Lawlor v Chief Executive, Department of Natural Resources
[1997] QLC 60
•9 May 1997
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Re: Appeals against decisions to refuse application for Waterworks Licences
LAND COURT BRISBANE 9 MAY 1997
- Water Resources Act 1989 Section 51 (A96-16 and A96-17)
Raymond William Lawlor v.
Chief Executive, Department of Natural Resources (Hearing at Kingaroy)
D E C I S I O N
Introduction
These are two appeals by Mr RW Lawlor under Section 51(1)(a) of the Water Resources Act 1989 ("the Act"), against the decisions of the respondent Chief Executive refusing applications for waterworks licences No. 59023 on Scrubby Creek and No. 59024 on Wide Bay Creek in the vicinity of the town of Kilkivan. Mr Lawlor is the owner, or one of the owners, of lot
1 on RP 25326, Parish of Kilkivan, containing an area of approximately 173 hectares and of lot 107 on Plan 371247, Parish of Kilkivan, containing an area of approximately 125.3 hectares. These two parcels of land are part of an aggregation in the Kilkivan district owned by Mr Lawlor and his family.
On 12 December 1994, Mr Lawlor applied for two waterworks licences. Application No. 59023 was an application to irrigate six hectares on Lot 1 on RP 25326, by means of a 40 mm centrifugal pump on Scrubby Creek. Application No. 59024 was an application to irrigate 12 hectares on Lot 107 on Plan 371247, by means of an 80 mm centrifugal pump on Wide Bay Creek.
Both applications were advertised in the "Gympie Times" on
17 December 1994. Valid objections were received from nearby landowners, four in respect of the first application and seven, including the Kilkivan Shire Council, in respect of the second application.
In accordance with Section 43 of the Act, the respondent Chief Executive caused an inquiry to be made into each application. Following those investigations and having regard to the concerns expressed by the objectors, the Chief Executive
refused Application 59023 and decided to issue a licence for a
50 mm centrifugal pump to irrigate an area of four hectares in respect of Application 59024. Mr Lawlor was issued waterworks licence No. G-59024 on 8 March 1996.
Mr Lawlor was advised of the Chief Executive's decisions by letter dated 21 March 1996. On 19 April 1996, Mr Lawlor appealed to the Land Court against the Chief Executive's decisions.
Mr Lawlor was represented by Mr PGC Kuskie, Solicitor, and also gave evidence. Mr BS Green and Mr N Fitzgerald also gave evidence for the appellant. The respondent was represented by Mr RJ Byrnes, of Counsel, instructed by the Crown Solicitor, and Mr RKP Watson and Mr MN Perry, both from the Gympie office of the Department of Natural Resources, gave evidence for the respondent.
Background
Wide Bay Creek is a tributary of the Mary River, with its source near Goomeri, flowing in a generally eastward direction to join the Mary River to the east of Woolooga. Approximately half way along its length it passes the town of Kilkivan, just to the west of which the Department of Natural Resources has a gauging station to measure surface flow and in the vicinity of which water is drawn to supply the town of Kilkivan. Just to the west of Kilkivan the creek is crossed by Running Creek Road and somewhat to the east of that it is joined by a tributary running in from the north-west called Scrubby Creek.
Downstream of the Scrubby Creek junction, the creek is joined by a number of other major tributaries.
The evidence has established that in most years there is minimal to nil flow in the creek. The section of the creek between its source and Running Creek Road is heavily committed with numerous waterworks licences and pumping restrictions are often in force. That section of the creek includes the gauging station and the Kilkivan Shire Council water supply.
The section of the creek between Running Creek Road and the mouth of Scrubby Creek is a relatively short section of creek, apparently less committed, which has been subject to restrictions on only two occasions in the last 20 years. There is some evidence that the section of the creek is self- regulating, because in drier times the lack of water regulates
the amount that can be pumped. Downstream of the mouth of Scrubby Creek, Wide Bay Creek improves considerably, with large deep waterholes. No pumping restrictions have been applied to that section of the creek.
In about 1966, the Wide Bay Creek and Tributaries Water Advisory Committee was established. (I note that Section 19 of the present Act empowers the Minister to establish such advisory committees and sets out their functions.) Although its functions are advisory ones, this committee provides a liaison between the community and the department and makes recommendations to the Chief Executive's representatives in respect of the administration of the Act.
The Chairman of the Wide Bay Creek and Tributaries Water Advisory Committee is Mr RKP Watson, a Senior Technical Officer (Stream Management), employed by the Department of Natural Resources. Mr Watson explained that his position as Chairman was mainly a formal one. He chairs the annual general meeting, while the day-to-day business of the committee is left to the Deputy Chairman, Mr Noel Fitzgerald. Mr Watson said that the Department relies heavily on such committees. Among other things, they report on the state of the streams and recommend the imposition of pumping restrictions.
Mr Watson said that as early as the mid-1970s, because the section of Wide Bay Creek between the gauging station and the mouth of Scrubby Creek was so heavily committed, the advisory committee had recommended that no more licences should be issued on that section of the creek.
The Chief Executive's Powers In the case of the Gympie office, delegated his powers with regard the to Chief Executive has waterworks licence
applications to Mr Edwin Miller, the District Manager. However, both Mr Watson and Mr MN Perry, another Senior Technical Officer (Stream Management), employed by the Department of Natural Resources Gympie, are authorised officers under the Act for the purposes of making investigations, inquiries and inspections.
In the present cases, Mr Perry conducted the inquiries, made the physical inspections and interviewed the objectors. Mr Watson's part in the inquiry seems to have been confined to also interviewing the objectors. At the conclusion of the
inquiries, Mr Perry made his recommendations to Mr Miller who, acting on behalf of the Chief Executive, made the decisions in respect of the two applications.
In both cases Mr Watson recommended against the issuing of any licences.
The Conduct of the Appeals
There is animosity and ill-feeling between some of the landowners/irrigators on Wide Bay Creek. This is apparent on the face of Mr Lawlor's affidavit, in which he has made a number of allegations. One such allegation is that some members of the advisory committee at the relevant time had belonged to a faction of landowners opposed to Mr Lawlor. The implication was that the committee was biased when it recommended against his applications for waterworks licences.
Mr Lawlor also made a number of allegations against the committee and against individual landowners, some of whom were not represented at the hearing. I do not propose to deal with all of those allegations, except where they are material to these matters. It is sufficient to say that except for those that were conceded by the various witnesses, none of the allegations made by Mr Lawlor were corroborated. In any case, most of them seemed to be motivated more by local disputes than by any bearing they might have on the outcome of these appeals. In some cases, the allegations were irrelevant to any of the matters which the Chief Executive should have taken into account in arriving at his decisions on these applications.
They are also irrelevant to any matters which this Court might consider in these appeals.
Two of the objectors, Mr Brian Green and Mr Noel Fitzgerald, both of whom were accused by Mr Lawlor of being in the faction opposed to him, were subpoenaed by Mr Lawlor to give evidence. During the hearing the allegations made by Mr Lawlor were put to each of them and, as far as I could discern, they responded truthfully. In the absence of any corroboration of Mr Lawlor's allegations against them, I accept their evidence.
Application No. 59023 - Scrubby Creek
Mr Lawlor gave evidence that in the early 1960s he operated a dairy on a property of 930 acres and irrigated eight hectares of lucerne and clover from Scrubby Creek. When he
ceased dairying, he no longer required irrigation. The licence was not used for some time until he was advised by a departmental officer, whose name he could not remember, that the licence should be relinquished. He claimed that the officer told him that there would be no difficulty in reinstating the licence should he require it at a later date. On the basis of that representation, Mr Lawlor said, he relinquished the licence.
Mr Lawlor claimed that he irrigated from Scrubby Creek for a period of approximately seven years and during that time there was adequate water in the holes in the creek. In dry years, he would irrigate in the evening until the holes were dry and next morning the holes were always full. He contended that the level of water in the holes in Scrubby Creek is spring fed and does not reflect the flow of the creek, which he claimed is excellent and more than enough to provide for the small amount of irrigation for which he was seeking a licence.
Although Mr Lawlor applied for a six hectare licence using a 40 mm centrifugal pump, during the hearing he said that he required only a three hectare licence. He believed that he could irrigate that area of land without interfering with the water available to the only downstream riparian owner, Mr Brian Green.
Mr Green owns a property adjoining and downstream of Mr Lawlor's property. He objected to the granting of the licence on the ground that there was insufficient supply in Scrubby Creek and that any irrigation upstream would put great pressure on his domestic and stock water supply from the creek, which he said was only just supplying current needs. Mr Green has a four hectare licence to irrigate from Scrubby Creek, which he calls an "opportunity licence". He said that he has been unable to irrigate for some years because of lack of supply.
Mr Lawlor claimed there was ample water in Scrubby Creek and the holes out of which he wanted to irrigate are permanent and have never been dry. In attempting to refute Mr Green's claim that there was insufficient water in the creek, Mr Lawlor alleged that Mr Green pumped large quantities of water from Scrubby Creek by means of a well, located in the creek bed, which he used to irrigate several acres of garden and had in the past used to supply a large piggery and large feedlot. He
went further, alleging that Mr Green had operated the feedlot illegally for some time. It was approved for less than 50 head of cattle and Mr Lawlor said that in September 1993, Mr Green had over 300 head (in oral evidence he said about 180 head) in the feedlot.
Scrubby Creek is a tributary of Wide Bay Creek, several kilometres in length, upon which are several waterworks structures. In its upper reaches on a tributary of Scrubby Creek on a property also belonging to Mr Brian Green, an unlicensed small dam has been constructed. The evidence was inconclusive as to whether that dam required a licence. On a property upstream of the appellant's property, owned by KA and DW Warren, there are two waterworks licences, one for a 0.5 metre concrete weir and another for a 40 mm centrifugal pump to irrigate four hectares. There was no evidence as to whether, or how frequently, that irrigation licence was used.
Located downstream of the appellant's property (and separated from it by Running Creek Road), is the property owned by Mr Green upon which is the waterworks licence, previously mentioned, for a 40 mm centrifugal pump to irrigate four hectares and for stock and domestic supplies.
Mr Green is the last riparian owner, as Scrubby Creek joins Wide Bay Creek near his south-eastern boundary. That is opposite the north-eastern boundary of Mr Lawlor's Lot 107. Wide Bay Creek forms the boundary between Mr Green's property and Lot 107.
The other objectors to the granting of the licence on Scrubby Creek, Mr Noel Fitzgerald on behalf of the Water Advisory Committee, Mr Ian Fitzgerald, on behalf of Fitzgerald
& Company, and BA and DA Bambling, reflected the concern felt by many landowners/irrigators about the state of the creek system generally and contained no specific detail about Scrubby Creek.
The Respondent's Witnesses
In giving evidence on behalf of the respondent, Mr Watson produced three photographs of Scrubby Creek, which were taken only the week before the hearing from the Running Creek Road bridge. They showed Scrubby Creek upstream and downstream of the road crossing. However, apart from showing that there was no flow in Scrubby Creek at that location at that time, they
were of little assistance. They showed nothing of the state of the waterhole from which Mr Lawlor sought to pump.
Mr Watson described Scrubby Creek as essentially a stock water creek, but he conceded that he had little knowledge of the creek. He had not been responsible for the investigation of either application by Mr Lawlor. Apart from his evidence in relation to the Wide Bay Creek and Tributaries Water Advisory Committee and his opposition to the granting of any further licences on the whole creek system, Mr Watson's evidence in relation to the Scrubby Creek application did not advance the matter.
Mr Perry was the officer responsible for the investigation of the two applications by Mr Lawlor. His findings in respect of his inquiry into the application on Scrubby Creek were detailed in his statement of evidence. He described the proposed pump site as a small waterhole approximately 20 metres long and up to five metres wide. Mr Lawlor had told Mr Perry that the presence of a spring ensured that the waterhole remained at or near maximum capacity, even during dry periods.
Mr Perry estimated the capacity of the waterhole at 75,000 litres or 0.075 megalitres.
At the time of Mr Perry's inspection, there was no surface flow in Scrubby Creek and it appeared to him that there had been no recent flow. The cross sectional dimensions of the creek downstream of the proposed pump site suggested to him that base flows were at best minimal. He concluded that the base flow in Scrubby Creek was not sufficient to sustain any form of irrigation which had a reasonable degree of reliability. He felt that any diversion of water by Mr Lawlor from the small waterhole would affect the subsurface flow in the creek, thereby impacting on the availability of water on Mr Green's property. At four megalitres per hectare per year, irrigation of six hectares would equate to 24 megalitres annually.
Mr Green had advised Mr Perry that there was no surface flow in Scrubby Creek at his property and that the limited supplies available allowed him to use the water only for stock and domestic purposes. No irrigation was possible.
Mr Perry pointed out that it was not uncommon for landowners to construct dams on small creeks such as Scrubby
Creek under the authority of a licence and to use the water for irrigation purposes. That and the possibility of installing bores to provide an alternative supply, had been suggested to Mr Lawlor.
After investigating the matter and taking into account the concerns of the objectors, Mr Perry recommended to Mr Miller, the District Manager at Gympie, that the application should be refused. Mr Miller accepted that recommendation.
Mr Perry listed the reasons for the decision to refuse the licence as follows:
. The lack of surface flow at the pump site;
.The detrimental impact on the immediate downstream landowner;
.The presence of relatively small isolated waterholes in the stream bed which may provide an aquatic habitat;
.Such waterholes should not be used simply as a water storage to be exploited and left to recharge over a period of time;
.The proposed irrigation of six hectares would involve the diversion of some 24 megalitres annually, which is simply not available;
.The irrigation of even one hectare would have a significant detrimental effect on the waterhole and creek system.
Mr Green's Evidence
In his letter of objection Mr Green had stated that "Any further pressure on this creek upstream would not only devalue our irrigation licence but also place great pressure on our domestic and stock water supply from this creek which at this date and with the drought continuing is only just supplying current needs."
In his oral evidence, Mr Green said that he had irrigated from Scrubby Creek for about two or three years in the late 1970s, but that the water was now only used for stock and domestic purposes. Mr Green admitted that he had once run a 30 sow piggery for some years and a small feedlot with a capacity of under 50 head. He denied that he had ever had larger numbers of cattle in the feedlot. He added that the feedlot had not been used for the last three or four years.
Mr Green stated that he pumped out of a waterhole in
Scrubby Creek and not out of a well located in the creek bed, as alleged by Mr Lawlor. He admitted that there was a dam on a tributary of Scrubby Creek on a property which he owned upstream of Mr Lawlor's property, but denied that the dam affected the flow in Scrubby Creek.
In response to Mr Lawlor's contention that if a licence on Scrubby Creek was granted, the irrigation would not interfere with the water available to him, Mr Green said that he had been unable to irrigate out of Scrubby Creek for 10 to 15 years and that any irrigation upstream would definitely have an effect on the water available.
Application No. 59024 - Wide Bay Creek
Mr Lawlor's affidavit stated that his lot 107 had 2.5 kilometres frontage to Wide Bay Creek, where the waterholes were "superb", being up to 15 to 20 feet deep and several hundred metres long. Even through the drought there was surface flow in the creek for 12 months of the year.
Although he had applied for an 80 mm pump, Mr Lawlor said that a 50 mm pump would be quite sufficient. He gave details of a number of irrigation licences which were upstream of his property and which he alleged, licensees seldom if ever use. He also gave details of three irrigation licences downstream of his property, one of which had recently been increased from 16 hectares to 20 hectares. He also made allegations about the illegal use of water.
The Entitlement of Mr Green
In support of his application, Mr Lawlor claimed that the section of the creek out of which he was seeking to irrigate, had such an exceptional amount of water available that there had not been any restrictions on irrigation imposed on that section, nor downstream, for the last 20 years. However, Mr Fitzgerald gave evidence that because of the lack of irrigation water to adequately supply Mr Green's 12 hectare licence on the opposite side of Wide Bay Creek, pumping restrictions had been imposed between Running Creek Road and the mouth of Scrubby Creek, limiting pumping to 10 hours per day for five days per week. However, Mr Perry said that there were no pumping restrictions at Mr Lawlor's proposed pump site. All witnesses agreed that no restrictions had been imposed on the creek downstream from the mouth of Scrubby Creek.
Mr Brian Green gave evidence that his family had objected to the application on the ground that there was insufficient water in the creek for them to irrigate their 12 hectares located directly across the creek from where Mr Lawlor sought to pump. In his evidence he explained how he irrigated until the water level fell below the foot valve of the pump, when the pump sucked air. He regarded that section of the creek as "self-regulating."
Mr Lawlor contended that Mr Green's irrigation was not limited by supply of water, but by his equipment, which Mr Lawlor considered to be inadequate to properly irrigate the 12 hectares. Mr Green denied that, re-emphasising that lack of water forced him to halve the area irrigated so that it could be irrigated properly.
Mr Lawlor claimed that it was not economic to set up an irrigation plant to irrigate the four hectares for which he had been granted the licence. He conceded however, that if all the licences currently in existence on Wide Bay Creek were utilised simultaneously, water supplies would be placed under great pressure. He did not see why he should be denied his licence on that chance, while he claimed that over 100 acres of licences had not been utilised in the last 20 years.
It emerged in evidence that the waterhole from which Mr Lawlor would pump is a different waterhole, and downstream of, the one from which Mr Green pumps. Mr Green admitted that when he objected to the granting of the licence, he did not know just where the pump was to be. He conceded that a pump situated downstream would have less effect than a pump situated upstream. However, he maintained his concern about the pressure already placed on that section of the creek and the depletion of the aquifer.
Mr Fitzgerald's Objection
Mr Fitzgerald's family are riparian landowners with about four and a half miles of creek frontage and holding three irrigation licences downstream of Lot 107. The objection lodged by Mr Ian Fitzgerald on the family's behalf was to the effect that Wide Bay Creek was fully committed and any further licences would have a detrimental effect on the already limited supplies of water.
In his oral evidence Mr Noel Fitzgerald said that his
objection was lodged in his capacity as Deputy Chairman of the Wide Bay Creek and Tributaries Water Advisory Committee and not as an individual person aggrieved. He said that he had lodged the objection after contacting members of the committee.
In giving his evidence, Mr Fitzgerald said:
"I'm very concerned with the creek ... I've seen a great deterioration in it ... Something has to be done to steadying the issue of licences ... Maybe it's unfortunate that Mr Lawlor has applied for his licence at this time when ... this should have been happening
15 years ago."
Speaking on the effect on his family's property, Mr Fitzgerald said that the granting of the licence would not affect their irrigation capacity, because the creek picks up major tributaries within their property. However, he thought that it would probably affect people between their property and the proposed pump site. He went on to say that his main concern was that Mr Lawlor would be irrigating opposite, or within a few hundred yards of, Mr Green's existing licence and would probably have a deleterious effect on it and on the creek.
The Respondent's Witnesses
Mr Watson's attitude to the granting of this licence was clear and uncompromising. In his opinion no further licences should be granted on that stretch of Wide Bay Creek. Mr Watson produced a number of photographs of Wide Bay Creek, both well upstream and well downstream of the proposed pump site. There were no photographs of the waterhole from which Mr Lawlor intended to pump. The closest photograph was taken where Running Creek Road crosses the creek, some distance upstream of Lot 107. Apart from establishing that there was no flow in the creek at that time, and the state of the creek at the locations of the photographs, they were of little assistance in this case. Mr Watson admitted that the creek had varying flows at different places and from Scrubby Creek downstream, the supply started to improve.
Other licences had been issued just downstream of that area in recent years contrary to Mr Watson's suggestions and, he said, contrary to the views of many of the committee members. He had recommended against the issue of the four hectare licence to Mr Lawlor.
As stated previously, Mr Watson's part in the inquiry into
the application seems to have been limited to speaking to the objectors, while Mr Perry carried out the inspections and the inquiry. Mr Watson said that while the delegated decision- maker always sought the views of the water advisory committee in respect of applications, on occasions those views were overridden.
Both Mr Watson and Mr Perry admitted that there were irrigation licences on Wide Bay Creek that were not being beneficially used. However, they felt that even if a beneficial use review was carried out and the Chief Executive cancelled some licences, those allocations would not necessarily be reallocated to others. Mr Perry thought that it would make no difference to his recommendation, because of the drought and the present state of the creek. He went on to say that more recently the department was concerned about environmental flows and that a stream should no longer be considered to be simply an irrigation supply.
Mr Perry said that he had taken into account the views of the water advisory committee. He had met with the objectors in the latter part of 1995. Mr Fitzgerald had been there as a representative of the committee.
As a result of his inquiry, Mr Perry came to the conclusion that the relevant section of Wide Bay Creek was not over-committed and that there was scope for granting a licence for up to four hectares of irrigation. When questioned about
his reasoning, he gave this answer:
"What I considered was that Mr Lawlor had a property on the creek. It had areas that could be irrigated. I felt that ... maybe the creek is not over-committed, but it's very close to fully committed. I felt there was possibly some scope for irrigation there."
In his findings as a result of his inquiry Mr Perry made a number of
points, including:
. The property has approximately 2 kilometres of creek frontage with areas suitable for irrigation;
. There are several waterholes adjacent to the property, the preferred pump site being on a wide, long waterhole which has silted up over recent years, thereby reducing its capacity.
However, he produced no calculations and gave no other reasons for arriving at four hectares, other than stating that surface flow changes through different sections of the creek and that at the time of his inspection there was minimal surface flow in the creek. He referred to the records from the stream gauging station located 7 kilimetres upstream. He also placed great emphasis on the views of the advisory committee.
The Duty of the Chief Executive
Under Section 43 of the Act, the Chief Executive in circumstances such as the present, must cause inquiry to be made into the availability and sufficiency of water to supply the requirements of (among others) riparian owners, licensees, permitees and the applicant. In addition, the Chief Executive must inquire into the effect that the granting of the application will have, or is likely to have, on the entitlements of riparian owners, licensees and permitees, and also, into any other matters or things the Chief Executive thinks fit.
In the case of Mr Lawlor's application on Scrubby Creek, the inquiry revealed that there was not sufficient flow in the creek to warrant the granting of a six hectare licence, or even the amended area of three hectares. On the evidence, I am satisfied that all matters required to be taken into account were taken into account.
I can have no regard to the alleged representation that the unidentified departmental officer may have made to Mr Lawlor in the 1960s. If such representation was made, it may well have been made without authority. In any case, it would not be binding on the Chief Executive, whose obligations are clearly set out in Section 43.
However, the position with respect to the application on Wide Bay Creek is somewhat different. The evidence reveals that there is a substantial number of irrigation licences on the creek, but it did not reveal which of those licences were beneficially used.
The evidence also indicates that for irrigation purposes
the creek can be classified into three sections:
.First, from its source to Running Creek Road crossing; a section which is over-committed and irrigation restrictions are often imposed;
. Second, from Running Creek Road crossing to
the mouth of Scrubby Creek; a section which is close to fully committed and upon which irrigation restrictions have been imposed for the last two years;
.Third, from the mouth of Scrubby Creek downstream; a section where there are major tributaries joining the creek and where no restrictions have ever been imposed.
It is clear that at least some of the objectors are concerned that if all licences were used simultaneously then there could be real problems with the supply. However, there is evidence that there are several, perhaps many, irrigation licences which are not beneficially used. No beneficial use review has been undertaken on Wide Bay Creek. If such a review were to be undertaken, such as those undertaken in other areas of the State, it is probable that at least some of those licences would be cancelled, or at least reduced.
However, both Mr Watson and Mr Perry expressed the view that this would not necessarily mean that irrigation entitlements would be reallocated to others. Such things as environmental flows and the integrity of the stream would need to be taken into account.
The matters that the Chief Executive must consider includes the sufficiency of water for other licensees. However, most of them are upstream of the proposed pump site. The only ones below it are in an area where it is agreed that there have been no pumping restrictions and which is not over- committed. Indeed, several licences have been granted in that section of the creek in recent years.
The licensee most affected would be Mr Green. However, when the evidence showed that the proposed pump site was downstream of Mr Green's pump and on a different waterhole, his concern was somewhat abated. In addition, the objection lodged by Mr Fitzgerald on behalf of the water advisory committee was by way of general concern for the creek. His concern about that particular pump site was in relation to the effect on Mr Green's supply.
I note also that the pump site is to be located no more than 300 metres upstream from the downstream property boundary. This would locate it close to, and opposite, the junction with Scrubby Creek, downstream from which, the witnesses agree, the
creek improves considerably.
Just what influenced Mr Perry to conclude that there was sufficient water to allow further irrigation of four hectares, or looked at another way, to allow the diversion of 16 megalitres per annum, was not revealed. His evidence in that regard lacked the specific detail which this Court has come to expect from the respondent's experts. There were no photographs of the waterhole at the proposed pump site, nor did he give evidence of the dimensions of the waterhole or its capacity, as he had with the Scrubby Creek application. There was no precise identification as to whether the pump site was upstream or downstream of the junction with Scrubby Creek and, apart from some records at the gauging station, which is well upstream of the pump site, there was no scientific evidence to support Mr Perry's recommendation. From the evidence, it is difficult to know just what did influence him to make his recommendation.
It is the function of the Corporation and of the Chief Executive to manage the water resources of the State. The Chief Executive must, with fairness and consistency, allocate the available irrigation water by means of a system of waterworks licences, which include water allocations. Where a licensee has received an allocation, but does not beneficially use it, then that allocation may be able to be used by another landowner. That is the reason that the beneficial use condition is inserted into waterworks licences.
In other areas of the State, the Chief Executive has conducted beneficial use reviews, calling upon those licensees who have not used, or have under-utilised, their allocations to show cause why their licences should not be cancelled or reduced. When licences are so cancelled or reduced, the Chief Executive must then consider if that water will be reallocated to other applicants, or perhaps preserved for environmental purposes or to maintain the integrity of the stream.
In dealing with the provisions of the Water Act 1926, the predecessor to the present Water Resources Act, Member of the Land Court, Mr S Dodds, in Shooter v. The Commissioner of
Irrigationand Water Supply (1972) 39 CLLR 11, said at p.19: "Then, what a licensee gets under the Act is only a license for a period. At the end of that period he must apply for renewal and the Act, as amended in 1964, clearly shows that renewal is not as of right. The Commissioner has many alternatives to renewal, and
must consider the application to see if any of the alternatives should be applied. One of the alternatives is refusal of the license and others are reduction in amount of water or in the amount of land irrigated. ... Here the words are plain and unambiguous and the Commissioner's duty when considering an application for renewal of a license is clear. It is true that there seems to be no right of objection to a renewal application, but I think the Statute plainly enough requires the Commissioner to consider all alternatives in the light of all requirements on the stream at date of renewal, including applicants desiring a share of the water. To do otherwise, to adopt the view that a licensee, once he constructs his licensed work, obtains a vested interest which should only be interfered with if he misuses it or is guilty of misconduct, so that he can regard his license as something he can expect to be renewed as of right is again to put the clock back and revive the mischiefs in the repealed Act which the present Act set out to cure."
This passage was quoted in Moir v. The Commissioner of Water Resources
(1992) 14 QLCR 125, a decision of the then Member (later President) of
the Land Court, Mr DM White. In that case Mr White pointed out at pp.
129-130:
"Historically, a condition to that effect is contained in licences. The condition in the licences, the subject of this appeal, reads as follows -
`2.200AThe licensee, after installing the bore, shall to the satisfaction of the Commissioner beneficially use the water which is entitled to be withdrawn under this licence.'
It follows under the scheme of legislation that if a licence is not beneficially used it will surely be amended or die, in which event the water will be allocated elsewhere; for example, to a new irrigator."
In this case no beneficial use review has been undertaken, despite the evidence of little or no use of a number of irrigation licences. However, even if such a review was undertaken on Wide Bay Creek, it would not necessarily result in Mr Lawlor being allocated a 12 hectare licence from the cancelled or reduced licences. Other factors would need to be taken into account.
Mr Watson was firmly of the opinion that no further licences should be granted. His concern and that of the water advisory committee are understandable. However, Mr Watson did not conduct the inquiry and both Mr Perry and Mr Miller disagreed, and saw fit to grant a four hectare licence.
Burden of proof
Section 51(9) of the Act provides that the burden of proof of a ground stated in the notice of appeal lies on the appellant.
In dealing with the burden of proof in Leake & Others v.
The Chief
Executive, Department of Natural Resources, 19 July 1996 (not yet reported), the Land Court (Mr CF Wall Q.C.) said:
"Such a provision, in my view, requires that the appellant establish on the balance of probabilities the facts or contentions alleged in the ground of appeal and that success in doing so should also lead to the resolution of the appeal in favour of the appellant. An evidentiary, but not a legal, burden is placed on the respondent to rebut the appellant's case. At the end of the day, however, the burden remains on the appellant to establish on the balance of probabilities that the appeal should succeed for the reasons relied upon in the ground(s) of appeal.
In Van Den Heuvel -v- The Commissioner of Irrigation and Water Supply
(1970) 37 CLLR 162 at 164, the Land Court (Mr. W.F.G. Smith)
said:-
`The Water Act casts the onus in appeals upon the appellant but once he meets that onus by presenting a case to answer, it behoves the Commissioner to furnish a reasonable and adequate reply.'
Mr Smith, at p. 165, also used the words `a satisfactory reply'. In my view, this merely expresses in different words what I have said.
In Shooter & Ors. -v- The Commissioner of Irrigation and Water Supply (1972) CLLR 11 at 18, the Land Court (Mr S. Dodds) said in relation to the Water Act predecessor of Section 43
that such a provision is concerned -
`... with ensuring that each applicant (sic) is fully considered, with the balances held fairly, and adjusted equitably as between the applicant and other riparian owners who may be affected.'
I do not take this statement to be dealing with the burden of proof, but more with the obligation cast upon the Respondent
in considering an
application such as the present. In burden of proof terms, it would be encumbent upon an appellant by his ground or grounds of appeal, to establish that the respondent did not fairly balance the competing claims and adjust them equitably; in other words, that the respondent did not properly make the inquiry required by Section 43.
In dealing with the burden of proof, Mr Dodds said at p.20:-
`I do not intend to set out in full the various grounds of appeal of the different appellants, but I intend merely to consider them in each case against the Commissioner's ground of refusal. If any ground of appeal satisfies me on the balances that that ground is not sustainable, then the appeal will succeed.'
I do not understand this to be any different to the approach I have
suggested should be taken.
In Dimes & Anor. -v- Commissioner of Irrigation and Water
Supply (1972) 39 CLLR 29, the Land Court (Mr W.F.G Smith) said at p.31 with reference to the repealed Act:-
`The Commissioner's right, pursuant to the Water Acts, to the use and flow and to the control, of water in watercourses is by Section 4(2) subject to certain conditions, one of which is the rights of the holders of licenses granted under the Water Acts - vide Section 4(2)(c). This limitation upon his powers, in my opinion, has the effect of casting upon the Commissioner the onus to rebut allegations made by appellants relative to infringement of their rights under existing licenses."
I do not think that Mr Smith was talking about anything other than an evidentiary onus upon the Commissioner in circumstances where an appellant has first established a ground of appeal."
Conclusion
Having regard to the whole of the evidence in the present case, I am not satisfied that Mr Perry had regard to all relevant considerations. On the other hand, he may well have given undue weight to the objectors, most of whose allocations were unlikely to be affected. I am not convinced that objectors who are well upstream would be affected by the pumping from a downstream waterhole, except perhaps Mr Green. On the evidence of Mr Fitzgerald, the downstream objectors would be unlikely to be affected.
I have come to the conclusion that Mr Lawlor has proved his grounds of appeal in part and that Wide Bay Creek is adequate to support an allocation at the proposed pump site of more than four hectares. However, he has not proved that it was sufficient to support 12 hectares. Indeed, on the evidence of Mr Green, which I accept, just upstream of that waterhole, the stream will supply sufficient for only six hectares, and that has been on restrictions for two years.
In the circumstances, I feel that the appellant should be granted a licence to pump sufficient water to irrigate six hectares. Such licence would be subject to such restrictions from time to time in force for the section of the creek where his pump site is situated.
I note the present Waterworks Licence No. G-59024 expires on 30 June 1997. Should Mr Lawlor apply for a renewal of that licence, the Chief Executive will have the opportunity to reconsider the matter having regard to the issues which have been raised in this appeal, in addition to those which the Act requires.
Orders
In the case of Appeal A96-17, in respect of Waterworks Application No. 59023 on Scrubby Creek, the appeal is dismissed and the decision of the respondent is confirmed.
In the case of Appeal A96-16, in respect of Waterworks Application No. 59024 on Wide Bay Creek, the appeal is allowed and Waterworks Licence No. G-59024 is varied to allow the area irrigated to be six hectares and the licence term 1.053B to be varied so that the maximum annual diversion of water from the stream authorised by that licence shall not exceed 24 megalitres.
COURT
JJ TRICKETT PRESIDENT OF THE LAND
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