Leake v Chief Executive, Department of Natural Resources

[1996] QLC 96

[1996] QLC 96

 

  LAND COURT

BRISBANE

19 JULY 1996

In the matter of appeals against the decision of the Chief Executive, Department of Natural Resources in respect of a licence in the name of L. & P.A. Santini for Lot 1 on RP 38633, Parish of Beor. 

A95-43
  J.D & V. Leake
  V.
  Chief Executive, Department of Natural Resources

AND

A95-44
  J.W. & M.A. Scorse

V.
  Chief Executive, Department of Natural Resources

(Hearing at Townsville)

D E C I S I O N

Introduction

These are two appeals under Section 51 (1) (c) Water Resources Act 1989 (WRA) against the decision of the Respondent to amend Waterworks Licence No. G45031 issued to Mr. and Mrs. L. & P.A. Santini (the Applicants) in respect of certain works in Alligator Creek.
           The Appellants objected to this decision.  They are neighbouring but not adjoining landowners.  Mr. and Mrs. Leake and Mrs. Scorse are also holders of Waterworks Licences relating to Alligator Creek.
           The Applicants applied to become a party to the appeals and that application was granted.
           By consent, and because it was the preferable course, the appeals were heard together.
           Mr. J.D. Leake and Mr. J.W. Scorse acted for themselves on the appeals and both gave evidence.  Miss M. Meehan, Solicitor, appeared for the Applicants in each appeal and Mr. Santini also gave evidence for the Respondent. Mr. D. Grealy of Counsel instructed by the Crown Solicitor appeared for the Respondent in each appeal and Mr. Ian Boyce, a Senior Technical Officer (Groundwater Hydrology), Department of Natural Resources, Ayr District Office, was the main witness for the Respondent.
           On the fourth day of the hearing of the appeals, the Appellants abandoned so much of their appeals as relate to the use of a bore, spear or well for the supply of water for domestic purposes and the appeals will have to be dismissed, at least to that extent.
           Because of the issues involved and their possible ramifications, it is desirable that I mention in some detail the competing factual, legal and policy positions adopted by the parties.
           In these reasons, I will refer to Mr. and Mrs. Leake as the First Appellants and Mr. and Mrs. Scorse as the Second Appellants.

Alligator Creek

Alligator Creek is situated about 20 kilometres south-east of Townsville. It flows south to north from Mt. Elliott to the sea, a distance of 32 kilometres, with the first 12 kilometres falling steeply over rocky slopes.  It has a catchment area of 77 square kilometres.  Average annual rainfall for the catchment varies from 1300mm in the headwaters in the Mt. Elliott National Park to 1000mm on the coastal plain.  The section of stream of AMTD 21 kilometres to the tidal limit at 10.9 kilometres consists of a main channel approximately 30 metres wide along which is a series of waterholes, isolated by sand and rock bars.  There are terraces and flood plains on both banks.  Most development has occurred along this section and is in the nature of farmlets and rural residential.  The creek typically runs for the first half of the year as a result of summer rainfall and ceases to flow for periods during the drier second half of the year.  There have been two recent significant drought periods, 1982-1987 and 1992-1996, the latter being the driest period on record in terms of total annual rainfall and in my view this fact has contributed to the objections of the Appellants.

Alligator Creek Licences

At the time of the subject application, there were 28 current waterworks licences, totalling 67.7 hectares for pumps limited only as to area and ranging from 1 to 12 hectares.  There were an additional four licences for pumps totalling 20.4 hectares, but with "flow conditions" attached to them.  These ranged in area from 1 to 7 hectares, depending on flow.  There were 14 additional pumps authorized by permits under Section 57 WRA.
           The licences held by the Applicants and the Appellants are not subject to flow conditions.  Each is to allow the irrigation of land for small crops.  The area limitation for each is, Applicants 1.87 hectares, First Appellants 12 hectares and Second Appellants 2.7 hectares.  The sizes of the respective properties are 1.87 hectares, 14.48 hectares and 2.73 hectares.  The Applicants licence is also for the supply of domestic water.  The First Appellants also have a permit under Section 57.
           Notwithstanding that 1975-1978 were some of the best flow years on record, the inaugural meeting of the Alligator Creek Water Advisory Committee held on the 11th November 1976, recognized that the availability of water in the creek was very limited and that "after a short wet or a prolonged dry period, water could be non-existent".  Purchasers of land in the area would not, I find, have expected an uninterrupted supply of surface water from Alligator Creek.
           The Alligator Creek Water Advisory Committee last met on the 11th May 1989 and since then only five licences have been approved on Alligator Creek, totalling 3 hectares "unrestricted" and 12.4 hectares subject to flow conditions.  Of these, only one licence (for 1 hectare subject to flow conditions) has been approved since March 1991.

Applicants Licence History

The Applicants property was originally part of a larger allotment totalling 4 hectares owned by R.E. Hourigan (Hourigan).  On about the 24th June 1976 a "Waterworks (Pump) Licence" (No. 31463) was issued to Hourigan under the repealed Water Act 1926-1975.  This allowed him to install a 50mm centrifugal pump for the purpose of irrigating small crops, tomatoes and pumpkins on 4 hectares.  Hourigan constructed a concrete cylinder well in the bedsands of Alligator Creek to allow him to make greater and more effective use of his pumping licence at times when surface water was not flowing in the creek.  The well is 8 or 9 feet deep with the bottom portion backfilled with some rock.  It is entirely in the bedsands, bar the last foot of it.  This varies from time to time as flow increases and decreases the sand bed in the area.  Basically, it is in the sand bed.  Mr. Boyce gave evidence that the bedsands in the area are 2 - 3 metres deep. This well was constructed some years ago, perhaps as far back as 1976, and was constructed without the benefit of a licence under the relevant legislation.  As to whether one was required is an issue central to these appeals.  Hourigan subdivided his property in about early 1985.  He retained Lot 2, which abutted Alligator Creek and he sold Lot 1, which was behind Lot 2, and, after subdivision, did not abut Alligator Creek, to T.W. and M.K. Bowden (Bowdens).           Before the subdivision, Hourigan had, in addition to the well and pursuant to his licence, installed a pump and a pipeline extending from the creek across what became Lot 2 and onto what became Lot 1.  Upon the subdivision of the property, he granted an easement to the purchasers of Lot 1 (No. T191602, Volume N.1259, Folios 179 and 180) in respect of the pipeline and its use. 
           The 4 hectare waterworks licence was then effectively "divided" in proportion to the area of the respective lots, Hourigan retaining a licence to have a 50mm centrifugal pump to allow the irrigation of Lot 2 amounting to 2.13 hectares, and the purchasers being issued with a licence (No. 45031, now G45031) for a 50mm centrifugal pump to allow for the irrigation of Lot 1 amounting to 1.87 hectares.
           Bowdens later sold Lot 1 to R. and E. Altmann (Altmanns) and on the 10th January 1989 the 1.87 hectare pump licence was transferred to Altmanns, together with the benefit of the easement.  The licence transferred to Altmanns described the purpose of the works as being for "Domestic Supply.  Irrigation".
           The Applicants purchased Lot 1 from Altmanns in mid 1990 and on the 10th August 1991 the licence was transferred to them.   Mr. Scorse was a senior stream control officer employed by the Respondent in May 1991.  He had previously observed the Hourigan well and on the Application by Hourigan for renewal of his licence dated 24th April 1991 he made the following notation dated 2nd May 1991:-

"Works include construction of a pipe pumping well in sand bed as licensee is in an area of a sand/rock deposition and surface flows are of a limited period."

The Application then went to Mr. Scorse's superior officer, Mr. E.P.M. Donohue, the District Manager/District Engineer, who approved the renewal of the licence. 
           The renewed licence was issued on the 7th May 1991 with an expiry date of 31st May 1994.  The works described in the licence were then as follows:-

"50mm centrifugal pump capable of pumping a maximum of 10 litres per second against 20 metres head."

Mr. Scorse made the following notation on the Department's copy of this licence:-

"Licence should have clause added allowing construction of a well or spear for extraction of water (at variance with other licences in this watercourse which are limited to surface water)."

Hourigan's licence was renewed on the 31st May 1994 (issued 8 August 1994) with an additional special term relating to the well as follows:-

"SPEC01A.A bore spear or well may be constructed or installed in the bedsand of the watercourse adjacent to the pump site and used in conjunction with the works authorised by this licence to extract water from the bedsands of the watercourse for the purposes of the permit."

SPEC01A was based on Mr. Scorse's recommendation.  This amendment to Hourigan's licence was not advertised.
           The Applicants' licence was not likewise amended when it was renewed early in 1994.   Their licence was issued on the 14th March 1994 to expire on the 31st October 1998.  It is this licence which is the subject of these appeals.  The works described in it and the purpose of those works are stated as follows:-

"50mm centrifugal pump.  Domestic supply.  Irrigation."

All parties are agreed that this means domestic supply and irrigation.  The area to be irrigated is stated as 1.87 hectares. 
           A dispute developed between Hourigan and the Applicants over the entitlement of the latter under the pipeline easement.  Hourigan cut off the Applicants water supply and would not let them use the pipeline.  As a result, the Applicants commenced proceedings in the District Court at Townsville against Hourigan.  The trial commenced on the 3rd October 1994.  Mr. Donohue gave evidence for the Plaintiffs and the Appellants rely on what he said in these appeals.  He said it was necessary for the Applicants to apply to amend their licence.
           During the first day of the trial, the parties reached an agreement which they expressed in the following terms:-

"It is agreed that the action shall be adjourned sine die on the following terms:-

1.That the plaintiffs will forthwith apply to the Department of Primary Industry for a permit to put into the creek bed of Alligator Creek at a place adjacent to the Easement T191602 a spear or cylinder similar to that cylinder already there in that location to enable the plaintiffs to pump with a 50 millimetre centrifugal pump water from the creek bed, to service the plaintiffs' existing Waterworks Licence G45031.

2.If the plaintiffs are granted the permit aforesaid on or before the 1st March 1995, then the defendant shall:-

(a)permit the plaintiffs at all reasonable times to move vehicles, plant and equipment across the roadways on the defendant's land, Lot 2 on Registered Plan 38633 to install in the creek bed the spear or cylinder aforesaid;  and

(b)within thirty days of installation of the spear or cylinder aforesaid will lay in a proper and workmanlike manner a 50 millimetre polythene pipeline along and (sic) the full length of the aforesaid Easement for the sole use and benefit of the plaintiffs, their heirs and successors and ownership of that pipeline shall vest in the plaintiffs.

3.If the events referred to in paragraphs 1 and 2 hereof come to fruition, then this action shall be settled on the basis that each party pay his own cost of and incidental to the action and in that event then in all other respects the terms and conditions of the aforesaid Easement shall have their full force and effect as relate to the pipe referred to in the paragraph 2 (b) only."

The "cylinder already there" is Hourigan's.

Amendment Application

As a result of this agreement, the Applicants made application on the 31st October 1994 to amend their licence to allow them to "draw water from the bedsands of Alligator Creek."  It is this application and the Respondent's decision to accede to it which has led to the present appeals. 
           The application was advertised.  The advertisements included the following particulars:-

"This application is to amend Licence Number G-45031 for an existing 50mm centrifugal pump located on Lot 2 on RP 38633 to supply Lot 1 on RP38633 (43a Alligator Creek Road, Alligator Creek) to authorise the installation of a new concrete cylinder in the bedsands of Alligator Creek.

No increase in existing pump size or area irrigated is proposed."

Objections

The First Appellants and Mrs. Scorse objected to the application.  The terms of their objections are in all respects identical with their grounds of appeal and I will come to these shortly.
           In addition, objections were lodged by one Alligator Creek Waterworks Licensee (whose 6 hectare pump licence was subject to a flow condition) and three holders of Section 57 permits, including the holder of the Waterworks Licence just mentioned and Mr. J.D. Leake.  Significantly, Hourigan did not object, no doubt because of the terms of his agreement with the Applicants.

Respondent's Decision

The Respondent allowed the Applicants application to amend their licence and a special term in the following terms was added to it as follows:-

"SPEC01.A bore, spear or well may be constructed or installed in the bed sands of the watercourse adjacent to the pump site and used in conjunction with the works authorized by this licence to extract water from the bed sands of the watercourse for the purposes of the permit."

The other works authorized by the licence remained the same, viz. a 50mm centrifugal pump and the purpose continued to be for domestic supply and irrigation.  The area to be irrigated remained at 1.87 hectares. 

Appeals

Mr. and Mrs. Leake and Mr. and Mrs. Scorse have appealed against this decision.  The Respondent concedes Mr. Scorse's entitlement to appeal notwithstanding that he did not initially object.  He lives on the property with his wife.  This concession is consistent with the terms of the WRA and the decision of the Court of Appeal in Stevenson & Anor.  -v-  Wenck & Ors., unreported, Brisbane, 16th May 1995.The other objectors have not appealed.  Miss Meehan informed me that if the appeals are dismissed, that will resolve the District Court action, otherwise it will resume.
           The Applicants have installed their own pump and use it in conjunction with the existing easement pipeline.  When Alligator Creek is flowing, they use "their equipment to pump water straight out of the stream".  On other occasions they use their pump in conjunction with Hourigan's cylinder or well.  This was at least the position before the dispute which led to the District Court proceedings.
           No point was taken by the Appellants about the fact that the special term added to the licence of the Applicants differs somewhat from the terms of the advertisements, it being conceded that the form of the special term is consistent with the terms of the advertisements.  The Second Appellants do, however, in their grounds of appeal, rely upon "confusion reference objection entitlements created by succession of advertisements" (Ground 1) but I did not understand them to have seriously pursued this ground at the hearing and in my view, having regard to the evidence of Mr. Scorse that he understood what the application was about and the uncontested evidence of Mr. Boyce that he spoke to all of the objectors and they understood that if the application was allowed it would be in terms that permission would be given for a bore, spear or well, there is no substance in this ground.  Further, the fact that there is a difference between the amendment advertised and SPEC01 is of no significance in view of this evidence.

Appellants pump sites

The pump site of the First Appellants is approximately 1.1 kilometres upstream of the Applicants pump site and is situated in a long shallow waterhole with an estimated surface water storage when surface outflow ceases of about 5 megalitres.  The pump site of the Second Appellants is approximately 150 metres downstream of the Applicants pump site and is also situated in a waterhole.  Three other landowners also have waterworks pump licences in respect of the same waterhole.  None of them were objectors.

Respondent's position

Initially and on appeal the approach of the Respondent to the amendment application was as follows:-

1.Alligator Creek is not an area declared under Section 31 WRA.

2.The licence of the Applicants before amendment was not limited to surface water pumping but also allowed the licensee to use the pump to access the bedsands by way of a bore, spear or well in times when stream flow (surface water) ceased.  To limit the licence to surface water would make "management of watercourses where most water supplies come from bed sands diversion when stream flow finishes in the first half of the year (which is a significant proportion of the State) impossible in non-declared areas.  Landowners, including new-comers, would simply install" (presumably illegally) "sub-artesian bores (wells, spears or excavation) in the bed of the watercourse and cause premature cessation of flow and drying up of waterholes thereby compromising all genuine surface water licences."  Even adopting this position, Mr. Boyce conceded that "for purposes of clarity a 'surface water waterworks licence' should perhaps either expressly authorize bedsands diversion or expressly prohibit it (but) this is generally not the case and most surface water licences don't do either of the above things."  He says, however, that some attempts have been made to put special terms in "surface water licences" which authorize excavations, wells or spears but "such has not been consistently applied."  The form which has been used is either:

"A bore spear or well may be constructed or installed in the bedsand of the watercourse adjacent to the pump site and used in conjunction with the works authorized by this licence to extract water from the bedsands of the watercourse for the purposes of the permit."

or

"The works authorized by this licence include diversion of water from the bedsands of the watercourse by the use of spears constructed for this purpose."

Mr. Boyce conceded the legitimacy of these attempts as being based on "a (1982  Crown Law) legal opinion to clarify the situation" but said that "it now appears to be a long stretch of the legal bow to try to prohibit diversion of water in the bedsands by requiring indorsement of surface water licences to authorize an excavation, bore, spear, well etc.".   (I will refer to this "legal opinion" later in these reasons).

Adopting this position, Mr. Boyce opined that had the Applicants "just gone ahead and constructed the well, there may have been no recourse even if such was desired."
           Mr. Boyce expressed the current departmental practice in the following terms in Section 6.4 of his statement:-

"There has been a gradual shift from 'open' licenses to 'conditional' licenses on all significant northern streams.  This has been a natural progression as the regular or base flow component of streams has become fully committed to existing licenses. 

Many, if not most of the original 'open' surfacewater licenses were either pumping from excavations, bores wells or spears or have done so during dry periods since being licensed.  A large number of 'open' surfacewater licenses were issued in the 1970's which was an historically wet decade giving many licensees a false impression of stream reliability.  Few, if any, of the licenses issued during this period were endorsed with the bedsands condition although research shows that they were pumping from the bedsands for at least part of the normal crop cycle eg. Broughton River.

If a natural waterhole silted up the licensee would not lose his license but would be allowed to open it up again or use a different method to extract water eg. well or spear etc.  If a stream stopped flowing during the irrigation season and a landowner with an open surface water license needed to dig a pump hole in the sand bed to finish his crop the Department would not prevent this practice.

The situation is different for more recent 'flow conditioned' licenses where there is a widespread understanding that pumping can only occur at specified levels of flow.  Pumping during lower flows or no flow would be an obvious breach of license condition.  For unauthorised works of the nature of an excavation, bore, well, spear it could be argued that as these constitute a sub-artesian bore (see definition) for which no license is required, no offence has been committed.

It is interesting to note that there is widespread acceptance even by the objectors that wells etc. tapping the bedsands of a watercourse should be permitted under Section 57 riparian surfacewater domestic entitlement.  The overwhelming majority of Section 57 permits tap bedsands water without any form of license endorsement.  Indeed all these property domestic supplies would not be viable if they did not.  This contrasts with their view that a well tapping the bedsands of a watercourse should not be permitted under Section 38 - surfacewater irrigation entitlement unless there is a specific license endorsement for such."

In Section 6.5 of his statement, Mr. Boyce described the current District Policy (Bedsands Diversion) for non-declared areas as follows:-

"A surfacewater license entitles the holder to pump from a watercourse under all stream flow conditions - subject always to pump size and area restrictions - including no flow unless this entitlement has been expressly removed eg. by a flow condition.  Separate approval of an excavation (ie. small pump hole), bore, well or spear would not be required (large excavations are subject to separate license approval and are also subject to riverine protection provisions and policy).  See policy attached (Attachment 11)."

Attachment 11 expresses the policy in the following terms:-

"If an 'open' surfacewater licence is held water may be diverted beyond the point at which flow ceases or natural waterholes dry up by construction of a spear, well or excavation etc. (subartesian bore).  This approval extends to Section 4.32 (now Section 57) permits.

If a conditional surfacewater licence is held (eg. flow term) water may not be diverted from the bedsands by any means.  This would be a breach of the term of licence for which remedy would be available through prosecution."

3.Current licence policy in Alligator Creek was considered.  This is as follows:-

Riparian entitlements (Section 57 permits) available unconditionally to all riparian properties:

-base stream flow - fully committed.  No new "open" licences;

-opportunity stream flow - subject to flow conditions.  Currently 10 megalitres/day.

If the Respondent's view as to the pre-amendment licence entitlement of the Applicants is correct, the decision to allow the amendment is consistent with this policy.  If it is not correct, the effect of the amendment will be to grant to the Applicants a new "open" licence. 

4.The Applicants were able to use Hourigan's well for the purposes of their licence.  Mr. Santini said that he would not have purchased Lot 1 if his water entitlement was restricted to surface water and did not entitle him to access the bedsands (albeit using Hourigan's well) during no flow periods.

5.Hourigan's well was installed a long time ago and was used by Bowdens for irrigating Lot 1.  The Respondent was aware of the well as was Mr. Scorse and, I infer, the First Appellants.  In an office memorandum dated the 27th October 1986, Mr. Scorse, then a stream control officer, said (Attachment 15 Exhibit 8):-

"As the section of Alligator Creek bounded by the easement and for that matter Lot 2 RP 38633 is largely a sand and rock bar with none or little surface water available, to extract water from this area it was necessary to sink a pipe into the bed material and pump from that.  This work was carried out by R. Hourigan and its use shared by Bowden."

The Respondent took no steps until comparatively recently to "regularize"  Hourigan's well.

6.The amendment of the Applicants license could not give them anything more than they and Hourigan were in any event entitled to and the area of the original Hourigan licence - 4 hectares - has not increased.  This position involved a rejection of the reasoning relied upon by the Appellants.

7.In February 1988 the Respondent approved an application by Bowdens to move their 1.87 hectare entitlement to another pump licensed to them on the Second Appellants downstream waterhole.  According to Mr. Boyce, this -

"was a critical waterhole with two other irrigators drawing from it and had already been recorded to be subject to drying up."

It was observed by an inspecting officer and two objectors, one of whom was Mrs. Scorse, that pumping from Hourigan's upstream well had no visible effect on the downstream waterhole and that a good supply was able to be had from his well when the waterhole was virtually dry.  The objectors argued that the demand would be increased on the downstream waterhole and the application should be refused.  The application was, however, conditionally approved. 

Unlike the objectors, though, Mr. Boyce thought that:-

".....it seems unlikely that water in the upstream bed sands is totally isolated from that exposed in the downstream waterhole.  It is more likely that the waterhole is only partially penetrating the bed sands whereas the well extended the full depth.......In the absence of contrary data, the observations of the objectors and the former inspecting officer who was and still is a nearby resident, should be accepted as indicative of observable effect but not truly indicative of the processes and what might be the measured effect."

8.The Second Appellants waterhole is semi-permanent.  The only way to protect semi-permanent holes from drying up is to introduce water restrictions at an early stage of the season if the outlook is poor.  This approach was canvassed and was not supported locally, since it would greatly restrict irrigation and may not serve a practical purpose. 

9.The likely effect on flora and fauna was also considered and it was concluded that there appeared to be no environmental considerations sufficient to refuse the application.

10.Mr. Boyce said, and this was not contested by the First Appellants, that their waterhole drains under natural conditions largely independent of downstream pumping because of its elevation.  He concluded that "therefore pumping by Mr. Santini from the bedsands 1100 metres downstream could have no effect on J.D. and B. Leake."  I accept this evidence.

11.The intention of the Applicants is to grow trickle irrigated tree crops (currently 167 mango trees).  They have no access to a reticulated town water supply, but have constructed a deep bore remote from Alligator Creek near to their house and road frontage to supply their domestic needs.  Their total domestic requirements are estimated at 1.5Ml/annum and their total irrigation requirements are estimated at 3.6Ml/hectare, making a total potential annual water requirement for their land of about 7.5Ml/annum, of which up to 5Ml may be required to be diverted from sand bed storage alone.

12.The effect on owners of neighbouring lands and licensees was not sufficient to warrant refusal of the application.  As a result of calculations carried out by Mr. Boyce, it was concluded:-

(a)that there would be little or no observable pumping effect in the Second Appellants downstream waterhole when the Applicants were pumping using facilities allowed by the amendment to the licence and this conclusion tended to be confirmed by the observations already referred to; 

(b)that when flow ceases de-watering of the sand bed to supply the Applicants' requirements, will affect, to some degree, the storage of water in the downstream waterhole, but there would be no effect when the waterhole has already substantially dried up; 

(c)that when flow ceases beyond 180 metres from the Applicants pump site no pumping or storage effects whatsoever are likely; 

(d)pumping by the Applicants would be likely to have a significant effect on Hourigan and a measurable but probably unobservable effect on the Scorse waterhole and would have no measurable effect on any upstream licence, especially that of the First Appellants.

As to Hourigan, Mr. Boyce concluded as follows:-

"Mr. Hourigan would be significantly affected by any increase in pumping above that previously carried out by Mr. Santini, however, it could be accepted that such use has occurred before by Mr. Bowden at either this site or the approved downstream site or both.  Mr. Hourigan may well have benefited by non use for significant periods.  It could also be argued that since Mr. Hourigan held the original license for the full allocated area and chose to and benefited by selling part of it that he must accept any adverse effects caused by it now being exercised."

For these reasons the Respondent granted the application.  In doing so, Mr. Boyce said that it was faced with two choices:-

1.advise the Applicants and the objectors that no indorsement of licence was necessary as the licence, as it stood, did not prohibit diversion from the bed sands.

2.indorse the Applicants licence with what was described as "the standard term - similar to Hourigan - expressly permitting diversion from the bedsands".

The Respondent considered that the first choice would precipitate removal of "such indorsements on other licences in Alligator Creek and elsewhere" (my emphasis) and in view of such "far reaching effects.......for which there is, as yet, no definitive mandate and which is, to some degree, contrary to local understanding" it was decided to opt for the second alternative.  The application was accordingly granted and the licence of the Applicants was amended by the addition of the special term already recited.
           It was from this decision that the Appellants appealed.

I am satisfied that the Respondent in considering the application for amendment, sufficiently complied with the provisions of Section 43 WRA (either 1 (a) or 1 (b)), which apply as a result of the provisions of Sections 45 and 42.  Mr. Boyce said the application was treated as an application in relation to "water other than underground water" but conceded that it also related to "underground water".  In expressing this view, however, I am not to be taken as acceding to the Respondent's interpretation of the WRA, which for reasons soon to be expressed, I do not.

Respondent's contentions

On the hearing of the appeals, the Respondent contended as follows (supported in all respects by the Applicants):-

1.The construction of a bore, spear or well is by definition a "subartesian bore", as that term is defined in Section 2 (1) WRA and Section 51 (3) (d) provides that an appeal does not lie from the decision of the Chief Executive with respect to an objection to an application for a licence to construct or use a subartesian bore and the court therefore has no jurisdiction to hear these appeals.  Mr. Grealy conceded "some debate in the water resources fraternity" as to the meaning of "subartesian bore" but submitted that the construction of a subartesian bore is implicit in the amendment sought.  He further conceded that because Section 38(1)(h) and (i) deal with subartesian and artesian bores constructed on a person's land, rather than in a watercourse "perhaps throws further problems into the interpretation of the matter."  Mr. Grealy also said that Mr. Boyce told him that in practice licences are issued in declared areas with respect to subartesian bores in watercourses, as opposed to dealing with the matter under Section 38 (1) (b).  Mr. Boyce said that a bore, spear or well of the type mentioned in SPEC01 is "just the type of facility described in the definition of subartesian bore".

The Respondent does not accept that if what is sought comes within the definition of "works" in Section 2 (1) WRA, a licence is required under Section 38 (1) (b) (ii) because as a matter of statutory interpretation there is a separate definition of subartesian bore.

2.The un-amended licence of the Applicants entitled them to sink a well in the bed of the creek.  The licence was not restricted to surface water.  The provisions of Section 44 (1) (g) were relied upon. 

3.There had existed from 1985 two licences next to each other to irrigate land from the same creek.  Both at the time had equal rights to them.  There was nothing restricting the one as against the other.  The amendment to the Applicants licence was not necessary.  Their application was to have the same benefit afforded to them.  The Respondent contended that before the application was made to amend the licence, it didn't in fact require amendment and that the licensee could access the bedsands and for that reason the Appellants are not aggrieved persons because even though the process of amendment was gone through, it was in fact unnecessary and the Applicants got by the amendment what they were, in any event as a result of a proper construction of the Act, entitled to.

4.In all of the circumstances - legal and factual - the Respondent considered it reasonable to take the action that it did.  The decision arrived at is fair and reasonable on the basis of the investigation and inquiries required to be made, notwithstanding that there might be some detriment to some downstream licensees.  On the evidence the Respondent has made a proper decision.

5.The Appellants have not satisfied any onus that they may have to show that the Respondent's decision was wrong. 

Mr. Scorse

He and his wife operate a farm/nursery business on their property.  He retired from the Department 5½ years ago.
His main objections to the application and the effect of all of the grounds of appeal relied upon, were two-fold -

1.The licence before amendment did not entitle access to the bedsands and the Applicants could obtain no comfort from the Hourigan amendment to part of the original licence as also effectively giving them an equivalent entitlement.

2.During the last two seasons, particularly the last season, he has experienced difficulty in obtaining water to function his licence as a result mainly of over-use of water and/or abuse of licence conditions by other licensees, including the construction of unauthorized works such as bores and spears.

He said that the utility of his licence has been gradually eroded.  He has a 50mm pump which extracts from surface water in the waterhole.  As the waterhole reduces in level, lots of small native fauna collect and foul the water.  Loss of fauna generally results. 
           In December 1985, however, Mr. Scorse was reporting to his department that "over the last few years the Creek has dried back to isolated waterholes, some of which have dried up completely and others near so."
           He conceded that in the last few years water problems have resulted from drought or climatic conditions.  He said that the watercourse is fully committed and has been since at least 1985;  his licence can be affected by the drawdown of bedsands waters above and below him;  Hourigan will be the main person affected by the amendment but he has never irrigated the portion which the Applicants occupy;  he has had to operate a bore on his property 24 hours a day over the last couple of seasons during the hot dry times to maintain his crops. 
           He said he was involved in the Hourigan licence amendment;  the Commission had been having considerable trouble with licences which did not allow for all of the works which had been constructed or installed;  it was decided that existing works should be noted on the licences or the licensees asked to show cause why they shouldn't lose their licence;  he found a number of unlicensed works on Alligator Creek and the licensees were given the option of getting licences or removing their works;  Hourigan's amendment was an upgraded condition;  the works he had installed were regularized by that extra approval.
He also said:

-no other licence on Alligator Creek has an authorization to extract water from the bedsands;  one of the considerations relied upon in not requiring Hourigan to remove his well was probably that he suffered water problems during no-flow periods;  the amendment was to formalize the works he had already constructed;

-after the subdivision of his property it was not intended that there be transferred to Bowdens the existing "rights" which Hourigan had;  Bowdens licence was a separate licence;

-licensees along Alligator Creek  have designed their properties around the availability of water;

-Hourigan applied to have his licence reduced in area;  he didn't apply to have it made into two licences; Hourigan's reduction in licensed area was not to be put onto the balance of the land which he subdivided;  when it became apparent that Bowdens were using their licence and Hourigan's well pursuant to an agreement between the parties, they were reminded that it was an illegal arrangement and shouldn't continue;

-the reason Hourigan's licence was not amended until late in the piece was perhaps due to the fact that at that time the Commission was undergoing changes in management and compliance with licence conditions has been mishandled;

-that Mr. Boyce adopted flow rates far less than was indicated in previous reports in the possession of the Respondent and based his calculations on very reduced expectations as to flow rates. (Neither Mr. Scorse nor the Department were able to produce these reports.) I am not satisfied that the figures relied upon by Mr. Boyce cannot be relied upon;

-Bowdens and Altmanns never complied with their licence condition to construct works.  Whether they did or didn't I am satisfied that the Applicants have complied with that condition of their licence.  This ground fails in both appeals.

Mr. Leake

He is a farmer and stud master.  He and his wife grow small crops, mostly zucchinis, button squash and some Asian vegetables.  He has been doing so for the last 12 years, but said that over the last couple of years the water supply has not been there.  Last year they completely ran out of water.
           His main reason for objecting and the effect of all of the grounds of appeal relied upon, is that there is not enough water in the creek to justify the Applicants being allowed access to the bedsands;  the 3 or 4 landholders above him have just about abandoned the creek for the last three months of the year and some of those have been there for many years; they never had trouble until the last 5 - 7 years;  the water will not build up in his waterhole any more;  it's constantly running out;  the Applicants licence allowed them to only pump out of the water stream.  He also adopted the arguments advanced by the Second Appellants. 

Mr. Boyce

In addition to what I have already mentioned, he said that the Applicants licence was limited only by the size of the pump and the area that it can irrigate; it was an open, unconditional licence and therefore the licensee in exercising the rights under the licence can do all acts and things necessary - including using a bore, spear or well - to put the licence into effect: Section 44 (1) (g).  Mr. Scorse, on the other hand, said, "What's an open licence?  I'm not aware of that term.  It's not a term in the Act".  In this he is correct.
           Mr. Boyce said that in expressing his view in the District Court, Mr. Donohue was acting more out of an abundance of caution;  if there is any doubt at all the Department will generally advertise and give people a chance to have their say.  He conceded it is a grey area, it has been the subject of discussion, but said his view is consistent with the Department's approach in a number of offices in the State, including Biloela, Mackay, Toowoomba and Ayr.  There is, however, no departmental view or policy Statewide, he said.  I should mention that in his evidence in the District Court Mr. Donohue expressed the view that the Applicants did need permission "for their own cylinder in the creek".  This may have been as a result of the "cautionary approach".

           Mr. Boyce considered the amendment necessary because of the general perception on Alligator Creek and because of the treatment of the very closely associated licence of Hourigan;  the amendment accorded with fairness and consistency;  the Applicants were applying for exactly the same as had been granted to Hourigan;  a standard clause licence for a 50mm pump with no flow restrictions would entitle the owner to access the bedsands;  no waterhole other than the Second Appellants, and that only marginally if at all, would be affected by bedsands pumping by the Applicants.
Mr. Scorse argued that if the "Boyce view" prevailed, mayhem would occur on many watercourses.  The experience of Mr. Boyce, however, was that such licences are being used to access bedsands on a number of watercourses because many licensees do need at some time of the year or in certain years, depending on the season, to do so, so there is a long historical association with such activities.  This may be so, but I do not think it accords with the WRA.

The Hourigan amendment

Mr. Scorse said that the transfer of part of the Hourigan licence was not intended to be a division of the licence.
Mr. Donohue, in the District Court, called it "partitioning" an existing licence.
Mr. Boyce concluded that the licence was divided with the effect, whatever the intent was, of conferring the same rights on Bowdens and subsequently the Applicants, as were enjoyed by Hourigan, including use of a well.  This ignores though the fact that at the time part of his licence was transferred to Bowdens, Hourigan did not have permission for his well and when Hourigan's licence was amended, the Applicants was not.  The view adopted by Mr. Boyce was influential in the decision to amend the Applicants licence.  This approach highlights the dilemma presented by these appeals because on one argument advanced by the Respondent permission to access the bedsands is not required. 

Departmental Policy
According to Mr. Boyce, previous policy on licence issue was that a licence specified what could be done rather than what  couldn't.  This was the case advanced by the Appellants.  Hearing this evidence, Mr. Scorse described current policy as being that "if it is not prohibited, it can be done relying upon Section 44 (1) (g)."  Mr. Boyce said that recent departmental policy favours "property rights" in water - an approach which enhances "ownership of water rights in individuals" (c.f., however, SS. 3 and 4 WRA).  Mr. Boyce said that these appeals raise this very issue;  there are two primary types of licence for streams - an open licence with standard conditions and no restrictions other than those on the face of the licence and a conditional licence which would generally contain a flow condition.

Water Resources Act 1989
Alligator Creek is a "watercourse" as that term is defined in Section 2 (1). 
Relevant provisions are as follows:-

"3.The right to the use and flow and control of water at any time -

(a)in a watercourse that flows through or past the land of 2 or more owners or occupiers;

(b)----

(c)in an artesian bore, a subartesian bore or any other underground source of supply;

vests, subject to the restrictions contained in this Act or until appropriated under this Act or any other Act, in the Crown.

4.The right to the use and flow and control of water vested in the Crown is -

(a)not to be exercised to the prejudice of a right conferred on and lawfully exercised by any person, board or other body by or under an authority conferred by this Act or any other Act;

(b)to be subject to -

(i)the rights specified in this Act of an owner or occupier of land abutting the banks of a watercourse;

(ii)the rights of the holder of a licence, permit or authority under this Act;

(iii)-------.

38 (1).Subject to sections 56 and 57 a person who, except under the authority of a licence under this Act  -

(b)constructs works or uses works already constructed in or on a watercourse, lake or spring -

(i)to conserve water;

(ii)to take water therefrom or water contained in or conserved by a weir, barrage or dam;  or

(h)constructs on the person's land an artesian bore or uses an artesian bore so constructed or enlarges, deepens or alters in any manner an artesian bore;  or

(i)in districts in which there is in force at the material time a regulation under section 31 constructs on the person's land a subartesian bore or uses a subartesian bore so constructed or enlarges, deepens or alters in any manner a subartesian bore; 

commits an offence against this Act. 

(10)For the purposes of this section -

'to use works' includes to take and use water contained in works or obtained by means of works, whether for the use of  -

(a)the owner of the land on which the works are constructed;  or

(b)the person who constructed or is using the works;  or

(c)an owner of land in the vicinity of the site of the works."

The words "construct", "works", "artesian bore" and "subartesian bore" are defined as follows in Section 2 (1):-

" 'construct' includes provide, set up, dig, excavate, erect, lay down, install or maintain."

" 'works' means operations of any kind and all things constructed, erected or installed for or in connection with the purposes of this Act, all sources of water supply and land reserved or set apart, occupied, held or used for or in connection with those operations or those sources, and includes a quarry or gravel pit vested in the corporation or under the control of the corporation or the chief executive."

" 'artesian bore' includes an artesian well and all works constructed in connection with an artesian bore or artesian well from which water flows or has flowed naturally to the surface."

" 'subartesian bore' includes any shaft, well, gallery, spear or excavation and all works constructed in connection with any subartesian bore, shaft, well, gallery, spear or excavation which intersects an underground source of water and from which water does not flow naturally to the surface."

Riparian owners or occupiers have more extensive rights than non-riparian owners.  Sections 36 (1) and 39 (1) and (2) provide as follows:-

"36 (1).  Subject to section 57, an owner or occupier of land abutting a watercourse ..... may, without applying for or obtaining a licence or permit in that behalf, use for  -

(a)domestic purposes;

(b)watering stock;

the water, at the material time, in that watercourse.........

39 (1).Subject to this section, an owner of land that does not abut a watercourse ...... may make application as prescribed for a licence to construct and use works or to use works already constructed as specified in section 38.

(2).  The applicant may make, with owners or occupiers of land intervening between the subject land and the watercourse ..... in respect of which the application is proposed to be made, arrangements in writing signed by all parties with respect to the construction, use and maintenance on, in, over or under those intervening lands of works necessary to carry out the purposes for which the application is made."

The easement in respect of the Hourigan and Santini properties may possibly come within the terms of Section 39 (2) but I do not have to decide this.
Sections 56 (1) and 57 (1) are in the following terms:-

"56 (1).  The chief executive, upon application in writing by or on behalf of  -

(a)the chief executive of a department of the government of the State;

(b)a person or a body other than a department of the government of the State, or a person or body referred to in section 57;

may grant that department, person or body a permit in writing authorising the taking of water from a watercourse, lake or spring and, in the case of a department, underground water.

57 (1).An owner or occupier of land who uses water in a watercourse, lake or spring, in accordance with section 36 must, where the owner or occupier desires to construct or use works to take water in connection with that use, make a signed written application for a permit."

Section 42 deals with an application for a licence under the Act and contains provisions for the advertising of particular applications.  The present application was dealt with as one requiring advertisement.  Notwithstanding the evidence that this was done for cautionary reasons, I think it was correct to advertise it;  I think that Section 42 (6) required it to be advertised. 
Section 42 also contains provisions allowing for objections to be lodged and a right to lodge an objection does not arise unless the application is one that is required to be advertised and has been so advertised (Section 42 (13)).
Upon an application under Section 42 and an objection thereto, the chief executive is, by Section 43 (1), required to cause certain specified inquiries to be made differing slightly depending upon whether the application relates to water other than underground water or to underground water.
The term "underground" is defined in Section 2 (1) as follows:-

" 'underground', when used in relation to water, means water that occurs naturally or is introduced artificially below ground level."

Subsections (2) and (3) of Section 43 provide as follows:-

"43 (2).  Upon the inquiry, the chief executive subject to this section -

(a)may grant the application -

(i)absolutely;  or

(ii)subject to any modifications or variations determined by the chief executive in a particular case;  or

(b)may refuse the application.

(3).Where the chief executive grants the application, the chief executive is to issue to the applicant a licence in respect of  -

(a)so much of the land, watercourse, lake, spring or water storage specified in the application;

(b)the use of so much of the quantity of water applied for;

(c)-----

(d)the works specified in the application modified or varied;

as the chief executive thinks fit."

The present application was dealt with in accordance with Sections 42 and 43 because of the provisions of Section 45 as follows:-

"45 (1).  A licensee, during the currency of the licensee's licence, may make application for an amended licence providing for alterations in or extensions to the works (including increased entitlements to water thereunder) the subject of the licence as specified in the application.

(2).An application under this section must be dealt with in the same manner as if it were an application for a licence in the first instance under section 42."

It was agreed by all parties that the provisions of the Act which I have set out are provisions "that concern the exercise of the right to the use, flow and control of water" within the meaning of Section 2 (4) and that therefore the definition of "watercourse" in that subsection also applies in the present case.  That definition is as follows:-

" 'watercourse' includes bed and banks and any other element of a river, creek or stream that confines or contains water."

The words "bed and banks" are also defined in Section 2 (1) in the following terms:-

" 'bed and banks', with reference to a watercourse or lake, means land over which the water of that watercourse or lake normally flows or that is normally covered by that water whether permanently or intermittently, but does not include land abutting or adjacent to the bed or banks that is from time to time covered by floodwater.

For the purposes of this definition 'bed' means the relatively flat and 'banks' the relatively steep portions of the firstmentioned land."

Section 49 dealing with the effect on a licence following subdivision of the land to which the licence relates, does not have any application to the subdivision in this case and I cannot see that there was any equivalent provision in the Water Act 1926 - 1976.
A licence issued by the chief executive, may be subject to terms:  Section 44.   So far as is relevant, Section 44 provides as follows:-

"44 (1).  A licence under this Act  -

(a)is subject to the terms decided by the chief executive and endorsed on, or attached to, the licence, including, for example, payment of any fee, charge or other amount the licensee is required to pay under this Act;  and

(b)without limiting the generality of paragraph (a), may be subject to any of the following terms determined by the chief executive generally or in a particular case, endorsed thereon or attached thereto namely  -

(i)the licensee must construct the works with respect to which the application is granted by a specified date or within a period, not less than 12 months after the date of issue of the licence, determined by the chief executive;

(ii)the licensee must give to the chief executive in writing 30 days notice of the licensee's intention to commence construction of the works;

(iii)the licensee must modify works in existence at the date on which the application is granted, within a period determined by the chief executive;

(iv)during the currency of the licence, the licensee must maintain to the satisfaction of the chief executive works constructed or modified in accordance with subparagraph (i) or (iii);

(v)the licensee in the case of works to enable the taking or use of water, must upon their construction beneficially use the water that the licensee is entitled to take or use under the licence to the satisfaction of the chief executive; and

(c)-----

(d)operates for the benefit of the owner for the time being of the land on which the works the subject of the application are constructed or proposed to be constructed or of the person whose proposal it is;  and

(e)remains in force, unless sooner cancelled, revoked or suspended, for a period determined by the chief executive in a particular case or class of cases, specified therein;  and

(f)may be-

(i)renewed;

(ii)suspended;

(iii)cancelled;

(iv)revoked;

(v)transferred;

(vi)amended, modified or varied;

by the chief executive during the currency thereof;  and

(g)must authorise the holder, during the period of the licence, to do all acts and things necessary for and incidental to the purposes for which the licence is granted and issued;  and

(h)must, subject to this Act, entitle the holder during the period of the licence to the quiet enjoyment and sole occupation of works constructed under the authority thereof as against all other persons but so far only as those works are constructed or maintained on the land occupied by the holder or the subject of an arrangement or an authority made or granted under section 39; and

(i)-----

(2).  The chief executive, of the chief executive's own motion or upon application duly made, may, during the currency of a licence, amend, modify, vary or revoke a term to which that licence is subject or add thereto a further term.

(3).The powers conferred on the chief executive by subsection (2) do not include the power  -

(a)to increase of the chief executive's own motion a benefit to which the licensee is entitled under the licensee's licence;  or

(b)to grant of the chief executive's own motion to a licensee a further benefit.

(4).Sections 42 and 43 apply and extend to an application by a licensee under subsection (2) that relates to or includes an increase of a benefit to which the licensee is entitled under the licensee's licence or a further benefit."

Because of the view I take as to the effect of these sections, the addition of a term to Hourigan's licence entitling him to access the bed sands had the effect of either increasing the benefit to which he was entitled under his licence or granting to him a further benefit, in which case the amendment to his licence could not have been made by the chief executive without subjecting it to the provisions of Sections 42 and 43 so far, in particular, as they relate to advertising and allowing for objections.
The first licence issued to the applicants was dated the 10th August 1990, expiry date 31st January 1991.  It described the works as "50mm centrifugal pump capable of pumping a maximum of _________ litres per second against _______ metres head".  It specified that the works were to be located on Lot 2 to supply Lot 1 and the purpose of the works was stated to be "Irrigation.  Domestic supply" and the area to be irrigated was specified as 1.87 hectares.  The licence contained the following schedule of terms:-

“1.001The licensee shall install the work for which the licence is granted within two (2) years from the date of grant of the licence.

1.002The licensee, after installing the work, shall to the satisfaction of the Commissioner, beneficially use the water which is entitled to be diverted under this licence.

1.003The licensee shall notify the Commissioner immediately of any change or divestment of interest in the land whereon the licensed work is constructed or proposed to be constructed or on which the water is used or proposed to be used.

1.004The holder of this licence shall pay such fees and charges as are determined by the Commissioner from time to time. Such fees and charges being payable at any place specified by the Commissioner, on the due date and must be paid within 30 days of the date of issue of the invoice.

1.020Diversion of water under the authority of this licence is prohibited whenever restrictions are imposed by the Commissioner on diversion from the watercourse, lake or spring on which the licensed work 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.”

The statement of Mr. Boyce indicates that the licence was renewed on the 31st January 1991, expiry date 31st January 1994.  This licence was further renewed by a licence issued on the 14th March 1994, expiry date 31st October 1998, in identical terms except that the works are described slightly differently as "50mm centrifugal pump" and the purpose of the works was reversed with the words "domestic supply" preceding the word "irrigation".   The schedule of terms was identical with the first licence.  "Commissioner" became "Chief Executive".
The amended licence (the one the subject of these appeals) was issued on the 25th May 1995, expiry date 31st October 1998.  Initial details are the same.  In the schedule of licence terms, Term 1.001 has been omitted, the next three terms have been re-numbered 1.002A, 1.003A and 1.004A respectively, Term 1.020 remains as initially numbered and special term 01 (SPEC01) already referred to has been added.
The licence does not contain the section 44 (1) (g) authorization, but such authorization must be implicit in it.
I do not consider that Section 44 (1) (g) authorized the applicants before their licence was amended by the addition of SPEC01 to construct or install in the bedsands of Alligator Creek a bore, spear or well.  In my view, that provision is limited to the purposes for which the licence is granted and does not extend to the construction of works additional to those specified in the licence.  Strictly speaking, I think that the bore, spear or well should also have been described in the description of works permitted by the licence, but its omission there is probably not, in the circumstances, of much moment.
In my view, the central feature of a licence under the Act of such a type as was issued to the applicants, is that it permits the construction of certain "works" for certain specified purposes.  The licence is described as a "Waterworks Licence" but I do not consider this description determinative of how the Act is to be interpreted;  it is, however, consistent. The Applicants licence, before amendment, authorized them to provide and install on Lot 2 a pump to take water from Alligator Creek and supply it to Lot 1 for the purpose of domestic supply and irrigation, together with authorizing them to do all acts and things necessary for and incidental to that purpose.  It did not also authorize them to construct works additional to those described in the licence.
The definition of "works" in section 2 (1) is not an authorizing provision.  By itself it does not authorize the construction of works, but merely indicates the nature and extent of works which the chief executive can authorize to be constructed. 

Further, the definition of "watercourse" in Section 2 (4) cannot, in my view, have the effect of extending a licence which did not in the first place include works extending into the bed of a watercourse.  All parties agreed that unless a bore, spear or well was constructed, a 50mm centrifugal pump, by itself, could only facilitate the extraction of surface water. 
Central to a licence such as the present is authority for the construction of works.  This would clearly include a bore, spear or well if such were described in the licence.  SPEC01 is a sufficient description of such works additional to a pump, even though the works are not precisely included in the description of "works" section of the licence.
Section 38 deals with the construction or use of works under the authority of a licence.  Section 39 speaks of an application to construct and use works.  Section 43 (3) empowers the chief executive to issue a licence "in respect of the works specified in the application modified or varied".  If a licence is required for a pump, bore, spear or well, such works should be specified in the application.  In my view, an application for a licence to install a pump would not include, without it being stated, that the application was also for a licence to construct or install a bore, spear or well.  In other words, it would not be inherently implicit in an application for a licence to install a pump that such application also included an application for the construction or installation of a bore, spear or well.  I do not think that Section 44 (1) (g) has this effect. 
Further, Section 44 speaks in terms of "the works with respect to which the application is granted".  Merely because a bore, spear or well would come within the definition of "works" in section 2 (1), does not mean that that definition has the effect of extending the authorized works beyond those specified in the licence.  A licence to provide and install a pump would not, in my view, for example, also authorize the construction of a barrage merely because the construction of a barrage might be said to be necessary for and incidental to the purposes for which the pumping licence was granted. 
Neither do I consider that the Respondent's arguments in relation to subartesian bores are correct or reinforce the extended application relied upon.  The fact that a bore, spear or well may come within the definition of "subartesian bore" so far as the present case is concerned, does not mean that that definition has the effect of removing for all purposes the necessity for a licence to be obtained.  There is no Section 31 declaration in relation to Alligator Creek and therefore Section 38 (1) (i) has no application.  Further, that provision and also Section 38 (1) (h) are confined to the construction "on the person's land" of an artesian or a subartesian bore.  The bore, spear or well in the present case was not to be constructed on the Applicants land, but in a watercourse - Alligator Creek.  For these reasons in my view the Respondent's argument based on Section 51 (3) (d) is not correct and fails.  The Appellants are, therefore, in my view, "persons aggrieved" for the purposes of Section 51 (1).
I think that the mistake of the Respondent is to talk in terms of "open" and "conditional" licences in the context of an entitlement to water, rather than to approach the question of licensing in the manner required by the Act, namely that it is particular "works" which require licensing, and depending upon the nature of the works licensed, a licensee will have a greater or lesser entitlement to water.  Practically speaking, all licenses are conditional, some with more conditions than others, depending on the circumstances. 
It is also a mistake, I consider, to describe the licences as "surface water licences" rather than as a licence authorizing the construction of specified works with a view to affording the licensee an entitlement to water.  Likewise, to describe a licence as "flow conditioned" is also to lose sight of the fact that the primary purpose of a licence in the context of the present appeals and the WRA, is to authorize the construction of certain specified works.  If it is desired to allow licensees to fully access water, including surface water and bedsands water, then works sufficient to allow this to be done should be specifically authorized. 
I think that some of the misunderstanding which has arisen has occurred because of the nomenclature used by the Department to describe particular licences as "unrestricted", "restricted", "open", "conditional", "unconditional", "limited" or "unlimited".  To do so is to lose sight of the provisions of the Act.  I can appreciate and understand the Department's attitude that, depending on the circumstances, a licensee should generally be able to access both surface water and bedsands water.  This can be done, in my view, by the authorization of appropriate works.  To allow it to be done without the authorization of such works would, in my view, require legislative intervention.  If it is intended that an applicant have a particular water entitlement, then the necessary works to ensure that entitlement should be licensed, otherwise there is the potential for the Respondent to lose control over water resources and for such resources to be unilaterally depleted.  The aim of the licensing system is to manage in an ordered fashion the "use and flow and control of water vested in the Crown." (Section 4). See also Section 8.
My view as to the effect of the provisions of the Water Resources Act to which I have referred is consistent with the Crown Solicitor's interpretation of analogous provisions of the Water Act (which was repealed by the Water Resources Act) in the legal opinion referred to by Mr. Boyce. The conclusion expressed in that opinion was in the following terms:-

"Summing up the position, if the works being constructed or used in watercourses are other than those coming within Part VII, the licensing provisions under Sections 11 to 16 clearly apply.  If the works being constructed or used are in the nature of sub-artesian wells or bores, then Part VII of the Act will apply if the Governor in Council has declared its application.  In all other cases, the requirements for a license under Section 11 apply."

In his statement, Mr. Boyce also said that the view expressed in this opinion was adopted by the Land Court in D.A. and M.I. Boyd -v- Commissioner of Water Resources, unreported, Brisbane, 15 July 1991 (A90-84), but I do not read that decision as involving a consideration of the issues raised in these appeals, notwithstanding that the works licensed in that appeal - a 32mm centrifugal pump - appear to have been thought to also allow an excavation 20 metres long and 2.5 metres deep in Goomboorian Creek.
Mr. Boyce also referred to some of the Respondent's Groundwater Management and Licensing Guidelines, June 1989 (Attachment 10 to his statement) "as being the most recent version of the Guidelines".  The Guidelines included in Mr. Boyce's statement, deal with subartesian bores associated with watercourses and not with the present issues.

Burden of proof
Section 51 (9) provides that the burden of proof of a ground stated in the Notice of Appeal lies on the appellant.
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.  Mr. Grealy and Miss Meehan accepted what Mr. Smith said. 

The facts
I have already dealt in some detail with the facts.
With the exception of those grounds relating to the pre-amendment effect of the Applicants' licence, I am not satisfied that the Appellants have established any of their grounds of appeal.
I am not satisfied that bedsands pumping by the Applicants will have any effect at all on the water supply of the First Appellants.  It will be capable of affecting Hourigan, but he did not object and has not appealed.  The effect on the Second Appellants will, in my view, be minimal and they have not established that the effect is likely to be such that should warrant the success of their appeal.  The other users of the Second Appellants waterhole did not object and have not appealed.  I am not satisfied that there will be any effect at all on any persons downstream from the Second Appellants' waterhole.  I think that the recent drought conditions have been the significant contributor to the problems the Appellants said they have been suffering.  Any contributing effect as a result of over-use of water or other abuse of licence conditions by other licensees is not something I can do anything about.
I do not consider that current licence policy in Alligator Creek, when interpreted against the background to the Applicants licence, is such that the amendment should not have been allowed.  The description of the Second Appellants waterhole as "critical" has to be considered in the light of the absence of any appeal by other relevant "irrigators" and having regard to the observations made by Mrs. Scorse and others in early 1988.
In my view, when flow in the creek ceases, bedsands pumping by the Applicants will have hardly any effect on the Second Appellants waterhole;  their problems only occur when their waterhole has substantially dried up and when that occurs any bedsands pumping by the Applicants will have no adverse effect on their waterhole or water supply.  The Second Appellants also have a bore available to them.
Hourigan's licence was amended because he suffered water supply problems during no flow periods (and because he had already installed his well).  Similar problems will be suffered by the Applicants if the licence is not amended and their interests must also be considered. 
I agree that after the subdivision of Hourigan's property, Bowdens licence was a separate licence.
I am reinforced in these conclusions by the abandonment of so much of the appeals as relate to the use of a bore, spear or well for the supply of water for domestic purposes and by the absence of any significant number of other objectors to the application.
In my view, the following passages from the judgment of the Land Court (Mr. C.H. Carter) in Conroy -v- Commissioner of Water Resources (1992-1993) 14 QLCR 156 at 166-167 are equally applicable to the circumstances of the present appeals:-

"Now the evidence in this case makes it clear that the ground water resource within the Condamine Ground Water Management Area is heavily overcommitted but I do not feel that this factor alone should be of such weight with the Commission that it should have refused the subject waterworks licence application on that basis alone.  What concerns me is that none of the owners of the neighbouring irrigation properties objected against the granting of the licence.  Of course it well may be that the advertisement in the Toowoomba Chronicle did not come to their notice, but I have no evidence this is so, and it would have been open for the respondent Commissioner to call evidence from them if they opposed the granting of the licence to the applicants.  They are, after all, licencees and neighbouring owners.

Now Mr. Hall is of the opinion that the effect of the granting of a licence would be minor. This opinion is to be weighed against the well presented evidence of Mr. Murphy which convinces me that the granting of any additional licences would have some effect on the existing irrigators and result in further depletion in an already severely depleted resource. However, on balance, and having regard to the provisions of Section 4.18 of the Water Resources Act of 1989, and in particular to the requirement that I should have regard to the requirements of the applicants, I find that the granting of the subject waterworks application is justifiable, on the ground that one more licence with an allocation of only 286ML/year would not significantly deplete the resource. Of course it must be said that if, as a result of this decision, there are numerous other applications for ground water waterworks licences within the Condamine Ground Water Management Area, then this decision is not to be taken as a precedent for the granting of numerous other licences which, on the evidence, and to use the works of Mr. Murphy, would not be responsible or justifiable."

In Shooter -v- The Commissioner of Irrigation and Water Supply, op cit at p. 18, Mr. Dodds referred to the fact of an absence of objections as "a matter of real importance".  I agree.  There is not quite an absence of objections here, but I find it of significance that only a handful of licensees and permitees objected and effectively only two appealed.  Mr. Grealy submitted that his case was supported by the lack of significant objection.  I agree. 
I should mention that I think that little weight can be attached to the fact that Hourigan had a licence with a similar term to that sought by the Applicants, because there was no advertised application to add such a condition to his licence.

The result
The Appellants have partially succeeded so far as their grounds of appeal are concerned, but because the application was advertised and dealt with in accordance with Section 43, and for the reasons I have given, I am not satisfied that this partial success is sufficient to warrant the appeals being allowed.  Both appeals are accordingly dismissed, and to use the words in Section 51 (7), the decision of the chief executive the subject of each appeal, is confirmed.
This result will only partially satisfy all parties.  The Respondent has succeeded on the appeals, but not entirely for the reasons advanced, whereas the Appellants have succeeded partially in relation to their grounds of appeal, but not so far as the decision is concerned.  The overall result, however, may go some way towards alleviating the general concern of the Appellants.

Costs

Mr. Grealy did not ask for costs.  Miss Meehan did, primarily on the basis of the domestic supply concession made by the Appellants late in the proceedings and because costs should follow the event.  She conceded there was public interest in having the issues as to the interpretation of the Act determined.

I do not think that the appeals would have been disposed of in less time had the Appellants made their concession at the outset nor do I think that the joinder of the Applicants added to the time taken to dispose of the appeals.

The Appellants opposed costs, on the basis that they embarked on the appeals on the understanding that win or lose there would be no order for costs.  I accept this.
The power of the Land Court to order costs is found in Section 41 (9) of the Land Act 1962 as follows:-

"41 (9).  The Court may make such order as it thinks fit as to the costs of or incidental to any matter that it has jurisdiction to hear and determine....."

An identical power is given to the Land Appeal Court by Section 41 (16).
In Bowden -v- The Valuer General (1980-1981) 7 QLCR 138, a valuation appeal, the Land Appeal Court described this power as "discretionary and in no way circumscribed" (at p. 145) but then (at pp. 147 and 148) went on to circumscribe the power in the following terms:-

"We think, in dealing with questions of costs, that it is an important consideration that there be ease of access to the Land Court.......Easy access to the Land Court to air grievances and have valuations reviewed is, ............ most desirable in revenue cases, and such access should be available without fear of costs being awarded to either party except in special cases."

I do not agree that the power granted by Section 41 (9) is only to be exercised in special cases, but I am, however, bound by this decision.
In Denning -v- Ipswich City Council (1988-1989) 12 QLCR 171, the Land Appeal Court dealt with an appeal by a registered proprietor who had claimed compensation following the taking of an easement for water supply purposes. The appeal involved the effect of a particular provision of the Local Government Act. The appeal was dismissed. The successful respondent applied for costs. The application was refused, the court saying at p. 179:-

".......because the respondent has obtained from the court the benefit of a decision on the effect of (the section of the Local Government Act), the court considers that justice will be best served if in the particular circumstances of this case, no order is made as to costs."

In the case of the present appeals, the Respondent now has the benefit of a decision on the effect of certain provisions of the Water Resources Act. It may not like it, but that is irrelevant when it comes to costs. The issues were finely balanced. There has been success on issues by all parties. The appeals have raised important questions.
In all of the circumstances, I am not persuaded that any order for costs should be made and I do not make any.

Order
The appeals are dismissed and the decision of the Respondent in each appeal is confirmed.

C.F. WALL, Q.C.
  MEMBER OF THE LAND COURT