Curcio v The Commissioner of Water Resources [1990] QLC 3

LAND COURT, BRISBANE. 16th February, 1990. Re:Appeal under Section 12 of the Water Act 1926 (as amended) (A89-16) Severio Joseph Curcio - v - The Commissioner of Water Resources - DECISION - (Hearing at Atherton) This is an appeal under Section 12 of the Water Act 1926 (as amended) by Severio Joseph Curcio being the owner and occupier of Portions 273 and 172, Parish of East Barron against the decision of the Commissioner of Water Resources to issue Waterworks Licences 48199 and 48200 to Garrick Smith Investments P/L. Garrick Smith Investments P/L are the owners of Portion 279, Parish of East Barron with its northern boundary adjoining the southern boundary of Mr. Curcio's Portion 273. Both properties have water courses flowing through them which link almost on the common western boundary. The water course passing through Mr. Curcio's land and his Portion 172 is known as Leslie Creek and that flowing through the Garrick Smith property has an unnamed tributary of Leslie Creek. In his evidence Mr. R.P. Walsh, Stream Control Officer with the Water Resources Commission, gave details of the various waterworks licenses issued in respect of these lands and I set out some of this history. Mr. Curcio is the holder of Waterworks Licence 13894 authorising the installation of a 50 mm centrifugal pump on Leslie Creek within Portion 172 or Portion 273 to supply water for the irrigation of two (2) hectares of pastures and/or vegetables on Portion 172 and/or Portion 273. This licence has been in existence since 8th April, 1964. He also holds Waterworks Licence 16907 authorising a 3 m high earth dam with an 80 mm outlet pipe at bed level on Leslie Creek within Portion 273. The purpose being water conservation for irrigation. This [1990] QLC 3 -- 1 of 10 -- - Page 2 - licence was first issued on 15th August, 1967. He is also the holder of a Section 9 permit to pump water for normal stock and domestic use. Prior to the purchase of Portion 279 by Garrick Smith, Licence No. 26710 was issued to the then owner authorising the installation of a 65 mm centrifugal pump on the unnamed tributary of Leslie Creek within Portion 279 to irrigate 3.25 ha of pasture on Portion 279. This was amended on 9th May, 1974 to authorise the irrigation of 2 ha and further amended on 21st January, 1985 to authorise the irrigation of 10 ha. The previous owner was also issued with Waterworks Licence 26711 on 5th November, 1971 authorising a 3.7 m high dam on the unnamed tributary of Leslie Creek. This dam has a capacity in the order of 1 to 2 megalitres. These licences were transferred to Garrick Smith on 8th April, 1986. In November 1986 Garrick Smith was granted an amendment to Waterworks Licence 26710 to authorise the irrigation of 20 ha of pasture on Portion 279 and was granted a further Licence 46831 authorising a 4.5 m high dam having an outlet pipe at bed level and a storage capacity of 50 megalitres. The dam was to be located on the unnamed tributary of Leslie Creek within Portion 279. This dam was not proceeded with due to unsatisfactory construction material. There was no objection from any party to the granting of these licences or the amendments. On 16th December, 1987 Mr. Curcio made a complaint to the Regional Engineer of the respondent Commission at Mareeba that diversion works on the tributary of Leslie Creek were being carried out by Garrick Smith and depriving him of water with a consequent loss of production and earnings. He also made his complaint in person to the Commission's advisory staff who were conducting a survey in the locality. This complaint was investigated by Mr. Walsh who has, amongst other duties, the duty to investigate complaints and take appropriate course of action to ensure the provisions of the Water Act are complied with. He carried out an inspection on 31st December, 1987 in the company of Mr. Curcio. There had been various diversion works carried out and these had to a large extent obliterated evidence of the extent to which the water course had been interfered with. The inspection showed that the untouched part of the water course within Mr. Curcio's Portion 273 was swampy and unfit for cultivation and this type of land would appear to have extended into the Garrick Smith land. Mr. Curcio directed Mr. Walsh's attention to a relatively low area within the swampy area which he claimed was a channel which naturally drained the area and directed water to his pump hole -- 2 of 10 -- - Page 3 - which has an approximate dimension 50 m by 10 m and an estimated capacity of 0.5 megalitres excluding the water stored in the swampy area. The pump hole is located near the western boundary of Portion 273 and by perusing the parish map, it would confirm that the pump hole was just below where the unnamed tributary crossed the common boundary and entered Leslie Creek within Mr. Curcio's Portion 273. At the time of his inspection the works carried out by Garrick Smith consisted of a channel constructed parallel to the common boundary for the length of the swampy area as it existed for Portion 279. This channel then extended southward to a 140 cu metre excavation constructed for water conservation purposes. A further channel extends from this excavation upstream almost to the eastern boundary of Portion 279. Three (3) further drains were excavated to the east of this then backfilled after agricultural drainage pipe had been laid along their invert with the intention being that subsurface water would drain back into the main channel to flow into the excavation and then through the channel towards the common boundary with Portion 273. A further shallow channel was cut along the south-western periphery of the swampy area as a cut off channel to prevent overland flow from entering the swampy area. This channel was not considered to interfere with the water course and therefore not licensable. In the interview with Mr. Garrick Smith he stated that he thought he had approval to carry out the diversion works and he was unaware that some of the drainage and its diversion works would also require a licence. He formed this opinion when considering the construction of the proposed dam approved under Licence 46831 because the proposed dam could only proceed satisfactorily if the area was dewatered to provide a suitable foundation. Apparently subsequent to draining the land it was concluded that the construction material was not of a required standard. He says that the drain along the common boundary was completed in about July 1987 and was cleaned out in January 1988. Mr. Walsh put to Mr. Smith that Mr. Curcio had complained of being deprived of water to the extent that he could only irrigate for two (2) hours before losing water. He disputed this claim and stated that he had observed Mr. Curcio pumping for six (6) hours continuously. To endeavour to resolve the matter Garrick Smith Investments were requested to forward an application for a Waterworks Licence. The application would be subject to -- 3 of 10 -- - Page 4 - statutorily required investigations and would give Mr. Curcio the opportunity to formally state his grounds of objection and have them included in the investigation. On 7th March, 1988 the company lodged an application for a Waterworks Licence for a 140 sq. metre excavation of 2 m depth and a 500 m diversion channel of dimension 1.5 m deep, 2 m wide with a bottom width of 0.5 m. The application was advertised in the Cairns Post on 19th March, 1988. An objection from Mr. Curcio was received on 5th April, 1988. Subsequently pumping tests were carried out by officers of the respondent Commission to endeavour to determine the availability of water to Mr. Curcio when pumping from his water hole. It is the accuracy of these tests which are challenged by Mr. Curcio in his Grounds of Appeal and I will discuss them later in this decision. Suffice here to say that following such tests Mr. Walsh made a recommendation to the District Engineer to the effect that he was of opinion that Mr. Curcio would have sufficient water to irrigate his licenced area and he recommended the issue of the licences to the Company. The recommendation was endorsed and the licences were issued. Mr. Curcio was notified on 24th February, 1989 of the decision of the Commissioner and he lodged an appeal against that decision on 11th March, 1989. The grounds of appeal set forth in the Notice of Appeal are: "The pumping tests at my pump site did not provide accurate and true evidence that sufficient water would be available in the magority of years to irrigate my licensed area. Reasons - (I) On the day and previous days Mr. Smart and Mr. Walsh did the tests I received the heaviest rainfall for the whole year 1988. Heavy Rain and Run-off water concentrated here and water logged the pump site without a notice-able small rise in water level. (II) For many many months the ground was dry and crached and I was unable to start my pump at a time when it was needed as, only a small trickel of water flowed into my pump site and it did not refill for long lengths of time, on the day's of the tests this dry and cracked soil with the heavy rain was liked sponge." Section 12 4B of the Water Act provides that the Notice of Appeal shall state the grounds of appeal and the appeal shall be limited to the grounds stated. (my underlining) The burden of proving any grounds stated shall be upon the appellant. At the commencement of the hearing of this matter in Atherton Mr. Curcio requested that the Court inspect the creek immediately to see that "all the water is gone underground into the drains and Portion 273 is just dry, absolutely dry". I refused this application until such time as I had heard evidence in the matter to appreciate the points in issue. This inspection was carried out on 8.00 a.m. on the following day when I viewed the waterhole on Mr. Curcio's land and, with -- 4 of 10 -- - Page 5 - the consent of Mr. Smith, the works which have been carried out upon the company land. Having heard the evidence I was then in a better position to appreciate the points in issue. Mr. Curcio gave evidence and supported it with a number of photographs of the works in question and with letters from various people to the effect that in the past there was ample water available in Leslie Creek to meet all of the requirements of Mr. Curcio in his farming activities including a letter from a Mr. R.G. Thomson of working in association with Mr. Curcio in a business enterprise of growing potatoes. In the first few months of 1987 they spent a considerable amount of money on plant, equipment, seed and fertilizer. A crop was planted. Conditions were dry and frosty and it was necessary to irrigate heavily until the crop was harvested in August 1987. A second crop was planted in early October 1987 and irrigation was restricted due to lack of water. With the water level dropping dramatically after six (6) hours pumping where previously they were able to irrigate for as long as necessary. The letter from Mr. Thomson says that due to restricted irrigation of the second crop, it was no longer a viable proposition to grow potatoes on this property. He was not at the Court to be cross examined. Mr. Curcio tendered a copy of a farm profit and loss statement for the year ending 30th June, 1987 to show the extent of his activities up to that time. I am unable to derive any assistance from this statement which shows the only income from agricultural pursuits was the sum of $1,003.20 from the sale of maize. The other profit comes from the sale of milk and trading in cattle with the overall final result being a substantial loss for the year. Mr. Curcio says that he recalls the test undertaken by the officers of the Commission in November 1988 and says that the equipment was delivered on a 4 to 5 tonne truck owned by the Water Resources Commission and the truck was bogged due to the wet conditions. In cross-examination it appears that he claims that the truck was bogged when it was leaving the property a little distance from his diesel tanks which are not far from where his pump is located. He says that when the tests were being taken it was after a rainfall of some 10 to 12 inches (250 mm to 300 mm) of rain and he could not believe that they would do a test at that time. He claims that, when the test was being taken, the water which was being pumped out of the water hole was allowed to flow back into it resulting in a false reading. He recalls having a conversation with Mr. Smart of the Water Resources Commission in April 1988 and assisting Mr. Smart in measuring areas which had been cultivated. He says -- 5 of 10 -- - Page 6 - that he may have told Mr. Smart that he has planted up to 10 acres. He denies that he said that he would irrigate 7 to 8 acres of potatoes at any one time and the remainder of the land of 8.64 hectares (21 acres) under cultivation is planted for oats for cattle fodder in the dry season. He says that he would plant up to 10 acres of potatoes at any one time but he would only irrigate the two (2) hectares permitted under the licence. He agrees that his pump which he uses for irrigation, is an 80 mm pump (and not 50 mm as licensed) which he says is necessary to irrigate the two (2) hectares allowed under his licence. He was questioned at some length on conversations which he had with the officers carrying out the tests. He says that his words were to the effect that he could not believe they were doing the tests at that time because there had been such heavy rain and the creek was flowing like the Barron River. He denies that he told them that there had been no significant rainfall on the property. He agrees that he told them that his farm area generally receives less rainfall than other areas in the locality as it was in a rain shadow. He is of the opinion that the Garrick Smith Property receives more rain than his property. Mr. Curcio called his brother Joseph Francis Curcio and his sister Theressa Terranova to give some supportive evidence but this evidence does not really take his case further. Mr. Walsh gave evidence of his involvement in this matter. He says that he has visited this pump site on at least eight (8) occasions between December 1987 until November 1988 and the water level in the pump site has never varied. He gives particulars of the pumping tests which were carried out on 3rd November, 1988 and 26th November, 1988. He had decided the most appropriate means of determining the availability of water to Mr. Curcio was to pump his water hole under conditions approximating those existing in December - February period of the previous year. The period June 1986 through to December 1988 was characterised by lower than normal rainfall in the area and this continued until November/December 1988. The first test on 3rd November, 1988 was carried out prior to any break in the prevailing dry weather. A 1.5 hr test extracted 51,000 litres from the pump hole lowering the level by 22 mm using a 75 mm Robin centrifugal pump with the flow volume measured by a Water Resources Commission 75 mm flow meter. Visible available water in the pump hole excluding that held in swampy areas appeared to be in the order of 0.5 megalitres. The pumping rate was therefore 9.4 L per second or 0.8 megalitres per day. The test provided valuable data but was -- 6 of 10 -- - Page 7 - not considered sufficiently conclusive due to the small lowering of the water level that was produced in the pump hole. This was so because a pump rate of 9.4 litre per second was too low when compared with the normal discharge of a 50 mm centrifugal pump of 15 - 20 litres per second. The second test was carried out on 26th November, 1988 using a hired 100 mm Ajax centrifugal pump. During the previous week a number of storms had occurred in the area. Mr. Curcio claimed there had been no significant rainfall on his property. It was believed that between 50 to 75 mm fell in the general vicinity the day prior to the test. However, the water level in the pump hole at the commencement was identical to that of the previous test and there was no evidence of surface run-off to his dam which would have been obvious on the red soil. There was no by-washing from his dam on Leslie Creek upstream of the water hole. The water pumped from the hole was measured by a Water Resources Commission 120 mm flow metre and amounted to 417,000 litres in six hours 10 minutes of pumping. The pumping rate was therefore 19.3 litres per second or 1.65 megalitres per day. The discharge rate achieved is below what would normally be expected for a 100 mm pump. However, it equates to that of an efficient 50 mm centrifugal pump which is the type of pump authorised by Mr. Curcio's licence. In his written report Mr. Walsh deals with the question in detail and says that following the test it was concluded that Mr. Curcio could satisfactorily irrigate his 2 hectares in two (2) applications per week. It was put to Mr. Walsh by Mr. Curcio that the water being pumped from the pump hole was flowing back into the pump hole during the testing. Mr. Walsh says that if the water hole had been recharged it would have the exactly opposite effect to the one that they were trying to achieve. Mr. Walsh says that, to assess the impact storm rain may have had at the time of the second test he noted no discolouration of water in the pump hole to indicate that overland flow had occurred. The water level in the pump hole was the same as that recorded for the first pump test. Mr. Curcio was irrigating pasture on Portion 273 from the upstream dam to prevent any possible overflow at the time of the second test. No difficulty was experienced in negotiating the farm tracks which in places were reasonably steep. -- 7 of 10 -- - Page 8 - Evidence was given by Mr. S. W. Smart, a Stream Control Officer of the Water Resources Commission. He speaks of a visit to the farm of Mr. Curcio on 28th April, 1988 when he discussed the area normally cultivated. Mr. Curcio assisted him in measuring the areas by tape. It was ascertained that 8.64 hectares was used for cultivation. Mr. Curcio informed him that about 2.8 to 3.2 ha was cultivated for potatoes at any one time with the balance cultivation area planted with oats for cattle fodder. Maize was grown on the area used for potatoes after harvest to utilize the fertilizer applied for the potato crop. He says that while the pumping test was taking place on the second occasion, Mr. Curcio, placed his pump in position in the upstream dam and commenced pumping. This was done to ensure that, in the test being undertaken, no water came over the by-wash from the dam as they wished to test the capacity of the pump hole only and have no intake of water from upstream. Evidence was given by Mr. Albert A. Keating, Plant Operator for the Water Resources Commission. On 25th November, 1988 he drove the truck carrying the pump to Mr. Curcio's property. The truck was a five (5) tonne International ACCO truck and he was carrying the pump which weighed approximately 2 tonne. He drove the truck onto Mr. Curcio's land down a fairly steep incline down to the pump site. He had no difficulty in unloading the pump using the crane fitted to the truck. He had no difficulties in driving the truck in and out of the property and as he recalls the ground conditions were dry at that time. On 28th November, 1988 he returned to recover the pump and again experienced no difficulties in travelling in and out. Evidence was given by Mr. Garrick B. Smith to the effect that he keeps daily records of the rainfall registered at the rain gauge at his property. The record tendered shows a fall of 53.5 mm up to 9.30 a.m. on 25th November, 1988 and 20 mm up to 9.30 a.m. on 26th November, 1988. There were no other significant falls in that month. As already stated I carried out an inspection on the morning after the hearing in the company of Mr. Curcio and Mr. Smart. Mr. Curcio complained that had I seen the pump hole on the previous morning it would have been dry. He claimed that there had been a substantial down pour during the evening and this was responsible for the amount of water which now showed the water hole full to overflowing. In the inspection we drove across his land and I -- 8 of 10 -- - Page 9 - walked over some areas and saw no evidence of water run-off nor was I inconvenienced in my walking by any wet soil. I first wish to deal with the serious allegations made by Mr. Curcio that Mr. Walsh and Mr. Smart undertook their tests in such a way as to give false readings. There is also the allegation that the second test was undertaken after a down fall of some 125mm of rain, the highest rainfall for 7 to 8 years. Mr. Curcio highlighted this allegation with his evidence of the truck becoming bogged on the property due to the wet conditions. I view these allegations most seriously. This Court expects to receive from expert witnesses, particularly these appearing for Government instrumentalities, a high degree of professionalism in calculations they do in support of conclusions they have reached. The Court expects them to present the facts with frankness and fairness. In the many appeals under the Water Act which have come before me for determination there has never previously been a case where allegations of impropriety have been made. Having heard the evidence of Mr. Walsh and Mr. Smart, I am satisfied that the tests that they have undertaken have been carried out in a proper manner and the conclusions reached by them present a fair picture of the potential water supply from this particular point. I also reject the evidence from Mr. Curcio that there had been a rainfall of some 125 mm just prior to the tests being carried out. The evidence of Mr. Walsh and Mr. Smart is preferred and if any corroboration was required it came from the evidence of Mr. Keating who drove the truck in and out of the property without a problem. I do not doubt that Mr. Curcio has in the past experienced problems in maintaining the supply of water for his agricultural pursuits. He has a licence for a 50 mm centrifugal pump to irrigate 2 hectares of miscellaneous pastures and miscellaneous vegetables. Mr. Curcio has seen fit to utilize a pump with a higher output and to irrigate an area in excess of the authorised area. It well may be that this small stream is unable from time to time to supply the water to meet this demand but the investigations undertaken by the Stream Control Officer was to ascertain whether the works undertaken under the licences under appeal had an adverse affect on the activities approved under Mr. Curcio's licence. I have before me evidence of pump tests undertaken by experts and there is no expert evidence given to cast any doubts on the accuracy of the tests. In appeals of this nature the onus is upon the appellant to prove the grounds stated in a Notice of Appeal and the appeal is -- 9 of 10 -- - Page 10 - limited to the grounds stated. Here I find that the appellant has failed to discharge this onus and the appeal fails. Accordingly the appeal is dismissed and the decision of the Commissioner is affirmed. President of the Land Court D.J. Barry -- 10 of 10 --