Reynolds v The Commissioner of Water Resources
[1991] QLC 10
•31 May 1991
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BRISBANE
31st May, 1991
Re: Appeal under Water Resources Act 1989 - s.4.26
(A90-52)
R.M.M. and M.L. Reynolds
v.
The Commissioner of Water Resources
D E C I S I O N
(Hearing at Warwick)
This appeal is against the decision of the Commissioner of Water Resources granting J.J. and A.M. Power a waterworks Licence (A50659) which authorises the installation of a 50 mm centrifugal pump on the Condamine River for the purpose of irrigating 20 hectares of land on Portions 1 and 82, parish of Killarney, in their ownership and riparian to the river with about 7 kilometres of frontage. The licence carries a condition that
"1.020Diversion of water under the authority of this licence is prohibited whenever restrictions are imposed by the Commissioner on diversion from the watercourse, lake or spring on which the licensed work is authorised to be installed, or voluntary restrictions on irrigation have been recommended by the Water Advisory Board in whose area the watercourse, lake or spring is located. "
This condition allows the licensees to take water from the river at any time other than when any form of pumping restrictions are imposed on the river. The licence will replace licence No 34216 which covers the installation of a 40 mm pump to irrigate 8 hectares. That licence was also a conditional licence and was issued in 1978.
The appellant objectors are down-stream owners of land some 17 kilometres from the subject property. Between the two properties there is a site on the river known as Elbow Valley. There is a gauging station at this site. The site has also been identified as a potential dam site. The prospects of a dam being constructed on the site were becoming firm towards the latter part of the 1980s. It had reached the stage of beginning feasibility studies. The dam, if constructed, would guarantee supply for down-stream owners. The proposal met with objection including objection from the licensees, J.J. and A.M. Power. Part of their land would be resumed for the purpose. The proposal would appear to have been laid to rest for the time being. The appellants who hold a number of waterworks licences (including conditional licenses) were no doubt in favour of the proposal. Their hopes and aspirations have been somewhat damaged and they feel that this is a matter which has relevance to the question of the licencees receiving authority to increase their former entitlement to water. I find that the matter has no relevance whatsoever. The remaining grounds of their appeal are that
"Water Resources Commission refused us an increase in our irrigation licenses 15.11.82 because of limited available water supplies; and
By the granting of this licence to J.J. and A.M. Power, the value of our property has been decreased as the unimproved value of our property according to the Valuer-General Dept takes into account our water supply. Therefore we demand compensation for Water Resources Commission discrimination against us. "
The last matter may be dispensed with briefly. Under the Act (s.4.26(4)), the burden of proof of a ground stated in the notice of appeal lies on the appellant. The evidence of Mr L.J.R. Brodrick, Technical Officer (Stream Control) in the employ of the Water Resources Commission is that the licence granted the Powers will not affect the appellants' property. It is a matter which to a degree is tied up with the first matter and rests upon a finding that the increase in the allocation to the licencees will result in a high probability that the appellants' allocation would be affected to such an extent that the area currently irrigated would have to be reduced. The whole of the evidence given by Mr Reynolds on this point is conjectural and lacking in substance. There is no evidence of correlation between a reduced capacity to pump (assuming that this would follow) and the area which may be prudently irrigated with such capacity. This ground of appeal must fail for lack of proof. The remaining ground is expressed with a degree of obliqueness and appears to have been put on the basis that a refusal to increase allocations applied for by the appellants at or about 1982 for the reasons stated (assuming that they were the only reasons) should deny any subsequent allocations or increased allocations to landholders upstream. Without endeavouring to define the meaning of the word "limited" in this context, it seems to me that for the ground to have any weight it must be proved that circumstances have not changed over the period (e.g. no more water being available than was thought to be the case when the application was dealt with or that management systems have not been able to improve the distribution of water within the system). Further as a bold statement used in the context in which Mr Reynolds uses it, the statement loses contact with general principles applicable to such matters and expressed by Mr Dodds, Member of this Court, in Re Appeals by Shooter and Others v. The Commissioner of Irrigation and Water Supply (1972) 39 C.L.L.R. 11 at pp. 17/18 as follows:
"To me there is no suggestion in these provisions that the Legislature is simply concerned with over-appropriation so much as with ensuring that each applicant is fully considered, with the balances held fairly, and adjusted equitably as between the applicant and other riparian owners who may be affected. The fact that the Legislature has insisted so strongly on the rights of both applicant and any objector to be heard, and has spelled out so carefully the appeal provisions, suggest strongly that it is the rights of each individual to establish a claim to some water and each licensee to object, that is its chief concern. "
The licencees obtained their first allocation of water in 1978. This licence would allow for the irrigation of 8 hectares. The land they hold has a 7 kilometre frontage to the river and an area of about 260 hectares of which it is said in evidence tendered by Mr Reynolds, about 142 hectares comprises river flats. The licence appealed against would permit irrigation of 20 hectares when pumping is permitted.
The appellants' lands which comprise an aggregation of farms purchased by them have waterworks licences detailed by Mr Brodrick in this form:
"The following are irrigation licences held by the appellants in 1984.
LICENCE PUMP BENEFIT CONDITIONAL CROPS
NUMBER SIZE LICENCE
SURFACE WATER LICENCES
15055 40 mm 2 ha No Grain
33288 65 mm 12 ha No Cereal & Grain
15054 40 mm 3 ha No Grain
39891 150 mm 100ha Yes Cereal
GROUND WATER LICENCES17035 594 Ml/annum combined allocation
52105 (Estimated area of grain or vegetable crops that can be 56876 commanded by irrigation from bores is 180 hectares).
56982
5685956860 "
Licence No 39891 is an irrigation licence pumping from a weir on the Condamine River. The weir stores an additional 48 megalitres over a large natural hole of 18 megalitres. The weir is licenced under licence No 39890. Licence No 39891 carries a condition that"5.072Diversion under the authority of this License is prohibited when the reservoir level of the weir authorised by License No 39890 is below the invert level of the upstream end of the outlet pipe. "
The outlet pipe would allow 35 mgl a day to pass downstream. When the flow is at that rate or less, the appellants may use the water stored above natural storage. Mr Reynolds therefore submits that the licencees (J.J. and A.M. Power) should be permitted to pump only when the flow at the Elbow Valley Gauging Station is in excess of 35 mgl a day. He submits that three other licences held by them will also be affected. His fear is that if restrictions are enforced sooner than previously, which could result from increased allocations, he must be worse off than he was before.
That circumstances have changed is found in the evidence of Mr Brodrick. Here are relevant extracts from his statement of evidence:
"In the 1960's the Condamine River was considered by the Commission to be 'over-committed'. Consequently during this time the Commissioner refused all waterworks licence applications for irrigation purposes on the grounds that 'available water supplies in the Upper Condamine Basin are fully allocated'. After a number of successful Land Court appeals against the Commissioner's decision to refuse licences the Commission's Policy on the Upper Condamine River System was reviewed and this resulted in the decision to allow the granting of 'Conditional Licences'.
To date 'Conditional Licences' have been well accepted by applicants and objectors alike on the Upper Condamine River system since they were first issued over twenty years ago.
There are twenty three current 'Conditional Licences' at present on the Condamine River upstream of the Sandy Creek confluence and this represents 25% of the total number of licences on this section of the Condamine River. These licences authorise the irrigation of an area of 348 hectares. This represents 44% of the total area irrigated from the section of the Condamine River upstream of the Sandy Creek confluence.
The issue of conditional licences on the Upper Condamine River System have enabled licensees access to the higher flows in the river. Licence holders have gained enormous benefit from 'Conditional Licences' in this area.
On the Condamine River the number of licences and associated total area of irrigation production authorises, upstream of the points along the stream are as follows:-
Sandy Creek Confluence 91 licences 799 hectares
RMM & ML Reynolds Property 38 licences 256 hectares
JJ & AM Powers Property 28 licences 144 hectares "
"For some time in the early 1980's 'Conditional Licences' were only granted if the applicants had a proven alternative supply, such as a bore to revert to whenever pumping restrictions were imposed on the Condamine River.
The proven alternative supply provision was later dropped as it was felt that it was the licensee's responsibility to plan his own irrigation/farming practices and assess the risk factors associated with reliance on conditional licences. "
He said that pumping restrictions are imposed on the Condamine River when the flow at the Elbow Valley Gauging Station is around 10 mgl a day. He said that the system has worked extremely well in the past with rights of unconditional licencees and riparian landowners protected when restrictions are imposed. He put it in this form in cross-examination:
"Yes, but why is it there that I'm discriminated against with being 35 megalitres? Why is it he's allowed to do that? Why not tell him to put a weir in the river, put his licence at 35 megalitres per day?--
Well, your licence was issued with that condition; you accepted that and since that time conditional licences have been investigated probably even more so and at the present moment with regard to the conditions applicable to any pumping restriction imposed they can't pump at all, and we've found it to be working extremely well. We haven't had any complaints from any individual, conditional or unconditional, over the times we put our restrictions on the river. "
He freely admitted that by increasing the number of conditional licences - assuming the issue of licences went on unabated - pumping restrictions would come on sooner.
To do what Mr Reynolds suggests should be done would not only cut back on the entitlement already possessed by J.J. and A.M. Power (most likely requiring off stream storage) but would throw a dark cloud over a system which, on the evidence, has been working satisfactorily for some 20 years. The system falls within the principles expressed by the Court in the Shooter appeal and it seems to me that the principles have been fairly applied in this case, in that the Powers with the substantial body of land and frontage they have to the river, have received an allocation which to my way of thinking, could reasonably be described in terms of the system as "some water". Mr Brodrick is of the opinion that the increased allocation will not adversely affect the rights of existing licencees including the appellants whereas the arguments advanced by Mr Reynolds against the allocation are more of general opposition than the particular. If there is an effect flowing from this increased allocation, it seems to me that it would not be of such significance as to warrant refusal. The balances favour the granting of the application.
Accordingly, the appeal is dismissed and the decision of the Commissioner affirmed.
Member of the Land Court
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