Vedelago v Chief Executive, Department of Primary Industries
[1995] QLC 34
•26 May 1995
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BRISBANE
26 May 1995
Re: Appeal under section 22 of the Soil Conservation Act 1986 - A94-81.
O and P Vedelago
v.
Chief Executive, Department of Primary Industries
(Hearing at Mareeba)
DECISION
The Department of Primary Industries advertised a proposal to approve a soil conservation property plan for land located in the vicinity of Veness Road, Dimbulah. A copy of the plan "and all matters relevant to it" were opened for inspection from 15th June until 16th July, 1994. Four properties were directly affected being those owned by E and R Zanatta; D and R Zelenika; O and P Vedelago; A and AG Inverardi.
One objection was received. That was from O and P Vedelago. They objected to that part of the plan which provided for a waterway - identified as C1 to C3 - to traverse, from south to north, an elongated strip of their land, being the western section of their property. This land was cultivated for the growing of tobacco. The objectors were concerned that the location of the waterway would cause disruption to their farming practices. The Department was advised that the objectors considered that the water flow should be continued in a westerly direction, a proposal which they understood had been the subject of an agreement between a previous owner and the Department. The Department was also advised that the Vedelagos were agreeable to the water being channelled within their southern boundary, at the extreme western end of the property.
As required under Section 21(4) of the Soil Conservation Act 1986, the Chief Executive considered the objection. It was determined that the objection should be overruled.
Exercising their rights under Section 22 of the Act, the Vedelagos appealed against the Chief Executive's determination. The grounds of appeal are as follows:"(a)The Respondent failed to give any or due consideration to the Appellant's proposal to continue the waterway B2-C1 in a westerly direction until it reaches the South Walsh Main Irrigation Channel.
(b)The Respondent erred in concluding that the catch drain of the South Walsh Main Irrigation Channel has insufficient capacity to handle concentrated flow from the waterway B2-C1.
(c)The Respondent failed to give any or due consideration and/or weight to disruption to normal farming practices which the Appellants will suffer if the proposed waterway C1-C3 is constructed. "
A brief summary of the relevant existing drainage situation is as follows. A boundary line runs from the "South Walsh Main Channel" (a concrete-lined irrigation channel within a surveyed reserve) in the west, to Veness Road in the east. North of that boundary line and to the west is the Vedelago property (bounded by the irregular South Walsh Main Channel), with the Zanatta property to the east, bounded by the road. To the south and sharing the common boundary with Vedelagos' is the Zelenika property which is also bounded by the main channel reserve. To the east of Zelenikas' is the Inverardi property. The north-south boundary between Zelenikas' and Inverardis' is slightly to the west of the north-south boundary between Vedelagos' and Zanattas'. A very low ridge line contour runs from the Inverardi property north-westerly through the north-eastern section of Zelenikas', then crosses the boundary line into the extreme western section of Vedelagos'. A diversion bank on the Zelenika/Inverardi boundary northerly of the ridge line but not quite meeting the northern boundary directs runoff water to another diversion bank which runs along the common east-west boundary line. This bank diverts water to the west. At the point along the boundary between Zelenikas' and Vedelagos', where the low ridge contour crosses, the westerly directed runoff water then breaks away from the diversion bank draining overland to the south-east eventually finding its way into the irrigation channel catch drain. This concentrated water is said to cause some erosion which in turn has caused some silting in the catch drain. It also causes bogginess and wet weather access problems to the Zelenikas'. As I understand the evidence, a continuation of the east-west diversion bank prevents Vedelagos' runoff water from a small catchment south of the ridge line from draining into Zelenikas', directing that water westerly, also into the irrigation main channel catch drain. This section of the catch drain has an "extremely low" gradient for a long distance to its first outlet in the south.
It appears that in an effort to prevent Inverardi runoff water from draining to the west into Zelenikas', the original gap between the north-south and east-west diversion banks was closed. However, being concerned that the blockage would cause overflow into his property Mr Vedelago took action and removed that extended bank. As a result of the local dispute that developed, Mr Vedelago requested the assistance of the local land conservation officer, a Mr J.F. Klein.
During the hearing Mr Klein gave evidence that several property plan proposals had been considered, one of which was that suggested by Mr Vedelago, and as incorporated in the eventual objection. It was not possible for Mr Klein to obtain any common agreement to any of the proposals suggested by him, between the four owners involved. He eventually produced the plan which became formally known as Property Plan No A1-104252, then invoked the procedure provided by the legislation when agreement between property owners cannot be reached. This procedure brought about the objection and the subsequent appeal.
Broadly the proposal which the Department seeks to adopt in Plan No A1-104252, incorporates the diversion bank existing between Zelenikas' and Inverardis', extends it in a short dogleg to the east at its northern extremity to link with a new waterway adjacent to the Vedelago/Zanatta north-south boundary within the Zanatta property feeding into an existing waterway. The Zelenika runoff north of the ridge line then continues to be diverted westerly along the existing bank on the Zelenika/Vedelago boundary to the point C1 slightly to the east of the ridge line contour. Then the new waterway (C1-C3) to which objection is taken by the Vedelagos, runs northerly for a distance of about 140 metres through the Vedelago property into another section of the catch drain of the main irrigation channel which meanders through the immediate locality. The final design of the C1-C3 waterway had not been completed, but it is now proposed to be a "Type C" waterway with a central bottom width of 3 metres, a maximum top width of 6 metres and battered slopes not steeper than 1:6.
The existing drainage arrangement and the adopted plan are included as attachments A and B respectively.
At the hearing of the appeal, evidence in support of its grounds was given by Mr O Vedelago and a consulting civil engineer, Mr A Perrou.
It is Mr Vedelago's belief that effective drainage of the area covered by the property plan is possible by an alternative arrangement in its western section. That alternative incorporates an effective diversion bank which has been in existence for some years. He is prepared to carry out any necessary works on his own property at his cost, as considered necessary to ensure the effectiveness of the scheme. This proposal is one which was incorporated in a plan produced by Mr Klein in the early stages of his involvement. Put simply it collects the runoff water, which spills away from the diversion bank in the Zelenikas' property by way of a short bank construction within Zelenikas' directed towards an upgraded diversion bank on the Vedelagos' side of the common boundary. This collected water would then drain westerly into the catch drain of the irrigation channel at the western end of the property. His problem with the Department's proposal was not only the loss of cultivation land involved, but the interference which would be caused to his management practices by having a long, narrow cultivation paddock, on a relatively small farm, severed by the proposed waterway. In his opinion this waterway would cause a dangerous situation when traversed by farm machinery, in particular the tobacco harvester.
Mr Perrou's considerations and recommendations had not been committed to writing. His on-site investigation had taken place only the week before the hearing. He had been made aware of the appellants' initial proposal as it had been incorporated in one of the Department's preliminary plans. He had directed his considerations to this proposal and did not investigate the engineering feasibility of the plan ultimately adopted by the Department. He had made no inquiry as to the practicality of traversing the waterway as proposed across the appellants' land with machinery, or the area of land which would be lost to cultivation. The alternative plan did not interfere with farming practice. His observations and calculations indicated to him that only in a 1 in 50 year intensity rainfall event would runoff from the alternative proposal overtop the bank protecting the concrete-lined irrigation channel. Any potential physical damage from such an event was capable of being averted by stone or concrete diffusion protection. To prevent overtopping or erosion, he saw it as possible, to increase the height of the bank protecting the irrigation channel and to create a ponding retention area within the appellants' land. He estimated, without precise calculations, which would require some detailed on-site investigation, that an area of about 5,000 square metres might be required for such ponding. Water would remain ponded for some days (in a 1 in 50 year event) before eventual drainage to the outlet through the irrigation channel reserve. Mr Perrou's calculations indicated to him that no overtopping into the drainage channel would occur in at least up to a one in 20 year intensity rainfall event. He was confident that Mr Vedelago had fully understood the engineering requirements of the alternative proposals. No discussion had been held with the southern neighbours, the Zelenikas, on whose property some diversion bank construction work would be necessary. The direct cost of the drainage works to the appellants would be expected to be greater in the alternative proposal than in the plan adopted by the Department.
Witnesses for the Department were Mr Klein and Mr B.A. Stevenson, an engineer with the Water Resources business group of the Department of Primary Industries. Mr Klein has been employed by the Department of Primary Industries for 27 years. During this period his prime responsibility has been planning and implementation of soil conservation schemes throughout Queensland. Mr Klein did not deny that the appellants' proposal was identical to a plan which he had prepared in the initial stages of his investigations. However, at that initial stage, he saw it as nothing more than a proposal which had not been fully investigated. The necessary investigation had not proceeded when the proposal was found not to be acceptable to all of the property owners involved. Had there been agreement between the owners he was now convinced that proper investigation of such a proposal would have revealed the inadequacy of the irrigation main channel catch drain design to effectively dispose of the further concentrated flow which would be directed into the system. His calculations indicated to him that a rainfall event of 1 in 50 year intensity would certainly cause runoff to overtop the bank into the main irrigation channel and indeed in his verbal evidence he suggested that an event as regular as a 1 in 5 year intensity could overtop the bank. It is not clear on the evidence whether the disparity between Mr Klein's opinions, which were later confirmed by Mr Stevenson, and those of Mr Perrou, regarding the rainfall event which would overtop the catch drain, were based on the existing or proposed overall local control of runoff water. It was Mr Klein's evidence that the plan as adopted had been developed on the basis "that whenever possible a property should receive the runoff that would flow onto it under natural circumstances". The proposed waterway to which objection had been taken would also collect water from the Vedelagos' cultivation. It had been located to cause what he considered minimal interference to the appellants' existing farming practice. The particular area of cultivation was already severed by a farm track with an adjacent grassed headland. The waterway was proposed to be located within the grassed headland, adjacent and parallel to the track. The surface area of the appellants' property which was required for the waterway was about 840 square metres. The cost of construction had been estimated by a local contractor to be about $200.
Criticism was directed at the adopted plan in that the outlet of the waterway across the Vedelagos' property (which was designed to divert a greater volume of water with increased velocity potential than in the appellants' proposal) was also being directed into a catch drain adjoining the main irrigation channel. Mr Klein however is confident that with proper design, the adopted waterway plan would not erode the bank or overtop into the channel. At the point of discharge the gradient of the catch drain was such as to efficiently disperse the runoff into a drainage reserve a short distance to the north-east.
It was revealed during Mr Klein's cross-examination that the original advice to the appellants regarding the waterway channel recommendations, contained specification for "inside" and "outside" bank batters of "1:4". Mr Klein's tendered statement suggested that the batter slopes of 1:6 "were selected to allow vehicles and machinery to easily cross the waterway." Mr Klein's evidence was that the initial recommendation was intended to indicate the maximum slope rather than the minimum and the now reduced slope was a response to Mr Vedelago's concerns as to the difficulties of traversing the waterway with farm machinery.
Mr Stevenson gave evidence as to the design criteria for open channels in the Mareeba Dimbulah Irrigation Area and the purpose of the catch drains, which he emphasised were not designed as part of the stormwater drainage system. They were intended as a means of preventing "small amounts of local overland runoff from flowing into the channel system and to minimise ponding of water against channel banks. He knew of no irrigators who have been given specific permission from Water Resources to allow overland flow from their properties to discharge into channel catch drains. The discharge of concentrated flow as proposed by the appellants was "most certainly unacceptable". It seems that Mr Stevenson would personally have preferred to see all farm runoff to be directed into an existing waterway to the north-east. "However, as a compromise, the Department is prepared to accept the drainage system as proposed on Plan 104252" (the adopted proposal).
Although there was, in his opinion, insufficient detail provided by Mr Perrou on which a considered opinion was possible, Mr Stevenson was eventually prepared to admit that the appellants' proposal "might work" in a physical sense. However, he remained concerned not only with the danger of runoff overtopping into the irrigation channel with the potential for contamination of the commercial water contained therein, but also the effect of potentially nutrient rich and silt-laden water, ponding for long periods in a long, near-flat section of catch drain. This was the designed criteria of Mr Perrou's alternative proposal. Such inefficient drainage increased the maintenance costs to the Department. The section of catch drain to be used in the adopted proposal, however, provided efficient drainage. This was due to the superior drainage gradient. Mr Stevenson agreed that in the adopted proposal some potential existed for erosion within the catch drain itself and that the junction of the waterway with that catch drain required design care. However, he was confident that no overtopping would occur. The Department accepted any risks which existed as a compromise to the unacceptable alternative proposal suggested by the appellants.
Conclusions:
Critical to the appellants' proposal is the need to discharge concentrated runoff water into land reserved for the purposes of an irrigation scheme. No inherent right exists for such water to be accepted into infrastructure designed and constructed for another purpose. It is clear that for such proposal to be put into effect the approval of the Chief Executive of the Department would be required. It is equally clear that the proposal is unacceptable to the Chief Executive based on the advice of the Water Resources division of the Department. This advice has been the subject of evidence given by Mr Stevenson in this Court. In the circumstances and with particular regard to the gradients of the catch drain, refusal of approval would not be seen to be capricious or unreasonable.
On the other hand, the appellants cannot be said to have been unreasonable or unwilling to contribute towards accepting runoff water from neighbouring land, and at a cost greater than that which would need to be expended as a result of the adopted plan. The appellants' alternative proposal is not necessarily one that would not achieve a result. However, it has been demonstrated to my satisfaction that the proposal of the Chief Executive is more efficient and involves less risk to irrigation infrastructure.
There may be some personal reluctance on behalf of the appellants to have cultivation land traversed for the benefit of others. However, I am not convinced that the loss sustained, the disruption to farming practice, or the introduction of danger in the use of machinery is of the degree of severity as has been suggested. It is perceived that there has been some failure by the Chief Executive to communicate to the appellants the potential which existed to lessen the slope specifications of the waterway batters. While there are negative aspects associated with the adopted plan, the location of the proposed waterway has been selected and designed to cause minimal disruption in actual practice. One positive effect will be the improved efficiency of the drainage of the subject cultivation land itself.
Finding:
The grounds of the appeal are not proved. The determination of the Chief Executive is confirmed on the basis that the maximum batters of the waterway, C1 to C3, are to be 1:6.
Member of the Land Court
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