Kearney v Chief Executive, Primary Industries Corporation - [1994] QLC 35

[1994] QLC 35

LAND COURT

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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kearney v Chief Executive, Primary Industries Corporation

Details

AGLC: Kearney v Chief Executive, Primary Industries Corporation [1994] QLC 35
Case: [1994] QLC 35
Decision Date: 25 July 1994

CaseChat Overview and Summary

The Land Court of Queensland heard an appeal by PJ and BJ Kearney against the Chief Executive, Primary Industries Corporation, regarding the terms imposed on the granting of Waterworks Licence No. G-45566 for irrigation purposes on Oakey Creek. The Kearneys, owners of several lots of land in the Parish of Isaac, Parish of Watts, and Parish of Westbrook, sought to challenge the conditions attached to the licence, particularly term 5.052, which restricted their pumping activities during times of water restrictions.

The central legal issue was whether the Chief Executive was justified in imposing the terms on the licence, particularly in light of the Kearneys' long-standing conditional licence and their belief that they were promised an unconditional licence in the future. The Kearneys argued that the issuance of additional conditional licences was unjust, especially considering the growth of Toowoomba and the increased water flow in Oakey Creek.

The Court examined the historical context of water licensing on the Gowrie-Oakey Creek system, noting that after 1970, only conditional licences were issued due to overcommitment of available water. The Kearneys had initially applied for a licence in 1971 but were refused. They were eventually granted a conditional licence in 1974 with an understanding that it would be upgraded in the future. However, despite waiting for over two decades and witnessing an increase in water flow, they were instead issued with another conditional licence in 1993.

The Court found that while the Kearneys had an expectation that their conditional licence would be upgraded, there was no legal basis for such an expectation. The Chief Executive's decision to impose the terms on the licence was in line with the Water Resources Act 1989 and aimed at protecting historical water entitlements and ensuring equitable water distribution among all licence holders. The issuance of additional conditional licences was deemed necessary to manage water usage without overstressing the system, especially during dry periods.

The Court dismissed the appeal, affirming the Chief Executive's decision to issue Waterworks Licence G-45566 subject to the specified conditions. The reasoning was based on the need to balance the rights of all water users and to adhere to the established policy of protecting existing entitlements while managing new licensing requests prudently.

Orders