Person v Chief Executive, Primary Industries Corporation

[1994] QLC 16

[1994] QLC 16

 

 

LAND COURT

BRISBANE

20th May, 1994

Re:Appeal under Section 4.26 of the Water

Resources Act of 1989 -
  A93-88.

PN and PM Person
  v.
  Chief Executive, Primary Industries Corporation

D E C I S I O N

(Hearing at Atherton)

This appeal lies against the decision by the Chief Executive, Primary Industries Corporation on 24th November, 1993, to grant Waterworks Licence No 56749 for Water Conservation Works to F. Mellick.  The Licence attaches to Portions 179 and 72, Parish of Barron, and authorises an existing earth dam constructed by Ms Mellick across Rocky Creek in the Tolga District of North Queensland.  The authorised dam has the capacity to hold a volume of 40 megalitres.  The conditions endorsed on the Licence include the following:

"3.005If there is a flow in the watercourse into the storage, water must be allowed to pass downstream of the storage through the outlet pipe or siphon pipe or over the bywash or spillway, or by any other means determined by the Commissioner or an Authorised Officer at a rate equal to the unrestricted capacity of the outlet pipe or siphon pipe (with the downstream end of the pipe at bed level) or equal to the rate at which water is entering the storage, whichever is the lesser, or at such a rate as may be determined by the Commissioner or Authorised Officer.  When directed by the Commissioner the licensee shall install and maintain to the satisfaction of the Commissioner approved flow measuring devices for the purpose of measuring flows entering and leaving the storage.

SPEC2A through pipe of not less than 75mm diameter is to be installed at bed level and is to remain open until the dam commences bywashing.  "

The appellants the PERSONS are riparian landowners whose property is located about 4km downstream from the authorised dam.  Their property is described as Lot 1 on RP 28373, Parish of Barron, and contains an area of 12.45ha.  The grounds of appeal as contained within the Notice of Appeal read:

"1.When objections were called for, the dam across Rocky Creek had allegedly already been constructed.

2.We have an extremely meagre water supply at present, any further erosion of this supply could be disastrous for us.

(The full details of our supply problems are listed in                   previous correspondence to the QWRC).  "

Peter Neil Person had the conduct of the appeal before the Court in Atherton on 19th April, 1994.  Mr Person told us that he has never seen the authorised dam but his knowledge about it being built across the creek came from a couple of farmers and also from a Mr Walsh who is an employee of the Department of Primary Industries and who later furnished evidence in the matter.  Nothing really turns on the fact that the dam had already been built prior to the issue of the Licence as the respondent is empowered to license existing structures.  No enquiry has been made by Mr Person of the licensee, but he believes that the Licence authorises a  "pretty big dam".
           Mr Person read into the record the contents of a long letter dated 30th September, 1993, which was forwarded by the appellants to the Department of Primary Industries and which was the basis of their objection to the issue of the Waterworks Licence.  I do not propose to cover all the contents of this letter in this decision but to refer to such parts of it as appear relevant to the appeal.  Mr Person says that the appellants' property is in a rain shadow with an unreliable rainfall.  Initially four bores were sunk on the property together with a shallow well in an attempt to get a reasonable water supply.  The bores proved failures and the well was equipped with pumping equipment but after a period of time, the initial supply of about 2,700 litres per hour faded to 227 litres per day.  Two further bores were sunk, one of which had been equipped with a submersible pump.  The supply from this bore in time became "sodary" and the supply again diminished.  In 1985, after test pumping and a water analysis, the other bore was equipped with the pump installed originally on the first bore.  It initially produced 2,700 litres of "Class A" water per hour.  However, over the last two years and quality and quantity of water coming from the second bore has deteriorated quite drastically.  In dry months, say September, October, November, Mr Person has noted that sand now comes through the waterline and he can only assume that the sodium level in the water increases in dry months and greatly decreases when Rocky Creek is flowing. 
           Mr Person summarises by saying that the appellants only have a fragile water supply on their property and they strongly oppose the construction of any dam on the creek if it were to cause any further deterioration in their existing water supply.  Mr Person informed the Court that, on the converse, if provision was made for the authorised dam to maintain a flow of water in Rocky Creek at all times, even in dry times, then the appellants would have no objection to the scheme proceeding.  This, of course, would involve the construction of a much larger dam than that authorised by the Licence which holds only 40 megalitres.
           Now it transpired in evidence that Mr Person had no knowledge of Special Condition 2 in the Licence.  I find it somewhat surprising that he had no knowledge of it, since in evidence is a copy of a letter from Mareeba District Manager of Water Resources Division of the Department of Primary Industries to Messrs PN and PM Person dated 22nd November, 1993, which makes mention of it.  I am equally surprised that Mr Person was not made aware of the Corporation's proposal and subsequent insertion in the Licence of Condition 3.005.  Had this been the case, then it would not be unrealistic to assume that the matter may not have come before the Court.
           Mr Person told us that he does not personally work his property.  There is a sharefarmer on it and he is "creeping by" on rainfall.  There are 7ha of peanuts and 3ha of legumes being farmed.  No water has been pumped from Rocky Creek since 1991.
           Called in evidence by the respondent Chief Executive was Raymond Patrick Walsh who is a Technical Officer (Stream Control) in the employ of the Primary Industries Corporation.  Mr Walsh has been stationed in the Far North Region of the State since April 1988.  He informed the Court that the purpose of

the dam was stated by Ms Mellick to be for environmental enhancement, although his discussions with the farm manager suggested it would provide a stock watering facility and some potential for supplementary irrigation at some future time. 
           Mr Walsh describes Rocky Creek as not being a perennial stream as water ceases to flow in it in most years around September.  He appreciates that if small freshets occur of insufficient volume to fill the authorised dam quickly, then the improvement in supply would not be available to downstream users (like the appellants) until such time as the storage bywashed.  As a result, Special Condition 2 was inserted in the Licence.  Mr Walsh also explained that Condition 3.005 was inserted to ensure the continuation of the downstream flow rate.  He is of the opinion that the conservation of about 40 megalitres of water is insufficient when compared to the total catchment yield from the 1,300ha catchment to cause any measurable reduction in supply to downstream users.  Mr Walsh describes the Rocky Creek catchment as being steep and comprised of granite with sparse vegetation.  He estimates the annual rainfall to be in the order of 1,350-1,400mm with the majority falling in storm events in January, February and March, after which time the flow rate recedes rapidly to base flow levels until recharge commences in about November each year.  Mr Walsh feels that the appropriation of 40 megalitres of water is inconsequential in reducing any possible recharge capability to the aquifer in which the appellants' underground facilities are located.
Mr Walsh's comments that the proposition put forward by Mr Person in that he would have no objection to the dam if it was enlarged to ensure a continuous running supply in Rocky Creek downstream and that it would be a matter of formal process under the provisions of the Water Resources Act for it to be pursued, is undoubtedly correct.
Section 4.18 of the Water Resources Act of 1989, insofar as it is relevant, reads:

"(1)Upon an application under section 4.17 and an objection thereto, the Commissioner must cause inquiry to be made -

(a)where the application relates to water other than underground water, into -

(i)the availability and sufficiency of water to supply the requirements of -

(A)riparian owners;

(B)      licensees;
  (C)      permittees;
  (D)      the applicant;
  and
  (E)      persons specified in section 2.2(a);

(ii)the effect that the granting of the application will have or is likely to have on entitlements of riparian owners, licensees and permittees; "

Now the evidence in this case overwhelmingly supports the view taken by the respondent Chief Executive that the granting of the Licence for the already constructed earth dam does not significantly affect the availability and sufficiency of water to supply the requirements of the appellant riparian owners, although I have some doubt from a practical sense that the respondent can satisfactorily ensure, at the appropriate time and when necessary, that the licensee would and could comply with Condition 3.005.  Nonetheless, I cannot in the overall circumstances come to a conclusion that the respondent Chief Executive erred in issuing Waterworks Licence 56749 to Ms Mellick under the conditions specified in the Licence.
           Accordingly, the decision of the Chief Executive to issue Waterworks Licence 56749 is confirmed.

(C.H. Carter)    
  Member of the Land Court