Buchanan v Chief Executive, Primary Industries Corporation (now Department of Natural Resources) [1997] QLC 114 (1998) 19 QLCR 1

LAND COURT BRISBANE 31 JULY 1997 Re: Appeal under Section 51 of the Water Resources Act 1989 - A95-69 GA and JL Buchanan v. Chief Executive, Primary Industries Corporation (now Department of Natural Resources) D E C I S I O N This is an appeal by Graeme A and Joyce L Buchanan dated 12 September 1995 under the provisions of the Water Resources Act 1989 against a decision by the Chief Executive, Primary Industries Corporation (now Department of Natural Resources) to grant Waterworks Licence No. G-0110894 to JH and RA Sumbak authorising the use of an existing 50 mm pump to divert water from the Stanley River to supply their land which is described as Lot 3 on RP 882487, Parish of Durundur, County of Canning. The stated purpose of the works as contained within the Waterworks Licence is for the irrigation of 12.0 ha of land, as well as for domestic supply and stock watering. The Waterworks Licence contains, amongst other schedule terms, the following provision: 1.025 Diversion of water under the authority of this Licence is not to exceed 25 litres per second. The appellants Buchanans also own land with a frontage to the Stanley River situated opposite the Sumbak land and which is more particularly described as Lot 1 on Plan 7003 and Lot 3 on RP 18114 and Lot 6 on RP 18115, Parish of Durundur, County of Canning. The notice of appeal contains the following grounds of appeal, to which the appellants are limited under the provision of s.51(5) of the Water Resources Act 1989: "1. Under Section 49 of the Water Resources Act 1989 the Waterworks Licence No. G-49770 ceased to exist when the 158 acre (64 ha) property was subdivided in late 1993 or early 1994, and subsequently cannot be transferred. 2. The advertising of two applications, ie initially a new application for an area of 29.3 ha, No. 00002, and subsequent withdrawal of this and subsequent readvertising to replace this by transferring the previous licence of 12 ha which has ceased to exist. 3. Water Resources total disregard for considering any objections to applications for new Waterworks Licences or increase in area including [1997] QLC 114 -- 1 of 10 -- 2 objections made by us to four Waterworks Licence applications by landholders directly upstream of us in 1994, although Water Resources acknowledge the overcommitment of the Stanley River below the Woodford Weir particularly with the fast growth of the Woodford township and the re-opening of a 600 cell jail in Woodford as acknowledged in their letter dated 22nd May, 1995. 4. Gross overcommitment of the Stanley River below the Woodford Weir. 5. Water Resources acknowledgement of the overcommitment of water resources on the Stanley River and its tributaries by the implementation of a system of Conditional Permits for all new Waterworks Licences applied for after the 6th July, 1994. 6. Contravening the stated policy of the Stanley River Water Advisory Committee, ie that after the 6th July, 1994 all new Waterworks Licences would be conditional ie after the first round of pumping restrictions (when stage 2 of the restrictions came into effect) all pumping by conditional holders would have to cease. This policy was formulated by Water Resources Officers in conjunction with the Stanley River Water Advisory Committee from the annual meeting in October, 1993 onwards and brought into force as of 6th July, 1994. 7. Water Resources total failure to date to implement any pumping restrictions below the Woodford Weir in dry times although the river has completely ceased to flow at our property for periods of up to 3 months. 8. Water Resources total failure to date to regulate the taking of water from the Woodford Weir for the Woodford town supply." The conduct of the appeal was in the hands of Graeme Alan Buchanan, who also furnished evidence in support of the grounds of appeal. Much of Mr Buchanan’s evidence is not relevant to the outcome of this appeal since he really seemed to use the Court as a forum to air the appellants’ non-relevant grievances with Water Resources section of the Department of Primary Industries. I do not propose to comment in this decision on many non-relevant issues raised by Mr Buchanan. At the outset of the appellants’ case, Mr Buchanan informed the Court that the appellants wished to conduct the appeal basically on two fronts. They are: "(1) The Waterworks Licence should not have been issued on the Stanley River below the Woodford Weir (including the Woodford Weir) as it is already grossly overcommitted. (2) If you do not uphold our appeal against the issuing of the Waterworks Licence absolutely, then the licence can only be issued as a Conditional Licence as the original licence ceased to exist on subdivision of the property, the application for the new licence being made after 6th July, 1994." -- 2 of 10 -- 3 Mr Buchanan informed the Court that the Sumbak land and his property are situated some 10 km downstream from the Woodford Weir, that there are 14 current licence holders below the weir, and that the appellants’ property is the last one downstream of the weir before the Stanley River enters the Somerset Dam. There is 575 acres (232 ha) of land benefited from irrigation licences below the weir, of which 355 acres (144 ha) has been licensed since 1987 and 150 acres (60 ha) has been licensed since 1994. Mr Buchanan submits that in view of the licences existing prior to the issue of the Sumbak licence on 8 August 1995, the supply of water in the Stanley River was grossly overcommitted, and that it should not have been granted on this basis, and he feels it is pointless to have granted the additional licence, even as a conditional licence. It is obvious, as a result of the tenure of Mr Buchanan’s evidence, that the appellants have been disenchanted by the respondent Chief Executive’s decision to continue to issue licences on the Stanley River, since he describes his action in making such a decision to have been “out of control”. Mr Buchanan informed the Court that the Sumbak land is the legacy of a subdivision of a larger property formerly owned by R and SA Weir. The Weir land was benefited by Waterworks Licence No. G-49770, and was subdivided into several lots of which Lot 3 on RP 882487 (the Sumbak land) is one. Mr Buchanan drew the Court’s attention to the provisions of the Water Resources Act 1989 (s.49) which declares the effect on Water Act licences upon the disposal of subdivided land. The section reads: "(1) This section applies if - (a) a licence, authorising water to be taken, is in force for land; and (b) the land is subdivided, whether before or after the issue of the licence; and (c) a separate parcel of land comprising the subdivision is disposed of while the licence is in force. (2) On the disposal, the licence ceases to exist and section 50(3) and (5) apply as if the licence had been cancelled or revoked under that section." Having regard to this relevant legislation, it is the appellants’ contention that the former Waterworks Licence held by R and SA Weir (No. G-49770) authorising the irrigation of 12 ha of land using a 50 mm pump on the Stanley River ceased to exist on subdivision and sale of the Weir property. That this is so is not in doubt or dispute. Mr Buchanan further contends that, since Licence No. G-49770 ceased to exist, then the issue of the subject Waterworks Licence No. G-0110894 is in reality the issue of a new licence which ought not -- 3 of 10 -- 4 have been granted due to the gross over commitment of the water resource in the Stanley River below the Woodford Weir. This, as I understand his evidence, is the central issue in Mr Buchanan’s case. The second issue raised by Mr Buchanan is that the issue of the licence to the Sumbaks should have been only as a conditional licence requiring irrigation to cease upon the introduction of Stage 2 pumping restrictions by the Stanley River Water Advisory Board. During the course of the hearing of the matter, it became surprisingly apparent that Mr Buchanan had not been made aware of the adopted policy of the Stanley River and Tributaries Advisory Committee Stream Policies bearing dates 10 August 1994 and 31 October 1995. The 10 August 1994 policy reads: "1. That as recommended by the Committee all applications will be issued on the following basis to ensure that no further commitment is made to the low flow of the river. 2. That existing irrigators with licences that allow pumping during restriction periods prior to 6 July 1994, who have applied for an increase in area, will be granted unconditional licences. The Water Advisory Committee has accepted that restrictions, and their correct implementation will control the areas irrigated. Reference to a reduced area is no longer necessary. 3. That any new applications, with no history of irrigation as of 6 July 1994 be issued as a conditional licence. 4. That all new Waterworks Licences for direct pumping for irrigation be issued with a condition authorising a maximum output of 25 litres a second (with a preferred maximum pump size of 50 mm) on the Stanley River, and a maximum output of 15 litres a second on all Tributaries and Creeks in the Water Advisory Committee area (preferred maximum pump size 50 mm). (This condition will also be placed on all increases to pump sizes). 5. That Conditional licences - 'conditional licence holders cease pumping upon the introduction of Stage 2 restrictions', and new Waterworks Licence conditions be worded accordingly. 6. That licences issued as 'conditional' would benefit from any future inclusion of additional pumps included in the restriction roster on a first up basis (date of application). The 30 October 1995 policy of the Stanley River and Tributaries Advisory Committee Stream Policies restates Clauses 1 to 6 in the earlier policy and adds the following: "7. That particular emphasis be applied to enforcement of Condition 1.024 on Waterworks Licences. That an indication from a licence holder -- 4 of 10 -- 5 threatening a failure to comply, should result in the licence holder showing cause as to why the Licence should not be cancelled. 8. In accordance with the policy of the Committee requiring no further commitment to the low flow of the rivers and creek in the Committee’s jurisdiction. When an unconditional licence ceases to exist due to subdivision and disposal of land, upon receipt of an application for a replacement Waterworks Licence, issue of one Waterworks Licence subject to the previous terms is in order." It is to be noted that Condition 1.024 on the Sumbak Licence (No. G-0110894) reads: "Diversion of water under the authority of this licence is to be carried out strictly in accordance with the directions of the Chief Executive whenever restrictions are imposed by the Chief Executive on diversion from the watercourse, lake or spring on which the licensed work is authorised to be installed or whenever restrictions on irrigation have been recommended by the Water Advisory Committee in whose area the watercourse, lake or spring is located." Now it transpired in evidence that the appellants, GA & JL Buchanan, were issued, no doubt in response to an application, with Waterworks Licence No. G-56449 on 2 March 1994 authorising the use of a 50 mm centrifugal pump to divert water from the Stanley River for use on their property for irrigation (16 ha in conjunction) and stock watering. This licence is additional to a then already existing licence (No. G-39745) held by the appellants authorising the diversion of water using a 50 mm pump to irrigate 16 ha (in conjunction) from the Stanley River - licence originally issued on 4 May 1982 with expiry date of 31 October 2001, and I should comment that it seems passing strange that the appellants would, on the one hand, have obtained an additional licence to divert water from what they described as the grossly overcommitted water supply in their section of the Stanley River, and on the other, to appeal against the granting of the licence to the Sumbaks to divert water from the same section of the river. The respondent Chief Executive called in evidence Nigel John Jeffares, who is a Senior Technical Officer (Stream Management) in the employ of the respondent Chief Executive stationed in the Moreton District (Brisbane Office). Mr Jeffares outlined in a prepared and tendered statement the comprehensive history of events and considerations leading up to the issue of Waterworks Licence No. G-0110894 to the Sumbaks. Again I do not propose to discuss the whole of this submission in detail in this decision as the document is in the hands of the parties for reference. -- 5 of 10 -- 6 Mr Jeffares informed the Court that Waterworks Licence No. G-56449 was issued to the appellants consequent upon an application made by them when the Stanley River Water Advisory Committee was recommending granting unconditional Waterworks Licences in response to applications received before 6 July 1994 (the date of the implementation of Stage 2 Conditional Policy). With regard to the Sumbak licence, Mr Jeffares told us that they purchased their property in August 1993 at which time he confirmed it benefited from Waterworks Licence No. G-49770 authorising the diversion of water from the river for the irrigation of 12 ha on the original Lot 362 on Plan CG 93, Parish of Durundur. Mr Jeffares also confirmed that this land was since subdivided and sold, and that as a result in accordance with s.49 of the Water Resources Act 1989, that licence ceased to exist. But the Sumbaks purchased the only Stanley River riparian block in the subdivision, and they were advised that the policy of the Stanley River and Tributaries Water Advisory Committee was such that no licence would be issued unconditionally, if it was to increase the load on the low flow regime of the river system, and further that as there was an existing commitment under the previous ownership of their land, any application for a licence would be viewed by the Water Advisory Committee and the respondent Chief Executive as not increasing that load. Subsequently, consequent upon a Waterworks Licence application having been received from JH and RA Sumbak on 23 November 1994, the mandatory advertising of the application was made in the “Kilcoy Sentinel” on the basis that the licence was to authorise the use of a “proposed” pump. The application sought approval for the use of an existing 50 mm pump to irrigate 29 ha. An objection against this application was made by GA and JL Buchanan. Mr Jeffares told us that the original advertisement was in error, and it was corrected by a further advertisement on 17 May 1995 in the same publication with the application authorising the use of an “existing” pump. The Sumbaks were informed of the objection by the now appellants Buchanans and were cautioned that if the application for an increased area compared with the area in the original licence (12 ha) was pursued, then a derived benefit could be perceived and the licence, if issued, would differ from the original licence, and the Water Advisory Committee may not support the application in that event. Subsequently, advice was received from the Sumbaks’ solicitors seeking to amend the application to an area of 12 ha which equated the area of the original licence. Following this later advertisement, GA and JL Buchanan again lodged an objection against the issue of the licence. -- 6 of 10 -- 7 Mr Jeffares told us that while the Water Advisory Committee operates in an advisory capacity, his department has involved itself in the formation of its policy, and where possible it endeavours to support the Committee’s policies. Mr Jeffares says the Stanley River benefits from usually good flows in the comparison with other river systems in the south-east region. But when restrictions are required, Mr Jeffares concedes that shortages can occur around and downstream of the Woodford township. With the advent of the fledging policies in 1994, for the first time an irrigation roster of restrictions was drawn up. Mr Jeffares informed the Court that on 30 October 1995 (I note this is subsequent to the date of the issue of the subject licence), there was an amendment to the Water Advisory Committee policy as a direct result of the concerns expressed by Mr Buchanan through his objection to the issue of the Sumbak licence. It was thought that, to further clarify the situation, a policy be adopted "that no further commitment is to be made in low flow situations, when a subdivision and disposal of land occurs, upon receipt of an application for a replacement licence, issue of one Waterworks Licence subject to the previous terms is in order". It is here worthy of comment that the Condition 1.025 on Waterworks Licence No. G-0110894 was imposed as the Waterworks Advisory Committee required all new licences, or pump alterations to include the term that specified "diversion of water under the authority of this licence is not to exceed 25 litres a second". Mr Jeffares has set out in his statement of evidence his comments on the grounds of appeal. They read: "GROUNDS OF APPEAL AND RESPONSE 1 Waterworks Licence 49770 ceased to exist, and cannot be transferred. Response - the licence did cease to exist, and could not be transferred upon subdivision and disposal. Hence the licensing, objection and appeal process. 2 The initial application No 00002 was advertised for 29 ha, it was re-advertised to replace this by transferring the previous licence of 12 ha which has ceased to exist. Response - Re-advertising occurred due to the incorrect description of works, 'proposed' instead of 'existing'. The reduction in area, was requested to add no benefit to the old licence, and was the choice of the applicants. The Department was advised by their solicitors. 3 The Department’s disregard in considering any objections to applications for new Waterworks Licences or increases in area. Reference to -- 7 of 10 -- 8 4 Licences applications upstream in 1994. Overcommitment due to Woodford Township, 600 cell jail, and below Woodford weir. Response - The Department has considered every objection received on the Stanley River, and has followed up with interview, either in person or over the phone. Mr Buchanan has been contacted on several occasions, whenever he has had an issue of concern. All applications have been dealt with in line with the WAC policy. Policy No 2 deals with the issue of increase in area. The Department is very concerned about the increasing demands of Woodford Township, and their storage, and lack of harvesting provisions. 4 Gross overcommitment below weir. Response - There are water users below the weir, however to claim gross overcommitment would seem strange when the appellants saw fit to apply for, and were happy to receive a Waterworks Licence a few months earlier. Supplies in the Stanley River for the greater part of any given year are normally good. 5. Water Resources acknowledgment of overcommitment of Stanley River and Tributaries by the implementation of a system of conditional Permits (sic. Licences) for all new Waterworks Licences applied for after 6 July 1994. Response - Commitment has been acknowledged. The Department's actions in conjunction with the WAC, have, in the case of the Stanley River and Tributaries has been proactive in the sense of acting before overcommitment occurs; by implementing a system of conditional licences. 6 Contravening policy of Stanley River WAC formulated in conjunction with Department officers, to issue all NEW licences after 6/7/94 conditional requiring irrigation to cease upon the introduction of stage 2 restrictions. Response - This is the essence of GA & JL Buchanan's appeal. Great care was taken to ensure that the Department's interpretation of the WAC policy was correct. This was done by verification with the Committee Executive. The whole thrust of the policy is to ensure that no further commitment is made to the low flow of the river. To this end, it was verified that if the application was for the same benefit as the existing licence, then a licence should be issued with the same terms and conditions. In case new plant had been installed, the output condition (WAC policy term 4) should be included as a safeguard. The Department took every step possible to ensure the policy was upheld, and Mr Buchanan was fully informed as to the reasoning behind every decision. As a direct result of the initial objection received from Mr Buchanan, most WAC's in the Moreton District have addressed the issue of subdivision and disposal of land, and the impacts on an existing licence, and have included a specific policy item on the issue. -- 8 of 10 -- 9 7 Department's failure to implement restrictions below Woodford weir in dry times although the river had completely ceased to flow at appellants' property for up to 3 months. Response - The Department has taken the first steps to formalise a roster of restrictions for irrigation. Further voluntary input is required, in the form of controllers. The historical reference to the cessation of flow for up to 3 months cannot be validated. The WAC members have I understand visited the property of Mr Buchanan's when alleged shortages existed (before the new roster sheets existed). The Stanley River has not incurred dry periods to compare with the rivers around Beaudesert and Rathdowney in the last seven years, as the catchment has benefited from interspersed rainfall in excess of the southern catchments, and problems on the respective rivers reflected this fact. Policing and stream management resources have through necessity been devoted to these southern catchments." I divert here from the text of Mr Jeffares' submission to say that he verbally indicated to the Court that he could accept that the flow in the river may stop for one week, but he finds it hard to accept that it would have stopped for three months. "8 Departments total failure to regulate the taking of water from Woodford weir for the town supply. Response - The Department has made preliminary enquiries with the Caboolture Shire Council to determine the method of operation, and whether the conditions of the Order in Council pertaining to extraction of water are adequate. The Department is confident of a sound working relationship being forged at an operational level with Caboolture Shire Council personnel. The Department is not prepared to accept the concept of a 'leaked' supply to downstream users under low flow situations.' Section 43(1) of the Water Resources Act 1989 provides that “ Upon an application under s.42 and an objection thereto, the chief executive must cause inquiry to be made - (a) where the application relates to water other than underground water - into - (i) the availability and sufficiency of water to supply the requirements of - (A) riparian owners; and (B) licensees; and (C) permittees; and (D) the applicant; and (E) the persons specified in section 4(a); -- 9 of 10 -- 10 (ii) the effect that the granting of the application will have or is likely to have on entitlements of riparian owners, licensees and permittees;” Now the evidence in this case convinces me that the Chief Executive has complied with the requirements of s.43 of the Act in that he has fairly and adequately made the necessary inquiries and investigations before deciding to issue Waterworks Licence No. G-0110894 to JH and RA Sumbak. Further, it is for the appellants to satisfy the Court that the onus resting upon them has been discharged (s.51(9) of the Water Resources Act 1989), and again on the evidence, I cannot come to this conclusion.. In these circumstances, I cannot uphold the appeal. It is dismissed, and the decision of the respondent Chief Executive to issue Waterworks Licence No. G-0110894 to JH and RA Sumbak under the terms scheduled in the Licence is confirmed. CH CARTER MEMBER OF THE LAND COURT -- 10 of 10 --