Morrissy v Department of Natural Resources & Mines - [2003] QLC 12

LAND COURT OF QUEENSLAND

CITATION:Morrissy v Department of Natural Resources and Mines [2003] QLC 12

PARTIES:Michael James Morrissy
(applicant)
v.
Chief Executive, Department of Natural Resources and Mines

(respondent)

FILE NO: A2002/0047

DIVISION: Land Court of Queensland

PROCEEDING: Appeal with respect to the disallowance by the Chief Executive of an objection by the applicant concerning soil conservation plan WW-A1-15282 under the Soil Conservation Act 1986

DELIVERED ON: 5 March 2003

DELIVERED AT: Brisbane

HEARD AT: Warwick

MEMBER: Mr RP Scott

ORDER:1. The appeal is dismissed.

2.The determination of the Chief Executive that the objection be disallowed is confirmed.

CATCHWORDS: Soil Conservation Act 1986 – Appeal – Nature of jurisdiction – Public benefit may displace private interest.

Soil Conservation Act 1986 – Appeal – Natural watercourse – Integration of plans – Risk of erosion in alternative plan.

APPEARANCES: Mr EP Donegan (Gaffney Lyons & McMahon) for the applicant
Ms R Trigge, Senior Legal Officer, for the respondent.

In early 1999 Basil McConville approached the Chief Executive's department concerning erosion control on a property held in the names of himself and ER McConville near Yangan, a village to the east of Warwick in South-east Queensland. The property comprises Lots 431 and 432 on DAR 6223. I will refer to this as the subject land. Mr McConville requested the preparation of a property plan for soil conservation on the subject land. A draft property plan was, in due course, prepared by the department.
The property plan provides for the construction of contour banks and waterways which will have the effect, amongst others, of concentrating the flow of water which runs off the subject land following rain. That run-off impacts on land owned by Michael James Morrissy. Mr Morrissy owns property described as Lots 410 and 411 on DAR 6223. Lot 410 is the closer of these lots to the subject land and is the land affected by the run-off. I will call this lot the affected land. There is no dispute from the respondent that the concentrated flow from the implementation of the property plan on the subject land would increase the flow of run-off water onto the affected land. I summarise the respondent's position to be, however, that in all of the circumstances such a flow of water is justified. Mr Morrissy thinks otherwise and, pursuant to the provisions of the Soil Conservation Act 1986 (the Act), has enlivened the jurisdiction of this Court in the matter by lodgment of an appeal. I will shortly come to details of that appeal, but will first make reference to certain provisions of the Act in order that the jurisdiction of the Court may be understood. The preamble to the Act provides:
"An Act to consolidate and amend the law relating to the conservation of soil resources and to facilitate the implementation of soil conservation measures by landholders for the mitigation of soil erosion."
Section 6 provides definitions of soil conservation, soil conservation measures and of run-off water:
"'soil conservation' means the prevention or mitigation of soil erosion.
'soil conservation measures' means works, land management practices, undertakings, acts, proposals, prohibitions and things designed, carried out, enforced or proposed to be carried out or enforced pursuant to this Act for the purpose of soil conservation or controlling or directing run-off water flow or for another purpose within the scope of this Act.
'run-off water' means water which accumulates on the soil surface as a result of rainfall and flows over the soil surface from higher to lower land."
Property plans are provided for in s.10, which relevantly provides:
"10    Preparation and approval of property plan
(1)     An owner may make application to the chief executive for approval of a property plan for soil conservation for an area of land, in this part referred to as the 'subject land ', owned by the owner.
(2)     A property plan shall delineate the boundaries of the subject land and comprise a map and specifications which describe all soil conservation measures, undertakings, acts, proposals, prohibitions and things designed, carried out, enforced or proposed to be carried out or enforced pursuant to this Act for the purpose of soil conservation or of controlling or directing run-off water flow or for any over (sic) purpose within the scope of this Act."
Presumably individuals can prepare property plans for soil conservation and lodge them with the Chief Executive, however, s.7(d) provides that one of the functions of the Chief Executive shall be:
"(d)the investigation and design of soil conservation measures, and the planning of the utilisation of land to give effect to those measures;"
Draft property plan WW-A1-15282 was prepared by staff of the Chief Executive with respect to the subject land. That plan is described as a draft because it has not yet been approved by the Chief Executive in the manner provided for in the Act.
Section 10(3) of the Act touches on the question of land which might be affected by works proposed in a property plan:
" (3) For the purpose of this part, land shall be deemed to be affected by the implementation, amendment or revocation of a property plan where it –
(a)is owned by a person other than the owner of the subject land; and
(b)is contiguous to the subject land; and
(c)discharges run-off water from a catchment area greater than 2 ha, under natural or controlled flow conditions, directly or indirectly onto the subject land or receives run-off water directly or indirectly from the subject land, and where the implementation, amendment or revocation of a property plan on the subject land would –
(i)change the area contributing run-off water to a point on the contiguous boundary with the lower land by more than 10%; or
(ii)change the location of receipt of run-off water from the subject land; or
(iii)increase the risk of damage to the lower land in the event of failure of the proposed works."
It is apparent that the Chief Executive considered that Mr Morrissy's land satisfied the requirements of s.10(3) and is therefore "affected" land. In such circumstances the Chief Executive is bound to act in accordance with s.10(5) which provides:
" (5) Where land other than the subject land would be affected by the implementation of a property plan, the chief executive shall ensure that all reasonable efforts are made to discuss the plan with all the owners of affected land and the subject land, and on receipt of written advice that all those owners have no objection to the plan the chief executive may approve the plan."
Mr Morrissy and Mr McConville, as well as two other parties, were included in discussions required by this provision. Written advices were not, however, received by the Chief Executive to allow that officer to approve the draft plan under s.10(5). The Chief Executive who had, it seems, resolved to approve the draft property plan, published a notice in the Warwick "Daily News" in accordance with the provisions of s.10(6)(a) and served a copy of that notice and the draft plan on Mr Morrissy and two other parties.   As is required by the Act, the notice informed the recipients of a right of objection. Three objections, including one from Mr Morrissy, were received by the Chief Executive. Section 21(1) provides for objection, whilst subsections (4) and (5) of s.21 set out what the Chief Executive is to do following receipt of objections:
"21 Objections
(1)     A person who wishes to lodge an objection pursuant to the provisions of this Act may do so by lodging it in writing, together with the person's reasons for objecting, with the chief executive within the time specified for the lodging of that objection.
...
(4)     Upon receipt of all objections lodged in compliance with subsection (1), the chief executive shall consider and make a determination on each objection.
(5)     The chief executive shall notify each objector in writing of the determination so made."
The Chief Executive, by his delegate, considered the objections and determined to "overrule" them in the language used by the respondent. Mr Morrissy was the only objector who elected to take the next step and appeal to this Court, though I should add that the concerns raised by him are quite different from those raised on objection by the other two objectors. A right of appeal is created by s.22 of the Act which provides:
"22 Appeal against chief executive's determination
(1)     An objector may, within 42 days of the issue of a notification pursuant to section 21(5), appeal to the Land Court and the Land Court shall hear and determine the matter and may confirm or vary the chief executive's determination.
(2)     An appeal under subsection (1) shall be instituted by filing in the Land Court registry a notice of appeal.
(3)     The notice of appeal shall state the grounds of appeal and the appeal shall be limited to the grounds stated.
(4)     The burden of proving any ground stated in an appeal shall be upon the applicant.
(5)     After filing the notice of appeal, the applicant shall, within 7 days, serve a copy of it on the chief executive."
I understand s.22(1) to confer jurisdiction on this Court. The manner in which that jurisdiction is to be exercised is not detailed elsewhere in the Act, though I infer that if this Court "may confirm or vary the chief executive's determination" then the Court is concerned with the merits of the matter and not with any other question such as that of procedural fairness.
I draw attention to the use of the word "determination", both in s.21 and in s.22. There is a general rule of statutory interpretation that when the same word appears in different places in a statute, there is a presumption that the same meaning is intended (see, for example, Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450). The jurisdiction of the Court is, therefore, concerned with a consideration of the Chief Executive's determination of the objection now appealed against. Section 22(3) does not provide that the applicant is confined in his grounds of appeal to the matters agitated in the objection. It follows, therefore, that the Court is concerned only with the determination of the Chief Executive to disallow the objection, not with the reasoning which led to that determination, nor with the grounds of objection unless it happens that they or some of them are repeated as grounds of appeal.
This brings me back to the question of the matters that ought to be taken into account in consideration of an appeal. The Act does not provide a set of criteria against which I may consider the grounds of appeal. I have already referred to the preamble of the Act to certain definitions and to parts of s.10 and s.7. These provisions provide a flavour of the nature of the matters that ought to be taken into account in the consideration of the property plan in my view.
In Hutchison v Chief Executive, Department of Primary Industries (unreported, 21 October 1994), this Court said:
"The Act is of general application. The purpose is to facilitate the implementation of soil conservation measures. It is obvious that a plan of this nature could not be implemented except upon a wide front and that co-operation, thinking of public interests rather than private or sectional interests, is a necessary ingredient to the success of the plan. No person would doubt that the preservation of highly productive land is in the interests of the State as a whole. In these circumstances, individual or sectional interests must give way to public interests." (at 4)
It seems to me that for individual interests to justifiably give way to public interests, there needs to be some understanding of the nature and extent of public benefit that is expected and the nature and extent of injurious impact that that is anticipated. In short, it would be inappropriate for a property plan to proceed if the benefit to the subject land or to any wider soil conservation scheme was small when compared with the expected injury to affected land. Any consideration of a property plan, therefore, would need to be concerned with whether the plan provides soil conservation measures, whether those measures are designed and suited to conserve the soil and/or direct run-off water flow and the nature of the benefit that is expected to accrue to the land once works contained in the plan are constructed. What next should be considered is any injurious impact on the affected land and how it might be managed. An applicant may propose and the Court may determine a variation to the draft property plan, which has the effect of reducing or removing any impact on the affected land. Not only is that provided for in s.22(1) ("confirm or vary"), but it is a natural extension of the public interest/individual detriment test. Any such proposals would need to be considered not only with respect to their potential to ameliorate injury to the affected land, but also paying regard to any effect they might have on the proposed plan and on the public interest.
Only then is it possible, in my view, for a Court to form a view as to whether the displacement of individual rights by a soil conservation plan is justified.
The jurisdiction of the Court in a particular appeal is, however, constrained by the grounds of appeal raised by the applicant (s.22(3)). The Court cannot of its own motion embark upon a general inquiry as to the question of benefit/detriment, but must form its view on that question based on the grounds of appeal and the evidence directed to those grounds.
The only other case I am aware of decided under the relevant provisions of the Act is Vedelago v Chief Executive, Department of Primary Industries (unreported, 26 May 1995) where the Court said at p.7:
" There may be some personal reluctance on behalf of the appellants to have cultivation land traversed for the benefit of others. However, I am not convinced that the loss sustained, the disruption to farming practice, or the introduction of danger in the use of machinery is of the degree of severity as has been suggested. ... While there are negative aspects associated with the adopted plan, the location of the proposed waterway has been selected and designed to cause minimal disruption in actual practice."
I think that what the Court said on that occasion is not inconsistent with what I have said thus far concerning the jurisdiction of the Court, though I recognise that in Vedelago the Court was less explicit than I have been in its adoption of a public interest test.
I find support for the conclusion that I have drawn on the nature of the jurisdiction of the Court by the inclusion in the Act of a provision which gives a right to compensation to a landholder who can bring himself within the statutory provision. Section 28(2) provides:
" (2) A person whose estate or interest in land is injuriously affected by the coming into force, amendment or revocation of the approval of an approved plan or by an act done or omitted to be done under an approved plan shall be entitled to be paid compensation by the chief executive."
No definition of injurious affection is provided, however some sense of what it comprises is found in s.31, a provision I might usefully refer to in part only:
"31 Assessment of compensation
(1) Compensation payable under section 28 may include the costs of and incidental to the investigation of matters giving rise to the claim and the preparation, lodging, hearing and determining of the claim.
(2) Compensation in respect of the injurious affection of an estate or interest in land shall be assessed in accordance with the following provisions –
(a)subject to paragraphs (b) to (d), the amount of compensation shall be a sum equal to the difference between the market value of the estate or interest immediately before the occurrence of the event on which the claim for compensation is based and the market value of the estate or interest as affected by that occurrence;
(b)there shall be taken in to account any modification of the injurious affection that may be effected in consonance with the approved plan;
(c)there shall be taken into account any benefit which is likely to accrue to land in which the claimant has an estate or interest –
(i)by reason of the coming into force of the approved plan or by reason of the occurrence of the event on which the claim for compensation is based; or
(ii)by reason of the construction or improvement by the chief executive at any time after the approved plan comes into force, upon land adjacent to the land in respect of which compensation is claimed, of works in implementing the approved plan;
(d)the amount of compensation shall not be affected by the fact that since the date on which the approved plan came into force the land in respect of which the claim for compensation is made has been separated from or amalgamated with other land."
Apart from the type of compensation provided for in s.31(1), injurious affection of the type referred to in the Act appears to be quite similar to that described by the High Court in Marshall v Director-General, Department of Transport (2001) 205 CLR 603 at 622 as "a neat, expressive way of describing the adverse effect of the activities of a resuming authority upon a dispossessed owner's" retained land. I would paraphrase that in the context of the Act to refer to the adverse effect of the activities of the type described in s.28(2) and having the effect provided for in s.31(2)(a).
It is not appropriate for me in the present case to consider whether a claim for compensation under the Act might successfully be made by Mr Morrissy on the assumption that the proposed plan is put into effect. The existence of such compensation provisions, however, indicates to me that the scope for a successful appeal is not solely dependent on the applicant demonstrating injurious affection, but in demonstrating that in the circumstances that injurious affection is not justified.
The applicant initiated this appeal by an Originating Application which included these grounds of appeal:
"1.   That the determination by the respondent to over rule the applicant's objection to Soil Conservation Plan WW-A1-15282 was unreasonable.
2.   That the respondent failed to give any or any sufficient weight to the effect that implementation of the plan will have on the applicant's land.
3.   That the respondent failed to give any or any sufficient weight to the objections raised by the applicant.
4.   that the respondent failed to give any or any sufficient weight to alternative plans, proposals or soil conservation measures which would not have affected the applicant's land.
5.   That the respondent erred in determining that run off will be directed to natural drainage lines that are not cultivated.
6.   That the respondent placed undue weight on the effect of runoff to Day's Road."
The applicant accepts that the draft property plan will benefit the subject land in that it will facilitate cultivation of a large proportion of it which would previously have been at risk of erosion following any cultivation. It is foreshadowed that the benefited land would be used to grow fodder crops as part of the dairying enterprise carried out by Mr McConville.
On first blush the grounds of appeal are expressed in the language of a review of the decision-making process of the Chief Executive; that is a review of the type usually encountered in administrative law. As I have said, the jurisdiction of the Court is one that requires a decision on the merits and, indeed, the parties approached the proceedings on that basis. I intend, therefore, to deal with the factual issues raised by the applicant on the basis that they are sufficiently encompassed by the grounds of appeal.

Mr Morrissy contends that the implementation of the draft plan will cause injury to his land in the form of erosion, loss of cultivation area, loss of fencing and reduction in value. He seeks the following orders:
"1.   That the determination by the respondent overruling the applicant's objection to Soil Conservation Plan WW-A1-15282 be set aside.
2.   That the respondent be restrained from approving the said plan.
3.   Such further orders as the court deems appropriate."

Evidence in support of the appeal was given by Mr Morrissy, whilst Peter Archdall Pearce was called by the respondent.
Mr Pearce is employed as a District Adviser, Natural Resource Services, Southwest Region, in the Department of Natural Resources and Mines. He holds a Diploma in Agriculture from Hawkesbury Agricultural College and has worked in the Queensland Public Service for 23 years, with his major role being that of a Soil Conservation Adviser. Prior to that he worked as a Soil Conservation Adviser with the Department of Agriculture in South Australia for almost four years. His prime responsibility both in Queensland and South Australia has been in the planning and implementation of soil conservation schemes on both property and catchment scales. Mr Pearce was responsible for investigating the suitability of draft Soil conservation plan WW-A1-15282 and he recommended the approval of the plan and the dismissal of objections. John Gray, a Soil Conservation Officer, employed by the Chief Executive had worked on the plan initially and his records were available to Mr Pearce.
It will be convenient at this stage to provide a verbal description of those elements of the draft property plan which the appeal raised for consideration. The subject land is of elongated rectangular shape, lying north-west to south-east. Swan Creek is located along the north-western boundary, whilst Top Swanfels Road is on the south-eastern boundary and Days Road to the south-west. The affected land also fronts Days Road to its north-east and has Swan Creek to its north-west and Top Swanfels Road to its south-east.
Few trees presently stand on either the subject or affected land. Both properties slope generally towards Swan Creek. Both have been used for the grazing of cattle in the past, though each has a potential for cultivation for fodder cropping. A soil conservation property plan was previously approved by the Chief Executive for the land owned by Mr Morrissy.
The subject land has a ridge towards its south-east, running from Top Swanfels Road and petering out about a quarter of the way into the property. The design of the plan calls for the construction of four contour banks in the area of this ridge. Run-off from these banks will therefore be split, part going towards the north-east boundary and flowing into an area of grass and rocks before draining towards a waterway to be constructed along part of the north-east boundary of the subject land. That waterway is designed to lie between two points marked L1 and L2 respectively on the draft plan. A further four contour banks not affected by the ridge flow directly into that waterway. The contour banks in total serve about 60% of the property, on my estimation.
That part of the ridge contour banks that will create flow to the south-west will deposit run-off water into what is described on the draft plan as a "natural watercourse" in pasture which flows to Days Road, then across that road over Proposed Road Cross Drainage Point 2 (PRCDP2), then into Lot 410. At a point short of midway through Lot 410, this "natural watercourse" joins another feature also referred to as a natural watercourse, which I will call the central watercourse. The proposed run-off therefore flows from that point along a combined natural watercourse, heading in the direction of Swan Creek to the north-west. The flow does not, however, extend to Swan Creek, but to PRCDP3, which I more precisely locate below.
That part of the natural watercourse found on the subject land is shown on the plan as entering the land via an Existing Road Cross Drainage Point (ERCDP) numbered 1 on Top Swanfels Road. It appears from the draft plan that this natural watercourse is fed by run-off from Lots 435 and 436 DAR6223, which border the south-eastern boundary of that road (the O'Dempsey land). Presently that flow is discharged from the subject land onto Days Road. Mr Morrissy disputed that this was a natural watercourse, saying that flow took this route only after the construction of Top Swanfels Road including the construction of ERCDP1. I can accept that flow along this watercourse may have not been as concentrated before the construction of the road, however some overland flow would have followed the direction of this watercourse on my appreciation of the contour plan put into evidence. I see no need to take this matter further, however, as I do not understand this matter to be an essential issue in the appeal. Mr Morrissy impliedly conceded that there is presently a watercourse in this location as he gave evidence that it presently flowed down Days Road once it left the subject land.
Mr Morrissy also disputes that there is any natural watercourse in the position indicated on the proposed plan as flow from PRCDP2 over the affected land. I will refer to this aspect as the "disputed watercourse" issue and will also deal with other issues associated with that aspect under that heading. There was no dispute as to the existence or location of the central watercourse.
Waterway L1-L2 is designed to flow into waterway L3-L4 which is proposed by the plan to be constructed almost at right angles to waterway L1-L2 from a point marked L3 on the north-east boundary of the subject land then across to a point marked L4 on the south-west boundary at the point where PRCDP3 is to be located. It is proposed that waterway L3-L4 would connect with a waterway yet to be constructed on Mr Morrissy's land from a point E9 adjacent to PRCDP3 to E10 where the run-off would drain into Swan Creek.
Mr Morrissy is of the view that the construction of waterway L3-L4 is not appropriate and that it would be preferable if waterway L1-L2 continued along the north-east boundary of the subject land and then to Swan Creek. I call this the "waterway issue".

Disputed Watercourse Issue

Mr Morrissy claims that there is no natural watercourse on Lot 410 in the location identified on the draft plan as coming from PRCDP2. To his recollection, water has not drained across Days Road and entered Lot 410 at the point indicated on the plan. Mr Morrissy has lived on the affected land for 67 years and would be expected to know the country well. Nevertheless, the weight of the evidence is against his opinion concerning this natural watercourse. Before I refer to that evidence, I ought to point out that whilst the term "natural watercourse" was used by the parties, this is not a reference to a pronounced topographic feature that would be patently obvious on any casual examination. Rather, such a watercourse is a subtle feature that would be apparent in times of certain downfalls, but at other times could be identified by forensic means only.
Mr Pearce said that, absent the construction of Days Road, flow in the watercourse would have been readily apparent. Since the construction of the road, however, he considered that smaller flows would be taken by the road structure and that flows would cross the road following significant rainfall events only. Mr Pearce provided no direct evidence in his support of that contention. He attempted to draw some support from photographic evidence tendered, but I did not find that evidence to be convincing. Mr Pearce had other evidence, however, in support of his view that the natural watercourse crossed Days Road and the affected land. He referred to an aerial photograph flown in 1951 and a topographic map dated 1961, which he interpreted as indicating the existence of the natural watercourse. Cross-examination made no dent on the validity of his use of this material which reinforced levels Mr Pearce had taken indicating a natural flow across Days Road.
Mr Pearce also made reference to the soil conservation plan prepared for the Morrissy land, along with another parcel, which includes a depiction of the natural watercourse partly on the subject land flowing across Days Road via an invert or culvert, then flowing down Lot 410 (Plan GG-A1-15164). That plan is signed by Mr Morrissy dated 28 September 1988 as apparently signifying acceptance of a statement on the plan stating that the signatories had no objection to it. In evidence Mr Morrissy said that he had not signed the plan, however the original plan put into evidence indicates to me that his recollection is defective. Mr Gray's draft plan for the subject land is consistent with plan GG-A1-15164 in so far as this natural watercourse is concerned. On the evidence presented before me, I conclude that the natural watercourse does exist.
Mr Morrissy has recently cultivated part of Lot 410, including part of the disputed watercourse area. The cultivation was carried out to control foxtail grass, however the land had not been cultivated for some years before that. Mr Morrissy said that a wheat crop had been grown there in 1900, however he did not relate a history of ongoing cultivation of crops. This part of his property had for many years been used as a dry paddock for his dairy herd, so was not cultivated. He no longer has a dairy, so has in mind planting fodder crops in the area for the benefit of his beef herd and to control foxtail grass.
Whatever the history of cultivation of Lot 410, it seems to be the case that the land has the potential for cultivation, for fodder crops. It also appears to me from the evidence that there is some risk of erosion and a possible loss of cultivation land were drainage onto Lot 410 via PRCDP2 to be allowed in accordance with the draft plan. At the time Mr Pearce last inspected Lot 410 for finalisation of the plan, it was not under cultivation. In such circumstances he considered that the grass cover would have been sufficient to protect the land from erosion.
A natural watercourse in the location identified on Lot 410 in the draft plan would presently have a more limited catchment and would generate less run-off than would occur should the plan be implemented. This is because that part of the watercourse which is on the subject land and which takes water from more elevated areas, does not now flow into Lot 410 but is taken down the table drains in Days Road. Nevertheless, it was Mr Pearce's opinion that there would be sufficient flow to put the area of cultivation in jeopardy if it was not protected by a structure such as a diversion bank. The need for such protection would be magnified by the implementation of the plan under appeal, in his view. In oral evidence Mr Pearce proposed the construction of a diversion bank on Lot 410 to control and distribute run-off coming onto the affected land from PRCDP2. Such a bank would follow contour 1760 and would shift run-off to the central watercourse further to the south-west, but also flowing in the direction of PRCDP3. Mr Pearce expressed the view that a bank in the suggested location would not compromise the use of Lot 410 for cultivation.
Mr Morrissy proposed that instead of run-off being conveyed through PRCDP2 onto Lot 410, it ought to flow down Days Road thence to Swan Creek, as the run-off from the O'Dempsey land through ERCDP1 has done to date. I have no evidence as to the volume of run-off from the O'Dempsey land, nor how much that will be enlarged by the run-off from the south-west flowing sections of the four contour banks to be constructed over the ridge line on the subject land. This combined run-off will be supplemented by run-off from O'Dempsey Road, which is the southern extension of Days Road. Presently the O'Dempsey Road run-off drains down Days Road and Mr Morrissy suggested that it should continue to do so. If it is the case, however, that run-off from the subject land combined with that from the O'Dempsey land is to flow onto Lot 410 via PRCDP2, then run-off from O'Dempsey Road will be similarly directed. That would be the effect of a culvert or invert at PRCDP2.
Mr Pearce suggested that Days Road Reserve could well be used for the location of public utilities in the foreseeable future, associated with some more intensive land use in the vicinity or to the north of Swan Creek. That opinion had no firm foundation and I reject it.
Mr Pearce made a case for public roads not being used to accept and dispose of concentrated run-off produced by soil conservation works on private land. Public roads are not designed for or dedicated to such a purpose, in his view. I accept that. I also accept Mr Pearce's evidence that Days Road is a public road, notwithstanding the evidence from Mr Morrissy of its limited use. Mr Pearce expressed concern that additional run-off directed down Days Road would result in erosion of the table drains servicing that road. There was insufficient evidence given, in my view, for me to confidently assess the dimension of any such impact on Days Road drainage, however I would think it to be a matter of common sense that the acceptance of additional water into table drains which convey water down a hill would have the prospect of causing damage to those table drains or in necessitating an increased level of maintenance. Table drains are, of course, not constructed in the same manner as contour or diversion banks. Photographic evidence indicated that over the years at least part of Days Road has been lost to erosion.
Mr Pearce gave evidence that he had, as part of his planning process, considered the options of either directing the run-off down Days Road or of providing for the construction of a waterway along the south-western boundary of the subject land; this is, parallel to Days Road. He rejected those options as he formed the view that they posed a high risk of erosion at the point where the flow would discharge into Swan Creek. He preferred the use of the natural watercourse he had identified. It is a preference that I adopt. There is some evidence that erosion where Days Road crosses Swan Creek may stabilise over time, however the prospect of such erosion, together with the erosion of Days Road itself, indicate that Days Road ought not to be used as the conduit for the run-off from the subject land.
Uncontrolled, run-off onto the affected land through PRCDP2 may increase soil erosion, damage to fencing and loss of use of land for cultivation purposes. However I accept Mr Pearce's evidence that increased run-off onto the affected land is capable of management by the construction of a diversion bank should Mr Morrissy wish to retain cultivation in the area of the natural watercourse. If the land is returned to pasture there is no perceptible risk of the types suggested by Mr Morrissy, however I think that the risks should be considered on the basis of the potential use of the land, not on some lesser use that has been adopted by the current owner.
I have been more troubled, however, by the prospect of PRCDP2 having the effect of directing run-off from O'Dempsey Road and a short length of Days Road onto Lot 410. Is it appropriate that such run-off be accepted by private land? I was given no evidence by the applicant as to the volume of run-off flow down O'Dempsey Road, nor what the combined flow from that source, the subject land and the O'Dempsey land would be. Mr Pearce understood however, that run-off into Lot 410 would come from these three sources when he said that Mr Morrissy could construct a diversion bank on Lot 410 to manage that run-off if he preferred it not to travel down the natural watercourse. Cross-examination of Mr Pearce on this proposal did not, in my view, raise any issue which undermines the proposal. I also notice that plan GG-A1-15165 proposes cross-road drainage at PRCDP2, thus also catching run-off from O'Dempsey Road. Mr Gray's draft contains a similar proposition.
In conclusion on this point then I find that that part of the plan which involves the development of PRCDP2 is appropriate. The applicant has not demonstrated that the public interest in its development is outweighed by injurious impact on the affected land.

Waterway L3-L4

The design of this waterway is such that water from the subject land would flow through PRCDP3 then enter Lot 410 at a point where the Morrissy soil conservation plan GG-A1-15164 provides for the construction of a 10-metre wide waterway E9-E10 designed to take run-off from the combined natural watercourse in Lot 410 discussed at para [32]. Mr Pearce explained that the connection through PRCDP3 of waterway L3-L4 to waterway E9-E10 was designed such that the plans on both the subject land and the Morrissy land would be integrated. Whilst waterway E9-E10 takes advantage of a natural flow into Swan Creek, the design of waterway L3-L4 appears to be less influenced by the utilisation of the topography of the subject land than by the perceived desirability of integrating the plans and taking advantage of the point of entry of flow into Swan Creek at E10. Indeed, if the natural topography of the subject land was taken as the paramount point of influence, flow would, as I understand it, go towards Days Road at a point nearer to Swan Creek than PRCDP3. It would then flow into the creek via Days Road. Neither Mr Pearce nor Mr Morrissy proposed an option based on that scenario.
Mr Morrissy explained that historically run-off water flowed down the central watercourse on his land and it crossed over the road at about PRCDP3, then flowed into a lagoon on the subject land. I return to this lagoon below. He described how, as part of the development of his land, he had by use of earthmoving machinery redirected this flow so that it flowed in the direction of proposed watercourse E9-E10. That redirection of flow is consistent with the soil conservation plan approved for his property. Whilst I accept this evidence, I do not see how it assists me as Mr Morrissy has accepted the plan which requires the construction of waterway E9-E10. No alternative directing flow in virtually the opposite direction was suggested.
Mr Morrissy proposed that instead of the construction of waterway L3-L4, waterway L1-L2 should continue along the north-east boundary of the subject land to a point where the flow would be discharged into Swan Creek at or near the point where the boundary reached the creek. Such a design was contained in a draft plan prepared by John Gray, when he carried out the initial planning work before Mr Pearce took the task over and produced the draft plan which was put into evidence.
Mr Morrissy argued in favour of this alternative waterway on three bases. First, he argued that additional run-off from the subject land would affect cultivation on his land towards the northern corner. Second, he introduced evidence of the lagoon and the prospect of it affecting the flow of run-off along waterway L3-L4. Third, he said that the construction of PRCDP3 would necessitate a cutting 3 foot deep to allow water to flow from waterway L3-L4 into his land. I will deal with these issues in this order.
Waterway E9-E10 was designed to carry a flow of 4 cumecs. The flow in waterway L3-L4 is expected to be 3.9 cumecs, therefore the plan as proposed by Mr Pearce will have the effect of almost doubling the amount of run-off to be carried between E9 and E10 requiring a larger waterway than that presently included in Mr Morrissy's soil conservation plan. Waterway E9-E10 has, however, not yet been constructed. In these circumstances Mr Pearce said that the run-off from the subject land would readily be distributed over the pasture area on Mr Morrissy's land. If the run-off threatened the cultivated area to the north, a diversion bank could be constructed sufficient to protect that land. If waterway E9-E10 were to be constructed in due course an enhanced design would be needed to accommodate the additional flow. He mentioned the inclusion of wing banks as an option. I conclude that if waterway E9-E10 is constructed to an enhanced specification from that presently depicted on Plan GG-A1-15164 no erosion, loss of fencing or loss of cultivation land would result from the flow of water onto Lot 410 via PRCDP3.

I conclude also that Mr Morrissy has not demonstrated that the cultivation on his land in the northern corner would necessarily be damaged by flow from a waterway constructed between points L3-L4 or that such threat as there is could not be readily managed in the manner proposed by Mr Pearce even if waterway E9-E10 is not constructed to an enhanced specification.
The lagoon described by Mr Morrissy is located in a position somewhat to the north of the proposed waterway L3-L4, though possibly touching the position of that proposed waterway. The lagoon is not permanent, but will hold water after heavy or prolonged rain. The amount of water it might hold is much less than it was in the past as drainage from the lagoon has been constructed as the land has been developed. As such, the lagoon might better be described as a low-lying area of land.
The lagoon was not represented on the contour map relied on by Mr Pearce. He accepted that there was a low-lying area of land in the location identified by Mr Morrissy, but expressed the opinion that waterway L3-L4 could probably be constructed without being hindered by it. The lagoon appears to lie mainly to the north of waterway L3-L4, but its precise limits are not clear to me. Mr Morrissy said that the lagoon would have measured about 5 chains across which, on my calculations, is about 100 metres. Mr Pearce said that there was a 10-foot drop between the point at L3 and that at L4, indicating to him that flow would be from L3 to L4. He also said that the exact location of waterway L3-L4 would have to be determined by field survey and that when that took place, any potential impact from the lagoon could be taken into account.
The evidence has left me in a position of uncertainty as to whether the lagoon will impede the flow of run-off along waterway L3-L4, such that it will be an ineffectual structure. In the circumstances, I cannot hold that Mr Morrissy has made out his contention and given that s.22(4) of the Act imposes a burden of proof on the applicant, I must conclude that on this point the applicant has not demonstrated that the plan ought to be amended or rejected. If it transpires that field survey leads to a conclusion that waterway L3-L4 cannot usefully be constructed in the location depicted on the plan now under consideration, the owner of the subject land may make application for the amendment of the plan. In such circumstances, Mr Morrissy's rights are preserved. Section 12 is the relevant provision:
" (1) an owner of subject or affected land may make application in writing to the chief executive for amendment to an approved property plan.
(2) The provisions of section 10, with and subject to all necessary adaptations, shall apply to an application made pursuant to subsection (1) as if that application were an application under section 10."
Mr Pearce made reference to levels in the vicinity of PRCDP3 which showed that rather than a 3-foot cutting being needed, as suggested by Mr Morrissy, there was a drop of 0.4 metre between a position on the boundary of the subject land at PRCDP3 and the boundary of Lot 410.
It follows that none of the three propositions raised by Mr Morrissy concerning waterway L3-L4 is sufficient to cause me to conclude that a modification of the waterway is clearly required.
There was a more important reason, however, for Mr Pearce not having proposed the construction of a waterway in the location preferred by Mr Morrissy. Mr Pearce gave evidence that a waterway entering Swan Creek in the locality suggested by Mr Morrissy would pose a grave erosion risk to the banks of the creek there. He provided photographs showing the effect that a waterway has on banks in Freestone and King Creeks and mentioned Dalrymple Creek as a further example. The photographs reveal cases of quite extreme erosion, though it was not Mr Pearce's express view that erosion of similar dimensions would be likely to occur on Swan Creek should a waterway be constructed in the manner proposed by Mr Morrissy. Indeed, he conceded in cross-examination that it was possible that such a waterway could be constructed and managed in such a way that no erosion problem would arise. His opinion was, as I appreciate it, however, that the risk of constructing a waterway as proposed by Mr Morrissy was not one that ought to be entertained, particularly when integration between the draft plan and the approved plan on Mr Morrissy's property is taken into account. I accept Mr Pearce's evidence on this issue. Mr Morrissy made passing reference to waterways which did not cause erosion on entry into a natural watercourse. Those examples were not, however, developed further in evidence. Given this and the fact that I have expert evidence from Mr Pearce, I must conclude in favour of the Chief Executive. I make no comment on the views of Mr Gray concerning this issue. Mr Gray did not give evidence before me, so was not in a position to advise on the status of his draft plan nor his opinion on the various matters that influenced Mr Pearce to not adopt a plan of constructing a waterway as an extension of waterway L1-L2, but to adopt the construction of waterway L3-L4.
Run-off onto the affected land through PRCDP3 may increase soil erosion, damage to fencing and loss of the use of land for cultivation purposes. However, such risk as there may be would be virtually eliminated if waterway E9-E10 were to be constructed to a higher specification than now appears on Soil conservation plan GG-A1-15162. If waterway E9-E10 is not constructed, a diversion bank would, on the evidence I heard, provide sufficient protection to Mr Morrissy's cultivation land. The applicant has not shown that the benefit of implementation of that part of plan WW-A1-15282 requiring construction of waterway L3-L4 and PRCDP3 are outweighed by any injurious affect on the applicant's land.
Warwick Shire Council has written to Mr Pearce advising that it raises no objection to the proposed plan. That is a relevant matter for me to take into account in my consideration of any impact of the draft plan on public roads. Mr Pearce said also that he had been told by a Project Engineer and a Supervising Engineer employed by the Council that the Council would not formally consent to the use of Days Road for run-off water from "any of the surrounding property". I was not addressed on the need for such consent, but will proceed on the basis that this evidence was intended to portray that the Council would be expected to become an objector under the Act if a proposal for run-off onto Days Road was to be put forward. I observe that this information was not the subject of a Council resolution, however will treat it as being an indication of the advice the Council would receive on such an issue.
The applicant drew my attention to the fact no alternative to Plan WW-A1-15282 was put to the Council for its consideration; in particular no plan showing the discharge of run-off onto Days Road in the vicinity of PRCDP2. In this context Mr Donegan, for the applicant, noted that Council had simply resolved to offer no objection to the proposed plan, the implication being, as I understand it, that it did not go so far as to approve the plan. Section 21(2) of the Act is expressed in these terms:
" (2) Where an objector is a statutory authority or a government department it shall, at the time of lodging the objection, lodge an alternative plan or suggest an alternative course of action, which shall be deemed to form part of the objection, to the matter objected to, which in the opinion of that objector would remove its objection."
Section 6 provides that the term "statutory authority" includes a local government. It is clear then that the Warwick Shire Council can be an objector and may lodge an objection in the manner provided for in s.10. What the Council has done in this case is to not elect to object and to advise the Chief Executive of that resolution. It need do no more. Indeed, if Council had been of the view that drainage down Days Road would be preferable to the method proposed in the draft plan, it would be obliged to place that alternative before the Chief Executive as is provided for in s.21(2). That it did not adopt this course of action indicates its acceptance of the proposed plan, including the obligation implicit in it that the Council would need to arrange the construction of the proposed cross-road drainage facilities.
In the result then I conclude that the applicant has not demonstrated that proposed plan WW-A1-15282 should be rejected nor that it should be modified in any of the respects agitated by the applicant.
No expert valuation evidence was led before me. Accordingly, I say nothing about Mr Morrissy's suggestion that the affected land would suffer a reduction in value if the proposed plan is approved or implemented.
I therefore dismiss the appeal and confirm the determination of the Chief Executive that the objection of Mr Morrissy be disallowed.

RP SCOTT
MEMBER OF THE LAND COURT