Commens v Chief Executive, Primary Industries Corporation [1994] QLC 33

LAND COURT BRISBANE 15 July, 1994 Re: Appeal under Water Resources Act 1989 s. 4.26. Ref: A93-79. CR and MJ Commens v. Chief Executive, Primary Industries Corporation D E C I S I O N (Hearing at Toowoomba) This is an appeal under s.4.26 of the Water Resources Act 1989 (the Act) against a decision of the Chief Executive, Primary Industries Corporation (the respondent) which limited the aggregate nominal water allocation granted under Licences Nos B87033 and B 87277 to 335 megalitres per water year as opposed to 520 megalitres as sought in the application. The relevant land owned by the appellants is situated within Sub-Area 3 of the Oakey (Creek) Groundwater Management Area to the east of Jondaryan and is described as Lots 1 and 2 on RP 36461, Lot 30 on RP 36473 and Lot 86 on Plan AG 34309, parish of Watts, county of Aubigny. The aggregation has an area of 628.4ha. The appellants purchased the property in 1990. Until that time the land had been used for dry land farming. There were a number of stockwater bores on the property. The appellants intended to use the land for irrigated farming. On 6 December, 1990, they applied for a licence (B 87033) for a proposed bore and sought an allocation of 240ML per year to meet an irrigation requirement of 80ha of fodder crop. The questionnaire accompanying the application and signed by the applicants showed this notation at the end. "Applicants must carefully consider their annual irrigation requirement since this may be used for determining groundwater allocation. In most areas the Commission has placed a maximum limit of allocation based on property area overlying the target aquifer system. It is unlikely that an allocation in excess of this limit would be favourably considered. This should be discussed at the time your application is submitted. Guidelines for crop irrigation requirement attached. Allocations will largely be determined on the basis of requirement providing proven total bore capacity is sufficient to meet requirement up to a maximum volume determined on the basis of property area overlying the relevant aquifer system. " The guidelines (annual water requirement per crop) under which the Department worked (and attached to the questionnaire) provided for 3ML per ha per [1994] QLC 33 -- 1 of 5 -- 2 year for fodder cropping. The Department's survey records indicated that about 569 ha of the property overlay the alluvium, although the extent of productive alluvium was unknown. Historically, water has been allocated in these alluvials at a rate of 0.8ML per ha of land overlying the productive aquifer. On the assumption that 569ha of the property overlay productive alluvium, a water allocation of about 456ML could be considered as a possible maximum. Three factors (but not exclusive for reasons which will be stated later) considered in determining an application were - 1)The area of productive aquifer underlying the property multiplied by 0.8 megalitre per hectare; 2)The proposed water requirement estimated from the area of crops to be irrigated; 3)The capacity of the bore; usually the normal pumping rate multiplied by 2,000 hours of pumping. - and, if an allocation was granted, it was equivalent to the least of the three determinations. That application was incorrectly advertised and for reasons which are irrelevant in the exercise was not advertised until November 1992. In the interim the appellants sunk a bore (depth 27.4m) which was capable of producing, conservatively I find on the evidence, around 200ML per year and they intensified their irrigation proposals. Meanwhile, also, anxiety had crept into the system, so much so that the Department concluded that limitations on allocations were required. The user community was brought into the exercise and a groundwater working party (the party) established. The party met with Departmental representatives on 30 September 1992 and 1 October 1992. At these meetings Departmental officers outlined the results of investigations the Department had made into the performance of the system. An analysis of the system made by the Department throughout 1988 and 1990 indicated that a safe yield was 7,000ML per year. On this volume it was concluded that an allocation of 9,500ML per year could be made based on "75% average beneficial use". The level of committed allocation was about 9,100ML per year. Annual use in 1989 was estimated at 5,500ML. Nevertheless, it was found that water levels were in decline. Monitoring of the observation bore network throughout 1991 and 1992 indicated continued depletion of the storage. Something had to be done. Following meetings with the party on 30 September and 1 October, 1992, the Department (correctly in my opinion) "To negate the possibility of allegations that working party members might gain benefit from privileged information, the Department implemented the new management strategy immediately, taking effect as from 1 October 1992". (Mr Free). The crux of this strategy for present purposes was that an embargo was placed on the granting of further allocations. On 2 October, 1992, Mr Commens happened to be in town. He called at the office of the Department and lodged an application (B87277) for a licence seeking an -- 2 of 5 -- 3 aggregate allocation of 520ML for the purpose of irrigating his cereal and fodder crops. At that time the developed irrigation area comprised - 26 ha - rye grass 47 ha - corn 13.4 ha - fodder The bore sunk following application No B87033 was stated to have a normal pumping rate of "20000gph to 25000gph in good season". This later application was advertised in conjunction with application B87033. The licences were issued in November 1993. Each carries a condition as follows:- "4.031The aggregate nominal allocation of this and all other bores supplying the same associated real property shall be 335 megalitres per water year. " A Departmental officer who visited the property in November 1992, reported that the appellants had expanded their irrigation enterprise to an extent that the allocation originally sought at 240ML was insufficient to meet the requirements of the enterprise. The matter was considered and discussed individually and in concert by Departmental officers before the decision was made to allocate 335ML in the aggregate. The Department's file was obtained and tendered in evidence and the Court referred to various notings and discussions between Departmental officers. I find nothing untoward in these notings. In fact the liaison appears to have had the ingredients of healthy discussion and an earnest desire to do the best that could be done for the appellants in the climate then existing, which climate, on surveys conducted in 1993, indicated that use had increased to 9900ML per year of which about 8700ML was for irrigation and 1200ML for town water (Jondaryan) and industrial use. According to the evidence of Mr DL Free, groundwater hydrologist and senior hydrologist in the employ of the respondent Department, this use represented an increase of about 120% since 1989. He said that the current approved allocation from 149 licensed bores is 9524ML per annum. On p. 11 of his statement of evidence, he says: "As Application No B87033 was received prior to 1 October 1992, and given the level of irrigation development on the property as at November 1992, it was decided to grant the application for a nominal allocation of 240 megalitres rather than the calculated 218 megalitres. Although Application No B87277 fell within the embargo period imposed by the Department, it was felt that the application warranted special consideration due to the extent of the existing irrigation development. It was decided to grant the application to the extent that a nominal allocation of 95 megalitres would be approved. As is the case with most farms in the district having more than one irrigation bore, it was decided to issue the licences in conjunction with a combined nominal allocation of 335 megalitres. This afforded the appellants a greater degree of flexibility to manage the irrigation system on the property." -- 3 of 5 -- 4 The allocation was derived by applying the guidelines stated previously (the least of the determinations). Mr M E McKay, engineer, who gave evidence in support of the appellants' case submits that in order to effectively water the developed enterprise, an allocation of some 516ML per year is required. In applying a strategy of lesser than full irrigation, he would seek an allocation lying between 440ML per year and 465ML per year. The parameters he applies are different from those applied by the Department and whilst I see merit in his reasoning, consistency would require that with this application greater weight be given to guidelines which have determined allocations under licences previously granted. The question thus arises as to whether the allocation should be increased and if so, to what extent. The evidence produces a picture which is gloomy but in the picture there are unknowns - whilst the extent of the resource may never be known with precision, the installation of meters on all irrigation bores would go a long way in resolving doubts. Mr McKay is in favour of the installation of meters and I note in the evidence of Mr Free that the groundwater working party has endorsed the idea. The history of bores on the subject property has indicated that water levels have dropped - the water level in a new bore in 1974 was 6.7 metres (consistent with previous bores). The bore sunk in 1991 for irrigation purposes recorded a water level of 10.2 metres. An observation bore on an adjoining property has fallen from 9.5 metres in June 1990 to 14.3 metres in April 1994. Mr Free said that test drilling on the subject property since 1990 (19 holes) indicates that the actual area overlying productive aquifer is considerably less than 569ha. Seasonal rainfall over recent years may have had something to do with the reduction in water levels, however I have no direct evidence on the point. Under s.4.18 of the Act, the respondent in considering an application has a duty to consider not only the requirements of the applicant but also (and perhaps more importantly) the requirements of existing licensees. It does not necessarily follow because a property sits upon an alluvial aquifer that a licence will be forthcoming. This will only occur if the Department is satisfied in applying fair and equitable principles that the resource can stand a new irrigator. In this instance if the existing enterprise is to be maintained in reasonable form, a further supply is required. There is evidence that the existing bore (B87033) broke suction when pumped at 20000gph. The principles often stated by the Court of achieving where possible a fair and equitable distribution of the resource will be taken to their limit in my opinion by doing what I propose to do in allowing for a near duplication of the existing supply. The allocation will be extended to 400ML per year. Accordingly, the appeal is allowed and the decision of the Chief Executive is varied by in Condition 4.031 in each licence deleting the figure and words "335 megalitres per water year" and by substituting in lieu thereof the figure and words "400 megalitres per water year". -- 4 of 5 -- 5 I order that Exhibit 3 (the file) be returned to the Department. (D.M. White) President of the Land Court -- 5 of 5 --