Perry v The Commissioner of Water Resources

[1990] QLC 17

[1990] QLC 17

 

  LAND COURT,

BRISBANE

1st June, 1990

Re:      In the matter of an appeal under Section 12
  of The Water Act 1926 (as amended).
  A89-82.

L.H. and M.B. Perry
  v.
  The Commissioner of Water Resources

D E C I S I O N

(Hearing at Toowoomba)

By application dated 12th December, 1988, Mr P.L. Grayson made application for a Waterworks License to construct a concrete weir on Emu Creek for the purpose of supplying irrigation water to the land described as Lot 4 on RP 30654, parish of Robinson, county of Merivale, to irrigate four hectares of land.  At that time and now Mr Grayson held Waterworks License 46080 which authorised a 40mm centrifugal pump for irrigation of four hectares of potatoes and other miscellaneous vegetables by pumping from Emu Creek.  This license has a condition that water may not be taken from the creek when pumping restrictions are in force.  Mr Grayson also held and still holds Bore License No 86025 for 25 megalitres per annum.  This allocation had regard to the limited area of Lot 4 of 15.82 hectares.
  The application to construct a weir was advertised on 20th February, 1989, and 22 objections were received to the application.  19 of these objections related to concerns about possible disruptions to stock water supplies downstream of the proposed weir.  The remaining three objections were concerned mainly about the possible adverse effects of flooding caused by the weir.
  Mr and Mrs L.W. Perry were amongst the objectors and expressed the objection in the following terms:

"I, Len Perry, of the above address do hereby submit on behalf of myself and my wife the strongest possible objection to the construction of any obstruction no matter what shape or form which will prevent or reduce the natural flow of water in Emu Creek thereby reducing what now exists as simply a trickle to stagnation.  In the last five or so years we have seen a steady flowing creek drop in volume by more than 900mm in height and almost stop flowing and as we depend on the creek water for cattle, horses and domestic use it is imperative the creek water remain at its existing pitiful level and at least all properties on this creek will still have some water.

P.S.All of the above information can be verified on site if necessary.

We expect a favourable reply (no obstruction to proceed)." 

After investigation the Commissioner decided to grant the license applied for.  Mr and Mrs Perry were notified of this decision in a letter of 29th September, 1989, which reads:

"I refer again to your letter in which you objected to the granting of the abovementioned application.

After investigating the application and the objections thereto the Commissioner has decided to grant a license authorising the construction of a 1.7 metre high x 30 metre long Concrete Weir for Irrigation purposes on Emu Creek.

I note that your main concern for objection to the proposed weir was the possibility of decreased flows downstream of the weir, which in turn may effect your Stock/Domestic water supply.

By now you would have received a copy of the "Operation Guidelines for Licensed Weir Storages" information bulletin. This bulletin indicates that it is a requirement of the Licensee to provide an outlet pipe in the weir to ensure that the water rights of downstream users are protected at all times. This outlet is usually a 6 inch pipe. However, the Commission has insisted that an 8 inch outlet be provided in Grayson's weir to allow for a greater flow of water to downstream landowners. We believe this should more than adequately meet these downstream requirements in dry periods. The Commission will be policing the area at regular intervals to ensure that the weir is being operated according to the prescribed conditions. Failure to do so could be a breech of his license conditions for which the Water Act provides substantial penalty.

If you are dissatisfied with the Commission's decision to grant the license you may appeal to the Land Court in accordance with the provision of Section 12 of the Water Act 1926-1987.  If you intend to appeal you are required to file a Notice of Appeal in the Land Court Registry within thirty (30) days from the date you receive this letter.  Notice of Appeal forms are available on request from this office.

I trust this letter is clear.  If you have any query or wish to discuss any of the above points please contact me.  "

They exercised their right of appeal to the Land Court against the granting of the license on the following grounds:

"That the decision of the Commissioner is wrong in that my original objection sent to Water Resources Commission, Warwick, was not fully investigated before any decision is made as stated in letter as NO Commission officer ever discussed or checked our situation or many others.  (Proof of incompetency in this office).              

Item 2Operation Guidelines for Licensed Weir Storage;

Item 3&4(These situations allow licensee all rights, but downstream owners almost NIL.  Creek as at time of objection has stopped flowing, only a trickle at Carr's Crossing).  "

Under the provisions of the Act, the grounds of appeal shall be stated in the notice of appeal and the appeal is limited to the grounds stated with the burden of proving any ground stated upon the appellant.
  Evidence was given by one of the appellants, Mr Leonard H. Perry.  He says that the appellants are the owners of land described as R.34 SA P14N, parish of Cunningham, containing 72.78 hectares which has frontage to Emu Creek.  Water from the creek is used to water stock and for domestic purposes.  He repeats the matters which he had set out in his letter of objection.  His complaint is that he does not believe his objection was fully investigated because he was not interviewed by an officer of the Commission.  He says that a neighbour had informed him of a Government vehicle being on his property and wheel tracks were apparent.  He made no attempt to contact the Warwick office of the Commission to enquire whether the vehicle on his property was a vehicle from that office.  His attitude is that it was encumbent upon a Departmental officer to interview him before any decision was made.
  He comments on the ground of appeal dealing with the Operation Guidelines for Licensed Weir Storage.  He says that the conditions referred to say that the Commissioner may take certain steps.  He believes that the word should be "shall".  He also believes that the responsibility for the gate valve should lie with the Commission and not with the licensee.
  Evidence for the respondent Commissioner was given by Mr L.J.R. Broderick, the Stream Control Officer attached to the Warwick District office of the Commission.  He has held this position for a period in excess of nine years.  He investigated this license application and made recommendations concerning it.  He says that it is the usual practice to attempt to interview objectors to an application for a waterworks license although there is no specific requirements in terms of the Act for this to be done.  He says the reasoning is to clarify the written objection which often is briefly worded and not always entirely clear.  The interview allows a better understanding of the objection and underlying concern. 
  He says that on 8th and 9th June, 1989, Mrs M. Donges, a field assistant, accompanied him in interviewing 19 of the objectors.  Subsequently, the applicant, Mr Grayson, agreed to install a 200 mm diameter outlet pipe instead of the 150 mm pipe applied for in response to concerns expressed about the weir by landholders located downstream of the site.  The larger outlet pipe will pass a flow almost double the flow from the smaller outlet pipe.  With the objections concerning flooding, extensive surveys from the Commission gauging station weir to upstream of the weir site was carried out and the studies indicated a negligible effect.  These results were discussed with the concerned objectors who appeared satisfied with the results. 
  The only objectors not interviewed were the appellants and a Mr C.L. Johnson.  They were able to interview Mrs Johnson and supplied information to her to pass on to her husband.  As far as the appellants were concerned, attempts by telephone were made on 8th, 9th and 16th June, without success.  The officers visited the Perry's land on 8th June, 1989, but the appellants were not at home.  No further attempt was made to pursue them as the written objection was clear and understood by Commission.  The written objections were very similar to the objections lodged by 18 other objectors relating to flow for stock water.  In the circumstances it was felt that it was unreasonable to delay making a decision on the application and the matter proceeded.
  A full history of the whole affair and the data used in arriving at the decision to grant the application is contained in the evidence given by Mr Broderick to the Court (Exhibit 3).  A copy of this exhibit was made available to Mr Perry and remains in his possession.  No good purpose can be served in recounting here more of that evidence.
  While the Act requires the Commissioner in dealing with an application and any objections thereto, to make inquiry into the availability and sufficiency of water to satisfy the requirements of riparian owners, existing licensees and the applicant and the effect that the granting of the application is likely to have on entitlements of riparian owners and licensees under existing licenses and such other matters as he thinks fit.  In this case, there were a total of 22 objections.  While there is no obligation upon the representative of the Commissioner to interview all objectors, in this case almost all objectors were interviewed.  One objector was not present at the time of a visit but the matter was discussed with his wife.  Attempts were made to interview Mr Perry without success.  I agree with the evidence given by Mr Broderick that Mr Perry's grounds of objection were quite clear from his letter and mirrored the concern of another 18 of the objectors.  It is significant that none of the other 21 objectors has seen fit to appeal against the decision of the Commissioner following the discussions which have been held.  I am satisfied that despite the lack of a personal interview, concern expressed by the appellants was considered along with the concern of the other objectors in completing the inquiry and there is no foundation to this ground of appeal.  There is also no basis to the objection in the grounds of appeal to the wording of the Operation Guidelines for Licensed Weir Storage.  I have before me from only one expert witness in dealing with this problem and am satisfied that the rights of riparian owners downstream from the works have been taken into consideration and this ground of appeal also fails.

Under the provisions of the Water Act as already stated, the onus is upon the appellants to show that within the grounds set forth in the notice of appeal the decision of the Commissioner is wrong. I find that the appellants have failed to discharge this onus and the appeal fails.
  Accordingly, the appeal is dismissed and the decision of the Commissioner is affirmed.

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