Wallace v The Commissioner of Water Resources

[1991] QLC 11

[1991] QLC 11

 

  LAND COURT,

BRISBANE

31st May, 1991

Re: Appeal under Water Resources Act (1989 - s.4.26)
  A91-26.

Michael John Wallace and Patricia Catherine Wallace
  v.
  The Commissioner of Water Resources

D E C I S I O N

(Hearing at Warwick)

This appeal is against the decision of the Commissioner of Water Resources granting licence B 86334 comprising works described as a sub-artesian bore to be located on Lot 2 on RP 169533, parish of Robinson, for the purpose of irrigation with a nominal allocation of 20 megalitres.  The appellants are the owners of Lot 2 and they were the applicants for the licence.  The application sought an allocation of 40 megalitres for the purpose of irrigating 20 hectares.  The grant of a lower allocation than applied for formed ground 1 of the appeal but was abandoned and the appeal contested under ground 2, being that the distance requirements contained in condition 1.0713 of the licence will make it impossible for the appellants to obtain any water.  The relevant condition reads as follows:

"This bore shall be located so that it is not less than 500 metres from any Town Water Supply bore on a neighbouring property and not less than 200 metres from the boundaries of the property of the licensee unless otherwise approved by the Commissioner.  "

Lot 2 has an area of 33.43 hectares.  The lot is of triangular shape with the apex in the south-east and the base on the north-western boundary which is Swan Creek.  About 25 hectares of the lot is within the alluvium area and the aquifer system.  The lot has been in the ownership of the appellants since 1962.  The application for the licence was made on 30th November, 1990.  The appellants hold no other waterworks licence in respect of this lot.
                  The property immediately across Swan Creek from the subject property is owned by Carey.  On that property the Glengallan Shire Council holds a bore licence which was drilled in May 1986.  The purpose of the bore is to augment the supply of water to the township of Yangan from other bores.  A bore (or other bores) for like purposes is located on land adjoining the south-western area of the subject property near the Killarney-Yangan Road crossing of Swan Creek.  At this point the alluvium bordering the creek is narrow and it continues in that manner into the subject block and Carey's block before spreading out and extending to within about 250 metres of the apex of the subject lot.  A radius of 500 metres from the bore site at the road crossing takes in close to half the subject property and the whole of the narrow section of the alluvium.  A radius of 500 metres from the bore on Carey's block extends to within about 400 metres of the apex of the lot and covers the bulk of the broad section of the alluvium.  The combined effect leaves a small triangular area of alluvium unaffected by that restriction but within the boundary restrictions.
Mr Wallace is a councillor on the Glengallan Shire Council. He is aware of the nature of the water supply for the town of Yangan and he accepts that the town is expected to grow and that with growth it is prudent for the Council to consolidate its reserves of water, so much so that in 1988 he offered to assist by inviting the Council to look at Lot 2 as a potential site for a bore. The offer was accepted and permission to drill upon Lot 2 and Carey's land was given in writing by both owners. A number of holes were drilled on the subject land. Site W1 was selected as the preferred site and classified as worthy of further investigation. Site W1 is about 200 metres from the shire bore on Carey's land. The application to drill was received by the District Engineer of the Water Resources Commission on 31st October, 1990. One objection was received but was subsequently withdrawn. The applicants did not submit an objection. The application, however, has not been processed as the Council does not have legal ownership or occupancy of the land on which the bore is to be constructed. The application for the subject licence was made a month later (30th November, 1990). The position between the Council and the applicants as to the grant or sale of some form of title over site W1 has not been resolved (prima facie, the invitation could be regarded as negated by the subsequent application) and needs no further comment for my purposes as the issue must turn on the question of rights existing in law under the Water Resources Act at the date of application and the attitude which should be taken to the protection of those rights, including the rights of the appellants, having regard to the powers and duties vested in and imposed upon the Commissioner under the Act. Primarily these duties involve an inquiry into -

(i)the availability and sufficiency of water to satisfy the requirements of -

(A)     licensees;
                          and
                  (B)     the applicant;

(ii)the effect that the granting of the application will have or is likely to have on the requirements of owners of neighbouring land and licensees;  (s4.18(1)b).

The duty imposed upon the Commissioner to have regard to the requirements of existing lawful users of water abstracted from underground strata is one which is common to English legislation (See Halsbury's Laws of England, 4th Edition, Volume 49, para 505 et seq.).  These inquiry provisions and the right of objection and appeal which were found in s.12 of the former Act in respect of water other than underground water and are repeated in substance in the present Act in respect of both underground water and water other than underground water were considered by the Court in Re: Appeals by Shooter and Ors v. The Commissioner of Irrigation and Water Supply (1972) 39 C.L.L.R. 11 where at pp. 17/18, the learned Member, Mr Dodds, said -

"To me there is no suggestion in these provisions that the Legislature is simply concerned with over-appropriation so much as with ensuring that each applicant is fully considered, with the balances held fairly, and adjusted equitably as between the applicant and other riparian owners who may be affected.  The fact that the Legislature has insisted so strongly on the rights of both applicant and any objector to be heard, and has spelled out so carefully the appeal provisions, suggest strongly that it is the rights of each individual to establish a claim to some water and each licensee to object, that is its chief concern.  "

Mr Wallace is aware and has been aware for some 20 years of the boundary restrictions.  He was not aware of the policy restrictions on town bores.  This restriction, as explained by Mr D.J. Smith, Senior Technical Officer (Drilling) in the employ of the respondent, is necessary when it is considered that theoretically a town bore could be pumping 24 hours a day on a year round basis and thus differs from usage of an irrigation bore which is cyclic and seasonally influenced.  The policy makes as much sense as the former in ensuring that neighbours' rights are not significantly interfered with.  An indication of effects can be drawn from tests done by the Commission in 1986 on the town bore on Carey's block and an observation bore sunk 29 metres distant therefrom, which, given the assumptions which are commonly made, produced interference effects in distance, percentage and drop in water level calculated as follows:

Distance            Effect       Drop - Metres             
       in metres              %

50  32.4                0.86

100  23.4                0.62

200  14.7                0.39

300   9.8                0.26

400   6.8                0.18

500   4.5                0.13

The effect at 500 metres on these figures is regarded as negligible. 
                  Mr Wallace has also drilled for likely sites.  Site X2 (practically on the north-eastern boundary) which was unsuccessful is near the 500 metre limit but not within the body of the alluvium area free of the 500 metre restriction.  The site he prefers on his investigations is about 70 metres from site W1.  This site is outside the 500 metre limit from the bore at the Swan Creek road crossing but well within the 500 metre limit in respect of the town bore on Carey's block.
                  Only the one objection was lodged in respect of the subject application.  This was lodged by the Glengallan Shire Council.  According to Mr Smith the objection basically concerns a desire by the Council to consolidate its existing and potential ground water supply source in the vicinity of the Yangan township.  Following that evidence he said:

"Whilst the Council does not raise specific objection to the allocation being sought or the likely site proposed for drilling by the applicants, it nevertheless sees the proposal as a threat to its existing and future water supply investments and interests.   "

He confirms that the policy of boundary clearances has been in place for about 20 years and says that the 500 metre policy applying in respect of Council water bores has been in operation since 1984-85.  However, he accepts that there are circumstances when some relaxation of the limits may be justified.  In his evidence (attachment 7) there are some seven circumstances listed as examples where relaxation may be granted.  For instance, where ground water is proven to be only available closer to the boundary.  In that case and basically with all relaxations, agreement in writing is required from the property owner who may be affected.  The essence of his evidence in this particular case is that the risk of interference is real and that "it would not be in the applicants' nor the objector's interest to have competing production bores in reasonably close proximity, certainly when a number of involved bores provide reticulation town supplies".
                  Under the Act (s.4.26(4)) the onus is on the applicant to prove the grounds of the appeal.  The appeal has been contested on the ground that with the distance requirements it would be impossible to obtain water.  There is no dispute as to the sense of such requirements.  There also appears to be no dispute that if water is to be obtained it could only be obtained within the area of the alluvium.  However, that part of the alluvium free of the restrictions imposed by the licence has not been test drilled and thus it could not be held that water was not obtainable though there may be some probability that this may be so.  Even were that the case it would not necessarily follow that the appellants should be successful.  As owners, they have the right to make the application.  Success or failure of the application will depend upon many factors, one of which is whether approval of the application with lesser distance requirements would significantly interfere with rights lawfully granted by the Commissioner.  In this case the Council bores, more particularly the bore on Carey's block, are those the subject of this consideration.  In the absence of proof that water is not obtainable outside the restricted areas, I am unable to allow the appeal.  I could not allow the appeal and vary the relevant condition by substituting some arbitrary distance (in either case) for the degree of interference is governed by distance.  If the site preferred by the appellants is taken as the actual site, the degree of interference could be of the order of 10% to 15%.  In the opinion of Mr Smith, for Council bores, this is of significance.  Of all the circumstances contained in attachment 7 where relaxations may be justified, two may be relevant in this case, being the one cited previously and the other being "where mutual agreement has been reached between the licence applicant and his neighbour to relax the rules".  These avenues have not been explored by the appellants.  The avenue remains open under condition 1.0713 and is not adverse to the thinking of Mr Smith, subject to the qualification that the applicants should first test the alluvium area in the triangle outside the existing limits.  In applying the principles contained in the Act to the evidence before me, I must dismiss the appeal.
                  Accordingly the appeal is dismissed and the decision of the Commissioner is affirmed.

Member of the Land Court