Land and Environment Court of New South Wales CITATION : J.S. Balharrie v. Water Administration Ministerial Corporation [1989] NSWLEC 163 APPLICANT J.S. Balharrie PARTIES : FIRST RESPONDENT Water Administration Ministerial Corporation SECOND RESPONDENT P. Fowler FILE NUMBER(S) : 30329 of 1987 CORAM: Hemmings J KEY ISSUES: :- LEGISLATION CITED: Water Act 1912. Land and Environment Court Act CASES CITED: DATES OF HEARING: DATE OF JUDGMENT: 02/27/1989 LEGAL REPRESENTATIVES: JUDGMENT: HIS HONOUR: The Local Land Board, upon a reference from the Department of Water Resources (now the Water Administration Ministerial Corporation, "the Corporation"), conducted a public enquiry as to the desirability of granting an application for a licence pursuant to s.13A of the Water Act 1912. J.S. Balharrie is the owner of Portion 161, Parish of Maroota, County of Cumberland, and made application to pump water from the Hawkesbury River for the purpose of irrigation thereon. The application involves the use of an existing pipeline from a pump located on land Portions 15, 101 and 109 owned by Mr P. Fowler adjacent to the Hawkesbury River. The said works were installed pursuant to an earlier licence which has expired and which is the subject of an application for renewal pursuant to s.14 of the Act. That application is subject to appeal to this Court and has not yet been heard. Mr Fowler is an objector to the subject application and made submissions and called evidence at the hearing before the Land Board. On 17th June, 1987 the Land Board found that it was satisfied that the requirements of s.13A(5)(b) and (c) had been satisfied, but that there was a high probability that it would be reasonably practicable to provide a dam site on Mr Balharrie's land for the purpose of a water supply which, when supplemented by a possible bore supply, could provide water adequate for the purpose of the application. For that reason, it reported that in its opinion the granting of the application is undesirable. The applicant appeals to this Court against such recommendation. In this hearing the Corporation appeared by Counsel and called expert evidence in support of the grant of the subject application. Mr A.O. Wardle, the principal civil engineer of the Corporation, made an inspection of Mr Balharrie's property on a number of occasions. He made calculations of the nett water requirements for the orchard and vegetable growing areas on that property for the years 1970 to 1986. He estimated the run-off from two catchments within the site to supply such water requirements and concluded that each was unsuitable for the construction of either an earth fill or a rock and earth fill dam both from a topographic view and also because of the lack of suitable construction material. In his opinion, costs of same would be exorbitant and still would not provide the required storage. In his opinion, the only manner in which an adequate supply of water could be provided on the site would be by the construction of a concrete weir which was keyed and post tensioned into the underlying solid rock. Assuming that the construction of such a concrete weir was technically feasible, it would have to be about twelve metres high and w ould have a cost of something in the order of $500,000. He concluded that the run-off from the available catchment would be insufficient for reliable supply of water requirements, and the available dam sites unsuitable for that purpose and uneconomic for the orchard and vegetable growth on the subject property. Mr R.M. Williams, a hydrologist in the employ of the Corporation, made an evaluation of the subject property to assess the prospects of obtaining a supply of water from a bore. He was familiar with the nature of the underlying stratum in the locality and in the general region. He examined the records of existing bores in the locality and their history of availability of ground water. The property is underlain by Hawkesbury sandstone, which is up to 120m thick. The sandstone consists predominantly of moderately well sorted medium grain quartz sandstone with grey shale interbeds. Ten bores are recorded within a four and half kilometre radius of the property, and yields are reported to range from 0.01 litre to 2.5 litres per second, although they are generally less than 0.4 litre per second. Aquifer depths encountered by the bores range from 5.2m to 112m. The ground water extracted is generally of sufficiently low salinity to allow irrigation usage. In his opinion, the reported yields of the bores are not regard ed as long term safe yields. In his opinion, safe yields of bores in this type of sandstone rarely exceed 1.5 litres per second. In his opinion, there is considerable risk in obtaining a suitable ground water supply in this area for the purpose of irrigating an area of four hectares of citrus and vegetables. Whilst he has no doubt as to the quality of ground water available, in his opinion there is little prospect of obtaining supply to provide the total irrigation requirement. In his opinion, the cost of a bore and pump to provide a water supply would be excessive and there are only limited prospects of obtaining a supply of up to 1 litre per second suitable for irrigation usage from a bore on the property. For these reasons and notwithstanding matters put to him in cross examination, the prospects of obtaining an adequate or larger supply sufficient to irrigate four hectares of citrus and vegetables, in his opinion, are negligible. Mr Williams' assessment of the prospects of obtaining an adequate supply of water by way of a bore was confirmed by Mr M. Douglas, a farmer on land in the locality. His experience and unsuccessful attempts to obtain an adequate water supply by means of a bore in similar country, in my opinion, puts beyond doubt that it is not reasonably practicable to provide a bore on the subject land for the purpose of supplementing or achieving an adequate water supply on the applicant's land. It is common ground that this matter is deemed to be an "appeal" within the meaning of s.39 of the Land and Environment Court Act ("the L.& E. Court Act). The appeal is therefore by way of rehearing and fresh evidence, or evidence in addition to or in substitution for the evidence given on the making of the decision of the Land Board may be given. This means that the Court has a wider charter than that of the Local Land Board and, in making its decision, shall have regard not only to the provisions of the Water Act, but also to the "circumstances of the case and the public interest"; s.39(4). The objector, Mr P. Fowler, did not call evidence to challenge the opinions of Mr Wardle or Mr Williams, and merely tested such evidence by cross examination. I accept such expert opinions without reservation. As circumstances of the case, pursuant to s.39, Mr Fowler asked the Court to consider his objection to the grant of a licence on the grounds of inconvenience, noise, erosion and the prejudicial effect upon possible future development of the land. Neither Mr Fowler nor Mr Balharrie reside on their respective properties. Mr Balharrie's property has a dwelling erected thereon, which is separately tenanted. He has used the property for some twenty years for the purpose of agriculture of varying degrees of intensity and now has approximately four hectares under cultivation, comprising citrus orchards and vegetable gardens. The said agricultural pursuits are continuing, but are not at this moment viable commercial enterprises. Whilst some faint challenge was made to the bona fides or significance of such activities, I am completely satisfied that Mr Balharrie uses the premises for the purpose of agriculture and requires an adequate water supply for irrigation for that purpose. He has used water for such irrigation from the Hawkesbury River by means of a pump and pipeline from Mr Fowler's property over those years. I am satisfied that this is the only reasonably practicable way of obtaining an adequate supply of water for his agricultural pursuits. Subsequent to Mr Fowler's acquisition of the land, the pump was moved by Mr Balharrie to an improved location at the request of Mr Fowler when the licence came up for an earlier renewal. The application for further renewal of that licence has been stood over and there have been proceedings in the Supreme Court with respect thereto. I am informed by the parties that the resolution of this appeal will determine the outcome of those other proceedings. It is also a circumstance of the case that the pump is already in existence, has been installed and provided with a power supply at the applicant's expense and is connected to his land by a pipeline. In my opinion, I should weigh the inconvenience, delay and cost of re-laying or replacing some or all of that equipment if this application is refused. I do not propose to set out here all details of Mr Fowler's objections and his complaints concerning interference with the use and enjoyment of his property, particularly as a consequence of noise, erosion and interference with access. In my opinion, the said complaints are exaggerated and his objection really is to the presence of the pump on his land at all. I am unpersuaded on the evidence that the use of the pump has caused or exacerbated erosion on the banks, that it interferes with the reasonable use of the banks by Mr Fowler or his licensees, or that the noise from the operation of the pump causes any significant interference with the enjoyment of his property. Mr Fowler claims that the location of the pump prejudices access and the future use of the land for purposes other than that which exist at the present time. He claims the possibility of the use of the subject land for caravans and speed boats in conjunction with or in a similar way to the use of the adjoining caravan park. There is no consent from the Baulkham Hills Shire Council for such use of his land and, on the evidence, I consider the likelihood of obtaining such a consent for the land in the forseeable future is remote. Mr Fowler contends that if the applicant is entitled to a water supply there are more appropriate locations and routes for the provision of such supply from the river. There is no issue that, with the exception of ss.(5), the requirements of s.13A of the Water Act have been satisfied. On consideration of all of the evidence, I am satisfied that it is not reasonably practicable for the applicant to obtain or make provision for a supply of water on his land, on which he desires to use the water, adequate for the purpose of irrigation which is specified in the subject application, otherwise than in pursuance of a licence granted under s.13A of the Water Act. The parties have agreed to most of the conditions which should attach to a license and they are set out a draft, which is now Exhibit 12A. The objector seeks also the imposition of conditions requiring the applicant to insure plant and equipment, for the payment of an annual fee in the sum of $2,000, and a limitation of hours of pumping. Mr Balharrie objects to a requirement for insurance because of past problems in obtaining such insurance. I accept his evidence and consider that that condition is unreasonable. It is common ground that I have power to recommend that the applicant pay an annual fee for the use of the pump and pump line. Mr Fowler concedes that his figure of $2,000 per annum is purely arbitrary, but says it relates to the loss of privacy and inconvenience of having the pump on his premises. The Corporation submits that there is power to recommend such a condition, but suggests only a nominal figure. The Corporation was not able to assist in the proper assessment of what it regards as being a " nominal" sum. The applicant opposes the payment of any fee, but concedes that if the Court is minded to recommend a fee, a sum in the order of $200-$300 would be more than adequate. I consider that the payment of a fee is appropriate in the circumstances, particularly having regard to the loss of privacy, the fact that the pipe line is above ground, the pump is audible at the objector's house when in operation, and is in a fairly visible position from parts of the land. The pump when operated will still be audible even if repaired to minimise excessive noise. I consider that these factors affect the enjoyment of the objector's land, that they are relevant circumstances of the case and that it is therefore reasonable that the applicant pay a sum for the occupation of the land and the use of the said equipment. Doing the best I can, I fix that fee in the sum of $500 per annum. Whilst I have rejected the claim that the pump makes excessive noise, it will be audible and I accept that its operation should be limited to overcome nuisance at unreasonable hours. I consider that use after 9.00 p.m. should be prohibited. The remaining matter is the appropriate term for such licence. The applicant, of course, seeks the longest possible period and recommends twenty years, and the objector wishes it to be limited to the shortest possible term. I consider it probable that the circumstances of the case may change and that it would be unreasonable to grant a long period for the term of the licence. I consider that a term of five years is appropriate and, if an application is made for renewal, the circumstances of the case can be reviewed. The orders of the Court are: 1. Appeal against the decision of the Local Land Board of 17th June, 1987 be upheld. 2. Exhibits may be released. 3. Costs reserved. The Court recommends: That a licence pursuant to s.13A of the Water Act 1912 for the purpose of irrigation to construct and use works on premises for irrigation be approved subject to the following conditions: a) Conditions 1 to 16 inclusive in Exhibit 12A; and b) i) Licence be granted for a term of not more than five (5) years from issue; ii) The payment by the licensee of an annual fee of five hundred dollars ($500); iii) Pump not to be operated between the hours of 9.00 p.m. and 7.00 a.m. the next following day. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.