Carbery v Chief Executive, Department of Natural Resources [1998] QLC 16

LAND COURT BRISBANE 12 February 1998 Re: Appeal under Section 51 of the Water Resources Act 1989 - Ref. A97-55. Trevor Selwyn Carbery v. Chief Executive, Department of Natural Resources D E C I S I O N This is an appeal against a decision by the respondent Chief Executive on 24 July 1997, to grant Waterworks Licence No G-59151 to CG and GK Masters who are the owners/occupiers of Lot 10 on RP 800389, Parish of Conondale, County of Lennox, which land is situated in Engle Road, Maleny. The licence authorises an existing earth dam on an upper tributary of Elaman Creek. The dam has a height of 5.0 metres with a base width of 5.0 metres and a crest width of 3.7 metres and a crest length of 40 metres. The stated purpose on the licence is for environment enhancement. The appellants are the owners of Lot 99V, Parish of Conondale, which property is located on Elaman Creek and through which the unnamed tributary upon which the licensed dam is situated runs to that creek. The Carbery property is situated about 750 metres "as the crow flies" north from the Masters' land. It is pertinent to the outcome of this appeal to say that the schedule of licence terms includes No 5A which reads: "If there is a flow in the watercourse into the storage, water must be allowed to pass downstream of the storage through the outlet pipe or siphon pipe or over the bywash or spillway, or by any other means determined by the Chief Executive or Authorised Officer at a rate equal to the unrestricted capacity of the outlet pipe or siphon pipe (with the downstream end of the pipe at bed level) or equal to the rate at which water is entering the storage, whichever is the lesser, or at such a rate as may be determined by the Chief Executive or Authorised Officer. When directed by the Chief Executive the licensee shall install and maintain to the satisfaction of the Chief Executive approved flow measuring devices for the purpose of measuring flows entering and leaving the storage. " The grounds of appeal, to which the appellants are limited under the provisions of Section 51(9) of the Water Resources Act 1989, read: "License has been granted for one only of two dams constructed September 1995 both with permanent springs on same watercourse. [1998] QLC 16 -- 1 of 7 -- 2 One dam wall actually pushed the boundary fence over. The spillway finished at the boundary fence not at permanent bed level and will cause considerable ongoing erosion, siltation damage to marine life (platypus) and turbidity to stock water. These dams don't allow storm runoff which is very important for fresh stock water below. I have excavated holes for stock water this year a first since 1962. " Mr Carbery represented himself and furnished evidence in the case. He told us that the dam which is licensed is the second dam constructed on the Masters' property and both dams were constructed without licences, and both dams were built to catch water flowing from permanent springs on the same unnamed tributary. Mr Carbery is concerned that the spillway of the dam finishes at the bottom of the dam level and he believes that this will cause soil erosion from the lip of the spillway to the creek bed. Mr Carbery claims that this erosion causes considerable siltation in the creek and this has resulted in damage to marine life which once lived in the stream but which now have disappeared. Mr Carbery claims that the licensed dam, together with the second dam, does not allow stormwater runoff, and further that Mr Masters is using the stored water for, amongst other things, the irrigation of a golf course he has constructed on his property. Mr Carbery has not actually seen the pumps on the irrigation system, but was told about the pumping by two contractors who said that there was a pump supplied, a helica rotor pump with underground piping installed. Mr Carbery says this pumping has a serious effect on the available amount of water for his livestock, and as a result of the construction of the dam and the siltation and erosion caused by it, he has had to excavate sink holes in the stream bed on his property to enable stock to be watered in dry periods. This, he says, is the first time since 1962 and since the dams have been built in which he has to make allowances to ensure there is sufficient water for his stock in the paddock through which the unnamed tributary runs. It is his largest paddock where he runs his breeding cattle and Mr Carbery told us that there used to be 15 quite large waterholes in the paddock and now there are only a couple and the deepest is now only 300mm. Mr Carbery believes the dam will not have the structural integrity to withstand flood flows or a high volume of water flow which he indicated by photographs. He says the spillway is not wide enough to allow floodwater flow through the dam and is fearful that should the dam breach, then resultant erosion downstream will be severe. Mr Carbery produced in evidence further photographs showing the present vegetation in waterholes in his property which, he says, is the result of siltation and lack of water flow in comparison with much better flows in past times. He believes that the licensed dam will not enhance the environment but has in fact a detrimental environmental effect on the area below it and probably above the dam itself. Evidence from the respondent Chief Executive was provided by Robert Kevin Patrick -- 2 of 7 -- 3 Watson, who is a Senior Technical Officer (Stream Management) with the Department of Natural Resources. Mr Watson has had about 23 years experience in the Department (formerly the Water Resources Commission), and his work is concerned mainly with the management of water resources. Mr Watson outlined the history of events leading up to the filing of this appeal. He informed the Court that back in 1995 his Department received a complaint from some landholders (presumably including the appellant), in the subject area that another landholder (the Masters) were constructing some dams on a property at the headwaters of the tributary of Elaman Creek and that they was constructing a golf course on the property. As a result, Departmental officers (including Mr Watson) visited the Masters' property and found that there were three dams built on the property, two of which were, in their opinion, very clearly not constructed on watercourses and as a result did not need to be licensed. Notwithstanding very dry conditions at that time, it was thought that one of the dams did have a spring soakage at its tail, and as a result it was decided that the safest way to act was for the Department to ask Mr Masters to apply for a licence for that dam so that arrangements could be made for the spring flow to be passed on to downstream landholders. Mr Watson came to this conclusion notwithstanding that at that time he did not consider that a watercourse was involved, but Mr Carbery and others suggested there was a spring there which fed the upper tributary. Mr Watson told us that the Masters' property is right at the very headwaters of the tributary and that there is a catchment of only about three hectares in that gully system. Since this time, Mr Watson has been back on the property three or four times "just to sort of check on it". Mr Watson confirms that above the licensed dam there is a small excavation and there has never been any evidence whatsoever of any inflow from any springs or seepage. The third dam on the property is on another separate gully system. Mr Masters made his waterworks licence application on 7 September 1995, notwithstanding that he disputed that the licensed dam disrupted the normal flow of water in the tributary to the downstream neighbours. Mr Watson told us that the application was investigated as was required in accordance with Section 43(1)(c) of the Water Resources Act, after which a decision was made to issue the license with the aforementioned schedule term 5A attached. Mr Watson says the reasons for deciding to issue the licence were: "•The property is located at the headwaters of the upper tributary of Elaman Creek. The 3ha of catchment represents only a very small fraction (less than 5%) of the creek catchment area. •The feature only just meets the working definition of a `watercourse' and the property has a normal inflow of a small trickle flow of around ¼-½ litres/second coming into the storage from a spring at the back of the storage. Term 3.005A will ensure that the inflow can pass on downstream as was previously the case. -- 3 of 7 -- 4 •The storage size is also considered insignificant at approximately 0.5 megalitres. •No irrigation is intended (or permitted) to be carried out from the storage. •Taking into account the existing entitlements and uses for other riparian landowners and the riparian environment, it was considered that the storage would have a minimal detrimental impact. •Subsequent inspection of the property revealed a small inflow and exit flow via the bywash. The status quo was considered to have not been altered. " Mr Watson has responded to the grounds of appeal and tendered a statement in the following terms: " 1.'The license has been granted for one only of two dams constructed September 1995 both with permanent springs on same watercourse.' Response To assist departmental officers to determine whether a drainage feature is a `watercourse' (under Departmental control) as defined in the Water Resources Act the following subjective criteria are considered. The feature should be:- •a river, creek or stream; •not subject to tidal influence; •where water flows at least intermittently; •a natural channel; or •a natural channel artificially improved; or •an artificial channel that has changed the course of the watercourse. The feature must have the following attributes:- •defined bed and banks that are continuous; •flow that must continue for a reasonable period after rain ceases and must have some reliability, commensurate with the rainfall pattern. Flow for several weeks after rainfall ceases does not constitute extended flow. •adequacy to support rural activity ie. some benefit must be derived. Mr Watson says that a watercourse can be distinguished from a mere drain or a drainage depression in the contours of the land, which serves to relieve upper land of excess water in times of major rainfall. It may be very difficult to determine if a feature is a watercourse. The determining of the permanency of flow may require several inspections at different locations and at different times of the year. As a drainage depression develops down a catchment, the attributes evolve until they are sufficient in combination to constitute a watercourse. -- 4 of 7 -- 5 Mr Watson is of the view that the top storage is not considered to be on a watercourse and had no spring in-flows. This opinion was formed after the initial inspection and subsequent discussions with local residents. One of the objectors also stated that the top storage was of no concern and would have no impact on them. Mr Watson says that ongoing drought conditions in the district had dried up all but the most reliable of springs. Two subsequent inspections have confirmed that the now licensed dam is spring fed, and thus does fall within the jurisdiction of the Department. Safeguards have been put in place under the licence to ensure that the rights and entitlements of downstream water users are preserved. 2.`One dam wall actually pushed the boundary fence over. The spillway finished at the boundary fence not at permanent bed level and will cause considerable ongoing erosion, siltation damage to marine life (platypus) and turbidity to stock water. These dams didn't allow storm runoff which is very important for fresh stock water below. I have excavated hole for stock water this year a first since 1962.' Response The initial embankment was considered to be poorly constructed. Of major concern was the fact that it did not have a suitable bywash (spillway). Upon being informed of this fact Mr Masters took immediate steps to have a concrete spillway installed. The applicants also immediately sowed grass seed in order to minimise erosion and subsequent siltation downstream. The dam embankment is now well grassed and stabilised. The silt produced from the construction of the embankment would be no greater than erosion generated from traditional land management practices (eg the runoff from a freshly worked cultivation) following intense precipitation. The risk of siltation is greatest immediately after construction, and it is considered that that risk has long past. Mr Watson says that the need to desilt waterholes is a common practice, and that the abnormal seasonal conditions are likely to have more to do with the need for Mr Carbery to excavate a hole for stock water than the existence of the small dam. The licensees' downstream neighbour has not lodged any formal complaint with the Department concerning the allegation about interference with the boundary fence, and Mr Watson claims this has no relevance to Mr Carbery's appeal. Mr Watson told us that on a walk up the catchment with the objectors, no evidence could be seen of the creek being fenced off from cattle. The creek therefore is being managed in the same manner as the surrounding land with no apparent consideration to its geomorphological and ecological uniqueness. It is considered that cattle being allowed free access to the creek not only impacts the stability of the stream but also water quality. -- 5 of 7 -- 6 Mr Watson told us that the Chief Executive's decision was made after careful consideration of the relevant Acts, opinions and information available. In his opinion, all matters relating to the application, processing, recommendation and notifications were undertaken as required under the Water Resources Act. He further says that in this case, the community, through the Mary River Water Advisory Committee, has supported the application provided flows are maintained, and that the decision of the Chief Executive to grant the licence is reasonable given that the terms of the licence will ensure flows downstream are maintained. Mr Watson commented in evidence that he was advised by Mr Masters that he was putting in a golf course on his land and that the dam was essentially to provide access for a greens mower across the wall to go from green to green, and that prior to the construction of the dam, a very steep gully would prove difficult to cross with machinery for mowing and firefighting. Mr Watson stressed that Mr Masters wrote to the Department saying that the dam was not to be used for irrigation. But in any event, Mr Watson contends that the small capacity of the dam - originally assessed by him to be 0.5 megalitres but eventually revised to 0.2 megalitres, is not sufficient for irrigation. In reality, Mr Watson says that Mr Masters waters the golf greens from an equipped bore and he has not seen a pump on the licensed dam on any of his visits to the property. Mr Watson commented that a likely source of erosion affecting the capacity of Mr Carbery's waterholes and the licensed dam would be the construction work in the area, from cultivated land, and disturbance of surface soil by cattle watering in the tributary. Another possible source, although Mr Watson was not sure of it, was the washing out of a spillway of a dam located on a property owned by JR and JA Oxenham which is situated between the Masters' property and the Carbery property. The problem with this dam was drawn to Mr Watson's attention by Mr Carbery, and Mr Watson says the Department will need to take some action to have the erosion from the dam (which is licensed) redressed by what could prove to be expensive stabilisation earthworks. I have carefully considered the evidence in this case and I have come to the conclusion that the onus resting upon the appellant has not been discharged. I accept his evidence about the siltation of the waterholes in the unnamed tributary of Elaman Creek which runs through his property. I also accept that it is possible that some of the siltation was caused by erosion from the licensed dam, particularly during its construction and for some time after its construction while surface areas are subject to such erosion during heavy downpours or flooding in the tributary. But the photographic evidence provided by the respondent (Exhibit 4) of the dam taken very recently shows that the banks of the dam are now well vegetated and provided this continues to be the case, then I accept that the likelihood of on-going erosion of sufficient magnitude as to cause serious siltation in waterholes used for watering stock on downstream properties from this source is negligible. I agree with the respondent's submission that he has the power to license existing dam structures. The remaining significant matter raised by Mr Carbery is that the dam restricts the flow of water in the tributary and affects the availability of surface water flowing down it. But -- 6 of 7 -- 7 I feel the insertion of Term 5A in the licence should control this problem, and Mr Watson's evidence is that each time he observed an inflow into the dam from the tail spring, there was an outflow over the spillway. So, in effect, there has not so far been the need for the installation of a device (a polythene syphor hose over the spillway with a gate valve and foot valve) to ensure there is an outflow when water is entering the dam storage when it is not full. Moreover, the evidence convinces me that the seasons of recent years have, on the whole, been well below average, and this would no doubt have an effect on the availability of surface water from natural springs along the tributary. On the evidence in the case, it is just not possible to say whether there has ever been irrigation carried out by the Masters of their golf course as suggested to Mr Carbery by the contractors. But it is to be noted that there is no provision for irrigation from the licensed dam in the conditions of the licence, without which irrigation would certainly be in violation of the licence, and appear to be actionable under the provisions of the Water Resources Act. As a consequence of the foregoing remarks, I find that the decision of the respondent Chief Executive to issue Waterworks Licence No G59151 to CG and GK Masters with its Schedule of Licence Terms was justified and such decision is, in accordance with the provisions of Section 51(7) of the Water Resources Act 1989, confirmed. (CH Carter) Member of the Land Court -- 7 of 7 --