Prowse v The Commissioner of Water Resources; Gore v The Commissioner of Water Resources

[1991] QLC 15

[1991] QLC 15

 

  LAND COURT,

BRISBANE.

27th June, 1991.

Re:     Appeals under provisions of Water
  Resources Act 1989 -
  A91-4, A91-5 and A91-6.

N.J.F. and V.J. Prowse
  v.
  The Commissioner of Water Resources  (A91-4)

A. and R. Gore
  v.
  The Commissioner of Water Resources                 (A91-5)

and

N.R. Ruby and M.R. Hastie
  v.
  The Commissioner of Water Resources  (A91-6)

D E C I S I O N

The abovementioned parties have appealed against the decision of the respondent Commissioner of Water Resources to issue on 13th December, 1990 Waterworks Licence No 49972 to P.J. and D.L. Verri whose property is described as Portions 8 and 9 Parish of Riflemead. The licence authorises the holder to carry out erosion control protection works on the Stream bank of Bushy Creek in the Julatten District of Far North Queensland. The western bank of Bushy Creek forms, for relevant practical purposes, the eastern boundary of the Verri property so that it is a riparian property in terms of the Water Resources Act of 1989. It should be noted that subsequent to the application for the licence in January, 1990 being advertised in the Cairns Post on Saturday, 17th February, 1990, some 14 objections to the issue of the licence were filed with the Water Resources Commission. As a result of objectors concerns about the perceived effects the proposed works would have on the integrity of the Creek and the water contained therein, the respondent Commissioner issued the licence subject to the following special conditions:-

1.Prior to the commencement of any works the District Engineer, Water Resources Commission Mareeba is to be notified.

2.Protection works must not change the course of the watercourse and with the exception of that area marked A on the attached plan are for bank reshaping and reinforcing only.

3.All protective material in Sections B and C is to be covered by sand, loam or a combination of both and vegetated.  Sections B and C are those parts of the right bank of Bushy Creek riparian to Lots 8 and 9 being downstream of the southern boundary of Lot 3 RP32519.

4.The only permissible material to be used for protection is to be suitably sized rock and or concrete rubble.

5.It is not permissible to use industrial or domestic waste which includes car bodies, iron and/or steel in any shape or form, floatable objects, toxic material and the like.

6.This licence authorises the work to be carried out only on land which is owned or riparian to land that is owned by licensee.

7.This licence does not authorise entry onto lands other than that belonging to the licensee for the purpose of carrying out the works.

8.Any foreign material deposited in the watercourse which has been dislodged shall be removed from the watercourse.

9.Protection works in Section A shall consist of rip-rap 75% of which shall be greater than 1,000 kg in weight and 100% greater than 500 kg i.e. 0.2 m³ and 0.1 m³ respectively.  Section A is that part of the left bank of Bushy Creek opposite Lot 3 on RP 32519.  The larger material is to be placed at the toe of the slope.  Slopes are to be battered and after placement of rock "topsoiled" and vegetation encouraged.

By letter dated 18th January, 1991, the Licensees were advised that the words "left bank" in Special Condition No. 9. should read "right bank."
These appeals are from three of the original objectors. Section 4.26 (3) of the Water Resources Act 1989 provides that a person who files an appeal in the Land Court Registry must state in the notice of appeal the grounds of appeal upon which the appellant intends to rely, and that the appellant is not entitled to raise a ground not stated in the notice. Subsection 4 in the same Section provides that the burden of proof of a ground stated in the notice of appeal lies with the appellant.
With respect to appeal A91-6 (N.R. Ruby and M.R. Hastie) no appearance was entered on behalf of the appellants. Now while the Court has reason to believe this was due to the serious illness of one of the owners, and this is most unfortunate, the situation is as a matter of law that the onus provision resting upon the appellants in accordance with the aforestated provisions of the Water Resources Act cannot be discharged when the appellant fails to appear and furnish evidence. It was perhaps open for the appellants to seek an adjournment but as this course was not taken, there is no option for the Court but to have struck out appeal A91-6 by N.R. Ruby and M.R. Hastie against the decision of the respondent Commissioner for want of prosecution.
                  I turn now to the remaining appeals for which are made on the following grounds:-

Appeal A91-4  (N.J.F. and V.J. Prowse)

1.Balance areas along the creek have not been surveyed and pegged nor ownership of same determined.

2.The licence allows work to be done without a Water Resources officer on site for proper supervision.

3.No concrete rubble should be allowed near the creek, slab or otherwise.

4.The Commissioner hasn't considered re-treeing the creek banks to their original condition.  A far better protection method than earthworks.

Appeal A91-5 (A. and R. Gore)

1.Concrete rubble should still not be used as we are not sure of what sort of toxic substance is in it.

2.We are still not sure who owns the balances along Bushy Creek (especially regard to Section A) - therefore how can you authorise a licence to these areas - these have never been surveyed properly

3.basically seeing he took the trees away in the first place, why can't he put things back the way they were originally.  We are glad to help this way.

4.Still worried about backup of creek when flooding if banks are pushed in further.

The conduct of the appellants case was in the hands of Noel John Frederick Prowse who is a joint appellant in A91-4.  The Prowse property is Lot 1 on RP732519, Parish of Garioch which also is a riparian property on the eastern bank of Bushy Creek directly opposite Mr Verri's Portion 9 Parish of Riflemead.  Mr Prowse informed the Court that he is concerned about the situation since there are a number of balance areas belonging to a firm called "Homestead Estates" along Bushy Creek.  These balance areas resulted when a hurried subdivision was made of a large parcel of land by that firm into rural homesites some years ago.  Mr Prowse says that these  balance areas, which seem on the evidence to comprise some seven separate parcels which were originally to the east of Bushy Creek but some of which at least now appear to be on the western side of that creek, cannot be precisely identified without survey.  His concern apparently is that the holder of the subject licence would in all probability need to trespass over some of the balance areas where they fall within the metes and bounds of his property to carry out the proposed works.  It appears from a document placed in evidence by Mr Prowse that the Mareeba Shire Council proposes to take possession of these balance areas for unpaid rates, but Mr Prowse says that it would be more desirable if they are taken by the Crown so that they cannot be interfered with by any of the involved landholders.  This may indeed be desirable but the existence of the balance areas and their ownership is not a matter which could influence this Court in these cases.  What has to be considered in these appeals is the rights and interests of the appellants and the licensee and there is no appeal from the owner of the balance areas.  Whether there is trespass in the event of the carrying out of the proposed works by the licensee under the conditions of the licence is really a matter between the licensee and the owner of the balance areas. 
                  Mr Prowse informed the Court that he is concerned that with the large volume of water which comes down Bushy Creek each wet season, then nothing would be gained by any bank work including the placement of rubble etc as the creek would eventually scour the banks and dislodge any rubble causing it to be washed downstream.  Mr Prowse says that it is important to recognise that any concrete rubble could be contaminated - for an example a concrete slab treated underneath with dieldrin or some similar chemical for pest control.  Mr Prowse stresses that from between the bridge over Bushy Creek on Mt Lewis Road and where the Creek crosses the main Julatten Road there are about 177 people relying on Bushy Creek for drinking, domestic, and irrigation purposes, and with this number of people involved he feels even the remotest possibility of disturbance to the water supply is not acceptable.  Mr Prowse suggests that a far better solution to the problem would be to revegetate the area to protect the creek banks. 

Anne Petronella Gore also furnished evidence.  The Gore property is Lot 2 on RP 29240, Parish of Riflemead.  It is a riparian property on Bushy Creek and adjoins the Verri property.  Mrs Gore objects to the decision to dump rubble on the banks of Bushy Creek since she feels any artificial constrictions in the natural flow of the creek greatly increase the likelihood of flooding on her property.  She also believes that nobody should be allowed to dump man made rubbish in what she describes as a beautiful watercourse rendering it unsightly, dangerous and unsuitable for recreational purposes.  Mrs Gore says this dispute would never have arisen if the trees along Bushy Creek had never been removed in the first place.  She too believes the best method of creek bank protection is revegetation with which she would gladly assist. 
                  The respondent Commissioner called in evidence Raymund Patrick Walsh who is Technical Officer Stream Control in its employ.  Mr Walsh informed the Court that after P.J. and V.L. Verri purchased their property in about 1980 - 1981 and prior to their application for the waterworks licence, they had from time to time carried out works to effect stream improvements.  Landholders in the vicinity became concerned that interference with the creek bank was detrimental to the riverine environment, and as a result, Mr Verri was instructed by the Commissioner that any works within the watercourse would not be permitted unless authorised by a waterworks licence.
                  On 8th March, 1987 a landowner opposite the Verri property complained that the Verri's were using heavy earthmoving equipment in the creek adjoining their property which caused subsequent damage to the creek.  The work carried out by Mr Verri was described by the complainant (W. Packham), that a bull dozer had been used to push sand from the banks on one side of the creek and also the property adjoining the northern part of his land to the other side of the creek to fill banks.  Mr Packham said that the subsequent damage to growth along the banks had allowed the whole bank to wash away during flooding and so exposed the banks to further erosion.
                  Mr Walsh told us that he walked the creek on 28th May, 1987 and could find no evidence of the severe erosion to which Mr Packham referred, although he points out that there was a three month period which intervened during which regeneration of growth on the creek bank had probably occurred.
                  During November, 1989 there were further complaints about the Verri's interference with the creek and these were considered by Mr Walsh to be unfounded, but it was then decided to inform Mr Verri that further works could only be carried out under the authority of a Waterworks Licence. 
                  Mr Walsh says the use of suitably sized concrete rubble is common in river bank or wave protection works, and that the Verri's have access to concrete rubble.  His attention has never been drawn to any problems arising from the use of concrete rubble in a watercourse and he points out that the Verri's have been using concrete slabs in the creek since 1981 with no consequent toxicity problems.  Mr Walsh stresses that Special Condition No. 4 on the licence specifies the material to be used and Special Condition No. 9 specifies the size range.  More particularly Special Condition No. 5 excludes the use of certain material.  Mr Walsh is of the opinion that concrete will not create toxicity problems in the creek nor will it adversely affect riverine ecology provided it is of the size and weight specified.
                  Mr Walsh considers that the bank stabilisation works carried out by the licensees is of a good standard and in his mind not an eyesore, with the protective material having been overlayed and with grass cover established.  The licensee's approach to bank protection is generally to batter off steep slopes where they are 2 metres or less in height and establish a grassed stable slope.  The rock or concrete is used as a protection for the toe of the slopes where streamflow velocities are excessively high and likely to cause the erosion of an unprotected bank. 
                  Now it is readily appreciated that landowners on a creek such as Bushy Creek could well be concerned about any interference with the creek but here I am faced with very strong evidence from Mr Walsh, (who is the only expert in his field to give evidence) that he has not discerned any problems with the bank protection works so far carried out nor with toxicity from the concrete slabs used by him.  Had there been problems as outlined by the appellants, they would no doubt have been referred to in this case, but there is simply no evidence that the works carried out so far by the Verris or further works authorised under the licence would be detrimental to the creek.  It is also mentioned that the conditions of the licence, as a matter of law, must be observed and I feel they are such as to provide adequate protection for the banks of Bushy Creek.  As Mr Walsh points out, if the licensees do not comply with the licence conditions then they are liable at law.  I am conscious that the appellants here are desirous of having creek bank protection carried out by revegetation, and they are no doubt influenced to suggest this approach since they expressed their intense interest in the preservation of the environment.  However I must consider the cases on merit and on my appreciation of the evidence there is no reason for me to do other than to confirm the decision of the Respondent Commissioner to issue Waterworks Licence No. 49972 to P.L. and D.L. Verri subject to the conditions endorsed thereon.  Accordingly Appeal No. A91-4 by N.J.F. and V.J. Prowse and Appeal No. A91-5 by A. and R. Gore are dismissed.  Appeal No. A91-6 by N.R. Ruby and M.R. Hastie for the reason already stated has been struck out for want of prosecution.

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