McKeown v Minister Administering the Water Management Act 2000
[2012] NSWLEC 1354
•20 December 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: McKeown v Minister Administering the Water Management Act 2000 [2012] NSWLEC 1354 Hearing dates: 17, 19 December 2012 Decision date: 20 December 2012 Jurisdiction: Class 1 Before: Pearson C Decision: Appeal upheld
Catchwords: APPEAL - Direction - Controlled activity - Deposition of material on driveway - Adverse effect on water source Legislation Cited: Water Management Act 2000
Land and Environment Court Act 1979Category: Principal judgment Parties: Michael John Francis McKeown (Applicant)
Minister Administering the Water Management Act 2000 (Respondent)Representation: Mr P Clay SC (Applicant)
Dr J Lucy (Respondent)
Mr P James, MJO Legal (Applicant)
Mr D Stewart, NSW Office of Water (Respondent)
File Number(s): 10219 of 2012
Judgment
This is an appeal pursuant to s 368 of the Water Management Act 2000 (the WM Act) against a Direction issued by a delegate of the respondent Minister under s 333(2) of the WM Act on 2 February 2012 (the Direction) in respect of land owned by the applicant Mr McKeown, at 1897 Pacific Highway Cowper (the property).
The property is located approximately 19km north of Grafton, between the Clarence River and the Pacific Highway, and has a total area of 18.99ha. Access to the property from the Pacific Highway is across an unsealed track, which traverses an area described by the applicant as a "depression", and by the respondent's experts as a "water body", which is below the level of the Pacific Highway and the level of the larger part of Mr McKeown's land on which his house and other buildings are located. Access to the land owned by Mr McKeown's neighbours to the north and south is similar. The "depression" extends over 3km, and is bounded by the high Clarence River banks on one side, the Pacific Highway on the other, and the large levee bank adjacent to the Cowper No 2 drain at its southern extremity. In times of flood, waters flow from the Clarence River and flood the land over which Mr McKeown and his neighbours obtain access.
Between 9 July 2010 and 20 August 2010 Mr McKeown undertook work to upgrade the track, including raising the track by approximately 0.5m. In January 2011 there was a significant rain event and the Clarence River flooded. In late January 2011 officers of the respondent inspected the property. The background to that inspection, subsequent investigations and inspections, and the issuing of the Direction, is outlined in the respondent's written submissions.
In July 2011 the applicant lodged an application under s 92 of the WM Act for a Controlled Activity Approval for works including the placing of pipes under the access road to improve drainage. That application has not yet been determined.
The Direction issued on 3 February 2012 stated that Mr McKeown, the registered landholder, "has carried out a controlled activity, namely the deposition of material on land, or has carried out an activity that affects the quantity or flow of water in a water source, by raising the level of a previous access track ("the Crossing") at the Property which traverses waterfront land". The Direction stated that the controlled activity was carried out in, on or under waterfront land, without a controlled activity approval, which is an offence under s 91E(1) of the WM Act; and that there are no exemptions from s 91E(1) of the WM Act applicable to the controlled activity. The Direction stated that the delegate issuing the Direction was of the opinion that the controlled activity "is having, has had, or is likely to have an adverse effect on a water source or waterfront land", and required the applicant to take the measures specified under the heading "Specified Measures" to prevent and/or minimise and/or mitigate any adverse effect on a water source or waterfront land as a consequence of the carrying out of the controlled activity.
The Direction described the Specified Measures as follows:
1.Excavate and remove material from the road crossing to leave a finished road surface at the cattle grid ("the grid"), marked Site B on Attachment A, at the current grid level evenly sloping to a level of 1.72 metres AHD (Australian Height Datum) to a point 8 metres in a north westerly direction along the road crossing from the northern side of the edge of the grid, marked Site B on Attachment A (as shown on Attachment B). Material is to be removed laterally for the full width of the road.
2.Excavate and remove material from the crossing to leave a level finished road crossing surface of 1.72 metres AHD from a point 8 metres from the northern side of the grid, marked Site B on Attachment A to a point 33 metres in a north westerly direction along the road crossing from the northern side of the grid, marked site B on Attachment A (as shown on Attachment B). Material is to be removed for the full width of the road.
3.Excavate and remove material from the crossing to leave a finished road crossing surface graded from a level of 1.72 metres AHD from a point 33 metres from the northern side of the edge of the grid, marked Site B on Attachment A evenly sloping to the current road surface level at a point 73 metres in a north westerly direct along the road crossing from the northern side of the grid, marked site B on Attachment A (as shown on Attachment B). Material is to be removed laterally for the full width of the road.
4. Remove all the spoil material as a result of works described at "1", "2" and "3" of "Specified Measures" and place the material no closer to the Crossing than the cattle grid marked "Site C" on "Attachment A - Location of Works" and no closer than 40 metres from the top of the high bank of the Clarence River or the water course over which the crossing the subject of this direction has been constructed.
5. Ensure that the removal and rehabilitation works described at 1-3 above do not cause any further adverse effects on waterfront land.
Mr McKeown appealed to the Court under s 368(1)(n) of the WM Act, seeking orders that the Direction be set aside. The parties have now reached agreement as to the terms of an amended Direction, and seek orders by consent.
Legislation
The power to issue the Direction is conferred by s333 of the WM Act as follows:
333 Directions to protect water sources
(1) This section applies if the Minister is of the opinion that:
(a) the construction or use of a water management work, or
(b) a controlled activity or aquifer interference activity,
is having, has had, or is likely to have, an adverse effect on a water source or waterfront land.
(2) The Minister may, by order in writing served on:
(a) the person having control or management of the water management work, or
(b) the person who has carried out, is carrying out or proposes to carry out the controlled activity or aquifer interference activity,
direct the person to take specified measures to prevent, minimise or mitigate any adverse effect on the water source or waterfront land as a consequence of the construction or use of the work or the carrying out of the activity.
(3) Without limiting subsection (2), the measures that may be specified in a direction under this section include:
(a) a direction to repair any damage caused by the construction or use of the water management work or the carrying out of the controlled activity or aquifer interference activity, and
(b) a direction to rehabilitate any water source or waterfront land that has been adversely affected by the construction or use of the water management work or the carrying out of the controlled activity or aquifer interference activity, and
(c) a direction to ensure that the construction or use of the water management work, or the carrying out of the controlled activity or aquifer interference activity, will not in future adversely affect any water source or waterfront land.
(4) Without limiting subsection (2):
(a) the person who, at the time of the construction or use of a water management work to which this section applies, was the landholder on whose land the work was situated is taken to have control and management of the work, and
(b) the landholder on whose land a water management work is situated, or is proposed to be situated, is taken to have control and management of the work, and
(c) the person who, at the time a controlled activity or aquifer interference activity to which this section applies, was the landholder on whose land the activity was carried out is taken to be carrying out the activity, and
(d) the landholder on whose land a controlled activity or aquifer interference activity is carried out, or is proposed to be carried out, is taken to be carrying out the activity.
The relevant terms are defined in the Dictionary to the WM Act as follows:
controlled activity means:
(a) the erection of a building or the carrying out of a work (within the meaning of the Environmental Planning and Assessment Act 1979), or
(b) the removal of material (whether or not extractive material) or vegetation from land, whether by way of excavation or otherwise, or
(c) the deposition of material (whether or not extractive material) on land, whether by way of landfill operations or otherwise, or
(d) the carrying out of any other activity that affects the quantity or flow of water in a water source.
lake includes:
(a) a wetland, a lagoon, a saltmarsh and any collection of still water, whether perennial or intermittent and whether natural or artificial, and
(b) any water declared by the regulations to be a lake,
whether or not it also forms part of a river or estuary, but does not include any water declared by the regulations not to be a lake.
river includes:
(a) any watercourse, whether perennial or intermittent and whether comprising a natural channel or a natural channel artificially improved, and
(b) any tributary, branch or other watercourse into or from which a watercourse referred to in paragraph (a) flows, and
(c) anything declared by the regulations to be a river,
whether or not it also forms part of a lake or estuary, but does not include anything declared by the regulations not to be a river.
water source means the whole or any part of:
(a) one or more rivers, lakes or estuaries, or
(b) one or more places where water occurs naturally on or below the surface of the ground,
and includes the coastal waters of the State.
waterfront land means:
(a) the bed of any river, together with any land lying between the bed of the river and a line drawn parallel to, and the prescribed distance inland of, the highest bank of the river, or
(a1) the bed of any lake, together with any land lying between the bed of the lake and a line drawn parallel to, and the prescribed distance inland of, the shore of the lake, or
(a2) the bed of any estuary, together with any land lying between the bed of the estuary and a line drawn parallel to, and the prescribed distance inland of, the mean high water mark of the estuary, or
(b) if the regulations so provide, the bed of the coastal waters of the State, and any land lying between the shoreline of the coastal waters and a line drawn parallel to, and the prescribed distance inland of, the mean high water mark of the coastal waters,
where the prescribed distance is 40 metres or (if the regulations prescribe a lesser distance, either generally or in relation to a particular location or class of locations) that lesser distance. Land that falls into 2 or more of the categories referred to in paragraphs (a), (a1) and (a2) may be waterfront land by virtue of any of the paragraphs relevant to that land.
The WM Act does not define "watercourse". The Macquarie Dictionary (online edition) defines that term as "1. a stream of water, as a river or brook; 2. the bed of such a stream; 3. a natural channel conveying water; 4. a channel or canal made for the conveyance of water".
The appeal is brought under s 368(1)(n) of the WM Act, which confers the right to appeal against a decision to give a direction under Part 1 of the WM Act. The WM Act does not specify the powers of the Court on appeal, and the relevant provision is therefore s 39(2) of the Land and Environment Court Act 1979, which provides that for the purposes of hearing and disposing of an appeal, the Court has all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.
Evidence
The hearing commenced with a view of the property, including the existing pipe underneath the access driveway; the access driveway to the property owned by Mr Purcell at 1975 Pacific Highway to the north; the floodgate at Cowper to the north of the property; the access track to 1931 Pacific Highway (owned by Mrs Comerford); and the location of Nappers Drain floodgate to the south of the property.
Expert evidence was provided on behalf of the respondent by Mr Patrick Pahlow, Senior Licensing Officer of the NSW Office of Water. Mr Pahlow carried out an inspection of the site on 10 November 2011, and on that occasion he observed the water level to be of similar height both upstream and downstream of the driveway crossing, with rafts of free floating aquatic plants interspersed with stands of attached submerged and emergent aquatic plants; there was no observable flow on that day. In his expert report (exhibit 1) Mr Pahlow described the water body in the following terms:
10.The water body in question is located approximately 5km north of Ulmarra, NSW, and is located on a floodplain terrace between the Clarence River and the Pacific Highway. The water body is classified as a coastal floodplain lagoon (Green 1997). The morphology of the water source can be described as a fairly flat and elongated body of slow flowing water. The water body is connected to the Clarence River via channelised drainage features, and natural overland flow. It is possible that the water body is a remnant of a former channel of the Clarence River, long since abandoned due to westerly river bend migration.
11.Historical analysis indicates that the water body is a permanent natural feature of the landscape with a portion map (Figure 1), drawn in 1860, identifies the water body as Reedy Creek. Further, the 2004 edition of the 1:25000 topographic sheet, Tyndale 9538-4N, identifies the water body as a perennial lake.
12.The water body receives inflows from floods and rises in the Clarence River. The water body then drains via overland flow to the north and via constructed drainage channels to the south. As water levels fall, a high point in the local topography, indicated as a Watershed in Figure 2, becomes exposed relatively soon and drainage to the north ceases.
13.The water body continues to drain to the Clarence River in the south via constructed drains and a flood gate, approximately 1800mm in diameter. A smaller floodgate is located on the natural channel to the north (Figure 2).
14.The water body supports a variety of floating, and emergent aquatic plants (Figure 3). These aquatic plants are a mix of aquatic and native species typical of coastal floodplain lagoons on the NSW North Coast (Sainty and Jacobs, 1981). Species present include Eichhornia crassipes (water hyacinth) and Juncus spp (rushes). Other aquatic plants that are likely to be present in the water body include Maundia triglochinoides, Triglochin procera and Triglochin striata.
Mr Pahlow was of the opinion that the water body is an elongate channel containing water (para [17]), and thus a "watercourse". The water body receives surface inflows from rainfall in the local catchment and flows originating from rises and floods in the Clarence River (para [20]), and in his opinion it is a watercourse into which another watercourse flows (para [21]). Based on the guidance on the identification of a wetland provided by the NSW Wetlands Policy (2010), the water body would fall within the definition of a wetland (para [24]); it could also be described as a collection of still water when water levels drop sufficiently such that flow to the Clarence River, via the constructed drain, ceases (para [26]).
Mr Pahlow was of the opinion that raising the access driveway, without the provision of adequate cross drainage, is likely to have had two primary adverse effects on the water body, by increasing the depth of water retained behind the driveway and increasing the duration of inundation behind the structure (para [33]). In his opinion those two disturbances to the hydrology of the water source will induce it and its associated ecosystem to move along a trajectory of change towards a fundamentally altered system, which would adversely affect the water source, the associated waterfront land and water users (para [34]). The increased height of the driveway, in conjunction with inadequate cross drainage, will cause a subsequent increase in the depth of water retained behind the driveway during an inflow event, which will cause the water source to have a larger wetted perimeter; that would be inundated for an increased period of time; and the increase in wetted area will occur over land that is vegetated with agriculturally important pasture species which are generally not tolerant of inundation by flood waters (paras [37]-[39]). Mr Pahlow provided details of the impacts of inflows of turbid flood water retained at increased depth for longer duration (paras [40]-[43]); impacts from increase in the area of saturated and water logged soils (paras [44]-48]); and increased impacts from land use practices; and increased rate of sedimentation (paras [49]-51]).
Expert engineering evidence was provided by Mr Drew Bewsher, on behalf of the respondent, and Mr William Kenneth Paterson, on behalf of the applicant. Mr Bewsher's expert report dated 22 November 2012, and two joint reports prepared by Mr Bewsher and Mr Paterson dated 5 December 2012 and 17 December 2012, were in evidence (exhibits 2, 3 and 4 respectively). In their first joint report dated 5 December 2012 (exhibit 3) Mr Bewsher and Mr Paterson agreed that the work undertaken by Mr McKeown had elevated the lowest parts of his access driveway from approximately RL 1.7m AHD to RL 2.25m AHD, and acknowledged that the effect of the Direction would be to reduce the roadway to RL 1.7m AHD, while Mr McKeown wishes to maintain his access driveway height and place additional pipes beneath the access. Mr Bewsher and Mr Paterson agreed that the access driveways act like a series of linked detention basins, until they are overtopped by flood waters, where the delays in drainage relate to storage versus volume relationship caused by the local topography; pipes below and flow over each driveway; the inflow hydrograph from the Clarence River; the prevailing water level in the Clarence River at any one time; and the proper functioning of the Cowper and Nappers Drain infrastructure. The raised driveway level will not have an effect when the water levels in the water body are lower than 1.7m AHD, and similarly once water levels rise high enough to fully submerge the driveway, overflows are unaffected by the height of the driveway. In his expert report (exhibit 2, [72]-74]) Mr Bewsher noted that after Mr McKeown's driveway was raised in 2010 about 0.5m at its lowest point, subsequently a causeway was cut into the surface so that the lowest point of the driveway is now about 0.2m higher than the lowest point on the original driveway; that prior to any raising, his driveway was approximately the same level of the driveway of his immediate downstream neighbour, and those two driveways were the highest of any of the driveways along the water body; and that raising of the driveway has increased water levels on Mr McKeown's neighbours' properties. Mr Bewsher did not support the installation of pipes as proposed in the application for a controlled activity approval because of the risk of blockage (exhibit 2, para [76]).
In their second joint report dated 17 December 2012 (exhibit 4) Mr Bewsher and Mr Paterson agreed that it is possible to prepare an engineered solution that approximately replicates the hydraulic behaviour of the original driveway without necessarily reinstating the levels of the original driveway. That joint report addressed a proposal made by Mr Paterson for construction of a new causeway that would allow the free passage of water, comprised of a base 1m wide at RL 1.55m AHD and a top width of 21.2m; Mr Bewsher proposed a modification to the width of the base and the top width. The experts noted that further consideration was needed in relation to the extent of scour protection required and the base width required. The experts subsequently reached agreement on those issues, which is now reflected in the Specified Measures proposed in the amended Direction.
Both parties had filed additional expert reports, and affidavit evidence, which was not in the end formally in evidence. The respondent's expert reports included reports by Mr Jim O'Donohoe, a surveyor; Mr Donald Findlay, senior licensing officer, and Mr Peter Poolman, a retired licensing officer; and an affidavit sworn by Mr Brian Purcell, owner of 1975 Pacific Highway. The applicant had filed an expert report provided by Mr John Weatherall, traffic engineer, and affidavits sworn by Mr McKeown, and by Mr Barry Freemen, Mr Keith Connor, Mr Stephen Baker, Mr Wayne Brown, and Mr Michael Corbett, all contractors; and Mr David Gillett and Mr Lance Timms.
Consideration
It was common ground that the work undertaken by Mr McKeown in 2010 fell within the definition of "controlled activity" in the WM Act, as the deposition of material; and that there was no controlled activity approval in force under Part 3 of the WM Act. It was common ground that Mr McKeown is the registered proprietor of the property, and is therefore the landholder on whose land the controlled activity was carried out for the purposes of s 333(4) of the WM Act.
Based on the evidence of Mr Bewsher (exhibit 2, figure 2), which was not in dispute, the effect of the work was to raise the level of Mr McKeown's driveway to RL 2.25m AHD, and at that level Mr McKeown's driveway is higher than the driveways of the neighbouring properties (being Windmill 1.58 and Stokes 1.72 to the south, and Comerford 1.55, Dawe 1.20, and Purcell 1.32 and 1.11 to the north); the agreed high point to the north is RL 1.8m AHD. I accept Mr Bewsher's evidence that while the subsequent cutting of the causeway has lowered that level, raising the driveway has increased the water levels on the neighbouring properties.
Based on the evidence of Mr Pahlow, I am satisfied that the area in which the driveways of Mr McKeown and his neighbours are located is a natural channel conveying water, and thus is a "watercourse" as defined in the Macquarie Dictionary. As a "watercourse", the water body is a "river" as defined in the WM Act, and, whether or not it is also a "lake", it is therefore a "water source" as defined in the WM Act. I accept the evidence of Mr Pahlow, summarised at [15] above, as to the likely effects of the raising of the access driveway, without the provision of adequate cross drainage, on that water source.
Based on those findings, I am satisfied that the requirements of s 333(1) are met for the issue of a direction under s 333(2) to take specified measures to prevent, minimise or mitigate any adverse effect on the water source as a consequence of the carrying out of the activity.
The parties have agreed on the details of construction of a causeway, associated works required to provide scour protection to the surface and batters of the causeway to prevent erosion, and stabilisation of areas disturbed by the works including by sowing a pasture grass mix. The bottom of the proposed causeway is to have a finished road surface level not above 1.55m AHD over a distance of at least 10m. I accept the agreed evidence that those measures will result in the construction of a causeway of sufficient width and stability, and at a height, so as to ensure that flood waters are not held back, that would replicate the hydraulic behaviour of the original driveway. On the evidence before me I am satisfied that the carrying out of these measures will ensure that the carrying out of the work by Mr McKeown will not in future adversely affect the water source, and thus fall within the measures that may be specified in a direction under s333, as provided in s 333(3)(c).
Conclusion
I am satisfied that it is lawful and appropriate to make the orders sought by the parties. The orders of the Court are, by consent:
1. Appeal allowed.
2. Pursuant to s 39(2) of the Land and Environment Court Act 1979, in exercise of the functions and discretions of the Minister administering the Water Management Act 2000 ("the Act") and being satisfied that a controlled activity (being the deposition of material on the applicant's driveway crossing) is having, has had, or is likely to have, an adverse effect on a water source or waterfront land within s 333(1) of the Act, the Court directs the applicant to take the specified measures set out in the attached document to prevent, minimise or mitigate any adverse effect on the water source partly located on the applicant's land and any adverse effect on associated waterfront land, as a consequence of the deposition of material on his driveway crossing, pursuant to s 333(2) of the Act.
3. The exhibits are returned except for exhibits A and 5.
Linda Pearson
Commissioner of the Court
Decision last updated: 21 December 2012
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