Wolfenden v The Commissioner of Water Resources

[1991] QLC 30

[1991] QLC 30

 

  LAND COURT

BRISBANE.

13th September, 1991.

Re:     Appeal against a decision of the
  Commissioner of Water Resources. (A90-77)

C.B. & J.E. Wolfenden
  v.
  The Commissioner of Water Resources

(Hearing at Rockhampton)

D E C I S I O N

This appeal is against the decision of the Commissioner of Water Resources to grant Licence No. 51494, authorising the installation of a 50mm Centrifugal Pump on Canal Creek, with an area to be irrigated of 24 hectares.
           The authorisation was granted to K., V.L., I.A. & K.J. Stocks, subsequent to an Application dated 12th March, 1990, referring to land described as Lots 49 and 51 on Plan LN713 and Lot 53 on Plan LN599 Parish of Rosslyn, County of Livingstone.
           Three objections were lodged against the Application.  The appeal against the decision is by C.B. & J.E. Wolfenden, the owners of property downstream of that to which the application refers, on Scrubby Creek.  The grounds of the appeal are that the decision of the Commissioner is wrong in that:

"The decision has failed to adequately protect existing licensees downstream namely 38917 and 38918 on Portion 29 Parish of Rosslyn which already have an inadequate supply caused in part by an artificially high control level recognised at E.L. of 47.11.  The granting of this licence will endanger the viability of a substantial investment in irrigation.     "

The appellants tendered a written statement in support of the appeal and Mr C.B. Wolfenden attended the hearing to conduct his case and to give verbal evidence.  Together with his wife, he holds the licences as above to service an irrigated area of about 121.4 hectares (300 acres), with two ring tanks of a total surface area of 35.6 hectares (88 acres) used to store harvested water.  The irrigation works include 6 kilometres of 150mm underground pipe with 5 pumping units and irrigation systems.  The investment in irrigation works is estimated as being between $400,000 and $500,000.
           Mr Wolfenden believes that the Commissioner has failed to recognise "the erratic and unpredictable flow of water in this catchment area and the significance of the control level established on Mr Stock's property."  In his opinion, the presence on Werribee Creek, the main catchment watercourse, of large swamp areas which need to be filled before water flows continue downstream, is an important consideration in estimation of the rainfall required to create substantial flows of water.  He tendered a graph of monthly rainfall figures from January 1981 through to July 1991 on which was shown the periods when adequate flows of water occurred.  In three of the nine years since 1983 there had been periods of 12 months or more between flows of water, despite some very substantial monthly falls of rain.  He says that this indicates the effect that the swamp areas have and once having dried up, the significant falls necessary to once again fill the swamps before flow will continue downstream.  In converse, he says the graph shows that flows will occur after relatively small rainfall provided the swamps have been filled by the previous rainfall.
           In his opinion, the control level of E.L. 47.11 recognised by the Commission at a crossing of Scrubby Creek in Portion 51 (the Stock's property) is an obstacle to minor flows continuing down Scrubby Creek.  This is in essence the crux of the appeal.  Mr Wolfenden says that local residents recall that the crossing was established in the 1960's by a bulldozing contractor.  The contractor is now deceased and the establishment of the crossing is unable to be verified, although Mr Wolfenden is adamant that it is not natural.  He tendered photographs of the crossing taken in 1987 which depict the obstruction to water caused at this control point.  Mr Wolfenden argues that the photographs show that the crossing is indeed man-made.
           Evidence for the Commissioner was given by Mr K.J. Marler - Technical Officer Stream Control, stationed in Rockhampton.  He has been responsible for the investigation and assessment of stream control matters including Waterworks Licence applications in the Central Queensland Region since 1976 when he joined the Commission.  Previously he had private employment in the design and sales of water supply equipment.  His tendered report is comprehensive as to the background of the application by the Stocks family and the investigation of stream control in this catchment area.
           The application was to replace an existing Waterworks Licence and to increase the irrigated area on the Stocks' property from 8 hectares to 24 hectares, using the same size (50mm) centrifugal pump.  The licensees wished to expand the area under irrigated small cropping from 8 hectares to 12 hectares then to install trickle irrigation for 12 hectares of pineapples.  The Stocks have grown pineapples over a long period and after trialling irrigation on this crop found that increased yield and quality of fruit resulted.  They had advised the Commission that their estimate of irrigation water requirements would be as follows:

12 hectares of pineapples -
  16-25mm waterings applied principally during
  September, October, November and December -         48 megalitres

12 hectares of small crops -   60 megalitres
  Total Water Requirement  108 megalitres

As there had been very limited irrigation of pineapples in the area, it had been difficult to verify the estimates under this heading, but Mr Marler's enquiries indicated to him that they were reasonably based.
           Mr Marler describes Canal Creek as a large creek with a catchment area of approximately 5,300 hectares, fed "just above the pump site" by Werribee Creek which has a catchment area of 15,800 hectares.  He says that Canal Creek can be expected to flow for extended periods of a minimum of 3 to 4 months after heavy rain then it breaks into a number of large waterholes.
           The Commission has measured the waterhole on which the Stocks' pump is located, and it has been estimated to have a capacity of 400 megalitres.  There is one other licence on this waterhole with an estimated demand of 72ml.  At the time of the subject application there had been in existence another licence for irrigation of 6 hectares but this has since been cancelled as a result of the Commission's investigation, and replaced by a stock and domestic permit.  Prior to the investigation the demand which may have been made on the waterhole was estimated as 148ml, while after the cancellation of the one licence and the granting of the subject licence, the potential demand estimate increased to 180ml.  Mr Marler sees this increase as having minimal effect on the Canal Creek system.
           Mr Marler says that water flowing down Canal Creek passes in two directions after the subject waterhole - into extensive downstream swamps and into Scrubby Creek, the watercourse to which Mr Wolfenden is riparian.
           The outlet from the licensee's waterhole on Canal Creek where it enters the swamps on Portion 3V is lower than the inlet level to Scrubby Creek which controls the flow of water from Canal Creek into Scrubby Creek.
           Mr Marler's evidence is that the flow of water down Canal Creek from the subject waterhole apparently needs to fill these extensive swamp areas downstream before water flows from Canal Creek into Scrubby Creek which ceases to be fed from Canal Creek when the level of water falls by about 0.5m below the nominal full supply level of the subject waterhole.
           He says that after dry periods and periods of no flow into Scrubby Creek it takes a major rainfall event to build up the water level in Canal Creek to a sufficient height to enable water to again flow down Scrubby Creek.
           He says "the cause of this could not be accurately determined without extensive survey, but it is generally accepted that it is necessary to fill the swamps on Portion 3V before the level in Canal Creek rises sufficiently to enable water to flow into Scrubby Creek."
           He agrees that the flow of water from Canal Creek to Scrubby Creek is controlled by the inlet control of Scrubby Creek - E.L. 47.11.  He also agrees that the availability of water for the appellants' irrigation pump is dependent on the flow of water from Canal Creek together with the storage capacity of the waterhole in Scrubby Creek where the appellants' pump is located.
           There is agreement then between the Commission and the appellant, that the control point is a matter of significance.  Mr Wolfenden says the control point is artificially high and a result of man-made earthworks, and asks the Court to demand its removal.  The problem the appellants have is that the Commission sees the control point - as part of its necessary investigatory procedure, as required by the legislation when a licence is granted - as being natural.  On the evidence before me it would not have been possible to agree or disagree with Mr Wolfenden's claims, logical as they may seem, and a possible explanation of the phenomenon of the downstream swamps filling before the flow into Scrubby Creek commences.  Nevertheless this area of disputation has arisen long before the present matter.  According to Mr Marler, the control point was established by a survey conducted by the Commission back in 1982 when, in very dry conditions, there had been an eventually cancelled application made to pump water from Canal Creek into Scrubby Creek.  Then, when an apparently formally unauthorised project was undertaken in 1987 by Scrubby Creek landholders including Mr Wolfenden, to clean out and deepen Scrubby Creek, was blocked before it reached Canal Creek, a meeting of interested owners both upstream and downstream was held in company with officers of the Commission at the offending control point.  The downstream owners arguments where at that time unsuccessful and the Commission formally advised interested parties in a letter dated 14th July, 1987, of its views relevant to this and other matters.  It advised, inter alia, that the "Commission has no objection to Mr K. Stocks maintaining his crossing and therefore the control in Scrubby Creek at E.L. of 47.11."  The control point does not constitute works authorised by the granting of the subject application and its relevance in this matter is the consideration given to it as part of the factual information adopted as relevant to the necessary investigation carried out by the Commission.
           Mr Wolfenden's further argument is that depletion of water supplies in the Canal Creek waterhole will require greater flow from the catchment before flow will commence into Scrubby Creek.  He also points out that while demand has been estimated based on the proposed use, alternative uses and increased demands are not restricted. 

I agree however with Mr Marler that, if flow into Scrubby Creek does not commence until the downstream swamps are full, the marginally higher water use from a waterhole with the capacity of the subject will in itself, be of little overall consequence, particularly when losses to evaporation, for example, are considered.
           I also agree with Mr Marler that the effect on Mr Wolfenden's water harvesting licence will be negligible, in terms of the licence because "pumping is prohibited whenever the water level in the waterhole on which the licensed pump is authorised to be installed is lower than the zero meter mark on the gauge board installed by the Commissioner.  The gauge board or mark may be altered from time to time by the Commissioner to reflect more accurately the prescribed surface flow."  The zero mark is set at 50mm above the full supply level of the irrigation waterhole.  At this level there is a substantial flow down Canal and Scrubby Creeks.  The Scrubby Creek flow at this height according to Mr Marler has been estimated to be in the order of 1 cumec while Mr Wolfenden's pumping rate would be up to 0.4 cumec.  Mr Marler says that the Stocks' irrigation pumping rate of approximately 13 litres per second or 0.013 cumecs would have an insignificant effect on the availability of water for Wolfenden's water harvesting waterworks licence 38918.
           While Mr Wolfenden's concern is understandable when his significant irrigation works investment relies on the Scrubby Creek flow as it stands, I do not agree that the decision to grant the licence which has been appealed against will affect the pre-existing situation.  The granting of the licence will however allow the beneficial use of an available supply.

I am satisfied that the Commissioner has caused the necessary inquiry to be made as he is required to do under Section 4.18 (1) (a) and (c) of the Water Resources Act of 1989, and that as a result, it was reasonable to grant the application as was done under Section 4.18 2(a)(i).
           As a consequence the appeal is dismissed and the decision of the Commissioner confirmed.

(R.E. Wenck)       
  Member of the Land Court.