DI and BW Hutchison & Anor v Chief Executive, Department of Primary Industries [1994] QLC 58 (1994-1995) 15 QLCR 369

LAND COURT BRISBANE 21 October, 1994 Re: Appeal under Soil Conservation Act 1986 A93-83. DI and BW Hutchison v. Chief Executive, Department of Primary Industries D E C I S I O N (Hearing at Toowoomba) This is an appeal under s.22 of the Soil Conservation Act 1986 (the Act) against a determination of the Chief Executive, Department of Primary Industries, on an objection made by the appellants to the implementation of a soil conservation plan (property plan) proposed for a number of properties situated about 8 km west of Mt Tyson and to the north-east of Bongeen. The area comprises arable soils used for cropping under irrigation and dry land farming. The relevant properties are within the catchment of Ashall Creek. The Act is described as an Act to consolidate and amend the law relating to the conservation of soil resources and to facilitate the implementation of soil conservation measures by landholders for the mitigation of soil erosion. Under s.10 of the Act, an owner of land may make an application for approval of a property plan for soil conservation for an area of land owned by him. The make-up of "property plan" may be found in s.10(2) of the Act which provides - "A property plan shall delineate the boundaries of the subject land and comprise a map and specifications which describe all soil conservation measures, undertakings, acts, proposals, prohibitions and things designed, carried out, enforced or proposed to be carried out or enforced pursuant to this Act for the purpose of soil conservation or of controlling or directing runoff water flow or for any other purpose within the scope of this Act. " Where land other than the applicant's land would not be affected by the implementation of a plan, the Chief Executive, with the agreement of the owner, may approve the plan. In a case where land other than the applicant's land would be affected by the implementation of the plan the Chief Executive is to ensure that all reasonable efforts are made to discuss the proposal with all owners of affected land and the applicant (s.10.(5)). If all owners have no objection he may approve the plan. If written advice cannot be obtained from all owners of affected land to the effect that they have no objection to the plan, the Chief Executive is required to implement the [1994] QLC 58 -- 1 of 4 -- 2 procedures contained in sub-section (6) of the section which, when read with s.21 of the Act, provides for notices, advertisements, objection, determination of objections and so forth. Section 22 provides that an objector who is dissatisfied with a determination on the objection may appeal to the Court. It is provided that the appellant shall state the grounds of the appeal, that the appeal shall be limited to the grounds stated and that the burden of proving any ground stated in the appeal is upon the appellant. The Court may confirm or vary the determination. On a plan being approved it is binding on all persons including the Crown. The import of this provision may be found in s.11 of the Act under which runoff co-ordination notices may be given requiring works to be done in accordance with the approved plan. In the subject case Mr DI Hutchison appeared on behalf of the appellants. He led evidence through Mr JA Zeller who was for 39 years Shire Engineer with the Pittsworth Shire Council. Evidence in support of the determination of the Chief Executive was given by Mr CDH Knowles-Jackson who is employed as a soil conservation officer with the Department of Primary Industries. There are eight properties covered by the relevant plan which is described as Plan JD-A1-5569. The properties are shown on Annexure A. The particular watercourse (Ashall Creek) is shown on Annexure B which looks from north to south and the particular area of the watercourse which is covered by the plan is the area from H7 to H8. Flow of the watercourse and generally across the plain in times of flood is from south-east to north-west. Turning to Annexure C it may be seen that Ashall Creek after leaving the property of Pukallus proceeds westerly south of Waites Road. Thereafter it swings northerly and links up (apparently) with a defined channel leading to the Condamine River. Annexure D displays the nature and extent of cultivation in the area. On that plan Ashall Creek travels under the railway line between the words "Plains" and "Railway" and proceeds north-west. It may be observed that the effects of flooding (and erosion) have put out of production an area of land south and along Waites Road. Running north from the "dog leg" in Waites Road is Reddings Road. This road was unformed but since measures have been taken to control erosion, part has been allowed to be cultivated. The property of the appellant which it is alleged will be affected by the scheme lies to the east of Reddings Road and north of Waites Road. Waites Road is open for about one-third of its distance. It is otherwise a grassed strip. Closure of these roads in whole or in part was contemplated in the scheme but on landholders' objections to their closure they will remain open but subject to works which I am about to discuss. The subject plan covers eight properties. Mr Knowles-Jackson said that his involvement in the preparation of the plan began in or about 1980 when he was contacted by Pukallus to inspect the soil erosion occurring on his property. He said that little was agreed between the landholders until the mid-1980s when they got -- 2 of 4 -- 3 together again to pursue the possibility of preparing a runoff co-ordination plan. It is estimated that the erosion south of Waites Road takes up about 30 ha of potentially good agricultural land. The gist of the plan so far as is relevant is the proposal to silt up that part of Ashall Creek between points H7 and H8 and thus spread the flow. Works involved on the property of Pukallus include the lowering of an access track to the homesite and the grassing (for some time) of land in the north-western section. It is proposed that Waites Road (which is of the order of 400mm above natural ground level) will be lowered to about 100mm above natural ground level and that whoaboys be placed every 300m to divert water across the road. Works are also proposed in Reddings Road. Cropping practices will include redirection of drills where necessary to meet the flow at right angles and to stem the flow by putting it through a filter system as it were. These sort of measures constitute a change from past thinking. The objective as explained by Mr Knowles-Jackson is to implement a range of procedures that "encourage flows to spread out as much as possible". He says that experience has told him that where such practices have been adopted on the Darling Downs erosion problems have been alleviated. He says that the preparation of this plan had the support of the majority of landholders in the area (both upstream and downstream) as well as the support of the Jondaryan Shire Council. At this time he estimates that 80% of land on the flood plain is protected by strip cropping. The participation of the Jondaryan Shire Council in lowering and working on roads is an essential element in implementing the plan. Overburden (silt) taken from roads will be used in silting up other areas -for example, the points between H7 and H8 of Ashall Creek. The reasoning of Mr Zeller was primarily based on past practices and his experience of flows as a shire engineer spanning many years. Unfortunately, he had no involvement in the preparation of the plan and was unaware of the works proposed to be implemented by the shire. His concerns covered the aspects of both the primary and residual flows cast against barriers running across the natural fall of the ground, such as Waites Road. He was of the opinion that with the silting up of Ashall Creek between H7 and H8 part of the flow will be diverted towards Hutchisons' property to the north. He does not think that the spread allowed for in the plan is sufficient to handle the quantity of water intended to be dispersed and that residual flow will impede the working of properties for a longer period than were such flows taken by some sort in channels provided in road reserves or elsewhere. His reasoning appears to be consistent with practices that were implemented in the past. According to Mr Knowles-Jackson the concepts contained in the plan have been put to the test and have been proved successful in alleviating erosion. In fact he says that many landholders are doing this now. He said that the genesis of the plan has been going on for many years and that over 90% of landholders have these practices in place. The concept is designed to get away from the practice of keeping flow in a -- 3 of 4 -- 4 narrow path. In this case in times of heavy flood the flow is expected to spread from a northerly through to a south-westerly direction. It is expected that some of the flow will spread north-westerly and towards Hutchisons' property and will, with works intended for Reddings Road and other areas covered by the plan, be allowed to continue following the contour of the land. Residual flows which Mr Knowles-Jackson considers on experience to constitute a small issue are intended to be picked up by a table drain on the northern side of Waites Road. The position then is that the property of the appellant will more than likely receive flood water diverted (among other directions) to the north from Ashall Creek. Properties situated to the north of Waites Road are expected to take some of the flow and there is evidence that the flow could spread to the south-west as far as the railway. The benefits seen in the implementation of the plan include the reclamation of highly productive cropping land, less erosion on a global scene and generally better farming practices. The Act is of general application. The purpose is to facilitate the implementation of soil conservation measures. It is obvious that a plan of this nature could not be implemented except upon a wide front and that co-operation, thinking of public interests rather than private or sectional interests, is a necessary ingredient to the success of the plan. No person would doubt that the preservation of highly productive land is in the interests of the State as a whole. In these circumstances, individual or sectional interests must give way to public interests. In the subject case the plan which is part of an overall scheme has the support of the majority of landholders in the area. The concept has been tested and proved effective in alleviating erosion. Mr Zeller who was the only witness called by the appellants with the expertise to speak on flow and the effects of barriers freely admitted on hearing about the specifications of the plan that his concerns were modified. In the circumstances the plan should not be denied the opportunity of proof. In the course of time should it eventuate that further works are required, either with respect to the appellants' property or other properties, it is for them or other landholders to seek an amendment of the plan in accordance with the provisions contained in the Act. I have thus concluded that the objection should be dismissed. I would, however, mention in conclusion that there was some evidence before the Court of the existence of licensed levee banks to the south of the railway which have an effect on the flow of Ashall Creek under the railway. These licences have a number of years to run. Their future is a matter which is not relevant (they being licensed under the Local Government Act) to these proceedings. In the circumstances, the appeal is dismissed and the decision of the Chief Executive is confirmed. President of the Land Court -- 4 of 4 --