Ryan and ORS and Commissioner Of Soil and Land Conservation

[2006] WASAT 380

RYAN & ORS and COMMISSIONER OF SOIL AND LAND CONSERVATION [2006] WASAT 380

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 380
Act:	SOIL AND LAND CONSERVATION ACT 1945 (WA)
Case No:	DR:522/2005	Heard:	7 - 9 AUGUST 2006 AND 31 AUGUST 2006: WRITTEN SUBMISSIONS 6, 8 AND 12 SEPTEMBER 2006
Coram:	JUDGE J CHANEY (DEPUTY PRESIDENT) MR A GARDNER (SENIOR SESSIONAL MEMBER)	Delivered:	28/12/06
No of pages:	36	Judgment Part:	1 of 1
Result:	Notices confirmed subject to minor amendments
Category:	B
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Parties:	JOHN GREGORY RYAN PAUL JACK ARUNDEL LESLEY JOHN TYSON PETER ELISIO LUCCHESI COMMISSIONER OF SOIL AND LAND CONSERVATION
Catchwords:	Soil and land conservation Agricultural land drainage to prevent salinity Saline water discharging into creek Whether discharge causes land degradation to downstream landholders Notices to block drains Whether drains constitute an "agricultural practice" Extent of jurisdiction of soil and land conservation in relation to salinity in watercourses Consideration as to exercise of discretion
Legislation:	Environmental Protection Act 1986 (WA) Rights in Water and Irrigation Act 1914 (WA), s 5E(1)(b), s 26J, s 26O, Pt IIIA Soil and Land Conservation Act 1945 (WA), s 3, s 4, s 5, s 7, s 13, s 13(a), s 32, s 32(1), s 32(1)(a), s 32(2), s 38 Soil and Land Conservation Regulations 1992 (WA), reg 5 State Administrative Tribunal Act 2004 (WA), s 25(2)
Case References:	Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Water Administration Ministerial Corporation v Jones [2005] NSWCA 181 Nil

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : SOIL AND LAND CONSERVATION ACT 1945 (WA) CITATION : RYAN & ORS and COMMISSIONER OF SOIL AND LAND CONSERVATION [2006] WASAT 380 MEMBER : JUDGE J CHANEY (DEPUTY PRESIDENT)

MR A GARDNER (SENIOR SESSIONAL MEMBER)

HEARD : 7 - 9 AUGUST 2006 AND 31 AUGUST 2006: WRITTEN SUBMISSIONS 6, 8 AND 12 SEPTEMBER 2006 DELIVERED : 29 DECEMBER 2006 FILE NO/S : DR 522 of 2005

DR 527 of 2005
DR 528 of 2005
DR 529 of 2005

BETWEEN : JOHN GREGORY RYAN

PAUL JACK ARUNDEL
LESLEY JOHN TYSON
PETER ELISIO LUCCHESI
Applicants

AND

COMMISSIONER OF SOIL AND LAND CONSERVATION
Respondent

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Catchwords:

Soil and land conservation - Agricultural land drainage to prevent salinity - Saline water discharging into creek - Whether discharge causes land degradation to downstream landholders - Notices to block drains - Whether drains constitute an "agricultural practice" - Extent of jurisdiction of soil and land conservation in relation to salinity in watercourses - Consideration as to exercise of discretion

Legislation:

Environmental Protection Act 1986 (WA)

Rights in Water and Irrigation Act 1914 (WA), s 5E(1)(b), s 26J, s 26O, Pt IIIA
Soil and Land Conservation Act 1945 (WA), s 3, s 4, s 5, s 7, s 13, s 13(a), s 32, s 32(1), s 32(1)(a), s 32(2), s 38
Soil and Land Conservation Regulations 1992 (WA), reg 5
State Administrative Tribunal Act 2004 (WA), s 25(2)

Result:

Notices confirmed subject to minor amendments

Category: B

Representation:

Counsel:

Applicants : Mr PG Brunner
Respondent : Ms FB Seaward

Solicitors:

Applicants : Kott Gunning
Respondent : State Solicitor's Office

Case(s) referred to in decision(s):

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Water Administration Ministerial Corporation v Jones [2005] NSWCA 181

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REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 On 1 July 2005, the Commissioner for Soil and Land Conservation acting under s 32 of the Soil and Land Conservation Act 1945 (WA), issued Soil Conservation Notices in similar terms to each of the applicants, directing them to prevent saline water discharging from the drains constructed on their lands onto other land, other water or watercourses. Each of the applicants owns and farms land along the Dudinin Creek in the Shire of Kulin, and had constructed deep drains to discharge saline groundwater from their land to Dudinin Creek. The Commissioner issued the Soil Conservation Notices because he was of the opinion that these drainage discharges of saline water into Dudinin Creek were causing land degradation to occur downstream, to the detriment of other landowners' use of the creek water.

2 The applicants applied for review of the Soil Conservation Notices. They are aggrieved that the Commissioner has directed them to block the drains only 18 months (approximately) after he said he had no objections to their Notices of Intent to construct the drains. The important issues in the appeal were:

1. the nature of the Commissioner's authority under s 32 to issue Soil Conservation Notices when the Commissioner was of the opinion that an agricultural practice was causing land degradation in the form of the salinity that resulted in a deterioration of water quality that would be detrimental to present or future use of land; and

2. whether the applicants' drains were causing an increase in the salinity levels of the creek water flowing to downstream landholders so as to affect adversely their use of the creek waters to fill their dams and water stock; and

3. if the applicants' drains were having this effect, whether the Commissioner should exercise his discretionary power under s 32 to issue the Soil Conservation Notices requiring the applicants to prevent saline discharges from the drains.

3 The Tribunal affirmed the Commissioner's decisions to issue each of the Soil Conservation Notices, but directed that certain variations be made
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to them and that the amended Soil Conservation Notices be returned to the Tribunal for its approval on 30 January 2007, or such other date as the parties might agree. The stay on the operation of the Soil Conservation Notices will be lifted on that date and the applicants will need to comply within 10 days. In summary, the Tribunal found that:

1. the Commissioner can exercise the power under s 32 from time to time "whenever" he or she is of the requisite opinion that land degradation is occurring or is likely to occur;

2. the applicants' drains are causing land degradation by increasing the salinity of the water of Dudinin Creek flowing to the downstream landholders to an extent that is having and will have a detrimental effect on their beneficial use of the creek water; and

3. in this case, the Commissioner made the preferable decision to exercise his discretionary power to issue the Soil Conservation Notices, and that the Act does not sanction one landholder solving his or her own land degradation problem by imposing the cost of it on his or her neighbour.

Factual background of the applications

4 The applicants are Leslie John Tyson, Peter Elisio Lucchesi, Paul Jack Arundel and John Gregory Ryan (applicants). They are all farmers in the district of Kulin, and own land through which flows the upper and upper-middle reaches of Dudinin Creek in the Kulin catchment. Downstream from the applicants' properties, Dudinin Creek joins Kulin Creek and eventually flows into a lake approximately 20 kilometres to the north-east of the applicants' lands.

5 Each of the applicants had suffered increasing soil salinisation of their farm land. In October/November 2003, each of them submitted a Notice of Intent to Drain Water from Land (NOI) to the Commissioner for Soil and Land Conservation (Commissioner) in accordance with reg 5 of the Soil and Land Conservation Regulations 1992 (WA) (SLC Regulations). The purpose of the regulation is to give the Commissioner 90 days in which to decide whether to issue a Soil Conservation Notice (SCN) directing that the drainage not be constructed, or be constructed in a particular way. Following assessments of the proposed drains by officers of the Commissioner and associated

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authorities, the Commissioner wrote to each of the applicants (Ryan and Arundel on 28 November 2003 and Tyson and Lucchesi on 9 February 2004) informing them that he had no objection "on land degradation grounds" to the construction of the proposed drains if it was done in accordance with certain recommendations contained in his letters.

6 The applicants proceeded in about May 2004 to construct most of the proposed drains; one set known as the Tyson-Lucchesi drains in the upper catchment and the other set known as the Ryan-Arundel drains in the upper-middle catchment. One drain proposed by Ryan was not constructed. In 2004, the drains began discharging saline water into Dudinin Creek, but that water appears not to have flowed much beyond the boundaries of the lands owned by the applicants.

7 However, following good autumn rains in 2005, some downstream landowners complained to the Commissioner that the saline discharge from the drains had flowed many kilometres downstream to their properties. Three of those downstream landowners can be identified as Mike Wilson, Shane Tyson and Robert (Alan) Bowey. These downstream landowners believed that the water discharged from the drains greatly raised the salinity of the creek water, making it unusable to them and causing them to fear that it would increase the salinisation of their land.

8 We have attached to these reasons, as Annexure A, a map of the area showing the Dudinin Creek catchment and the locations of the respective landholdings, drains, public roads and the various monitoring points. The map is titled "Figure 2, Drainage applicants and Downstream Properties" and was submitted in evidence to the Tribunal by Dr Richard George, the expert witness for the Commissioner.

9 An officer of the Commissioner investigated and reported on the downstream landowners' complaints in May 2005. He concluded that the lower­middle reaches of the creek were less saline than thought when the NOI assessments were made, and that they were now under threat from the saline discharges from the applicants' drains. In fact, the lower-middle reaches of the creek had not been investigated when the NOI assessments were done. On 16 May 2005, the officer reported that, upon investigation on 10 May 2005, the water discharging from the drains was more saline than the average level predicted in the NOIs and that highly saline water had flowed downstream to some of the properties in the lower-middle reaches of the creek. The measurements taken by the officer showed that the salinity levels on the first downstream property were 2370mS/m, on the second they dropped suddenly from 2200mS/m to 144mS/m within

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200 to 300 metres, and on the third property further downstream, the measurements were between 24mS/m and 144mS/m. The officer's 16 May 2006 report concluded:

"If there is any large rainfall events [sic] resulting in the creekline flowing, there is a very big potential for an increase in salinity in the creekline to the point where the present infrastructure that relies on the creek water will be made unusable."

10 On a further investigation of the sites on 20 May 2005, reported on 27 May 2005, the officer concluded that the saline water was still reaching the "lower slopes" and threatening the downstream farmers' use of the creek water, and that "[i]t is essential to stop the saline flow as soon as possible".

11 It is important to understand that the officer's conclusions were drawn against a background of State Department of Agriculture (Department) information that advises farmers about the suitability of different levels of water salinity for various uses of the water for stock and domestic purposes. For example, water with a salinity level greater than 230mS/m is not considered suitable for human consumption. At greater than 650mS/m, the water is not considered suitable for showers and baths. At 1100mS/m, the water is not considered suitable for consumption by lambs, weaners and breeder ewes. For consumption by adult sheep generally, the limit is drawn broadly between 1650mS/m and 2200mS/m. There are also suggested limits for watering plants; the advised maximum for plants that are not salt tolerant is 550mS/m.

12 On 14 June 2005, the Commissioner wrote to each of the applicants in the same terms, explaining the disquiet amongst downstream landowners and the conclusion from investigations that the saline drainage water had moved down the natural drainage line and was adversely affecting farm water supplies and native vegetation on the lower lands. The Commissioner advised of his intention to issue SCNs within 14 days directing each of the applicants to block the recently constructed drains to prevent further discharges of saline water. The Commissioner further explained that the directions to block the drains were "an immediate short term measure only", and that a more viable solution would need to be developed. The Commissioner mentioned a couple of options for a solution but acknowledged that finding such a solution would be difficult. The SCNs issued on 1 July 2005 to each of the applicants explain that the Commissioner was of the opinion that the discharge of saline water from

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the specified drains was liable to cause land degradation, in the form of salinity, to occur elsewhere, and that the applicants must prevent the water from discharging from their drains. The Commissioner also gave notice of the applicants' right to appeal, and noted that failure to comply with the SCNs would be an offence under the Soil and Land Conservation Act 1945 (WA) (SLC Act).

13 The applicants applied for a review of the SCNs, and the Tribunal ordered, under s 25(2) of the State Administrative Tribunal Act2004 (WA) (SAT Act), that the operation of the SCNs be stayed pending the determination of the appeals. The appeals were the subject of unsuccessful mediation in January/February 2006. As well as the applicants and the Commissioner, all downstream landholders were invited to, and did, attend the mediation. Following the mediation, the parties consented to Judge Chaney, one of the mediators, participating as a member of the Tribunal at the hearing. The appeals were then initially scheduled for three days of hearings in late June 2006 but were postponed for hearing till 7- 9 August 2006, at the request of the applicants. At the hearing on those dates, Mr Barnett, the independent expert witness for the applicants, was not available. The Tribunal decided to adjourn the hearing of the expert evidence until 31August 2006 when Mr Barnett was available.

14 The time taken for the processing of these appeals has given the Commissioner the opportunity to gather more evidence about the effects of the drains, which information is presented in the reports of Dr George. On 13 and14 January 2006, 150 millimetres of rain fell on the Kulin catchment, causing very high stream flows and flooding. On 26 and 30January 2006, there were rainfalls of 28 millimetres and 33 millimetres. These events were followed across the year (2006) by three other significant rainfall events that were monitored for their resultant stream flows:

• Event 1 of nearly 20 millimetres, across 7 and 8 February, was monitored on 9 February 2006.

• Event 2 of 34 millimetres, across 1 and 2 April, was monitored on 3 April 2006.

• Event 3 of 19 millimetres and 25 millimetres, between 21 and 23 August, was monitored principally on 23 August 2006.

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15 There were other rainfall events that were not monitored in the same detail, namely, 34 millimetres on 1 and 2 March 2006, and 10 millimetres on 15 August 2006. Whilst other stream flow and salinity level monitoring was conducted across the period February to August 2006, the three events were monitored in more detail, and the results figured large in the expert evidence presented to the Tribunal. It is also recognized that the period from mid-April to early August 2006 was a period of much lower than average rainfall.

16 The results of this monitoring will be discussed below, in conjunction with the other evidence about the salinity conditions of the creek before and after the drains were installed.

The statutory framework

17 In Western Australia, salinisation of agricultural land and water is primarily regulated under the SLC Act, though there also other statutes and common law rights and obligations to be considered (See A Gardner, The Duty of Care for Sustainable Land Management and A Gardner & T Setter, Legal Powers and Responsibilities for Managing Diffuse Pollution from Agriculture: Regulating the Flow of Water, both in (1998) 5 The Australasian Journal of Natural Resources Law & Policy at 29 - 63 and 187 - 224). In this appeal, the Tribunal is concerned with the operation of the SLC Act.

18 The Commissioner's general functions under the SLC Act include "the prevention and mitigation of land degradation": s 13(a). "Land degradation" is defined in s 4 to include:

"(a) soil erosion, salinity, eutrophication and flooding; and

(b) the removal or deterioration of natural or introduced vegetation,

that may be detrimental to the present or future use of land."

19 The SLC Act also defines "salinity" to mean:

"deterioration in soil quality or water quality resulting from the accumulation of, or a variation in the amount of, any salt in soil or water."

20 It is clear, therefore, that the Commissioner has the function of regulating certain actions that cause a deterioration of water quality by the accumulation of salt in a terrestrial water body.

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21 Salinisation of soil and water is a terrible problem afflicting much of the land in the Western Australian wheatbelt. As a result of the widespread clearing of native vegetation for agriculture, there has been an increase in the recharge of large volumes of saline groundwater, some of it highly saline. As the groundwater levels rise, increasing areas of the land surface are becoming salinised, threatening agricultural enterprises and other assets such as towns, roads and remnant vegetation. Whilst there are a variety of responses to this problem, some aimed at reducing groundwater recharge, one prominent response has been an engineering solution to increase the discharge of saline groundwater – the construction of deep open drains. As Dr George and Mr Mark Coleman have explained, scientific review of these drains (Dr Richard George and Mark Coleman, Hidden menace or opportunity – Groundwater hydrology, playas and commercial options for salinity in wheatbelt valleys, Wheatbelt Valleys Conference 2001, appended as Attachment A to the applicants' submissions in reply, page 16):

"shows that drainage increases lateral flows and salt leaching lessens the impacts of waterlogging. While watertables reductions are highly variable (less than 100m from the drains and of the order of 0.5m depth), it is apparent that the response of plants to increased drainage is significant in some areas."

22 The problem with the drainage solution is that the discharged water has to go somewhere. Whilst there are options of creating evaporation basins, a common response has been to direct the drainage discharge into local watercourses. Not surprisingly, that can cause an increase in the salinity of the water in the creeks and receiving water bodies, and that constitutes land degradation under the SLC Act, if it "may be detrimental to the present or future use of land". Such a detriment is easily shown if the increase in the salinity of the water reduces the use of that water for agricultural and domestic purposes on the abutting land. It is quite clear, therefore, that the discharge of highly saline groundwater from deep drains into a watercourse resulting in an increase in the salinity levels of the creek water, and a consequent reduction in the use of the water by downstream landowners, will mean that the drainage is causing land degradation.

23 What can the Commissioner do about that? The only applicable regulatory power under the SLC Act is the issue of a SCN. The Commissioner is authorised by s 32(1) to issue a SCN to any owner or occupier of land whenever the Commissioner is of the opinion that:

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"as a result of:

(a) any agricultural or pastoral practices or methods, which have been or are likely to be adopted;

…

on any land, land degradation is occurring or is liable or likely to become liable to occur on that land or elsewhere … "

24 The SCN may, under s 32(2), direct each or any one or more of the persons bound by the SCN to do or refrain from doing numerous things, including to "adopt or refrain from adopting any agricultural or pastoral methods specified in the notice", and may specify the period or duration for which such things must or must not be done. The Commissioner may also discharge a SCN, including upon an application by a person who is bound by it: s 38.

25 On a simple reading of these provisions, it would appear that the Commissioner may, if he is of the opinion that certain drains are causing land degradation, issue a SCN directing the landowners and occupiers to prevent the drains from discharging the saline water. In this case, the SCNs are expressed to operate for an indefinite period, but the Commissioner could discharge the notices should he find that a viable solution for the operation of the drains has been found. However, as the Commissioner may also specify the period for refraining from the relevant practice, he could also specify periods of the year, from year to year, when the drains should be prevented from discharging, and when they should not. The Commissioner argued that s 32, especially sub-paragraph (1)(a), supported the issue of the SCNs against the applicants.

26 The applicant's legal arguments for setting aside the SCNs can be summarised in three propositions:

(i) that the deep drains installed by them are not an agricultural or pastoral practice or method;

(ii) that the power in s 32 could not be exercised to regulate what is essentially the pollution of a watercourse because to do so would conflict with the power conferred on the Water and Rivers Commission under s 26J of the Rights in Water and Irrigation Act1914 (WA) (RWI Act); and

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(iii) that the applicants were entitled to take the view that, where the Commissioner raised no objection to the construction of the drains proposed in the NOI, the Commissioner would raise no objection to the drains after they were constructed.

Each of these submissions must be rejected.

27 In our view, the drains installed by the applicants are clearly an "agricultural or pastoral practice or method". The terms employed are not defined in the SLC Act, but the ordinary dictionary meanings recited by the applicants and Commissioner are broad enough to comprehend drainage as an agricultural or pastoral practice or method. The Oxford English Dictionary (on­line, 2nd edition, 1989) defines the term "agricultural" as "of or pertaining to agriculture; connected with husbandry or tillage of the ground". The Collins Dictionary of the English Language (2nd edition, 1986, William Collins Sons & Co, Glasgow) defines "agriculture" as "the science or occupation of cultivating land and rearing crops and livestock". An agricultural practice or method is one that is pursued for the purpose of agriculture. The purpose of installing the drains and allowing them to discharge the saline groundwater is to improve the quality of the land so that it may be used for growing crops and rearing livestock. The fact that drainage may be used for other purposes, such as in mining and urban infrastructure development, does not deny it the character of being an agricultural practice where it is used for the purpose of agriculture. It is no accident that drainage techniques for agricultural purposes are regulated and managed by the Commissioner, with the assistance of the Department and subject to the direction of the Minister for Agriculture: SLC Act s 5.

28 The second submission, that exercising the power under s 32 to regulate pollution of a rural watercourse, conflicts with s 26J of the RWI Act, and is equally untenable. That section is entitled [Water and Rivers] Commission entitled to institute proceedings. Its purpose is to affirm that the Commission may, on behalf of the Crown, institute and maintain any proceedings against any person for illegally taking or polluting the water of any water source. The RWI Act contains only minimal substantive provisions relating to the protection of water quality, mainly s 5E(1)(b), which confers a right on certain water users to take civil proceedings for the degradation of water resources, and s 26O, which authorises the making of by-laws for control of drainage. The former water quality control provisions of Pt IIIA of the RWI Act were deleted in the 1980s with the enactment of the Environmental Protection Act 1986 (WA) (Acts

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Amendment and Repeal (Environmental Protection) Act 1986 (WA) s 30 and s 31), which is a general pollution control statute. In any case, s 3 of the SLC Act provides, in essence, that the Act is to be read in conjunction with, and as supplementary to, these other Acts, and that the other Acts are to be construed and applied so that effect can be given to this Act without substantial interference with the operation of the provisions of the other Acts. This is no basis on which to interpret s 26J of the RWI Act as somehow conflicting with the exercise of s 32 powers for the purpose of preventing pollution of creek water by drainage of saline groundwater.

29 The third argument, that the applicants were entitled to expect the Commissioner would not raise objections to the operation of the drains after their construction, raises more important issues. It was put in varied ways, and no legal authorities were cited in support of the propositions submitted. In the applicants' submissions in reply, it was argued that, as the Commissioner raised no objection to the NOIs, "the applicants are entitled to assume that the lack of objection is based on sound assessment of the notice of intent, including whether any degradation would or would not occur further downstream" and "to take the view that … no objection will subsequently be raised after construction of the drains". In the initial submissions of the applicants, it was argued that the non-objection to the NOI raised "a legitimate expectation that the grant of the right to construct the drains would not be withdrawn or cancelled, at least not without a proper or meaningful hearing". Thus, there are two issues here: first, is there any reason why the Commissioner's power under s 32(1) should not be exercised if he did not exercise it when the NOIs were assessed, and secondly, is the Commissioner bound to accord a hearing to a landowner or occupier before issuing a notice to them?

30 The question whether the Commissioner may exercise the power under s 32 of the SLC Act, after having previously declined to do so, is answered by interpreting the particular statutory provisions: Minister for Immigration and Multicultural Affairs v Bhardwaj(2002) 209 CLR 597, per Gleeson CJ at [8], and Water Administration Ministerial Corporation v Jones [2005] NSWCA 181, per Giles J at [40] – [43]. The terms of s 32(1) of the SLC Act create a power that the Commissioner can exercise from time to time "whenever" he or she is of the requisite opinion that land degradation is occurring or is likely to occur. Regulation 5 of the SLC Regulations cannot change the interpretation of the statutory power by requiring that certain proposed actions be notified to the Commissioner before they are undertaken. It would frustrate the purpose of the SLC Act, especially s 32, if the power to issue a SCN could be exercisable only once in respect of a

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particular landowner or occupier or a particular property. Land degradation is something that the Commissioner must keep under ongoing scrutiny and he must be empowered to act whenever it is thought necessary.

31 We reject the applicants' submission (submissions of the applicants, par 48) that a decision by the Commissioner not to issue a SCN upon assessment of a NOI somehow grants a "right" to the proponent landowner to construct a drain in accordance with the NOI. The right of a landowner to construct a drain derives from the common law. The SLC Act creates no requirement for an approval sanctioned by an offence of proceeding without statutory authority. The SLC Act provides only an authority for the Commissioner to intervene in the landowner's exercise of the common law right if and when the Commissioner believes the statutory conditions are satisfied. There can be no doubt that the Commissioner has the power to issue a SCN in respect of a drainage project that has been constructed after assessment by the Commissioner through the NOI process.

32 In exercising that power, does the Commissioner owe any particular duty of procedural fairness to consult the persons against whom he intends to issue a notice? The evidence is that the Commissioner telephoned two of the applicants (Ryan and Tyson) in early June to advise that he would be writing to them about the concerns expressed by downstream neighbours. The Commissioner sent letters to each of the applicants on 14 June 2005 explaining those concerns and advising of his intention to issue SCNs within 14 days. The Commissioner's evidence was that he gave only 14 days written notice of his intention rather than the customary 21 days notice because of the perceived urgency of the situation. The letters concluded by offering the Department's limited resources to help resolve the situation and provided telephone numbers for himself and other officers who could provide technical and regulatory information. The letters did not expressly invite comment from the addressees before the issue of the SCNs. The tone of the letters was more that urgent action needed to be taken to prevent or mitigate further damage from the drains whilst the catchment community got together to find a long term solution. The SCNs were issued on 1 July 2005 and required compliance within ten days. The covering letters of that date advised of the right of review.

33 Counsel for the applicants led evidence and made submissions to the effect that the Commissioner had given the applicants an inadequate hearing before issuing the SCNs. The Tribunal does not need to come to a conclusion on this question. One of the benefits of merits review before

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this Tribunal is that any defects of process in the making of the original decision can be cured on review by the Tribunal. The Tribunal process has given the applicants an ample opportunity to put their case against the SCNs coming into operation. We do not need to dwell on the alleged shortcomings of the process in June 2005.

34 The question remains whether the Commissioner's decisions are the preferable exercises of the discretionary power under s 32. To answer this question, we need to determine findings of the relevant facts and consider what would be the preferable exercise of the Commissioner's discretion in the applicants' cases.

35 In addressing these issues, the Tribunal is concerned to ask whether, as a result of the discharges of saline groundwater from the applicants' drains, land degradation is occurring or is liable, or likely to become liable, to occur on the applicants' lands or elsewhere? In view of the discussion of the statutory definitions above, this question may be rephrased in two parts as:

(a) whether the discharges of saline groundwater from the applicants' drains is causing, or is likely to cause, an increase in the salinity of the water in Dudinin Creek, and if so

(b) whether that increase in salinity will cause a detriment to the present or future use of the applicants' lands or the land of their downstream neighbours.

Findings of fact

36 Before addressing these two core factual questions about the effects of the drains, we note that an issue was raised about whether the applicants' construction of the drains had complied with the terms of the NOIs and the Commissioner's letters of no objection. One notable and agreed departure was that one of the drains proposed by Mr Ryan has not been constructed. Another acknowledged departure was the location of one of the Arundel drains (Arundel, oral evidence, examination by Mr Brunner). The respondent also suggested (respondent's closing submissions, par 84) that an additional 600 metres of drains were constructed on the property of Mr Les Tyson and that the drains on Mr Lucchesi's property were constructed to a depth of 2.2 ­ 2.3 metres as opposed to the 2.0 metres proposed in the NOI. The applicants did not accept this (submissions of the applicants, par 50 ­ par 51). The Tribunal is not able resolve these factual contentions but believes that they are not

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significant to determining the core factual questions. We return to these contentions in the conclusion to our decision.

37 Following the mediation, the parties and the Tribunal identified a number of factual issues that emerged from the mediation, namely:

1) Would the creek be saline in the absence of the drains the subject of the SCNs?

2) If so, would it be saline when flowing or only at certain times of the year?

3) What is the effect of the drains on the salinity level of the creek?

4) Has there been sufficient time since the drains were installed to make any assessment of the effect of them on the salinity of the creek?

5) Does the emission of saline water from the drains cause degradation of the land in the lower catchment?

6) What would be the effect of blocking the drains on degradation of the applicants' properties?

38 The first four of these factual issues relate to the first core factual question, and the fifth and sixth factual issues relate to the second core factual question. We will consider them in that order.

Are the discharges of saline groundwater from the applicants' drains causing or likely to cause an increase in the salinity of the water in Dudinin Creek?

(1) Would the creek be saline in the absence of the drains the subject of the SCNs?

39 There is no doubt that Dudinin Creek was already saline to some extent before the drains were constructed. Each of the NOIs submitted by the drainage contractor, Kevin Lyon, makes this assertion. Thus, the NOIs for the Ryan and Arundel drains state:

"Disposal site is into a salt creek coming from the South. The creek line is already highly saline and eroded to a clay base."

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40 The NOIs for the Tyson and Lucchesi drains have a similar statement, but omit the word "highly". Apparently, the upper reaches of the creek were less saline.

41 Each of the NOIs goes on to describe the "disposal site impacts". Whilst some of these comments are pertinent to issue 3, they also say something about issue 1 in the minds of the applicants and their contractor, Kevin Lyon, who submitted the NOIs.

"The salinity level of the drainage water will average 3,500mS/m. Salinity level of the creek bed at disposal point is the same. However salinity levels of the creek increase significantly as you go further down stream."

42 In relation to "affected downstream neighbours", the NOIs variously stated:

"Normal processes caused by over clearing are affecting the area. The creek is already saline." (Ryan NOI)

"There will be no effect on down stream neighbours, as the levied drainage system will direct its water into a creek line that is already saline and eroded to a clay base." (Tyson, Lucchesi and Arundel NOIs)

43 From the evidence, it is not clear what measurements were taken by Mr Lyon or the applicants of the salinity levels of the creek. There was evidence, including from Mr Lyon, of observations of salt crusting in some places in the creek bed. However, it seems fairly clear that, in the preparation of the NOIs, no measurements were taken, at the applicants' properties, of the levels of salinity of water flows in the creek, especially after a rainfall event.

44 It is also clear from the evidence that the only real assessment of the salinity of the creek downstream from the applicants' properties was made on the properties of the two downstream neighbours who consented to the drainage proposals pursuant to the NOI procedures required by the Commissioner. According to Mr Lyon's evidence, the two neighbours' properties below Ryan's (the lowest of the drainage properties on the creek) extended for about six kilometres. Although Mr Lyon and the applicants had some general knowledge of the extent of Dudinin Creek to the point where it flows into a lake away to the north-east, and Mr Lyon drove around the area of the catchment viewing the downstream properties from the roadside, no person acting on behalf of the applicants

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visited the downstream properties of Mike Wilson, Shane Tyson and Alan Bowey to ascertain the use that they made of the creek and the levels of salinity of the creek water, especially during a flow event. With the exception of one piece of evidence mentioned below, the general belief of Mr Lyon and the applicants was, apparently, that the highly saline low flows from the drains would not generally go past Ryan's property because they would be captured by an old dam in one part of the creek line; indeed, the drainage project was engineered to exploit that dam as an evaporation pond in the non­rainfall months.

45 The NOI assessment conducted by the Commissioner's officers accepted the applicants' assertion that the creek was already saline. The assessment reports state in relation to the "disposal site details":

"The main creek line has bare salt scalds appearing in spots and increasing in size." (Tyson, Lucchesi and Ryan assessments)

"The creek line has bare salt scalds discharging into or surrounding it in many places with it increasing in salt content in the lower reaches." (Arundel assessment)

46 However, the Commissioner's evidence was that on-site assessments were done at the four drainage properties, and off-site visual observations were made from roadsides in the general area. At the time of the assessments, there was no water in the creek to test. It was not the normal procedure of the Department to undertake assessments on properties downstream from land subject to NOIs beyond the two properties for which the landowners have given consent to accept the drainage water. No assessments of any downstream properties were done in this case. The Commissioner's evidence was that, in his experience, "the immediate downstream landowners provide a reliable indication of any likely adverse downstream impacts of any drains". The Commissioner concluded, from the assessment reports and his general knowledge of the area, that "those portions of the Dudinin Creek below the land to be drained were already saline and therefore would not significantly be affected by the installation of the Drainage Systems".

47 Despite these submissions by the applicants and assessment by the Commissioner, it is clear that, prior to the drains being installed, at least three downstream landowners (Mike Wilson, Shane Tyson and Alan Bowey) did make use of the creek for harvesting water for their dams and for watering stock from the pools in the creek line. The water in the dams was used for stock and, in the case of Mr Bowey, for watering

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his garden. Whilst some of this water flows to these properties from the Kulin Town Creek, it is clear that the Kulin Creek water is generally regarded as fresh and that there has been no change to any land use affecting that creek that could have caused an increase in salinity of the Dudinin Creek.

48 In addition to the downstream landowners, two of the applicants, Arundel and Ryan, acknowledged using the creek water left in pools to water stock before the drains were installed, at least for a period of time after the rains. Also, Mr Arundel used to fill a dam on his property from the creek water, including from low flows of the creek. We will return to these facts later, in discussing issue 5: the effect of the drains on the use of the creek water.

49 Further, it appears that there was some general knowledge that downstream landowners did use the creek to fill their dams with stock water and made some opportunistic use of the creek water for direct stock watering. On cross-examination by Ms Seaward, Mr Lyon said that he knew that the downstream farmers would have been harvesting water for their dams from the creek. He agreed that they would not bother harvesting water that was too salty to use.

50 Mr Arundel also gave evidence that suggested that he and unspecified others had some understanding that some of the downstream landowners may not agree with the applicants' drainage proposals because of concerns about the possible downstream effects. In cross­examination by Ms Seaward, Mr Arundel explained that he discussed the drainage proposal with the two downstream neighbours, who consented to receiving the drainage water, and that he also spoke, in general terms, about drainage with Mr Mike Wilson some time before the drainage NOIs were submitted. The oral evidence is vague about exactly when this was: "twelve months before … " an unspecified event. He agreed with Ms Seaward that he did not seek the consent of the three downstream landowners, Wilson, Tyson and Bowey. Then there was this interchange.

Ms Seaward: "Would it be fair to say that part of the reason you perhaps didn't get consent … is that you didn't think there'd be any effects that far down the creek?"

Mr Arundel: "That was part of the reason. And the other problem we had was the guys that did their drainage in north Kulin, it took them 7 years, because one person in the creek didn't agree to them doing the drainage, and they lost 7 years of

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effect. So they had to sit there for that time watching their paddocks go salty. And we knew that we wouldn't have got a consensus because of the feedback we got from some of the people, so that was why we ­ we just had no choice but to make a decision and to do what we had to do."

Ms Seaward: "So you thought the best way to get it in quickly was to get the consents from the immediate two downstream people, because that's what the Department required?"

Mr Arundel: "Well, we did what we had to do, yeah."

51 The final evidence on this issue comes from the experts, Dr Richard George for the Commissioner, and Mr John Barnett for the applicants. In relation to this issue, they agreed upon a definition of saline as being >800mS/m; fresh as being <300mS/m; and brackish as being 300­800mS/m. They agreed that the creek would probably have been saline at low flows and brackish/fresh at medium to high flows. The experts agreed that they had no field data from the area prior to the construction of the drains. There was some difference of opinion, in that Mr Barnett believed that the creek would have been saline at low flows along its entire length. Dr George, however, stated that low flows [presumably from the upper catchment] would have been unlikely to reach the lower catchment and that, whilst there are areas of saline land in the lower valley, their contribution to the salinity of the creek would have been low.

52 There is a further aspect of Dr George's evidence that is helpful - the comparison of the Lake Toolibin and Kulin (Dudinin Creek) catchments. The Toolibin catchment lies immediately to the west of the Kulin catchment, and has been much more studied than the Kulin catchment because of the efforts to preserve Lake Toolibin, a valuable freshwater lake. The Toolibin catchment has a larger relative area of saline land - 4% compared to only 1% for the Kulin catchment - but has no deep drains. Further details of this comparative analysis will be referred to below. For the moment, it is sufficient to say that the mean salinity level for the first and second 2006 flow events at Toolibin was 257mS/m and a maximum single reading of 1000mS/m. The Tribunal accepts that these figures are a useful estimate of the likely salinity levels of pre-drainage flows in the Kulin catchment. The Tribunal acknowledges that, although Mr Barnett accepted that there is similarity between the catchments, he contended that there are sufficient differences in the geology and, to a lesser extent, rainfall, to preclude using a

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comparison between these catchments to infer pre­drainage salt loads in the Kulin catchment. Nevertheless, the Tribunal accepts the opinion of Dr George that there is value in the Toolibin comparison.

53 On a broader note, both experts appeared to accept that initial winter season creek flows mobilise salt residue accumulated in channels and near channel areas, especially over summer. As Dr George's report explains: "[t]his mobilisation of salts residue usually occurs as a pulse following small volume early flows and then diminishes once winter or larger flows develop (the salt having been flushed into the lower primary valley landscapes)". Thus, low flows later in the winter season may be fresher than the earlier ones.

54 The Tribunal concludes that both the NOI statements that the creek was already saline or highly saline, and the Commissioner's initial assessment, lacked an adequate foundation and are mistaken. We conclude that, in the absence of the drains, Dudinin Creek would have been moderately saline in that:

• during the dry months, there would have been places along its entire length where some salt encrustation would have formed from the evaporation of the water pools;

• after rainfall, there would have been varying levels of salinity in the creek water, with low flows, especially early season low flows, more likely to be saline, but medium and high flows would have been brackish to fresh;

• pools suitable for stock watering would have gathered in the creek line later in a normal winter season; and

• fresh water could have been harvested for dams from the creek during medium and high flows, and it may have been possible to harvest brackish to fresh water from some low flows later in the season in both the upper and lower reaches of the creek.

(2) If so, would it be saline when flowing, or only at certain times of the year?

55 This issue has mostly been answered in relation to the first issue, but it is worth briefly highlighting those previous conclusions. The experts agreed:

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" … at low flows the stream in the area of the drains would have been likely to be saline and also that the first noticeable winter flow would have been likely to be saline. At medium to high flows throughout the year, the creek would probably have been fresh or brackish in the entire catchment."

56 The Tribunal accepts this conclusion but notes that there is also some evidence from Mr Arundel and Mr Bowey that some low flows prior to drainage may have been fresh enough to capture in dams and use for stock watering. These would have been low flows later in the winter season after salt residues had been flushed from the channel system.

(3) What is the effect of the drains on the salinity level of the creek?

57 It may appear evident that the drainage was expected to increase the salinity levels in the creek; the real issue is by how much, over what period of time, and whether this has a detrimental effect on the downstream land use.

58 This complexity should be kept in mind when evaluating the statements in the NOIs and the initial assessment of them by the Commissioner. The NOIs all predicted that the salinity from the drains would be undetectable when there is an overland flow event and that there would be no increase in salinity as an "off­site degradation hazard" because the creek is already saline. The assessment reports accepted by the Commissioner stated:

"A slight increase may occur on the already saline creek line but will stabilise." (Ryan and Arundel assessments)

"A slight increase may occur on the already saline creek line but will stabilise at a steadily increasing rise that normally occurs after clearing of land." (Tyson and Lucchesi assessments)

59 These predictions have been shown by subsequent evidence to be mistaken.

60 The evidence of the three downstream landowners (Mike Wilson, Shane Tyson and Alan Bowey) is compelling in its assessment of the effects of the drains on the quality of the flow of creek water reaching their properties in April 2005, following the first significant rainfall after the construction of the drains. There followed a wet winter. We do not need to set out or analyse the figures of salt level samples taken by

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Wilson and Bowey across 2005, because the effect of their accounts accords with the expert evidence, especially that recorded by Dr George in 2006. The initial flow of water was very saline, but became fresher across the winter and then more saline as the effect of the winter rains tapered off. All three witnesses gave strong accounts of the increased salinity of the creek water. This statement from Mr Wilson is a neat summary of the perceived effect of the drains in 2005:

"After those rains, a large amount of water travelled down the drains and down the Dudinin Creek and onto our farm. Unlike following normal rains, the Dudinin Creek continued to run for 1 to 2 weeks after the rains had finished and as the flow tapered off the salinity of the water increased, leaving the pools full of saline water.

The water in the pools was dirty and salty."

61 It should be noted that Mr Barnett conducted his site investigations on 30 November 2005, and so he was not measuring the salinity levels of water flows in the creek.

62 The principal evidence of the effects of the drains in 2006 is contained in the reports by Dr George on the three rainfall events noted above, namely:

• Event 1 of nearly 20 millimetres across 7 and 8 February was monitored on 9 February;

• Event 2 of 34 millimetres across 1 and 2 April was monitored on 3 April;

• Event 3 of 19 millimetres and 25mm between 21 and 23 August was monitored principally on 23 August.

63 The oral evidence of Dr George was that he and Mr Barnett had not given a categorical definition of the character of the creek flows following these rainfall events. However, Dr George suggested that the creek flow from Event 3, which his report says produced initial rates of flow at 60L/sec and recession flows of 20L/sec, was low to medium. Dr George also characterised this rainfall event as a one in two years or one in three years rainfall event. A high flow might be between 200L/sec and 1000L/sec. The flooding flows of January 2006 would be characterised as extremely high flows for a summer event that may occur only once in 50 years.

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64 The salinity levels of Dudinin Creek during those events are recorded neatly in three figures/maps showing the flow rates and EC levels (mS/m) at various locations along the course of the creek. The EC levels are shown in figures and in colour codes:

• blue for levels from 48 to 200;

• yellow for levels from 201 to 1000;

• orange for levels from 1001 to 2000;

• red for levels from 2001 to 2900.

65 It is worth noting the approximate EC levels for each event in the upper to lower reaches of the creek. In doing so, we should remember that the data were recorded on one day during each flow event, and that a full understanding requires a consideration of the prior rainfall and the flow conditions. Although it is not possible to convey the interaction of all of these factors in a brief summary here, the general effect of the data is still very telling.

66 For Event 1, the EC levels are red in the upper reaches in the region of the Tyson-Lucchesi drains, orange in the upper-middle and middle reaches in the region of the Arundel-Ryan drains and the first two downstream neighbours, and yellow in the lower-middle reaches in the region of the Wilson, Shane Tyson and Bowey properties. Even then, the two EC readings for the creek water at the Bowey property are approximately 600mS/m and 700mS/m. The relatively fresh inflow from the Kulin Creek here would have diluted the salinity levels.

67 For Event 2, the EC levels are red for the upper and middle reaches of the creek, being in the regions of the drainage properties and the immediate downstream neighbours. The exception was a reading of 1870mS/m (orange) for the discharge from the Lucchesi drain to the creek. Measurements were not taken in the lower-middle reaches of the Wilson, Shane Tyson and Bowey properties on that occasion. However, Dr George was of the opinion that, had measurements been taken, they would have shown that saline flows had reached the lower catchment.

68 For Event 3, which was measured on 23 August 2006, the EC levels are orange in the upper reaches of the creek in the region of the drainage properties, and red from the Arundel drain and beyond to Shane Tyson's property downstream, which was the head of the flow from this

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rainfall event. At the end of the Bowey property, the reading on 23 August 2006 was 2820mS/m (red) at a low flow of 0.5L/sec. The flow of water from the drainage region had not reached the Bowey property on 23 August 2006 but had done so by 30 August 2006. At the hearing on 31 August 2006, Mrs Roberta Bowey gave oral evidence that the water in the creek at their property on 30 August 2006 had an EC reading of 2940mS/m (red).

69 Dr George's commentary on Event 3 explains that sampling taken at the eight mile reserve measuring the flows from the Tyson­Lucchesi drains on the 21 August 2006 were highly saline (3760mS/m), but reduced across the next two days ­ 1887mS/m on 22 August 2006 and 1174mS/m on 23 August 2006, falling to 664mS/m by 6 pm on 23 August 2006. Dr George comments that the level of flow from the Tyson­Lucchesi drains on 23 August 2006 was significantly greater than previously observed. The higher flows and declining levels of salinity from these drains could have been due to either the drains flushing their salt or alternative sources of water entering the drains, perhaps direct rainfall or additional surface waters entering the levied drainage system. Dr George concludes that, without inspection of the drains, it is not possible to estimate the source of the large volumes of water with reduced EC levels. Thus, the reduced levels of salinity in the upper reaches of the creek on 23 August are not readily explained.

70 The final piece of Dr George's evidence to note here is the comparison between the Toolibin and Kulin (Dudinin Creek) catchments, which relates to the first and second rainfall events of 2006. With acknowledged uncertainty, Dr George's comparative analysis makes the following salient points:

• flow is observed at Kulin when no surface waters are present at Toolibin;

• the recession period of flows at Kulin is longer because the source of the flows is a combination of surface and drainage flows, which is also consistent with the higher salinity levels observed in the drainage waters;

• the average EC levels of the Toolibin surface flows (257mS/m) are "an order of magnitude less saline" than the flows in the Dudinin Creek at the eight mile crossing just below the Tyson-Lucchesi drains ­ an average of 3593mS/m across the period of measurements taken

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between February and June 2006 or the two figures of approximately 2500mS/m and 2900mS/m taken during the first and second flow events; and

• an estimated five-fold increase in the salt load entering the creek after the installation of the drains.

71 In their revised joint statement, the two experts agreed that the drains would have caused an initial export of salt, and that the observations show that the drains have continued to release saline water to date. However, they disagreed on whether the amount of extra salt contributed by the drains has had a noticeable effect on the salinity of the creek. Mr Barnett considers that, as it is agreed that the first winter flows would probably have been saline, the additional salt from the drains would not have any effect on the beneficial use of the water. On the other hand, Dr George considers that the evidence collected in 2006, especially from the three flow events that were monitored, shows that the salinity of the creek was increased by the presence of the drains, and that this will reduce the opportunity for the beneficial use of stream flows.

72 Both of these conclusions jump from the question of increased salinity of the creek water to its effect on the beneficial use of the creek water. For the moment, the Tribunal confines itself to the issue of the levels of salinity. We find that the drains have significantly increased the EC levels of creek water flowing to the lower-middle reaches of the creek in the region of the Wilson, Shane Tyson and Bowey properties. In reaching this finding, we place some weight on the comparison with the Lake Toolibin catchment, but that is not determinative. In our view, the evidence of the downstream landowners' observations in 2005 and the measurements taken by Dr George in 2006 lead inevitably to the conclusions that:

• the initial pulses of creek flow after a dry period have a higher level of salinity, which we would estimate at the orange or red levels instead of the likely previous yellow or orange levels, or possibly even blue levels in Dudinin Creek below the intersection with Kulin Town Creek;

• the low saline flows from the region of the drainage properties are more likely to reach the lower regions of the catchment after the initial seasonal flows;

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• the later winter low and medium creek flows have a higher level of salinity, which we would estimate as being orange or red levels instead of blue or yellow;

• the creek continues to run for a longer period after rainfall events because of the contribution of the drainage flows; and

• the last flows down the creek will now be more saline, perhaps of an orange or red level instead of likely previous blue or yellow levels, leaving the pools in the creek to be more saline than prior to the construction of the drains.

(4) Has there been sufficient time since the drains were installed to make any assessment of the effect of them on the salinity of the creek?

73 The experts agreed that there has been sufficient time to make an assessment of the effects of the drains on the salinity of the creek, though a longer period of time would enable more testing to obtain more precise results.

74 Dr George was of the opinion that the January 2006 floods, which had filled in some of the Arundel drains, made his observations more certain on the Tyson-Lucchesi drains. Event 3 had also given him the opportunity to observe how the drains affected the creek flows for winter events.

75 Mr Barnett considers that there has not been long enough to determine the consequence of the drains for the beneficial use of creek flows by the downstream landowners.

76 The Tribunal finds that there has been sufficient time since the drains were installed to assess their effect on the salinity of the creek and the impacts on the beneficial use of the creek water downstream. In this regard, Event 3 in August 2006 is especially important. There may still be questions about the tapering effect of the drains on the premise that, once the initial salt load has been discharged, the salinity levels from the drain discharges will decline. The declining EC levels of the Tyson-Lucchesi drains on 23 August especially raise that question. However, the observations of Dr George across 2006, including for the third rainfall event, appear to the Tribunal to nullify the conclusions of Mr Barnett, in his report of 9 December 2005, that the main impacts of the drain will

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have been within the first few months after construction and that the effect of the drains in the future will be limited to discharge of runoff and rainfall recharge within the catchment of the drains. If the drains filled with sediment in the January 2006 floods were cleaned out, one would have to expect a renewed level of saline discharges from them. The drains continue to have a significant effect on the salinity level of the creek, and the Tribunal must determine whether the increased salinity of the creek water is causing a detriment to the downstream neighbours' use of their land.

If the drainage discharges are causing an increase in the salinity of Dudinin Creek, does that increase in salinity cause a detriment to the present or future use of the applicants' lands or the land of their downstream neighbours?

(5) Does the emission of saline water from the drains cause degradation of the land in the lower catchment?

77 The experts interpreted this question to imply a land impact only; that is, an impact on the land away from the creek channel and not a concern with the quality of water flows in the creek and the use of them. With this narrower interpretation, they agreed that they did not foresee any noticeable effect from the drains on the land surface downstream away from the creek. Dr George considers that there may be some local increase in the area and/or the severity of saline land where transmission losses from the creek are high. However, in their joint report, the experts addressed the effect on the beneficial use of the creek water in answer to issue 3, and their written opinions are recorded above. Further, in their oral evidence, there was much explicit discussion about the effect of the drains on the beneficial use of the creek water downstream at the varying levels of flow. There is ample evidence, therefore, on which the Tribunal can decide the issue.

78 At the hearing, the argument for the Commissioner that land degradation was occurring was based on the adverse impacts of the drains on the downstream water quality and the consequent adverse impacts of the landowners' beneficial use of the creek water. In discussing the statutory framework above, the Tribunal has explained that an increase in the salinity of the water in the creeks and receiving water bodies constitutes land degradation under the SLC Act, if it "may be detrimental to the present or future use of land". Such a detriment is shown if the increase in the salinity of the water reduces the use of that water for agricultural and domestic purposes on the abutting land. It is quite clear, therefore, that the discharge of highly saline groundwater from deep

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drains into a watercourse, resulting in an increase in the salinity levels of the creek water and a consequent reduction in the use of the water by downstream landowners, will mean that the drainage is causing land degradation.

79 The submissions of the applicants, at par 52 ­ par 53, and the applicants' submissions in reply, at par 44 ­ par 45, argue that the Commissioner "was aware that mild saline water would emanate from the drains after construction" and that "there is an expectation that degradation (being a variation in water quality) will occur". They cite Dr George's oral evidence that "any addition of a salt source to the creek would cause degradation", and assert that the Commissioner "should have been aware that there might be a reduction in the opportunity for the beneficial use of such water by any of the downstream landowners who use such water from time to time for any purpose".

80 The Tribunal makes several comments in response to these submissions. First, in the context of the Western Australian wheatbelt community, the description of the saline discharges from the drains as "mild" may be a misnomer. The NOIs predicted that the average salinity level of the drainage discharges would be 3500mS/m. The evidence shows that, in 2006, the average EC readings in Dudinin Creek at the eight mile reserve below the Tyson­Lucchesi drains were 3593mS/m. The EC reading for the Event 3 creek flow that reached the Bowey property on 30 August was 2940mS/m. The Department advice to farmers about the potential uses of water with various salinity levels was noted above in the Factual Background to the Applications. In oral evidence, the experts agreed that the EC level of water suitable for dry sheep (non-breeding ewes) was 1500mS/m. However, Dr George noted that water over 1000mS/m cannot be relied upon for any time into the future because it cannot be stored as surface water without increasing the salinity concentration by evaporation. It is also notable that Dr George referred in oral evidence to the flows generated by the drains of a "moderate salinity to high salinity of three to four thousand millisiemens". Notwithstanding that there were recorded some drainage discharges of 6000mS/m and that some discharges from the Tyson­Lucchesi drains were significantly less than 3000mS/m, the Tribunal believes that the average drainage discharges in excess of 3500mS/m are appropriately described as "highly saline".

81 Secondly, the evidence attributed by the applicants to Dr George needs to be seen in the broader perspective of his conclusions and the interchange between counsel for the applicants, Dr George and

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Mr Barnett. After much discussion about the effects of the drains on low flows and medium to high flows, the consensus of opinion appeared to be accepting Dr George's view that the construction of the drains had reduced the opportunities for the downstream owners to make beneficial use of the creek water. Dr George also illustrated the phenomenon by reference to the similar situation in Lake Toolibin where there is increasing salinity in the water flows from surface run-off. Mr Barnett then concluded: "[y]ou say if you have an additional source of salt in the catchment, by its very nature you will reduce the opportunity for harvesting flows both in terms of the salinity of the creek and also the duration of flow when the salinity is acceptable". Dr George agreed. Mr Barnett then interpolated: "[s]o it's an inevitable consequence of constructing the drains, and it would have been an inevitable consequence of constructing the drains in any catchment, or almost inevitable". There was some further discussion between the two experts which led to Dr George's conclusion that this may be an inevitable consequence of constructing drains in a catchment with a fresh water resource in parts of the catchment.

82 This leads to the third point. The NOIs all predicted that the salinity from the drains would be undetectable when there is an overland flow event, and that there would be no increase in salinity as an "off­site degradation hazard" because the creek is already saline. The Commissioner's assessments were that there may be a slight increase in the salinity levels of an already saline creek, but that would stabilise. Neither the NOIs nor the Commissioner's initial assessment predicted the effects that the drains would have on the salinity levels of the creek's water flows and the potential consequential impacts on the downstream beneficial uses. Whilst there may have been some realisation amongst the applicants that the downstream neighbours would not all consent to their drainage proposals, there is no evidence that the applicants, Mr Lyon or the Commissioner would have predicted the level of effects that the drains have had downstream on the water quality of the creek flows. Further, the Departmental policies applicable to the preparation of NOIs do not contain any statement that would suggest that it is acceptable to propose the installation of drains that will have the inevitable consequence of reducing the opportunities for downstream landholders to make beneficial use of the water of creeks to which the drains discharge. The policies indicate that harmful drainage works are not only subject to regulatory action by the Commissioner, but may also render the proponent liable to damages at common law.

83 The Tribunal accepts the evidence of the downstream landholders that they have suffered a reduction in the beneficial use of the flow of

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Dudinin Creek since the installation of the applicants' drains, both in the capture of the creek water to fill dams and in the opportunity to water stock from the pools of water left in the creek bed. Indeed, even Mr Arundel said that he made reduced use of the creek water to fill his dam and water his stock since the installation of the drains. Although they have been able to make some use of those waters since the installation of the drains, the monitoring data from Event 3 show a significant loss of opportunities to make beneficial use of what, in the context of the season, was a very important rainfall event. Event 3 was characterised as a low to medium flow of the sort that may, on recent climatic patterns, be expected every one in two years or one in three years. Whilst the extent of the effect that the drains may have on similar future rainfall events may depend on the "sequence of events", as Dr George explained, this event appears to the Tribunal to have been a clear illustration that the drains have caused land degradation and are likely to do so in the future for the downstream landholders. They will most likely suffer losses and incur costs in responding to that land degradation.

(2) What would be the effect of blocking the drains on degradation of the applicants' properties?

84 The applicants claimed, and the experts agreed, that the effect of blocking the drains would be a near return to the status quo before the drains were constructed. In other words, blocking the drains, as mandated by the SCNs, will cause the applicants' lands to degrade by the increase of salinity in the vicinity of the drains. The effect may not be a 100% return to the previous situation, because the drains themselves would provide for some evaporation of the water in them. However, the likely practical result will be the loss of production that the applicants have gained since the drains were installed. There was some evidence that this effect would take two to five years, but that may depend on whether some of that effect may be arrested by the adoption of other land care practices.

The exercise of the Commissioner's discretion under s 32

85 The Commissioner has a discretion to issue a SCN if he is of the opinion that an agricultural practice is causing land degradation to occur on the site of the practice or elsewhere: s 32(1) of the SLC Act. There are two important questions to decide in defining the scope of that discretion:

1. what are the relevant factors to consider in exercising that discretion; and

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2. is the Commissioner required or authorised to balance the competing costs and benefits for different landholders if it is found that the practice is beneficial to its proponent but harmful to the neighbours?

86 It is trite law that the factors relevant to the exercise of a discretionary power are to be ascertained by interpretation of the relevant statutory provisions, including the scope and purpose of the statute. The SLC Act contains no express statement of its objects. However, its purposes may be ascertained from the long title of the SLC Act ­ "[a]n Act relating to the conservation of soil and land resources, and to the mitigation of the effects of erosion, salinity and flooding" ­ and from the Commissioner's functions, which include in s 13 the "prevention and mitigation of land degradation". Section 32(1) only mentions the Commissioner's opinion that land degradation is occurring, or is likely to occur, on the land that is the site of the degrading activity or elsewhere. It does not state whether these factors are the exclusive or inclusive considerations. The Tribunal holds that, in interpreting the power in s 32(1) to issue an SCN, it would be relevant to consider the scope of the directions that an SCN may give under s 32(2), including directing persons to adopt or refrain from adopting any agricultural practice.

87 The applicants argued that the Commissioner should consider a long list of factors, such as the history of the NOIs, that no objections were initially taken, the cost of the construction of the drains and the cost of compliance with the SCNs, and scale of loss for the downstream neighbours and the adaptations that they could make. The effect of some of these factors, such as the Commissioner's non-objection to the NOIs, has already been discounted above. Furthermore, the Tribunal is inclined to the opinion that the investment by the person undertaking the activity to be restrained by a SCN, if relevant at all (which we doubt), is not a factor of significant weight for the Commissioner to consider when deciding whether to issue a notice to restrain an activity that is causing land degradation. On the other hand, it may be relevant for the Commissioner to consider the costs of complying with a SCN when determining its content. Equally, it appears relevant for the Commissioner to consider the degree of impact on the neighbours when determining whether to issue a SCN and the content of the SCN directions.

88 On the other hand, the Tribunal does not believe that the Commissioner is either required or authorised to "balance" the relevant costs and losses to the neighbours' lands from the land degradation against the purported benefits to the proponents of the actions or their putative

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costs to them of complying with the SCNs. The SLC Act should not be interpreted as permitting one landholder to solve his or her own land degradation problem by imposing the cost of it on his or her neighbour(s). The SLC Act operates against the background of the common law and statute law in Western Australia, including the provisions of the RWI Act, which confers certain riparian rights on landholders to make beneficial use of water. By s 3, the administration of the SLC Act should not substantially interfere with the operation of the RWI Act. The SLC Act should not be interpreted as authorising the Commissioner to permit a landholder to adopt an agricultural practice that encroaches on a neighbour's legal rights to the use of water in a creek. Although there were no specific submissions about the downstream neighbours' exercise of their riparian rights, the Tribunal can see no reason why the downstream landholders should not be entitled to exercise the right to take creek water as they were accustomed to doing before the construction of the drains.

The Tribunal's decision

89 The Tribunal affirms the Commissioner's decisions to issue each of the SCNs. The Tribunal accepts the expert evidence of Dr George that it should be feasible for the applicants to block the drains by the deposit, at various points in the drains, of "a couple of front-end loaders of appropriate material sourced on farm". There may be other suitable methods of achieving the object of preventing the discharge of saline water from the drains. The cost of these works must clearly be borne by the relevant landholders. However, there are a few points to make regarding the implementation of the SCNs.

90 First, as mentioned above in relation to the finding of fact, it is evident that the SCNs, as issued, reflect the description of the drains that were notified for construction, not exactly the drains as constructed. Some of the variations from the notifications are agreed, but some are not. The Tribunal directs the Commissioner to survey the extent and location of the constructed drains, and to make such amendments to the SCNs as are necessary to describe accurately the drainage structures that are to be subject to them. The amended form of the SCNs should then be returned to the Tribunal by 30 January 2007 (or such other date as the parties might agree in writing) for its approval to operate in their varied form. The stay upon the operation of the SCNs will be lifted from that date, and the specified time for compliance will be within 10 days.

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91 Secondly, we suggest that the Commissioner ascertain, in consultation with each of the applicants, the appropriate measures to be taken by each of them to block the drains so as to achieve the object of preventing the discharge of saline water from the drains. Given that some of the drains have been filled or partly filled with sediment in the January 2006 floods, it would provide more certainty for the operation of the particular SCNs if the Commissioner were to amend the SCNs to stipulate the appropriate ways in which the objective is to be achieved. The amended terms of each of the SCNs will, subject to the approval of the Tribunal on 30 January 2007 (or such other date as the parties might agree in writing), operate as a variation to the SCNs.

92 Thirdly, the Tribunal agrees with the Commissioner that the terms of the SCNs requiring simply that the drains be blocked so that no saline water is discharged from them is "an immediate short term measure only", and that a more viable solution should be developed. The Tribunal cannot, on the basis of the evidence submitted for these applications, fashion a solution that will be suitable for the catchment community. Developing such a solution will require a program of catchment planning and consultation that will set water quality standards and other criteria, as well as effective monitoring protocols, which ensure that any drainage discharges do not cause harm that is unacceptable to neighbours or, if some harm is unavoidable, that suitable compensation mechanisms are in place.

93 In this regard, it may be possible to establish a program for the operation of the drains and other works that permits, over time, a sequence or series of drains to operate in a way that does not result in unacceptable harm to the neighbours. For example, the Commissioner seemed to suggest that the drains could be blocked at certain times of the year and not at other times. It may be that other landholders will, in the future, want to construct drains, and that would certainly add to the load of saline water flowing downstream unless a suitable program were agreed upon. The Tribunal notes the unresolved questions about the decrease in the level of salinity of the discharges from the Tyson-Lucchesi drains on 23August 2006, and Mr Barnett's salient observations that the levels of salinity of the later discharges were of stock quality. Perhaps one drain, or part of a drain, could be permitted to operate on a different basis from other drains to test the level of salinity discharges over an extended period of operation, to establish better estimates of the time it may take to reduce the levels of salinity discharge to non-harmful levels.

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94 The Tribunal notes that there are other provisions of the SLC Act that can assist the Commissioner and the catchment community to plan a suitable solution. It should be possible for the Commissioner to implement such a plan by, effectively, varying the terms of the SCNs. This could be achieved by the Commissioner exercising his power under s 38 to discharge one SCN and impose a new one in its place.

95 In conclusion, the Tribunal notes that the standard NOI and assessment procedures applied by the Commissioner under current departmental policy to this case have failed to protect the interests of the downstream landholders, and caused much angst to many good and decent people at both ends of the catchment community. The Tribunal hopes that the reasons for this decision will provide the basis for a review of the current policy, to avoid future situations in which the downstream beneficial uses of the creek water are overlooked in the process of planning and constructing deep drains. The Tribunal also hopes that these reasons will serve to better inform the agricultural community about the considerable responsibilities borne by proponents of drainage works.

I certify that this and the preceding [95] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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JUDGE J CHANEY, DEPUTY PRESIDENT

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Annexure A
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