Wyber v Chief Executive, Primary Industries Corporation
[1994] QLC 24
•3 June 1994
|
BRISBANE.
3 JUNE, 1994
Re: Appeals under Water Resources Act 1989
(A93-3/4 and A93-9/10)
1) John Bruce Wyber
and
2) John Ross Hudson
v.
Chief Executive, Primary Industries CorporationD E C I S I O N
On 23 November, 1992, Waterworks Licence No.'s G-54289 and G-54290 were issued to Mr JR Hudson, the owner of "Maranoa Downs", Mitchell. The licences authorised the construction of works on Neabul Creek. This creek passes through "Maranoa Downs" which is described as Lot 3 on Plan MAR54, Parish Retreat, County Maranoa. "Maranoa Downs" has been in the ownership of Mr Hudson for many years. The property is used for grazing purposes. The works authorised under the licences consist of the provision of two dams - the northern dam referred to in evidence as Dam No. 2 (G-54289) was to have a capacity of 60 ML. The second dam referred to as Dam No. 1 is south (downstream) of Dam No. 2 and was to have a capacity of 200 ML. The works went over the top of small dams which have existed for years. Mr Hudson was not content with conditions imposed under the licences and he accordingly appealed against the decisions (A93-9/10). The relevant conditions which are contained in each licence provide that a 1200mm diameter outlet pipe be placed in the embankments (at specified levels) so as to allow 400 ML per day to pass through and downstream. The installation of a control gate was not permitted.
Mr Wyber was at all material times the owner of Lot 4 on Plan MAR68, Parish Landridge, County of Maranoa. This property is known as "Abernethy" and is situated about 20 kilometres downstream of the dam sites. The property is used for cattle grazing. Near the northern boundary of "Abernethy" there is a waterhole known as Ten Mile Hole which is shallow and lasts (on the evidence of Mr Wyber) up to twelve months. Mr Wyber said that the hole waters about 2,500 hectares of "Abernethy" and that the property is otherwise watered by five bores. He has fears that the dams would interfere with the flow of water to "Abernethy" and detract from the value of the Ten Mile Hole as a waterhole. He accordingly objected against the applications and being dissatisfied with the grant of the licences, exercised his rights of appeal against the decisions. With the consent of the parties the matters were heard together.
On the evidence before the Court, Neabul Creek is a relatively shallow, sandy creek which floods on average every three or four years. The licences in question before the Court were the first to have been granted. Mr Hudson took the initiative by enlarging old dams in an attempt to conserve water for stock and domestic purposes. He has been on the property for 25 years and runs 8,000/9,000 sheep in conjunction with 700/800 breeder cattle. He has cut drains on the property to direct catchment waters from within the property to Dam No. 2. Properties downstream of "Maranoa Downs" are, in order, "Cunnyana West", "Abernethy" and "Glenmuir". The owner of "Glenmuir", although not before the Court as an appellant, is on the evidence tendered through Mr Wyber concerned about the effects the dams may have on natural supplies for "Glenmuir". Although not a party to the proceedings, his concerns together with those of Mr Wyber, have been considered in depth by departmental officers between the filing of the appeals in Court and the hearing of the matters. Downstream of "Maranoa Downs" catchments from lands to the west flow into the creek. The principal catchment coming from this direction is Eastern Creek which enters Neabul Creek in "Abernethy" but south of the Ten Mile Hole. On "Glenmuir" there is a hole called "Noogilla" near the road crossing to Southhampton. On investigation by departmental officers it was estimated that Dam No. 1 had a capacity of 1100 ML and Dam No. 2, 300 ML. Officers of the department inspected the sites in conjunction with Mr Wyber and Mr Hudson. A rain event of approximately 75mm fell in the week preceding the inspection. Dam No. 2 was half full. No run-off occurred into Dam No. 1. At the same time, run-off from the 17,000 hectare catchment below Dam No. 1 filled the Ten Mile Hole on "Abernethy". Further south it was estimated that the flow had not exceeded 80 megalitres per day at the Loch Lomond road crossing on "Abernethy". It was also found that the event did not cause Neabul Creek to flow on "Glenmuir". The inspection revealed that survey values shown on the licences were incorrect. It was agreed between the parties that the department would review the licence conditions. Further investigations were made of a rain event which occurred in 1994. A computer modelled run-off analysis was carried out using 63 years of rainfall records. This analysis confirmed the view of departmental officers that outlet pipes were required in the dams and that the pipe on Dam No. 1 had to be of sufficient size to make significant low-flow releases. The department then proceeded to consider amendments to the licences which would recognise the contribution of downstream subcatchments while providing for releases based on flow conditions at the Southhampton road crossing on "Glenmuir". The statement of evidence of Mr BJ Heck, technical officer (Advisory/Stream control) at St George states on pp.6/7:-"A loss rate of approximately 10 megalitres per kilometre of creek length in dry condition has been assumed for Neabul Creek. This figure was selected after examining stream losses calculated during controlled releases of water into the Lower Balonne River system in October 1992. Although few waterholes exist in Neabul Creek, substantial sand deposits are present. The above loss rate was comparable to loss rates observed by Mr Hudson based on his releases from Dam 2 to Dam 1.
The distance from Dam 1 to the Southhampton crossing is approximately 42 kilometres. A maximum release rate of 50 megalitres per day is now considered adequate to deliver water to the Glenmuir waterhole in 8 or 9 days following release from Dam 1.
The need for a 450mm diameter pipe to be installed through or over Dam 1 in lieu of the 1200mm pipe as shown on Waterworks Licence No. 54290 is based on a pipe size capable of delivering 50 megalitres per day when the dam is at bywash level. A permanent installation is necessary to facilitate easy release of water as required under the terms of licence.
Mr Hudson has proposed to pump or syphon water over Dam 1 using non-permanent devices (pumps and/or syphons) but the proposal is unsatisfactory to the Department and to those downstream. Indeed, Mr Hudson may be called upon under the terms of licence, to pump additional water downstream if water level conditions in Dam 1 are such that insufficient flow can be achieved via the 450mm outlet pipe. Mr Hudson has three pumps capable of diverting a total of 20 megalitres per day. These pumps could also be used to increase the release rate from the upstream dam should this prove necessary.
The existing 150mm outlet pipe through Dam 2 is now considered to be an adequate installation. As mentioned in Section 7 above, Mr Wyber appeared to be satisfied with the size pipe for Dam 2 at the on-site meeting on 16 July 1993.
The condition relating to circumstances when releases of up to 50 megalitres per day are required is based on the assumption that whenever there is a flow in the watercourse into the storages, and a flow in the watercourse at the Southhampton road crossing 42 km downstream, there will also be a flow in the watercourse on Abernethy. This is evidenced by recent flow events and discussions with landowners.
The requirements for installation of gauge boards and advising of water levels were added after discussions with Mr Hudson and Mr Wyber. The purpose is to assist with the management of releases from the storages. Similar systems have been successfully used by the Department at St George for the management of waterharvesting and flow events in the Lower Balonne River System.
Survey values were also corrected."
Under the Water Resources Act, the Chief Executive has the power to licence existing works. The procedure in obtaining a licence for such works is no different from that applying where works have not been constructed. In the subject case considerable benefits would appear to have flowed from the fact that the works were complete. The effects have been correlated with rain events both factual and modelled. In the end the department has suggested that amendments be made to the conditions applying to the licences which are designed to protect the interests of downstream owners whilst recognising the riparian rights held by Mr Hudson. I am satisfied that the recommendations will have this effect.
In the circumstances the appeals are allowed to the extent necessary to give effect to the recommendations which I have adopted. The decisions of the Chief Executive are varied by:-a)In respect of licence G-54289 -
1)under the heading "Description of Works" omitting -
Outlet dia 1200mm
Capacity 60 ML
and inserting in lieu thereof -
Outlet dia 150mm
Capacity 300 ML
2)by substituting in lieu of the conditions specified in the licence, the conditions contained in "Annexure A".
b) In respect of licence G-54290 -
1) under the heading "Description of Works" omitting -
Outlet dia 1200mm
Capacity 200 ML
and inserting in lieu thereof -
Outlet dia 450mm
Capacity 1100 ML2)by substituting in lieu of the conditions specified in the licence, the conditions contained in "Annexure B".
DM White
President of the Land Court
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