Dawson v Department of Natural Resources and Mines [2004] QLC 90 (2004) 25 QLCR 247

LAND COURT OF QUEENSLAND CITATION: Dawson v Department of Natural Resources and Mines [2004] QLC 90 PARTIES: Aubrey W Dawson (applicant) v. Chief Executive, Department of Natural Resources and Mines (respondent) FILE NO: A2001/0188 DIVISION: Land Court of Queensland PROCEEDING: Appeal against decision to refuse application – Water Resources Act 1989 DELIVERED ON: 15 October 2004 DELIVERED AT: Brisbane HEARD AT: Atherton MEMBER Mr RP Scott ORDER: The appeal is dismissed. CATCHWORDS: Water Resources Act 1989 - Application for waterworks licence - Appeal - Weir and swimming pool for social/recreational purposes - Question of whether contemplated by the Act Water Resources Act 1989 - Application for waterworks licence - appeal - Safety of structures in doubt - Appeal dismissed Mediation - Applicant/appellant entered into mediation agreement - appeal to defeat a term of the agreement - Question of abuse of process APPEARANCES: Mr AC Wrenn instructed by the Applicant Mr K Fisher (Crown Law) instructed by the Respondent -- 1 of 17 -- 2 [1] Malanda is a township on the Atherton Tableland in North Queensland; an area of lush and bucolic attraction. The applicant, Aubrey Wood Dawson, owns land some distance to the east of the town alongside the western bank of the Johnstone River which flows past it, then under the nearby Glen Allyn Bridge on its way to the coast. That land is Lot 7 on RP 865120, Parish of Malanda, County of Nares. [2] The applicant's land is one of a number of rural lifestyle blocks where the residents maintain fruit trees of various types whilst livestock are carried on the larger parcels. In the general area of the applicant's land the country is somewhat undulating or broken such that the river, which is alluvial in nature, is forced to maintain its flow through a series of relatively sharp bends. At the outside of these bends the river eats into the high red soil bank whilst generally less steep banks are found on the inside of the bends. The Waterworks Licence [3] I had the advantage of inspecting the applicant's land and the river in its vicinity. Access to the river by foot is difficult down the steep heavily vegetated high banks though more easy in places where the bank is of a lesser incline. Together with counsel and various witnesses I viewed points of interest raised in evidence. This inspection assisted me in my understanding of the evidence. [4] On 29 September 2000 the applicant was issued with licence 55345 under the Water Resources Act 1989 authorising a "25 metre long unconsolidated gravel and rock overshot weir within the Johnstone River and includes a 'children's (sic) swimming pool' which consists of a rockfill quadrant attached to the upstream western end of the dam wall having a radius of 9 metres". In addition to the swimming pool the larger ponded area created by the weir provides a large area upon which the applicant and his invitees, as well as the general public, can paddle canoes. [5] One term of licence 55345K provides "the crest level of the overshot weir exclusive of the children's pool is not to exceed 99.12 metres and shall not be less than 16.0 metres in length." [6] The elevation of the childrens' pool is separately dealt with: "the crest level of the concrete capping surrounding the 'childrens swimming pool' is not to exceed 99.73 metres." [7] The assumed datum from which the levels are to be taken is "… the top of a steel star picket driven to ground level and located as shown on Formwork SS2 held in the Mareeba District Office. The Bench Mark is numbered 923234 and has an assumed elevation of 105.970 metres." -- 2 of 17 -- 3 [8] The weir, as constructed, is said by the applicant to be located in the position of what he called the Old Bullock Crossing. The crossing predated the Glen Allyn Bridge, which is about 33 m downstream of the crossing and was constructed in the 1940s. Mr Dawson said that he understood that when the bridge was constructed, rocks that made up the whole crossing were disposed of. I can only infer that the disposal of the rocks was concerned with the safety of the new bridge structure or the desire to permit the river to flow without inhibition. I would not think that the authorities were concerned that the public would continue to use the old crossing if it was left in place. Appeal/Jurisdiction [9] In an application dated 7 February 2000 the applicant applied to the respondent under the Water Resources Act to have the height of the weir authorised at 100.10 m with a consequent water level of 100.00 m. That application was refused by the delegate of the Chief Executive on 27 March 2001. [10] The applicant has appealed to this Court against that refusal. The grounds of appeal as amended are eight in number. I discuss them later in these reasons. [11] Jurisdiction is granted to the Court by s.51 of the Act to hear appeals of this type. Section 51(7) provides that the Court "… may confirm, vary or revoke the decision of the chief executive the subject of the appeal." [12] Notwithstanding the breadth of the jurisdiction it is quite clear that its scope is circumscribed by the grounds of appeal. Section 51(5) provides: "51.(5) The notice of appeal must state the grounds upon which the applicant intends to rely and the applicant is not entitled to raise on the appeal a ground not stated in the notice." [13] Within the four corners of the grounds of appeal the burden of proof is statutorily placed on the applicant by s.51(9) "51.(9) The burden of proof of a ground stated in the notice of appeal lies on the applicant." History [14] This appeal is preceded by a history which includes some chapters of relevance to the matters for decision confronting me. That history started some time before February 1992 when Mr Dawson sought approval from the respondent for certain works to be carried out in the Johnstone River. Raymund Patrick Walsh, a technical officer employed by the respondent gave evidence that he approved of the works on the understanding that they comprised minor works only, to improve the bed of the river at the site of the Old Bullock Crossing. Mr Walsh had been of the opinion that what was proposed did not constitute a work under the Water Resources Act. Subsequently he inspected the -- 3 of 17 -- 4 completed work in response to a complaint from an upstream landowner and formed the view that the project carried out by Mr Dawson constituted "works" (s.2) and required authorisation under the Act. [15] On 6 February 1992 Mr Dawson made application under the Act for a licence to authorise the then existing works. Upstream landowners RJ and ND Rogers objected against the application. The application was investigated and watercourse license 55345 was issued on 24 August 1992. That licence authorised an earth and rock fill weir having a crest elevation of 99.52 m assumed datum. Mr Walsh said that although the application was for a 1.5 m high structure it was considered prudent to have the crest level set to a level datum because the weir was built of unconsolidated material and because of stream mobility and the exposure of the downstream Glen Allyn Bridge. The benchmark referred to in the licence was said to be a bolt in the Glen Allyn Bridge having an assumed datum of 95.89 m. Reference to that suggested benchmark and level was in error – a matter I return to below. [16] The objectors appealed against the grant of the licence, that appeal being heard in this Court and disposed of by a decision handed down on 25 March 1994 by the then President Mr White. The decision of the Court on that occasion was to reduce the weir height by 300 mm to 99.22 m. This matter was often referred to in evidence before me as the Rogers' case. [17] In the process of preparing the licence for reissue in accordance with the order of the Court, the respondent through Mr Walsh was said to have discovered an administrative error relating to the location and elevation of the relevant benchmark. In Mr Walsh's opinion the licence was issued to reflect the Court's decision and to correct the administrative error concerning the identity of the benchmark location and its elevation. Mr Dawson appealed that amendment, that appeal coming before this Court and being addressed in a decision of the Court published on 23 April 1996. As I understand that judgment the learned Member Mr Wenck accepted evidence, the effect of which was summarised at p.2 of the reasons "In carrying out the court's decision to amend the licence document, two errors were uncovered. In the first instance, the elevation of the datum point was mistakenly read from a computer generated plot of Surveyor J Charles' survey to be 99.89 m. Secondly, the location of the datum point was inferred to be a bolt on the southwest corner of the bridge wheelguard. The reality was that the surveyor had used the top of a pipe cut off at about deck level in the southwest corner of the bridge as the datum point. He assigned an assumed value of 99.99 m to this datum point. Based on this -- 4 of 17 -- 5 survey data, Special Condition 3 on Waterworks Licence 55345 should have read: 'The datum is a pipe at the southwest corner of the bridge having an assumed level of 99.99 m.' Later resurvey by Surveyor Charles established the assumed level of the bolt on the wheelguard to be approximately 140 mm higher or at RL 100.136. A permanent mark has now been established by Surveyor Charles as a recorded location on the right bank. This permanent bench mark has a value of 105.97 which relates to the original level of 99.99 m." [18] At p.6 of his reasons the learned Member said "on his evidence, it is clear that Mr Dawson's fears as to incorrect levels having been adopted in the Rogers case and potentially influencing the future level of the structure, have no substance." [19] The appeal was dismissed. The effect of the decision and reasoning was that, whilst the benchmark was incorrectly recorded in the licence document issued prior to the decision of the Land Court in the Rogers case, that error did not infect the identification of the reduced levels of 99.52 m and 99.22 m following the Court's conclusion in that earlier case. [20] At some time before the decision of the Court on 23 April 1996 Mr Dawson constructed a secondary gravel and rock fill wall, capped with a concrete walkway to provide a small pool which might be used for swimming. This pool is located towards the western end of the weir and on its upstream side near where it abuts the bank of the Johnstone River. Mr Walsh said the elevation of the walkway was between RL 99.63 m and 99.73 m. [21] On 6 June 1996 Mr Dawson made application for an amendment to his existing licence 55345 to have authorised an increase in height of the existing weir to a maximum elevation of 101.10 m. Mr and Mrs Rogers objected to the granting of that application. The application was investigated by Mr Lait, acting operations manager, Resource Management Mareeba in the respondent department with the result that an amendment to the licence was approved which allowed for the retention of the concrete capped walkway of what now became known as the swimming pool. That part of the application to have the crest elevation increased was refused. Both the applicant and the objectors appealed against that decision. [22] Prior to those appeals being heard the Court brokered a mediation between the applicant, objector and the department, the result being that a mediation agreement was signed by all of the parties on 12 June 1998. The agreement was to have the weir lowered by a further -- 5 of 17 -- 6 100 mm to a level of 99.12 m assumed datum; and for the objector to have approved on application the placement of rock of up to 200 mm in diameter as an artificial "riffle". [23] Having heard evidence on the topic, I would describe a riffle as being an immature rapid. In a rapid the water flow is so disturbed by the rocky bed of the stream that the water becomes turbulent, sometimes to the extent that white water may be observed. Rapids are usually found in localities where the stream bed drops at a greater angle than is evident either upstream or downstream. In a riffle each of the features of a rapid are present though in a less magnified way. It goes without saying that rapids and riffles provide a visual and aural variation to the flow of a stream that is attractive to people. They provide the "babbling brook" of Tennyson in contrast to the Limpopo observed by Kipling. [24] The applicant's licence was amended and issued on 29 September 2000 apparently to reflect the outcome of the mediation. One outcome, in the form of the weir crest being at 99.12 m was included as a term of the licence whilst the retention of the swimming pool in its upstream position was also approved as part of the licence, notwithstanding that the mediation agreement indicated that the swimming pool would be located in a downstream location. Mr Dawson who gave evidence said that the downstream location would not be consented to by the Shire Council who was concerned as to its proximity to the Glen Allyn Bridge. [25] It was following the conclusion of the mediation and the signing of the mediation agreement by the parties on 12 June 1998, and prior to the issue of the licence pursuant to that agreement on 29 September 2000, that Mr Dawson made application on 7 February 2000 for the amendment of the height of the weir: the application which is the subject of the present appeal. Abuse of Process [26] Mr Dawson provided evidence the he had signed that mediation agreement unwillingly and on the understanding that he could, notwithstanding the agreement, make a further application relevant to any licence issued pursuant to that agreement. [27] There is no statutory prohibition on such an application being made. Mr Dawson made the application the subject of the present appeal – an application apparently designed to frustrate the agreement to which Mr Dawson was a party. To appeal against the refusal of an application that directly challenges the term of an agreement arrived at following a mediation conducted under the mantle of this Court might, in my opinion, properly be described as an abuse of process. It could fall to be classified as such either because Mr Dawson, who submitted himself to a Court administered mediation process, purported to enter into a mediation agreement without an intention to be bound by it; and/or because -- 6 of 17 -- 7 he acted to attempt to defeat the agreement and to do that through proceedings in this Court. I would be inclined to strike out the appeal on that basis except for the fact that no such submission was made by the Chief Executive who elected to deal with the appeal on the merits. Grounds of Appeal [28] The grounds of appeal and the particulars relied on before me were: "1. The Chief Executive's decision was contrary to the provisions and/or principles of the Water Resources Act 1989. a) The Water Resources Act 1989 is 'an Act to consolidate and amend the law relating to rights in water, the measurement and management of water, the construction, control and management of works with respect to water conservation and protection, irrigation, water supply, drainage, flood control and prevention, improvement of the flow in or changes to the courses of watercourses, lakes and springs; protecting and improving the physical integrity of watercourses, lakes and springs; the safety and surveillance of referable dams; and for purposes incidental thereto and consequential thereon'. PARTICULARS The Chief Executive's decision did not protect or improve the physical integrity of the North Johnston river at Old Bullock Crossing, Malanda. b) Section 43.(1) of the Water Resources Act 1989 states that 'upon an application under section 42, the chief executive must cause inquiry to be made into anything the chief executive considers appropriate, including any of the following that are relevant to the application; (a) if the application relates to water other than underground water; ii) the effect that the granting of the application will have or is likely to have on entitlements of riparian owners, licensees and permittees'. PARTICULARS The Chief Executive did not cause any inquiry to be made, or did not make sufficient inquiry about the effect that the granting of the application would have had, or was likely to have had on entitlements of riparian owners, licensees and permittees; The Chief Executive's decision did not take into account, or sufficiently take into account the effect, or absence of it, that the granting of the application would have had or was likely to -- 7 of 17 -- 8 have had on entitlements of riparian owners, licensees and permittees; and c) Section 4 of the Water Resources Act 1989 states that the right to the use and flow and control of water vested in the Crown is; (a) not to be exercised to the prejudice of a right conferred on and lawfully exercised by any person, board or other body by or under an authority conferred by this Act or any other Act; (b) to be subject to; (ii) the rights of the holder of a licence, permit or authority under this Act; PARTICULARS The Chief Executive's decision did not take into account the rights of the holder of a licence, permit or authority under this Act. The License issued after the required inquiry by the chief executive under section 43, was subject to such modifications and variations, as determined by the chief executive, that defeated the purpose of the license. 2. The Chief Executive's decision will allow deterioration of the Old Bullock Crossing and erosion downstream adversely affecting the existing watercourse. a) The natural crossing that had been enhanced by maintaining the rock structure over the last century is now at it's lowest 'height' recorded. b) The decision of the Chief Executive allows and is causing deterioration of the Old Bullock Crossing and the existing watercourse. c) The decision of the Chief Executive is causing erosion of the Old Bullock Crossing and the existing watercourse downstream. d) The decision of the Chief Executive is adversely affecting the existing watercourse 3. The Chief Executive's decision was unsatisfactory. a) the applicant repeats and relies on all of the other grounds of appeal and their particulars. 4. The Chief Executive's decision was not in the public interest. -- 8 of 17 -- 9 a) There was sufficient evidence of public support and community interest in maintaining the Old Bullock Crossing before the Chief Executive, yet he reduced the level of the Old Bullock Crossing in response to objections and false evidence received from Ross Geoffrey Rogers and Nora Dale Rogers. b) There has been an overall reduction in the Old Bullock Crossing Height that has significantly lowered the level of the river immediately upstream. 5. The Chief Executive's decision to refuse the application took into account irrelevant and/or inaccurate and/or unreasonable considerations. a) The Chief Executive's decision to refuse the application took into account irrelevant considerations, in particular; i) the objection received from Ross Geoffrey Rogers and Nora Dale Rogers, (which was false and is not admitted), that the Old Bullock Crossing had raised the level of the North Johnston River upstream. b) The Chief Executive's decision to refuse the application took into account inaccurate considerations, in particular; i) Bench marks, inaccurate figures and points of reference used to determine levels and subsequently used in calculating the level of the Old Bullock Crossing were inaccurate. c) The Chief Executive's decision to refuse the application took into account unreasonable considerations, in particular; i) the objection received from Ross Geoffrey Rogers and Nora Dale Rogers, (which was false and is not admitted), that the Old Bullock Crossing had raised the level of the North Johnston River upstream. 6. The Chief Executive's decision to refuse the application failed to take into account relevant considerations. a) The Chief Executive's decision failed to take into account that there has been an overall reduction in the Old Bullock Crossing Height, because of the conditions imposed in the granting of the license, and that that has significantly lowered the level of the river immediately upstream. b) The Chief Executive's decision failed to take into account that previously authorised works, in the form of facilities for handicapped and under privileged children was made inoperable by the overall reduction in the Old Bullock Crossing Height. -- 9 of 17 -- 10 c) The Chief Executive's decision failed to take into account evidence of public support and community interest in maintaining the Old Bullock Crossing. 7. The Chief Executive failed to properly investigate and consider all the relevant facts in making the decision. a) Section 43.(1) of the Water Resources Act 1989 states that 'upon an application under section 42, the chief executive must cause inquiry to be made into anything the chief executive considers appropriate, including any of the following that are relevant to the application; (a) if the application relates to water other than underground water; ii) the effect that the granting of the application will have or is likely to have on entitlements of riparian owners, licensees and permittees'. PARTICULARS The Chief Executive did not cause any inquiry to be made, or did not make sufficient inquiry about the effect that the granting of the application would have had, or was likely to have had on entitlements of riparian owners, licensees and permittees; The Chief Executive's decision did not take into account, or sufficiently take into account the effect, or absence of it, that the granting of the application would have had or was likely to have had on entitlements of riparian owners, licensees and permittees; 8. The Applicant is entitled to a rehearing of the facts, which will establish that there was insufficient justification for the decision of the Chief Executive. a) It is a right provided by common law that the Applicant is entitled to a rehearing of the facts, and to plead his case that there is insufficient justification for the decision." [29] A decision of the Chief Executive which was made without proper adherence to the procedural requirements of the Water Resources Act may be declared a nullity in which event the jurisdiction granted by s.51(7) of the Act would not arise. Such a declaration may be made pursuant to s.33 of the Land Court Act 2000 which enables the Court to provide declaratory relief. Alternatively, a Court confronted with such a scenario may simply recognise that it has no jurisdiction in the matter under s.51(7). [30] The grounds of appeal in the present case were not characterised by either party as raising a question of the type discussed in the previous paragraph. The grounds must be understood then as raising for my consideration, issues that would lead to my exercising -- 10 of 17 -- 11 the power to "… confirm, vary or revoke the decision of the Chief Executive …". It is quite obvious that the jurisdiction of this Court in a matter such as this is administrative in nature. [31] More particularly, the position of the applicant is that I should vary the decision of the Chief Executive by ordering the issue of a licence under the Water Resources Act which would permit the applicant to raise the level of the weir by 0.98 m or by some less increase that I decide upon. [32] That is, I am asked to make a decision about the actual weir – what its elevation should be. [33] In these circumstances I must say that I am perplexed by the grounds of appeal and particulars that allege some failure on the part of the Chief Executive to proceed, in considering Mr Dawson's application, in accordance with the provisions of the Water Resources Act. In saying this I refer to grounds 1, 2, 3, 4 and 7. Ground 8 is not a proper ground of appeal. [34] Any conclusion by me in favour of such grounds of appeal would not advance the applicant's case as any such conclusion would not take me one step closer to deciding whether the weir ought to be raised by 0.98, or thereabouts. [35] Ground 5(b) raises for re-litigation the issues disposed by this Court in its decision of 23 April 1996. Counsel for the applicant contended otherwise, however those contentions were without merit. [36] I am not confined in my consideration of this appeal to the evidence considered by the Chief Executive nor to the reasons for his decision. My task is to consider the evidence placed before me and to make my decision based on that. It is for the applicant to convince me that, having regard to this evidence, the decision of the Chief Executive to refuse his application should be varied or revoked. Drowning of Riffles [37] Much of the evidence adduced before me was directed towards the question of whether riffles upstream of the weir would be drowned out as a result of a raising of the crest of the weir by 0.98 m. The effect of the drowning of riffles was addressed in the decision of the Court on 25 March 1994 by President White. That effect is environmental in nature, in that it results in loss of animal habitat and a means of certain animals safely crossing the river. [38] Evidence was presented by the applicant to the effect that when the Old Bullock Crossing was at its height prior to Mr Dawson doing any works on it, commencing about 1991, it was at a level that would have "drowned" some of the six riffles identified upstream. The -- 11 of 17 -- 12 first riffle upstream of the present weir was already drowned when the weir had a crest height of 99.52 m. [39] The applicant also provided documentary evidence from various experts which the applicant relied on as demonstrating that his proposal to lift the weir crest would have no demonstrably relevant environmental impact. [40] The applicant's documentary evidence was replete with vague and repetitive affidavits and exhibits thereto, photographs that are undated; documents that are annotated apparently by Mr Dawson (to what purpose I do not know); videos which were largely not supported by sworn evidence as to the relevance of images depicted in them; and letters from experts whose statements of opinion were highly qualified by the assumptions made and whose opinions were not presented in the manner of expert reasoning being applied to admissible evidence. Little attempt was made by the applicant to help me find my way through this material such that it became relevant to the appeal. [41] Evidence was given by the respondent through Messrs Patrick Raymund Walsh and John Bradley Charles of six sets of riffles that fall within the area of interest upstream of the weir. The first of these is the one identified by Mr Rogers in the 1992 hearing, whilst the sixth is just upstream of the Lindsay Road Bridge. I inspected each of these riffles and received into evidence dated photographs of them provided by the respondent. [42] I do not intend to deal in depth with this aspect of the case but will simply say:  In its natural state, that is prior to the construction of the weir, there would have been at least six riffles present in the area of interest.  Whatever the circumstances might have been in 1991 the evidence before me demonstrates that in 2004 any increase in the level of the crest of the weir from 99.12 will increase water level upstream.  The increase in water levels that would result from an increase in weir crest height to that sought by the applicant will cause an increase in the level of water and possible drowning of at least five upstream riffles.  None of the evidence provided in the form of brief letters from environmental experts was other than highly qualified and dependent on advice given to each by Mr Dawson as to the assumptions they might rely on.  None of the environmental experts whose letters the applicant purported to rely on was produced for cross-examination though one, Professor Richard Pearson, was expressly requested by the respondent. The respondent also complained that Dr John Winter was not made available for cross-examination. Both of these gentlemen are environmental experts, Professor Pearson having provided evidence previously in the Rogers' case. -- 12 of 17 -- 13 [43] The question of whether a riffle is effectively drowned is not a question of definition, but is a question as to the extent to which a riffle can have the depth of water over it increased without there being any deleterious habitat effect. I heard no useful evidence on this issue - evidence that would have been the province of environmental exerts who would have provided detailed expert reports which were subject to cross-examination. Such circumstances as the period and depth of inundation during normal river flow would, I think, be matters of interest to such experts. Community Benefit [44] The applicant's evidence was presented with the background being heavily overlaid with the suggestion of a positive community benefit that would arise from the completion of the works prepared by Mr Dawson. Such a suggestion is however not a proper basis for the grant of an appeal such as this. Not only is there the difficulty, to which I refer below, that the Water Resources Act does not appear to provide a policy platform for the private development of community facilities on State land in a river, but even if it did, the task of the applicant is to demonstrate that the Chief Executive's decision should be varied or revoked. The Chief Executive was clearly cognisant of the suggested community benefit. Mr Walsh said that the river is quite suited to canoeing upstream of the weir at its present level. That is clearly the case. The Old Bullock Crossing [45] Such value, be it historic, nostalgic or cultural, that might lie in the fact that the site now occupied by the weir was once a bullock crossing is a matter not given any relevance by the Water Resources Act whose long title I include below. The Nature of the Application [46] There are two bases for disallowance of the appeal. The first of these, which is to do with the safety of the childrens' swimming pool, merits some discussion of the power to license such a structure. [47] The licence application under consideration was to construct work with these purposes: one "conserve water"; and two "recreational – handicap children etc". I will put aside the purpose of water conservation, though it must say that I cannot see how that purpose truly arises. [48] The second purpose can be understood by reference to documents attached to and part of the application to show a structure designated as "kids pool". The issue is whether such a structure may be licensed under the provisions of the Water Resources Act. [49] The long title of the Water Resources Act is: "An Act to consolidate and amend the law relating to rights in water, the measurement and management of water, the construction, control and -- 13 of 17 -- 14 management of works with respect to water conservation and protection, irrigation, water supply, drainage, flood control and prevention, improvement of the flow in or changes to the courses of watercourses, lakes and springs; protecting and improving the physical integrity of watercourses, lakes and springs; the safety and surveillance of referable dams; and for purposes incidental thereto and consequential thereon." [50] It is not apparent from that title that the Act contemplates the issue of licenses for such purposes as that of a childrens' swimming pool. The relevant parts of the Act appear to me to be concerned with the use of water for the benefit of livestock, crops and domestic purposes. They do not appear to me to be expressed in language that contemplates uses such as a swimming pool being constructed by a private individual and to which non- riparian residents might have access. The types of applications for water licences the subject of appeal to this Court, are usually concerned with the extraction, diversion or storage of water. The water so affected is usually to be utilised for the purposes of cropping or animal husbandry. The benefits flowing from the grant of such licences are generally intended to be economic. In effect, it would be contended inter alia that the benefit warrants the cost in terms of the impact on the water resource. [51] In an application of the type now before me the benefit is suggested to be social/recreational. In considering an application with that suggested benefit, what principles are to be employed? Is it that such an application should be approved as long as there is a benefit as suggested and no discernible cost or risk to the environment? How should risks to property and individuals be taken into account and dealt with? [52] The parties did not attempt to provide a framework of principles in which an application of the present type might be considered, though the respondent did raise some considerations that alerted me to the questions of principle I raise above. [53] The applicant, on the other hand, appears to rely on the proposition that unless the respondent can show that for good reason the licence as sought should not be granted, then it should be granted. This approach characterises the grant of the application as a defeasible right. That, I think, misclassifies the nature of such an application which is for the grant of a privilege. And the grant of that privilege depends on the applicant demonstrating why it should be so. The Swimming Pool [54] The evidence is that Mr Dawson seeks the elevation of the crest of the weir in order that he may complete the recreational project which includes the swimming pool and the possible provision of a diving board. [55] Access to the swimming pool walkway is via a loose plank which lies across a gap between the pool walkway and the river bank. Along that walkway there are a number of -- 14 of 17 -- 15 lengths of steel reinforcing rod imbedded in the concrete and sticking out of the walkway surface. The water enclosed in the swimming pool contains rocks of varying dimensions. One rock at least is apparently difficult to move. Jumping, diving or falling into the pool would be hazardous. There is no barrier to children walking from the pool walkway onto the rocks that make up the wall of the weir. The rocks are of varying sizes not placed in any discernible pattern and are dangerous to walk on. A fall could lead to disastrous results. [56] I understand that children, including some with physical disabilities, have already used the swimming pool. Whilst I was not told of any child suffering any injury whilst using the pool, the facilities are so patently dangerous that injuries will foreseeably occur unless the swimming pool is subjected to substantial redesign. [57] Water Licence 55345 is not expressed in language which provides detailed specifications for the swimming pool other than that the crest is not to exceed 99.73 m. Nor does it require that the licensee provide plans for the Chief Executive's approval. It makes no reference to legal liability nor to the need for the licensee and the Chief Executive to be insured against any claims of liability which may arise in the case of any injury being suffered by any invitee of the licensee. Neither does it provide for the removal of the structure should such a need arise, nor a financial guarantee with respect to such removal. [58] I cannot give consent to any increase in the crest of the weir that would result in the ongoing use of the swimming pool under the present arrangements. The addition of a diving board at some unspecified location is a matter that I cannot address now given that it does not appear to be the subject of the present licence. The Weir Design [59] This brings me to another matter of major concern and the second basis for the disallowance of the appeal. In a statement provided to the Land Court hearing in 1992, Mr Walsh, then a technical officer with the Department of Primary Industries, Water Resources, said that the relevant local authority, Eacham Shire Council, was consulted as to their attitude towards licensing of the weir to a crest level of 99.52 m. Mr Walsh was called to give evidence before me concerning the present application. He said that the inquiry as to the Eacham Shire Council attitude was undertaken by Graham Sadler, District Engineer for the then Water Resources Commission. Mr Sadler was advised by the Shire Engineer, Steve Ripper, that the weir was acceptable at the level of 99.52 m but that he would be concerned if the dam was any higher. Exhibited to an affidavit of Mr Dawson of 21 January 2002 are copies of minutes of a meeting of Eacham Shire Council on some unknown date. Those minutes record a resolution that Council would spend £50 -- 15 of 17 -- 16 to "put in a stone crossing" at "Battle Crossing". It is apparent that the resolution pre- dated the construction of the Glen Allyn Bridge. Even assuming the reference is to the Old Bullock Crossing the relevant of this evidence to the application before me was not made out. [60] In a letter of 15 August 1997 from Eacham Shire Council to Mr Dawson he was advised that the Council resolved at its meeting of 14 August 1997 "not to offer any objection to the weir as it is or proposed, provided it can be shown Council's assets will not be structurally affected by the worse event in thirty (30) years. There was no evidence adduced by the applicant to address this requirement." [61] The weir structure if I can generously call it that, consists essentially of an elongated pile of rocks. [62] The Glen Allyn Bridge is, as I have said, about 33 m downstream of the weir. Survey evidence from Mr Charles, Engineering Surveyor, established to my satisfaction that the ponded water behind the weir with a crest level of 100.10 m would extend 1.6 to 1.7 kilometres upstream of the weir. The water ponded by the weir during normal flow would be the same level as the deck of the Glen Allyn Bridge. [63] Mr Walsh expressed concern that a mass failure of the weir at a crest level of 100.10 m would cause damage to the bridge and injury to anyone on it at the time of such failure. Mr Dawson was a Construction Surveyor for 40 – 45 years. He is not a qualified Civil Engineer. Mr Walsh provided unchallenged evidence that it would require the advice of a Civil Engineer as to the issue of the safety of the proposed weir. [64] There was no evidence from the applicant in the form of a statement from a Civil Engineer certifying as to the safety of a weir of the design proposed by Mr Dawson. Indeed the design as provided in the licence application appears to me to be more conceptual in nature than one might expect for the purpose of construction of a weir of the type and dimension proposed. It is not a question of whether the bridge may be overtopped in times of flood. I would think that its design would cater for a level of flooding. The issue here is the effect that any catastrophic failure of an elevated weir would have on the bridge and anyone on at the time. [65] In the absence of suitable evidence that the weir design, the subject of the application under appeal would be structurally safe, I cannot order that a licence be granted to allow its construction. [66] I might add that there was evidence from Mr Walsh that I accept that the present weir design is deficient in that it directs flow towards a washout in the western bank downstream of the weir. Mr Walsh holds the New Zealand certificate of Civil -- 16 of 17 -- 17 Engineering in which he majored in hydrology. I understand him to be an experienced expert whose opinion concerning such matters as the wash out of river banks is to be paid due regard. [67] In Schedule A to the licence term 1.2.10 makes it clear that the maintenance of the bed and banks in the area of this washout is the responsibility of the licensee: "The licensee must at the licensee's cost maintain to the satisfaction of the chief executive, the bed and banks of the watercourse adjacent to the works with respect to which the licence is issued." [68] Mr Walsh described how the weir and bed and banks might be managed such that the washout did not worsen. That such management has not taken place to date is a matter of concern to me. [69] I do not have any basis for approving of a weir of any crest level approaching that sought by the applicant nor one of his suggested designs. The present design is deficient in that it causes washout to the river bank. It appears to me that crest level and weir design are interdependent matters. In the absence of engineering evidence as to an acceptable weir design at any level higher than is presently licensed the appeal cannot be sustained. That is clearly the case. Constitutional Argument [70] In submissions counsel for the applicant placed reliance on s.100 of the Commonwealth of Australia Constitution Act 1900. That section provides: "Nor abridge right to use water 100. The Commonwealth shall not, by any law or regulation of trade or commerce, abridge the right of a State or of the residents therein to the reasonable use of the water of rivers for conservation or irrigation." [71] I was not addressed as to the manner in which s.100 touches upon the issue of a licence under the Water Resources Act nor how it is otherwise relevant to the matters in issue here. The provision is one which is clearly concerned only with the exercise of legislative power by the Commonwealth and is not relevant to the sovereignty of the State of Queensland in exercising the legislative power that it did in the enactment of the Water Resources Act. Order The appeal is dismissed. RP SCOTT MEMBER OF THE LAND COURT -- 17 of 17 --