| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : RIGHTS IN WATER AND IRRIGATION ACT 1914 (WA) CITATION : KIRWAN and DEPARTMENT OF WATER [2011] WASAT 137 MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT) HEARD : 21 AND 22 JUNE 2011 DELIVERED : 29 AUGUST 2011 FILE NO/S : DR 24 of 2011 BETWEEN : ANTHONY KEVIN KIRWAN JACOBA KIRWAN
Applicants
AND
DEPARTMENT OF WATER
Respondent
FILE NO/S : DR 47 of 2011 BETWEEN : CORNELIA SUTCLIFFE Applicant
AND
DEPARTMENT OF WATER
Respondent
(Page 2)
Catchwords: Water resources - Amendment of licenses to take water by reducing amount that can be taken - Carnarvon horticultural area - Lower Gascoyne Alluvial aquifer - Subarea A of Gascoyne Groundwater Area - Water resource in Subarea A siginificantly overallocated - Lower Gascoyne River Groundwater Management Strategy (2004)- Strategy to reduce overallocation of water resource - Strategy states that 'licenses that utilise less than their annual entitlement over the next 7 years will have their entitlement reviewed by the end of the seventh year' and 'entitlement reductions will generally equal 50% of the difference between the licensed entitlement and the average of the highest three annual metered draws over the 7 years' - Applicants purchased properties and acquired water licenses in 2007 - Whether, on proper interpretation of Strategy, seven year period for assessment commenced in 2004 or on applicants' purchase - Whether there is a cogent reason to depart from the Strategy in the circumstances of the case - Sustainable allocation of water resources Legislation: Rights in Water Irrigation Act 1914 (WA), s 4(1), s 4(3), S 26GG(1)(e), s 26GY, Sch 1, cl 24
State Administrative Tribunal Act 2004 (WA), s 27, s 51(1)(b) Result: Decisions to amend licenses to take water by reducing quantity to 18,000 kL per annum (Instrument No GWL15475(5)) and to 26,000 kL (Instrument No GWL46347(5)) affirmed Category: B
Representation: DR 24 of 2011 Counsel:
Applicants : Self-represented
Respondent : Ms R Young with Ms BA Allen
(Page 3)
Solicitors:
Applicants : N/A
Respondent : State Solicitor's Office
DR 47 of 2011 Counsel:
Applicant : Self-represented and represented by Mr H Sutcliffe (Agent)
Respondent : Ms R Young with Ms BM Allen
Solicitors:
Applicant : N/A
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
More and Water and Rivers Commission [2006] WASAT 112
(Page 4)
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 In 2007, Mr and Mrs Kirwan and a company of which Mrs Sutcliffe is a principal purchased separate plantation properties in Carnarvon. The former owners of the properties each held a license to take groundwater with an annual water entitlement of 36,000 kL. Following the purchases, equivalent licenses were granted to Mr and Mrs Kirwan and to the company until 31 December 2010. 2 The relevant water resource was significantly overallocated above the sustainable yield of the aquifer, thereby potentially increasing salinity and depleting the resource. In order to achieve equitable allocation and sustainable use of groundwater in the long term, a Strategy was developed and commenced on 1 January 2004 for the management of the resource. The Strategy stated that 'licenses that utilise less than their annual entitlement over the next 7 years will have their entitlement reviewed by the end of the seventh year' and '[e]ntitlement reductions will generally equal 50% of the difference between the licensed entitlement and the average of the highest three annual metered draws over the 7 years'. 3 In December 2010, the Department of Water reviewed the annual entitlement of the licenses granted to Mr and Mrs Kirwan and to the company, together with all other licenses to take groundwater in the relevant area, and reduced the annual entitlements of Mr and Mrs Kirwan from 36,000 kL to 18,000 kL and the company from 36,000 kL to 26,000 kL. The Department of Water cancelled one other license and reduced the entitlements under all the other licenses. The net effect of these decisions was to more than half the level of overallocation of the resource, from approximately 175% to approximately 137% of the sustainable yield of the aquifer. 4 Mr and Mrs Kirwan and Mrs Sutcliffe each sought review by the Tribunal of the decisions to reduce their water entitlements. The Tribunal determined that the decisions involved the correct application of the Strategy and, in particular, that the Strategy referred to a specific and uniform seven year period for assessment of water use, namely, 2004 2010, irrespective of when a plantation property was purchased. The Tribunal also determined that there were no cogent reasons to depart from the application of the Strategy in the circumstances of these cases. 5 The decisions of the Department of Water were therefore affirmed. (Page 5)
Strategy for the sustainable allocation of groundwater resources in Carnarvon 6 The western portion of the lower Gascoyne River catchment, which is located to the northeast of the Town of Carnarvon, approximately 900 kilometres north of Perth, comprises a humid 'niche' climate zone within an otherwise extremely dry environment. The 'niche' climate zone is created by moist air being funnelled from the Indian Ocean into the Gascoyne River channel. The 'niche' climate zone is confined to an approximately 15 kilometre stretch of the river east from approximately five kilometres above the river mouth. The combination of the 'niche' climate zone and the availability of fresh groundwater from the Lower Gascoyne River Alluvial Aquifer System, which is recharged when the river is in flow, has created an area that is particularly conducive to horticulture and began to be used for this purpose in the late 1920s. 7 Historic patterns of groundwater within the Lower Gascoyne River Alluvial Aquifer System have resulted in the system being divided into groundwater management areas defined as Subarea A and Subareas BL. The humid 'niche' climate zone occupies Subarea A and the extreme western portion of Subareas BL. Subarea A provides water for the irrigation of the majority of plantations within the Carnarvon area through private production bores. Subareas BL consists of a bore field extending east from 19 kilometres above the river mouth to Rocky Pool, approximately 54 kilometres above the river mouth, and is arbitrarily divided into 10 basins. Subareas BL is utilised by the Water Corporation under a license from the Department of Water (Department) to provide for town water supply and scheme irrigation water distributed to plantations in Subarea A by the Gascoyne Water Cooperative (Cooperative). 8 Increasing fresh fruit and vegetable demand, driven largely by the growth of Perth, diversification away from bananas and mangoes to crops such as tomatoes, grapes and melons, and consequent longer growing seasons, resulted in increasing water requirements for the plantations in Subarea A. By 2004, 176 licenses, with total licensed entitlements of 10,890 ML per year, had been issued by the Water and Rivers Commission (Commission) to landowners to take water for horticultural purposes from the aquifer in Subarea A. However, the sustainable Allocation Limit of groundwater in Sub area A was determined by the Commission to be only 5,800 ML per year. Although the maximum annual usage of groundwater actually recorded in Subarea A was only 5,943 ML (in 1999 2000), by 2004, the licensed annual entitlements for (Page 6)
groundwater in Subarea A exceeded the sustainable Allocation Limit by 88%. 9 As Mr Lazarus Leonhard, the Department's Senior Regional Hydrogeologist, Midwest Gascoyne Region, explained in evidence: … If all the … ground water license allocations were fully utilised [,] the Gascoyne River alluvial aquifer system within Subarea A would be severely impacted through prolonged periods of no river flow. This impact would be observed in numerous private production bores as increasing salinity exceeding 1,000 mg (L) and a decrease in supply with depletion of the resource in many areas. 10 Section 26GY of the Rights in Water and Irrigation Act 1914 (WA) (RiWI Act) authorises the making of local area management plans to 'guide the management by the Minister of water resources in the area or areas to which it applies'. In January 2004, a management plan was made pursuant to s 26GY of the RiWI Act to guide the management of the aquifer in Subarea A and Subareas BL which was entitled Managing Groundwater Resources of the Lower Gascoyne River (Carnarvon)WA, Ground Water Management Strategy (Strategy). The Strategy took effect on 1 January 2004 to align with the Water Accounting Year: cl 1.3, page 9. 11 The Strategy was the 'first comprehensive Strategy to be developed for the management of groundwater resources of the Carnarvon Area': Strategy at page 9. The Strategy stated at page 2 as follows: The current licensed allocation is beyond the estimated Sustainable Yield for [Subarea A]. This situation is addressed in the Strategy through entitlement reductions resulting from an inability to extract saline groundwater (salinity trigger) and the removal of inactive allocations. 12 The stated purpose of the Strategy at page 12 was: … to ensure that the groundwater resources of the Lower Gascoyne River are allocated equitably and used sustainably in the long term for the benefit of the Carnarvon community, taking into consideration the inherent social, economic and environmental impacts of such usage. 13 Specifically in relation to unused allocations in Subarea A, the Strategy contained the following statement in cl 5.3.8 at page 45: The [Subarea A] licensees that utilise less than their annual allocation over the next 7 years will have the allocation reviewed at the end of the seventh year. In most circumstances the allocation reduction will equal 50% of the difference between the licensed entitlement and the average of (Page 7)
the highest three annual metered draw[s] (excluding unrestricted pumping periods) over the 7 years. This action will target and reduce the amount of unused entitlements. In determining entitlement reductions, the Commission will take into consideration factors such as drought, extended unrestricted pumping periods, water conservation (or wastage) practices and compliance history. 14 The 'management provisions' in relation to unused allocations in Subarea A are in the following terms in cl 5.3.8.1 at page 46 of the Strategy: This part relates to the amendment of licenses under cl 24(2)(d) of Schedule 1 of the [RiWI] Act. a) [SubArea A] licenses that utilise less than their annual entitlement over the next 7 years will have their entitlement reviewed by the end of the seventh year. b) Entitlement reductions will generally equal 50% of the difference between the licensed entitlement and the average of the highest three annual metered draws over the 7 years. c) Entitlement reductions that do not equal 50% of the difference between the licensed entitlement and the average of the highest three annual metered draw[s] (excluding unrestricted pumping periods) over the 7 years, will be referred to [the Carnarvon Water Allocation Advisory Committee] for advice. 15 By 2010, the number of licenses issued by the Department (which had replaced the Commission as the delegate of the Minister under the RiWI Act) to landowners in Subarea A to take and use water for horticultural purposes had been reduced from 176 to 157 and the total licensed allocation had been reduced from 10,890 ML per year to 10,690 ML per year. Mr Leonhard explained that, based on 'the best science available at this point in time', including an improved conceptual model for the Gascoyne River system and an 80% risk factor (meaning that eight years out of 10 years the aquifer could sustain the allocation), which reflects both 'best practice' and 'general agreement across the [plantation] community in [Carnarvon]', the sustainable yield of the aquifer in Subarea A is now considered to be 6,100 ML per year. Therefore, in 2010, the licensed entitlements in Subarea A exceeded the sustainable yield of the aquifer by approximately 75%. 16 Clause 24 of Sch 1 of the RiWI Act states, in part, as follows: (1) The Minister may, subject to this clause and clause 26, by notice in writing given to the licensee (Page 8)
(a) vary the duration of a licence; (b) vary, add to or remove any term, condition or restriction included in the licence; or (c) include any new term, condition or restriction in the licence. (2) The Minister may only exercise a power described in subclause (1) in relation to a licence if 17 As foreshadowed in cl 5.8.3.1 of the Strategy, at the end of the seventh year referred to in the Strategy, namely 2010, the Department reviewed the entitlements under each of the 157 licenses to take water for horticultural purposes in Subarea A. The Department cancelled one license and, applying the formula set out in cl 5.3.8.1(b) of the Strategy, amended the other 156 licenses by reducing the annual water entitlement under each. By the amendment of the licenses in accordance with the Strategy, the Department has more than halved the overallocation of the water resource above the sustainable yield of 6,100 ML per year in Subarea A, from approximately 175% to approximately 137% of the sustainable yield.
Applications for review 18 These proceedings involve applications brought by Mr Anthony Kirwan and Mrs Jacoba Kirwan (DR 24 of 2011) and by Mrs Cornelia Sutcliffe (DR 47 of 2011), pursuant to s 26GG(1)(e) of the RiWI Act, for review of the decisions of the Department to amend licenses to take water from the aquifer in Subarea A for horticultural purposes as part of the review of licenses referred to in the preceding paragraph. 19 In January 2007, Mr and Mrs Kirwan purchased a plantation property at Lot 117, North River Road, North Plantations (Kirwan property). On 19 April 2007, the Commission granted a license to Mr and Mrs Kirwan until 31 December 2010 to take water from the aquifer in Subarea A for horticultural purposes on the Kirwan property, specifying an annual water entitlement of 36,000 kL, which was the water entitlement under the license issued by the Commission in relation to the Kirwan property since 2004. (Page 9)
20 In November 2007, Allknight Corporation Pty Ltd (Allknight), of which Mrs Sutcliffe is the principal, purchased a plantation property at Lot 72 South River Road, South Plantations (Sutcliffe property). On 28 May 2008, the Commission granted a license to Allknight until 31 December 2010 to take water from the aquifer in Subarea A, specifying an annual water entitlement of 36,000 kL, which was the annual water entitlement under the license issued by the Commission in relation to the Sutcliffe property since 2004. 21 On 17 December 2010, the Department, as the delegate of the Minister, made decisions to amend the licenses to take water in relation to the Kirwan property and the Sutcliffe property, reducing the annual water entitlement under each license. The Department issued a license to take water to Mr and Mrs Kirwan for the period from 1 January 2011 to 31 March 2014, specifying an annual water entitlement of 18,000 kL (Instrument No GWL154715(5)). The Department issued a license to take water to Allknight for the period from 1 January 2011 to 31 March 2014, specifying an annual water entitlement of 26 000kL (Instrument No GWL46347(5)). 22 The proceedings brought by Mr and Mrs Kirwan and Mrs Sutcliffe remained separate, but were heard and determined together, pursuant to s 51(1)(b) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), in Carnarvon. The Tribunal also directed that evidence in one proceeding was evidence in the other proceeding.
Scope of review proceedings 23 Mr and Mrs Kirwan and Mr and Mrs Sutcliffe (Mr Henry Sutcliffe represented Mrs Sutcliffe as her agent) each sought to challenge the decisionmaking processes and practices of the Department. However, the Tribunal does not have jurisdiction to undertake judicial review or an Ombudsmantype enquiry in relation to the decisionmaking of by the Department. Rather, the nature of review proceedings in the Tribunal is apparent from the terms of s 27 of the SAT Act, which states as follows: (Page 10)
(3) The reasons for decision provided by the decisionmaker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision.
What is the correct application of the Strategy? 24 The decisions which are the subject of these proceedings were made by the Department by applying the management provisions in cl 5.3.8.1 of the Strategy in respect of the level of utilisation of annual water entitlements under the licenses for the Kirwan and Sutcliffe properties over the seven year period between 2004 and 2010. No water was taken from the aquifer under the license to take water issued in respect of the Kirwan property between 2004 and 2010. Accordingly, applying the formula in cl 5.3.8.1 of the Strategy, the Department reduced the annual water entitlement by 50% of the difference between the licensed entitlement between 2004 and 2010 (36,000 kL) and the average of the highest three annual metered draws over the seven years (namely, zero), that is, by 18,000 kL, to an annual water entitlement of 18,000 kL. 25 In relation to the Sutcliffe property, water was taken from the aquifer under the license in 2004, 2005, 2006, 2009 and 2010. The average of the highest three annual metered draws over the seven year period between 2004 and 2010, namely the draws in 2004, 2005 and 2010, was approximately 16,000 kL. Applying the formula in cl 5.3.8.1 of the Strategy, the Department reduced the annual water entitlement in relation to the Sutcliffe property by 50% of the difference between the licensed entitlement between 2004 and 2010 (36,000 kL) and the average of the highest three annual metered draws over the seven year period (16,000 kL), that is, by 10,000 kL, to an annual water entitlement of 26,000 kL. 26 Mr and Mrs Kirwan argued that, under the Strategy, the level of water extraction under the license issued in respect of the property prior to their purchase in January 2007 should not be applied to them. However, for reasons which follow, on its proper interpretation, cl 5.3.8.1 of the Strategy refers to a specific and uniform seven year period, namely the period between 2004 and 2010, inclusive. Consequently, the management provisions require assessment of the level of water usage under a licence between 2004 and 2010, irrespective of whether a property changed hands during this period. 27 As Ms R Young, who appeared with Ms BA Allen on behalf of the Department, submitted, there are a number of strong textual (Page 11)
indications in cl 5.3.8.1 of the Strategy that the management provisions apply in relation to metered draws over this specific and uniform seven year period. First, para a) refers to Subarea A 'licenses that utilise less than their annual entitlement over the next 7 years' (emphasis in bold added), rather than to 'licensees'. Secondly, para a) refers to 'annual entitlement over the next 7 years' (emphasis in bold added). As noted earlier, the Strategy took effect on 1 January 2004 to align with the Water Accounting Year. The reference to 'the next 7 years' can only mean the seven year period commencing on 1 January 2004. Thirdly, para a) states that the review of the annual entitlement in relation to Subarea A licenses will take place 'by the end of the seventh year' (emphasis in bold added). The reference to 'the seventh year', in the context of the earlier words 'the next 7 years' (commencing on 1 January 2004), can only refer to the review taking place by the end of 2010. Fourthly, the use of the definite article 'the' in the expression 'the 7 years' (emphasis in bold added) in para b) and para c) clearly indicates that the management provisions apply in respect of the specific and uniform seven year period between 2004 and 2010. 28 A purposive interpretation of cl 5.3.8.1 of the Strategy arrives at the same conclusion. As noted earlier, the purpose of the Strategy is 'to ensure that the groundwater resources of the Lower Gascoyne River are allocated equitably and used sustainably in the long term for the benefit of the Carnarvon community, taking into consideration the inherent social, economic and environmental impacts of such usage'. The objectives of achieving equitable allocation and sustainable use of the underground water resource in Subarea A would be impaired without the adoption of a specific and uniform period at the end of which usage over the preceding seven years is to be reviewed. 29 As Mr Adam Maskew, an environmental scientist and the Department's Acting MidwestGascoyne Regional Manager, said in evidence, 'the 7 years' referred to in cl 5.3.8.1 of the Strategy 'really means 2004 2010' and was chosen because 'there would be some good water years [and some] bad water years' and 'to allow some expansion of the properties' during the period. As Ms Young also emphasised in her submissions, the application of the Strategy to a specific seven year period 'takes on board changes in ownership, climate and usage'. It would be contrary to the objective of allocating water equitably to apply the Strategy differentially depending on whether, and if so when, a property changed hands, because climatic and other environmental factors may vary between different seven year periods. (Page 12)
30 Furthermore, the objective of ensuring that the groundwater resources in Subarea A are used sustainably in the long term for the benefit of the Carnarvon community would be impaired by deferring the review of annual entitlements in relation to properties that changed hands between 2004 and 2010 until the conclusion of a seven year period of ownership by the new owner. As noted earlier, the level of overallocation of the underground water resource in Subarea A was approximately 188% prior to the commencement of the Strategy and was approximately 175% in 2010. As recognised in the Strategy, there was a critical need to reduce the level of overallocation and to bring the total licensed allocation onto a more sustainable footing, to mitigate the potential for salinity and depletion of the resource, and thereby promote the long term viability of the horticultural industry in Carnarvon. 31 It follows that the Department correctly applied the Strategy in relation to each of the decisions which are the subject of review.
Should the Strategy be departed from in the circumstances of either of these cases? 32 In More and Water and Rivers Commission [2006] WASAT 112, the Tribunal observed and held, at [33] [36], as follows: (Page 13)
application, especially if the policy is shown to have been exposed to parliamentary scrutiny. In another passage earlier on the same page, his Honour explained what would be a cogent reason for not applying a general policy. If it were shown that the application of ministerial policy would work an injustice in a particular case, a cogent reason would be shown, for consistency is not preferable to justice. Brennan J's approach is applicable to the role of this Tribunal determining this case, where the discretionary power to licence the taking and use of water and the power to make a general policy are vested in the Commission. The Tribunal will apply the Policy unless the applicant can show cogent reasons for not accepting the Policy or for not applying it to his case. A similar approach has been adopted in relation to non-statutory policies in the application of town planning controls: see Clive Elliott Jennings and Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 at [24]. 33 Mr and Mrs Kirwan and Mr and Mrs Sutcliffe presented, collectively, essentially seven arguments as to why cl 5.3.8.1 should not be applied strictly, but rather with some flexibility, in their cases, with the result that their original annual water entitlements of 36,000 kL should be returned. However, for reasons which follow, the Tribunal does not consider that any of these arguments demonstrate a cogent reason for departing from the Strategy in the circumstances of the cases the subject of these reviews. 34 First, both Mr and Mrs Kirwan and Mr and Mrs Sutcliffe argued that the Strategy should be departed from in their cases, because they have not had seven years in which to be able to extract water under their licenses and utilise their entitlements. As noted earlier, Mr and Mrs Kirwan purchased their property in January 2007 and Allknight purchased the Sutcliffe property in November 2007. Furthermore, the Kirwan property was tenanted until January 2009 under a preexisting lease and could not therefore be occupied and used by Mr and Mrs Kirwan until after that period. Mr and Mrs Kirwan submitted that 'the process has not been complete because the water use measurements have not taken into account our use but the use of previous owners and unsatisfactory lessees not initiated by us'. Similarly, Mr and Mrs Sutcliffe argued that: If the allocation process is going to be based on a plantation ['] s use over a seven year period so be it. But if the process has any chance of being seen as fair, just and being consistently applied [,] those seven years must have a degree of flexibility and take into account the normal ebbs and flows of a (Page 14)
community i.e. people get sick, old and properties go through a period of decline until new growers/owners take over and again bring these transitional properties into full production. To blindly apply a formulae [sic] over a fixed period and ignore the aforementioned social movements only brings the [D]epartment into disrepute [,] creates unnecessary angst in the community [and] polarises groups into those who have an inequitable share of a common resource be it more or less, than a fair share. 35 The Tribunal does not consider that the fact that Mr and Mrs Kirwan and Allknight purchased the properties during the seven year period referred to in cl 5.3.8.1 of the Strategy and that, consequently, neither Mr and Mrs Kirwan nor Mr and Mrs Sutcliffe had seven years in which to use annual water entitlements of 36,000 kL under the former licenses, is a cogent reason to depart from the application of the management provisions in cl 5.3.8.1 of the Strategy, for the following five reasons. 36 First, as found earlier, cl 5.3.8.1 of the Strategy prescribes a specific and uniform seven year period during which annual metered draws are to be assessed for the purposes of the review of annual entitlements. At the time when the Strategy took effect on 1 January 2004, it could be reasonably anticipated that properties with licenses to take water in Subarea A would change hands over the next seven years. Nevertheless, the management provisions prescribed a common seven year period for the purposes of the review and reduction of entitlements. 37 Secondly, the adoption of different seven year periods for different licensees would potentially not treat licensees equally and, therefore, fairly, as climatic and other environmental conditions may vary over different seven year periods. 38 Thirdly, the creation of new seven year periods in which to assess the utilisation of annual water entitlements following sales of plantation properties would lead to a potentially openended process in which the significant overallocation of the underground water resource in Subarea A could not be meaningfully addressed. 39 Fourthly, Mr Maskew gave evidence that about 50% to 60% of plantation properties in Subarea A changed hands during the seven year period between 2004 and 2010. If Mr and Mrs Kirwan's and Mr and Mrs Sutcliffe's argument in the present reviews were a cogent reason to depart from the strict application of the management provisions in cl 5.3.8.1 of the Strategy in these reviews, then it would be equally cogent in relation to a significant number of other cases, with the consequence that the purpose of the Strategy, to ensure that the groundwater resources (Page 15)
in the area are allocated equitably and used sustainably in the long term, would be significantly impaired. 40 Finally, the evidence indicates that the Department advised license holders of the management provisions in cl 5.3.8.1 of the Strategy in 2004 and subsequently, and, indeed, advised them of the potential consequence in terms of entitlement reductions having regard to their metered draws. While Mr and Mrs Kirwan and Allknight were not license holders until 2007 and 2008, respectively, given that water is a critical resource for plantations, Mr and Mrs Kirwan and Mr and Mrs Sutcliffe ought reasonably to have made enquiries of the Department prior to Mr and Mrs Kirwan's and Allknight's purchase of the properties as to whether the then current annual water entitlements were likely to be maintained after the expiry of the licenses in 2010. 41 Although Mr Kirwan had 30 years' experience as a horticulturalist, including 15 years managing his own property, he said in evidence that he was 'at that stage a bit naïve' and did not make this enquiry of the Department. Although Mr Sutcliffe gave evidence that his 'interest in horticulture goes back a long way', he conceded during the hearing that it was his 'fault' that he did not make enquiries of the Department. Having regard to the information provided by the Department to license holders in relation to the potential entitlement reductions based on metered usage, it is likely that, had reasonable enquiries been made by Mr and Mrs Kirwan and Mr and Mrs Sutcliffe prior to the purchase of the properties, the Department would have advised them of the potential entitlement reductions which have now occurred. 42 The second argument advanced by both Mr and Mrs Kirwan and Mr and Mrs Sutcliffe as to why the management provisions should not be applied strictly in the circumstances of their cases is that there was an extended period of 'no flow' in the river between April 2009 and December 2010. However, as Mr Maskew said, the seven year period from 2004 to 2010 was chosen because 'there would be some good water years [and some] bad water years'. Furthermore, the 'noflow' affected all licensees. 43 Thirdly, both Mr and Mrs Kirwan and Mr and Mrs Sutcliffe referred to significant flooding that occurred in Carnarvon in late 2010 and early 2011. However, the flooding occurred for only a short period out of the seven years referred to in the management provisions in cl 5.3.8.1 of the Strategy. The flooding also affected all licensees. (Page 16)
44 Fourthly, Mr and Mrs Kirwan argued that they have the qualifications, experience and means to develop their plantation successfully and that they need the former annual entitlement of 36,000 kL to create a viable enterprise. However, these factors do not provide a cogent reason to depart from the application of the Strategy in the circumstances of this case, because qualifications, experience and means are necessary for the development of any successful plantation. 45 Fifthly, Mr and Mrs Kirwan argued that the Strategy should be departed from in their case because they needed to undertake initial research and experimentation in terms of choice of crops, which they did with peaches and avocadoes, and because they installed a water tank, new pipes and new irrigation system. However, the management provisions in cl 5.3.8.1 of the Strategy, which involve an assessment in relation to water usage over a seven year period and, critically, the use of an average of the three highest annual metered draws, provides a sufficient period, as Mr Maskew said, 'to allow some expansion of the properties'. 46 Sixthly, Mr and Mrs Kirwan argued that they require 36,000 kL because they are aiming to supply a 'niche' market of peaches into Perth in September. However, Mr and Mrs Kirwan's business plan to supply this 'niche' market, with a consequent heightened need for water, is not a cogent reason to depart from the application of the Strategy which, as noted earlier, is intended to achieve the important public purposes of equitable allocation and sustainable use of groundwater resources in the long term for the benefit of the Carnarvon community. 47 Finally, Mr and Mrs Sutcliffe advanced an argument that there should be flexibility in the application of the Strategy in their case, because the former owner of the Sutcliffe property became ill during the seven year period referred to in cl 5.3.8.1 of the Strategy. A file note of the Department dated 17 January 2007 confirmed this. However, the seven year period prescribed by the Strategy is sufficient to take onboard such matters as changing health of owners and sale of properties. Furthermore, as Ms Young pointed out, two of the three highest annual metered draws over the seven years in the case of the Sutcliffe property occurred in 2004 and 2005, prior to the purchase of the property by Allknight.
What is the correct and preferable decision in these cases? 48 The correct and preferable decision in the circumstances of each of the applications for review is to amend the licenses by reducing the annual (Page 17)
water entitlements in accordance with the Strategy, for the following reasons. 49 First, s 4(3) of the RiWI Act obligates the Tribunal in these proceedings 'to seek to ensure that the objects stated in subsection (1) are achieved'. The objects stated in s 4(1) of the RiWI Act include: (a) to provide for the management of water resources, and in particular 50 Reduce the annual water entitlement for the Kirwan property and the Sutcliffe property is consistent with these objects, because it facilitates the purpose of the Strategy to ensure that the groundwater resources of the lower Gascoyne River are allocated equitably and used sustainably in the long term for the benefit of the Carnarvon community. The formula adopted in cl 5.3.8.1 of the Strategy is equitable, because it provides a substantial period of seven years in which to utilise annual entitlements under licenses, enables the averaging of the highest three annual metered draws over the seven year period (and, therefore, ignoring the majority of the period) and only reduces the entitlement generally by 50% of the difference between the licensed entitlement and the average of the highest three annual metered draws. Reducing the water entitlements involves 'the management of water resources … for their sustainable use and development to meet the needs of current and future users' by facilitating a reduction in the overallocation of the groundwater resource and therefore mitigating the potential for salinity and depletion of the aquifer. 51 Secondly, the Strategy took effect on 1 January 2004, was notified to license holders, was developed for sound environmental reasons to mitigate the significant overallocation of the resource, and has been consistently applied. 52 Thirdly, for reasons set out earlier, there are no cogent reasons to depart from the application of the Strategy in the circumstances of either case. (Page 18)
53 Finally, Mr and Mrs Kirwan and Mr and Mrs Sutcliffe have other potential sources of water available to them. First, condition 6 of each of the licenses states: The Department of Water may announce a period of unrestricted pumping during river flow events. Water passing through the meter during periods of unrestricted pumping will not be counted as part of the licensee's annual water entitlement. The bore or spear point must be registered with the Department prior to the unrestricted pumping being undertaken. 54 Mr Maskew explained that the Department's practice is to announce a period of unrestricted pumping when the river is in flow and it considers that the recharge of the aquifer is greater than the draw. This usually occurs for a twomonth period in approximately April and May each year. Therefore, the annual water entitlement usually applies for only 10 months of a year with two months being unrestricted. 55 Secondly, Mr and Mrs Kirwan and Mr and Mrs Sutcliffe may apply for water from the town water supply which consists of 1,800 ML from Subareas BL and a reserve of the same amount. Mr Kirwan conceded that it may be possible to obtain water from this source. It appears that the Sutcliffe property has had the benefit of 16,000 kL of town water per annum. 56 Finally, there is a cooperative water scheme consisting of 8,600 ML from Subareas BL managed by the Cooperative. Plantation properties have a minimum 5,000 kL per year allocation from that source that is nontradeable and plantation properties can apply for other allocations.
Conclusion 57 It follows that the applications for review brought by Mr and Mrs Kirwan and Mrs Sutcliffe should be dismissed and the decisions made by the Department to amend the licenses to take water from the aquifer in relation to the Kirwan property and the Sutcliffe property should be affirmed.
Orders 58 The Tribunal makes the following orders: (Page 19)
2. The decision made by the respondent on 17 December 2010 to amend the applicants' license to take 36,000 kL per annum of water from the Lower Gascoyne Alluvial Aquifer for horticultural purposes on Lot 117 North River Road, North Plantations on Plan No 202367 on Certificate of Title Volume 1562 Folio 580 by reducing the annual water entitlement to 18,000 kL per annum of water (Instrument No GWL154715(5)) is affirmed. Proceeding DR 47 of 2011 1. The application for review is dismissed. 2. The decision made by the respondent on 17 December 2010 to amend Allknight Corporation Pty Ltd's license to take 36,000 kL per annum of water from the Lower Gascoyne Alluvial Aquifer for horticultural purposes on Lot 72 South River Road, South Plantations on Plan No 202351 Certificate of Title Volume 1138 Folio 517 by reducing the annual water entitlement to 26,000 kL per annum of water (Instrument No GWL46347(5)) is affirmed. |