Kearney v Chief Executive, Primary Industries Corporation

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.