Vanbrogue Pty Ltd v Department of Environment and Resource Management (No. 2)

Vanbrogue Pty Ltd appealed against a decision of the Department of Environment and Resource Management (DERM) to deem their application for a water licence under the Water Act 2000 (Qld) as refused. The application sought permission to interfere with water in Shalom Lagoon, located on Vanbrogue's land. The Land Court was tasked with determining whether the lagoon qualified as a "lake" under the Act, as well as other criteria for granting the licence. Additionally, the court considered the relevance of submissions made by third parties, the impact of other necessary approvals outside the court's jurisdiction, and the admissibility of expert evidence.

The court examined whether Shalom Lagoon, which was altered by the construction of a bund, could still be considered a "lake" under the Water Act. The definition of "lake" was not explicitly provided in the Act, necessitating the court to refer to extrinsic sources for interpretation. The court concluded that the lagoon was not a "lake" due to the presence of the bund. Furthermore, the court acknowledged that certain approvals required under the Sustainable Planning Act 2009 (Qld) and State Planning Policy 4/11 (Qld) were outside its jurisdiction. However, the court ruled that these approvals did not render the water licence application futile. The court also determined that third-party submissions were relevant to the "public interest" criteria, but did not warrant separate consideration. Instead, the issues raised by these submissions were addressed in the expert evidence presented.

In its reasoning, the court rejected the inconsistent evidence of a DERM expert, finding it inadequately explained and in conflict with other expert evidence. Consequently, this evidence was deemed inadmissible. The court allowed the appeal and approved Vanbrogue's application for a water licence to interfere with the flow of water in Shalom Lagoon, subject to extensive conditions aimed at managing erosion, limiting stock watering, protecting vegetation, and ensuring appropriate wetland design and habitat protection.

The court ordered that the appeal be allowed and Vanbrogue's application for a water licence be approved, subject to a range of conditions designed to manage erosion, limit stock watering, protect vegetation, and ensure appropriate wetland design and habitat protection. These conditions included developing a management scheme, limiting stock watering, irrigating improved pasture from specific dams, filling Dam No. 3 with water from the Fitzroy River, implementing a farm management plan, redesigning Dam No. 3, preserving existing mature trees, adhering to wetland creation/rehabilitation principles, developing a long-term protection system, conducting surveys of existing trees and terrestrial habitat, creating a planting palette, and undertaking a soil/topography profile. All references to Vanbrogue were to include all successors in title to Vanbrogue.