Watson v The Commissioner of Water Resources; Jago v The Commissioner of Water Resources

[1991] QLC 16

[1991] QLC 16

 

  LAND COURT,

BRISBANE.

27th June, 1991.

Re:     Appeals under Section 4.26 of the Water
  Resources Act 1989 -
  A91-14 and A91-15.

J.J. and P.M. Watson
  v.
  The Commissioner of Water Resources  (A91-14)

and

A.F. Jago
  v.
  The Commissioner of Water Resources  (A91-15)

D E C I S I O N

These appeals are against the decision of the Commissioner of Water Resources to grant waterworks licences no. 50575, 50576, 50577, 50586 and 50587 on 21st December, 1990 to landowners whose various properties are riparian to a tributary of the Tully River (Roper Creek) for Drainage purposes.  Details are:-

Licence No. 50575  -  Lot 4 on RP 708353, Parish of Rockingham - Owners C., R., L., P.G. and J. Borgna.

Licence No. 50576  -  Lot 11 on RP 720390, Parish of Rockingham - Owners N. and S. Lomonoco.

Licence No. 50577 -  Lot 10 on RP 720390, Parish of Rockingham - Owners C.D and C. Tarditi.

Licence No. 50586  -  Lot 2 on RP 732284, Parish of Rockingham - Owner E.S. Vipiana.

Licence No. 50587  - Lot 74 on RP 710131, Parish of Rockingham - Owner Tully Sugar Ltd.

The appellants' properties are also riparian to Roper Creek and are described as:

A91-14-  J.J. and P.M. Watson - Lot 1 on RP 712342 and Lot 1 on RP 741623, Parish of Rockingham.

A91-15-  A.E. Jago - Lot 3 on RP 713588, Lot 1 on RP 718462, Lot 2 on RP 741623 and Lot 2 on RP 711685, Parish of Rockingham.

The work authorised by the Licences was the diversion of the watercourse via a channel with dimensions set out in the respective licences.  The length of the channel authorised for each property is:-

Borgna- 1600 metres

Lomonoco- 1250 metres

Tarditi  - 300 metres

Vipiana-  820 metres

Tully Sugar Ltd - 500 metres

Now the grounds of appeal as contained within the respective notice of appeal are identical and read -

1.No proper consideration has been given to the possible and probable damage likely to be caused to my lands in consequence of the opening up and/or widening of Roper Creek further upstream from my property.  Particulars of my objection were lodged with the Water Resources Commission under cover of letter dated 20th November, 1990, a copy of which is annexed.

2.In order to properly assess the possible affect upon my property the said Commission has failed to undertake detailed study of the Roper Creek catchment and drainage areas so as to give proper consideration to my objections.

The cases were heard at Tully on 31st May, 1991 and were taken together.  Appellants Watson were legally represented - appellant Jago conducted his own case.  I propose to deliver a joint decision as most of the evidence and submissions have a common thread.
                  Evidence was given on behalf of the appellants Watson by James William Woods who is the manager of the appellants' cane farm which is situated in Syndicate Road, Tully adjacent to the Tully River and Roper Creek.  Mr Woods produced a cane assignment map of the Watson property upon which he superimposed the location of the Tully River and Roper Creek which runs the whole of the eastern boundary.  This map also shows surface elevation markers and 1990 floodwater markers which were obtained from the measurements taken by the Water Resources Commission.  Also marked on the map is a major internal drain through the farm which connects with Roper Creek and which Mr Woods suggests, will be deleteriously affected by the drainage system.  Mr Woods also marked on the plan the course of floodwaters across the cane farm which have in the past caused damage and which he suggests will be a greater source of damage to the farm in the event that the proposed drainage system in implemented. 
                  Mr Woods has lived on the Watson cane farm for three years and has observed the flow of flood waters and erosion damage which has occurred to the affected paddocks when cultivated but not settled.  Mr Woods says that a further source of damage is loss of both crop, plants and arable land by an increase in the water table or water affected low areas by virtue of an anticipated increase in height of the water level in Roper Creek if the scheme is implemented.. 
                  Mr Woods believes it is the intention as part of the drainage scheme to remove or thin the dense vegetation on the Roper Creek banks adjacent to the Watson farm lands.  His concern is that any interference with the vegetation around the creek, especially because of an anticipated substantially greater water volume, will have the affect of causing major erosion problems on the farm especially in times of flood with anticipated erosion damage to cane paddocks and the creek banks in bends of the creek.  Mr Woods and the appellants are of the opinion that the greater volume of water at flood time will cause damage to and loss of cane stools and crop by reason that the added volume of floodwater may take additional days to clear cane paddocks.  Mr Woods is aware that it is not proposed to carry out any work on the creek bank along side the Watson farm, only to remove the obstacles in the flow of the creek such as small trees.  Mr Woods says that it is not the intention of the Watsons to join in the drainage scheme and acknowledges that if these appeals are unsuccessful, then the carrying out of the scheme and the accompanying works cannot be achieved unless the Watsons agree to certain works in Roper Creek.  Mr Woods is aware that the Cardwell Shire River Improvement Trust has the power to carry out certain improvement works in Roper Creek if it thought it was necessary.
                  Mr Woods submits that the Watson family will not benefit from the proposed drainage scheme but moreover their farm will suffer additional damage and loss, the precise nature of which will depend entirely on the flow of water from year to year.  Apart from these considerations, which are beyond him, there is extra time the additional water will take to drain out of Roper Creek and the Tully River. 
                  Alfred Edward Jago's cane farm is also on the Tully River and Roper Creek.  Mr Jago submits that Roper Creek is a winding watercourse with a capacity to carry a specific amount of water and he also sees problems in the Creek if the Drainage Scheme is implemented.  Mr Jago says that he does not have the problem of water lodging on his farm as do the Watsons, but he is concerned that the anticipated rising volume of water in the creek will cause bank erosion on the curves in the creek just as has happened in the Tully River.  Mr Jago believes the scheme will benefit the licensees whose properties are all upstream from his property and the Watson property, but will cause greater erosion downstream where the farm is situated.  He is in sympathy with the licensees and understands their desire to implement the scheme so as to improve their farm drainage, but says he cannot participate in a scheme which will be detrimental to his property.  Mr Jago also acknowledges that for the scheme to be implemented certain works including the removal of certain obstacles in the creek near his property would be necessary but he too is reluctant to agree to works being undertaken in Roper Creek.
Bruce Percy Gaydon was called in evidence by the respondent Commission. Mr Gaydon is an engineer employed by the respondent for over 12 years and for the last 5 years has been district engineer at Innisfail. Mr Gaydon told the Court that a drainage scheme at Roper Creek had been proposed for over 10 years, intended to be established eventually under Section 9 of the Water Resources Act as a Statutory Drainage Board. However the current and more immediate attention of the concerned landholders in general has been to facilitate the commencement of the drainage improvements through the issue of water works licences and to finance the drainage improvements through voluntary funding. Much of the area is cane land which has been established on previously naturally swampy land. Adequate drainage is therefore required for successful farming. Although many of the farms already have systems of drains, Mr Gaydon says the present condition of Roper Creek does not allow the timely removal of water from the cultivated areas. He further says that poor drainage is therefore a continuing problem which has actually worsened during recent years with the improvement of drainage on lands in the upper part of the Roper Creek catchment.
                  Mr Gaydon told the Court that renewed interest in the drainage proposal appeared in late 1989.  A series of landholders meetings was held during 1990 to discuss the drainage area proposal which met with acceptance of a majority of landholders within the area.  The main opponents were the landholders at the southern end of the drainage scheme i.e. the Watsons and Mr Jago.  Their properties abut the section of Roper Creek where it passes through the natural levy on the left bank of the Tully River.  Mr Gaydon says that this section of Roper Creek remains virtually in its undisturbed original condition in that it is a deep winding watercourse with steep well vegetated lands.  In addition it is not regularly maintained so that numerous obstructions to flow exist, consisting of fallen timber or trees growing in the middle of the creek bed with associated accumulation of debris.  Mr Gaydon met with Mr Jim Watson and Mr Woods on the farm in October,1990 to discuss their concerns about the scheme.  He agreed with them that interference to the bed and banks of the watercourse alongside their property would destabilise the steep banks and further that mechanical maintenance would be difficult in that area because of problems of access into the watercourse and prospect of bank damage.  Mr Gaydon reminded them that only the clearing of obstructions was needed in their section of Roper Creek, not changes to the bed or banks.  In discussion about their concerns in relation to increased flooding problems resulting from the proposed works upstream, Mr Gaydon emphasised that the intent was not to build a floodway through the farms but a system to allow residual drainage of the farms.  It was agreed that the floodwater levels in the Tully River and flood overflows from nearby Jarra Creek were major sources of flooding problems in the area and that no drainage could occur until the Tully River dropped.  Mr Gaydon says that the present problem is that water is being held on the farms even after the River has dropped. 
                  Mr Gaydon indicated that several landholders made applications for waterworks licences to improve the sections of Roper Creek on their respective properties as a means of facilitating drainage works.  Works needed on these properties would necessitate desilting, reshaping and deepening when required.  It was not proposed that the appellants' properties be included in this action as no changes to the bed or banks of the watercourse were proposed in that location. 
                  The Water Resources Commission has prepared a drainage design the basis of which being that which has been commonly used by the Water Resources Commission for the Statutory Drainage schemes in the wet tropics.  The proposed drainage improvements which were the subject of the applications represented a drain flow capacity which is only 50% of that proposed in the original Commission design.
                  Mr Gaydon is of the view that beneficial drainage could be achieved with careful planning with any drainage improvements made needing to be of a standard which is consistent and achievable to the downstream extent of Roper Creek.  This would ensure that upstream drainage improvements did not simply dump additional water onto the lower appellants' land.
                  After making all the necessary investigations Mr Gaydon came to the conclusion that it was appropriate to issue the five licences under appeal with the following additional terms:-

2.013aWorks undertaken in accordance with this license shall only be performed in conjunction with, or subsequent to, corresponding improvement works being performed along the entire section of this watercourse downstream to the Tully River.  Such corresponding works being authorised by a Waterworks license or by the Cardwell Shire River Improvement Trust.

2.013bThe works shall be constructed according to bed level provided by officers of the Water Resources Commission.

Mr Gaydon submits that these additional conditions effectively prevent the licensees from constructing the proposed works until downstream properties are included in the drainage effort and the Commissioner has subsequently assessed the degree of drainage improvement that can take place upstream of the appellants' properties and modified the drainage scheme accordingly. 
                  The Cardwell Shire River Improvement Trust, through its power to undertake improvement works in rivers and watercourses, is able to authorise the objectors to clear the obstructions from their sections of Roper Creek at a future time.  This would be an alternative to the waterworks licences for these downstream sections. 
                  Mr Gaydon is of the view that the inclusion of the two additional terms in each of the licences effectively addresses the concerns of the appellants raised in Ground 1 in their respective notices of appeal.  He confirms that the Commission has undertaken a detailed study of Roper Creek catchment and drainage areas including a ground survey of Roper Creek and its major tributary for much of their lengths.  He says there has been an assessment of the catchment areas, calculations of proposed drain capacities and drain dimensions, consideration of flood heights in the adjacent Tully River and Jarra Creek, onsite interviews with numerous landholders including the appellants, and an inspection by boat of the lower section of Roper Creek (adjacent to the appellants' land) to observe the condition of the watercourse and photograph obstructions, and several landholder meetings during 1990 to discuss proposals and the landowners views.
                  Mr Gaydon tendered in evidence details of the design summary for the proposed West Syndicate Drainage area.  Much of the information contained therein is technical.  It includes the suggestion that the bottom end of the scheme below Syndicate Road (subject farm area) consists of 1.4 kilometres of natural water course which only needs a good clean.  The section of the scheme upstream of the main junction on Lomonoco's property contains the first system of drains but needs a good drainage outlet. The Section in between, a 3.4 kilometre length to Lomonoco's drain junction required considerable earthworks with depths of cut up to 1.7 metres and would account for 75% of the total estimated earthworks volume for this design of 37,500 m³.  The drain in this section would be 5 metres wide in the bed and over 2 metres deep.  He says that discussions relating to the concerns of downstream landholders suggested a reduction in design drain capacities, and that this reduction was achieved by limiting the design bed width to 2 metres, thus reducing the design  capacity by 50%. 
                  Mr Gaydon too recognises that if the Watsons and Mr Jago do not co-operate, the scheme cannot go on under the terms of the licences.  There would be inadequate output within Roper creek adjacent to their properties without some works being carried out in that creek at that situation.  It needs a co-ordinated effort by all riparian owners along Roper Creek.  The alternative to the installation of the scheme would be that a continued number of farmers in that area would continue to suffer losses of sugar production.  He believes that the Watson and Jago farms would be better off in terms of drainage if they cooperated with the licensees.  In his opinion there would be no extra flooding and the resultant small volume increase in water flowing down Roper Creek would not be of significance compared with that which flows down Jarra Creek and the Tully River.  Mr Gaydon does not believe there would be increased erosion due to extra flooding in that section of the Creek.  The vegetation would be maintained on the creek banks and there would be no appreciable increase in the velocity of flood water. 
                  Mr Gaydon expressed the opinion that Mr Jago should have no justifiable concern that he is going to be "washed away" should the scheme proceed, as a major proportion of the water would be back up water.  He believes that flood, damage would be caused if the obstructions in the creek at the appellants property locations were not removed.
Mr Gaydon is Chairman of the Cardwell Shire River Improvement Trust. He says that with respect to drainage issues in the area, the River Improvement Trust could in theory have just moved in and cleared up the problem. However Mr Gaydon informed the Court that the policy of the Trust for such works has been basically a reactive policy where landholders advise the Trust of a specific problem, and the Trust responds to that. In other areas where the Trust has taken a pro active role it has been in much larger streams such as the Tully River or the Murray River where there is a much wider community benefit involved. For this proposed scheme, the method used for its development was by the issue of licences under Water Resources Act rather than the use of a statutory drainage scheme under Section 9 of that Act. Mr Gaydon said that the present policy of the River Improvement Trust is not to become involved when waterworks are proposed under licences.
                  Now I can readily appreciate the concerns expressed by both appellants in these cases but I must say that I am led to a finding that additional damage to their farms through anticipated additional flooding after the implementation of the drainage scheme as a whole seems unlikely.  The Watson farm is already in part flood and erosion prone, and it is the threatened additional flooding which is of concern to them.  I say I am led to this conclusion since I have the evidence of Mr Gaydon who is the only expert who expressed an opinion on the point, and he was emphatic that no additional damage from either flooding or erosion would occur, providing of course, that access is gained to the creek to remove the obstructions to improve the flow in that Creek.  Now whether the appellants join in and cooperate with the licensees is a matter for them - these appeals are against the issue of licences to other landholders for the intended scheme.  But I am at a loss to understand why the condition that the authorisation by the Cardwell Shire River Improvement Trust for the corresponding works required has been inserted in the licences, since Mr Gaydon (its Chairman) indicated that it is unlikely that the Trust would become involved when the drainage work is authorised by waterworks licences.  It may be that it is intended that the Trust may take a stand against the appellants if they do not cooperate with the licensees in the carrying out of the drainage works, but this is against the present policy of the Trust.  I feel that that condition could be seen to be intimidatory to the appellants in the present cases, although I am sure it was never intended to so be.                 On my appreciation of the evidence, I find that the onus resting upon the appellants in so far as it is for them to satisfy the Court that the decision of the Commissioner to issue the licences should be revoked has not been discharged.  I confirm that the licences are to remain as issued but varied in that the Special Condition 2.013a be amended to exclude the requirement of authorisation by the Cardwell Shire River Improvement Trust as follows:-

"Works undertaken in accordance with this license shall only be performed in conjunction with, or subsequent to, corresponding improvement works being performed along the entire section of this watercourse downstream to the Tully River.  Such corresponding works being authorised by a Waterworks" license.

(C.H. Carter)      

Member of the Land Court.