Boyd v The Commissioner of Water Resources [1991] QLC 23

LAND COURT BRISBANE. 15th July, 1991. Re: Appeal under Water Resources Act - 1989. (A90-84) Dennis Anthony Boyd & Mary Isabella Boyd v. The Commissioner of Water Resources D E C I S I O N This appeal is by the owners of Lots 3 & 4 on R.P. 202369 Parish of Neerdie against the decision of the Commissioner granting M.W. & D.K. Skinner a licence for works in Goomboorian Creek comprising an excavation 20 metres long with a depth of 2.5 metres. This licence - A51968 - was granted following construction of the works and carries a condition which reads as follows:- 3.005If there is a flow in the watercourse into the storage, water must be allowed to pass downstream of the storage through the outlet pipe or siphon pipe or over the bywash or spillway, or by any other means determined by the Commissioner or an Authorised Officer at a rate equal to the unrestricted capacity of the outlet pipe or siphon pipe (with the downstream end of the pipe at bed level) or equal to the rate at which water is entering the storage, whichever is the lesser, or at such a rate as may be determined by the Commissioner or Authorised Officer. When directed by the Commissioner the licensee shall install and maintain to the satisfaction of the Commissioner approved flow measuring devices for the purpose of measuring flows entering and leaving the storage. The land the subject of this licence is described as Easement A in Lot 3 on R.P. 202369. The licensees obtained the easement by grant executed on 8th December, 1989, between the grantees (Licensees) and the then owner of Lot 3 being D.S. Lawrie. The dominant tenant is described as Lot 1 on R.P. 202369. On this land the licensees conduct a business of small cropping under irrigation. That land has the benefit of Licence No. 50282 for works comprising the installation of a 32 mm centrifugal pump situated on Goomboorian Creek (the excavation in question) for the purpose of irrigation. These works are in place. This licence carries a condition that:- Diversion of water under the authority of this License is prohibited when the diversion will cause or is likely to cause the cessation of surface flow in Goomboorian Creek at the waterhole where the pump is located. [1991] QLC 23 -- 1 of 6 -- 2 The appellants acquired possession of Lots 3 & 4 on 16th January, 1990, by contract which Mr D.A. Boyd says was entered into some 4 months before that date. He says that he knew nothing about the easement until he had actually paid for the property. The appeal (objection) to the granting of the licence is based on grounds that "the condition to which the approval was subject is inadequate to ensure a reasonable flow of water from the creek downstream of the excavation." Mr Boyd gave evidence. Mr B.E. Davies, Consulting Civil Engineer, also gave evidence on behalf of the appellants. For the respondent evidence was given by Mr M.N. Perry Technical Officer in the employ of the respondent and formerly employed by him as a Stream Control Officer. Before commenting upon the evidence it is necessary that I state some of the provisions of the Act and my views on the functions imposed on the Court in determining this issue. Under the Act the Commissioner has the power to grant a licence for existing works or works proposed. In either case Section 4.18 provides that:-(1)Upon an application under Section 4.17 and an objection thereto, the Commissioner must cause inquiry to be made - (a)where the application relates to water other than underground water, into - (i)the availability and sufficiency of water to supply the requirements of - (A)riparian owners; (B)licensees; (C)permittees; (D) the applicant; and (E) persons specified in Section 2.2 (a); (ii)the effect that the granting of the application will have or is likely to have on entitlements of riparian owners, licensees and permittees. Having made such inquiry and having made a decision on the matter (in this case by the grant of the licence the subject of the appeal) section 4.26 provides that a person aggrieved by the decision may appeal to the Court; that the appeal must state the grounds upon which the appellant intends to rely and that the appellant is not entitled to raise on -- 2 of 6 -- 3 appeal a ground not stated in the notice. Such provisions are simple and straight forward. It is a matter of their interpretation which has caused things to become twisted in the subject case. In order to understand this some further provisions of the Act should be stated. Section 4.19 provides, inter alia, that a licence:- (f) may be - (i) renewed; (ii) suspended; (iii) cancelled; (iv) revoked; (v) transferred; (vi) amended, modified or varied, by the Commissioner during the currency thereof; (h)must, subject to this Act, entitle the holder during the period of the licence to the quiet enjoyment and sole occupation of works constructed under the authority thereof as against all other persons but so far only as those works are constructed or maintained on the land occupied by him or the subject of an arrangement or an authority made or granted under Section 4.14; Section 4.25 provides:- (1)The Commissioner, where he is satisfied or believes on reasonable grounds that - (a).... (b) .... (c) the licensee - (i)has been convicted of an offence against this Act in relation to the licence in question; (ii)has contravened or failed to comply with a term of his licence or of an arrangement or authority under Section 4.14 given in relation to that licence, may by notice in writing given to the licensee call upon him to show cause within the time specified in the notice, why the licence should not be amended, varied, cancelled, revoked or suspended. The case for the appellants was conducted primarily on the basis that, to put it as softly as I can, the conditions attaching to the licence are not sufficient to ensure a flow of water downstream when there is a flow into the excavation. The evidence was not founded on technical reasons (for it is considered by Mr Davies that the conditions of the licences when read together are sufficient to ensure that object) but rather upon fear that the licensees may not abide by the conditions. This sort of evidence in my opinion has no relevance. -- 3 of 6 -- 4 The purpose of the proceedings under this part of the Act is not to inquire into whether an applicant is a fit and proper person to hold a licence but rather as a follow on from the inquiry made into the grant of the application by examining whether the decision of the Commissioner to grant the licence is fair and reasonable having regard to the provisions of the Charter Section - Section 4.18. My jurisdiction in the matter begins and ends there. I might simply add that the appellants must come to grips with the fact that the licensees have the legal right of occupancy of the area under the terms and conditions of the easement. They have an irrigation licence and the licence the subject to these proceedings. They have subject to the Act ".... the quiet enjoyment and sole occupation of the works" constructed under the authority of these licences. The licences are defeasible during their currency (Section 4.25), but when the value they add to the dominant tenement is considered it is readily apparent that only a grossly imprudent person would do any act to prejudice their existence and continuance. I turn now to the evidence relevant to the issue. There are on Goomboorian Creek six licences (apart from the licence recently granted to the appellants) all of which have benefit from varying flows in the creek. The licence granted to M.W. & D.K. Skinner was the sixth to be granted. There are three licensees upstream of the subject waterhole and two are downstream. The licence granted to the objectors covers works for excavation and irrigation. This licence does not carry the condition applying to Licence 50282. When Mr Boyd acquired these lands he was given to understand on enquiry (of the agent selling the property) that the creek was virtually permanent apart from a month or two of the year when it dried up but still left holes with water in them. He was of the impression that a hole downstream had not (to the knowledge of the agent) dried up. Since taking possession of the land the hole has gone dry and he puts this down to the effects of the subject works upon the stream. Enquiries made by Mr Perry are also to the effect that the creek is not permanent. He said that Mr Bunter who is the immediate upstream owner and has lived there for 13 years informed him that it is not unusual for the creek to dry up once a year for up to three months. The creek is bordered by alluvial flats and consequently can be fed in -- 4 of 6 -- 5 part by water draining from the alluvium when water level in the creek recedes. The area is not a proclaimed area with respect to groundwater and hence the Commissioner has no control over the use of groundwater. However it is conceded correctly in my opinion that surface flow is just that whether that surface flow emanated from rainfall run-off or seepage from underground. The waterhole in the subject case provides a storage. It may be used as such when there is no surface flow into the excavation. Otherwise it may be used when there is a flow into the hole and a flow out of the hole providing that pumping does not cause the outflow to cease. In the opinion of both Mr Perry and Mr Davies these conditions are sufficient to protect the rights of downstream owners including the rights of the appellants. However, as condition 3.005 of the subject licence provides, alternative procedures by way of works may be required in order to pass the flow into the excavation downstream of the excavation. Mr Davies considered these options - (a)a control weir in concrete constructed at the outlet from the pond at the bottom of which, possibly a metre below the current outlet level, would be installed a small diameter 40 mm pipe to maintain a small flow downstream at all times and immediately above that pipe there should be a fixed pumping outlet pipe installed from which all pumping would be carried out. (b)a syphon pipe could be put close to the bottom of the pond and run downstream to a point where it could syphon and maintain a flow. (c)a by-pass system comprising the construction of a small weir at the inlet to the pond and from there to divert surface flow around the pond via a 40 mm pipe. (d)to install a T-junction into the pumping line from the pump so that whenever the pump is operating a small volume of water would pass downstream. Of these options Mr Perry said that option (a) was unsatisfactory in his opinion in that Mr Skinner would be disadvantaged when the flow into the pond ceased in that he could not obtain access to water stored below the level of the outlet of the weir. He did not think that the syphon would work due to the fall in the creek compared with the depth of the excavation. The by-pass system he considered unsatisfactory for a number of reasons - it -- 5 of 6 -- 6 involved the placement of a pipe around the whole excavation; it could get blocked; there would be maintenance problems and it would have to be placed on a road reserve. The T-junction option was considered unsatisfactory (although the licensees are apparently prepared to install it if required) for reasons that Mr Skinner would be paying water rates on water going through the pump and more to the point "who" was to regulate the flow. In these options apart from the by-pass which appeals as the ultimate in dispelling the concerns expressed by Mr Boyd, there is the element that downstream owners would get the benefit of the excavation as a storage and possible collector of underground water. Of all the options Mr Perry considered that the simplest method is via the existing conditions. In effect what the licensees have been able to do is to sink a well in the bed of a creek. In that capacity as a storage the works have the ingredient of a well being sunk in the alluvium adjacent to the creek; in which event the works would not be under the control of the Commissioner and downstream owners would have no right of objection notwithstanding that they may be concerned that water taken from the alluvium may at some point reappear on the surface of the bed of the creek as surface flow. The additional power in the Licences is to the effect that the licensees may pump when the flow out of the excavation exceeds the capacity of the pump. It seems to me that the conditions as presently drafted are sufficient to safeguard the rights of downstream owners and are practicable and workable. Accordingly I have formed the view that the appeal should be dismissed. The appeal is therefore dismissed and the decision of the Commissioner confirmed. D.M. White Member of the Land Court. -- 6 of 6 --