Elliot v Chief Executive, Department of Natural Resources [1998] QLC 49

LAND COURT BRISBANE 13 May 1998 IN THE MATTER OF an appeal under Section 51 of the Water Resources Act by Kent and Lorraine Elliot, the owners/occupiers of Portion 55, Parish of Glastonbury, against the decision of the Chief Executive, Department of Natural Resources, to grant Waterworks Licence No 59227 to IJ Allen. (A97-13) Kent and Lorraine Elliot v. Chief Executive, Department of Natural Resources (Hearing in Gympie) DECISION Introduction Kent and Lorraine Elliot (the “appellants”) reside at, and Mr Elliot is the registered proprietor of, Lot 55 LX1135, Parish of Glastonbury, County of Lennox, about 18 kilometres south-west of Gympie. The land is hilly and has an area of 44.819 hectares. Jerry Creek flows through the south-west portion of it. The appellants hold two waterworks licences, each of which authorises the pumping of water from Jerry Creek to irrigate four hectares. Upstream, immediately to the south- east of the appellants’ land, is Lot 57 RP862406 which Mr Ian Allen owns. The land has an area of 100.2 hectares and is operated as a dairy farm. Jerry Creek passes through the north-western corner of the land for about 100 metres, then flows under a road and across the appellants’ land. On 30 April 1996 Mr Allen applied for a waterworks licence to irrigate four hectares of pasture on Lot 57 using a 50 mm centrifugal pump to be installed on Jerry Creek. The application, which was made under s 42 of the Water Resources Act 1989 [1998] QLC 49 -- 1 of 18 -- 2 (the “Act”), was advertised in The Gympie Times and was referred to the Eel Creek Water Advisory Committee for its comment. The appellants objected in writing to the grant of a waterworks licence to Mr Allen. Following an inquiry into the application, Waterworks Licence No G-59227 (the “Waterworks Licence”) was issued on 15 January 1997 for one year. The licensee was responsible for applying for renewal of the Waterworks Licence. By Notice of Appeal dated 14 February 1997 the appellants appealed under s 51 of the Act against the decision of the Chief Executive to grant the Waterworks Licence to Mr Allen. Grounds of appeal Section 51(5) of the Act provides that a 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”. The grounds of appeal were as follows: 1. The licence allows for pumping up until (but not including) cessation of flow. This does not allow for an “environmental flow”. 2. The water quality of Jerry Creek will suffer as the water entering the Creek downstream has salinity levels above the threshold for white clover. 3. There is insufficient water in the Creek to allow another licence on the Creek. 4. There is inequitable distribution of water as Mr Allen already has a licensed dam a short distance from the new irrigation site. 5. A request was submitted on 3 February 1997 under s 32 of the Judicial Review Act 1991 for reasons for the decision to grant this licence with the stated special conditions. As at 14 February 1997 the appellants had not received a reply. They therefore reserved “the right to use grounds relating to the reasons yet to be given” in arguing their appeal. Section 51(9) of the Act provides that the burden of proof of a ground stated in the notice of appeal lies on the appellant. Before considering each ground of appeal it is appropriate to note some of the statutory provisions governing the grant of waterworks licences and the action taken pursuant to the Act before the Waterworks Licence was granted. Statutory and factual context of the grant of the Waterworks Licence -- 2 of 18 -- 3 Section 8(2) of the Act requires the Chief Executive to do certain things including: “(b) measure, make and keep a record of the natural waters of Queensland both surface and underground for the purposes of - (i) ascertaining, defining and recording the permanent surface waters of Queensland and the surface waters of Queensland of a periodic or intermittent nature; (ii) ascertaining and recording available information relating to the artesian waters of Queensland and the underground waters of Queensland not classified as artesian waters; and (c) evaluate the present and future water requirements of Queensland”. The Chief Executive is also empowered, but not obliged, by s 8(2)(f) of the Act to “take all steps and do all acts and things as the chief executive thinks fit to protect the water resources of Queensland from anything that results in or is likely to result in a diminution of their quantity or, subject to the Environmental Protection Act 1994, from anything detrimental to their quality”. The provisions governing the grant of a waterworks licence give the Chief Executive broad discretionary power. It is the Chief Executive who determines what particulars and other information are to be included in an application for a licence (s 42(1)(b)). The Chief Executive may require an applicant to give further information, plans and other documents relevant to the application (s 42(3)). Where an application is made under s 42 and there is an objection to the grant of the waterworks licence, the Chief Executive must cause an inquiry to be made. Where the application relates to water other than underground water, the inquiry is to be made into the availability and sufficiency of water to supply the requirements of riparian owners, licensees, permittees, the applicant and any person, board or other body who has a statutory right to use the water (s 43(1)(a)(i); see also s 4). The inquiry is also to be made into the effect that the granting of the application will have or is likely to have on entitlements of riparian owners, licensees and permittees, and into any other matters or things the Chief Executive thinks fit (s 43(1)(a)(ii) and (c)). -- 3 of 18 -- 4 Upon the inquiry, the Chief Executive may grant the application (either absolutely or subject to any modification or variation determined by the Chief Executive in a particular case) or may refuse the application (s 43(2)). The Chief Executive has discretion in respect of important aspects of a licence, including the amount of the land or the watercourse specified in the application and the quantity of water which may be used (s 43(3)). A licence is subject to the terms decided by the Chief Executive (s 44(1)(a)) and it must authorise the holder, during the term of the licence, to do all acts and things necessary for and incidental to the purposes for which the licence is granted (s 44(1)(g)). The Chief Executive may amend, modify, vary or revoke a term to which the licence is subject or add a further term (ss 44(2)-(5), 50). In response to the appellants’ objection, an inquiry was held in accordance with s 43 of the Act. The factual basis for the decision to grant the Waterworks Licence is apparent from two documents tendered in evidence: the statement by Mr Mark Perry, a Senior Technical Officer (Stream Management) with the Department of Natural Resources (Exhibit 5) and a letter dated 3 March 1997 to the appellants from Mr B Watson, an officer of the Department of Natural Resources who approved Mr Perry’s recommendation that the Waterworks Licence be granted (Exhibit 3). Those documents establish that the decision was based on the following information concerning the physical features of Jerry Creek and the surrounding area, and the extent of licensed use of the water from Jerry Creek:  Jerry Creek (which is considered to be a small creek) is approximately 2.5 kilometres long and flows into Eel Creek and eventually into the Mary River.  Before Mr Allen’s application there were 12 existing licences or permits on Jerry Creek - seven for diversion for irrigation, two for diversion for domestic supply and three for storage. Five of the licences (including two held by the appellants) are downstream and seven are upstream. The downsteam licences are for a total irrigation area of 13 hectares.  The catchment of the Waterworks Licence pump site is approximately 349 hectares and comprises two sub-catchments which meet some 20 metres upstream from the pump site. The Jerry Creek catchment is some 211 hectares and the catchment of an unnamed tributary of Jerry Creek (known locally as Wattle Creek) is approximately 138 hectares. -- 4 of 18 -- 5  At the pump site there is generally a low flow of water, about several litres per second. The flow appears to come from the smaller catchment area. A licensed 34 megalitre storage dam is located on Wattle Creek approximately 400 metres “upstream” of the confluence of the two catchments. From observations of the dam and the “creek” below the dam, and discussions with the previous owner of the dam, it appears that seepage from the dam provides a significant proportion of the downstream flow. Generally no flow is observed from the larger catchment area. (I use “upstream” and “creek” with some caution as there is apparently some doubt about whether Wattle Creek is a watercourse.) The appellants commented critically about aspects of the description of the physical features around the pump site. First, they disputed any suggestion that seepage from the dam provides all the water flowing downstream. They did not suggest that there is no leakage, but Mr Elliot said that there is at least one spring below the dam which contributes to the flow. Mr Elliot agreed that it is not possible to say what volumes of the flow in Wattle Creek at the pump site come from rainfall, seepage and any natural spring (or springs) that may be below the dam. For present purposes, the source or sources of the water is less significant than the fact that there is a regular flow of water from the catchment area which includes Wattle Creek and the dam. Second, Mr Elliot agreed that parts of Jerry Creek dry up in dry weather but said that the interruption to water flow “is largely due to dams that are upstream ... which trap the water from springs that would once have continued to flow into the creek system in dry times”. The decision to grant the Waterworks Licence was made in light of the physical circumstances just described and having regard to other factors including the following:  Although it was common practice for riparian owners on Jerry Creek to have licences to irrigate from the Creek, Mr Allen as a riparian landowner did not have an irrigation licence from Jerry Creek prior to the application.  The relevant officers of the Department believed that Jerry Creek had “a capability to divert water for irrigation at certain times of the year”.  The Eel Creek Water Advisory Committee (the “Eel Creek WAC”) had discussed Mr Allen’s application at its Annual General Meeting and could see -- 5 of 18 -- 6 no reason why a waterworks licence should not be issued in accordance with the application.  The relevant officers of the Department considered that the effect on water quality of the grant of the Waterworks Licence would be “minor, taking into account, (1) the existing uses in Jerry Creek, (2) the normal seasonal variation in flow, and (3) catchment and land use changes that have occurred in and around Jerry Creek”.  The relevant officers of the Department considered that, so far as the effect on water quantity was concerned, there is a normal variation in flows in all creeks and that, in the case of Jerry Creek, it is not unusual for there to be no flow in the Creek upstream from the confluence of the unnamed tributary. Officers’ observations, however, “(1) indicated that a flow of several litres per second at the proposed pump site is usual, and (2) that this flow persists downstream, at least, to the Eel Creek confluence”. These observations are apparently supported by the Eel Creek WAC.  The Eel Creek WAC (which comprises landowners from all sections of Eel Creek and its tributaries, including Jerry Creek) have indicated that Mrs Elliot’s concerns about lack of flow appear to be unfounded.  Several inspections by Departmental staff have always found that flow in the Creek through the appellants’ property is what would be expected considering the seasonal conditions - although the exact dates, times and results of these inspections are not recorded. The appellants took issue with the conclusions to be drawn from some of those factors, including the weight to be given to the views of the Eel Creek WAC. Those matters will be considered later in these reasons for decision. Other factors were taken into account in the decision-making process which led to the grant of the Waterworks Licence but, in my opinion, they are not directly relevant to the determination of the appeal. Before considering the grounds of appeal I note that Mr Allen was not a party to or witness in these proceedings. Mr Elliot represented the appellants and the Chief Executive was represented by Mr Ken Fisher. Grounds of appeal considered -- 6 of 18 -- 7 The principal basis for the appeal was the objection on environmental grounds to the grant of the Waterworks Licence. The secondary concern was the effect which the pumping of water would have on the availability of water for the appellants and other downstream landowners. In summary, Mr Elliot contended that the appellants’ case was not for self-benefit but out of concern for the environment and the well- being of everyone in the area generally. Although the appellants have two waterworks licences, only one was effective at the time of the hearing because one licensed pump had been stolen. Mr Elliot stated that the appellants have never used their full allocation of water and had reduced the cattle numbers on their land. In the three years before the hearing of this appeal Mr Perry has not observed irrigation on the appellants’ land. One component of their case, however, included a reference to the limited availability of water for irrigation on the appellants’ land. In their written statement they note that, although they have licences to irrigate a total of 8 hectares: “... the fact is we have never been able to irrigate more than 4 hectares. When the weather gets dry and the irrigation is required most, then it is possible to irrigate for a couple of hours once a day and the days may be limited if restrictions apply at the time. We are then unable to provide sufficient water for 2 hectares.” (Exhibit 2 page 3) The submission concluded with a summary statement that the amount of water already available to Mr Allen without the Waterworks Licence “is far in excess of what we or our downstream neighbours could hope to obtain during dry weather when the water is really needed. The granting of this license highlights the inequity” (Exhibit 2 page 4). The appellants’ general concerns were particularised in the grounds of appeal and, in accordance with the Act, it is necessary to consider each of them. 1. Licence does not allow for an “environmental flow”: The appellants submitted that the Waterworks Licence allows the licensee to all but stop the flow of water in Jerry Creek, thus not allowing for an “environmental flow”. Although, as will be seen a little later in these reasons, the term “environmental flow” has gained some currency in official publications, it was not defined in these proceedings. There seems to be considerable debate about what constitutes an environmental flow. It may involve replicating or preserving the natural flow of a river, or at least preserving -- 7 of 18 -- 8 some constant flow of water along a watercourse which ordinarily is constantly flowing. How one determines what an environmental flow is and how one determines when there is no longer an environmental flow along a particular watercourse was not explained in the hearing. Without clearer definition of the term and more information about the characteristics of a particular watercourse it is not possible to determine what is an environmental flow for Jerry Creek or the Eel Creek catchment area. What is clear are the limits on the amount and rate of water which can be drawn from Jerry Creek by Mr Allen. The relevant conditions of the Waterworks Licence state: “1.03A Diversion of water under the authority of this License is prohibited when the diversion is likely to cause or will cause the cessation of, or prevent the continuance of surface flow at the site or waterhole, in the stream on which the pump is located. 1.053AThe maximum discharge from the pump authorised by this license shall not exceed 3.5 litres/second (2800 gph). 1.053B The maximum annual diversion of water from the stream authorised by this license shall not exceed 12 ML.” It should be noted that Mr Allen relies on surface flow for irrigation. The hole in which the pump is located has limited storage capacity. It would not be practical to pump at times of low flow as the pump would stop and start if the flow reduced to or below the maximum capacity of the pump, that is 3.35 litres per second. The pump could be permanently damaged if air is sucked into it. It may be that an experienced person could operate the pump in a manner (possibly by use of a timer) so that the pumping occurs for limited periods and never reaches a critical low level. No other licence on Jerry Creek has a condition which prohibits the licensee from stopping the flow of the creek when pumping. I understand the appellants to agree with that condition and would support the imposition of a similar condition on other licences. According to Mr Perry, whilst pumping “may have a small impact on other riparian landowners, licence holders and the in-stream environment on some occasions, the effects would be minimal” (Exhibit 5 page 7). The appellants, however, are not satisfied that those conditions will necessarily preserve an environmental flow in Jerry Creek. They quoted from various documents in which the desirability of environmental flows is identified. For example, Water -- 8 of 18 -- 9 Allocation & Management Planning, a document published by the Department of Primary Industry in October 1995, described the Water Allocation and Management Planning (“WAMP”) framework, the purpose of which is to establish a more strategic, effective and consultative approach to water resource management in Queensland by, among other things, “developing and managing the State’s water resources to meet ecological, commercial and social obligations”. The WAMP framework was described as “a major initiative to achieve the sustainable use and management of Queensland’s water resources”, with decisions about water allocation and management being “consistent with the core objectives and principles of Ecologically Sustainable Development”. The document described current water licensing practices and noted that “serious limitations and problems are emerging as competition for scarce resources increases and the need for environmental flows becomes recognised”. The document anticipated the development and establishment of Water Allocation and Management Plans, which would commence progressively in priority catchments over the next three years. Other Plans would be developed subsequently. Each Plan was expected to take one to two years to develop. The objectives of the Plans would include “healthier river systems and instream habitats through the inclusion of environmental flow provisions in the Plans, both in terms of environmental allocations and of instream flow or aquifer management rules”. The document described the way in which existing licensing arrangements would be dealt with and how existing interests would be protected. No such Plan was in place for the Jerry Creek area. Having quoted articles concerning environmental flow, the appellants’ statement of evidence asked questions: What biological indicators were used by the Department of Natural Resources in determining the environmental flow in this case? What environmental flow is allowed for when the licensee is able to pump up to (but not including) the cessation of flow? What ecological experts have been consulted in determining the environmental flow requirements? The statement then purports to answer the questions by inference, assuming that no allowance was made for an environmental flow. The first ground of appeal suggests, or assumes, that an allowance for an environmental flow should or must be made by the Chief Executive when deciding on -- 9 of 18 -- 10 what terms to grant a waterworks licence. I am not satisfied that the Chief Executive’s power to grant a waterworks licence is so constrained. Nor am I satisfied that a decision to grant a licence which may result in occasional interference with the environmental flow of a watercourse is necessarily a decision which, for that reason alone, this Court should revoke. The evidence demonstrates that, consistently with the legislative provisions quoted earlier and current thinking, environmental matters are among those factors taken into account when the Chief Executive determines whether, and on what conditions, to grant a waterworks licence. Increasing emphasis is likely to be given to such factors as environmental flow as Water Allocation and Management Plans are prepared on a catchment area basis. However, no such Plan existed in relation to Jerry Creek at the relevant date and there was no evidence of what an environmental flow is for Jerry Creek. I am willing to infer that the conditions attached to the Waterworks Licence are directed to environmental considerations as well as ensuring an ongoing supply of water to downstream users. For so long as Mr Allen complies with those conditions, the flow in Jerry Creek will not stop as a consequence of his activity. It may be that, as a result of this compliance, an environmental flow will usually be maintained in Jerry Creek, at least for that part which passes through the appellants’ land. However, on the evidence in this case (including the absence of data about what constitutes an environmental flow), no such finding can be made. The appellants have not proved the first ground of appeal. Even if they had, that ground is an insufficient basis for the appeal to succeed. The first ground of appeal fails. 2. Water quality of Jerry Creek will suffer: The appellants submitted that the quality of Jerry Creek will suffer downstream as a result of higher salinity levels in other tributaries. They have been collecting data for “Saltwatch”, a Government sponsored project to monitor changes in salt levels in water sources. The figures provided to the Court for the period 1993 to 1995 show the electrical conductivity of water from three sources: (a) Jerry Creek from Lot 57 (Mr Allen’s land) (b) Jerry Creek from Lot 56 (from Lobb Creek which enters Jerry Creek on the appellants’ land) -- 10 of 18 -- 11 (c) Jerry Creek from Lot 55 (the appellants’ land). By that measure, the water quality from the main part of Jerry Creek (which flows from Lot 57) is better than the quality of the water from Lobb Creek, which was above the salinity threshold for white clover in each year and needed a “substantial input from Jerry Creek via Lot 57 to reduce the salinity and improve the water quality downstream” (Exhibit 2 Annexure C). According to the appellants, the salt level in Lobb Creek (which emanates from a spring near Jerry Creek on the appellants’ land) is diluted by the Jerry Creek water and so the salt level is lower at their main pump hole. The appellants expressed concern that, although the data and their concerns were made available in their original objection to the grant of the Waterworks Licence, their concerns had not been addressed and the Department had not carried out further ecological tests or sought advice from a recognised ecological expert. There are four matters which merit mention in dealing with the second ground of appeal. First, the Saltwatch figures are of limited value to the challenge to the decision to grant the Waterworks Licence. They were a result of annual sampling (though not on the same date each year) by students and school teachers, with measurements being done by a science teacher. The figures quoted by the appellants were derived from samples taken by Mr Elliot at the same locations each year. There was no dispute that the results could be influenced by levels of rainfall, the use of fertilisers and pesticides in the district, local geology and land use practices, and Mr Elliot agreed that, to determine water quality, it would be desirable to have a whole of catchment area study rather than try to draw conclusions from a small sample. The main (and perhaps only) conclusion which Mr Elliot said could be drawn from the figures is that they showed the relative levels of salt content between the three sources. Second, even though the appellants’ objection to the grant of the Waterworks Licence quoted the Saltwatch figures, there is an issue whether the Chief Executive or any of his officers was under any obligation to carry out further research of the type suggested by the appellants. It is clear from Mr Perry’s evidence that he has no formal qualifications in environmental studies. He was not aware of any percentage of water in a stream which the Department allows to be diverted for irrigation or which it allows for environmental or other purposes. He had not made any examination of -- 11 of 18 -- 12 biological indicators in Jerry Creek and had not sought to use an ecological expert to examine the ecology of the Creek or the effects of licences on it. He had not attempted to quantify or apply an environmental flow to Jerry Creek. Mr Perry does, however, have formal academic qualifications (Bachelor of Applied Science (Rural Technology) and Associate Diploma in Applied Science (Farm Water Supplies)) and has had nine years of relevant experience in that district as stream control officer, or equivalent, with the Department. It cannot be said that he lacks qualifications or experience to carry out, or arrange for, the types of examinations suggested by the appellants. The real issue is whether in this case such detailed examination was necessary. I am not satisfied that the obligation imposed on the Chief Executive by s 8(2) of the Act extends to making detailed measurements of that type for every small creek in Queensland. Third, the water with the highest salt content comes from below, not above, the site of the contested pump. Indeed Mr Elliot stated that the water quality coming from Lot 57 “is much better quality” than that emanating from Lot 56. That is not, however, a complete answer to the second ground of appeal. It must be recognised that downstream licence holders will be best served if the quality of water flowing along Jerry Creek, irrespective of its source or sources, is not impaired because a significantly reduced volume of water flows along Jerry Creek from the site of the pump operating in accordance with the Waterworks Licence. Assuming for present purposes that the water in Lobb Creek is more salty and hence of a lower quality than that in Wattle Creek and Jerry Creek, I am satisfied that any substantial reduction in the volume of water flowing downstream along Jerry Creek from above the confluence of Jerry Creek and Lobb Creek would detrimentally influence the general quality of the water in Jerry Creek below that point and so could adversely affect downstream landholders who are licensed to draw that water. I am not satisfied, however, that the exercise of rights under the Waterworks Licence would lead to a reduction in water quality of such magnitude and with sufficient frequency to warrant the revocation of the Chief Executive’s decision to grant the Waterworks Licence. Fourth, there was no evidence to suggest that dire or even significant environmental detriment would flow from the use of water in accordance with the Waterworks Licence. The evidence in these proceedings suggests that the effect, if -- 12 of 18 -- 13 any, of that use of water on the Creek or catchment watercourses will be minor. In reaching that conclusion I do not dismiss the appellants’ concerns. Indeed it may be thought that the relatively minor detrimental effects of single projects can cumulatively produce significant detriment to the environment. But the appellants’ case did not go that far and no evidence was provided to support such a conclusion. Rather, the evidence suggests that the Department is alert to the need to consider the environmental impact of its decisions and (urged by people such as the appellants) will seek to make water management decisions which pay appropriate attention to relevant environmental factors. There was no suggestion that the Chief Executive and the Department are not concerned to protect and improve water quality in rivers and creeks. Mr Perry said that, as more information about the health of watercourses has become available, the Department has encouraged land owners to protect their stretches of watercourses and manage them as special zones, in particular by fencing them. While the riparian zone has pasture and is open to grazing cattle there will continue to be consequent bank erosion and water pollution. Until recently, landowners along Jerry Creek have made minimal, if any, effort to protect its physical integrity or water quality. The appellants have, however, fenced areas of the creek bank and have revegetated it, and have planted hundred of trees in the riparian zone. Actions like that are supported by the Department and are environmentally responsible. The second ground of appeal fails. 3. Insufficient water in Jerry Creek to allow for another licence on the creek: The appellants submitted that in dry times there is insufficient water in Jerry Creek to meet the demand for irrigation water for themselves and people downstream of their property. They cited two instances, in August 1994 and October 1996, when Mr Elliot observed that the Creek had stopped flowing while pumping was underway upstream from the appellants’ land. When others had come to observe the sites later, after pumping had stopped, the flow of the Creek had resumed. One neighbour made a sworn statement to the effect that the watercourse was overused (see Exhibit 2 Annexure D). As noted earlier, one of the subjects of the inquiry under s 43 of the Act was the availability and sufficiency of water to supply the requirements of riparian owners, licensees, permittees, the applicant and any person, board or other body who has a -- 13 of 18 -- 14 statutory right to use the water. The inquiry was also to be made into the effect that the granting of the application would have or is likely to have on entitlements of riparian owners, licensees or permittees. Mr Perry stated that although the inquiry into Mr Allen’s application took account of the existing entitlements of licensees and permittees, the application was treated on its merits. During routine inspections of Jerry Creek over several years, Departmental officers have observed that in normal seasons a flow of several litres per second at the proposed pump site is usual and this flow persists downsteam, at least to the Eel Creek confluence. Officers recognise, however, that it is not unusual for there to be no flow in Jerry Creek upstream from the unnamed tributary confluence (Exhibits 3, 5). Five times in the decade or so from 1987 restrictions on irrigation were imposed on Eel Creek and all tributaries, including Jerry Creek. Mr Perry interpreted that information as indicating that water shortages were widespread rather than specific to Jerry Creek and its tributaries. The Chief Executive relied not only on Departmental advice, but also on indications from the Eel Creek WAC that concerns about lack of flow appear unfounded. At its annual general meeting on 12 November 1996 it considered Mr Allen’s application. The minutes of that meeting state: “GENERAL BUSINESS Discussion followed on (1) Ian Allen’s application. B Kath moved that the Waterworks License be approved because it is considered that, (a) previous license was in line with acceptable practice. (b) the license if issued will not cause unacceptable problems for landowners downsteam, and all riparian landowners are entitled to a share of available supplies. Seconded D Ross. Carried.” Neither Mr Allen nor the appellants were present at that meeting. Mr Perry was present and said that the application was fully considered by all those present at the meeting. No objections were raised or concerns expressed about the grant of the Waterworks Licence. The Eel Creek WAC comprises riparian landowners from all sections of Eel Creek and its major tributaries, including Jerry Creek. It was established by the -- 14 of 18 -- 15 Department to liaise with and aid in the management of the Eel Creek catchment and provides a community view about stream management. The Department is able to draw on the detailed local knowledge of its members. Apparently the Eel Creek WAC has not expressed concern about the issue of licences in any section of Eel Creek or its tributaries. Although they are entitled to participate in the deliberations of the Eel Creek WAC, the appellants have chosen not to be involved. Mr Elliot explained that he had been invited to take a position on the Eel Creek WAC but had declined, thinking that his views might be ridiculed or dismissed and he would be uncomfortable and “too frustrated in attending meetings.” He was critical of the body, saying that it seems to have very little interest in environmental matters, and seems to “lack ... teeth to tackle matters regarding water use”. Rather, he saw it as controlling “the way water is eked out by the users of the water”. He thought that most of the members are dairy farmers who “tend to stick together and back each other up on water licences”. Even if his assessment is correct, and I need not make any finding on that point, it is unlikely that a body of landholders who depend on a regular supply of water of a reasonable quality would readily support an over allocation of water rights which would be adverse to each of their interests. The appellants submitted, however, that, in the absence of accurate measurements or expert ecological studies, the Eel Creek WAC and the Department are unable to make accurate assessments about whether the Creek could support another licence. More comprehensive and systematic measurements would provide a basis for assessing whether the appellants’ concerns are sound. But the absence of such studies is not fatal to the grant of the Waterworks Licence. The Department has made inquiries of those with local knowledge and who are directly affected. The conditions on the Waterworks Licence impose limits on the volume and rate of water to be withdrawn. In particular, condition 1.03A prohibits diversion of water when the diversion is likely to cause or will cause the cessation of, or prevent the continuance of surface flow at the site or waterhole, in the stream in which the pump is located. A halt in flow like that apparently observed in August 1994 and October 1996 should not occur. I note that even on those two occasions it seems that normal flow was resumed in the Creek very soon after pumping ceased. -- 15 of 18 -- 16 I am not satisfied that the appellants have established that there is insufficient water in Jerry Creek to allow for another waterworks licence on the Creek, particularly one with the conditions attached to the Waterworks Licence. The third ground of appeal fails. 4. Inequitable distribution of water: There were two facets of this ground of appeal. First, Jerry Creek has a limited capacity, and it seems that people who are licensed to draw water cannot consistently irrigate all of the nominated areas because there are times when there is insufficient water. Second, the appellants contended that, because Mr Allen already has a licensed dam a short distance from the licensed pump site, the grant of the Waterworks Licence was an inequitable distribution of water. On the first point, as noted earlier, it is clear that, although Jerry Creek stops flowing in some parts in dry seasons, there is sufficient flow for riparian landowners to draw some water at most times. The pumping of water in accordance with the conditions on the Waterworks Licence is likely to have little effect on the availability of water for downstream users while there is a flow at the pump site. Second, the licensed dam to which the appellants refer was built on a spring on Wattle Creek during a drought in 1979. Despite the drought, water from the spring slowly increased the volume of water in the dam and subsequently the water was used for irrigation. The dam has a capacity of 34 megalitres and Mr Allen is licensed to irrigate from it. The appellants contended that dams built at or below active springs reduce the general flow of water into Jerry Creek (other than when the dams are overflowing). As noted earlier, some water leaks from the dam and flows (together with rainwater and possibly other spring water) into Jerry Creek. But that flow is presumably less than it would be if there was no dam, and the appellants contended that there is very little leakage from the dam into the Creek at times when the water is needed. In the appellants’ submission, the amount of water available to Mr Allen without the Waterworks Licence “is far in excess of what we or our downstream neighbours could hope to obtain during dry weather when the water is really needed. The granting of this license accentuates the inequity.” The fourth ground of appeal raises for consideration whether existing water harvesting practices in the district are relevant to decisions about the licensing of -- 16 of 18 -- 17 water drawn from Jerry Creek. It is apparent that Mr Allen irrigates from dams and bores on his property that do not require licensing under the Act (Exhibit 3 page 7). The use of some form of water storage on the creek is permitted and not uncommon. By comparison, the appellants have two licences to draw water from Jerry Creek to irrigate a total of eight hectares but have not constructed any storage or water conservation measure. It was part of the Chief Executive’s case that some water harvesting measures were a common sense way of maintaining a water supply in dry periods. Mr Elliot agreed that water conservation should be praised and described the dam on Mr Allen’s land as brilliant. Although concerned about the effect of some dams upstream from land owned by people without dams, he recognised the need for dams and that they have “some good influences” for such uses as irrigation. I make no comment about the fact that the appellants have not sought to harvest water on their land, and no criticism of them should be inferred. It should not be thought, however, that a person who has taken steps (or has taken the benefit of others’ action) to harvest water should thereby be deprived of an opportunity as a riparian landowner to draw from a watercourse flowing across his or her land where sufficient water is available and the grant of a waterworks licence would, in the absence of a dam on the land, be a proper exercise of power by the Chief Executive. The fourth ground of appeal fails. 5. Other grounds arising from response to reasons provided under Judicial Review Act 1991: On 3 February 1997 the appellants made a request under s 32 of the Judicial Review Act 1991 for reasons for the decision to grant the licence with the stated special conditions. Because they had not received the statement of reasons before the Notice of Appeal was completed, the appellants sought to “reserve the right to use grounds relating to the reasons yet to be given in arguing our appeal”. The statement of reasons in support of the decision dated 3 March 1997 was Exhibit 3 in these proceedings. The appellants observed that they could find nothing in those reasons which showed any evidence of quantitative measurements being taken of the flow in the creek; examination of any biological indicators; use of an ecological expert; an attempt to scientifically verify their measurements or allay the appellants’ concerns regarding salt and water quality; attempts to quantify or apply an -- 17 of 18 -- 18 environmental flow; or measurements or observations of creek flow during pumping at times of low flow, in particular at times when the appellants had brought those matters to the attention of the Department. Those matters were relied on in support of other grounds of appeal and have been considered already. There being no other grounds of appeal raised in response to the reasons for decision, the fifth ground of appeal fails. Conclusion Section 51(7) of the Water Resources Act 1989 empowers the Land Court to confirm, vary or revoke the decision of the Chief Executive which is the subject of the appeal. The appellants sought either of two outcomes from these proceedings. Their preferred outcome was that the Waterworks Licence be cancelled. In the alternative, and as a minimum, they wanted to see an environmental flow applied to the Waterworks Licence with a suitable means of monitoring compliance. Mr Elliot suggested that one means for giving effect to the alternative would be to construct a weir with a V notch in it to allow an environmental flow to be maintained and the volume of water used to be monitored. Such an installation would, it seems, require a separate licence. As each of the grounds of appeal has failed, it is not necessary to consider that alternative suggestion. The decision of the Chief Executive to grant Waterworks Licence No G-59227 to Mr Ian Allen is confirmed. GJ NEATE MEMBER -- 18 of 18 --