Vanbrogue Pty Ltd v Department of Environment and Resource Management (No. 2)
[2013] QLC 8
•8 March 2013
LAND COURT OF QUEENSLAND
CITATION: Vanbrogue Pty Ltd v Department of Environment and Resource Management (No. 2) [2013] QLC 8 PARTIES: Vanbrogue Pty Ltd
(appellant)v. Chief Executive, Department of Environment and Resource Management
(respondent)FILE NO: WAA124-11 PROCEEDING: Appeal under the Water Act 2000 DELIVERED AT: Brisbane DELIVERED ON:
8 March 2013
HEARD AT: Brisbane MEMBER: Mr PA Smith ORDERS:
Subject to the resolution of the HES classification of Shalom Lagoon pursuant to SPP 4/11 through either a development approval process or direct application, undertaken pursuant to and in accordance with the SPA and/or SPP 4/11 and/or SPP 4/11 Guideline, on terms consistent with the findings in this decision that Shalom Lagoon is a riverine impoundment created as a result of a dam as defined in the Water Act, the appeal be allowed and Vanbrogue’s application for a licence to interfere with the flow of water on the Vanbrogue land be approved, subject to the following conditions:
1. A condition that an expert produced management scheme be developed by Vanbrogue to manage erosion issues on the Baptist Union land caused or likely to be caused by the Dam No. 3 embankment, and any such remedial works as may from time to time be necessary pursuant to that management scheme, funded by Vanbrogue.
2. A condition that the watering of stock from Dam No. 3 be limited to a maximum of 200 head of cattle AE at any one time.
3. A condition that improved pasture on the Vanbrogue land be irrigated only from the existing Dam Nos. 1 and 2, as replenished from time to time by water legally taken by Vanbrogue from the Fitzroy River.
4. A condition that Dam No. 3 be filled with water taken from the Fitzroy River under Vanbrogue’s current water licence.
5. A condition that a farm management plan and improvements, including fencing, be put into place to ensure that, unless and until other licences are obtained by Vanbrogue for other uses of the water in Dam No. 3, the water in such dam be used for stock drinking purposes only.
6. A condition that Dam No. 3 be professionally redesigned to maximise the retention of mature vegetation, including hollow bearing and live trees, without increasing the current footprint of Dam No. 3.
7. A condition that existing mature trees and hollow bearing trees not be removed if inundated within Dam No. 3.
8. A condition that the wetland design follow professional, recognised wetland creation/rehabilitation principles, including the establishment of both terrestrial and aquatic habitat/vegetation through planting; varying water depths/stepped profile; and appropriate water quality conditions for necessary ecosystem functioning.
9. A condition requiring Vanbrogue to develop, in conjunction with DERM, a long-term system of protection to ensure the protection and management of habitat values, comprising a range of native terrestrial and aquatic vegetation and a topography gradient/profile, associated with Dam No. 3.
10. A condition that a survey be conducted, at Vanbrogue’s expense, of existing trees, including mature and hollow-bearing trees, and terrestrial habitat.
11. A condition that Vanbrogue develop a planting pallette, both terrestrial and aquatic, detailing numbers and species, to an expert standard.
12. A condition that a soil/topography profile be
undertaken by Vanbrogue, to an expert standard.
13. A condition that all references to Vanbrogue include all successors in title to Vanbrogue.
CATCHWORDS: Water Licence – Application under Water Act to interfere with water (not to take water) – appeal to Land Court from deemed refusal by internal departmental decision maker – criteria under Act for decision maker to consider – criteria separately considered by Court on basis of expert evidence and submissions – licence allowed subject to extensive conditions
Statutory interpretation – application to interfere with water in an existing lagoon – whether lagoon a “lake” under Water Act definition – meaning of “natural condition” – not defined in Act - necessary to go to extrinsic sources – lagoon not “lake” because of existing bund
Water licence – application under Water Act to interfere with water – approvals under Sustainable Planning Act (SPA) and State Planning Policy (SPP) also necessary – such approvals outside Land Court jurisdiction – likely impediments to approvals but issue to be separately considered – such impediments do not render Water Act application a “futility”
Water licence application under Water Act to interfere with water – submission by third parties – “public interest” criteria relevant – no separate consideration of submissions by applicants – but submitter issues addressed in experts evidence – held sufficient
Evidence – evidence of respondent expert inconsistent with evidence in earlier case – inadequate explanation – evidence rejected by Court where it conflicted with other expert evidence
Acts Interpretation Act 1954
Sustainable Planning Act 2009
Sustainable Planning Regulation 2009
State Planning Policy 4/11 Protecting Wetlands of High Ecological Significance in the Great Barrier Reef Catchments
Water Act 2000De Tournouer v Department of Environment and Resource Management [2011] 1 Qd.R 200
Gallo & Anor v Department of Environment and Resource Management [2012] QLC 15
Walker v Noosa Shire Council (1983) 2 Qd.R 86
Wright v Fairman, ex parte Wright [1996] 1 Qd.R 107APPEARANCES:
SOLICITORS:
Mr C Hughes SC and Mr M Williamson of Counsel for the appellant
Mr M Hinson SC and Mr N Loos of Counsel for the respondentSouth & Geldard Solicitors for the appellant
Legal Services, Department of Environment and Resource Management for the respondent
Background
On 29 March 2011, Vanbrogue Pty Ltd (“Vanbrogue”) lodged an appeal in this Court against a review decision of the respondent, the Chief Executive, Department of Environment and Resource Management (“DERM”).[1] The appeal was lodged pursuant to s.887 of the Water Act 2000 (“Water Act”).
[1] It should be noted that the Department is now known as the Department of Natural Resources and Mines.
The circumstances giving rise to the appeal are essentially uncontested. Vanbrogue is the registered owner of land situated at 233-307 Alexandra Street, Kawana, Rockhampton, described as Lot 2 on RP 602629 and Lot 3 on RP 892674. The Vanbrogue property is currently a developed farm with an established farm shed and two flood harvest storage dams with a capacity of 130 megalitres (ML).[2] The Vanbrogue land has a total area of 44.565 ha[3] and is suitable for cattle production.
[2] See Exhibit 1A, Folder 1, Part C, page 4.
[3] See Exhibit 2, page 3.
On 5 February 2010 Vanbrogue submitted to DERM an application for a licence to interfere with the course of flow by impounding water for Lot 2 on RP 602629.[4] The application was made pursuant to s.206(1)(b) of the Water Act.
[4] See Exhibit 1A, Folder 1, Part C, pages 1-3.
There was attached to the application a plan which shows the intention of Vanbrogue to construct a dam to be named Dam No. 3 on Lot 2. It is clear from the plan that Dam No. 3 would dissect a body of water on Vanbrogue’s property known as Shalom Lagoon. In order to construct Dam No. 3, a wall 4 metres high and 400 metres long would need to be erected on the Vanbrogue land.[5] The Vanbrogue land adjoins the Shalom Retirement Village, operated by the Baptist Union of Queensland. Shalom Lagoon extends over the boundary between the Vanbrogue land and the Baptist Union land into the Baptist Union land. The embankment required for the dam would run parallel to the boundary between the Vanbrogue land and the Baptist Union land, approximately 50 metres inside the Vanbrogue lot.
[5] See Exhibit 1A, Folder 1, Part C, page 3.
Vanbrogue proposes that Dam No. 3 will be filled with water taken from the Fitzroy River under an existing water allocation.[6] Vanbrogue currently has a licence to take approximately 400ML per year from the Fitzroy River.[7]
[6] See Exhibit 5, paragraph 8.
[7] See Exhibit 5, paragraph 6.
Dam No. 3 if constructed would have a storage capacity of approximately 180 mega litres.[8] The construction of Dam No. 3 would reduce the surface area of Shalom Lagoon by approximately 4.18 ha or 36%.[9]
[8] See Hydrologists’ Joint Expert Report, Exhibit 1F, Folder 6, page 50.
[9] See Hydrologists’ Joint Expert Report, Exhibit 1F, Folder 6, page 51.
Vanbrogue does not intend to take water from Shalom Lagoon for any purpose.
On 23 November 2010 DERM advised Vanbrogue that its application for a water licence had been refused.[10]
[10] See Exhibit 1A, Folder 1, Part C, page 37 and onwards.
On 14 December 2010 the Minister for Natural Resources, Mines and Energy and Minister for Trade published a Moratorium Notice for the Fitzroy Basin pursuant to s.26 of the Water Act. Issues relating to the Moratorium Notice were the subject of a decision of this Court on 29 August 2011.[11]
[11] See Vanbrogue Pty Ltd v Chief Executive, Department of Environment and Resource Management [2011] QLC 0054.
On 4 January 2011 Vanbrogue made an application to DERM pursuant to the provisions of the Water Act for an internal review of the decision to refuse the application. [12] DERM has at no time issued a decision with respect to the application for internal review. Accordingly, pursuant to s.864(5) of the Water Act, the application for internal review has been deemed to be refused as the relevant period for a decision on review has expired.
[12] See Exhibit 1E, Folder 5, page 40.
Pursuant to s.880(2) of the Water Act, the appeal to this Court is by way of rehearing, unaffected by the reviewers decision.
It should also be noted that, pursuant to s.208 of the Water Act, Vanbrogue’s application for a water licence was publicly notified. As a result of such notification, DERM received two submissions which it took into account in refusing the application. I will consider the submissions received in response to public notification later in these reasons.
Relevant Legislative Provisions
I now turn to consider in detail relevant provisions of the Water Act. Firstly, ss 10, 11 and 12 of the Water Act set out important provisions as to the purpose of the legislation which is, in short, to advance sustainable management and efficient use of water and other resources by establishing a system for the planning, allocation and use of water. Section 10 provides as follows:
“10 Purpose of ch 2
(1)The purpose of this chapter is to advance sustainable management and efficient use of water and other resources by establishing a system for the planning, allocation and use of water.
(2)For subsection (1), sustainable management is management that—
(a) allows for the allocation and use of water for the physical, economic and social wellbeing of the people of Queensland and Australia within limits that can be sustained indefinitely; and
(b) protects the biological diversity and health of natural ecosystems; and
(c) contributes to the following—
(i)improving planning confidence of water users now and in the future regarding the availability and security of water entitlements;
(ii)the economic development of Queensland in accordance with the principles of ecologically sustainable development;
(iii)maintaining or improving the quality of naturally occurring water and other resources that benefit the natural resources of the State;
(iv)protecting water, watercourses, lakes, springs, aquifers, natural ecosystems and other resources from degradation and, if practicable, reversing degradation that has occurred;
(v)recognising the interests of Aboriginal people and Torres Strait Islanders and their connection with the landscape in water planning;
(vi)providing for the fair, orderly and efficient allocation of water to meet community needs;
(vii)increasing community understanding of the need to use and manage water in a sustainable and cost efficient way;
(viii)encouraging the community to take an active part in planning the allocation and management of water;
(ix)integrating, as far as practicable, the administration of this Act and other legislation dealing with natural resources.
(3)For subsection (1), efficient use of water—
(a) incorporates demand management measures that achieve permanent and reliable reductions in the demand for water; and
(b) promotes water conservation and appropriate water quality objectives for intended use of water; and
(c) promotes water recycling, including, for example, water reuse within a particular enterprise to gain the maximum benefit from available supply; and
(d) takes into consideration the volume and quality of water leaving a particular application or destination to ensure it is appropriate for the next application or destination, including, for example, release into the environment.”
Section 11 of the Water Act sets out the principles of ecologically sustainable development. This is a statutory statement of what is otherwise known as “the precautionary principle”. Section 11 provides as follows:
“11 Meaning of principles of ecologically sustainable development
The following principles are principles of ecologically sustainable development—
(a)decision-making processes should effectively integrate both long-term and short-term economic, environmental, social and equitable considerations;
(b)if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation;
(c)the present generation should ensure the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations;
(d)the conservation of biological diversity and ecological integrity should be a fundamental consideration in decision-making;
(e)recognition of the need to develop a strong, growing and diversified economy that can enhance the capacity for environmental protection;
(f)decisions and actions should provide for broad community involvement on issues affecting them.”
Section 210(1) of the Water Act sets out the criteria for deciding applications for water licences:
“210 Criteria for deciding application for water licence
(1)In deciding whether to grant or refuse the application or the conditions for the water licence, the chief executive must consider the following—
(a) the application and additional information given in relation to the application;
(b) if notice of the application has been published—all properly made submissions made about the application;
(c) any water resource plan, resource operations plan and wild river declaration that may apply to the licence;
(d) existing water entitlements and authorities to take or interfere with water;
(e) any information about the effects of taking, or interfering with, water on natural ecosystems;
(f) any information about the effects of taking, or interfering with, water on the physical integrity of watercourses, lakes, springs or aquifers;
(g) strategies and policies for the sustainable management of water in the area to which the application relates;
(h) the sustainable resource management strategies and policies for the catchment, including any relevant coastal zone and regional aquifer systems;
(i) the public interest.”
It is also appropriate to refer to s.211 of the Water Act which provides, in ss (1), that if the chief executive is satisfied that the application should be granted in whole or in part, the chief executive must grant all or part of the application for a stated period with or without conditions. Sub-section (2) then goes on to provide that, if the chief executive is not satisfied that the application should be granted the chief executive “must” refuse the application.
The Hearing
The hearing was conducted in Rockhampton over four days and included an inspection of the subject land, adjoining properties, and the catchment area. The inspection was of significant assistance in understanding the key issues in contention in this matter.
Vanbrogue was represented by Mr Hughes SC and Mr Williamson of Counsel, while DERM was represented by Mr Hinson SC and Mr Loos of Counsel.
There was a large amount of technical evidence given by expert witnesses in their respective fields. Lay evidence was also provided to the Court. The oral evidence was supported by detailed reports and affidavits and other documentary evidence.
I now turn to consider each of the witnesses, providing findings, as appropriate, as to their credit and the core elements of their evidence. What follows is a summary only of key aspects of the evidence. I have taken all of the evidence into account in reaching my conclusions.
The Witnesses
Gregory John Ovenden
The first witness called by Vanbrogue was Mr Ovenden, a town planner of 25 years experience. He produced a planning report[13] to the Court.
[13] Exhibit 7.
In his report, Mr Ovenden made the following important observations about the State Planning Policy (SPP) considerations.[14]
[14] At page 7 of Exhibit 7.
“4.3.5 The Draft State Planning Policy Protecting Wetlands of High Ecological Significance in the Great Barrier Reef Catchments was released on 10 December 2010 and the State Planning Policy 4/11 Protecting Wetlands of High Ecological Significance in the Great Barrier Reef Catchments (SPP 4/11) took effect on 25 November 2011.
4.3.6All versions of the SPP, temporary or otherwise, apply to high impact earthworks in a wetland protection area, other than operational work for a domestic activity. The Sustainable Planning Regulation 2009 (SPA) defines high impact earthworks as operational work that involves changing the form of land, or placing a structure on land, in a way that diverts water to or from a wetland. The site is currently mapped under SPP 4/11 as a HES (High Ecological Significance) Wetland although the SPP provides that this mapping can be the subject of examination on an application by application basis.”
He then went on to make the following comments:[15]
“State Planning Policy 4/11
4.4.24SPP 4/11 contains code provisions for assessable development. P01 requires that development is not carried out in a HES wetland. The corresponding Acceptable Outcome (A01.1 b) provides the opportunity to demonstrate an alternative mapped boundary of a HES wetland. If this can be demonstrated to the satisfaction of DERM and the wetland on the subject site be excluded from HES status (and ecological and water quality advice suggests this is appropriate) then the balance of the code may not be applicable, depending on what (if anything) constitutes a HES wetland in the immediate locality.”
[15] At page 11 of Exhibit 7.
Mr Ovenden provided a useful summary of important issues that would be considered by the Local Authority in considering an application for the earthworks and construction of Dam No. 3. In my view, his analysis provided a balanced account of the likely response to the application, assuming that SPP 4/11 issues are able to be overcome. Mr Ovenden had this to say:[16]
“4.5.1 Generally, the proposed works comply with the relevant Performance Criteria or Acceptable Solution of applicable codes or they can be conditioned to comply.
4.5.2Demonstrated compliance with P5 of the Filling or Excavation Code and P2 of the Steep or Unstable Lands Code requires an assessment by an expert in hydrological flows to confirm whether the proposal can comply. A review of advice by experts engaged in this matter suggests compliance can be achieved.
4.5.3There is considerable uncertainty as to the applicability of the Steep or Unstable Land Code to this application (and by association, the Biodiversity/ Nature Conservation Code) as the area of proposed works does not fit within the definitions of ‘steep’ or ‘unstable’ lands provided in the Code and the mapped extent is well removed from the site of the proposed embankment for which approval is sought.
4.5.4If it is established the codes are relevant then expert ecological advice is required to determine whether compliance with P4 of the Steep or Unstable Land Code and all provisions of the Biodiversity/ Nature Conservation Code can be demonstrated. My review of the outcomes of the ecological experts’ joint report and the report by Dr Greg Miller suggests compliance can be achieved.
4.5.5The 2009 Operational Works application lodged with Council was made prior to any release or commencement of any version of the SPP. The application stalled at the application stage of the IDAS process because it was not a properly made application given the absence of evidence with respect to resource entitlement. An agreement for resource entitlement and orderly and timely assessment of the development application would have seen its approval prior to the release of the SPP.
4.5.6Any future application for an embankment will need to comply with code provisions for assessable development contained in SPP 4/11. Compliance with this code can be achieved if it can be demonstrated that the mapped boundary of the HES wetland is incorrect. Based on the advice of Messrs Olsen, Ingham, Johnson and Miller there are strong grounds to achieve an alternative mapped boundary for the HES wetland. In those circumstances compliance with SPP4/11 could therefore be achieved.
4.5.7In my opinion, I would expect approval of an application for Operational Works for the proposed earthworks subject to reasonable and relevant conditions.”
[16] At pages 11-12 of Exhibit 7.
Mr Ovenden was subject to cross-examination, particularly as to his view that an increase of running head of cattle on the Vanbrogue property from 30 to 200 head does not represent a material change of use.[17] Mr Ovenden considered variations in the number of head of cattle on a property to be a normal part of farming operations, with variations occurring due to factors such as number of dams and weather conditions, such as times of drought. His view was that the proposed development could not be viewed in the same way as the installation of a feedlot.[18]
[17] See, for instance, T 1-35 lines 40-43.
[18] See T 1-23 lines 34-50.
Importantly, when questioned on the likely outcome should his views that the increase in cattle numbers be incorrect (that is, that it does represent a material change of use) Mr Ovenden was unshaken in his view that his conclusions would not change.
Mr Ovenden impressed me as a clear, concise, highly confident expert witness who was prepared to make appropriate concessions during cross-examination. I accept his evidence.
It must be stressed that the acceptance of his evidence does not mean that the SPP 4/11 issues can be overcome. It simply means that there are real prospects of the Local Authority approving the construction works if the SPP 4/11 issues are overcome.
Dr Glen Joseph Ingram
The next witness called by Vanbrogue was Dr Ingram. Dr Ingram has a PhD (Zoology) from the University of Queensland. He has a highly impressive CV contained within his report.[19] For instance, Dr Ingham has personally discovered 37 new species of lizards and snakes, and nine new species of frogs. As part of his career he spent 25 years at the Queensland Museum as a curator and senior scientist, specialising in terrestrial isopods, fish, reptiles, amphibians, birds and mammals.[20] He has lectured at university; been a member of various scientific taskforces and advisory committees; and the list of his publications runs to 15 pages in his CV. Notably, he holds the following current memberships:[21]
[19] Exhibit 4.
[20] See Transcript 1-46.
[21] Exhibit 4 page 26.
“•Interdisciplinary Committee, Albert Einstein Award for science, World Cultural Council
• Patron, Queensland Frog Society
• Patron, Restoring Australia’s Native Amphibia (RANA)
• Honorary Life Member, Wildlife Preservation Society of Queensland
• Scientific Member, Community Access Animal Ethics Committee, Department of Employment, Economic Development and Innovation”
Dr Ingram prepared a supplementary Joint Report - Zoology/Avifauna with Dr Justin Watson.[22] In response to the question “if the proposal (create water storage for rural purposes) was approved what would be required in order to ‘recreate / maintain’ fauna habitat?”, they had this to say:[23]
[22] See Exhibit 4 page 24.
[23] Ibid.
“JW and GI agree that fauna wetland habitat can be created and the following conditions or requirements are necessary to ensure the retention, creation and long term maintenance of fauna habitat associated with the wetland/feature.
1. the current proposal should be redesigned to maximise the retention of mature vegetation, including hollow bearing and live trees
2.existing mature trees and hollow bearing trees should not be removed if inundated
3. wetland design should follow recognised wetland creation/rehabilitation principles and include the establishment of both terrestrial and aquatic habitat/vegetation through: planting; varying water depths/stepped profile and appropriate water quality conditions for necessary ecosystem functioning
4. some form of long-term protection (covenant?) is necessary to ensure the protection and management of habitat values (comprising a range of suitable native terrestrial and aquatic vegetation and a topography gradient/profile) associated with the storage facility/wetland (ie. ongoing management and maintenance of the values)
5. a detailed management plan (including rehabilitation) would need to be approved by DERM or the Land Court prior to any formal approval for the proposal:
•survey of existing trees (including mature and hollow-bearing trees) and terrestrial and aquatic habitat
•design/shape of the wetland/water body
•planting pallette (numbers and species) - terrestrial and aquatic
•soil/topography profile
•habitat resources (e.g. nest boxes, logs)
•performance criteria
•maintenance and management schedule
6.The detailed design of the wetland does not need to be done at this stage.
GJ and JW agree that if these conditions are put in place the habitat values of the proposed waterbody will be expected to be no less than those presently on the site.”
At page 4 of Exhibit 4, Dr Ingram went further when he said:
“15.It is my opinion that, if the new impoundment does maintain better water quality than the present lagoon, and management avoids invasion by water hyacinth and avoids the need for spraying with chemical herbicides, than there will be advantages for fauna and its habitat within the proposed impoundment.”
Dr Ingham also made specific reference during his evidence to the Cotton Pygmy Goose. This evidence is important in light of the interested person submissions made in response to the advertising of the application (to be discussed later in these reasons). Dr Ingram explained that the Cotton Pygmy Goose is listed as “Near Threatened” and not “Vulnerable” as asserted. He further explained that the relevant categorisations, in descending order of importance, are “least concerned” followed by “near threatened”, followed by “vulnerable”, then “endangered” and lastly “extinct”.[24]
[24] See Transcript 1-47.
Further with respect to the Cotton Pygmy Goose, Dr Ingram had this to say:[25]
“22.It is the opinion of GI that the ACA process does not help me to assess the significance of the impacts of modifying the present wetland. However, I make the following observations:
a.The proposed impoundment will be a wetland in itself. It also will be mostly within the area of the present wetland. It will involve mostly converting a part of a mostly ephemeral wetland into a more permanent deep water section.
b.One of the species that will be most likely advantaged by this change is the Cotton Pygmy Goose.
c.I agree there will be disturbance when the impoundment is built and I acknowledge I do not have the knowledge to know when the aquatic flora will re-establish. However, I note that it apparently does re-establish and such impoundments do function as valuable wetland for threatened species elsewhere.”
[25] Preliminary Joint Experts Report - Ecology, Exhibit 4 page 13 paragraph 22.
Dr Ingram also gave evidence that, on a field trip to the site of the proposed Dam No. 3, he observed 14 Cotton Pygmy Geese on the smaller of the two existing dams.[26] He further explained the preference for the geese to float in open water and that the presence of dense vegetation, such as hyacinth weed, will exclude them.[27]
[26] Transcript 1-48 lines 9-11.
[27] Transcript 1-49 lines 5-9.
Cross-examination of Dr Ingram centred on the comments in his joint report with Dr Watson as to the measures needed to ensure retention of habitat should Dam No. 3 be constructed, including the maintenance of mature trees and hollows for bird nesting.
I was highly impressed by Dr Ingram who I can only described as an excellent expert witness. I accept his evidence in its entirety.
Dr Michael Francis Olsen
Dr Olsen was the next witness called by Vanbrogue. Like many of the witnesses in this case, he also possessed impressive qualifications. He gained his PhD from the University of Queensland and is an expert ecologist and botanist. He has lectured widely and published many articles. He has extensive experience as an expert witness.
Dr Olsen makes a number of important points in his report.[28] It must of course also be noted that Dr Olsen was involved in two joint expert reports, and that the second of these,[29] a joint report with Dr Paul Clayton and Mr Stephen Howell (both called by DERM to give evidence), was unable to resolve the following two points of disagreement:[30]
“1.Methodological matters a: The issue of the classification of the wetland as a riverine or non-riverine wetland. With regard to this issue, SH considers that formal wetland classification is a matter for the Queensland Herbarium and it is not appropriate for SH to comment on the classification method on their behalf; and, b: The issue of the inclusion of the wetland as a HES wetland in the Fitzroy Floodplain wetland cluster; and;
2.Condition and Values of the wetland in its present form and its developed form as per the currently proposed development on the subject land that is the matter before the Land Court at the present time.”
[28] Exhibit 3.
[29] Exhibit 1F, Folder 6 pp 34-50 & pp 69-70.
[30] Exhibit 1F, Folder 6 page 69.
Under the heading “Ecological Issues” in his report,[31] Dr Olsen stated as follows:
“3.For the purposes of these proceedings, I carried out site inspections of the property and its environs, including the Splitters Creek catchment, in December 2009 and May 2010 to assess the flora attributes and values of the wetland on the property, and nearby Fitzroy River, wetlands of the Fitzroy Floodplain that are mapped as being within the area of the Fitzroy Floodplain on the Directory of Important Wetlands (Blackman et al., 1996).
4.As Attachment 1 indicates, the Splitters Creek impoundment on the property does not lie within the boundary of the Fitzroy Floodplain in the ‘Directory of Important Wetlands in Australia’ (Blackman et al., 1996). It is considered that the expert panel (Attachment 2) erroneously included the Splitters Creek impoundment in the Fitzroy Floodplain during their desktop assessment process for the Aquatic Conservation Assessment (ACA) for the non-riverine wetlands of the Great Barrier Reef catchment - Aquatic Flora and Aquatic Ecology Expert Panel Reports - Fitzroy Region (2009). … ”
[31] Exhibit 3 page 1 paragraphs 3-4.
After making reference to standing dead timber in what I refer to as Shalom Lagoon, Mr Olsen made the following important observations[32] regarding the environs:
“11.The now moribund trees show no signs of ring barking or other means of treatment to have caused their death and it can only be assumed that the trees died as a result of the increased and more prolonged inundation subsequent to the construction of the artificial bund wall across the original channel of Splitters Creek.”
[32] Exhibit 3 page 3 paragraph 11.
The bund wall of which Dr Olsen speaks is of some significance to this case. On the evidence, it is actually two bund walls;[33] the first, lesser bund wall dating from approximately 1956[34] and the second, more significant bund wall dating from 1990.[35]
[33] Transcript 1-65 lines 43-48.
[34] Exhibit 3 page 3 paragraph 10.
[35] Affidavit of Mr Cowie, Exhibit 6 paragraph 35. It should be noted that, at paragraphs 25-34, Mr Cowie refers to the first bund as being made in “the late 1960s or early 1970s”.
Figure 2 of Dr Olsen’s report shows a photograph of a dry channel of Splitters Creek downstream of the bund wall. The existence of this dry part of Splitters Creek is of particular importance when I examine the hydraulic evidence and, in particular, the evidence of Dr Johnson.
Dr Olsen gave noteworthy evidence regarding the existence/non-existence of exotic (that is introduced from abroad or non-indigenous)[36] species in Shalom Lagoon and the two existing dams. In his report he stated:[37]
“12.The Google image (See Figure 3 below) indicates the current state of the Splitters Creek impoundment and environs. Of particular note is the lack of aquatic weed vegetation in the existing farm dams as against the weed dominated aquatic vegetation of the Splitters Creek impoundment. There were native aquatic and semi-aquatic plants within the existing farm dams (e.g. Monochoria cyanea, Nymphoides crenata, Nymphoides indica, Persicaria attenuata, Azolla pinnata, Chara fibrosa, Ludwigia octovalvis, Ludwigia peploides, Cyperus difformis, Eclipta prostrata, Paspalum distichum, Juncus usitatus, Bacopa monnieir and Fimbristylis polytrichoides). But, at the time of the site inspections, there was no evidence of infestations of aquatic weeds within the farm dams as was observed within the Splitters Creek impoundment.
…
15.The species observed to be dominant within the Splitters Creek impoundment are primarily exotic species (Figure 5), but it is interesting to note that the natural wetland that existed prior to the construction of the bund wall to block the former channel of Splitters Creek previously contained Nelumbo nucifera (Lotus Lily) as evidenced by the basal stumps (Figure 6) found in the putrescent mud during the first site inspection in December 2009. The extent of the infestation of Eichhornia crassipes (Water Hyacinth) varies from time to time with diminution of the extent largely as a consequence of local; government herbicide spray treatments.”
[36] See New Shorter Oxford English Dictionary, volume 1, page 884.
[37] Exhibit 3 page 4 paragraph 12 and page 6 paragraph 15.
Dr Olsen also gave important evidence as to the difference between riverine versus non-riverine wetlands. As already indicated, this is a matter of dispute between some of the experts. On this particular point, Dr Olsen has this to say:[38]
“Riverine vs non-riverine wetlands
16.The name Splitters Creek indicates to the layperson that the wetland is associated with a watercourse. It is, however, necessary to assess the technical differences between riverine and non-riverine wetlands to assist the court in this matter.
17.The DERM publications available online entitled ‘Queensland Wetland Definition and Delineation Guideline’ and ‘Wetland Classification and Mapping Methodology’ provide the background literature utilised by DERM to define wetlands across Queensland. There would appear to be no debate that the wetland of the Splitters Creek impoundment is a wetland. What remains contentious is the issue of the ‘naturalness’ of that wetland, the type of wetland and its current conditions and values relative to the condition and values of the proposed new artificial wetlands on the property.
18.It is considered that, applying the definitions in the ‘Queensland Wetland Definition and Delineation Guideline’, the Splitters Creek impoundment is clearly a modified or disturbed site. The presence of the artificial bund, the former piggery on the property and the degraded catchment all contribute to the Splitters Creek impoundment being classified as a modified or disturbed site.
19.Splitters Creek is indicated as a creek/watercourse on various map products. Splitters Creek is not a tidal waterway and the issue of lacustrine vs palustrine is not relevant to the debate of the riverine vs non-riverine nature of the Splitters Creek impoundment. Utilising the presumed channel buffers of the ‘Wetland Classification and Mapping Methodology’ in the pre-impoundment state and the examples in Attachment 8 of that document, it has been assumed that the Splitters Creek impoundment would still fall within the circumscription of a riverine wetland. As per Table 4 of the ‘Wetland Classification and Mapping Methodology’, it is considered that the Splitters Creek impoundment is classified correctly as a H2M1 wetland - a modified riverine wetland. As a consequence of it being a modified riverine wetland, it falls outside the purview of the State Planning Policy 4/11 Protecting Wetlands of High Ecological Significance in Great Barrier Reef Catchments (SPP 4/11). This is the consistent proposition put to DERM in personal and other communications since my first site inspection in December 2009.”
[38] Exhibit 3 page 8 paragraphs 16-19.
Dr Olsen also strongly disagrees with the classification of the Shalom Lagoon wetland as High Ecological Significance (“HES”), and the processes by which such classification was arrived at. His views took up some time during oral examination and were also rather lengthy in his report. However, as the existence of the HES classification may, should one side of the argument in this case be accepted, potentially lead to a conclusion that the appeal must fail, it is important to do justice to Dr Olsen’s position by stating his position clearly. In his report he put his view this way:[39]
[39] Exhibit 3 pages 8-11 paragraphs 20-29.
“HES Classification of the Splitters Creek impoundment
20.Should, contrary to the analyses undertaken previously and the discussion above, the Splitters Creek impoundment be deemed a non-riverine wetland by the Court, then the issue of it being classified as a wetland of High Ecological Significance (HES) remains of concern to the court. For the reasons discussed herein, it is not accepted that this area is of high ecological significance.
21.As detailed in the JERs, DERM have mapped the Splitters Creek impoundment as a HES non-riverine wetland. The assessment of the Splitters Creek impoundment that lead to its classification was outlined in the report by Steven Howell - ‘Summary of Aquatic Conservation Assessment (ACA) results for lotplan 2RP602629’. The caveat clearly stated in that report is that ‘No site inspections were undertaken.’ The document prepared by Steven Howell was desk based on available data sets and GIS information, but was informed by the expert panel as detailed in Attachment 2.
22.The summary of the report by Steven Howell states that ‘The lotplan has been identified as having a VERY High significance (AquaScore) primarily on the basis of identified special features. There are also a number of other significant values associated with the lotplan.’
23.Perhaps the Figure on page 7 of that report highlights one of the major differences between the desktop ACA process and the site observations reported herein. The Splitters Creek waterway is not depicted on page 7 leading the casual observer to believe it to be supplied by overland flow as are the more appropriately mapped significant non-riverine wetlands on the Fitzroy River floodplain that have been mapped as the ‘Directory of Important Wetlands in Australia’ (Blackman et al., 1996).
24.Such wetlands are present on the true right bank and adjacent floodplain opposite the property and were observed to be fundamentally different when inspected on the same day as that when the Frontispiece photograph was taken. Figure 7 is part of the non-riverine wetland labelled in Figure 2.
…
25.Comparison of Figure 7 with the Frontispiece highlights even to the casual observer the substantial differences between the significant non-riverine wetlands of the Fitzroy floodplain that are rightfully listed in the ‘Directory of Important Wetlands in Australia’ (Blackman et al., 1996). Such wetlands are of high ecological significance regardless of any data based methodology.
26.The report by Steven Howell points to the Very High AquaScore being the result of the ‘presence of distinct, unique or special geomorphic features’. Due to AquaBAMM being a threshholding model, this single score assigns the Splitters Creek impoundment a Very High AquaScore. Whilst the scientific tenability of threshholding models has been a debate avoided for these proceedings, it is considered that the assignment of a Very High AquaScore to the Splitters Creek impoundment is erroneous from both a methodological and values basis.
27.It would appear that the ‘presence of distinct, unique or special geomorphic features’ results in the assignment of a Very High AquaScore. This was a consequence of the inclusion of the Splitters Creek impoundment within the wetlands of the Fitzroy Floodplain. This was detailed on page 8 of the report by Steven Howell and therein was highlighted as originating from the expert panels (Attachment 2). Attachment 1 is the plan utilised by the expert panels to determine the wetlands that fell within the area that they considered was the Fitzroy Floodplain. The view of the expert panel is clearly at odds with that of Blackman et al. (1996) whose boundary is depicted as being both within and without the polygon drawn by the expert panel (Attachment 2).
28.The report by Steven Howell lists a number of features ascribed to the Splitters Creek impoundment that are clearly at odds with the reality as observed during the site inspections. It must be acknowledged that the ACA was conducted by GIS analysis and thence reviewed and modified through the DERM dominated expert panel process.
29.The issues that contrast most clearly with the site observation relate to the following Criteria detailed by Steven Howell:
•Criteria 1 - Naturalness Aquatic - The report by Steve Howell states that ‘No modifications were observed’. It is understood this has been altered, but the nature of the threshholding model of which AquaBAMM is but one utilised by DERM does not allow for other factors to downgrade the totality of the value once it has been assigned a single Very High AquaScore.
•Criteria 2 - Naturalness Catchment - Medium. This does not correlate with the lack of natural landscape retained in the catchment of the Splitters Creek impoundment.
•Criteria 3 - Diversity and Richness - The discussion by Steven Howell of the data sets available to him does not correlate well with the site data from the Splitters Creek impoundment.
•Criteria 4 - Threatened Species and Ecosystems - The fauna experts have dealt with the issue of the Near Threatened Nettapus coromandelianus (White Cotton Pygmy Goose) on the property, but it should be noted that no remnant regional ecosystem is present on the property as detailed in the JER. Further, regional ecosystem 11.3.27 is listed as a Least Concern regional ecosystem on the Vegetation Management Act 1999 and it is stated in the AquaBAMM that the assignment of it as ‘an Of Concern regional ecosystem’ relates to its biodiversity status which is the subject for considerable debate that is also outside the concerns of the court on this matter.
•Criteria 5 - Priority Species and Ecosystems - It should be noted that many of the listed ‘priority’ flora species are not actually aquatic species and it is unclear how the list was derived or could be accepted as being technically accurate.
•Criteria 6 - Special Features - This is the aspect that assigns the Very High AquaScore to the Splitters Creek impoundment. It is based on the expert panel opinion that it is part of the Fitzroy Floodplain non-riverine wetland complex. This is contended to be an erroneous assumption. The non-riverine wetlands of the Fitzroy Floodplain that are not fed by a weed infested and polluted catchment (as the case was with the Splitters Creek catchment - see Miller, 2012) are of high ecological significance and are special landscape features. The Splitters Creek impoundment is not a special feature, unless it can be contended that the modified, weed dominated impoundment in a polluted catchment is special with respect to ‘natural’ ecological values.
•Criteria 8 - Representativeness - Lacking the GIS capacity of DERM or the technical training to assess this parameter is, in part, irrelevant as the nature of the threshholding model only requires a single factor (in this case Criteria 6) to have a Very High AquaScore negating, or at least diminishing, the impact of all other criteria.”
Dr Olsen’s conclusions as to the appeal also are noteworthy. They included the following:[40]
“32.The water quality report by Dr. Greg Miller (2012) confirms the polluted nature of the catchment with data that reinforce the bio-indicators that were utilised during the site inspections to determine that the Splitters Creek impoundment had few remaining natural botanical features of any particular significance.
33.Further, as discussed with the landowner a far more environmentally benign means of water weed management is practicable under the proposed impoundment scenario. With the partial displacement of the polluted Splitters Creek impoundment with a new fresh water habitat more analogous to the existing water storages to the northwest and southwest of the Splitters Creek impoundment, it will be possible to manually remove any aquatic weeds. Given the polluted nature of the catchment of the Splitters Creek impoundment (Miller, 2012), it is unsurprising that aquatic weeds often completely cover the wetland to the almost complete exclusion of the native biota. Current herbicide based control methods by the local government are not considered to be as environmentally benign as those feasible with the creation of the proposed new impoundment fed from the Fitzroy River that apparently has fewer aquatic weed infestations and on a less regular basis as those observed in the extant Splitters Creek impoundment.
34.The proposal represents a good outcome with positive environmental benefits for aquatic habitat and associated native flora on the property. The water quality report by Miller (2012) reinforces the proposition that the water in the farm dams will be of a higher quality than that being fed into the Splitters Creek impoundment and thus, provide a less amenable medium for the delivery and infestation of aquatic weed flora.”
[40] Exhibit 3 pages 11-12 paragraphs 32-34.
Although the written transcript may not give a reader the impression, at the concluding stages of Dr Olsen’s examination-in-chief by Mr Hughes SC, Dr Olsen became, for an expert witness, quite emotional. I do not refer to his emotions in a negative sense; rather, to me it demonstrated both his passion and strong conviction to his view. The relevant transcript is as follows[41]:
“Thank you. Oh, sorry, was there anything else you wanted to say about the report of Mr Howell?-- The - it's to do with the - the make-up of the panels, I suppose, on page 8 of 48. Paragraph 5.2, this - this to me is - is one of the problems with these, if you like, thresholding methodologies; if you get a tick in one box, it doesn't matter what other values you have in the system or the methodology. In this particular instance, because the Splitters Creek impoundment was included with the directory of important wetlands, it automatically got an aqua score of very high. Once you get an aqua score of very high, it doesn't matter what the other scores of the various other criteria are, it - once you get across the threshold, it's - it's the same flaw that I and most of my colleagues see with the methodology that pre-dated this - the VAM methodology, which again is a thresholding methodology. If you have a tick in one box, then any of the other attributes or values - and when you consider that this is made up of quite often bio-regional scale data rather that site-specific data, you can lead to erroneous conclusions, as I believe has occurred in this situation, where you get an artificial impoundment former piggery in a polluted catchment being included with wetlands of undoubted high ecological significance. So - and the expert panel's to ensure scientific rigour and accountability. I'm not suggesting that there was any collusion on the part of any of those people; I have high regard for a number of the people on those panels. But there - there does seem to be a predominance of DERM personnel on those - on those panels and we can make of that what we will, but it seems that there's-----
Not much hybrid vigour; is that what you're saying?-- That's - yeah, that's - that's partly what I'm - I'm suggesting, that I think there is a wealth of scientific knowledge and expertise out there that doesn't contribute to these panels; it's - whether it be the Aqua BAMM or the VAM methodologies.
Mmm?-- And you - you can - to put not too fine a point on it, your Honour - find that you are devaluing significant environmental assets which most of us have been spending decades of our lives battling to ensure they're there for our great-grandchildren, and including things like this - the Splitters Creek impoundment in areas of undoubtedly high ecological value.
Dr Olsen, on - in paragraph 2.2 of Mr Howell's report, on page 4 of 48, he says that Aqua BAMM is primarily an assessment of ecological conservation values, but then he says something of interest: "Condition is considered. However, the condition of a wetland is not the primary driver of the value. Value and condition can be interrelated but one does not preclude the other"?-- Yes.
Without an active management program, will the condition of this particular area, the Splitters Creek impoundment, improve?-- No.
What do you say then about - well, I take it you're unaware of DERM or any other arm of the State Government or any other interested party in preparing an active management plan for the Splitters Creek impoundment?-- The evidence suggests that certainly at a local government level, current best practice has not been implemented in the catchment of this - of Splitters Creek. We don't find the stormwater improvement devices that you find uniformly across the State, particularly in catchments affecting the Great Barrier Reef.
Well, what do you say in the particular case - again, we're coming back from the bio-region and back to this specific land; what do you say about saying that the condition of this particular area or wetland is not the primary driver of the value of it?-- That's probably a - a better question to put to Mr Howell. My understanding is, because of the nature of these processes of the way that the ACA assessments were undertaken and how Aqua BAMM works, you just don't have the data. For instance, there is - one of the criteria in the Aqua BAMM that assesses the regional ecosystems, if you have a remnant regional ecosystem on a site, and rather than being based on the regulation of the Vegetation Management Act, it's based on its biodiversity value, which is a - is a matter for another debate, your Honour, but it's probably one of the most scientifically untenable aspects of a conditional values assessment. And it is probably the nature of the data sets that would not allow incorporation of condition assessments or value assessments on a wetland by wetland basis, because of those - those data constraints. That's - that's my understanding of it.
Well, in answer to the question, what do you say in a site-specific way of ignoring the condition of this particular area, the Splitters Creek impoundment, when determining that it's of high ecological significance; can you do that legitimately, in your view as an ecologist?-- No, I do not.”
[41] See Transcript 1-74 line 13 to 1-75 line 46
Not surprisingly, a number of Dr Olsen’s points were challenged in cross-examination. Firstly, he was questioned by Mr Hinson SC as to his use of the term “Splitters Creek Impoundment” throughout his report. Dr Olsen readily agreed that the water feature now present on the Vanbrogue land is a wetland.[42]
[42] See Transcript 1-77 line 36.
Dr Olsen agreed that, even during its driest periods, Lake Eyre maintains wetland features. He went on to agree that it would not be appropriate to assess its ecological values at a particular point in time as it is so variable.[43] He agreed that condition is considered when assessing ecological or conservation values but that condition is not the primary driver of values.[44]
[43] See Transcript 1-79.
[44] See Transcript 1-80 lines 10-26.
I was particularly impressed with the manner in which Dr Olsen disagreed with propositions put to him by Mr Hinson SC. Dr Olsen made it extremely clear when he disagreed, and why, whilst maintaining a high level of respect. For instance, even though he strenuously disagrees with the HES attributed to Shalom Lagoon using Aquatic Biodiversity Assessment and Mapping Methodology (AquaBAMM), he agreed that some of the people on the expert panel are “experienced and knowledgeable ecologists which are rare entities in the world”[45] for whom he has tremendous respect. He confirmed that he was not impugning the integrity or honesty of the panel; nor was he suggesting any form of collusion. He strongly believes “they are wrong with respect to the circumstance of including Shalom Lagoon with the directory of important wetlands of the Fitzroy flood plain; that’s - that’s where I believe they erred, yes”.[46]
[45] See Transcript 1-81 lines 3-6.
[46] See Transcript 1-81 lines 21-24.
Dr Olsen was subject to much cross-examination on his view that Shalom Lagoon is a riverine wetland rather than a palustrine or lacustrine wetland as contended for by Dr Clayton. The transcript makes it clear that there is no easy, or short form, answer to this issue. As Dr Olsen states, there are 160 pages of documentation on this point in the “Wetland Mapping and Classification Methodology” Version 1.2, 2005.[47]
[47] By the Queensland Parks and Wildlife Service and the Australian Government. References are to be found at Transcript 1-84-5.
Dr Olsen agreed with Mr Hinson SC’s assessment of his report which shows that there are five aquatic and semi-aquatic plant species (excluding exotic weeds) that are found in Shalom Lagoon which he did not list as present in Dams 1 and 2. However, Dr Olsen pointed out that Dams 1 and 2 had been subject to casual observation rather than a comprehensive and detailed study and that those species may exist in the dams, and in fact there is every likelihood that they are there.[48]
[48] See Transcript 2-4 line 20 to 2-5 line 22.
I was greatly impressed by Dr Olsen as an expert witness. His behaviour throughout quite detailed, complex cross-examination on points of disagreement with other experts was exemplemary. I accept his evidence in its entirety.
Dr Gregory John Miller
The next witness called on behalf of Vanbrogue was Dr Miller, who gained his PhD from Griffith University in 1992. Dr Miller is an environmental scientist specialising in a number of fields, including water quality. Like other expert witnesses, he possesses an impressive C.V. As well as being a Director of Health and Environment Workplace, he is also Adjunct Associate Professor, Centre for Environment and Population Health, Griffith University, and Adjunct, Institute of Sustainable Development and Architecture, Bond University. He has been an expert scientific witness since 1969 and has a very long list of publications and reports.
Dr Miller prepared a report for these proceedings, which is Exhibit 2.
In his report, Dr Miller goes to some length to describe Shalom Lagoon. In part, he had this to say:[49]
“Originally described as a swamp in an 1862 survey plan, the current modified lagoon covers an area of about 124,000 m² to RL 8.3. At full storage, the estimated volume of ponded water is 81ML. The deeper end of the lagoon towards the Fitzroy River was estimated to have an average depth of approx 0.8m, with isolated depths of up to 1.8m, and the end closest to Alexandra Street (eastern) was estimated to have an average depth of approx 0.4m (very shallow). At dry storage with remnant pools and wet patches, the RL is about 7.3 (McMurtie Consulting Engineers, 2012a).
Physical modifications to the lagoon and its outflow have been made in the past on Lot 2 RP892674 (Shalom Village). These include filling and earthworks that interfere with the outflow of the Splitters creek channel. A levy bank (~ 300m long) is constructed along a portion of the south-west of the lagoon to interfere with the outflow from the lagoon. A site investigation of the Fitzroy River at Lot 2 RP602692 prepared by Environmental Hydrology Associates (EHA Pty Ltd) in June 2007 describes … Splitters creek has been dammed to form a shallow lagoon (EHA, 2007p4-5). This implies the flow of the natural watercourse has been interfered with and the water level raised to cause ponding on Lots RP892672 and also those owned by Vanbrogue Pty Ltd.
A previous registered owner of Lot 2 RP892674 and Lot 3 RP892674 is reported to have used portions of the Lot as a piggery in the 1960s. Several remnant wooden posts are still in situ on the eastern side of Shalom Village. The water level as apparently altered during this period to support the piggery. Subsequently, the construction of Shalom Village on Lot 2 RP892674 involved further earthworks, including an embankment and extensive fill above the lagoon perimeter. A borrow pit on the floodplain was excavated on the south-western side of the Village footprint. A water channel from the lagoon to the former borrow pit has been excavated to allow ponding, probably as a water feature and to provide water supply for landscape irrigation under a Licence (see Figure 1). Increased water levels, and possibly salinity in the lagoon, are likely to have caused inundation of elevated banks or adjoining land leading to the deaths of several large trees such as melaleucas within the lagoon waters.
The lagoon is a shallow water body, in contrast to a non-riverine wetland description of deep water lagoons, with a long and highly variable littoral zone depending on extent of dry or wet conditions. The shallow and enriched waters and sediments are very vulnerable to mixing and dispersion by winds and also light penetration in open waters. These natural processes greatly affect water quality such as dissolved oxygen through extreme variations in photosynthesis and respiration, release of accumulated nutrients from sediments and decaying plant matter.
The release of nutrients from sediments and a continual input from the catchment stimulates aquatic primary productivity in the lagoon. Nutrient enrichment leads to a cyclical and irreversible process of nutrient uptake, increased plant production supported by high light penetration, oxygenation to supersaturation of waters, death of plant matter, decay and decomposition and sedimentation causing deoxygenation in water and sediments through microbial (and plant) respiration, and on-going release of nutrients back into the water through diffusion and mixing, such as in shallow waters, to continue the process (see Connell and Miller, 1984). Excessive inputs of nutrients and organic matter from the catchment further stimulate and accelerate the process, leading to accelerated eutrophication of the water body and gross deterioration of water quality and environmental values.
Shalom lagoon is observed to be very vulnerable to extreme fluctuations in water quality caused by its morphology, climatic variations, sedimentation, excessive growths and masses of floating aquatic plants and stormwater quality inputs from its urban catchment. Colonisation of the lagoon by invasive aquatic weeds such as floating masses of water hyacinth is a major ecological and management problem for the water body (see Figure 7 and Section 6.0). Water hyacinth is a well-known aquatic weed problem of the Fitzroy River system. It readily adapts to nutrient enriched waters such as Shalom lagoon and spreads rapidly requiring periodic and intensive spraying to control its capacity to choke water bodies.
[49] Exhibit 2 pages 9-10.
Water quality sampling and analysis was undertaken on three occasions to reflect the varying conditions of Shalom Lagoon. The first was on 23 December 2009 after an extended dry period and some early rains. The second was on 18 January 2010 at a time of full water and high flow conditions, while the third was taken on 8 September 2011 which is described as post flood conditions - Shalom Lagoon and Splitters Creek.
Each analysis resulted in detailed scientific data which Dr Miller included in his report. For present purposes, it is not necessary to duplicate all of that material in these reasons. However, some data is of particular relevance to this case. Helpfully, Dr Miller provided his conclusions with respect to each analysis.
As regards the 23 December 2009 analysis, of particular note is that salinity/dissolved salt content exceeded the water quality guidelines for a freshwater body; at one site nitrate plus nitrite-nitrogen levels were eleven times the guideline value for freshwater wetlands; trace elements were elevated; zinc levels were very low; toxic elements such as lead, mercury and cadmium were not detected; and high levels of iron and manganese were found in pond waste sample.[50] Dr Miller’s conclusions with respect to this sample period were as follows:[51]
“The available water quality reflected a shallow lagoon, after some early rain, experiencing dilution of some salts, excessive iron, manganese, nitrate-nitrogen and elevated levels of some trace elements likely to be associated with previous decomposition of excessive growths of plant matter and exposure to drying anaerobic sediments.”
[50] See Exhibit 2 pages 17-18.
[51] See Exhibit 2 page 18.
It should also be noted, consistent with the expert evidence, that a significant amount of water will evaporate from Dam No. 3.
Further, I note that the principal source of water for Vanbrogue is the 404 ML per annum allowance which, essentially, is only able to be harvested in peak flow times. Of course, if there is an extended period of drought, there will be, naturally enough, a reduction or absence of peak flow in the Fitzroy River.
Additionally, it is not within my jurisdiction to pre-empt the development approval process. Ultimately, it will be a matter for Vanbrogue to satisfy the relevant approval process that the size of Dam No. 3 is appropriate. Of course, a decision to, say, maintain the proposed footprint of Dam No. 3, but to reduce the height of the embankment, would have a significant impact on the capacity of Dam No. 3 without otherwise impacting any differently on Shalom Lagoon than the dam with higher embankments. This comment should not be taken as any form of opinion or view that the capacity of Dam No. 3 should be reduced as part of the development approval process; rather, it is simply to indicate the many variables which may arise as part of the development approval.
It is also worth noting that Vanbrogue already has licence rights to harvest a significant amount of water from the Fitzroy River. However, what Vanbrogue does not have, is sufficient storage capacity for that water.
Conditions
Taking all of the evidence and my findings on such evidence into account, it is my view that any approval of the water licence be subject to the following conditions:
1. A condition that an expert produced management scheme be developed by Vanbrogue to manage erosion issues on the Baptist Union land caused or likely to be caused by the Dam No. 3 embankment, and any such remedial works as may from time to time be necessary pursuant to that management scheme, funded by Vanbrogue.
2. A condition that the watering of stock from Dam No. 3 be limited to a maximum of 200 head of cattle AE[163] at any one time.
[163] Adult Equivalent.
3. A condition that improved pasture on the Vanbrogue land be irrigated only from the existing Dam Nos. 1 and 2, as replenished from time to time by water legally taken by Vanbrogue from the Fitzroy River.
4. A condition that Dam No. 3 be filled with water taken from the Fitzroy River under Vanbrogue’s current water licence.
5. A condition that a farm management plan and improvements, including fencing, be put into place to ensure that, unless and until other licences are obtained by Vanbrogue for other uses of the water in Dam No. 3, the water in such dam be used for stock drinking purposes only.
6. A condition that Dam No. 3 be professionally redesigned to maximise the retention of mature vegetation, including hollow bearing and live trees, without increasing the current footprint of Dam No. 3.[164]
7. A condition that existing mature trees and hollow bearing trees not be removed if inundated within Dam No. 3.
8. A condition that the wetland design follow professional, recognised wetland creation/rehabilitation principles, including the establishment of both terrestrial and aquatic habitat/vegetation through planting; varying water depths/stepped profile; and appropriate water quality conditions for necessary ecosystem functioning.
9. A condition requiring Vanbrogue to develop, in conjunction with DERM, a long-term system of protection to ensure the protection and management of habitat values, comprising a range of native terrestrial and aquatic vegetation and a topography gradient/profile, associated with Dam No. 3.
10. A condition that a survey be conducted, at Vanbrogue’s expense, of existing trees, including mature and hollow-bearing trees, and terrestrial habitat.
11. A condition that Vanbrogue develop a planting pallette, both terrestrial and aquatic, detailing numbers and species, to an expert standard.
12. A condition that a soil/topography profile be undertaken by Vanbrogue, to an expert standard.
13. A condition that all references to Vanbrogue include all successors in title Vanbrogue.
[164] The intent of the footprint aspect of this condition is to ensure that other adverse environmental impacts do not occur as a result of a footprint greater than that considered by the expert witnesses in this case.
Orders
Subject to the resolution of the HES classification of Shalom Lagoon pursuant to SPP 4/11 through either a development approval process or direct application, undertaken pursuant to and in accordance with the SPA and/or SPP 4/11 and/or SPP 4/11 Guideline, on terms consistent with the findings in this decision that Shalom Lagoon is a riverine impoundment created as a result of a dam as defined in the Water Act, the appeal be allowed and Vanbrogue’s application for a licence to interfere with the flow of water on the Vanbrogue land be approved, subject to the following conditions:
1. A condition that an expert produced management scheme be developed by Vanbrogue to manage erosion issues on the Baptist Union land caused or likely to be caused by the Dam No. 3 embankment, and any such remedial works as may from time to time be necessary pursuant to that management scheme, funded by Vanbrogue.
2. A condition that the watering of stock from Dam No. 3 be limited to a maximum of 200 head of cattle AE at any one time.
3. A condition that improved pasture on the Vanbrogue land be irrigated only from the existing Dam Nos. 1 and 2, as replenished from time to time by water legally taken by Vanbrogue from the Fitzroy River.
4. A condition that Dam No. 3 be filled with water taken from the Fitzroy River under Vanbrogue’s current water licence.
5. A condition that a farm management plan and improvements, including fencing, be put into place to ensure that, unless and until other licences are obtained by Vanbrogue for other uses of the water in Dam No. 3, the water in such dam be used for stock drinking purposes only.
6. A condition that Dam No. 3 be professionally redesigned to maximise the retention of mature vegetation, including hollow bearing and live trees, without increasing the current footprint of Dam No. 3.
7. A condition that existing mature trees and hollow bearing trees not be removed if inundated within Dam No. 3.
8. A condition that the wetland design follow professional, recognised wetland creation/rehabilitation principles, including the establishment of both terrestrial and aquatic habitat/vegetation through planting; varying water depths/stepped profile; and appropriate water quality conditions for necessary ecosystem functioning.
9. A condition requiring Vanbrogue to develop, in conjunction with DERM, a long-term system of protection to ensure the protection and management of habitat values, comprising a range of native terrestrial and aquatic vegetation and a topography gradient/profile, associated with Dam No. 3.
10. A condition that a survey be conducted, at Vanbrogue’s expense, of existing trees, including mature and hollow-bearing trees, and terrestrial habitat.
11. A condition that Vanbrogue develop a planting pallette, both terrestrial and aquatic, detailing numbers and species, to an expert standard.
12. A condition that a soil/topography profile be undertaken by Vanbrogue, to an expert standard.
13. A condition that all references to Vanbrogue include all successors in title Vanbrogue.
P A SMITH
MEMBER OF THE LAND COURT
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