Bishop v The Chief Executive, Primary Industries Corporation [1993] QLC 29

LAND COURT BRISBANE 20TH OCTOBER 1993 Re: An Appeal under Section 4.26 of the Water Resources Act (1989) Lionel and Pamela Judith Bishop v. The Chief Executive, Primary Industries Corporation (Hearing at St. George) D E C I S I O N On 16th July, 1992, Mr and Mrs Bishop made application for a waterworks licence for an existing 50 mm centrifugal pump located on the Balonne River at Bindle, upstream of the Beardmore Dam, to supply water to land described as Lots 4, 5, 6 and 7, Section 2 and Lots 1 and 2, Section 3, Town of Bindle, Parish of Weeyan. The annual allocation of water required was 25 ML. The purpose of the work was irrigation for the growing of pumpkins and lucerne on an area of 3 hectares, as well as domestic and stockwater supply. On 4th March, 1993, the applicants were issued with Waterworks Licence No. 54294, for the pump, but only for the purpose of domestic supply and stockwater, with a nominal allocation of 4 ML. The application for irrigation allocation was refused "due to the system being fully committed". Mr and Mrs Bishop duly appealed against the decision of the Chief Executive on the following grounds: "There is insufficient water to use for stock, household and gardening. The house blocks are 1 acre allotments. We purchased this property in 1974 and were informed that an allocation for river water had been issued. The [1993] QLC 29 -- 1 of 8 -- 2 previous owners (Leitch and Ward) had been pumping since 1954, long before I.W.S. and Beardmore Dam. We were not notified that allocations were under review in 1988." Mr Bishop attended the hearing and gave evidence in support of the appeal. He confirmed that the property had been purchased in 1974 when they understood that the existing pumping facility had been licensed. As far as the appellants were concerned, the water had been taken from the river for many years prior to their purchase, firstly for the supply of the original township, then for use in a sawmill as well as for domestic, orchard and crop-growing purposes on the subject property. Mr Bishop says he had in the past, prior to a house being burnt down, grown crops of pumpkins and lucerne with the assistance of irrigation. It seems the question of the need to license the works was brought to the appellants' attention after they had informed the Department by letter dated 30th November, 1991, that they objected to what they believed was a proposal to disturb the bed of the river - a proposal which they saw as interfering with the waterhole from which they had been drawing their supply. The Department had established that the Bishops were not riparian owners, the land in question being separated from the river by a stock route on which the existing pump was sited. This led to the need for formal application for what the Bishops saw as a replacement licence. Mr Bishop agreed that he had informed officers of the Department that he would settle for a supply of 8-10 ML. He informed the Court that when the house had burnt down about eight years ago, the appellants had moved to another property in the same district and the previous cultivation of crops had not been continued. However, another house had recently been constructed and it was Mr Bishop's intention to retire in the near future and once again grow crops of pumpkin and lucerne. He disagreed with the proposition put to -- 2 of 8 -- 3 him under cross-examination, that 18 ML and 7.5 ML of irrigation water would be required to successfully grow 1.5 hectares of lucerne and 1.5 hectares of pumpkins respectively. He said his intentions were to grow crops only under reasonable season conditions, when supplementary irrigation was required. He could not see how an allocation of 8 to 10 ML would have any discernible effect on the available supply in the river or the ponded waters of Beardmore Dam. The existing works were located on a large waterhole at Bindle, broken from the receding ponded dam waters in very dry times. Three witnesses were called to give evidence for the Chief Executive. First, was Mr G.M. Lyons, a Technical Officer with the Department, who had undertaken investigation into the subject application. In his written statement it was pointed out that at the time of the applicants' first contact with Water Resources, reference had been made to the possibility of interference to the supply of water for the home and stock - with no reference to irrigation. The matter of irrigation water for crops was contained in the application under consideration, which was duly advertised with no subsequent objections. Mr Lyons provided the history of the St. George Irrigation Project, of which the construction of the Beardmore Dam formed part. The location of the works in the subject application is within the regulated section of the Balonne River. At some time after early 1973, all existing licensees within the regulated section were advised by Water Resources as to the procedure involved for obtaining water allocation. Mr Lyons agreed that neither the Bishops nor their predecessors had been advised. The reasons for this was that they were not existing licensees. Exhaustive searching of records has now been carried out and no formal past application has been revealed nor has any granting of a licence been recorded. Mr Lyons informed the Court that proposals for additional allocations within the Project area were considered in 1988, and then existing applicants for additional or new -- 3 of 8 -- 4 allocations were advised to confirm applications by 31st July, 1988 after which no further applications would be permitted. In 1989, after agreement by existing irrigators to a 3 per cent reduction in reliability of the scheme (a reduction which irrigators now believe to be more in the order of 20 per cent, according to Mr Lyons), distribution of additional allocations of water took place. With the interest in additional allocation being greater than the supply available, a volume of 3,000 ML was held back, and auctioned on 16th November, 1989. "The proceeds from the sale of this water were to be used to install a re-lift pump on Beardmore Dam to access storage normally not available for diversion under gravity to the St. George irrigation area", according to Mr Lyons. He states that the proposals for past allocation of water were common local knowledge and were well exposed in the local newspapers and that "These public processes show that Water Resources went to extraordinary lengths to ensure eligible landowners had every opportunity to apply for the extra water. The Bishops were eligible." He went on to say: "It was also public knowledge that there would be no further irrigation allocations available following the auction, as the Project is fully committed. Since then a considerable number of enquiries seeking further irrigation allocations have been received. The Water Resources response has been that no additional water supplies are available. Other irrigations have obtained water for irrigation by Temporary Transfer from other allocation holders on a yearly basis. Others have obtained water by repurchasing from someone who purchased water at the auction in 1989." Mr Lyons had inspected the Bishops' property and had considered the various points raised in support of the application being granted. He said that during his inspection no -- 4 of 8 -- 5 substantial irrigation system was observed. There was no evidence of any irrigated crops being grown on the property. Mr Lyons estimated the current water use to include supply for the house and 0.25 hectares of garden, together with the watering of 150 sheep (the stockwater requirement in the application) to be less than 4 ML. He indicated that, based on departmental guidelines, if the applicants were to grow 1.5 hectares of lucerne and 1.5 hectares of pumpkins, the full 25 ML of irrigation requirement applied for would be necessary for safe production. He agreed that the effect of granting a 25 ML allocation would, in isolation, have negligible effect on the overall system because of its size. His primary concern, however, was the cumulative dramatic effect which the granting of the many applications (since 1988), for new or increased allocations would have on existing water users in the system. He said that under normal seasonal conditions the announced allocation at 1st October commencement of a water year would be between 75 per cent and 80 per cent of the apportioned allocation with existing licensees dependent upon a flow into Beardmore Dam to receive a final announced allocation of 100 per cent. The second witness from the Department was Mr B.J. Heck, who is also employed as a Technical Officer. His role had been, in the absence of the original investigating officer, to conduct further inquiry relative to the grounds of appeal. He also had met with the appellants on the property, in company with Mr T Wallwork, the District Manager at St. George. He found no evidence of any irrigation having ever taken place, with no existing orchard and no irrigation equipment on site. A small house garden did exist. Mr Heck described, in his tendered report, the extent of inquiry which had gone into establishing that no previous licence had been granted for the existing works. He provided details as to the unsatisfied demand for water in the Project area. He related the attitude of the local Water Advisory Committee in its written concerns relative to the reliability of allocations and water -- 5 of 8 -- 6 harvesting, the silting of Beardmore Dam and its opposition to the issue of any further allocation licences. Mr Heck saw the 4 ML allocation granted to the applicants, other than for irrigation, as generous for domestic (with use for associated home garden not to exceed 0.25 hectare in extent) and stockwater in comparison with local standards. The appellants feel aggrieved by the Chief Executive's decision, because, in the first place, they believed that they had already enjoyed a right to use water from the river. They believed that Water Resources had knowledge of the existence of the pump and previous water usage, at least as early as the time of the construction of Beardmore Dam. They are, however, unable to show, notwithstanding their understanding of the situation when they purchased the property, that a licence ever had been granted. I am not persuaded by their beliefs. Rather, the investigation by the Chief Executive of this aspect of the appeal has been thorough and the evidence is that no record exists of any licence ever having been granted. It is clear that since the appellants' ownership of the property, opportunities existed at least until 1988, to make application for a licence and allocation. A further opportunity was available to acquire allocation at the 1989 auction. It may well be, as they say, that the appellants were not aware of the well publicised and well advertised situation but it is now a matter of history that previous opportunities have been lost and not through the fault of Water Resources. The past diversion of water, which has clearly been taking place, was unauthorised although I accept that it has not been intentionally so. From the practical point of view, the applicants do not relate their water requirements to the Project area as a whole, which in terms of volume available, is accepted as being fully committed to existing irrigators. Understandably, they see their requirements as being drawn from a particular waterhole. In severe dry periods, as the ponded waters of Beardmore Dam -- 6 of 8 -- 7 recede from the upper river reaches of full supply level, a number of waterholes break from the ponded area. The Bindle Waterhole is, on the evidence before the Court, of significant volume and dimensions. At the time of the hearing, Beardmore Dam was at an extremely low level, about 5 per cent of its capacity, yet the Bindle Waterhole, while low, contained more than adequate supply to meet the unused allocations of adjacent irrigators, as well as any domestic or stockwater requirements. As Mr Bishop says, the effect of the granting of their application, or particularly the volume for which he would settle, is negligible in terms of the volume of water available even in the individual waterhole. The departmental officers do not disagree. To provide the Court with an understanding of the difficulty involved in consideration of the Bindle Waterhole in isolation, Mr Wallwork was called to give evidence. He explained that allocations had been based on the total Project area full supply capacity. The Bindle Waterhole separation occurs when the dam falls below, in his opinion, about 30 per cent capacity - a relatively uncommon happening. He did not disagree that it would be unlikely, even under extremely dry conditions, for the appellants' requirements for water to cause hardship to others relying on that particular waterhole. However, if the Bindle Waterhole capacity was to be adopted as the sole criterion in allocation of irrigation water to the appellants, then that allocation would need to be restricted to those times when the waterhole was separated. On casual consideration, it may well seem unfair for the appellants to be denied the use of irrigation water, particularly when under severe drought conditions, a physical supply of water, adequate to meet their needs as well as all adjacent properties, remains. Deeper consideration, however, makes sense of what Mr Wallwork says. It would be an even more unfair situation if the appellants were to be denied any water during other than drought conditions, and granted an allocation only capable of use when the waterhole -- 7 of 8 -- 8 separated. At least the licence as granted corrects the previous unauthorised diversion of water and places the appellants in that much better position. I accept that Mr Bishop's retirement plans would be well served by the availability of irrigation water. It is possible for this to be achieved by either repurchase of any available allocation acquired by others at the auction, or the negotiation of irrigation water by temporary transfer from other allocation holders on a yearly basis. The matter before the Court however, is, in essence, an appeal against the insufficiency of the allocation granted. I have been satisfied that the Chief Executive has caused inquiry to be made as is necessary pursuant to s.4.18 of the Water Resources Act 1989 and the resultant decision is reasonable in the circumstances relating to full commitment of the available resource. The appeal is dismissed and the decision of the Chief Executive confirmed. R E WENCK MEMBER OF THE LAND COURT -- 8 of 8 --