Dawson v Chief Executive, Primary Industries Corporation [1996] QLC 42

LAND COURT BRISBANE 23 APRIL 1996 Re: A94-86 An appeal against a decision to amend Waterworks Licence G55345 - North Johnstone River - Lot 4 on Plan NR 7980, Parish of Malanda. A.W. Dawson v. Chief Executive, Primary Industries Corporation (Hearing at Atherton) D E C I S I O N From a statement tendered to the Court through its author, Mr R.P. Walsh, Technical Officer/Stream Control, Primary Industries Corporation, the following sections are reproduced here: "3.0 BACKGROUND On 6 February 1992, Mr Dawson made application for a waterworks licence for an existing weir he constructed across the North Johnstone River adjacent to his property. An objection was recorded against the application by upstream landowners, RG & ND Rogers. Previous to that Mr Dawson had approached the Department seeking approval to reinstate an old causeway. Although approval was given at that time, subsequent inspection in response to a complaint by the Rogers revealed that the structure was a weir and therefore constituted 'works' under the Water Resources Act 1989 (the Act). After investigation, the application as applied for was granted. Waterworks Licence No 55345 then issued authorising the existence of a 1.5 metre high gravel and rock weir. Under the Act, 'height' means 'the measurement equivalent to the difference in level between the natural bed of the watercourse at the downstream toe of the barrier and the top of the barrier'. The weir is less than 40 metres upstream from a low level bridge that forms part of Glen Allyn Road. The bridge is naturally inundated by the river from time to time. Because of the non-permanent nature of the structure, streambed variability and the public asset downstream, it was necessary to ensure the crest of the structure remained at a fixed level. An assumed level datum was established on the bridge and the crest level determined in relation to that datum. The crest level was thus fixed at RL 99.52 m ie. 470 mm below the level of datum point. The water level was effectively raised 700 mm by construction of the weir. Mr Dawson was issued with Waterworks Licence No. 55345 on 28 August 1992. [1996] QLC 42 -- 1 of 7 -- 2 4.0 APPEAL BY RG & ND ROGERS Mr & Mrs Rogers subsequently appealed the decision of the Chief Executive. The hearing of their appeal occurred on 29 November 1993. On 25 March 1994, the decision of the Court was handed down. The Court ordered the weir to be lowered 300 mm and directed that Special Condition 2 of the Licence be amended by deleting the figure '99.52 m' and substituting the figure '99.22 m'. Effectively the crest of the wall was to be lowered 300 mm and as a consequence, the water level would be lowered a similar amount. 5.0 AMENDMENT OF LICENCE 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 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. Licence No. 55345 was amended on 24 October 1994 to reflect the Court decision that the crest of the weir be no higher than 99.22 m in elevation. A further amendment was made to Special Condition 3 which specifies the bench mark to be a steel star picket located on the right bank as mentioned above having an elevation of 105.97 m. This datum is consistent with that used in Surveyor J Charles original survey. The amended licence was issued on 24 October 1994 and received on 26 October 1994." Mr Dawson, the licensee and appellant, conducted the appeal on his own behalf. Mrs T. Johnson, Barrister, appeared for the respondent. -- 2 of 7 -- 3 The background to this matter as described by Mr Walsh, is not entirely as Mr Dawson sees it. In his opinion, the works should not be seen as of "non-permanent" construction. He felt he had been given written approval by the Department for him to proceed with the actual work as opposed to "reinstating an old causeway" prior to the need for the initial licence application. Indeed, in a letter dated 10 February 1992, accompanying the application, are the following paragraphs: "I would also like your office to remember when considering my application that I had previously contacted your office re this work and was subsequently granted permission for the carrying out of this work in a letter dated 23rd Dec 1991." ...... "In light of these facts, I wish to make it known that in 'no way' do I consider in making the enclosed application for 'Water Works Licence' that such application makes 'Null & Void' the approval as granted to me on the 23rd 12th 91." (That letter stated that it was a notice to serve as an authority for Mr Dawson "to carry out minor works"). Mr Dawson tendered a photocopy of what he said was the original licence application and did not accept that the application contained a measurement indicating the height to the "bywash" or "spillway", on the downstream side of the structure. The original application was produced by the respondent. I have no doubt that the photocopy did not include part of the margin on which the figure "1.5m" was written. It may be relevant, however, that the application was clearly intended as describing the existing work and the "1.5m" indicated the height to the "spillway" or "bywash" and "top water level". As stated by Mr Walsh, the amendment to Special Condition 2 in the original licence, as contained in Special Condition 2 of the amended licence, is in accordance with the decision of the then President of the Land Court, Mr D.M. White, delivered on 25 March 1994 in the matter R.G. & N.D. Rogers v. Chief Executive, Department of Primary Industries. Mr Dawson claims that prior to the hearing of the Rogers appeal, he had already lowered the height of the "crest" of the "spillway" in an effort to appease those appellants. Part of the thrust of this appeal was initially directed towards the outcome of that appeal. Mr Dawson was not included as a party to the proceedings in that appeal and was not called to give evidence. He seems convinced that the Land Court decision was based on some unreliable evidence which he believed he could have rebutted had he been called to give evidence. He obviously sees himself as a "person aggrieved" by the decision, because he interprets the specified "crest level" as amended and reduced from the original structure, to be inconsistent with the then adopted benchmark and its assumed datum level. He says that he passed on that information prior to the hearing of the Rogers appeal. Mr Dawson has experience as a "construction engineer - registered builder" and he is well-versed in matters relative to construction works, benchmarks and levels. He quite -- 3 of 7 -- 4 correctly argues that if an original benchmark and its level are altered, then no reliance can be placed on other levels obtained from that original benchmark. The original licence, with which the Rogers appeal was concerned, contained five Special Conditions, Nos. (2) and (3) of which are relevant to this matter as follows: "(2)The crest level of the dam is not to exceed 99.52 (assumed datum). (3)The datum is a bolt on the southwest corner of the bridge having an assumed level of 99.89 m. Mr Dawson had found at the time when initial survey work had been carried out, a bolt in the south-west corner of the bridge, covered by a red plastic cap (which he had photographed). He assumed (not unnaturally) that bolt was the benchmark referred to. There were no other identified marks. The survey information which he said he passed on to the respondent was obtained from the Mr and Mrs Rogers' surveyor but not, according to him, included in evidence in that appeal. Because of pending alterations to the bridge (Glen Allyn), the Department's surveyor had established another more permanent benchmark in another location. That had a stated assumed elevation of 105.97 m, based on the datum of the original bridge benchmark. Mr Dawson had accepted (from comments made by Mr and Mrs Rogers' surveyor), that the elevation of the new benchmark would have been incorrect, based on the bolt (which the surveyor apparently also accepted as the original benchmark) having an elevation of 99.89 m. The new benchmark, on his assessment, should have been 105.723 m. Otherwise, for the level of 105.97 m to have been correct, the original bridge benchmark could not have been the bolt as stated but instead the top of a "sawn-off" 2-inch galvanised pipe in close proximity to the bolt. This, in Mr Dawson's reasoned opinion, resulted in the original levels for the crest of the dam being inaccurate as well as the reduced level of 99.22 metres ordered by the Court. However, in the amended licence the ordered crest height was "not to exceed 99.220 metres" and the original Special Condition (3) was amended to the following: "The datum is the top of a steel star picket driven to ground level and located as shown on form SS2 held in the Mareeba District Office. The Bench Mark is numbered 923234 and has an assumed elevation of 105.970 m." The grounds of Mr Dawson's appeal referred to the potential effects of the Land Court decision associated with the alleged erroneous levels. Also included were allegations of "non-existent" consultations emanating from the Mareeba DPI. Mr Dawson claimed that the wording in Special Condition (2) should read crest level of "spillway" and not "dam". In this matter, Mr Dawson was specifically refused attempts to give evidence as to matters relating to the Rogers appeal, except to the extent that the decision was alleged to affect the validity of the specified levels. It is clear to me that the decision in that matter required the crest level of the dam structure licensed originally, based on its original construction, to be lowered by 300 mm. If the reduced level as specified was found to be based on erroneous -- 4 of 7 -- 5 levels then the specified "crest level" would be, in my opinion, subject to review in this appeal - but not the reference to 300 mm. In my opinion, jurisdiction does not lie with this Court to hear an appeal against the decision in Rogers. Now, if Mr Dawson has, since its original construction and survey, already reduced the "crest level of the dam" then he may have, by his own efforts to resolve that appeal, already complied with the order. That is not a matter which I can decide,. but would need to be proved by survey. It seems to me that Mr Dawson's suggestion that "crest" should, in practical terms, relate to "spillway" has in this case, some technical support. It might well be that the spillway should be contained within the middle section of the structure while the wings or other sections might be of higher elevation and still serve the best interests of all concerned. For example, there was a suggestion (in correspondence from the Department to Mr Dawson) that directing the low flow to a central "spill" section of the structure would have the effect of reducing the ponded water height whilst also reducing or preventing downstream river bank erosion. It is observed that the subject licence was (apart from appeal provisions in the legislature) due to expire on 31 March 1996. If "works" are to remain, or be altered, Mr Dawson would be required under the provisions of the Water Resources Act 1989 to make application for a fresh licence. The time now appears to have arrived for such application to be made and to include a description of the works which might be more complete and technically correct, if for example, the "crest" should apply to a section of "spillway" to remove any doubt - in the interests of all concerned. As I see it, it would be open for the applicant to seek a new licence for whatever "works" he requires. The application then must be investigated and no doubt the decision of the Land Court in Rogers would not be overlooked by those responsible for the investigation. If evidence is available to warrant alteration to the Rogers decision, either favourably or otherwise to the applicant, then that evidence would need to be sought and considered. The decision of the chief executive on any new application, would be open to appeal to the Land Court, under presently existing legislation, by any person who is deemed to be "a person aggrieved" by that decision. In my opinion, the Land Court in such a situation would not be bound by the decision in Rogers, but would be unlikely to exclude from consideration the reasons for that decision. This matter cannot be determined on the basis of what might occur in the future. The evidence of Mr Walsh provided an understanding of the position of the Department and his version of the history of the licensing of the works. What has been crucial to my decision however has been the evidence of Mr J.B. Charles, an Engineering Surveyor, Water Commercial Unit of the Department of Primary Industries. He informed the Court with what is accepted as frank and honest evidence, of the background of the alleged surveying inaccuracies. He had established the original bridge benchmark. It was never anything else than the sawn-off pipe, although that had not been marked for identification by others (e.g. by painting). He had nothing to do with the reference to "bolt" in the licence. A copy of his field notes dated 27 March 1992 referred to the "TBM" (temporary benchmark) as "Top of Cut of signpost -- 5 of 7 -- 6 SWCNR Johnstone R Bridge ..." He explained how a computer-orientated adjustment had resulted in that level (which was intended to be an assumed datum of 100.000 m) becoming 99.995 m and then, to two decimal places, 99.99 m. On the survey "plot" for which he had been responsible, the benchmark notation caused that elevation value figure to be partially obscured, resulting in an incorrect translation by others to 99.89 as had been entered on the licence. Mr Charles had not placed any marking on the bolt on the bridge because it did "not come into it" and he had no knowledge of the plastic container top referred to by Mr Dawson. Mr Charles had established all levels including that of the more recently established benchmark and of various stations on the "crest of the dam" which was then given an average elevation of 99.52 m - as constructed at that time. 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. His fears were perfectly understandable however based on the incorrect but somewhat crucial information transposed to the actual licence on which he relied. In fact, Mr Dawson's fears should have been allayed to some extent after Mr N.J. McKenna, the Principal Technical Officer in the Resource Management Business Group of the Department in Brisbane, took an active on-site interest in the matter in an endeavour to resolve the problem. Mr McKenna was called as a witness for the respondent. He had been able to carry out what he described as a "rough bush survey" and took some levels in company with Mr Dawson, starting at the new benchmark, traversing down to the dam (or "weir" as he described it) and the lower level bridge and eventually back to the benchmark - successfully closing off the survey. If it was practical it would seem to me to be desirable for Mr McKenna to have some over-viewing role if (but more likely when) the expiry of this licence causes another round of investigations and deliberations. He impressed me as having reintroduced some technical common sense and desirable "public relations" communication into dealing with a problem which requires solution, to allow the interests of all concerned to be best served - based on the facts of the matter. Mr Dawson went to considerable trouble in introducing a wide range of evidence including some historical data as to the establishment of, and the location of the original causeway. His reasons for constructing the works were clearly not selfish. He believed the riverine environment had been enhanced. However he was concerned to create a safe water activity facility in the wider public interest, and particularly for supervised district children, and youth generally. No doubt issues such as safety and the wider community interest will be matters which are capable of full consideration in any future licence application. In summary however, while I am satisfied that Mr Dawson has some valid grievances, those cannot be accepted as constituting successful grounds of appeal in this matter. The appeal is therefore dismissed and the decision of the chief executive, in amending the licence, is confirmed. -- 6 of 7 -- 7 RE Wenck MEMBER OF THE LAND COURT -- 7 of 7 --