White & Klijn v Chief Executive, Department of Natural Resources
[1998] QLC 108
•25 September 1998
|
BRISBANE
25 SEPTEMBER 1998
Re: Appeal under Section 51 of the Water
Resources Act 1989 -
A96-48
John D White and Anne C Klijn
Appellants
v.
Chief Executive, Department of Natural Resources
Respondent
D E C I S I O N
"Mt Hope" Station is located about 200 km south of Charters Towers and is owned by AR and P Wallace who are developing a cotton irrigation project on their property. "Mt Hope" fronts the Suttor River about 50 km upstream of the Burdekin Falls Dam storage. The Wallaces had an existing licence to pump water from the Suttor River (Licence No. 45019 authorising a 100 mm centrifugal pump for irrigation of 50 ha), however, for the purposes of their cotton project, made application for a further four pump licences and for the construction of a weir in the Suttor River. The application for the weir licence was lodged jointly with the Ashton Cattle Company which owns "Illamatha" Station which also enjoys frontage to the Suttor River. The applications were lodged with the Chief Executive on 18 September 1995 and comprised the following:
Application Details Purpose 96640 650 mm MFV Pump Irrigation and Water Harvesting 96641 650 mm MFV Pump Irrigation and Water Harvesting 96642 650 mm MFV Pump Irrigation and Water Harvesting 96643 650 mm MFV Pump Irrigation and Water Harvesting 96644 3 m high weir Irrigation
For the purposes of clarity I will refer collectively to Application 96640 to 96643 inclusive as the "pump licences", or similar and 96644 as the "weir licence", or similar.
It was proposed that all works would be located on the Suttor River and that water would be harvested to off-stream storage generally and irrigation of 1,000 ha of cotton would be facilitated. It was proposed that the licences would be used together as part of a single scheme of water harvesting and irrigation. A report tendered to the Court through Glen Russell Griffin, Senior Technical Officer employed by the respondent, set out the procedures and investigations undertaken by the Chief Executive in response to the applications. I do not intend detailing all of those actions here, however, should record that in my view the Chief Executive has satisfied the requirements of s.43 of the Water Resources Act 1989 which sets out the inquiries that need to be undertaken. In addition I note that s.41 of the Statute has also been satisfied with regard to the publishing of notices and the receipt and consideration of objections. Four objections were received by the Chief Executive with respect to the applications and Mr Griffin records that the main concerns raised were involved with the impact on stock water supplies and on pumping opportunities for existing downstream licences. Only one of the objections matured into an appeal and that was the objection by John Daniel White and Anne Colleen Klijn, joint owners of "St Anns" and "Hanging Rock" Stations, properties located downstream from "Mt Hope". Mr White appeared in support of the appeal and gave evidence before me. For convenience I will refer to the appeal as if in the name of Mr White only, however, the heading to this decision clearly indicates that it was made jointly. I use the singular "appeal" as only one appeal document was lodged with respect to all of the licences, however, I should make it clear that technically there are five separate appeals. Some attempt was made by Mr White to deal with the issues concerning the pump licences and the weir licences separately, and I take notice of that, but there was, to some extent, a blending of the arguments. For simplicity I will refer to the singular "appeal".
Mr Griffin records that Mr White's grounds for objection were related to water quality and to concern about security of beneficial flooding downstream. I will deal with the second of these issues in some detail later in these reasons, however, should record that the water quality objection was not pursued in the appeal before me. This may well be because of a requirement imposed by the Chief Executive that an environmental management plan (EMP) be provided as a condition of the pump licences directed to ensuring that the risk of discharging pesticide, herbicide or nutrient contaminated waters from the cotton-growing project is minimised, as well as other objectives. I have set out the terms of the pump and weir licences later in these reasons. The requirement for the EMP appears as Term SPEC 06 in the pump licences.
During the investigations by the Chief Executive of the applications and prior to the grant of the licences, the applicants constructed the weir to the full height and dimensions desired by them. The Chief Executive's officers became aware of this and informed the applicants that the construction was unlawful. The fact that works were constructed without the benefit of the appropriate licence issued under the Act is not a matter which has any legal impact on the capacity of the Chief Executive to issue the requested licences, nor on the jurisdiction of this Court to either confirm the licences as issued or as modified in some way as an outcome of these appeal proceedings.
Subsequent to the construction of the weir there were two events took place which are relevant to these proceedings. The first of these related to a flow in the river in June 1996 and to which Mr White referred as providing evidence which supports his contention that beneficial flooding downstream would be deleteriously affected by the presence of a weir of the type and dimensions finally licensed by the Chief Executive. I will come to the details of that matter in due course. The second event related to a rainfall event which took place in October 1996 and which caused the weir to partially fail. The result of that was that the weir crest was eroded to the extent that water overflows the weir at a level only a few centimetres above the overflow level stipulated in the licence term, that is a level of 1.2 metres above bed level.
I have already mentioned that the application was for a weir with a height of 3 metres. The applicants were advised by the Chief Executive that for such a weir to be constructed suitable engineers' certification would be needed, whereas a weir with a maximum water height of 1.2 metres would not require such certification. By arrangement between the applicant and the Chief Executive, it was agreed that the weir would be constructed to allow a water depth of 1.2 metres only. Given this and the fact of the appeal by Mr White, the Wallaces have not carried out further construction works on the weir to repair that part eroded away, nor to reinstate the weir to its original higher level or to the licensed level of 1.2 metres. It was considered a practical approach by both the licensees and the Chief Executive that, in the circumstances, any such works await the outcome of this appeal in order that there not be redundant expenditure and that any conditions requiring further expenditure following from this Court's consideration of this matter be dealt with at the same time that the repair works are carried out. I think this is an eminently reasonable approach.
In order that some of the evidence that I will shortly make reference to is understood, it will be useful if I point out the relevant features as the Suttor River flows from south to north. "Mt Hope" is located on the western bank of the river, a short distance below the junction of the Belyando and Suttor Rivers. "Illamatha" Station is to be found opposite "Mt Hope" on the eastern side of the river. Further downstream the Yan Dan Mine is to be found on the eastern side of the river, whilst the next important feature is the St Anns Gauging Station located a little further downstream again. The Packsaddle Waterhole is below the "St Anns" on the eastern side of the river, whilst Blackwater Lagoon is on the western side and a little further away from the river than the Packsaddle Hole. Scartwater Crossing is further downstream again and is the last feature on or near the river which enters into the story as related to me. "St Anns" Station held by Mr White is, naturally, found located near the St Anns Gauging Station and whilst Mr White's major concern was with respect to beneficial flooding downstream of the licensed weir, including flooding which would benefit his property, there were other matters raised in the appeal to which I should refer. Before doing this, however, I will complete the chronology by making reference to the fact that the requested licences issued on 16 August 1996 and the existing irrigation pump licence was amended to make it consistent with the other licences.
The licences were issued to expire on 30 November 1997 and included the following terms for the pump licences, though it will be noted that SPEC 04 varies with regard to its reference to other licences numbers depending upon the licence concerned. I have produced in bold type the terms which are the most pertinent to this appeal and which, when read together, provide a sense of the structure within which the water flow and storage was intended to be managed."1.001A The licensee shall install the work for which the licence is granted within two (2) years from the date of grant of the licence.
1.002AThe licensee, after installing the work, shall to the satisfaction of the Chief Executive beneficially use the water which is entitled to be diverted under this licence.
1.003AThe licensee shall notify the Chief Executive immediately of any change or divestment of interest in the land whereon the licensed work is constructed or proposed to be constructed or on which the water is used or proposed to be used.
1.004AThe holder of this licence shall pay such fees and charges as are determined by the Chief Executive from time to time. Such fees and charges being payable at any place specified by the Chief Executive, on the due date and must be paid within 30 days of the date of issue of the invoice.
1.011A meter of a type approved by the Chief Executive to record the volume of water passing through the licensed work, shall be purchased and installed at the licensee's expense. The meter, upon being installed, shall become the property of the Chief Executive who may remove it at any time.
The licensee shall not remove the meter for any reason without the written approval of the Chief Executive nor shall the licensee take any action which results in the meter failing to register correctly the volume of water diverted by means of the licensed work.
The licensee shall not take water under the authority of this licence until an approved type of meter to record the volume of water passing through the licensed work has been installed.
1.014The licensee shall record the water meter reading, date and time at the beginning and end of any pumping period and shall notify the Department's office at Ayr on the day when pumping ceases of the dates and times upon which pumping is commenced and finished and the meter readings in each case. Such records shall be made available immediately upon request to any Department officer.
1.018Where the Chief Executive has reason to doubt the accuracy of the meter reading, he may calculate the volume of water diverted by any means that he deems appropriate.
1.036Diversion of water under the authority of this licence is permitted only when the surface flow exceeds 170 cubic metres per second at the Department's gauge station at St Anns or at such other times as the Chief Executive or his district representative may permit.
1.080Water may be diverted directly onto the ground or held in storage for later use.
1.081The total combined capacity of the pump authorised by this licence and any other licensed pump used by the licensee for waterharvesting on this watercourse shall not exceed 5.6 cubic metres/second unless otherwise specified.
1.099Notwithstanding the above terms, diversion of water shall not commence unless permission to waterharvest has been notified by the Chief Executive or his district representative.
1.210Notwithstanding the above terms the Chief Executive or his district representative may suspend or prohibit diversion if in his opinion it is necessary to do so to protect the interests of downstream proprietors or may allow diversion to commence at a lower level and/or continue beyond the period normally permitted.
SPEC01Notwithstanding Terms 1.036 and 1.210, permission to pump at a lower flow level than 170 cubic metres per second will not be given unless all the following apply:
1. There is continuous flow from the pumpsite to the storage of Burdekin Falls Dam; and
2. There is a flow of 30 cubic metres per second at St Anns gauging station; and
3. In excess of 500,000 megalitres has passed St Anns gauging station in the preceding 12 months, or the Burdekin Falls Dam is full from other sources; and
4. The Burdekin Falls Dam is storing more than 1,000,000 Megalitres (54% of Stage 1 capacity); and
5. Irrigators in the Burdekin River Irrigation Area are not on less than 100% announced allocation; and
6. Pumping will not adversely affect beneficial flooding on properties downstream to the Burdekin Falls Dam.
SPEC02Notwithstanding the above terms, diversion of water from the storage of the weir authorised by licence number 96644 is permitted provided that:
1. There is no flow into the storage;
2. The preceding flow event exceeded a rate at which waterharvesting is permitted under this licence; and
3. The storage level is not below the entrance to the outlet pipe on the weir.
SPEC03If required by the Chief Executive equipment of a type specified by the Chief Executive to monitor the operation of the licensed work and/or flows in the watercourse shall be purchased & installed at the licensee's expense within the time specified by the Chief Executive. The monitoring equipment, upon being installed, shall become the property of the Chief Executive who may remove it at any time. The licensee shall not remove the monitoring equipment for any reason without the written approval of the Chief Executive nor shall the licensee take any action which results in the monitoring equipment failing to operate correctly.
After being required to install monitoring equipment, the licensee shall not take water under the authority of this licence until such monitoring equipment as specified by the Chief Executive has been installed.
Examples of equipment which may be required under this term are:
1. Event recorder to record the times and duration of water passing through the work.
2. Recorder to record stream height during pump operation.
SPEC04This licence and licence numbers G-45019, G-96640, G-96641, G-96642 shall be used in conjunction and the maximum volume of water that may be diverted under the authority of these licences in any year shall be 6000 Megalitres.
A water year shall be from 1 July to 30 June.
The aggregate area irrigated under the authority of this Licence and Licence Numbers G-45019, G-96640, G-96641 and G-96642 shall not exceed 700 hectares.
SPEC05The Chief Executive may at any time review the maximum volume of water that may be diverted and the area authorised by this licence. Such review shall take into account history of water use and area developed for irrigation.
The licence may be amended to reduce the authorised area and volume following review.
SPEC06Prior to diversion of water the licensee shall submit to the Department a Farm Plan and an Environmental Management Plan (EMP) in respect of the irrigation project, to a standard approved by the Chief Executive.
The Farm Plan shall generally be in accordance with the Irrigation Association of Australia Limited - Design Guidelines - Whole Farm Planning for Irrigation.
The EMP shall set out measures to be taken to minimise the risk of discharge of pollutants from the irrigation area, and emergency procedures to be undertaken if discharge from the site is imminent or if discharge occurs."
The licence with respect to the weir was also issued on 14 August 1996 and expressed to expire on 30 November 1997 and included the following description of works as part of that licence:
"A ROCKFILL WEIR WITH THE FOLLOWING DIMENSIONS:
Crest Width.................................................... 3.0 m
Base Width................................................... 32.0 m
Height to Top.................................................. 2.4 m
Crest Length................................................. 50.0 m
Outlet Diameter........................................ 260.0 mm
Capacity.................................................. 100.0 ML
MAXIMUM SPILLWAY HEIGHT.............. 1.2 M (SEE TERM 3.011)
CONSTRUCTION: EARTH & ROCKFILL"
Terms of the weir licence are as follows:
"2.011The works authorised by this licence shall be constructed and maintained in accordance with plans and specifications approved by the Chief Executive.
3.001AThe licensee shall construct the work for which the licence is granted within two (2) years from the date of grant of the licence.
3.002AThe licensee shall carry out construction and maintenance of the work to the satisfaction of the Chief Executive.
3.003AThe works authorised by this licence shall not cause submergence of the property or works of any other landholder without the prior written approval of such landholder.
3.004AThe licensee shall notify the Chief Executive immediately of any change or divestment of interest in the land whereon the licensed work is constructed or proposed to be constructed or on which the water is used or proposed to be used.
3.005AIf there is a flow in the watercourse into the storage, water must be allowed to pass downstream of the storage through the outlet pipe or siphon pipe or over the bywash or spillway, or by any other means determined by the Chief Executive or an Authorised Officer at a rate equal to the unrestricted capacity of the outlet pipe or siphon pipe (with the downstream end of the pipe at bed level) or equal to the rate at which water is entering the storage, whichever is the lesser, or at such rate as may be determined by the Chief Executive or Authorised Officer. When directed by the Chief Executive the licensee shall install and maintain to the satisfaction of the Chief Executive approved flow measuring devices for the purpose of measuring flows entering and leaving the storage.
3.006AThe licensee shall maintain at his own cost the bed and banks of the watercourse adjacent to the works to the satisfaction of the Chief Executive.
3.007AThe holder of this licence shall pay such fees and charges as are determined by the Chief Executive from time to time. Such fees and charges being payable at any place specified by the Chief Executive, on the due date and must be paid within 30 days of the date of issue of the invoice.
3.011The spillway height of the authorised works is not to exceed EL 46.3 metres as determined from the Bench Mark indicated on the attached plan. The level of the Bench Mark, as installed, is EL 51.08 metres.
3.012The licensee must give to the Chief Executive in writing 30 days notice of his intention to commence construction of the licensed work.
SPEC01Granting of this licence does not give sole right to the use and control of water in the licensed storage. Licences may be granted in the future to other landholders adjoining the weir storage to authorise diversion of water.
SPEC02The joint licensees of the weir shall have equal rights to the use of water stored by the weir, subject to an appropriate pump licence.
SPEC03The weir authorised by this licence shall be constructed and maintained in accordance with the attached "Principles of Rock Ramp Fishway Design".
SPEC04An outlet pipe with a minimum internal diameter of 260mm shall be installed beneath the weir. The control valve on the outlet shall be maintained in a fully open position until a flow event has exceeded a rate, at St Anns Gauging Station, at which waterharvesting is permitted under the terms of pump licences on '"Mt Hope"', or until there is a continuous flow from the weir to the Burdekin Falls Dam. If a flow event does not meet the above criteria, the control valve must remain fully open to allow the storage to drain."
Each of the new pump licences recorded that the purpose of works was for "irrigation water harvesting" and that the area to be irrigated was 700 ha in total. Whilst the original application referred to an area of 1,000 ha, this was found to be in error in measurement and the smaller area was settled on. That area becomes relevant with respect to the amended terms of the pre-existing irrigation pump which was issued to irrigate 50 ha. That licence did not have terms restricting times at which the pump might operate so the Chief Executive amended the licence to include a special term to ensure that that licence did not allow drainage of the "dead storage" required to be retained under Condition SPEC 02 of the pump licences. The pre-existing irrigation pump licence was also amended to make it clear that the previously authorised 50 ha irrigation became part of the total 700 ha authorised under the new licences.
I will first of all consider those grounds of appeal which might be more easily dealt with. In his appeal, Mr White said that the licensee had "already demonstrated his complete disregard for the well-being of property owners downstream of the site of the already constructed … weir, in not letting the first flow in the river past that weir." This ground of appeal included requests that: one, monitoring equipment be installed to monitor the dates and times when pumping takes place and the water level in the river at all such times; and, two, "the right of property owners downstream from the pumps in question to enter the relevant area and inspect the pumps and monitoring equipment". With regard to this last-mentioned request I will respond by saying that this Court can neither authorise a trespass nor impose a condition which both runs the risk of interfering with the licensee's quiet enjoyment of his land nor grant to a section of the public the responsibility that ought to be discharged by the Chief Executive or his officers. It is, however, appropriate that monitoring equipment be installed and that there be a regime of recording appropriate data which would indicate the adherence of the licensee to the conditions of the licences. I note that Pump Licence Terms 1.011 and 1.014 require that a meter be installed and that the meter reading, time and date at the beginning and end of any pumping period be recorded. I refer also to Term SPEC 03. Importantly, Term 1.099 requires that the licensee obtain permission from the Chief Executive or his officers prior to the commencement of pumping. The information recorded by the licensee can easily be correlated from the flow records at the St Anns Gauging Station which is accessible by the Chief Executive's officers through a computer modem. It seems to me that the pump licences are adequately conditioned to ensure that appropriate policing is facilitated. No system of such a nature is foolproof and relies to some extent on trust and on a licensee adopting the view that to act outside the terms of the licences runs the risk of penalties being imposed including the cancellation of the licences. Mr White referred to breaches of licence conditions taking place on the Condamine River. Detailed evidence was not provided and I can understand why that would have been so, however, I cannot proceed on the basis of assuming that the Wallaces will foolishly act in breach of the terms of their licences, but can only consider whether the licences are appropriately conditioned to facilitate compliance. I have so found.
The comments that I have made above relate also to the ground of appeal mentioned with respect to the weir licence complaining of the same issue, that is the prospect of the licensee not adhering to the requirements of the weir licence relating to allowing downstream flow to take place.
Mr White included a ground of appeal against the weir licence in these terms "the Suttor and Belyando River system at present is a relatively pristine river system, and weirs constructed in the main channel can only lead to silting and consequent degradation of the system". That ground of appeal was not expressly pursued before me, however, Mr Griffin commented saying that there was no evidence to suggest that a small weir on the river system would generate a greater rate of siltation than any natural waterhole in the river.
Mr White raised the appeal ground that "the amount of 100 megalitres estimated to be stored in the weir, when it is reduced to its licensed size, is insignificant to the size of the project in question …", that is with respect to the 700 ha of cotton intended to be developed. Mr Griffin calculated that based on records Mr Wallace would, for 24 out of each 27 years, be able to harvest water from the weir to assist with cotton growing. Cotton growing is a relatively new venture in the area, having been carried out for only three seasons at the time of hearing of the matter, though it seemed to Mr Griffin that the water available would be of direct assistance in the cotton growing project. Nevertheless, he said it was for the licensees to make their own judgment as to the usefulness of the storage and as to whether it would be economically viable for the expenditure to take place. I do not understand Mr White's ground of appeal on this point to raise a question that I need to consider. It is not one that directly relates to the use of water, though impliedly suggests that either the water may be wasted or that the licensee may be inclined to harvest more water than the licences allow. My comments above concerning the prospect of the breach of licence conditions would equally apply here were that the inference that Mr White expected me to draw from this ground of appeal. I adopt a similar view with respect to Mr White's appeal ground which includes these words "… water harvesting licences should only be granted when adequate off-river storage facilities have been provided, adequate to fully service the project in question, so as to minimise the urge to abuse the system".
If I come now to two concerns of particular significance in Mr White's view. The first of these is found in his ground of appeal against the weir licence which says, "The granting of this licence must set a precedent for the granting of further such licences with the further consequent degradation of the systems." Mr White said in evidence that he was aware that there were a large number of applications for licences which had yet to be considered and he was concerned that a granting of licences in the instant case would result in further licences being granted and conditioned in a similar way.
I think it important that I make reference to the provisions of the Water Resources Act, and in particular draw attention to s.42 of that Statute which requires applications to be lodged with the Chief Executive for licences for such works as a pump or a weir and to s.43 which imposes upon the Chief Executive a very clear obligation as to the inquiries which must be undertaken by him in consideration of any such applications. Section 51 of the Act provides for an appeal to this Court and not only may an appellant take advantage of such an appeal process, but the presence of that right would tend to influence the Chief Executive's officers to ensure an appropriate level of diligence with regard to the inquiries needed to be undertaken and the professional skills and judgment needed to be applied with respect to applications. These statutory provisions make it very clear that each application needs to be considered independently and if this is not clear enough from a consideration of the Statute, let me express my view of the matter by saying that the outcome in this particular case would not be considered by me to be a precedent with respect to any other application which comes before me by way of appeal and relating to licences applied for on the Suttor River.
In his appeal Mr White complained that should the licensee be allowed to take from the system the 100 megalitres stored in the weir after the river ceases to flow, that amount of water would need to be replaced before the next flow would be allowed downstream. That ground appears to be based on a misunderstanding as it is quite clear that the 43 megalitres of dead storage is not allowed to be pumped out (see Pump Licence Term SPEC 02, No. 3). It is the upper 57 megalitres of storage only that can be pumped, however, even that must be released if it was stored from a low flow. In the event that the flow parameters included in the licence regime is adhered to, then extraction may take place, however, the 43 megalitres which would remain in the weir below the level of the output pipe can only be reduced by evaporation or by direct access from livestock.
Mr White included a ground of appeal which said that "the requirement for only a 260 mm pipe to be inserted in the weir to allow low flows through is totally inadequate … debris brought downstream in the first flows inevitably block the pipe". This ground of appeal was not pursued openly before me, however, Mr Griffin made the observation that the pipe outlet's only requirement is to pass the 57 megalitres of water stored above the pipe as the spillway to the weir would function to release water above the level of the outlet pipe. He also noted that under Term 2.011 relating to the licence weir there is a requirement that a trash screen on the inlet pipe is to be included. That term provided a reference to plans and specifications. The term would be more efficacious if there was also an obligation for the licensee to clear any blockages which occur and which unduly inhibit the release of water through the pipe downstream.
I will shortly deal with those parts of Mr White's appeal which dealt with the issue of beneficial flooding downstream. First, however, I wish to mention another matter that was raised during the hearing which I wish to dispose of briefly. Mr White mentioned that in the case of his property and the Yan Dan Mine, to mention but two, the method of extraction of water from the Suttor River took place by way of a diversion of water from the river to a sump which was then pumped out. In this way only water which reached the level of the sill to the diversion channel was taken from the stream and the water could then be harvested by pump. He suggested that this method was preferable to the construction of a weir. Mr Griffin pointed out that the sump technique is generally of most benefit where the licensee's pump site would, if located on the river bank, be at risk. Removing water to a sump through a diversion channel allows the pump site to be located much more securely. He said that in the case of the Wallace applications the pump sites were on a high bank and secure and that in any event he could see no need for the owners of "Mt Hope" to be put to the additional cost of installing works by use of the diversion channel and sump method.
I pursued Mr White's suggestion with some initial interest and requested Mr Grealy, Counsel for the respondent, to supply me with examples of such licences and the conditions which applied to them to assist me to further consider the matter. He did this and supplied a copy to Mr White, who has also made further submissions on the matter. I have considered those submissions and have concluded, in agreement with Mr Griffin, that as a practical question the comparison between the diversion channel and sump method and the weir method provide no advantage in the case of the "Mt Hope" property. More importantly, however, I consider that whilst it is appropriate for this Court to have regard to evidence of alternative means of addressing the water extraction or harvesting requirements of an applicant as a means of testing the significance of grounds of appeal raised, it is not appropriate for this Court to order that a different form of licence be granted by the Chief Executive. The applicant, in the case of the licences under consideration, has the right to have his applications considered on their merits and not displaced or substituted by a different form of licence involving different works which on one argument might appear to be at least as efficient and effective or arguably even more efficient or effective. The statute requires this Court is to consider whether the decision made by the Chief Executive to grant the licences the subject of the appeal is fair and reasonable, having regard to the statutory scheme of the Act.
I now come to the most significant matter in Mr White's appeal and that is expressed in this language with respect to the appeal regarding the pump licences:"It has not been demonstrated that a flow of 170 cubic metres per second at St Anns … is a flow sufficient to fill and flush both the waterholes known as Packsaddle and Blackwater Lagoon."
Now Blackwater Lagoon was selected by Mr White, not on the basis of its significance as a source of water, but rather as a benchmark against which the hydrological health of the Suttor River system could be measured. He drew no agreement from Mr Griffin that Blackwater Lagoon could be referred to in this way. Mr White's approach was to refer to two water flow events on the Suttor River which he says indicate that the intrusion of the weir would have a deleterious and substantial effect. He sought then to support the conclusions drawn from those two events by reference to the historical flow data relied upon very largely by Mr Griffin on behalf of the Chief Executive.
The first of these events related to a weir that the Yan Dan Mine proprietors had constructed in the river, but which was subsequently removed. Mr White related how in 1995 water was allowed to back up behind the Yan Dan Weir to a distance of about 11 km and then to flood overland to the west through channels which then directed the water back into the Suttor River main channel and down to the weir located at the St Anns Gauge. The water then backed up again, but did not flow out to the east to fill waterholes on that side. Now this example was intended to indicate the effect on water flow in the Suttor River in circumstances where a weir was allowed to back up a substantial body of water. Unfortunately, there was no evidence as to the dimensions of the Yan Dan Weir, the flow in the Suttor River at the time, nor the water flow patterns down the Suttor River before the particular event. In the absence of such evidence, reference to this particular event is of no assistance to me.
Mr White referred to a second event which took place in June 1996 and involved the weir constructed by the Wallaces following their application for the licences the subject of this appeal and prior to the grant of the weir licence. In that particular case water was held by the weir and was not allowed to flow downstream. According to Mr White, once the outlet pipe was opened under the directions of the officers of the Chief Executive, the water reached Llanarth, approximately 11 km downstream, three weeks after the pipe was opened, then Yan Dan Mine, a further 7 km downstream, one week after that. The flow did not reach the St Anns Gauge, though Mr White ventured the opinion that it would have done had the flow been allowed to take place naturally.
Mr Griffin was aware of the June 1996 event and made two important points concerning it. First, he noted that the event took place during one of the longer periods of no flow in the river and he supplied a graph showing flows in the river and which supported his contention. All indications are that the flow in question was a low flow and, whilst he did not directly dispute the suggestion from Mr White as to how far downstream it might have reached had it been allowed to flow freely, he also made the point that the flow was retained by the weir constructed to its original height of 3 metres and would have, had the spillway been constructed to a height of 1.2 metres only, allowed at least 400 megalitres of the flow to have travelled downstream to provide for all stock water needs. The important point is that when the Wallaces intercepted and retained the flow in June 1996, they had a weir which was substantially higher than that which was the subject of the eventual licence granted. Mr Griffin made reference to records at the gauging station at the Belyando Crossing which showed a 520 megalitre flow past that station over a period of days prior to the entrapment of water behind the higher weir constructed by the Wallaces. As I understand the operation of the pump and weir licences, it would clearly have been the case that had 43 megalitres of dead water only been retained behind the weir and had that amount of water been there prior to the flow event taking place, then substantially more than 400 megalitres would have been allowed to travel downstream.
Mr Griffin visited "Mt Hope" on the occasion of this June 1996 flow event and observed that a substantial volume of water had been trapped by the high level weir. He discussed the matter with Mr Wallace who said that he had trapped the water in an attempt to test the stability of the weir construction once the water overtopped it. Mr Wallace became aware that overtopping would not occur, so on his own account released the water downstream. Nevertheless, Mr Griffin issued a warning to Mr Wallace concerning the matter.
It follows that it would not be appropriate to draw a conclusion from the June 1996 event that the weir described in the weir licence with a spillway height of 1.2 metres would have performed in the same way as the much higher structure in place in June 1996. This brings me now to a consideration of the historical flow data.
There is no clear data indicating what stream discharge would be at the time when Blackwater Lagoon started to fill. Whilst carrying out his investigations in response to the licence applications, Mr Griffin had a discussion with Mr White concerning this matter as well as the filling of other lagoons. He also discussed the matter with Mr Pedracini from "Scartwater" as to what level the river would be for flow to go into the Scartwater Lagoon. There is a meteorological bureau flood warning gauge at "Scartwater" near the homestead and apparently Mr Pedracini was able to make reference to that in his discussions with Mr Griffin. Mr Griffin proceeded on the understanding that a flow of 3.6 metres at the Scartwater Bridge would be sufficient to allow water to enter the Scartwater Lagoon. Mr White had understood that a level of 3.15 metres would have been adequate to allow water to flow in, but that a level of 3.9 metres would be required to fill the lagoon. His adoption of 3.9 metres as against Mr Griffin's 3.6 metres was explained solely by reference to a December 1993 flow in the Suttor River of 2.04 metres at the St Anns Gauge, or 3.1 metres at "Scartwater" which was insufficient to fill the Scartwater Lagoon. Mr White had originally thought that Scartwater Lagoon had filled following the December 1993 flow, however, has received some information from the hydrology section of the Weather Bureau which raises the question of whether that was the case. I am not aware of that information, nor whether indeed Scartwater Lagoon did fill in December 1993. Nevertheless, Mr White's argument continues by saying that a 3.6 metre flow at "Scartwater" represents a flow rate of 140 m; per second and a water level of 2.22 metres at St Anns gauge. He notes, however, that Mr Griffin did not adopt 140 m; per second as the critical level, but built in a further 30 m; and included a term (Term 1.036) in the pump licences which provided for harvesting to take place only where flow exceeded 170 m; per second at St Anns gauge. At this higher rate of flow the water level at St Anns would be 2.39 metres, according to Mr White, and the addition of only 0.35 metres over the December 1993 event would not in his view supply a sufficient flow to both fill and flush out Blackwater Lagoon.
Notwithstanding this detailed argument, Mr White tellingly suggests that "there still appears considerable doubt at what level Blackwater Lagoon is filled. I suggest a competent and independent survey must be undertaken to ascertain that level, and then check it against the flow at the gauge station, while the river is flowing and Blackwater is filling." Now the nature of the jurisdiction exercised by this Court in an appeal of this nature is one which requires the appellant to make out his case and to adduce evidence sufficient to move the Court to grant the appeal. Generally speaking, this involves the appellant adducing particular evidence upon which the Court may draw a conclusion in support of the ground of appeal. Nevertheless, there may be circumstances where it is sufficient to raise a serious doubt concerning the matter in question. In order that I might consider whether such a doubt is raised, I need to consider the approach adopted by the Chief Executive in dealing with the issue concerned.
In this particular case Mr Griffin has, as I have said, initially carried out discussions with Mr White and Mr Pedracini concerning the level of water required to flow into the Scartwater Lagoon. That directed him at the outset to the adoption of 170 m; per second as being the minimum flow at which water harvesting could take place under the pump licences granted by the Chief Executive. Mr Griffin confirmed that the 170 m; per second was based on his appreciation that a stream discharge of approximately 140 m; per second would be needed to produce a gauge board reading of 3.6 metres at Scartwater Crossing. In other words, there was a substantial safety factor built into the need for the filling of downstream lagoons. Unfortunately, however, reliable evidence is simply unavailable to show what minimum river level is needed to fill Blackwater Lagoon which is also replenished from other sources.
I think the more important part of Mr Griffin's approach, however, is that he ascertained that a discharge rate of 170 m; per second at St Anns would take place at a stream height of 3.765 metres and that, for example, at a flow rate of 175.6 m; per second and with all of the licensed pumps in question operating and extracting 5.6 m; per second, the stream level would be reduced by approximately 30 millimetres only. Now this comes at the question of beneficial flooding differently from the less precise historical references made by Mr White, for it suggests quite clearly that a minimal difference in stream height such as this at the time that water is being harvested would have an insignificant impact on the capacity of beneficial downstream flooding.
My conclusion is that Mr White's evidence does raise a question as to whether indeed Blackwater Lagoon will fill and will flush as frequently after the grant of these licences as it has historically, however, on the balances it seems to me that that small doubt is insufficient to allow me to draw a conclusion that Mr Griffin's approach is without substantial merit. The probability is, following my consideration of both Mr White's arguments and the approach presented by Mr Griffin, that Blackwater Lagoon will not unduly suffer from the granting of these licences. Nevertheless, I notice that the licences are conditioned in such a way that the harvesting of water from the Suttor River by the Wallaces is subject in the end to permission being granted by the Chief Executive. In addition, I note that the Water Resources Act provides for amendment of a licence in (see s.44(2) and s.50(1)(b)).
It is my conclusion then that the appeals be not allowed. Nevertheless, I consider that certain changes should be made to the licences, both for the purposes of clarity and efficacy. Term SPEC 04 presently in the weir licence refers in a limited and selective way to the circumstances under which water harvesting might occur; and makes no reference to the height at which the outlet pipe should be located. I order therefore that Term SPEC 04, as presently included in Waterworks Licence No. 96644, be deleted and the following term be inserted in its place:"An outlet pipe with a minimum internal diameter of 260 millimetres shall be installed beneath the weir with the invert of the pipe being installed at a maximum elevation of 45.76 metres as determined from the benchmark shown on Drawing A4-A-3095 attached to this licence. The control valve on the outlet shall be maintained in a fully open position unless and until water harvesting is permitted under the terms of Licence Nos G96640, G96641, G96642 and G96643."
I also order that a term be included in the weir licence as follows:
" The licensee shall ensure that the outlet pipe remains free of any obstruction which may unduly inhibit the release of water downstream."
Liberty is granted to the parties to apply with respect to any refinements to these terms.
RP SCOTT
MEMBER OF THE LAND COURT
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