De Tournouer v Chief Executive, Department of Natural Resources and Water [2008] QLC 151

LAND COURT OF QUEENSLAND CITATION: De Tournouer v Chief Executive, Department of Natural Resources and Water [2008] QLC 151 PARTIES: Margaret Frances De Tournouer (appellant) v. Chief Executive, Department of Natural Resources and Water (respondent) FILE NO: A2007/0023 DIVISION: Land Court of Queensland PROCEEDING: Appeal under the Water Act 2000. DELIVERED ON: 22 July 2008 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER: Mr RP Scott ORDER: The appeal is dismissed and the review decision is affirmed. CATCHWORDS: Water Act s.210 – Water Resources (Barron Plan) 2002 s. 53 – evidence fails to satisfy the Barron Plan – Court unable to identify volume needed for intended use. Expert evidence – witness displayed behaviour warranting exclusion of his opinion evidence. APPEARANCES: Mr DR Gore QC with him Mr D Pyle instructed by John Hill and Staff for the appellant. Mr W Isdale of Crown Law instructed by Ms L Marshall, Senior Legal Officer for the respondent. Background [1] This is an appeal pursuant to s.877 of the Water Act 2000 against a review decision of the Chief Executive refusing the application by the appellant for a water licence. [2] The appellant had applied to take 715 Megalitres per annum (ML/a) from her land located within the Atherton Basalt Sub-Artesian area (Management Area B) as described -- 1 of 8 -- 2 in the Water Resources (Barron) Plan 2002. That application was received in the respondent’s Mareeba office on 20 February 2003. [3] On 9 November 2006 the Chief Executive granted a licence to take 80 ML/a. In an "Information Notice" given pursuant to s.211(3) of the Act the respondent justified the grant of that volume on the following basis: “In view of the considerable investment made by applicants to locate and test possible groundwater supplies it was decided to grant some entitlement in the Peterson Creek sub- area based on the mean entitlement of other licensees. This results in a possible entitlement of 80 ML/a for each applicant in this sub-area.” [4] The appellant sought a review of that decision1 by way of an application lodged on 7 December 2006. By “Notice of Review Decision” dated 13 February 2006 the appellant was advised that the decision of the reviewer under s.864(2) was to “confirm (in whole) the original decision”. That review decision was the subject of a notice of appeal filed in this Court on 26 March 2007. [5] An appeal under s.877 is “by way of rehearing, unaffected by the reviewer’s decision.”2 The power of this Court in an appeal of this nature is provided for in s.882(1): “882 Powers of court on appeal (1) In deciding an appeal, the court may— (a) confirm the review decision; or (b) set aside the review decision; or (c) amend the review decision in the way the court considers appropriate; or (d) send the matter back to the reviewer and give the directions the court considers appropriate; or (e) set aside the review decision and substitute it with a decision the court considers appropriate.” [6] Whilst s.882(1) does not not make express reference to s.210 of the Act, it was common ground that it is this provision which is the primary guide to the Court in the exercise of its jurisdiction. Section 210 provides: “210 Criteria for deciding application for water licence (1) In deciding whether to grant or refuse the application or the conditions for the water licence, the chief executive must consider the following— (a) the application and additional information given in relation to the application; (b) if notice of the application has been published—all properly made submissions made about the application; 1 s.862 of the Act. 2 s.880(2) of the Act. -- 2 of 8 -- 3 (c) any water resource plan, resource operations plan and wild river declaration that may apply to the licence; (d) existing water entitlements and authorities to take or interfere with water; (e) any information about the effects of taking, or interfering with, water on natural ecosystems; (f) any information about the effects of taking, or interfering with, water on the physical integrity of watercourses, lakes, springs or aquifers; (g) strategies and policies for the sustainable management of water in the area to which the application relates; (h) the sustainable resource management strategies and policies for the catchment, including any relevant coastal zone and regional aquifer systems; (i) public interest. (2) The chief executive may also consider whether the applicant has been convicted of an offence against this Act, the repealed Act or an interstate law.” [7] The added emphases are mine. I highlight clause (g) simply because it appears to be a criterion which the Chief Executive placed particular reliance on in the original decision on the application. The emphasis placed on (c) is, however, of greater significance. [8] The Barron Plan applies to the appellant's land. That plan provides in s.11(2): “(2) Both surface water and subartesian water are to be allocated and managed in a way that seeks to achieve a balance in the following outcomes — (a) to allow water to be used for the following— (i) agriculture; (ii) aquaculture; (iii) industrial needs; (iv) small scale uses; (v) stock and domestic purposes; (vi) tourism and recreational uses; (vii) urban needs; (b) to provide for the continued use of all water entitlements and other authorisations to take or interfere with water; (c) to encourage the efficient use of water; (d) to maintain areas of significant tourism and recreational value, including the Barron Falls, Barron Gorge and Tinaroo Falls Dam; (e) to allow cultural use by Aboriginal or Torres Strait Islander communities; (f) to provide water to support natural ecosystems.” (my added emphasis) -- 3 of 8 -- 4 Pursuant to s.210(1)(c) of the Act the Chief Executive, and in turn this Court, must consider the above highlighted parts of the Barron Plan, amongst other matters. [9] At their broadest, cases of this nature are concerned with three elements: the availability of water for allocation; the potential environmental impacts of making the allocation sought; and the use to which allocated water is to be put. Sections 11(2)(b) and (c) of the Barron Plan are concerned with the third element. [10] Evidence led before me from various experts focused mainly on the first element: the question of the availability of water to meet the application. As the water sought by the appellant is sub-artesian, the evidence was necessarily complex, requiring conclusions to be drawn on such evidence as is available to indicate the nature of what lies beneath the ground and is therefore hidden from view. There was also evidence as to the potential impacts of making the water allocation sought. This evidence concentrated more on the impact of water availability including surface flows than on other aspects of the natural environment. [11] Given the conclusion that I have drawn below on the third of the elements I mention above; that is the use to which the allocated water is to be put, I need not dwell on the expert evidence referred to in the preceding paragraph except to say two things. First, given the manner in which each of the parties treated the case advanced by the appellant through her expert Mr Iain Hair (Hydrogeologist) and deficiencies in the expert evidence advanced for the Minister; the evidence as to the availability of the sub-artesian water is not as complex as might first thought to be the case. [12] Second, and this relates in some part to the first point, I have concluded that the opinion evidence provided by Dr John Bernard Prendergast (Hydrologist and Principal Policy Officer, Department of Natural Resources and Water) could not be safely relied upon. He attempted to distance himself from important aspects of his own earlier co-authored reports; was selective in his treatment of such material; was evasive in cross- examination; and was intellectually arrogant in his treatment of Mr Hair’s expert evidence. [13] An expert witness, unlike a lay witness, is permitted to offer opinions to a Court as to the meaning and implications of proven factual evidence. There is, co-existent with that privilege, a requirement that the expert exhibit such objectivity in his evidence that opinions given can be relied on by the Court as being opinions which resulted from the application of expert knowledge to the factual evidence. Any tendency of an expert to be less than objective or to become an advocate in the cause of the party who called him, -- 4 of 8 -- 5 will undermine the confidence that a Court can place in his opinion evidence.3 This is not to say that an expert witness may not be passionate in advocating the correctness of the opinion he advances, but he ought not display the behaviour I observed in Dr Prendergast. [14] The rationale behind Dr Prendergast’s inclusion in the case is somewhat perplexing. Orders were made requiring the parties to file and serve statements of experts' evidence by 29 October 2007 and statements in reply by 9 November 2007. Experts in each field of expertise were required to confer and to produce by 20 November 2007 a joint statement setting out points of agreement and disagreement. Pursuant to those orders Mr Hair and Mr Robert Lait (a Hydrogeologist retained by the Minister) met on 13 November 2007 and on 19 November 2007 produced a joint report dealing with matters of disagreement and agreement between them. The joint report both narrowed the issues and provided a useful focus on the matters which remained as issues for debate between the parties. Then on 24 December 2007 a facsimile was sent by the Department of Natural Resources and Water to Mr Lait asking him a number of questions which can best be characterised as challenging opinions expressed by him in his expert report (Exhibit 8) and his reply report (Exhibit 9) to Mr Hair’s expert report and in the joint report produced by Mr Lait and Mr Hair. Mr Lait answered the questions by a memorandum dated 15 February 2008 (Exhibit 11). [15] Dr Prendergast had, according to his recollection, become involved in the case either in early 2008 or in December 2007. By arrangement between the parties he was permitted to produce a report and such report dated 2 April 2008 which purported to respond to a response report by Mr Hair and dated 19 March 2008 (Exhibit 10) was tendered for the Minister. That document was not, I concluded, a response to the report by Mr Hair so I did not accept its tender. A further report of Dr Prendergast dated 23 May 2008 (Exhibit 29) was received into evidence. It responded in large part to Exhibit 10 and to a further report of Mr Hair (Exhibit 24). For reasons not clear to me, Dr Prendergast’s report introduced a new case for the Minister – one inconsistent in important respects with the case based on Mr Lait’s evidence and inconsistent with the pre-trial process of meeting of experts and the production of the joint report by Mr Lait and Mr Hair. [16] I set out this brief history relating to the introduction of Dr Prendergast as a witness, not because it is relevant to my conclusion as to the acceptability of his opinion evidence, but because it indicates a lack of cohesion in the presentation of the case from the Chief 3 See for example Cominos & Co Pty Ltd v Chief Executive, Department of Lands (1996) 16 QLCR 311 at 336 to 339; Foody v Horewood (No. 2) [2004] VSC 222 at [16] to [22] and Barns v Transport [1996 - 1997] 16 QLCR 22 at 28 – 29. -- 5 of 8 -- 6 Executive, an entity expected to demonstrate the attributes of the model litigant. In saying this I must make it perfectly clear that no criticism is intended or implied against Mr W Isdale, counsel for the Minister. He conducted himself impeccably before me and made the submission which ultimately led to my conclusion in this appeal. I now turn to the issue raised by that submission. [17] Evidence as to the use to which the allocation of 715 ML/a of water would be put was provided by Mr James Maurice De Tournouer, the appellant's son and active manager of the enterprise on the land. In an affidavit sworn 22 August 2007 Mr De Tournouer deposed: “The motive behind our making the Application in the first place was to drought proof the property as in 2002 we were severely effected by drought and suffered badly from having to buy feed and supplements. We are again in a drought situation and there is little or no standing grass…” [18] The appellant's land is a grazing property and has been managed as such since 1971. When asked in cross-examination about his intended use of the water he said "I want to irrigate pasture". Mr De Tournouer did not at any time provide evidence as to how much water would be needed to drought-proof the property even though he was cross- examined on the point. Nor did he refer to any plans whether detailed or rudimentary, as to how the drought-proofing would be given effect to including, in particular, how much water would be needed. He simply said that he would grow winter “crops” that is winter rye grass and clover and thereby, in his estimate, almost double the carrying capacity of the land for cattle. I observe at this point that this idea of doubling of carrying capacity appears to me to be inconsistent with such evidence as was led as to the volume of water required and which I discuss below. There was no evidence as to the area to be sown to winter crops and the water needs for such plantings. He said that he would harvest grass seed, produced hay and graze the area. [19] It appears to me that the requirement for an allocation of 715 ML/a was based on s.53(1)(b) of the Barron Plan: “53 Restriction on annual volumetric limit (1) In deciding the annual volumetric limit for a licence granted after the commencement of this plan, the chief executive — (a) … (b) must not decide a volume that is more than— (i) for a licence to take water for irrigation purposes— (A) in the Atherton Subartesian Area—5ML for each hectare to be irrigated; and (B) in the Cairns Northern Beaches Subartesian Area— 1.75ML for each hectare to be irrigated; and -- 6 of 8 -- 7 (ii) for a licence to take water for another purpose—the volume estimated by the chief executive to be required for the purpose. (2) …” [20] That is, the volume sought was not estimated by reference to a plan of productive and effective usage, but represented the maximum volume that might be allowed. If such volume was to be permitted it would place the applicant's within the top 1% of water allocations in the Barron River catchment. Clearly, cogent justification for such an outcome or for a slightly lower allocation of, say, 633 ML/a is required. [21] Whilst Mr De Tournouer said that he intended drought-proofing the property, and that the growth of such crops as vegetables (potatoes were mentioned) was not a specific proposal but an option that he had in mind if beef prices declined, such evidence as there was as to the volume of water requirements of the property were based essentially on non-forage cropping. Mr De Tournouer and his wife had met with Mr David McQuillam of Malanda Rural Supplies on or before 17 July 2007. And it was in that meeting that Mr McQuillam advised the De Tournouer’s as to the appropriate crops that could be planted and the amount of water considered necessary to sustain those crops. Immediately following that meeting, the advice from Mr McQuillam was transmitted (apparently by facsimile) to the appellant's solicitor by letter dated 17 July 2007; that is, after the filing of the notice of appeal. [22] Whilst the letter was produced on the letterhead of Malanda Rural Supplies it was explained by Mr De Tournouer that it represented a typed version prepared by Mrs De Tournouer of handwritten notes prepared by Mr McQuillam. Mr De Tournouer added some brief annotations to the typed version and the salutation “Dear John”, a reference to the appellant's solicitor. [23] The letter commences with, “This is a suggested usage of water from the four bores on our property” – words added by Mr De Tournouer. That is, it does not purport to be a cropping and water usage plan based on the appellant's intentions but represents suggested water usage if cropping of the type outlined in the letter ever eventuates. The letter assumes that a total area of 140.93 ha would be irrigated. On the basis of s.53 of the Barron Plan the maximum volume of water that could be allocated is therefore 524.65 ML/a whereas the letter suggests a maximum of 539 ML/a. In evidence Mr De Tournouer suggested 633 ML/a as being the maximum required based on Mr McQuillam’s assumptions; however, the derivation of that higher figure was not fully explained. [24] The volume of 539 ML/a was based on there being no rainfall on the appellant's land, whilst a volume of 458.5 ML/a was calculated on the basis of rainfall figures “considered -- 7 of 8 -- 8 low” for the area. There was no attempt by the appellant to explain what irrigation requirements there would be in an average rainfall season. Mr McQuillam was not called to give evidence. [25] The water usage presented in the letter assumes the planting of potatoes, corn (silage) and “hay – grass seed" on 84.7 ha. Crop rotation is needed when potatoes are grown. The letter also assumes the establishment of orchard trees in one paddock of 20.23 ha. Four thousand orchard trees comprising avocadoes, citrus and macadamia are mentioned. [26] The water volumes attributed to Mr McQuillam assume an intensive use of the appellant's land for cropping and the devotion of part of it to permanent tree crops. Those uses are not consistent with Mr De Tournouer’s stated intention in his affidavit to drought-proof the property as a grazing enterprise and his expectation of doubling the grazing capacity nor with his evidence that he viewed cropping as an option without any present commitment to pursue that option. Not only does the evidence as presented by the appellant provide me with no sound basis for an identification of the volume of water needed for the drought-proofing of the property but I cannot conclude that such a cropping usage of the type set out in the letter under discussion is intended by the appellant. It is apparent that the information from Mr McQuillam was not produced to serve a plan of land usage intended by the appellant, but was probably produced for the purpose of providing evidence in the hearing and to give Mr De Tournouer some idea of what cropping might be carried out on the land should he discontinue or modify the current cattle grazing use. [27] In short, I am not convinced that the volume of water sought by the appellant will be used for the purposes apparently assumed by Mr McQuillam. The appellant has not therefore demonstrated that there would be a “continued use of (the) water entitlement” sought, nor of any identifiable lesser entitlement. I have been presented with no means of ascertaining what would constitute “the efficient use of” any water entitlement that could be ordered by me. [28] The demand for water continues to grow whilst its supply remains at best constant or at worst in decline. It is therefore a resource whose efficient and productive continuing use is to be encouraged consistent with maintaining the integrity of the aquatic environment. It is not a resource that is to be sequestered to an individual for purposes not patently involved in economic production. As much as made clear in s.53 of the Barron Plan. [29] The appeal is dismissed and, consequently, the review decision is affirmed. RP SCOTT MEMBER OF THE LAND COURT -- 8 of 8 --