Merchin v Chief Executive, Department of Natural Resources
[1999] QLC 134
•23 December 1999
|
BRISBANE
23 December 1999
In the matter of an appeal under section 51 of the Water
Resources Act 1989.(A98-47).
Stephen Leslie Merchin
v.
Chief Executive, Department of Natural Resources
(Hearing at Rockhampton)
D E C I S I O N
This is an appeal by Mr Stephen Leslie Merchin (the appellant) under section 51 of the Water Resources Act 1989 (the Act) against the decision of the Chief Executive, Department of Natural Resources (the respondent), refusing his applications for the amendment of his two existing Waterworks Licences Nos 51509 and 51510, to increase the area of irrigation entitlement from 20 hectares to 40 hectares.
Background:
Nord Say Lagoon is a freshwater lagoon situated on the flood plain of the Fitzroy River near Ridgelands, approximately 20km north-west of the City of Rockhampton. The lagoon is over 2.5km in length, with a maximum depth of about 6.5 metres and a capacity of between 1283 megalitres (Mr Warner) and 1323 megalitres (Mr Walford). The lagoon is connected to the Fitzroy River by De Burgh Creek on the north and Sandy Creek on the south.
Nord Say Lagoon receives its water principally from two sources. Ridgelands Creek, which has a catchment area of about 115 square kilometres, flows into the lagoon near its southern end. When the lagoon is full, water flows out through both De Burgh and Sandy Creeks. However, when the Fitzroy River is in flood and the level reaches the control height of the entry point in De Burgh Creek, flood water enters the lagoon from the river and when the lagoon is full, water flows out through Sandy Creek, back into the Fitzroy River. The lagoon is most likely to fill during the summer wet season through high-level flooding of the Fitzroy River and/or local catchment runoff from Ridgelands Creek. Until the next wet season the lagoon storage is depleted through evaporation and usage, with little potential for replenishment.
At maximum capacity, the lagoon backs water up Ridgelands Creek for approximately 2.4km. As the storage in the lagoon is depleted, the backed-up water quickly recedes. There may also be some water in De Burgh Creek when the lagoon is full. The lagoon does not fill every year. There have been periods of up to three to four years when the lagoon has not filled, because there was no flooding, or insufficient flooding, in the Fitzroy River.
Upstream of the lagoon on Ridgelands Creek is a weir with a 30 megalitre storage capacity. The impact of the weir upon the lagoon was the subject of some contention in the present case.
Irrigation Licences:
Departmental records indicate that the original licences to divert water from Nord Say Lagoon for irrigation purposes were issued in 1937, when the owner of riparian land was granted a waterworks licence for a 50 millimetre centrifugal pump to irrigate eight hectares. The property changed hands several times, with a number of the then owners seeking to increase both pump size and area of irrigation. In 1969 the Department granted increases in pump size and an increase in the area to be irrigated to 20 hectares.
In 1980 the then owner of the property now owned by the appellant applied to increase the area of irrigation entitlement from 20 hectares to 40 hectares. The application was refused on the grounds that the water source was fully committed and that any increase would have an adverse effect on the existing entitlement of riparian owners and licensees. It was then, and still remains, Departmental practice to allocate up to 50% of waterhole storage capacity for irrigation use. This ensured that storages would not fall to levels which would detrimentally affect the environmental values of the lagoon system.
After a further change of ownership of the property, in 1990 the new owners applied to increase the irrigated area from 20 hectares to 50 hectares and to include pumps on both Ridgelands Creek and on the lagoon. The application to install a second pump was granted, but the application to increase the irrigation area was refused on the grounds that there had been no change in circumstances since the previous refusal. Between 1980 and 1990 the lagoon had been at very low levels and other licensee-irrigators objected to the granting of a further irrigation entitlement as it would put the lagoon under further stress.
In 1990 the properties riparian to the Nord Say Lagoon and the relevant part of its system were "Iona", which was riparian to the south and part of the west of the lagoon and part of the south of Ridgelands Creek, with an irrigation entitlement of 20 hectares, owned by B and H Waters; "Araluen", riparian to the remainder of the west of the lagoon and part of the north of Ridgelands Creek, with an irrigation entitlement of 40 hectares, owned by KH and K Lanyon; "Waterview", riparian to the east and north of the lagoon and part of De Burgh Creek, with an irrigation entitlement of 40 hectares, owned by J Bredhauer; and "Birrahlee", although not riparian to the lagoon, riparian to the lower reaches of Ridgelands Creek, with an irrigation entitlement of 16 hectares, owned by WG Robertson.
Mr Merchin purchased "Iona" from the Waters in November 1991 and the licences entitling the use of two pumps to irrigate 20 hectares in conjunction, were transferred to him. In 1993, he applied to the Capricorn Electricity Board to change from single-phase to three-phase power, because the electric motor on the pump kept burning out. According to Mr Merchin, a guarantee of $22,000 was required to change the power which, together with associated costs, rendered the feasibility of such a project dependant upon increased production which required an increase in irrigation area. Accordingly, he applied on 21 October 1993 for amendment to existing Waterworks Licences 51509 and 51510 to increase the area of irrigation from 20 hectares to 40 hectares in conjunction, and to include stockwatering as an additional purpose of works.
In May 1994, before his applications had been dealt with, the appellant purchased Lot 61 and, jointly with his mother, Mrs BJ Merchin, purchased Lot 22, both of which had been part of "Birrahlee". Lot 61 adjoined "Iona" to the north and Lot 22 was immediately to the west of Lot 61. Another part of "Birrahlee", Lot 21, immediately to the west of "Iona" and to the south of Lot 22, was purchased by Mr Paul Kirkwood. At some stage Lot 8, which also had been part of "Birrahlee", situated to the north of Lot 61 and upon which the weir on Ridgelands Creek was constructed, had been sold to a purchaser named Torresi.
When owned by Mr Robertson, "Birrahlee" was watered by three bores, one each on Lots 21, 22 and 37, Earth Weir Licence No 51516 on Ridgelands Creek on Lot 8, together with Irrigation and Stock Watering Licence No 51517. In addition, there was a Stock and Domestic Water Permit No 2180 to pump from Ridgelands Creek on Lot 61. Apparently water was pumped from Ridgelands Creek by means of a diesel pump located on the road reserve between "Iona" and Lot 61, to tanks on Lot 61 which supplied houses on both Lot 22 and Lot 21, as well as stock water. When he purchased the parts of "Birrahlee", Mr Merchin thought that the pump went with either Lot 61 or Lot 22. However, he later discovered that it went with Lot 21, and that there was to be a share arrangement for water from the tanks on Lot 22. However, no such shared water agreement was completed.
Subsequently Mr Kirkwood subdivided Lot 21 into three lots and applied for a licence to pump from Ridgelands Creek to Lot 21. All riparian owners objected to that application. One of the surveyed lots was purchased in May 1995 by PJ and SL Murphy, who applied in July 1995 for a licence to pump from Ridgelands Creek for stock and domestic purposes. Again Mr Merchin objected to the application, but the Murphys' application was granted. Mr Merchin appealed to the Land Court against that decision, but the appeal was withdrawn.
The Present Applications:
As stated earlier, the appellant applied on 21 October 1993 for amendment of his existing waterworks licences to increase the area to be irrigated from 20 hectares to 40 hectares and to add stockwatering as an additional purpose of works. In accordance with the requirements of the Act, the applications were advertised, which produced two objections by the then riparian owners of "Araluen" and "Waterview". The objectors' main concern was the impact that the granting of additional irrigation entitlement would have on the water resource and on their ability to divert water for their own entitlements.
Finally, some five years after making the applications, Mr Merchin was advised by letter dated 11 September 1998 that it had been decided to grant the application to include stockwatering as an additional purpose of works. However, his application to increase the area of irrigation from 20 hectares to 40 hectares was refused. Mr Merchin appealed against the latter decision on 16 October 1998.
Grounds of Appeal:
There were seven grounds of appeal, three of which were merely statements of fact which were uncontested. The other four grounds were as follows:
"4. The decision of the Chief Executive is wrong as the Applicant is a riparian owner and yet an Application to pump water has been granted to a non-riparian owner. In the normal property market, riparian owners pay a premium for waterway frontage and have to endure disadvantages such as flooding that are a normal part of having waterway frontage.
5. The property of the Appellant is under-utilised due to the constraint of insufficient water allocation to increase irrigated area for fodder crops.
6. The property "Birrahlee" has been subdivided and the Appellant is the registered proprietor of Lot 61 on Registered Plan LM579. As the now riparian owner of Lot 61, the Appellant should be entitled to a portion of what previously had been allocated to the owners of the entire property "Birrahlee" without the need to deprive other riparian owners.
7. Sixteen hectares has been taken off the Nord Say Lagoon storage (Lot 61) and allocated to the weir upstream in Lot 8 which is not connected to the Nord Say Lagoon, increasing available capacity in the Nord Say Lagoon Storage area. "
The Hearing:
The hearing took place in Rockhampton on 13 and 14 October 1999. Mr A Arnold, of counsel, appeared on behalf of the appellant and Mr D Grealy, of counsel, appeared on behalf of the respondent. Expert evidence was given for the appellant by Water Engineer Mr BP Walford and for the respondent by Mr SC Warner, Technical Officer, Stream Management, and by Mr M Clewley, Operations Manager, both employed in the Water Resource Allocation and Management Section of the Department of Natural Resources.
The Relevant Legislation:
The Act provides that a licensee may make an application for an amended licence (section 45(1)). Such an application must be dealt with in the same manner as if it were an application for a licence in the first instance (section 45(2)). The procedure involved in an application for a licence is provided for in section 42. Upon an application being made, the respondent is required to cause inquiry to be made into a number of matters before deciding whether to grant or refuse the application. These include the availability and sufficiency of water to supply the requirements of riparian owners, licensees and the applicant, as well as the effect that the granting of the application will have or is likely to have, on entitlements of riparian owners and licensees (section 43(1)). After inquiry, the respondent may either grant the application (absolutely or subject to modifications or variations), or refuse the application (section 43(2)).
Section 51 provides for appeals against the decision of the Chief Executive. The notice of appeal must state the grounds upon which the appellant intends to rely and the appellant is not entitled to raise on the appeal a ground not stated in the notice (section 51(5)). The burden of proof of a ground of appeal lies on the appellant (section 51(9)). The Land Court must hear and determine the appeal and may confirm, vary or revoke the decision of the Chief Executive (section 51(7)).
The Case for the Appellant:
The case for the appellant is summarised in his grounds of appeal upon which Mr Merchin elaborated in written and oral evidence. The argument proceeded as follows:
The appellant is now a riparian owner of Lot 61, having purchased that land which was previously part of the property known as "Birrahlee" and added it to his own property known as "Iona", which has an existing 20 hectare irrigation entitlement from Nord Say Lagoon and/or Ridgelands Creek. While in previous ownership, "Birrahlee" had a licence for a 16 hectare irrigation entitlement to pump from Ridgelands Creek, which was voluntarily surrendered by the then owners in 1984. Subsequently, the owners of "Birrahlee" constructed a weir on Ridgelands Creek on Lot 8 upstream of Lot 61. In September 1990, they were granted a licence to pump from the weir to irrigate 16 hectares. The Commissioner considered that licence replaced the licence voluntarily surrendered.
The property of the appellant (now comprising the original "Iona" plus the two lots of "Birrahlee" since purchased) is under-utilised because there is insufficient water allocation to increase the irrigated area for fodder crops. The appellant should be entitled to a portion of what had previously been allocated to the owners of "Birrahlee" without the need to deprive other riparian owners. In other words, the surrendered licence "saved" a 16 hectare entitlement from being committed from the Nord Say Lagoon system. It had later been transferred to the weir, which is separate to the lagoon system. Therefore, the appellant as the purchaser of Lot 61, which is riparian to the lower reaches of Ridgelands Creek, should be allocated what had previously been the entitlement of "Birrahlee", without adversely affecting other licensees.
The Chief Executive cannot refuse to grant an increased allocation to the appellant who is a riparian owner, yet grant an application to pump water to a non-riparian owner (Mr Murphy). Riparian owners should have the first (perhaps only) entitlement to water, as they pay a premium for the advantage of water frontage, yet have to endure the disadvantages, such as flooding, that are a consequence of water frontage.
The essence of Mr Merchin's argument is that there is sufficient water in the Nord Say Lagoon system to allow the additional allocation to be granted. He said that he has never had trouble with his allocation, but he also said that he has not made much use of the irrigation. He uses the property for breeding and fattening cattle. He seemed to have no firm plan as to what he would do with the extra water. He said that if granted the extra 20 hectares entitlement, he would have several options: he could either go back to dairying, but he wanted to see what happened with the deregulation of the dairy industry; he could continue with cattle grazing in conjunction with crops such as cotton, sorghum and wheat; or he could irrigate small crops, such as pumpkins and melons. His present irrigation system comprises underground mains with travelling irrigators or spray lines and a small area of flood irrigation. Options in the future could be trickle irrigation, or flood irrigation, or a combination of both.
There was also some evidence that the other riparian licensees had not been making full use of their irrigation entitlements. Mr Merchin alleged that about two years ago Mr Warner told him that negotiations with the then owners of the other riparian properties, Mr K Lanyon of "Araluen" and Mr C Knuth of "Waterview", had enabled him to offer Mr Merchin an additional 15 hectares of entitlement. The arrangement was to be that Mr Lanyon would relinquish 10 hectares of entitlement and Mr Knuth 5 hectares. However, Mr Merchin said that such an arrangement was conditional upon his withdrawing his objection to the Murphys' application for a licence.
According to Mr Merchin, he rejected the proposed arrangement as he thought that it was unfair in principle to the other riparian owners to take water from them, while allocating water to a non-riparian owner. He was aware that the Murphys' application was for stock and domestic purposes, for which 1 megalitre would be granted, but it seems that he was more concerned about the precedent it would create, which could be used to extend similar allocations to other non-riparian owners.
Mr Warner confirmed that he had discussed Mr Merchin's application with the other two licensees and a proposal was canvassed regarding a possible voluntary reduction in their allocations. However, the proposal did not proceed and is not now possible as both "Araluen" and "Waterview" have since been sold.
Mr Walford's Evidence:
Mr Walford had been engaged by the appellant to carry out an analysis of the behaviour of the Nord Say Lagoon system under existing allocations and assess the effect that an additional demand of 120 megalitres would have on the system. Mr Walford explained that he used a daily water balance model to simulate the fluctuations in water level in the lagoon. The model took into account the following parameters: catchment runoff, direct rainfall on the lagoon, inflow from De Burg Creek, evaporation from the lagoon, pumping of water from the lagoon for irrigation and pumping of water from the lagoon for stock and domestic purposes.
Mr Walford explained where he obtained the data for each of the various parameters. They were not contested by the witnesses for the respondent. Indeed, Mr Clewley conceded that Mr Walford's measurement of the catchment of Ridgelands Creek at 115 square kilometres was probably more accurate than the Department's measurement of 9000 hectares.
There was no significant difference between the Department and Mr Walford about the hydrology of the lagoon. He explained that flood waters from the Fitzroy River cover the lagoon and surrounding areas during large flood events. However, the magnitude of flooding does not occur regularly. At other times, Nord Say Lagoon is higher than the water level in the Fitzroy River, so water does not flow from the river into the lagoon. During more frequent, moderate flood events in the river, water is able to flow backwards up De Burg Creek and supply the lagoon, which is a significant source of supply for the lagoon. Surveys established the level at which water begins to flow into the lagoon from De Burg Creek and stream gauge data from the Yaamba Gauge was supplemented with flow data from the Gap Gauge located further upstream. Calculations were made of the inflow into the lagoon over an 84 year period.
Mr Walford's water balance modelling was based on irrigation usage of 50% of the lagoon storage capacity (the Departmental limit) and 75% (his recommended limit) of the storage capacity of the lagoon, which equate to drawdowns of 1.8 metres and 2.8 metres respectively. It was assumed that once the water level fell below these depths, all irrigation would stop, but that evaporation and stock and domestic demand would continue.
The model measured reliability over a period of 84 years for which they were records. As I interpret the results of Mr Walford's modelling, the model was run to ascertain daily reliability (i.e. the number of days in which pumps could operate) at both 50% and 75% utilisation of the storage of the lagoon, for what he assumed to be the present allocation of 620 megalitres and for 740 megalitres, if the additional 120 megalitres was granted. At 50% utilisation of the storage, daily reliability fell from 68% at 620 megalitres demand to 63% at 740 megalitres demand. At 75% utilisation of the storage, daily reliability fell from 86% at 620 megalitres demand to 82% at 740 megalitres demand.
The main difference between Mr Walford's assumptions and those of the Department, are that Mr Walford did not include the 96 megalitre allocation from the weir on Ridgelands Creek as part of the system.
It was common ground that annual reliability is the widely used measure of storage performance undertaken for cost benefit analyses of proposed irrigation schemes. According to Mr Walford, annual reliability is the number of years the lagoon can meet the total of all allocations if called upon to do so. The years that it cannot are regarded as failures. In the present case, if the crop did not receive water for more than seven days it was regarded as a failure.
Mr Walford reported the results of his modelling as follows:
"To increase Mr Merchin's allocation by 120 megalitres per annum would have the following effect on annual reliability to all users:
(a)at 75% utilisation:
· annual reliability reduced from 58% to 46% (July to June) or from 58% to 44% (January to December)
(b)at 50% utilisation:
· annual reliability reduced from 19% to 13% (July to June) or from 8% to 5% (January to December). "
The modelling also showed what the water level fluctuations would have been for 75% utilisation over the period 1915 to 1988 with the increased allocation. That showed that when the pumps are switched off, with 25% of the storage volume remaining, the storage would not have emptied at any time thereafter from evaporation and, with one exception (January 1988), the stock and domestic drawdown would not have been below 4 metres from the full level.
From those results, Mr Walford concluded that even if the allocation applied for was not granted, reliability would be poor if irrigators were unable to use more than 50% of the lagoon's storage capacity. Therefore, he reasoned that a utilisation of not less than 75% is more realistic. At that utilisation, the model showed that the increase of 120 megalitres per annum would reduce the annual reliability of supply by only 12% from 58% to 46% for the July to June year. He thought that the reduction in annual reliability arising from an additional allocation of 120 megalitres per annum would not have any real impact on the irrigated crop production of other landowners.
Mr Walford made it clear that he thought that the Department's policy of 50% utilisation for irrigation was conservative. However, he admitted that he "cannot answer the environmental question" and that the drying up of the lagoon was the only issue in this case.
The Case for the Respondent:
Mr Warner was the principal witness for the respondent. He explained that his responsibilities included surface water licensing and surveillance and the preparation of reports on applications for waterworks licences. He carried out investigations into Mr Merchin's application in 1995. He did not explain why it took so long to commence the investigations, except to say it was due to pressure of work.
He visited the property in June 1995. Mr Merchin advised him of his intention to grow sorghum and lucerne which required irrigation during dry periods, which would normally correspond with low water supplies. At that time, the water level was very low (about 50% capacity) and no irrigation was carried out by Mr Merchin. He told Mr Warner that since purchasing the property he had not irrigated extensively. He had irrigated only about 8 hectares of natural pastures in 1994. According to Mr Warner, there has been no irrigation of any significance since then, certainly not approaching the 20 hectares authorised by the appellant's licences.
Mr Warner contended that the appellant had been "very vague" about his proposed use of any additional irrigation capacity. Despite being given the opportunity to provide additional information which would assist the Department's investigation, such information was not provided. The Department therefore assumed that irrigation requirements would not exceed 6 megalitres per hectare per year, a figure typically used by the Department in that locality to estimate the water requirements for seasonal cropping.
Mr Warner reasoned that current irrigation licences were held by three riparian owners to the Nord Say Lagoon to irrigate a total of 100 hectares (Tighe 40 hectares, Maguire 40 hectares, and Merchin 20 hectares). At 6 megalitres per hectare per annum, annual irrigation demand on Nord Say Lagoon amounted to 600 megalitres. Stock and domestic requirements from the lagoon were estimated at 20 megalitres per annum. In addition, the Department considered that the licence for 16 hectares of irrigation from the weir located on Ridgelands Creek on Lot 8 was part of the irrigation demand on the lagoon system, adding another 96 megalitres to the annual irrigation water demand.
Mr Warner reasoned that the weir capacity could not be considered to be additional to the lagoon storage, because there would be so few occasions when the weir overflowed and Nord Say Lagoon was at maximum level. As I understand his reasoning, on most occasions the water which is captured by the weir would have contributed to the supply of Nord Say Lagoon and therefore the licence to pump 96 megalitres per annum from the weir must be considered to be part of the demand on the lagoon storage. I accept that reasoning.
Mr Warner explained that that the Departmental management practice was to allocate up to 50% of the storage capacity of stream waterholes for irrigation purposes. This would allow sufficient water to remain in dry times to meet environmental needs as well as meet the needs of riparian owners. Landowners usually voluntarily restricted irrigation at times of limited supply. Where necessary, the Chief Executive may impose restrictions on water use. Objections from other riparian owners to applications to increase irrigation capacity have expressed the view that the current level of commitment ensures that the storage is able to meet their irrigation requirements as well as providing a level of protection for environmental needs.
Mr Warner went on to explain that the Department had thought that the maximum storage capacity of Nord Say Lagoon was 1660 megalitres. The present irrigation demand of 696 megalitres per annum represented 42% of that capacity. However, as part of the investigation into the present application, the Department undertook a measurement of the lagoon which determined that its maximum storage capacity was only 1283 megalitres. The detailed cross-section measurements of the lagoon were accepted by Mr Walford for the appellant, although he arrived at a slightly different maximum capacity of 1323 megalitres. Based on a storage capacity of 1283 megalitres, existing irrigation demand represents 54% of that capacity, meaning that the lagoon is more committed than previously thought and already exceeds the 50% limit. A storage curve for Nord Say Lagoon produced by Mr Warner, shows that while the maximum depth is 6.6 metres, 58% of the capacity is within the top 2 metres of storage.
Mr Warner concluded that the granting of any additional entitlements would reduce the reliability of supplies, which are already severely limited over extended periods when the lagoon is at low capacity. Restrictions have been avoided only through the co-operation of the riparian landowners. He went on to say that the natural environment of the lagoon system is dependant on water for diverse eco system of aquatic life including fish, platypus, turtles and riparian vegetation which need to be considered when allocating and managing water resources.
Mr Warner expressed the opinion that the Department would need to consider applying restrictions on water usage when the level in the lagoon fell to within two metres of maximum storage capacity. That would be consistent with the voluntary restraint by licensees. The usage of a greater part of the storage capacity for irrigation purposes would result in a much greater threat to the natural environment of the lagoon and would not comply with the draft Fitzroy Basin WAMP under consideration by the Government. Therefore, he concluded that the increase in irrigation demand could not be justified.
Mr Clewley gave technical evidence in support of Mr Warner's reasoning. He reported as follows:
"Typically the filling of the lagoon is most likely to occur during the summer wet season through high level flooding of the Fitzroy River and/or local catchment runoff from Ridgelands Creek. After March, the probability of Fitzroy flood inflow or significant local catchment runoff would be very low. The lagoon storage over the following months is depleted through evaporation and usage with minor potential for replenishment from rainfall and inflow from Ridgelands Creek."
He provided the following water balance in the lagoon system for the period April to December inclusive, following a wet season filling:
Evaporation (0.8 x average US Pan of Evaporation) – 438 megalitres
Rainfall (average) + 154 megalitres
Inflow (median inflow from Ridgelands Creek) + 177 megalitres
Natural water balance – 107 megalitres
Water use for irrigation (based on 696 megalitres
irrigation demand per annum) – 522 megalitres
Net water balance – 629 megalitresThe sources of the data for the water balance were explained in Mr Clewley's report. They were not challenged by the appellant. Mr Clewley went on to say that the water balance figures show that the natural water balance (i.e. without use) is dominated by evaporation which, in itself, would result in significant depletion under drier than average conditions. In dryer periods the deficit would be considerably greater, which would correspond to periods of greatest irrigation demand. In the total water balance, irrigation use is dominant and is therefore a major factor influencing the rate of depletion of the lagoon storage. The lagoon does not fill every year and there are extended periods of up to three or four consecutive years when filling would not occur.
Of the Department's policies concerning the reliability of supply for irrigation purposes in the Fitzroy Basin, Mr Clewley reported that Departmental standards to ensure levels of supply reliability to provide a reasonable security of a return on irrigation development investment were:
· greater than 80% monthly reliability for regulated supplies in major river systems supplemented by storages;
· 75% annual reliability for on-farm water supply design projects.
However, the Department had not attempted to establish the reliability of supply for Nord Say Lagoon, because of the extended periods of several years without replenishment. Irrigation practice was more opportunistic because of the hydrologic behaviour of the lagoon, which meant that irrigators using the lagoon need to be able to manage relatively long periods when water was not available.
In commenting on the appellant's arguments, Mr Clewley pointed out that Mr Walford prepared his graphs assuming an irrigation demand of 740 megalitres, whereas total demand was 836 megalitres (i.e. including the 16 hectare, or 96 megalitre irrigation entitlement from the weir). If the demand of 836 megalitres had been used in Mr Walford's model, storage would have been depleted further and the reliability of supply would have been less than the model predicted.
He also expressed concern that Mr Walford did not address the potential environmental impact nor justify the utilisation of 75% of the storage capacity, which would often require a drawdown of 3 metres or more. In his opinion, this would have a significant impact on supply reliability.
Mr Clewley thought that a very comprehensive environmental impact study would be required to determine the environmental impact of each scenario. He had been involved in the Fitzroy River Allocation and Management Plan (WAMP), the draft of which was being considered by the Government and into which there had been considerable scientific input. The draft WAMP proposed constraint on use from natural waterholes to prevent them from drying out and maintain last places of refuge for aquatic fauna, and to maintain the natural longitude connection of low flow habitats throughout the system.
During the course of his oral evidence, Mr Clewley made it clear that he accepted the methodology adopted by Mr Walford in his hydrologic analysis, which he regarded as standard methodology. He also agreed that, apart from the irrigation demand on the lagoon system, Mr Walford's assumed parameters appeared to be reasonable.
Mr Clewley supported the Departmental policy of allocating no more than 50% of the storage for irrigation purposes, which had resulted in no problem with supply nor any significant environmental problems. This had been a matter of self-regulation. Most people were environmentally conscious and relied on the lagoon system for stockwater as well as for irrigation. If it was continued, Mr Clewley thought that the greatest impact of granting the increase applied for would be on the reliabilities of other licensees. The present reliabilities were poor, and any increase in allocation would reduce them further.
Commenting on the storage curve, Mr Clewley said that at 75% utilisation the drawdown would be 3 metres. At that level the storage curve shows a marked reduction in surface area. At 4 metres very little water remained. A little lower than that and the lagoon would break up into a series of small water holes which would stop the movement of species. If the appellant was granted an additional 120 megalitres, that would reduce the annual reliability of existing licensees. Mr Clewley thought that the Department's role was to ensure that did not happen.
The Duty of the Chief Executive:
I am satisfied that the respondent has complied with the requirements of the Act. He has inquired into the availability and sufficiency of water to supply the requirements, not only of the applicant, but also of others, including riparian owners and licensees. The respondent has also inquired into the effect that the granting of the application is likely to have upon the entitlements of riparian owners and licensees. In addition, the respondent inquired into the likely environmental consequences of granting the application.
In this case I am told that the decision maker was a Mr Kerry Marler, Senior Technical Officer, who had been delegated by the respondent to exercise his functions in that regard. However, the inquiry had been carried out by Mr Warner and some technical and other advice had been provided by Mr Clewley. They concluded that there was not the availability and sufficiency of water to meet the requirements of the other riparian owners and licensees, let alone the additional entitlement applied for by the applicant. They were also of the opinion that the granting of the application would have a detrimental effect on the reliability of the entitlements of the other licensees.
The other irrigation licensees are also riparian owners who make use of the lagoon system for stock and domestic purposes. They usually cease to irrigate voluntarily when the lagoon has fallen by approximately 2 metres from full supply level. The respondent has an established policy, or practice, of allowing up to 50% of the capacity of the lagoon to be used for irrigation. Once the lagoon reaches that level which is approximately at 2 metres below full supply level, no further irrigation is allowed.
They were also of the opinion that the granting of the application would adversely affect the environment of the lagoon system and the aquatic fauna and flora dependant upon it. The lagoon does not fill every year and there have been extended periods without flooding. The respondent reasons that if no more than 50% of capacity is available for irrigation, then a safety margin is maintained to allow for evaporation over an extended dry period.
For those reasons the respondent refused the application for the increased irrigation entitlement. The appellant has argued that the respondent was wrong.
The Burden of Proof:
Section 51(9) of the Act provides that the burden of proof on the grounds stated in the notice of appeal lies on the appellant. That provision has been considered by this Court in several cases. For example, in Leake and Others v. The Chief Executive, Department of Natural Resources (1996-97) 16 QLCR 485, the Land Court (Mr CF Wall QC) said at 528:
"Such a provision, in my view, requires that the appellant establish on the balance of probabilities the facts or contentions alleged in the grounds 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 appellants' 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 grounds of appeal."
Similar reasoning was applied by other Members of the Land Court in the cases cited in that judgment.
In my view, the appellant's grounds of appeal are based on a misconception that he is entitled to the allocation which was voluntarily surrendered by a former owner of his land. This is quite clearly not so. A waterworks licence is not an inalienable right attaching to the land. It is not a continuing right but only a right for a period. The nature of a licence was explained in Shooter v. The Commissioner of Irrigation and Water Supply (1972) 39 CLLR 11. In that case, the Court was considering the provisions of the Water Act 1926, the predecessor of the present Act, but the explanation is equally applicable to the present Act. In Shooter, the Land Court Member (Mr S Dodds) said at p.19:
"Then, what a licensee gets under the Act is only a licence for a period. At the end of that period he must apply for renewal and the Act, as amended in 1964, clearly shows that renewal is not as of right. The Commissioner has many alternatives to renewal, and must consider the application to see if any of the alternatives should be applied. One of the alternatives is refusal of the licence and others are reduction in the amount of water or in the amount of land irrigated. … Here the words are plain and unambiguous and the Commissioner's duty when considering an application for renewal of a licence is clear. … the statute plainly enough requires the Commissioner to consider all alternatives in the light of all requirements on the stream at date of renewal, including applicants desiring a share of the water. To do otherwise, to adopt the view that a licensee, once he constructs his licenced work, obtains a vested interest which should only be interfered with if he misuses it or is guilty of misconduct, so that he can regard his licence as something he can expect to be renewed as of right is again to put the clock back and revive the mischiefs in the appealed Act which the present Act set out to cure."
Although the present matter concerns not an application for a licence but an application to amend a licence, the Act requires the respondent to deal with each application in a similar manner.
The appellant attempted to prove his grounds of appeal by calling his water expert, Mr Walford. Mr Walford attempted to demonstrate that the policy of the respondent was conservative and 75% irrigation utilisation could be allowed. His modelling showed that even with the increased allocation applied for by the appellant, the lagoon would not have dried up and, with only one exception, the drawdown did not exceed 4 metres from full level.
However, Mr Walford admitted that he could not answer for the environmental consequences of his proposal. In his opinion, the only factor relevant in this case was the prevention of the drying out of the lagoon. Mr Walford did not deny that there would be some consequences of granting the appellant's application. His own modelling showed that there would be some effect on the reliability of irrigation for the other other licensees if the 50% policy was maintained. At 75% utilisation, the annual reliability would be reduced by 12%, which Mr Walford thought would not have any real impact on the irrigated crop production of the other licensees.
On the other hand, the witnesses for the respondent were firmly of the opinion that the 50% utilisation policy should be maintained and that at 75% utilisation the drawdown of the lagoon would drastically affect not only the reliability of irrigation of other licensees, but also the stock and domestic supplies to riparian owners. It would also have a detrimental effect on the flora and fauna of the lagoon system. Furthermore, the 50% policy is supported by the voluntary restrictions which irrigation licensees have applied.
The case for the appellant implies that in arriving at his decision to refuse the additional allocation, the respondent did not take into account all relevant considerations and placed undue emphasis on irrelevant considerations. In other words, the appellant implied that by not allowing for 75% utilisation of the lagoon for irrigation purposes, or at least investigating the impact that such utilisation would have, the respondent failed to take into account all relevant considerations. On the other hand, in relying on the policy of 50% utilisation, the appellant took into account irrelevant considerations.
In my opinion, the appellant's argument cannot succeed.
In Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1985-1986) 162 CLR 24 at pp.39 to 42, Mason J expressed the view that the exercise of an administrative discretion is reviewable when the decision maker fails to take into account a relevant consideration, but only when the decision maker fails to take into account a consideration which he is bound to take into account in making that decision. He went on to say that if the statute conferring the discretion does not expressly state the factors that the decision maker is bound to consider in making the decision, the relevant factors must be determined by the implication from the subject matter, scope and purpose of the Act.
In the present case section 43 of the Act requires the respondent to inquire into and take into account a number of factors amongst all the factors which the respondent considers appropriate. The respondent's officers who were responsible for the decision making process took into account environmental matters.
Mr Arnold submitted that there was no ecological evidence to demonstrate that there would be any adverse environmental consequences. However, in my view there was sufficient evidence to indicate that environmental matters are a real consideration in this case. For example, they had originally over-estimated the capacity of the lagoon and their storage curve shows that a drawdown of 3 metres from irrigation followed by a prolonged dry period could cause the lagoon to fall to a level where it would have serious environmental effects.
Mr Walford had not examined the environmental consequences. His only concern was whether the lagoon would dry out. That might imply that part of the appellant's case is that in considering the environmental effects the respondent took into account irrelevant considerations. That would be wrong. The Act provides that the respondent must inquire into any other matters or things which he considers appropriate. The officers who were responsible for the decision-making process took into account environmental matters. It is clear that such matters contributed to the formulation of the respondent's policy of allowing only 50% utilisation of the capacity of the lagoon for irrigation purposes. They also were considered in the draft WAMP, in which Mr Clewley participated. Where such policies have been adopted or are proposed, this Court has held that the respondent has a duty rather than a discretion to consider such policies: Rogers v. Chief Executive, Primary Industries Corporation (1994-95) 15 QLCR 119. The respondent's policy of 50% utilisation allows a buffer for an extended dry period. The draft WAMP suggests even greater restrictions on irrigation from waterholes. These matters cannot be ignored. To allow 75% utilisation could put the lagoon in grave danger in certain circumstances. In my opinion, it should not be adopted.
Conclusion:
In my opinion, the appellant has not discharged the burden of proof imposed upon him by section 51(9) of the Act. As stated previously, the appellant's grounds tend largely to be based upon a misconception that he as a riparian owner is entitled to the allocation which was voluntarily surrendered by a former owner. That is not correct. Implied within those grounds of appeal is the argument that there is plenty of water in the lagoon system to enable the additional allocation to be granted. As discussed above, the respondent's witnesses have rebutted that argument. Therefore, the appellant has not succeeded in proving his grounds of appeal. Accordingly, the appeal must be dismissed.
Order:
The appeal is dismissed and the decision of the respondent is confirmed.
(JJ Trickett)
President of the Land Court
0
0
0