Rogers v Chief Executive, Department of Primary Industries

[1994] QLC 5

[1994] QLC 5

 

  LAND COURT

BRISBANE

25th March, 1994

Re: Appeal under Water Resources Act 1989 (A92-52)

Ross Geoffrey Rogers & Nora Dale Rogers
  v.
  Chief Executive, Department of Primary Industries

D E C I S I O N

This is an appeal by Ross Geoffrey Rogers and Nora Dale Rogers (the appellants) under s 4.26 of the Water Resources Act 1989 (the Act) against the decision of the Chief Executive, Department of Primary Industries (the respondent) to grant a waterworks licence to Mr AW Dawson (the licensee) with respect to the North Johnstone River in the parish of Malanda.
           The appellants are the owners in fee simple of Lot 1 on RP 26864, Parish of Malanda, County of Nares, containing an area of 10.42 hectares (Lot 1).  The Lot is bounded on the north and east by the North Johnstone River (the river).  This boundary is not a surveyed boundary, rather it is an ambulatory boundary.  Downstream of Lot 1 is the land of the licensee.  This land is described as Lot 4 on Plan NR 7980, Parish of Malanda, County of Nares.  This land is bounded on the east by the river.
On 24 August, 1992, a waterworks licence was issued to the licensee, covering works described as an earth and rock fill dam for purposes described as environment enhancement. The licence was issued following application and inquiry made under Part 4 Division II of the Act. The appellants objected to the grant of the licence and being dissatisfied with the grant have exercised their right of appeal as prescribed by s 4.26 of the Act.
           The appeal is made on some 19 grounds.  The grounds are sufficiently broad to cover the substantive issues involved in the hearing of the matter.
           At the point where the works were constructed, which is a short distance upstream of a bridge across the river in Glen Allyn Road (the Glen Allyn Bridge), there existed an old causeway.  According to the evidence of Mr RP Walsh, Technical Officer (Stream Control) with the Department of Primary Industries, the causeway ponded the river for a distance of about 500 metres.  Works constructed by the licensee raised the level of the causeway and caused ponding for a distance of about 1.6 kilometres.  That part of the river boundary of Lot 1 is ponded for about ³/₄ of the length of that boundary.  The works were constructed without a licence.  On acquiring knowledge of the works, the licensee was invited to apply for a licence under s 4.13 of the Act.  The Act clearly recognises that the respondent may licence existing works.  The qualification applying in the circumstances however is that an application for a licence must be made and considered as if the works were non-existent.  In this case the works were licensed.  Both the appellants and the licensee are riparian owners within the meaning of the Act and both have permits to pump water from the river for domestic and/or stock purposes, see ss 4.9, 4.11 and 4.32 of the Act.  The licence was sought for the purpose of improving recreational use of the river.  Dead timber was removed from the ponded area bounding the licencee's property.  Weeds and grasses were cleared and the right bank (on his boundary) beautified by planting trees, etc.  In short, the intention of the licensee was to provide a recreational facility for swimming and canoeing beside a parkland atmosphere.  Photos of these works depict such a scene with numerous youth enjoying the facilities.

The works are described by Mr Walsh (who is an engineer) as consisting of unconsolidated gravel and rock fill impoundment.  The works are classed as a weir.  He doubts whether the works could withstand a moderate flood.  The application sought permission to provide a weir having a maximum height of 1.5 metres above bed level of the river.  Mr Walsh has estimated that the crest of the weir is 1.3 metres above average downstream bed level of the river (measured from the toe of the weir downstream). 
           Lot 1 which has a substantial frontage to the river was purchased by the appellants in 1977.  It is intended that they will retire on the lot and may use the land for horticultural purposes.  Some pecan nut trees have already been planted and are tended on a weekend basis.  Until their retirement the appellants will use the lot for rural residential purposes.  The appellants reside in a shed, 8 metres by 8 metres, which has been sited on the bank of the river overlooking a cascade or riffle.  A feature of the enjoyment of the lot is the characteristics provided by the river.  The appellants use it for recreational purposes such as canoeing.  Other features in the area include the flora and fauna in and about the river and sightings have been made of the Lumholtz tree kangaroo.  Bordering the river on both the right and left bank, from above the land of the appellants and proceeding through past the land of the licensee, is a strip of forest (principally wattle and sarsaparilla timbers with rainforest understorey) which the experts who were called say provides a corridor for animals.  The width of the corridor varies from 10 metres to 40 metres.  The part of the river bounding Lot 1 which has been ponded is said to have contained a series of ponds connected by riffles.  One such riffle has influenced the appellants in the siting of the shed which ultimately will become the site of their home.  The site is contained within the treed corridor on the bank of the river.  Riffles are seen as having significance in the preservation and propagation of a species of frog and as providing crossings for wildlife.  Platypus are present in the river and have been seen frequently by Mr Rogers when attending to his pump which is placed at the waters edge.  Part of his case is that the pump will have to be moved further up the bank of the river.  Any exhilaration experienced by the appellants and their invitees and licensees in crossing the riffles by canoe is lost in that they are now within a pond.
           The main cause of complaint is the loss of aesthetics provided by the river (overlooking a riffle) coupled with the effects of the ponding upon their recreational enjoyment of it (canoeing in a pond rather than over riffles) and the appellants say that they are conscious of the effects the ponding may have upon the environment.  These interests whether in conjunction or in isolation would not in my opinion let the appellants into Court as objectors.  They are in Court because they are riparian owners situated as prescribed by the Act (see s 4.17).  So far as the licensee is concerned, the dominant use made of the works which have been licensed is for recreational purposes.  The river in that location also possesses aesthetic characteristics which have been put to use by the licensee in providing a facility which has an element of public interest in it in that it is open for enjoyment by residents of the surrounding townships.  Both the licensees and the appellants are riparian owners.  Their rights to the use and enjoyment of the river as riparian owners are provided for in the Act.  Such rights are limited to those rights defined by s 4.11.  S 4.9, which may be read with s 4.11, reads as follows:-

"4.9    Right of owner of occupier of land abutting a watercourse or lake to access for water and grazing and to right of action for trespass.

1. Notwithstanding this Act the owner of occupier for the time being of land abutting a watercourse or lake the bed and banks of which are declared or are deemed to be the property of the Crown -

(a)has and may exercise a right of access for himself, his family, his employees or agents or his stock to the part of land comprising the bed and the bank of that watercourse or lake to which the land is adjacent for the purposes of obtaining and using the water therein for domestic and other ordinary purposes and for watering and grazing stock as if this Act has not been passed, for so long as that part remains unappropriated by the Crown for a purpose under this Act;

(b)may maintain and enforce against a person who trespasses upon the part of the bed and the bank of a watercourse or lake referred to in subparagraph (a) any action for trespass which he might have had if this Act had not been passed and the person in question were a trespasser upon land in the possession of that owner or occupier.

1. Except for the rights conferred upon an owner or occupier by subsection (1), this section must not be construed or operate so as to -

(a)restrict the right of the Crown to maintain and enforce against a person who trespasses upon the part of the land comprising the bed and the bank of a watercourse or lake referred to in subsection (1) (a) an action arising out of the trespass;

(b)entitle the owner or occupier referred to in subsection (1) to maintain and enforce against the Crown or a person acting under the authority of this Act or any other Act an action for trespass."

These sections are cited for the purpose of emphasising that the rights of riparian owners are very limited and that use made of a boundary watercourse by such owners, for example, for recreational and canoeing purposes is made at the forbearance of the Crown and is not an "as of right" usage.
          In what appears to have been an exhaustive search for reasons supporting the appeal it is submitted that the "land" of the appellants has been submerged as a result of the works and in breach of condition 3.003 of the licence.  The condition provides that

"The works authorised by this licence shall not cause submergence of the property or works of any other landholder without the prior written approval of such landholder."

It is therefore necessary to consider where the boundary of Lot 1 ceases in relation to the bed and banks of the river which, by virtue of the Act, are vested in the Crown.  Bed and banks are defined in the Act (s 1.4) as meaning:-

" `bed and banks' with reference to a watercourse or lake means land over which the water of that watercourse of lake normally flows or that is normally covered by that water whether permanently or intermittently: The term does not include land abutting or adjacent to the bed or banks that is from time to time covered by flood water: For the purposes of this definition "bed" means the relatively flat and "banks" the relatively steep portions of the firstmentioned land;"

Appended as Annexure A is a sketch of the river provided by Mr Rogers.  Six cross sections of the river were surveyed by the Departmental Engineering Surveyor, Mr J Charles.  The cross sections are appended to the statement of evidence of Mr Walsh.  One is downstream of the Glen Allyn Bridge, two are on the boundary of the licensee's land and three are in respect of the boundary of Lot 1.  The cross sections were taken as at March, 1992.  On Mr Walsh's workings, the average width of inundation along the right bank of the river is 2.5 metres whilst the bank of the watercourse is approximately 16.7 metres in width.  Average height of the confining bank was 7.3 metres above water level at the date the cross sections were taken.  The cross section made at section 4 (on boundary of Lot 1) is annexed as Annexure B.  It and the sketch provided by Mr Rogers serve as examples of the river at the respective points.  What may be seen to exist within the confines of the high bank (or steep sides) and also shown in photographs tendered by the parties, is that the banks are clearly defined containing within a flow of water confined to a small (narrow) channel linking ponds during the drier months, and it would appear (having regard to the vegetation on the steeper sides) for the greater part of the year, but greatly increasing during wet weather and extending from high bank to high bank.  There is no evidence as to whether the river overflows the high bank in periods of exceptional flood.  The submission made by the appellants is that the bed and banks for the purposes of the definition are confined to the channel area of the river flow in drier times and does not include the area of the terrace or the steeper banks.  In Kingdom v. The Hutt River Board (1905) 25 NZLR 145, the three aspects to which I have referred were considered. The case dealt with a situation where a river had defined banks, but the flow of water between the banks was irregular, being confined to a small channel during the dry months and for the greater part of the year, but greatly increasing during wet weather and extending occasionally, in each year, from bank to bank, whilst in exceptional instances, happening once in every two or three years, when rainfall had been long continued and of great severity, it overflowed the banks. It was held that the "bed" of the river (in law) extended from bank to bank and was not confined to the channel in which the water was for the time being flowing in dry weather, nor did it extend beyond the banks to land over which the water flowed in time of exceptional flood. The reasoning in this case satisfies me that in the subject case the bed and banks of the river extend from high bank to high bank. For further authority on the subject, see also Maugeri v. Commissioner of Irrigation and Water Supply (1972) QLR 411, and cases cited therein.  I accordingly hold that the boundary of the appellants freehold land ceases at the line of the high bank of the river.   The appellants pump which is a small portable (by hand) pump is alleged to have been submerged.  The positioning of the pump was, and remains at all times, in the discretion of the permittee.  There is no physical reason why it could not be repositioned.  The time and effort in so doing is inconsequential in the scheme of things.
          Having reached these conclusions it is reasonable to ask whether the appellants have any locus standi in the matter at all.  Riparian rights have not been affected (save for minor interference with the pump site).   The real cause of complaint is the alleged loss of amenity supported by evidence that fauna may be affected.  These interests have some relationship with the personal wishes of the appellants.  Neither has any direct legislative support (see s 4.18 for matters which by law must be considered by the decision maker when making inquiry into an application).  Legislation passed in 1993 (Water Resources Amendment Act 1993) gives effect to an intention of the legislature to preserve the integrity of streams by placing restrictions upon tree clearing and, in general, interference with watercourses.  This division (Division 5 in Part 4) is expressed as not applying to that which is permitted under a licence (s 4.44(2)).  The process of current thought towards a greater awareness of the benefits watercourses have to offer to the community besides conservation of water for public purposes, such as enabling a higher and better use of land, and for townships is evident in a draft report (exhibit 12) upon a management strategy for the Johnstone River catchment.  Mr Michael Merrin is the study co-ordinator.  He is in the employ of the respondent department.  The committee comprises representatives from Government and Local Government and various industries including primary industry, conservation, recreation and tourism.  Mr Merrin said that if the strategy is adopted the document will become a policy document for both the public and private sector of the community.  I note that in the introduction "maintenance and enhancement of water quality" is a key issue; that in terms of habitat management key issues include "preservation of areas of terrestrial habitats critical to rare or threatened species" and "loss of instream habitat values"; that recommendations include "encourage voluntary retention and enhancement of habitat values on all lands throughout the catchment" and that Division 5 under the heading of "Water Management" and sub-heading of  "Over-view of Water Management Issues" it is stated in paragraph 5.2.1:-

"Increasing demands for water in various parts of the catchment have highlighted the need for more comprehensive management arrangements to prevent over-commitment of surface and groundwater resources.  It is also apparent that there is a need to address potential conflicts over allocation of the resource between different user groups.

Requirements for instream uses (environmental and recreation) will also have to be considered in future allocation policies."

It is quite apparent in these words that a balancing of competing interests will be involved (as always).  Even in the application of the policy (if it is adopted) to instream uses of the nature in issue here.  In terms of possible effects of the works on the environment of the river, the appellants called Ms Jeanette Covacevich, Senior Curator (vertebrates) with the Queensland Museum; Mr Michael Patrick Trenery and Dr William F Laurance.  Dr John Woodman Winter was called by the respondent.  All are highly qualified.  Each spoke within the areas of their expertise.  Ms Cavacevich considers that the construction of the weir has breached a cardinal principle of environmental management in that the weir provides no common good - "It serves no financial purpose for society (for example, water for a town) or for an individual (to provide irrigation for crops to feed people and provide work)."  She says that reduction biodiversity is "perhaps the matter currently of most concern to biologists, specialising in management in this area and elsewhere."  Whilst expressing no grave fears for the survival of platypus, she was of the opinion that a freshwater turtle (Elsaya dentata) which she has found in deep isolated pools in the river would unlikely survive, and she said that highly specialised endemic frogs adapted to fast flowing rainforest streams with special characteristics like riffles and cascades may be affected.  Changes in the river pattern she identified as having an effect included loss of riffles, reduction of cascade, loss of deep pools isolated by basalt bars and death of trees at the river edge which could cause increased spread of para grass.  The evidence of Mr Trenery, covered the field of the Torrent Tree Frog (litoria nanotis); Creek Tree Frog (litoria rheocota) and Day's Tree Frog (nyctimystes dayi).  These little creatures are found throughout the northern tablelands.  They are fast flowing water specialist frogs with suctorial tadpoles adapted for cascades, runs, riffles and broken water.  Ponding of riffles would render such parts of the river unsuitable for these frog species.  Dr Laurance was of the opinion that the ponding of the river (over riffles) will have an effect as a barrier to those animals which cross by skipping over the riffles.  His evidence covered ground dwelling lizards, semi-arboreal lizards, rainforest rodents, antechinuses and arboreal mammals including the Lumholtz tree kangaroo.  The last species has been sighted by the appellants in the vicinity.  There is an area of 10.5 hectares of primary rainforest on the property opposite Lot 1 which constitutes an ideal habitat for this animal in the opinion of Dr Laurance.  (Mr Rogers spoke of sighting a tree kangaroo on this property).  The ponding, in his opinion, will discourage the animal from crossing the river and foraging along the right bank.  His evidence covered changes to the physical environment, increased water temperatures and its effect, siltation and changes in the aquatic environment by changes in water quality.  Dr Winter who inspected that portion of the river adjacent to Lot 1 found one tree (a sarsaparilla) standing in water which may die otherwise the canopy was, in his opinion, unaffected.  He sighted platypus and said that the species has survived in other areas where rivers have been ponded.  He said that the Lumholtz tree kangaroo are good tree climbers but usually descend to ground to move from tree to tree as they are too heavy to cross in the smaller branches of the canopy.  When on the ground they are vulnerable to attack from dingoes and domestic dogs.

          The works have extended ponding of the river from about .5 of a kilometre to about 1.6 kilometres.  There is no estimate of the number of riffles submerged.  Cross sections of the river taken in 1992 show that at that time additional ponding extended to a depth of 700mm.  Mr Walsh said that at the time the objection was made water levels were at an abnormally low level.  A photograph taken by Mrs Rogers shows a riffle prior to the construction of the weir.  There is no corresponding photograph of the same site after the construction of the weir in similar weather conditions.  Mr Walsh said that following the construction of the weir in early 1992 a rain event raised the level of the weir by 340 mm.  On the assumption that the various animals described in evidence are in habitation at suitable locations their habitat and survival is in doubt but there is no evidence to the effect that survival is critical to preservation of the species.  The licensee opens the ponded area to the public and persons from nearby townships.  This use has a degree of public interest in it.  The appellants interest is of a personal nature - including their appreciation of the environment.  The subject case is not a case where any person may object.  Nor is it a case where any "interested person" may object (see for example Australian Conservation Foundation Incorporated v. The Commonwealth of Australia (1980) 28 ALR 257 and Mr Justice Gibbs as he then was at p. 270 for tests on locus standi). It is a case where locus standi may be possessed by a riparian owner if situated as prescribed. His interests as a riparian owner are of primary consideration. Mr Rogers made it known to Mr Walsh that his main complaint was the loss of the "rapids" in the river below the bank where the shed is sited and the environmental damage that the permanent raising of the river level was causing to the ecology.
          Whilst I see these grounds as having no support in law in dealing with riparian rights inter se, the spirit of the 1993 legislation and the strategy anticipated in the management of the river catchment, would imply that there is a duty on the decision maker to consider matters contained in the proposed policies.  I note that s 4.18 (1)(c) provides that the decision maker may inquire into any other matter or things he thinks fit.  Where policies have been adopted it seems to me that there is a duty (rather than a discretion) to consider such policies.  Division 5 of the policy document recognises instream uses for environmental and recreational purposes - one appears to be restrictive and the other enabling.  The presence of human habitation and co-existence with flora and fauna is recognised.  In matters general under this act the Court has held that each application should be "fully considered with the balances held fairly and adjusted equitably as between the applicant and other riparian owners who may be affected" - Shooter & Ors v. The Commissioner of Irrigation and Water Supply  (1972) 39 CLLR 11 at p.19, see also Moir & Anor v. The Commissioner of Water Resources (A91-82) 3 July, 1992, to be reported.  The principle may be applied in considering the balance between the competing interests sought to be recognised in the proposed policies.  In the subject case the licensee wishes to use the river for recreational purposes - open to public use.  The appellants wish to use the river for a similar but private purpose.  They seek the aid of flora and fauna in protecting those private or personal interests but it would appear that the interest they possess in retaining the aesthetics of the river and the flora and fauna found in or travelling along the treed corridor on its banks is in some ways a secondary consideration to their own enjoyment of the area.  I gained the impression that Mr Rogers would be prepared to compromise and there is evidence that Mr Dawson (the licensee) did not realise that the works would pond the river so far upstream.
          In resolving the issue and in giving greater recognition than the decision maker to principles and policies sought to be achieved in proposed management strategies dealing with instream uses, it appears to me that a compromise will assist the various interests in an equitable sharing.  The appeal will be allowed and an order made that the weir be reduced in height by 300 mm.  Accordingly, the appeal is allowed and the decision of the respondent varied by in special condition 2) deleting the figures "99.52 m" and by substituting in lieu thereof the figures "99.22 m".

President of the Land Court