council should adopt an alternative effluent disposal strategy.
Mr Robson said that consideration was given to the option of converting some or all of the conditional licences to unconditional licences. However, this was rejected because of the need to protect the historical rights of the unconditional licensees, riparian owners and permittees, in circumstances of unknown future supply in adverse seasons. In addition, it would have been necessary to determine a cut-off date as not all conditional licences could be converted. Other strategies were put in place which were intended to control the use of water in excess of licence entitlements, so that access by individual licensees generally, and Group B licensees in particular, is protected.
The appellants' application in July 1986, sought to convert licence 28766 from conditional to unconditional status. Mr Robson said that this application was considered in 1992-93 on the basis of the system review, taking into account the particular points raised by the applicants to support their case for conversion.
Mr Robson was aware that there was an expectation, not only by the appellants but by other conditional licence holders, that their conditional licences would be upgraded to unconditional licences. He said that two unconditional licences dropped out of the system, but that did not create the opportunity for additional unconditional licences to be issued because they had not used the system since 1969. However, he admitted that further conditional licences had been issued.
Mr Robson did not know that the Kearneys gave up their right to appeal because of an undertaking by a Commission officer that they would get an unconditional licence in the future. There was no record to that effect on the file. He said that there were at least 10 other conditional licensees seeking to upgrade their licences. If undertakings had been given by Mr Culliford and Mr Morey, they had been made without the benefit of a study of the hydrology of the system. Furthermore, there was no documentary proof that these undertakings had been given.
Mr Robson agreed that there had been further Group B licences issued since the review. He rejected Mr Kearney's argument that instead of granting these Group B licences, the longest held conditional licences should have been upgraded to Group A licences. He said that the review had shown that there was a large amount of opportunity water in the system at times, which allowed the granting of more Group B licences. The restrictions imposed did not allow these additional licences to further stress the critical base flow in bad times. However, any further Group A licences issued would, at times, prejudice the supply to riparian landowners, and those depending on the water for stock and domestic purposes, as well as the historical unconditional licensees.
The evidence shows that irrigation pumping restrictions have been applied frequently over the past two years and that Group B pumping has been banned for a significant part of the restriction period. Mr Robson provided a summary for the period from August 1992:Period of restricted pumping opportunity - Group A: 65 weeks
- Group B: 26 weeks
Period of pumping ban - Group A: 6 weeks
- Group B: 45 weeks
Period of unrestricted opportunity: 20 weeks
The recent drought which is the worst on record has resulted in reduced stream flow available in the system and an intensified demand for irrigation water.
Records from the Department's Gauging Station at Cranley, on the western outskirts of Toowoomba, show that the natural inflow to the system was 75 per cent of average in 1992, falling to 40 per cent of average in 1993. Flow during some summer months was as low as 25 per cent of monthly average, the lowest on record.
Mr Robson concluded that the system would have been stressed regardless of the issue of conditional licences since 1970 and the approval of additional Group B licences. Group A licences have been restricted to an unprecedented extent and it was unacceptable to introduce another Group A entitlement.
Mr CG Joseph, Deputy Chairman of the Oakey Creek Water Advisory Board, gave evidence that he is the holder of Group A and Group B licences on the Oakey Creek system, well downstream from the appellants' property. Mr Joseph said that in dry times water was not getting to the landowners at the lower end of the system who depend on the creek water for domestic and stock purposes, as well as for irrigation. When this happens restrictions are imposed. Mr Joseph said that if another Group A licence was issued, there would be less water downstream, so that restrictions would be imposed sooner and it would take the stream longer to recover. In February this year, it took 14 days before water got through the system and people in his area were carting water for domestic purposes. He said that on many occasions in the last three years, existing Group A licensees had no water and, prior to the last rain, he had gone for up to a month without pumping. Even with the growth of Toowoomba, the effluent does not seem to get through the system in a dry time.
While he was not aware of water use in excess of entitlements, Mr Joseph agreed that this could be occurring and would be difficult to police. He said that the Board endeavours to get water to the last property on the creek on a priority basis, first for domestic purposes, second for stock purposes, and third and last, for irrigation.
I turn now to consider the effect of this evidence in this appeal. It is clear that where an application such as the one made by the appellants is received, and an objection has been lodged, the Chief Executive is required by section 4.18 of the Water Resources Act 1989, to inquire into the availability and sufficiency of water to supply the requirements of, and the effect that the granting of the application will have or is likely to have on the entitlements of, riparian owners, licensees and permittees. The evidence given by Mr Robson, backed up by the evidence of Mr Joseph, clearly indicates that the issue of an additional Group A licence would, on the balance of probabilities, have an adverse effect upon the entitlements of riparian owners, permittees and the existing unconditional licensees.
There is no substance in the appellants' argument that because they have held a conditional licence since 1974 it should be upgraded to a Group A licence. There is no proof of the undertakings allegedly given by Mr Culliford and Mr Morey and the appellants may well have misunderstood what these people said. In any case, if such undertakings were given, they appear to have been given without authority.
Similarly, I find no merit in the appellants' argument that instead of granting additional Group B licences following the review, the respondent should have upgraded the earlier conditional licences to Group A licences. The evidence shows that had the respondent done so, additional stress would be placed on the system in dry times, thereby adversely affecting the downstream riparian owners, permittees and licensees. The granting of the additional Group B licences allows such licensees to pump from the system when there is water available, but when restrictions are imposed they are prohibited from having further effect on the system.
The policy adopted by the respondents' predecessors has been consistent since the granting of unconditional licences ceased in 1970. The only exception was the granting of an unconditional licence following an appeal to the Land Court: AH and C Coles v. The Commissioner of Irrigation and Water Supply, 20 December 1973, (not reported). However, that case was decided on the basis of the evidence before the Court on that occasion, which is not relevant in this case. The Coles' application was made in 1972 and the evidence was confined to Westbrook Creek. Since then there has been a comprehensive review of the whole system.
The appellants had an expectation for many years that they would, if they waited patiently, receive an unconditional licence. However, the evidence clearly shows that there has never been any legal foundation for that expectation. To grant a further Group A licence at this time would be not only contrary to a policy adopted since 1970, it would be contrary to the requirements of section 4.18 of the Act and also contrary to the principles of good administration. Therefore, the appeal must fail.
Accordingly, the appeal is dismissed and the decision of the Chief Executive to issue Waterworks Licence G-45566 subject to the conditions set out in the Schedule of Terms, is affirmed.
J J TRICKETT
MEMBER OF THE LAND COURT
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