Council of the Shire of Isis v Chief Executive, Primary Industries Corporation [1995] QLC 181 (1994-1995) 15 QLCR 439

[1995] QLC 181 .., LAND COURT, BRISBANE 26 October 1995 Re: Appeal under Section 4.26 Water Resources Act 1989 against the decision of the Chief Executive to grant Waterworks Licence No 52331. (A93-77). The Council of the Shire of Isis v. Chief Executive, Prima ry Industries Corporation (Hearing at Bundaberg) DECISION The Council of the Shire of Isis (the Council) has appealed under s.4.26 of the Water Resources Act 1989 (the Act) against the decision of the respondent to grant a licence to Messrs MR and NE Martens, for the pumping of water from the Gregory River for the purposes of irrigation. Messrs MR and NE Martens are the owners of land described as Lot 6 on Registered Plan 806925, Parish of Marathon, County of Cook, containing an area of 7.03 hectares. On 9 July 1993, an application was received by the respondent from Mr MR Martens for a 65mm centrifugal pump on the Gregory River to take water for the irrigation of 5 hectares of small crops. After initial consideration by the respondent, the application was advertised in the Bundaberg "News Mail" on 21 July 1993, in accordance with s.4.17(2) of the Act. The proposed 65mm pump was to be located on an esplanade adjacent to Lot 8 on RP 806926 and an application for a permit to occupy was lodged by the Martens with the Department of Lands. That Department has withheld a decision in respect of that application pending the outcome of this appeal. The Council objected to any proposal " ... to directly pump water out of the Gregory River immediately upstream of the weir". This was the only objection received. In accordance with s.4.18 of the Act, the respondent then carried out an investigation and decided to issue Waterworks Licence No. 52331 for a 65mm -- 1 of 10 -- I'\ 2 centrifugal pump capable of pumping a maximum of 20 litres per second against 35 metres head. The licence contained the following special condition: II Diversion of water under the authority of this licence is prohibited whenever the water level in the waterhole on which the licensed pump is authorised to be installed is lower than two (2) metres below top water level of the waterhole as determined by the natural downstream control. " The Council was advised of this decision by letter dated 25 October 1993, and appealed to the Land Court on 25 November 1993. The grounds of appeal are as follows: II 1. Utilisation of this water hole for irrigation shall have an adverse effect and cost on the Childers and Woodgate Reticulated Water Supply Scheme particularly in extreme dry weather periods. 2. Water demand within the reticulated system is increasing and the water catchment needs to be protected. 3. Under-takings (verbal) were given by Water Resources Commission at time of implementation of Gregory River weir that irrigation permits would be phased out. 4. Council is currently implementing total management plans which will review the demands and options for future water supply needs." At the hearing, evidence for the appellant was given by Mr WR Paulger, a civil engineer employed by Cardno and Davis Queensland Pty Ltd, a company which provides engineering services to the Council, and by Mr AW Plath, a retired sugar cane farmer, who had been Chairman of the Isis Shire Council from 1970 to 1991. Evidence for the respondent was given by Mr DH Collins, a Local Government Services engineer, employed by the Department of Primary Industries and Mr FG Dwyer, a Senior Technical Officer, Rural Advisory Services, with the DPI (Water Resources). Background On 28 September 1981, a special meeting of the appellant Council adopted a draft design report by consulting engineers, Cameron McNamara Pty Ltd, for the construction of a weir on the Gregory River for the purposes of supplying water to the towns of Childers and Woodgate. The weir was to be sited about 16 kms upstream -- 2 of 10 -- ', 3 of the mouth of the river and just upstream of its confluence with Stockyard Creek. The report contained technical details of the weir, those relevant for this purpose being a spillway crest of 5.4 metres and an estimated risk of failure of 6%. The whole of the town water supply for the Isis district comes from the Gregory River weir, which was constructed by the Council in 1981/82, together with the water treatment plant located on the Gregory River. The weir has a capacity of approximately 440 megalitres and water is pumped from the weir and the water treatment plant to both Childers and Woodgate, in which towns there is a steady increase in the demand for water. Prior to the construction of the weir a number of waterworks licences had been granted by the predecessor of the respondent upstream from the weir site, authorising the pumping of water from the Gregory River for the purposes of irrigation of sugar cane and other crops. Licensees were not required to pay for water pumped from the river. Subsequently, the Bundaberg Irrigation Area Scheme (the Irrigation Scheme), which draws water from sources other than the Gregory River, was extended to cover the Gregory River area, but was not completed until about 1992. Under this scheme farmers were provided with water for irrigation, but were charged for the water used. At the date of hearing, the charge was $35.90 per megalitre. Most, if not all, of the lands in respect of which the waterworks licences were granted were connected to the Irrigation Scheme, but still retained their waterworks licences. Mr Plath, who was Chairman of the Isis Shire Council at the time, stated that the Council felt that when the Irrigation Scheme was completed in the area, the licences to pump from the Gregory River would not be required and would be cancelled and no water pumped from the river. He said that if irrigators pumped the holes out, the water holes would have to be filled before the river would flow, affecting the filling of the weir. The same would apply if the respondent was to provide water from the Irrigation Scheme into the Gregory River. After the farms in the area were connected to the Irrigation Scheme, Mr Plath felt that the existing licensees preferred to continue to pump out of the Gregory River at no charge, rather than use the water from the Irrigation Scheme for which they would be charged. He therefore approached the then Water Resources -- 3 of 10 -- ;, 4 Commissioner and pointed out how vulnerable the Council's scheme was if any further licences were granted. While there was no agreement, Mr Plath said: "We were all of the understanding that something would have to be looked into and something would have to be done to allow us to keep that water supply up". (Exhibit 11,page3). According to Mr Paulger, significant rainfall is required in the catchment area before any water reaches the weir. Water from lesser rainfalls runs into wateliholes along the Gregory River upstream of the weir and is extracted by farmers for irrigation purposes. In September 1991, the water level of the weir fell to such an extent that it was necessary to arrange for water to be released by the respondent into the Gregory River by means of an irrigation channel from the Irrigation Scheme. Between 19 September and 22 October 1991, a total of 321 megalitres were released at a cost of $130 per megalitre. However, only 262 megalitres are estimated to have flowed into the weir, the balance filling up the waterholes along the river, or perhaps pumped out by irrigators during the period of release. Mr Paulger explained that studies have shown that to cater for the future needs of the shire, additional sources of water would be required, including the possible location of an additional weir on the Isis River and the construction of a treatment facility to cater for Childers, serviced from the Irrigation Scheme. In Mr Paulger's opinion, the granting of licences by the respondent along the Gregory River upstream of the weir would have the effect of bringing forward costly augmentation work which would impose significant costs upon the ratepayers of the shire. In the long term, he said that the Council must optimise the capacity of the existing weir to provide for the needs of Woodgate, which is identified as a high growth area. It is clear that the capacity of the weir could be increased by undertaking capital works to increase the height of the crest level and that this would reduce its rate of failure. Mr Paulger agreed that the Council is faced with reviewing its water supply situation in the next few years, regardless of what licences are approved or refused by the respondent. He conceded that the licence granted to the Martens would have a negligible effect on the availability of supplies in the Gregory River at the weir. -- 4 of 10 -- ,, 5 Mr Plath was concerned that while the Martens' application might be considered to have an insignificant effect on the weir, if it was granted others would be sure to follow until there would be nothing left in the river. He was of the opinion that all the licences along the river should be cancelled for the sake of the weir, as it was not producing sufficient water for the ongoing needs of the community. At the time he approached the Commissioner, he was prepared to surrender his own licence and thought that others should do so when they received a guaranteed supply from the Irrigation Scheme as they would no longer need their licences to pump water out of the river. Mr Collins's Evidence Mr Collins gave evidence that the appellant Council was in the process of developing a Total Management Plan. He explained that the plan was promoted by the respondent in conjunction with the Department of Housing and Local Government, designed to assist Councils in managing and planning their water supply and sewerage assets. It involved financial planning, infrastructure planning, as well as providing for future financial needs for the replacement of assets. Mr Collins said that at the date of hearing, the documentation for the plan was 80%-90% complete. However, at the date of lodgment of the appeal, 25 November 1993, he estimated that documentation would have been only 20%-30% complete, the plan being at a developmental stage at that time. ' Mr Collins also gave evidence of the guidelines for a scheme to provide financial assistance to drought stricken local authorities whose urban water supply systems are severely depleted by extreme drought conditions. He said that this scheme applies to local governments which find themselves in a situation where, because of drought, their town water supply schemes are no longer adequate and they need some alternative source. The scheme is administered by D.P.I. (Water Resources) and funded by the Department of Housing, Local Government and Planning. It provides financial backing to put temporary measures in place to enable Councils to purchase and/or convey water to supplement their existing supplies. The effect of Mr Collins' evidence is that the appellant Council could receive financial assistance to supplement the weir supply in future droughts, provided that, in addition to meeting the other eligibility requirements, it plans to introduce remedial -- 5 of 10 -- 6 measures to upgrade the source of water supply and/or storage facilities to a level which would provide sufficient water to last through the longest recorded drought. Mr Dwyer's evidence Mr Dwyer gave evidence that following the objection by the appellant Council to the Martens' application, he conducted investigations in accordance with s.4.18(1)(a) and (c) of the Act. At that time there were no current waterworks licences on the waterhole where the proposal was to be located, or on the Gregory River downstream thereof. However, in the past, two licences had been issued on that waterhole for the purposes of irrigating a total of 30 hectares of sugar cane. One licence was cancelled in August 1991 at the request of the licensee, and the other ceased to exist in January 1991 when the property was subdivided and sold. However, they were in existence before and after the construction of the Council's weir. Mr Dwyer explained that in the early 1980s, if a local authority wanted to take water from a water course, or to construct works on a water course, application had to be made under the Local Government Act 1936. The Governor in Council could grant such authorisation by Order in Council. However, a search of the Department's records indicates that the works on the Gregory River were not so authorised. Therefore, Mr Dwyer said, the appellant Council did not have a waterworks licence for the weir, which is a referable structure, nor for the taking of water from the river. On the other hand, Mr Plath thought that Cabinet at the time had authorised the construction of the weir and that "the documents" had been approved by the Irrigation and Water Supply Commission. He seemed to recall that the Government of the day had subsidised the works by in excess of one million dollars. The water hole on which it was proposed to locate the pump was, according to Mr Dwyer, measured in 1972 at up to 6.7 metres deep, 1200 metres long and up to 42 metres wide, which calculated to a capacity of 85 megalitres. He estimated the crop water requirements for the five hectares of the Martens' small crops at 30 megalitres per annum. As part of his investigations, Mr Dwyer calculated that with a usable capacity of 328 megalitres, the Council weir would have a supply of about 180 days if no inflow occurred, based on 1.5 megalitres per day used to supply Childers and -- 6 of 10 -- 7 Woodgate, allowing for natural losses. He also took account of the shortfall in supply in 1991 and the release of water from the Irrigation Scheme when 321 megalitres were released. Mr Dwyer went on to say that the Cameron McNamara report indicated that the weir had a 6% risk of failure. The dry period in 1991 showed no flow in the Gregory River for 237 days, hence the storage failure at the rate of present demand. He said that there was no agreement between the Council and the respondent for the supply of water to the weir or other supply point. However, the Department had established an outlet on the channel supply near Childers for use by the Council as a reticulated water outlet, but as yet it had not been used . Mr Dwyer analysed the stream flows from the Department's gauging station on the Gregory River from 1966 to 1993. · The catchment area above the gauging station is 455 square kilometres, with a further 185 square kilometres between the gauging station and the weir. The twenty-eight years of records indicated two periods when "no flow" exceeded 180 days, which equates to 7% of the period of analysis, consistent with the Cameron McNamara 6% probability of failure. Mr Dwyer determined that there is an unallocated resource in the river for the majority of years, some of which could be available to land owners or other users. The relatively small amount of usage due to the Martens' licence (30 megalitres per annum) would have little bearing on the normal behaviour of the stream and the performance of the weir. It is equivalent to 0.048% of the mean annual runoff in the Gregory River at the gauging station, with the extra catchment between the gauging station and the weir providing additional runoff. After the lodgment of the appeal, Mr Dwyer said a more detailed performance analysis was undertaken by means of computer modelling, simulating irrigation and other demands on a system based on irrigation season, rainfall, evaporation and crop type, allowing for demand and evaporation, and the weir storage. The existing upstream irrigators were also included in the model. For a series of scenarios, the analysis showed that the additional irrigation carried out by the Martens would cause the weir to fail an extra 0.16% of the time when the demand was 1.5 megalitres per day and an extra 0.15% when the demand was 2.07 megalitres per day. This equated to about 14 days in 26 years, or an -- 7 of 10 -- 8 average 0.55 days per annum. Mr Dwyer therefore concluded that the irrigation by the Martens would have a negligible effect on the performance of the weir. The Ar q uments Mr Stanton, solicitor for the appellant Council, contended that the appeal essentially involves competing interests between on the one hand, the Isis Shire Council for the domestic needs of its residents, and on the other, the needs of farmers for water for irrigation purposes. He said that the evidence showed that there was increased demand for domestic water and with the issue of any additional licences, there will be decreased supply of water available and the risk of failure of the weir increases. He said that the question is how best to use the water, for domestic purposes or for irrigation purposes, or for a combination of both. The Council constructed the weir to utilise the water for domestic purposes. He submitted that the issue of any licence for irrigation purposes placed an unreasonable and onerous demand upon the Council, as it increased the risk of failure of the weir, albeit, small. Mr Fisher, counsel for the respondent, submitted that there is evidence that the Council had no licence, permit or other authority for the weir under the provisions of the previous or present legislation. Therefore, he contended, there is no right lawfully exercised under s.2.2(a) of the Act by the appellant Council. It had no right to say that the Martens are somehow diminishing their right. The Council cannot prejudice the rights of the Martens to the productive enjoyment of their property. He submitted that Mr Dwyer had complied with the requirements of s.14.18 of the Act. There was no principle that the Council had any prerogative rights over any other landowner. The Legislative Provisions In circumstances such as the present, the provisions of s.4.18(1 )(a) require the Chief Executive to cause enquiry to be made 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) persons specified in s.2.2(a); -- 8 of 10 -- .. g (ii) The effect that the granting of the application will have or is likely to have on entitlements of riparian owners, licensees, and permittees;" The relevant part of s.2.2 states: II The right to the use and flow and control of water vested in the Crown is - (a) not to be exercised to the prejudice of a right conferred on and lawfully exercised by Queensland Railways, the Brisbane City Council or local government or by any person, board or other body by or under an authority conferred by this Act or any other Act; " In Mr Fisher's submission, the Isis Shire Council is not lawfully exercising a right to the water in the weir as it has no licence, permit or other authority for the construction of such a weir. Although this may well be the case, it is quite clear that the respondent and its predecessor, the Water Resources Commission, have been well aware of the weir and the water reticulation scheme that supplies the urban areas of the Isis Shire. Mr Plath's evidence indicates that it is likely that the construction of the weir was authorised by the Cabinet of the day, although it seems that the Governor in Council did not make the necessary order under the Local Government Act. In any case, it is unnecessary to decide whether the Council is lawfully exercising such a right for the purpose of this appeal. It is clear from Mr Dwyer's evidence that he had regard to the availability and sufficiency of water to supply the requirements of the Council following the lodgment of its objection, prior to the respondent's decision to grant the application by the Martens. It is also clear from the evidence that the present Council water supply scheme is not perfect. There will be occasions when the weir will not supply the required water. Statistically the risk of failure is 6%. On those occasions, the Council will be required to put alternative plans into operation. There is evidence that it is planning to do so in the longer term. In the short term, it can purchase water from the respondent, but it is understandably reluctant to do so, as it considers this to be wasteful and exorbitantly expensive. However, it may well qualify for financial assistance as outlined by Mr Collins. -- 9 of 10 -- ,, 10 It is contended by Mr Dwyer and conceded by the witnesses for the appellant Council that the granting of the licence to the Martens will have an insignificant effect on the weir. Certainly, on the evidence produced by Mr Dwyer, it will only very slightly add to the risk of failure. It is apparent that one of the major concerns of the appellant Council is that the granting of the licence to the Martens might open the floodgates for many more applications, the combined effect of which could have a significant effect on the weir. However, that is not a matter for consideration in the present appeal. Each case must be dealt with on its own merits and the present matter concerns the respondent's decision to grant the application by the Martens for a licence to irrigate 5 hectares of small crops. Mr Stanton's submission is that there should be no licence granted which would have any effect, no matter how small, on the flow of water to the weir. However, he did not go as far as Mr Plath and suggest that all existing licences should be cancelled. Indeed, Mr Stanton formally withdrew the word "undertakings" in Ground of Appeal No. 3, submitting that there were "understandings" that irrigation licences would be phased out. The weir was constructed when most, if not all, of the waterworks licences on the Gregory River were in force. Since then, two licences have been cancelled which together provided for the irrigation of 30 hectares of sugar cane. This more than compensates for the effect that the Martens' irrigation licence would have. Having regard to the whole of the evidence, I am of the opinion that Mr Dwyer has properly considered the matters which he was required to take into account under the provisions of s.4.18 of the Act. I am also of the opinion that he was correct in deciding that irrigation by the Martens will have a negligible effect on the performance of the Council's weir. Therefore, in my view, there are no grounds for denying the Martens their right to irrigate their 5 hectares of land. Accordingly, the appeal is dismissed and the decision of the Chief Executive, Primary Industries Corporation, to grant Waterworks Licence No 52331 to MR and NE Martens is affirmed. (JJ Trickett) Member of the Land Court -- 10 of 10 --