Theuerkauf v Chief Executive, Department of Primary Industries

[1994] QLC 30

[1994] QLC 30

 

  LAND COURT

BRISBANE.

24 JUNE, 1994

Re: Appeal under Water Resources Act 1989 s4.26

EM Theuerkauf
  v.
  Chief Executive, Department of Primary Industries

D E C I S I O N

This is an appeal against the decision of the Chief Executive, Department of Primary Industries refusing an application to extend for irrigation purposes a licence held by the appellant for piggery purposes. 
           Mr EM Theuerkauf, the appellant, is the owner of Lot 1 on RP 155845, Parish of Campbell, containing an area of 8.107 hectares.  The lot is riparian to Flagstone Creek.  Improvements on the lot include a dwelling and a piggery which is capable of containing 50 sows or 500+ growers.
           In Flagstone Creek on the boundary there is a small water hole.  The appellant has a permit issued under s4.32 of the Act (riparian rights) to install a 32mm centrifugal pump on the creek to take out a nominal allocation of 2 ML per annum for domestic/stock watering purposes.  This permit was issued in July, 1993.  He also has the benefit of a licence - G-42535 - expiring on 31.3.1997, to put a 40mm jet pump on the creek capable of pumping a maximum of three litres per second against a 15 metre head.  This licence was issued for piggery purposes.  It was issued in July, 1993.  In the month following, Mr Theuerkauf applied for a licence (accepted as an application to extend licence G-42535) for purposes of irrigating 2 hectares for flower growing.  The application was investigated by the department and refused.  It is against this decision that Mr Theuerkauf appeals.
           Mr Theuerkauf appeared on his own behalf.  At the present time he resides in Dalby and expects to retire to the subject block.  He said that the piggery which has been dormant for a period is leased and that the lessee proposes to use the piggery for grower pigs.  Thus he desires to retain the licence for that purpose which he says is supplemented when necessary by pumping from a dam on the property.  He is of the opinion that the growing of Daylillies and Amaryllis could be a profitable venture.  The application was for the purpose of irrigating two hectares.  In the notice of appeal he states that he has had plans to put about one hectare (three acres) to flowers.  He has made enquiry on such a business of a grower in Maleny and has enquired of production in Victoria.  He has a trial plot in Dalby and says that so far plants are growing satisfactorily.  These species apparently require a humid climate and watering mainly before flowering in the summer months.  He is of the opinion that production would be successful in the Flagstone Creek area although he freely admits that he would be the first to try it in that locality.  His enquiries did not go so far as to estimate the volume of water required for the purpose in average seasons.  He admits that the water hole from which he pumps is small and is just enough to supply the piggery with the assistance of the dam on the property.  One problem in this regard he identifies is the height that the water has to be pumped.  He is of the opinion that the hole is spring fed and when pumped out will fill in four to five hours.  He agrees that Flagstone Creek does not provide a reliable supply and that subdivision of land within the catchment has resulted in increased demand for domestic water supplies.  The application was duly advertised and met with ten objections from riparian owners.  In the evidence of Mr PB Shoecraft, Senior Water Advisor in the department, it is found that since 1960 an Advisory Committee comprising licensees, permittees and riparian land owners on Flagstone Creek and Stockyard Creek (downstream of the subject lot) have had input into matters relating to surface water management in the area.  This committee has since 1960 continually had input into matters relating to surface water management in the area.  The committee has continually voiced concern about the issue of further irrigation licences that would result in an increase in the total irrigated area from Flagstone Creek due to the insufficiency of water flow to meet the requirements of existing licensees and permittees.  The subject application was discussed at the Annual General Meeting of the committee in October, 1993.  The committee recommended that the application be refused due to the inadequacy of the available supply to meet the needs of existing licensees.  Mr Shoecraft said that with the history of water shortages in Flagstone Creek the granting of the licence for irrigation would further reduce the already poor water flow in the creek and would be detrimental to the availability and sufficiency of water to riparian owners, licensees and permittees. 
           Under the Act the duty on the department in making inquiry into an application includes consideration being given to the effect the granting of the licence may have on riparian owners, permittees and licensees.  The Court has said often that the duty includes consideration being given to a fair and equitable distribution.  The department of course, having granted a licence cannot then proceed to grant other licences which would render existing licences ineffectual.  These principles when applied to the circumstances of the subject case leave me with no doubt that the decision to refuse the application should be affirmed.  It would appear to me on the evidence that the appellant has been given a fair share of the available water in Flagstone Creek.  Accordingly the appeal is dismissed and the decision of the Chief Executive affirmed.

DM WHITE
  President of the Land Court