Wing v Chief Executive, Primary Industries Corporation; Gilbert v Chief Executive, Primary Industries Corporation
[1996] QLC 23
•15 March 1996
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BRISBANE
15 MARCH 1996
In the matter of an appeal under Section 51 of the Water Resources Act by Noel F and Nancy C Wing, the owners/occupiers of Lot 2 on RP 196574, Parish of Coolabunia, County of Fitzroy, against the decision of the Chief Executive, Primary Industries Corporation, to grant Waterworks Licence Nos. 56479, 56480, 56481 and 56482 to TJ Lucas. (A95-10)
Noel F and Nancy C Wing
v.
Chief Executive, Primary Industries Corporation
In the matter of an appeal under Section 51 of the Water Resources Act by James PC and Kayleen M Gilbert, the owners/occupiers of Lot 2 on RP 211595, Parish of Coolabunia, County of Fitzroy, against the decision of the Chief Executive, Primary Industries Corporation, to grant Waterworks Licence Nos. 56479, 56480, 56481 and 56482 to TJ Lucas. (A95-11)
James PC and Kayleen M Gilbert
v.
Chief Executive, Primary Industries Corporation(Hearing at Kingaroy)
D E C I S I O N
Two appeals have been lodged against the decision of the Chief Executive to issue four Waterworks Licences which are discussed in detail below. These licences issued on 1 December 1994 to Trevor John Lucas, a landholder occupying Portion 57V, Parish of Coolabunia, County of Fitzroy, which has an area of about 64.75 hectares and is situated some 10 kilometres north of Nanango. Mr Lucas had applied for the licences on 4 March 1994.
Licence G56481 is in respect of an existing weir (the weir licence") having a height of 1.5 metres, a base width of 10 metres, a crest width of 4 metres, a crest length of 15 metres and a capacity of 1 megalitre. The weir is located on Horse Creek and the schedule of licence terms or conditions includes the following which I will refer to as Condition 3.005:
"If 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 a 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."
Licence No. G-56479 relates to a 50 millimetre submersible pump (the "weir pump licence") which is to be used to pump water out of the storage created by the weir referred to above. This licence has included in its Schedule of Licence terms the following:
"1.051The pump authorised by this licence shall be installed and used only on the storage(s) of the work(s) authorised by licence number(s) 56481.
1.053AThe maximum discharge from the pump authorised by this licence shall not exceed 6.25 litres/second (5000 gph)
1.053BThe maximum annual diversion of water from the stream authorised by this licence shall not exceed 2 ML.
SPEC1The pump authorised by this licence shall only be used for supply to the piggery and shall not be used for irrigation."
Licence G-56482 is with respect to a proposed earth dam (the "earth dam licence") with a height of 4 metres, a base width of 10 metres, a crest width of 4 metres, a crest length of 100 metres and a capacity of 15 megalitres. It is proposed that the dam be constructed on an unnamed tributary which flows into Horse Creek. In the construction, a bywash height of 3 metres is specified. The earth dam Schedule of Licence terms includes a term similar to Condition 3.005 included in the weir licence.
Licence G-56480 relates to a 40 millimetre centrifugal pump (the "dam pump licence") which is to be used in conjunction with the earth dam and the licence includes the following in the Schedule of Licence terms:
"1.051The pump authorised by this licence shall be installed and used only on the storage(s) of the work(s) authorised by licence number(s) 56482.
1.053AThe maximum discharge from the pump authorised by this licence shall not exceed 18 litres/second
(14400 gph).
1.053BThe maximum annual diversion of water from the stream authorised by this licence shall not exceed 27 ML."
The intention is that the water provided by the earth dam will be pumped to an area of 6 hectares for irrigation purposes to support crops grown on that area.
Mr James Phillip Charles Gilbert, one of the appellants, appeared and gave evidence to support his appeal. Mr Gilbert owns nearby land of about 66.68 hectares which he purchased in 1986 and on which he has lived since Christmas 1993. Prior to that he visited the property on a daily basis to attend to horses that he grazed there. Mr Gilbert has visited Mr Lucas' land on many occasions.
Mrs Nancy Christina Wing gave evidence in support of her and her husband's appeal. Mr and Mrs Wing purchased their land in 1985. Their property comprises an area of about 34.08 hectares and is not occupied by the Wings who run store cattle on the property. Initially Mr and Mrs Wing would visit the property regularly, particularly frequently when constructing cattle yards and the like, but now live in Rockhampton. A nephew looks after the cattle that they buy in.
The unnamed tributary which is the subject of the earth dam licence and the dam pump licence, joins Horse Creek on the Lucas property at a point below the weir and a waterhole located on the downstream side of the weir. Horse Creek then runs through the Gilbert and Wing properties.
There was no expert evidence provided on behalf of the appellants.
Mark Nicholas Perry was the only witness for the Chief Executive. Mr Perry is employed as a technical officer (Stream Control) with the Department of Primary Industries and holds a Bachelor of Applied Science in Land Resource Management from, what is now, the Gatton Campus of the University of Queensland. Mr Perry has worked generally in the area of the subject land and has visited the subject land on a number of occasions.
The grounds of appeal in each matter are framed in similar terms as follows:
"1.That any one or all licences will prevent the flow of water down the water course.
2.That any one or all licences will cause the flow of water in and surrounding the water course to pond and not flow down the water course.
3.That the objectors shall be deprived of access to the normal flow of water down the water course and as a result experience severe loss of income.
4.That the objectors livestock and farming shall be restricted and depleted by the loss of access to the flow of water in the water course."
These appeals are lodged pursuant to s.51(1) of the Water Resources Act 1989. It would be useful to set out s.51(5) and (9) at this stage:
"(5) The notice of appeal must state the grounds upon which the appellant intends to rely and the appellant is not entitled to raise on the appeal a ground not stated in the notice."
"(9) The burden of proof of a ground stated in the notice of appeal lies on the appellant."
As I read the grounds of appeal, the first two grounds would appear to be concerned with a total cessation of flow down the watercourse, whilst the third ground may be seen to be concerned with the reduction of normal flow in some substantial way.
During his opening, Mr Flehr, for the appellants, sought orders of this Court that Licences 56482 and 56480, relating to the proposed earth dam and its attendant pump, be cancelled. Orders were also sought that an appropriate base flow bypass system be installed on the weir (Licence 56481) and that a meter be attached to Licence 56479 (the pump on the weir) and that licences to pump be subjected to restriction whenever there are low rainfall periods.
I might mention that there was discussion during the course of evidence relating to the fact that the weir was in existence prior to the granting of the licence and therefore was illegal in terms of the provisions of the Water Resources Act. It ought to be noted that the Act clearly contemplates the grant of licences to existing works. Consider, for example, s.42 which sets out the law with respect to application for licences. In so far as the matters that are before me are concerned then, nothing turns on any previous illegality with respect to the weir or to the weir pump.
The weir, which is the subject of Licence No. 56481, was initially constructed in the early 1980s probably, as I understand the evidence, in about 1983. Apparently it had been constructed, initially by the dumping of rock and soil into the bed of Horse Creek, as a cattle crossing during a wet season at the time. Its initial height had been about 0.8 of a metre, but it was subsequently added to and capped with concrete.
I accept evidence that the weir has leaked ever since its initial construction and it appears to me that, whilst the increase in height of the weir to the current 1.5 metres might have increased the holding capacity of the structure, the leakage rate appears to have remained unaffected. A bore is located on the Lucas property and there was evidence that the supply contained by the weir has been supplemented on occasions by pumping of water from the bore. There is a waterhole below the weir which catches seepage from the weir.
The question that I ask, having regard to the grounds of appeal, is whether the grant and use of the licences would impact the flow regime of Horse Creek, such as it is, to the extent that downstream water availability to lands of the appellants or either of them would be unavailable or substantially reduced. Put another way, I may ask the question as to whether the appellants or either of them would be accorded greater security of substantial water availability were the orders sought granted in the form of a determination that this Court may make pursuant to s.51(7) of the Act.
The answer may be found by considering whether there was a secure base flow available to the appellants' lands and to what extent the licences may impact on any such base flow. There is no data available of measured flow rates in the Horse Creek system so the evidence on this question of base flow comes from the recollections of the appellants, the written records of the Chief Executive and the process of deduction.
Both Mrs Wing and Mr Gilbert were of the view that Horse Creek had flowed regularly prior to 1989 at which time Mr Gilbert understood, incorrectly on the evidence, that the Lucas weir had first been constructed. Mr Gilbert suggested that the combination of the construction of the weir and the pumping of water by Mr Lucas from holes above and below that structure had caused a cessation in flow. Mrs Wing generally supported Mr Gilbert's view describing the pre-1989 flow as "permanent" at one stage, though she did say that the creek flow had not totally ceased but had flowed on occasions on her property since 1989, following a couple of storms. I note that the Wing property is downstream from the Gilbert property, but I do not conclude on the evidence, however, that the flow regime on the Gilbert land and the Wing land would be materially different for the purpose of this decision. The minor difference between the evidence of the appellants is best explained as an understandable difference in recollections or knowledge.
I have no evidence of the rate of pumping by Mr Lucas following the construction of the weir and prior to the grant of its associated licences. Mr Lucas has pumped water from a hole below the leaking weir but had, following a request by Mr Perry, relocated the pump inlet to the source contained in the weir. I cannot accept, however, that any reduction in the flows in Horse Creek were brought about solely or principally by the actions of Mr Lucas. There is evidence from Mr Perry to the effect that whilst annual run-off from the relevant catchment into the weir in 75% of years is calculated to be 45 megalitres, and annual run-off from the catchment of the unnamed tributary in 75% of years is calculated to be 54 megalitres. If I assume for the moment that there was sufficient rainfall to cause a flow in Horse Creek and that Mr Lucas captured all of that in his weir and pumped it out, then the 54 megalitres from the unnamed tributary would still be available to the Horse Creek system.
Mr Perry did not produce the rainfall figures that he had relied on in carrying out his calculations as part of the process of considering the applications from Mr Lucas, nor was he able to recall the station or stations that he had considered, nor the period over which the records had been collected. I would have preferred that such evidence be made available, however, I accept that Mr Perry did proceed in accordance with the accepted practice of his profession. In saying this, I also bear in mind that it is not a matter for the Chief Executive to prove that his calculations, premises or reasoning is correct or appropriate, but it is a matter for the appellants to prove each ground of appeal.
There was, from the appellants' side, evidence concerning rainfall recorded at the Kingaroy Station of the Commonwealth Department of Administrative Services for the years 1990 to 1995 inclusive. No other quantitative evidence of the rainfall was tendered and the evidence which was supplied was not contextualised by reference to authoritative evidence of averages over any substantial period at the Kingaroy Station. It was, however, agreed by all of those who gave evidence that the past four years or so comprised a period during which rainfall was less than usual. Mr Perry perused the rainfall records supplied and proffered the view that the rains in question appeared to be "soaking rain", particularly given the dry landscape which he says was apparent during this period. Consequently, in his view, the Horse Creek system would not be expected to maintain a flow. I should make it clear that Mr Perry did not accept that Kingaroy rainfall records would be the best reference in this case. I am not convinced that there was sufficient rainfall during this four-or-so-year period to generate a flow in the system except perhaps as a result of the storms referred to by Mrs Wing. I mention again that there was evidence that during this period Mr Lucas supplemented the water in the weir from a bore located on his property.
Mr Perry gave evidence that on various Departmental files there were memoranda showing that there would not usually be a flow in Horse Creek which was normally dry and did not provide reliable water for stock or irrigation supply. In addition to this, it was Mr Perry's view that Horse Creek was unreliable in flow, but that there was a small but reliable flow, including seepage, near the weir. He said that the flow was quite insufficient as a stream for use by riparian owners without the use of storage. Mr Perry explained that bed losses would contribute to the reduction or loss of flow below the weir and would explain why water, which seeps through the weir wall would not flow downstream to the Wing and Gilbert lands.
Mr Perry gave evidence of other licences on Horse Creek. These include:
"(a) K.R. & J.A. Nunn (property is located approx one (1) km upstream from the Lucas property.),
Two Licenses pertain to this property:
(1)Waterworks License No: 33604 for a 6.5m earth dam 21 megalitres in capacity.
(2)Waterworks License No: 34055 for a 50 mm. centrifugal pump to irrigate 2 ha.
(b)R.L.C. & R.A.H. Blanch (Mr Blanch's property is located approx 2.5 km downstream from the Lucas property.),
Two Licenses pertain to this property:
(1)Waterworks License No: 33534 for a 8.0m earth dam 36 megalitres in capacity
(2)Waterworks License No: 33533 for a 80 mm. centrifugal pump to irrigate 25 ha.
(c) CSR - Readymix (CSR Pty Ltd own property approx 5.5 km downstream from the Lucas property.),
Two Licenses pertain to this property:
(1)Waterworks License No: 35319 for a 6.0m earth dam 6 megalitres in capacity.
(2)Waterworks License No: 35318 for a 50 mm. centrifugal pump for stockwater domestic & industrial purposes."
I have included reference to these licences because they indicate to me, and they support the view of Mr Perry, that there is insufficient flow in the Horse Creek system for the watercourses to be relied upon for stock or similar purposes without the development of suitable storage facilities. I think that the weight of the evidence indicates that the recollections or opinions of Mrs Wing and Mr Gilbert concerning the flow characteristics of the Horse Creek system prior to 1989 are not as reliable as those opinions expressed by Mr Perry and referred to by him in to various memoranda on Departmental files. Such memoranda record the considered observations of, presumably, appropriately qualified officers, such observations being made in the course of the discharge of their official duties. I conclude that the Horse Creek system, including the un-named tributary, is one characterised by intermittent surface flows, which, unless diverted and stored, would not be able to be utilised beneficially.
The orders sought by the appellants with respect to the weir licence and the weir pump licence are based on the proposition that Mr Lucas may not adhere to the conditions of the licence. In particular, he may mend the leak in the weir and inhibit any downstream flow; and he may pump in excess of the allotted 2 megalitres.
In considering the orders proposed by the appellants, I would not proceed on the footing that Mr Lucas would be likely to disobey the conditions imposed on the licences and to thereby run the risk of having the licences cancelled. I have reviewed the conditions on each licence and have formed the view that they are designed to facilitate management of the available resource, both in terms of ensuring the on-flow of water in circumstances where an inflow is occurring and to ensure the utilisation of the resource by the licensee.
In so far as I was requested to order the installation of meters, I would have regard to the evidence of Mr Perry which was to the effect that these are generally used in regulated schemes where the Chief Executive supplies water to users by way of sale and, in any event, metering on the subject land and in similar circumstances elsewhere would be costly and difficult for the Department to maintain. The most significant point raised by Mr Perry with respect to meters was, however, that it is not a question of how much water is pumped out but whether the flow in circumstances where an inflow was occurring is able to be maintained. Clearly, Condition 3.005 is designed to address this and, given the evidence that leakage from the weir occurs and that it would be possible to implement the requirement to install a bypass system in the event that a change to the weir structure was carried out by Mr Lucas (namely, to stop the leaking), I see no value in interfering with this condition. I also note that 2 megalitres is not a substantial amount of water and would clearly be insufficient to cater for irrigation. Given the evidence that 2 megalitres is quite in excess of the requirements to supply the existing piggery of 100 sows (1.1 megalitres was estimated), I would not readily conclude that excessive amounts of water, taking the pumping limit to above 2 megalitres, would occur as there was no discernible reason or evidence as to why this might be the case.
The unnamed tributary to Horse Creek, upon which the earth dam is to be located, is of indefinite form and is difficult to identify on the ground and from photographs. I was invited to consider, by the counsel for the Chief Executive, whether this tributary might or might not be a watercourse in terms of the Water Resources Act, however, I proceed on the basis of Mr Perry having viewed the features on the ground and having acted on his appreciation that it is a watercourse. This tributary flows into Horse Creek at a point below the weir and the hole which is below the weir, and this junction is within the Lucas property. The tributary has an annual run-off in 75% of years of 54 megalitres. It is proposed that a limit of 27 megalitres might be pumped from the proposed dam and that the dam would have a capacity not exceeding 15 megalitres. I note that out of the calculated 99 available megalitres (ie 45 and 54) there is a combined allocation for the dam licences and the weir licences of 29 megalitres maximum. Given the storage of each and the practical effect in each case of condition 3.005, it seems to me that substantial flows will continue to be allowed to flow downstream, whilst lesser flows which by-pass the dam and the weir respectively would be subjected, as in the past, to bed loss. I cannot conclude from the evidence that cancellation of the dam and pump licences would contribute, in any measurable way, to the flow of water available to the appellants because flow to them, through storms, would probably continue very much in the same way as it has in the past; seepage would remain unaffected; bed loss would contribute to the loss of low volume downstream flow and the volume of water to be extracted by Mr Lucas would not be such as to impact on the processes of the system. I also find that the grant of the licences should result in the beneficial use of water which would otherwise be lost.
I find that the appeals should be dismissed and that the orders sought be refused. The Chief Executive's decision to issue Waterworks Licences G56479, G56480, G56481 and G56482 is confirmed.
RP SCOTT
MEMBER OF THE LAND COURT
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