Conroy & Anor v Commissioner of Water Resources [1992] QLC 30 (1992) 14 QLCR 156

LAND COURT, BRISBANE. 13th August, 1992 Re: Appeal under Section 4.26 of the Water Resources Act of 1989 - A92-2 PA and CR Conroy v. Commissioner of Water Resources D E C I S I O N Pursuant to the provisions of Section 4.26 of the Water Resources Act of 1989, Peter Anthony Conroy and Carmel Ruth Conroy have appealed to this Court against the decision by the respondent Commissioner of Water Resources on 2nd December, 1991 to refuse their application (No. B87135) dated 14th October, 1991 for a waterworks licence to provide for the construction and use of an irrigation bore to a nominal depth of 100 metres with a nominal annual ground water allocation of 286 megalitres to irrigate a proposed area of up to 188 hectares on land described as subdivision 1 of Portion 1016 and Resubdivision 2 of Subdivision 2 of Resubdivision 1 of Subdivision 1 of Portion 1005, Parish of West Prairie. The Conroy property is situated in Smiths Road, Norwin. The stated purpose in the waterworks application was to irrigate grain, cotton and cereal crops. Mr Conroy furnished evidence in support of the comprehensive grounds of appeal which read - "1.The Commissioner in reaching his decision of 2nd December, 1991 to refuse the applicants' application for a waterworks licence, took into account irrelevant considerations and failed to take into account relevant considerations. [1992] QLC 30 -- 1 of 13 -- - Page 2 - 2.The Commissioner failed to take into account relevant considerations including:- a)the affect of the cancellation of the bore licence No. 18409 in January, 1972 or the applicants' economic viability; b)that existing landholders in the surrounding area have had their licences renewed and extended; c)that existing landholders have not had their use of water properly monitored by the Commission; d)that the policy of the Commission has been arbitrarily applied, discriminating against the applicants; e)the refusal to issue the licence may affect the applicants being able to participate in future irrigation schemes; f)the applicants property is one of few properties in the region without irrigation and the applicants have suffered financially. 3.The Commissioner has taken into account irrelevant or incorrect considerations including:- a)the fact that a policy of refusal of ground water allocations for irrigation purposes has been consistently applied by the Commission since April, 1970; b)evidence of deterioration of bore performance and supply being affected by the granting of a licence to the applicant; c)the actions taken by the Water Resources Commission (formerly the Irrigation and Water Supply Commission since 1970 in allocation of ground water and proposed bores; d)the maintenance of current levels of irrigation crop production in the area e)that available ground water supplies have been fully committed and that the available yield has been significantly over developed; f)that water levels in the area have continued to decline with associated progressive deterioration in bore water performance and supply reliability; g)that any new or increased development and use of water, by the applicants, could only cause further deterioration in the availability and reliability of supplies to existing licencees with an increase to the sustainability of irrigation crop production, associated investments and property values throughout the area; h)that the community has acknowledged the need to the maintain restrictions on irrigation expansions. 4.The Commission's refusal to issue a licence to the applicants would be unfair and unreasonable in all the circumstances. 5.The applicants reserve the right to amend and add to these grounds of appeal following inspection of documentation from the Water Resources Commission relevant to the applicants application. 6.The applicants seek the following orders for judgment: a)that the decision of the Commissioner for Water Resources be reversed and that the applicants application be granted; b)that the Commissioner for Water Resources pay the applicants' costs of these proceedings; -- 2 of 13 -- - Page 3 - c)such further and/or other orders as this Court thinks fit." Mr Conroy informed the Court that the property for which the licence was sought was purchased by his father in 1963. The land comprises heavy black wymwbilla clay soil type which he says is suitable for growing summer and winter cereal crops such as wheat, barley, canary and chick peas. In summer, sorghum, sunflowers and field peas are grown. Mr Conroy says that when the property was purchased it had a stock bore and that the applicants were aware that there was a good underground water supply but they did not have the funds to develop the resource. When the farm was purchased, there were no irrigation bores in the area. In the late 1960's, an application was made for an irrigation bore licence which ultimately issued. Notwithstanding the issue of the licence (No. 18409), the bore was never sunk as there were insufficient funds. Dry farming continued on the property and the licence was revoked due to non completion of the works. Mr Conroy has often been to the Water Resources Commission office and has reapplied for an irrigation licence on numerous occasions but the results have always been negative. Mr Conroy claims that he needs the bore to make his farm viable and to plan ahead. He says it has been difficult to plant crops and earn a livelihood in the past. He points to the 1990/1 drought when the ground was so dry he couldn't even plant, while most of his neighbours who had irrigation licences planted and harvested crops. Mr Conroy says that dry farming is very suspect unless you farm on a broad acreage basis. The applicants presently owe the QIDC $25,000. Mr Conroy claims that if he cannot get a bore licence, then he will have to borrow more money just to keep the property going. He says it would be much more productive to borrow the money to sink a bore rather than to cover increasing debts. Mr Conroy estimates that the value of his property is about $1,500/ha, and that an irrigated property would be worth twice as much. He believes that if his property -- 3 of 13 -- - Page 4 - was offered for sale then it would prove attractive only to one of his neighbours who have an existing bore licence from which they could irrigate his farm. Mr Conroy says that it is well known in the district that many farmers exceed their water allocations to increase their returns, and that the present cost for using water over licence allocations is not an expense which prevents farmers from so doing. He stresses that his present position is desperate and that he is only requesting a 286 ML licence which is smaller than many bores in the area. During the course of the presentation of his evidence, Mr Conroy informed the Court as to water allocations made to his neighbouring and nearby farmers. A map is in evidence which shows the farmers names and properties and water allocations over a wide area of the District. BL Nothdurft has a 493 ML licence and on Portion 14 parish of West Prairie which adjoins the Conroy property to the north east. AJ and LF Lobwein has a 254 ML licence on what appears to be subdivision 3 of Portion 1005 parish of West Prairie which farm also adjoins the subject land to the west. KD and JM Radke have a 660 ML licence on Portion 252 and 253 Parish of West Prairie which farm adjoins Mr Conroy's land on the south. A property on the northern boundary owned by one Teakle does not have a licence. A property owned by RL Bellert to the north of the Northdurft property described as Lots 3, 4 and 5 on RP 222291, parish of West Prairie has an allocation of 475 ML. Mr Conroy describes his situation as being one where he is virtually surrounded by licence holders with very good supplies except for the property on the northern boundary. When the proposition was put to Mr Conroy that there are many successful dry farmers in the district, he agreed but pointed out that most are farming on softer soils than are the soil types on his farm. Mr Conroy stresses that his is a small farm by district standards with the neighbouring properties being, in some cases, twice the size. Called in evidence by the applicants was Jon Hall who is a hydrologist by profession and principal hydrologist with the firm AGC Woodward - Clyde. Mr Hall -- 4 of 13 -- - Page 5 - has been asked to prepared a report and an assessment of the impact of pumping from a bore on the Conroy farm on the local and regional ground water resources. He says that the Conroy farm is within Sub Area 3 of the Condamine Ground Water Management Area. Mr Hall has examined an interim report on The Upper Condamine Appraisal Study by the Water Resources Commission in February, 1992. A copy is in evidence. He has also examined copies of correspondence from the Water Resources Commission and the Minister for Primary Industries, together with copies of documents on the Water Resources Commission file concerning the issue of a Waterworks Licence to a Mr Stirling. He also viewed a cadastral map of the area surrounding the Conroy farm showing water allocations. Mr Hall says that following significant lowering of the water table in the central part of the acquifer system following irrigation activities in the Upper Condamine Area in the 1960's, what is now known as the Condamine Ground Water Management Area was declared in 1970 and an embargo was placed on the issue of new irrigation licences and restrictions were placed on pumping. By late in the 1970's ground water levels had declined by up to 20 metres. Ground water charges were introduced including penalties for excess usage of water over allocations and water metres were installed. Mr Hall says that between 1980 and 1989 average annual usage declined from about 75,000 ML/year to about 42,500ML/year. Studies by the Water Resources Commission indicated that the "safe yield" of the acquifer system, which is equivalent to the annual average recharge and through flow, may only be in the order of 13,000ML/year to 24,000ML/year. Mr Hall's investigations reveal that at the present time the total ground water allocations for the Condamine Ground Water Management Area are about 65,000ML/year which is well in excess of the "safe yield". But it has been recently estimated by the Water Resources Commission that actual average annual ground water usage has fallen to about 33,000ML/year since the construction of the north -- 5 of 13 -- - Page 6 - branch division for the Yarramalong Weir. As a result, Mr Hall says there appears to be some 32,000ML/year on average of allocated ground water which is not being used, and he stresses that this far exceeds the Conroy's application for a 286ML/year licence. Correspondence between the Water Resources Commission and the Conroys suggests that about 80 licences were cancelled in the early 1970's within the Condamine Ground Water Management Area for similar reasons to the cancellation of the Conroy licence (no beneficial use) and that no new or increased allocations have been granted. Mr Hall sees this correspondence as supporting a view taken by the Water Resources Commission that the overall ground water resources are over exploited and that any new allocation would cause further deterioration to existing supplies. Nonetheless he points out that in 1989 a new licence allocation of 150ML/year was granted to Mr Stirling whose property is within the Condamine Ground Water Management Area, but some 40-50 kms from the Conroy farm, and while the impact of this use on the overall Condamine Ground Water Management Area is very small due to the property's location, it is nevertheless an increase in the total allocation. Mr Hall calculates that the granting of a 286ML/year licence to the Conroy's represents an increase on the current total allocation (of about 65,000ML/year) of only 0.4% and an increase of 0.9% on the currently estimated annual average usage (33,000ML/year). It is suggested by the respondent Commission that the current annual average usage is in fact 42,757ML/year and Mr Hall accepts this as correct. I calculate the applied for allocation of 286ML/year to represent 0.7% of current estimated usage. Mr Hall says the applied for extraction represents some 1.2% to 2.2% of the estimated safe yield of the ground water in the Condamine Ground Water Management Area. He also points out that under current licencing conditions, the Condamine Ground Water Management Area acquifer system is still being over exploited by some 9,000 to 20,000ML/year on the basis of the currently estimated -- 6 of 13 -- - Page 7 - average pumping. An allocation of 286ML/year for the Conroy property would represent 1.4% to 3.2% increase in this over exploitation. Mr Hall reproduced in evidence the map referred to earlier in this decision. He has taken out the ground water allocations within a 5 km radius of the Conroy property where some 22 allocations are current. The map does not encompass the whole area within a 5 km radius - a small part of the radius line extends over the edge of the map. The aggregate ground water allocation for these farms is 7,577ML/year with an average allocation of some 344ML/year for the 22 bores listed. There are 12 allocations higher than the 286ML/year sought by the Conroys. Mr Hall has taken out what he calls a simple ground water flow simulation approach to assess the likely impact of the proposed bore on the Conroy property on the ground water levels in the area. This approach makes a number of assumptions including uniform acquifer hydraulic properties, and infinite acquifer system and no recharge/through flow. Although those assumptions are made, Mr Hall considers his approach suitable to assess the likely broad impact on drawdowns on additional pumping in the area. He supplied the Court with statistical information about predicted drawdowns from his simulation results for each of the bores in the area. This data shows that, apart from the bores adjacent to the proposed Conroy bore, the predicted additional drawdowns after a 20 year period in response from pumping from the Conroy bore at other pumping locations within a 5km radius vary from 0.18m to 0.43m. Mr Hall calls these additional drawdowns minor compared with the decline of about 15 m in ground water levels observed since 1968 in a nearby Water Resources Commission observation bore and the decline of about 5 m observed since 1980. Mr Hall summarises his evidence by suggesting that the likely impact on the overall Condamine Ground Water Management Area ground water system by the issue of a licence to utilise 286ML/year on the Conroy property to be minor, although he says that any increased pumping would have some affect on ground water availability. Mr Hall has not inspected the Conroy farm, but he recognises that it is -- 7 of 13 -- - Page 8 - located where the acquifer system can be described as one of the most heavily overdeveloped in the State. He expressed the view that an inspection of Mr Conroy's property would not affect his opinions as outlined in his evidence. The respondent Commission called in evidence Gregory Andrew Murphy who is a senior technical officer employed by the Water Resources Commission. Mr Murphy holds a certificate qualification in ground water hydrology. He told us that the application made by Mr and Mrs Conroy was submitted for the purpose of the reinstatement of an authority to construct and use proposed works previously licenced under bore licence No. 18409 which was cancelled on 19th January, 1972 in line with the policy within the restricted licence section of a the Condamine Ground Water Management Area. Mr Murphy confirmed that some 80 licences were cancelled in a similar manner throughout the restricted licence area. Mr Murphy says that the water works application was advertised in the Toowoomba Chronicle (it is required to be so advertised under the provisions of Section 4.17(2) of the Water Resources Act of 1989). No objections to the granting of a licence were received by the respondent Commission. The objection distance was specified at 500 metres from the boundary of the Conroy farm, this distance encompassing neighbouring properties only. Mr Murphy confirms that in April, 1970, as a result of the continuing depletion of the ground water resources associated with the Condamine River alluvium, the Commission, with the endorsement of the then Minister and Cabinet, moved to cease issuing additional licences for irrigation bores within what was then called a restricted licence area which included the Conroy property. Mr Murphy says that the investigation of the subject water works application was carried out against a history and background of significant resource and acquifer performance assessment within what he also describes as one of the State's largest and most heavily overdeveloped ground water irrigation areas. He told us that the alluvium of the Condamine River is a major ground water resource of significant -- 8 of 13 -- - Page 9 - economic benefit to the Community, both locally and regionally. He says that back in 1960 some 800 hectares of land were being irrigated within the Condamine Ground Water Management Area but during the 1960's the irrigated area increased dramatically to 15,000 hectares, and by 1975 to 20,000 hectares. As a result of wide spread failures in ground water supplies, a restriction was placed upon the issue of new licences after 1970. At the present time, there are 186 irrigators in the area who use a total of 380 metered bores to irrigate crops mainly of cotton, soybeans, sorghum, maize, sunflower and cereals. It is Mr Murphy who says that the average annual use of ground water within the Condamine Ground Water Management Area over a 12 year period of known (metered) use from 1979-80 to 1990-91 is 42,757ML/year, ranging from 18,682ML/year in 1983-84 to 62,563ML/year in 1979-80. Average annual use over the last 5 years has been slightly less than the longer term average. Mr Murphy informed the Court that by 1969, as a result of rapidly expanding use, the aquifers in the central part of the Condamine Ground Water Management Area were seriously depleted and the need to restrict the issue of new licences and allocations became urgent. From April 1969, a maximum allocation of 2.54ML/ha of property area was imposed. In April 1970, as a result of ongoing depletion and widespread failure of supply, the Commissioner, with the endorsement of the Minister and Cabinet, adopted and implemented a policy of restriction relating to the issue of further licences for irrigation purposes. It was especially considered essential that use, particularly within the central section of the system between Brookstead and Tipton, should not be permitted to further increase. I note that the Conroy property is within this area. On 22nd April, 1970, an area known as the Condamine Restricted Licence Area was defined. The Conroy property is again within this area. Since the embargo on the issue of new licences was introduced in 1970, the Commission has refused in excess of 50 applications including applicants for increased allocations. Mr Murphy confirms that by the late 1970's water levels had fallen by as much -- 9 of 13 -- - Page 10 - as 20 metres in the central part of the irrigation area. Metres were installed on bores and ground water charges were introduced in 1980 and excess charges were applied from 1982. Mr Murphy says this had a marked affect on ground water use. Average annual use fell from an estimated 75,000ML/year prior to 1980, to about 42,750ML/year during 1980-81. Mr Murphy says that despite management controls which have been introduced, water levels have continued to decline markedly in the central part of the system. There has been an arrest in the rate of decline in recent years in certain areas adjacent to a central depression and in other areas water levels are either static or rising. In response to the improved situation, the Commission partially lifted the embargo on the issue on new licences in certain fringe areas during 1991. Expressions of interest were called and the available additional allocation was taken up. Mr Murphy told us that the first major analysis of the available ground water resource in terms or yield for average annual recharge to the system was completed in 1978 following data collection over the previous decade and this indicated that use was far in excess of natural recharge. The 1978 study concluded that the average net recharge to the system was 13,200ML/year. More recent and sophisticated analyses involving computer modelling techniques and the use of accurate water use data conclude that with the average annual recharge to the system, its yield is about 25,000ML/year. Mr Murphy says use of water within the area exceeds yield by about 17,800ML/year or by some 70%, and that the imbalance between use and yield for the total system is greatest in the highly developed central section of the system in which the applicants' property is located (Sub Area 3). Mr Murphy is of the opinion that within Sub Area 3 the current level of use cannot be sustained let alone any increase in use under existing allocations for any new or increased allocations. Mr Murphy informed the Court about water level declines within the Condamine Ground Water Management Area since 1966. They have been in excess of 25 -- 10 of 13 -- - Page 11 - metres of the central depressions and in the vicinity of the Conroy property, and the overall decline has been in the order of 15 metres. During 1991 water levels declined to record lows throughout the central depression. This is perhaps understandable in view of what is recognised as a major drought in the area. In the vicinity of the applicants' property, the water level then fell to a little over 36 metres below ground level. Mr Murphy says the impact of water level declines of these magnitudes is severe, and since further declines will occur as a result of use being well in excess of yield, the outlook in terms of security and reliability of supply is extremely poor. As a result, Mr Murphy is of the opinion that clearly the issue of new or increased allocations must aggravate an already deteriorating system, and the approval of new or additional licences within Sub Area 3 of the Condamine Ground Water Management Area he describes as irresponsible. Mr Murphy told us about the investigations which have been made into the application for the subject waterworks licence. He stressed and repeated that the Conroy property is within Sub Area 3 where a policy of refusal of new and increased ground water allocations has been in place and consistently applied since April, 1970. Mr Murphy says that the Commission and the community have recognised the importance of maintaining the current level of irrigated crop production in the area, and have acknowledged the need to maintain an embargo on irrigation expansions based on ground water in the area. He informed the Court that the subject waterworks licence application No. B87135 was refused on the basis that the available ground water supplies in the area of the Conroy property and in the area in general are fully allocated to existing licencees, and that approval of the application would have proven to be detrimental to the interest of existing licencees. Mr Murphy is of the view that the decision taken by the Commissioner to refuse the application is both responsible and justifiable. Mr Murphy informed the Court that the Stirling property is some 50 kms upstream from the applicants' property. Mr Stirling is one of a number of landholders -- 11 of 13 -- - Page 12 - upstream who attempted to obtain a licence. This is an area in which Mr Murphy says there has been a recent relaxation of the embargo on the issue of licences and where the ground water system has been behaving satisfactorily over a number of years. Section 4.18 of the Water Resources Act of 1989 is relevant to the consideration of an application for waterworks licences, and the relevant part of the Section reads:- "(1)Upon an application under Section 4.17 and an objection thereto, the Commissioner must cause enquiry to be made - (b)where the application relates to underground water, into - (1)the availability and sufficiency of water to satisfy the requirements of - (A)licencees; and (B) The applicant; and (ii)the effect of the granting of the application will have or is likely to have on the requirements of owners of neighbouring land and licencees." Now the evidence in this case makes it clear that the ground water resource within the Condamine Ground Water Management Area is heavily overcommitted but I do not feel that this factor alone should be of such weight with the Commission that it should have refused the subject waterworks licence application on that basis alone. What concerns me is that none of the owners of the neighbouring irrigation properties objected against the granting of the licence. Of course it well may be that the advertisement in the Toowoomba Chronicle did not come to their notice, but I have no evidence this is so, and it would have been open for the respondent Commissioner to call evidence from them if they opposed the granting of the licence to the applicants. They are, after all, licencees and neighbouring owners. Now Mr Hall is of the opinion that the effect of the granting of a licence would be minor. This opinion is to be weighed against the well presented evidence of Mr -- 12 of 13 -- - Page 13 - Murphy which convinces me that the granting of any additional licences would have some effect on the existing irrigators and result in further depletion in an already severely depleted resource. However, on balance, and having regard to the provisions of Section 4.18 of the Water Resources Act of 1989, and in particular to the requirement that I should have regard to the requirements of the applicants, I find that the granting of the subject waterworks application is justifiable, on the ground that one more licence with an allocation of only 286ML/year would not significantly deplete the resource. Of course it must be said that if, as a result of this decision, there are numerous other applications for ground water waterworks licences within the Condamine Ground Water Management Area, then this decision is not to be taken as a precedent for the granting of numerous other licences which, on the evidence, and to use the words of Mr Murphy, would not be responsible or justifiable. I have come to this conclusion without placing any weight on the granting of the licence to the Stirlings whose property is in an area where the resource is not under as much duress as it is in the vicinity of the Conroy property. It would seem to me to be unjust for the Conroys not to be able to tap to the same resource enjoyed by so many of the neighbouring an nearby properties. In the end then, the decision of the Commissioner of Water Resources to refuse waterworks application No. B87135 is revoked. I order that the Commissioner of Water Resources issue a waterworks licence to PA and CR Conroy in usual terms authorising them to utilise an annual allocation of 286ML from an irrigation bore to be developed for irrigation purposes on land described as subdivision 1 of Portion 1016 and Resubdivision 2 of Subdivision 2 of Resubdivision 1 of Subdivision 1 of Portion 1005, Parish of West Prairie. (C.H. Carter) Member of the Land Court. -- 13 of 13 --