Emerson v Chief Executive, Primary Industries Corporation [1996] QLC 5

LAND COURT BRISBANE 7 FEBRUARY 1996 Re: An appeal against a decision to refuse an application to obtain an irrigation supply from the Johnstone River - Water Resources Act 1989. (A95-48) M.L. & I.G. Emerson v. Chief Executive, Primary Industries Corporation (Hearing at Atherton) DECISION Mr and Mrs Emerson own land situated at Lake Barrine Road, Malanda, described as Lot 46 on Plan NR 305, Parish of Malanda. Following approval by the South Johnstone Local Board and the Queensland Sugar Corporation, the Emersons were granted an assignment to grow sugarcane on 28 ha of their land, as part of the 1993 expansion for supply to the South Johnstone Mill. In April 1994, the assignment was increased to 57 ha. An Application (No. 56848) dated 14 June 1994 was made by the Emersons for a Waterworks Licence to take water from the Johnstone River for the purposes of "irrigation - crop type - sugarcane - area 57.5 ha" together with "domestic" and "stock water". Lot 46 does not enjoy frontage to the river. The proposed pump site and pipeline were to be located within a "State-controlled road reserve". The necessary permit was eventually obtained from Queensland Transport. The Waterworks Licence Application was advertised in March, 1995. No valid objections were received. By letter dated 21 June 1995, Mr and Mrs Emerson were advised that their "application to obtain an irrigation supply from the Johnstone River has been investigated" but "refused. The grounds for refusal being there is insufficient water to supply your irrigation requirement, maintain existing licensees entitlements and preserve the physical integrity of the Johnstone River." (Subsequent advice dated 20 July 1995 was provided to the applicants' solicitors, however, that a "Waterworks Licence is now being prepared authorising the use of water ... for stock and domestic purposes.") An appeal was lodged in the Land Court on 19 July 1995 against the refusal, on seven grounds. In broad terms the grounds covered the appellants' opinion that sufficient water was available to supply their requirement, as well as maintaining existing licensees' [1996] QLC 5 -- 1 of 7 -- 2 entitlements whilst also preserving the physical integrity of the river; inability to otherwise maintain a viable farming operation and the resultant financial hardship and distress. Included in the grounds were the contentions that it would be just and equitable that the appellant farmers be granted the licence and that it was unreasonable for it to be refused. At the hearing of the appeal, barristers Mr D. Smith and Mrs. T. Johnson, appeared for the appellants and the respondent respectively. Both Mr and Mrs Emerson gave evidence in support of the appeal and further evidence was adduced through a Mr J.D. Kidd, a local riparian land owner with many years experience in the locality, and Dr M.A. Gilbert, an agricultural and environmental consultant. One witness was called by the respondent - Mr R.P. Walsh, technical officer (Stream Control). The Emerson farm is quite small, the cane assignment covering most, if not its total area. When the South Johnstone Mill Limited found the need for expansion and sought interest from Tableland land owners to pioneer sugarcane farming in that locality, the Emersons perceived an opportunity to conduct a self-sufficient and viable primary production activity on their land. For various reasons other cropping use was not considered viable and nor was, on past experience, and mainly due to the limited size, grazing activity. It seems that no initial investigation had been made as to the potential irrigation requirement of the sugarcane crop on this particular farm. Nevertheless, expense of some significance was incurred in preparing and establishing plant cane on the assignment as well as for the acquisition of suitable machinery. Mr Emerson is now convinced that sugarcane on the property will need to be irrigated during a four month period normally September to December and unless irrigation is available it is his belief that the venture will fail. According to Mr Walsh, the majority of the North Johnstone River streamflow occurs historically in the months of January to April, in response to monsoonal rains. On average there is insufficient rainfall during the winter and spring months to augment streamflow with lowest flow rates commonly experienced in October and November "although in extreme years very low flow can be experienced into January". As might be expected, maximum water requirement occurs during the period of lowest yield. Mr Emerson does not see water harvesting during high yield periods for on-site storage as a practical alternative due to the physical nature of the soils and topography of the farm. The real issue in this matter is whether a sufficient supply of water is available in the Johnstone River to allow further diversion. -- 2 of 7 -- 3 There was no argument that the Department does not possess the legislative powers necessary to preserve the physical integrity of the river. Although some criticism was levelled at the methods employed in adopting "best estimates", no technical argument was mounted against the Department's estimates of "volume of allocable water" at various "control points". In the Department's investigation process the North Johnstone Catchment had been considered in terms of six Control Points, defining five Subcatchments. The first Control Point was at the Malanda Falls. The investigating officer's report contained the following passage - "The Instream Requirement at Control Point 1 is 40% of Allocable Volume. The other 5 Control Points have an Instream Requirement of 25% of Allocable Volume." No argument was presented by the appellants against the reasoning behind the Department's adoption of the instream ratio of allocation as representing "25% of both the mean annual minimum discharge and the volume determined to be allocable with a 60% annual reliability" or "to recognise that in some accessible locations there is significant amenity value in the river system" where the decision was taken to raise the instream flow component to 40% of the allocable volume. The investigation report (which was tendered through Mr Walsh) had been compiled by another officer who came under Mr Walsh's supervision. The report contained the following passage - "The pump site and the irrigation area is in Subcatchment 5. However it has to be treated as within Subcatchment 4 as the pump site is only 500 m downstream of Control Point 4. The majority of Subcatchment 5's area is contained in the Malanda/Gardner Creek Catchments. Due to virtually identical locations and catchment areas, it is my opinion the assessment of system demand at Control Point 4 be applied to Emerson's proposed pump site." It was Mr Emerson's evidence that the investigation report was erroneous in that the proposed pump site was 700 m downstream and then located at the confluence of a tributary within Subcatchment 5 which in turn provided permanent flow of water (albeit not of great volume in low flow periods) into the river and augmenting the flow which was calculated at Control Point 4. Dr Gilbert (whose professional expertise was related primarily to land use rather than water resource management) had been provided with the investigation report on which the refusal had been based. He agreed with Mr Emerson's opinion that the allocable volume of water at Control Point 4 was not a fair estimate of the allocable volume at the -- 3 of 7 -- 4 pump site within Subcatchment 5. Dr. Gilbert felt that an argument existed for the averaging of data from Control Points 4 and 5 to determine the streamflow at the pumping site. I do not accept that an averaging approach would fairly represent that streamflow but the evidence leads me to the conclusion that the allocable volume at the pump site would, if capable of being measured, be more likely to be greater than that at Control Point 4. Adoption of Control Point 4 by the investigating officer, as the basis for the chief executive's decision, could therefore provide a conservative result. More important however to the determination of this matter is the approach to the instream allocation at Control Point 4 which would meet the Department's strategy for responsible management of the physical integrity of the riverine environment. Dr Gilbert considered that the investigating officer had miscalculated the instream allocation based on the strategy of allowing 25% of allocable volume. On the face of the report this perception of miscalculation would seem to be correct. At Control Point 4 the total allocable volume is accepted as being 1,105.2 ML/month as contained in the investigation report. Existing irrigation entitlements are calculated as requiring 662.6 ML, together with a requirement of 92.6 ML for "other purposes". Dr Gilbert and the appellants had no way of disputing those calculations. The instream allocation adopted in the report was 374.4 ML which Dr Gilbert correctly calculated as being near 34% of the allocable volume. The allocations as calculated by the investigating officer meant that the existing system demand exceeded the supply by 24.4 ML per month at Control Point 4. Dr Gilbert pointed out that had an instream allocation of 25% been adopted, in conformity with the strategy as appeared to be stated, then that allocation would reduce to 276.3 ML with the total demand reducing to 1,031.5 ML, leaving a surplus of 73.7 ML per month. Mr Walsh did not agree that the calculation of the investigating officer had been incorrect. His explanation was that at Control Point 1 at Malanda Falls, the allocable volume was 654 ML/month and the instream allocation strategy required 40% of that volume or 261.6 ML. At Control Point 2 the Subcatchment had augmented the allocable volume to 790.9 ML or an increase of 136.9 ML. As I understood the evidence the Department's interpretation of the strategy was then to allocate the 25% of augmentation to provide a cumulative volume to the instream allocation at Control Point 1. In other words, 34.2 ML (25% of 136.9 M) was added to the 261.6 ML already allocated at Control Point 1 to provide an instream allocation of 295.8 ML at Control Point 2. This cumulative calculation was then repeated relative to 25% of the downstream Subcatchment augmentation, calculated at the various Control Points. -- 4 of 7 -- 5 While this explains that there was no mathematical miscalculation, as suggested by Dr Gilbert, there is left open an argument as to whether the principle adopted is correct. It is understandable why an instream allocation at the natural amenity at Malanda Falls should be higher than the normal riverine environment requirement. It seems to me however that once that allocation has, in theory, served its purpose, there is a valid argument that the Department's downstream instream allocation strategy is erring excessively on the side of caution, to the detriment of other potential usage requirements. Whether, in the interests of responsible management once an allocation is in the system, that increased volume should be reallocated is probably another argument. However, it seems to me that if the instream allocation of 261.6 ML at Control Point 1 was maintained at that volume until the 25% strategy came into effect at some point downstream, then the riverine environment should not be disadvantaged. At Control Point 4 there would be the need for a relatively minor increase to 276.3 ML. If that approach was taken to providing the instream requirement then there would be an existing surplus of 73.7 ML rather than the deficit of 24.4 ML as calculated by the investigating officer. Indeed, if there was further augmentation by any volume at the pump site, through the downstream tributary's contribution at that point, then the physical integrity of the stream would be further enhanced. Mr Emerson had, in the first instance, estimated that the sugarcane crop would require an irrigation application of 33.4 mls per week. He intended irrigating by centre pivot in two sections, and would effectively irrigate only 52 ha. This estimate was converted to a volume of 70.4 ML/month. In later discussions with the investigating officer and at the time believing there was, from his observations, more than adequate water available (as the neighbour Mr Kidd also believed from his observation of river levels over the years) Mr Emerson had suggested that application of up to 40 mls per week would eliminate any risk of crop stress. Such application would increase the volume requirement to 83.2 ML/month. This estimate was adopted by the Department. With no cane having been previously grown in the district, Mr Emerson had not been in a position to draw on the experience of other farmers. In the meantime however sugarcane had been grown in the Tolga/Kairi area which he said was accepted as being drier than the subject farm, and sugarcane growers there were finding that an application of 25 mls per week based on modern farming techniques including trash blanketing, was sufficient. Such an application would equate to 55 ML/month for the area of 52 ha covered by the centre pivot irrigation proposed. Rather than be denied a licence, Mr Emerson indicated that he was prepared to take the risk associated with an -- 5 of 7 -- 6 application of 55 ML/month if he was limited to that entitlement. While it would no doubt be a far more precise management practice to meter water usage, water allocations from this source and application estimates are dealt with by the Department on the basis of the area to be irrigated and the crop to be grown. It seems that to in any way control the volume of water to be applied under licence the period of pumping would need to be considered in relation to the licensed pump capacity. Conclusion It seems to me that in the circumstances of this particular licence application the Department's approach to the available volume of water has been overly cautious in favour of the instream requirement. The importance of responsible water management could not be overstated yet, if a strategy is devised and adopted, it should in my opinion be applied in a manner which is seen to be equitable to all competing interests. The application was refused on the grounds that there is insufficient water to supply the applicants' irrigation requirement, maintain existing licensees' entitlements and preserve the physical integrity of the Johnstone River. If there was insufficient water then it would be irresponsible for this Court to override that refusal. However, if there remains doubt that the appellants have carried the burden of proving that sufficient water is available for allocation in terms of their application then I am influenced to resolve that doubt in their favour for I am not convinced that the respondent's methodology of assessment of insufficiency of supply is reasonable in terms of the stated strategy. I have decided that the appeal should be allowed, the decision of the chief executive be revoked and that a Waterworks Licence should be issued to the applicants. There was no evidence given or submissions made to this Court as to the specific terms of a licence which might issue, should I come to this conclusion. It is therefore decided that the chief executive should grant the application in accordance with s.43(2)(ii) of the Water Resources Act 1989 but on the assumption that a minimum allocable volume of 73.7 ML/month is available at Control Point 4. It has already been observed that on Mr Emerson's initial advice it would have been proposed to irrigate 52 ha by dual centre pivot design when irrigation applied at 33.4 mls per week would require a volume of 70.4 ML/month. It is intended that the licence should issue in terms of s.44 of the Act and the applicants' rights under s.51 of the Act be preserved. -- 6 of 7 -- 7 RE WENCK MEMBER OF THE LAND COURT -- 7 of 7 --