Meara v The Commissioner of Water Resources

[1990] QLC 33

[1990] QLC 33

 

  LAND COURT,

BRISBANE

13th November, 1990

Re:     Appeal under s. 12 of the Water Act 1926-1987.
                  A90-13.

Michael John Meara and Others
  v.
  The Commissioner of Water Resources

D E C I S I O N

(Hearing at Toowoomba)

This is an appeal against the decision of the Commissioner of Water Resources to cancel Waterworks License No 13003 on the ground that the licensees had not, to the satisfaction of the Commissioner, beneficially used the water which they were entitled to divert under the license.
                  The facts here are not in dispute.  The history is that Waterworks License No 13003 was issued to Mr L.K. Meara on 14th September, 1962, for a 100 mm centrifugal pump to divert water from the Condamine River for the purpose of irrigating 40 acres (16 hectares) of pastures on Portion 724, parish of Talgai.  In early 1966 the Upper Condamine Irrigation Project was proclaimed following the completion of the Leslie Dam on Sandy Creek near Warwick.  The object of the project was, and remains, to supplement normally unreliable flows in the Condamine River and Sandy Creek from Leslie Dam downstream to Cecil Plains.  The Commissioner in 1966 offered the owners of all properties in the Project area the opportunity to take a regulated supply from the Project.  Mr L.K. Meara accepted the offer and the License was amended in July 1966 to entitle him to 60 acre feet (74 megalitres) of water per year from the Project.  This volumetric allocation replaced his previous entitlement which was based on an area of cropping.  By late 1968, a pump and irrigation equipment had been installed and beneficial use of the water was made until mid-1975.  The then licensee died in August, 1975, and the license was transferred to his four sons in June 1976.  The irrigation spray lines were destroyed in flooding in 1976.  No water has been pumped since that time.
                  One of the conditions attaching to the license reads:

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

On 27th March, 1986, the appellants were asked by letter to show cause why the license should not be cancelled due to non-beneficial use.  In response to this letter the appellants notified the Commissioner they had not yet replaced the irrigation equipment which was damaged in the February 1976 flood and that it would be replaced in the "near future" and that they would fully utilize their allocation.  The license was renewed for two and one half years to August 1988.  No use had been made of the water and by letter dated 31st August, 1988, they were again asked to show cause why the license should not be cancelled due to non-beneficial use.  The same explanation was given for the non use and the license was renewed to 31st August, 1989.  On 30th August, 1989, the appellants again applied to renew the license and a decision was reached that the licensees had had ample time to replace damaged irrigation equipment and to make beneficial use of their license and that they have been made fully aware of the consequences of failing to make beneficial use of the water.  In the result, the licensees by letter dated 24th January, 1990, were advised that the Commissioner had decided to cancel the License No 13003 on the ground that they had not to the satisfaction of the Commissioner beneficially used the water which they were entitled to divert under the license.  An appeal against this decision was lodged in the Land Court on 28th February, 1990.
                  Evidence was given by Mr Michael John Meara who acknowledged that no beneficial use had been made of the water available under the license since the irrigation spray lines were destroyed in 1976.  He says that financial restraints made it impossible to replace the spray lines.  The present partnership is being dissolved and the existence of the Waterworks License would have a material affect on the sale price if a sale is necessary following dissolution of the partnership.  In the circumstances he asks that the Court direct that the application for renewal be granted.
                  I am unable to see how this Court can assist the appellants in any way.  It is a condition of the license that the licensee shall to the satisfaction of the Commissioner beneficially use the water which is entitled to be diverted under the license.  The licensees have not made use of the water allocation since mid 1975.  On the evidence the Commissioner has been most tolerant in delaying any final action and has given ample warning to the licensees of the consequences which would follow their failure to beneficially use the water.  I can find no grounds where this Court can intervene in a case where a licensee has failed to comply with the condition in the license to beneficially use the water.  It follows that the appeal fails.
                  Accordingly the appeal is dismissed.

(D.J. Barry)       
  President of the Land Court