Estate of D Sumich and SL Sumich v Commissioner of Water Resources [1993] QLC 6

LAND COURT, BRISBANE. 2 April, 1993. Re: Appeal under Water Resources Act 1989. A92-55 Estate of D Sumich and SL Sumich v. Commissioner of Water Resources D E C I S I O N This is an appeal under s.4.26 of the Water Resources Act 1989. The appeal is against the decision of the Commissioner of Water Resources refusing an application by the appellants for a license to install a 50 mm pump on Meuanbah Creek, Parish of Japoon for the purpose of irrigating 5 hectares of bananas. The land owned by the appellants is described as Lot 2 on RP 730373. The lot contains an area of about 40 hectares. It is situated on the right bank of Meuanbah Creek and is used for sugar cane. The application was made for the purpose of establishing bananas to supplement farm income from cane. Mr SL Sumich appeared on behalf of the appellants and gave evidence in support of the application. Apart from evidence dealing with the economic advantages of having bananas on the lot as a supplementary income to cane (which is not in dispute), Mr Sumich believes that the decision to refuse the licence was based solely on water levels and studies made by the respondent during an abnormally dry time and in a period which he said water levels were at their lowest since 1964. He was of the opinion that the pump he proposed to install under the license would not [1993] QLC 6 -- 1 of 6 -- - Page 2 - cause water levels in Meuanbah Creek to fall to a degree which would cause existing users any inconvenience or disadvantage. At the date of hearing on 17 March this year he said that about 2 hectares of the lot was under bananas which were planted in October 1990 and October, 1991. He described the dry period for the locality at the period generally between September and November. He admitted that he had not previously grown bananas and had never made or obtained any professional advices on water requirements for either a 2 hectare or 5 hectare plantation of bananas. He believed that water would be required at least twice a week, pumping for 3-4 hours at 2,000 gallons per hour. This is the equivalent of .07 ML per week if 2 hectares were irrigated and .175 ML were 5 hectares irrigated. Meuanbah Creek has a catchment of 220 hectares at the appellants property. Details of existing users on the Creek is found in the evidence of Mr W Liddell, who is employed as a Technical Officer (Stream Control) within the Water Resources Business Group of the Department of Primary Industries. There were at the time of the application two existing licensed irrigators and one landowner who pumped water for stock and domestic purposes under the authority of a section 4.32 permit. "A.D. and M.F. Missingham are the registered owners of Lot 8 on RP 714673 Parish of Japoon, a property on the creek approx. 500 metres upstream of the appellant's land. The hold license No. 46751 which authorises the use of a 100mm centrifugal pump for the irrigation of 36 hectares of bananas. This license was first issued on 26 June 1980. Mr F. Silvan is the registered owner of Portion 103, Parish of Japoon. This property is immediately downstream of the appellant's land. Mr Silvan holds license No. 50523 which authorises the use of a 50mm centrifugal pump for the irrigation of 4 hectares of pawpaws. The pump site is approximately 1km below that of the applicants proposed site. This license was first issued on 16 July, 1990. L.J. and K.M. Nolan are the registered owners of Lot 4 on RP 743107 Parish of Japoon located adjacent to Meuanbah Creek and opposite the appellant's property. They hold Permit No. 07644 which authorises the use of a 35mm centrifugal pump on the creek to provide domestic and stock water with an annual allocation of 2 megalitres. The permit was issued on 20 January, 1992. The pump is located approximately 200m below the applicants proposed site. -- 2 of 6 -- - Page 3 - All licensed works referred to above are installed and are being beneficially used for the purposes authorised." Mr M D Johnson, who is employed as a Technical Officer (Water Advisory) by the Department made some calculations on peak irrigation requirements for bananas and pawpaws during the month of December. PIR is the amount of irrigation water required by a specific crop in the month of highest evaporation for a particular locality. For the month of December the PIR for bananas is 129mm and pawpaws 118mm. The monthly crop requirements for the existing licensees and for the appellants were they to receive a licence, is calculated as follows - Name Crop Area PIR Monthly Crop Catchment Area (ha) (mm) requirement (ML) (km2) Missingham Bananas 36 129 46.44 1.45 Nolan Domestic - - 0.38 2.30 Silvan Pawpaws 4 118 4.72 2.40 40 51.54 PROPOSED Sumich Bananas 5 129 6.45 2.20 45 57.99 2.40 In assessing the application Mr Liddell made observations of flows in the creek and discussed water shortage problems with existing users. He agrees that the drier months occur from September to December and that should the wet seasons fail dry periods can extend to February and March. He said that during the period November, 1991 to February, 1992 severe water shortages were experienced by the two irrigators on the creek. He said that Mr Nolan complained to the Department at about the same time about lack of water. He observed on more than one occasion between November, 1991 and January, 1992 that the creek had ceased to flow at the causeway below the Sumich property. When he inspected the appellants property in -- 3 of 6 -- - Page 4 - July, 1992 the creek was estimated to be flowing as a rate of 20L/sec at the causeway or 52.3ML/mth which is marginally above the existing PIR of 51.54ML/mth. He said that Mr Missingham was not irrigating on that day and that the flow was hardly adequate to sustain existing requirements. After completing inquiries into the application the application was refused on grounds that - .the existing flows were fully allocated and beneficially used; .the stream is known to be unreliable and any additional allocation would adversely impact on the rights of the existing licensees and affect instream requirements. Following the lodgement of the appeal against the decision further investigations were carried out including some assessments which were made after a study of data recorded at gauging stations on Fishers Creek and Liverpool Creek on 6th July, 1992 and comparison made with average annual low flows. From this material he concluded that the estimated 20L/sec flow made on Meuanbah Creek in July, 1992 would be of the order of 3.1 times average annual low flow. He said that on approximately 50% of years the volume of water available would be less than this depending upon the season. He concluded that the flow in the Meuanbah Creek in July, 1992 was significantly higher than the flow which occurred in the creek for the 4-5 month period from early October each year. He said that Mr Missingham has never been able to irrigate the licensed 36 hectares during drier periods. Even though using a more water efficient undertree dripper system he can only irrigate 25 hectares. He said that Mr Silvan has experienced water shortages and had found it necessary to shift his pump to another waterhole further down the creek below its junction with a tributary stream. The conclusions of Mr Liddell may be taken from the following paragraphs in the summary of his statement of evidence dealing with the grounds of appeal. "If the application was granted, it would impose an additional burden on the stream further reducing it reliability. Existing users downstream of the appellants would be unfairly and unjustly disadvantaged and would suffer economic loss. -- 4 of 6 -- - Page 5 - ............................... Even in July 1992 the observed flow was just sufficient to meet the existing licensed requirements. ................................ It has been shown than even in the normal drier months of the year this creek cannot sustain current levels of irrigation. In my opinion to approve further extraction would be irresponsible. ................................. The appellants have applied for a 50mm centrifugal pump to irrigate 5 hectares of bananas. If the application was approved the demand on the available supplies at the proposed pump site would more than double the current levels of usage downstream of the Missingham property. The area applied for is in excess of that area authorised to be irrigated by Mr Silvan. The very low yield naturally occurring in Meuanbah Creek results in a "self-imposed" limitation on what can be abstracted by existing licensees. Accordingly their irrigated areas reflect that limitation. Any additional license granted would necessarily require pumping restrictions to be imposed by the Department which would unfairly impinge on the rights users enjoy under their existing authorities. ................................. It is not denied that irrigation would be beneficial to the appellants for the reasons stated above however, their request is anything but reasonable. It is my opinion that, as a result of the inquiry, there is insufficient water to sustain the irrigation of a further 5 hectares of crop from Meuanbah Creek. Any gain that might be had by the granting of a license to the appellants would be offset by unacceptable losses to existing users." Mr Johnson said that in his opinion Meuanbah Creek at present is overcommitted. For 5 hectares of bananas he estimated that the appellants would require .4 to .5ML per week which is far in excess of the estimate made by Mr Sumich. He said that the creek has a limited catchment with an aquifer of basalt with limited -- 5 of 6 -- - Page 6 - storage. He said that on a study of 100 years of rainfall records it is revealed that the dry period spoken about by Mr Sumich was not the lowest, but was in the lower bracket of rainfall. Under the legislation the Commissioner in making inquiry into an application is required among other things to have regard to the requirements of existing licensees and riparian owners. While the Court has said on a number of occasions that he has the duty of ensuring as best he may a fair and equitable distribution of water such principles do not allow him to grant new licenses when he is convinced that such a grant would restrict the use and enjoyment of licenses already granted. On the evidence in this case it is clear that the application should be refused. In the circumstances the appeal is dismissed and the decision of the Commissioner is confirmed. (D M White) Member of the Land Court. -- 6 of 6 --