Planning and Environment List; Application for review of Responsible Authority's determination to grant permit for grain terminal; Section 82 Planning and Environment Act 1987; Whether permit should be directed not to issue based on threatened increase in duration and frequency of inundation of objector's land by reason of drainage discharges from permit site; Permit directed to issue subject to amendment to condition.

RESPONDENT IN W6/2011 & 1****ST JOINED PARTY IN P2009/2010

Corner of Werneth and Colac-Ballarat Roads, Werneth

Reynolds v Southern Quality Produce Co Operative [2011] VCAT 692

Direct that a permit issue in accordance with Responsible Authority's Notice of determination subject to amendment of Condition 16 to read:

1. The use and development hereby permitted must not cause any nuisance or a loss of amenity in any adjacent or nearby land by reasons of discharge of drainage or lead to any unreasonable flow of water (within the meaning of Part 2 of the Water Act 1989) from the site.

Applications for injunctive or declaratory relief dismissed.

Dr R.J. Sadler of Counsel, instructed by Coulter Roache

Mr Andrew Walker of Counsel, instructed by Heinz and Partners

1. Southern Quality Produce Co-operative Pty Ltd is a grain producers co-operative operating in western Victoria. It provides marketing services and a wide range of other assistances and programs to its producer members. It claims to be 'Victoria's premier grain marketer'. In February 2010 consultants acting on its behalf lodged an application for a planning permit for the construction and operation of a grain storage depot at Werneth at the corner of Werneth and Colac-Ballarat Roads. The complex was planned to occupy some 40 hectares being part of an existing larger allotment owned by the Hirth family, long-standing farmers in the region. The depot was planned to serve the Cressy-Rokewood-Skipton area providing services to co-operative members and other grain growers in the area. The depot is planned to receive grain, segregate and store it over a period of one to 10 months and despatch it to markets in the dairying regions to the south, oil seed crushers in Melbourne and Numurkah, livestock feed mills around Victoria, maltsters at Geelong and Melbourne and export markets to the ports of Melbourne and Geelong. Objections were received from three neighbouring farming families.
2. On 30 June 2010 Golden Plains Shire Council as responsible authority for the Golden Plains Planning Scheme issued a Notice of Determination to Grant a Permit subject to a number of conditions. There were some three conditions, numbers 14 to 16 relative to the drainage of the site. Those conditions are as follows:
   1. Before the development starts, a Drainage and Stormwater Management Plan, designed in accordance with sound engineering practice to the satisfaction of the responsible authority, must be submitted to and approved by the responsible authority. When approved, the plan will be endorsed and will then form pat of the permit. Three copies of the plan must be submitted. The plan must include:
      1. design and construction details of an on site stormwater detention system to ensure that post development discharge rates do not exceed pre-development levels. Design details to show contributing catchments, contours, discharge points, storage capacity, retention system and calculations for run off volumes for a 100 year frequency event; and
      2. details of suitable geotechnical investigations and compliance testing to be undertaken to ensure that the proposed storage dam is constructed using appropriate techniques, materials and processes to provide stability and to prevent any seepage into the underground water table.
   2. The subject land must be drained to the satisfaction of the Responsible Authority, and with the required infrastructure being constructed in accordance with the design provided and approved by the Responsible Authority.
   3. The use and development hereby permitted must not cause any nuisance or loss of amenity in any adjacent or nearby land by the reasons of discharge of drainage.
3. Mr John Reynolds, one of the objectors, lodged an application for review pursuant to Section 82 of the Planning and Environment Act 1987 on 22 July 2010. Mr Reynolds' stated grounds in his review application were that the proposed development would be 'contrary to the purposes of the Farming Zone' and 'contrary to the relevant State and Local Planning Policy Framework'. His third ground was 'no adequate provision is made for the discharge of water from the subject land'.
4. The subject site includes a ridge through its western portion approximately 580m to the west of the Colac-Ballarat Road boundary. At present approximately 83% of rain falling on the subject site will be directed to the south-east. By one means or another all of that water except that which dissipates or soaks into the soil ultimately reaches the Humphrey's or Macca's paddocks owned by Mr Reynolds. There was a conflict of evidence between the expert witnesses who gave evidence before us as to the path which the water now follows. Mr Berry of Peter Berry and Associates Pty Ltd who was called as a witness by Mr Reynolds said that the water from the relevant 83% of the subject site now flows in a generally southerly direction over land across a number of paddocks before it reaches the relevant portions of Mr Reynolds' land. Mr Trigg of TGM Group Pty Ltd who is the designer of the stormwater drainage plan proposed by the Co-operative and also gave evidence for the Co-operative, favoured the view that this water now travels to Mr Reynolds' land via a table drain on the west of the Colac-Ballarat Road which it will be recalled constitutes the eastern abutment of the subject site. We will have more to say about this conflict of opinion later. For present purposes it is sufficient to note that Colac-Ballarat Road has table drains on both its eastern and western sides. In previous days the Werneth Railway Station was located on the western side of the road between it and the subject site. As Mr Reynolds recollects, for reasons associated with the operation of that railway station, there is now along the western boundary of the subject site a culvert conveying the water from the western table drain under the road to the eastern table drain. The western table drain nevertheless continues southward. As we understand the proposal, the discharge of water from the development would be released into the western table drain south of the culvert and so would move south along the western table drain and not through the culvert under the road. A spoon drain traverses land abutting Colac-Ballarat Road to the south of the subject site which is also owned by Mr Hirth. That drain it is agreed has the effect in ordinary rainfall events of intercepting the southerly flow of water from the subject site and conveying it into the western table drain. Mr Berry says in significant rainfall events, the spoon drain is overtopped with the water continuing to flow south over land towards Mr Reynolds' land. About a kilometre south of the subject site and in the vicinity of Mr Reynolds' land, Pitfield-Cressy Road crosses Colac-Ballarat Road from the north-west at an angle of approximately 60o. According to Mr Berry:

Once the drain [that is the western table drain on Colac-Ballarat Road] reaches the corner of the Cressy-Pitfield Road it has to drain through a culvert under the road to the south. Drainage through this culvert is insufficient for existing flows. Mr Reynolds reports that his land in this area is frequently inundated due to the poor drainage in this area.

None of the parties disagreed with this observation. In this general area are located two of Mr Reynolds' paddocks known respectively as 'Humphreys' and 'Maccas'. We will have more to say about these paddocks later. It is to be noted that at this stage however Humphreys' Paddock is traversed from west to east by two spoon drains which were dug by Mr Reynolds to assist in the drainage of this paddock. As with the spoon drain traversing Mr Hirth's land between the Reynolds' holdings and the subject site, Mr Reynolds and Mr Berry said that in significant rainfall events these spoon drains are overtopped by southerly overland flows of rainfall. In ordinary conditions and of course to some degree even in major rainfall events they convey water from Humphreys' Paddock to the western table drain. It follows therefore that Mr Reynolds' land by this means makes a contribution to the drainage problems encountered in the vicinity of Cressy-Pitfield Road.

1. In accordance with directions given by the Tribunal, Mr Berry and Mr Trigg prepared a joint report as to matters upon which they agreed dated 9 February 2011:

Our assessment of the survey data collected suggests that the existing culverts on the alignment of the western - Colac Road table drain and more particularly at the intersection of Colac-Ballarat Road and the Pitfield-Cressy Road have insufficient capacity to cater for the existing catchments.

1. The table drain is in effect no more than a ditch. It has no uniform profile. Its purpose is to drain water from the road surface. It exhibits all the typical features of rural table drains including irregular shapes and obstruction by vegetation and debris in places. Mr Berry observed that aside from the capacity problems in the culvert at Pitfield-Cressy Road, stormwater was required to negotiate a 90o angle which he said was 'hydrologically inefficient'.
2. TGM has prepared a stormwater management plan for the Co-operative to meet the requirements of the drainage conditions included in Council's determination. This plan includes the following criteria:

- Maximum stormwater discharge rate for a one in 10 year ARI based on the existing 83% catchment.

- On-site stormwater detention volume provided for a one in one hundred year ARI.

- Site considered as totally pervious pre-development; co-efficient of runoff C = 0.17 - site co-efficient of runoff post-development C = 0.35.

1. The plan caters for a total area of 408,000 sq m with calculations made by reference to 83% of that catchment, namely 338,640 sq m. The plan provides for a storage dam with a capacity of eight megalitres to capture surface runoff. It is proposed that the dam discharge to a low flow box culvert at the south-east corner of the site. According to Mr Trigg:

When any storm less than the one in 10 year ARI event occurs (and assuming the secondary storage dam is at capacity) all runoff from the site will be through the low flow box culvert and there will be no storage of stormwater.

When storm events occur greater than the one in 10 year ARI event the low flow box culvert will be unable to cater for the runoff; subsequently the stormwater will 'back up' within the site and be stored in the south-east corner through the construction of an earth bank.

1. He said the outflow would be 'throttled' by the low flow box culvert at the pre-developed one in 10 year ARI discharge rate, which discharge rate would be reached with a head created by water accumulating to a height of 450mm above the low flow box culvert. Mr Trigg said that this 'head' will only be maintained for relatively short periods, accordingly, the discharge rate apart from the short periods will be less than the pre-developed one in 10 year ARI.

1. Golden Plains Shire Council was represented by its Planning Team Leader, Mr Waller. Mr Waller referred to Clause 14.01-1 of the State Planning Policy Framework of the Golden Plains Planning Scheme which he said:

Relates to the protection of agricultural land and seeks to protect productive farmland which is of strategic significance in the local or regional context.

Compatibility between the proposed or likely development and the existing uses of the surrounding land.

1. Since the purpose of the grain storage facility is to support local grain growers, this criterion was, he said, clearly met in the present case. Mr Waller noted that Clause 14.02 of the State Planning Policy Framework required the protection and restoration of catchments, waterways, water bodies, ground water and the marine environment and Clause 14.02-1 required developers to minimise and retard the flow of stormwater runoff. Mr Waller submitted that these objectives were secured by the conditions imposed by Council. He observed that the subject site itself was not subject to overlay either as Land Subject to Inundation or for salinity management purposes nor was it designated as a water supply catchment area or a floodway. Next he referred to Clause 21.02 of the Scheme which establishes a planning objective of 'maintaining and encouraging viable agricultural industries'. According to Mr Waller the advent of a drier warmer climate had made grain production increasingly important in this area. He referred to a study commissioned by the Shire entitled 'Transition to Grain'. He said that Clause 21.04-3 of the Golden Plains Planning Scheme established an objective of encouraging agricultural diversity and the formation of opportunities for new farming enterprises. He said:

It is considered that the Southern Quality Produce proposal, which relies on investment from local growers and aims to significantly cut transportation costs, is consistent with this approach.

1. As to the site's location in a Farming Zone, he noted that the decision guidelines for Farming Zone applications require consideration of:
   • The potential for the use or development to limit the operation and expansion of adjoining agricultural uses.
2. Mr Waller said that the conditions imposed dealt with these considerations providing for traffic management plans and a stormwater management plan. Mr Waller noted that Clause 65.01 of the Planning Scheme setting out decision guidelines required Council to consider the matters set out at Section 60 of the Planning and Environment Act 1987 and the effect on amenity. He said:

It is considered that the proposal addresses each of the relevant requirements of Clause 65. Importantly Clause 65 requires the Responsible Authority to consider the degree of flood, erosion or fire hazard associated with the location of the land and the use, development for management of the land so as to minimise any such hazard.

1. Mr Waller noted Mr Reynolds in his statement of grounds alleged that no adequate provision had been made for the discharge of water from the subject site, it would increase the amount of runoff by reason of a large hard stand area with more water being discharged into the table drain in the Colac-Ballarat Road in circumstances where the local drainage systems are inadequate to accommodate any additional discharge into that table drain. The increased volume of discharge would adversely affect Mr Reynolds' land. These concerns, he submitted, were met by Council's drainage conditions. He said:

These conditions are consistent with drainage conditions applied to major residential subdivisions and large industrial developments where there is a much greater risk of damage to property and persons.

1. He said that Council had received a draft drainage and stormwater management plan [that is the one prepared by TGM]. He submitted this plan would meet the requirements of Condition 14. The findings made in the joint experts' report quoted above did not, according to Mr Waller, require any revision of Council's determination or the conditions which it imposed. He observed that VicRoads as land manager for the Colac-Ballarat Road reserve had stated in a letter to Mr Reynolds' solicitors of 17 September 2010 that if post development discharge rates did not exceed pre-development rates, VicRoads would likely agree to the discharge of drainage into the table drain on Colac-Ballarat Road. He said:

Council acknowledges that the existing table drain network which borders the subject land could be improved to better accommodate increased stormwater flows during significant rainfall events. Furthermore Council would be prepared to invest in drainage infrastructure upgrade works on the Pitfield-Cressy Road if it is proven that there is an unacceptable risk of flooding to the road surface at the juncture (sic) of Pitfield-Cressy Road and the Colac-Ballarat Road.

1. He said that the table drain arrangements here were:

Consistent (in terms of construction standard and general condition) with rural roadside drainage infrastructure located throughout the shire.

1. He continued that observations during recent major rainfall events

Confirmed the table drains were flooded but the water did not cover the road and flows to the swollen Woady Yaloak River were not obstructed.

1. Mr Waller submitted Council's determination should be affirmed.

1. VicRoads as a referral authority being the co-ordinating road authority for Colac-Ballarat Road declared arterial road was represented by Mr Brendan Grace, Senior Planning Officer. He noted that one of the conditions in Council's determination was:
   1. The discharge of any concentrated drainage or sullage onto the Colac-Ballarat Road shall not be permitted unless approved in writing by VicRoads.
2. He noted that Mr Berry had contended that the table drain needed to be upgraded.
3. Mr Grace observed that Colac-Ballarat Road was a two lane, two way rural road with grass drains along both sides with a 7.5m width between the edge of the road seal and the road boundary generally. He said:

There is a table drain along the east side of Colac-Ballarat Road. This crosses to the west side of Colac-Ballarat Road via a 900mm pipe culvert just north of Woady Yaloak River. There is also a 375mm pipe culvert crossing under the Colac-Ballarat Road, just south of Pitfield-Cressy Road.

Advice from VicRoads' maintenance staff is that drainage of Colac-Ballarat Road at this location is satisfactory in that the road surface is not inundated during heavy rain. Whilst water pools within the road reserve, water does not spread onto or inundate the traffic lanes.

1. VicRoads' maintenance criteria he said only required cleaning or reshaping of drains:

Where scarring of roadsides or ponding of water is affecting safety aspects for road users or causing identifiable deterioration of the road formation.

1. VicRoads has no proposal to carry out any works on the table drain. TGM's report of 23 February 2011 assumed that pre-development discharge flow rate to the road reserve of 0.448 m3/s for a one in 10 year storm event and 0.8 m3/s for a 100 year storm event. The joint report of the experts estimated the capacity of the western table drain at 0.080 m3/s. Despite this said Mr Grace 'the system apparently still operated satisfactorily with the roadway remaining clear of water' during heavy rain events in January. He concluded therefore that either less than 83% of the subject land drains to Colac-Ballarat Road or the table drain has a greater capacity than 0.080m3/s. He said:

From the photographs in the TGM report, water was well above the top of the table drain and so the table drain capacity may well have been greater than 0.080m3/s.

1. Mr Grace said that on his reading of the TGM report:

The proposed drainage system would result in lower discharge rates post-development than pre-development in the equivalent storm event. Nevertheless, the discharge would be well above the 0.080m3/s calculated capacity of the table drain even for a one year storm event.

Given this information, VicRoads would need to obtain its own expert advice prior to giving approval to construction of a drainage discharge onto the road reserve. It would need to be satisfied that the discharge from the subject site does not adversely affect the operation of the road or the integrity of the road pavement.

1. Mr Grace said that VicRoads would have no objection to works upgrading the table drain 'but would not contribute funding for the works'. He concluded:

If expert advice suggests that the discharge from the culvert would adversely affect the Colac-Ballarat Road, it may be necessary to reduce the size of the stormwater culvert discharging onto the road and increase the retention volume on site.

1. Mr Reynolds was represented by Dr Sadler of Counsel. He submitted that at present because of a small rise toward the eastern boundary of the subject site 'no or virtually no overland flows enter the table drain other than significant rainfall events'. He submitted generally flows from the subject site travel overland across paddocks with a significant part dissipating before it reaches Mr Reynolds' land. Post-development according to Dr Sadler, a concentrated flow of a greater volume of water would enter the roadside drain. That water he said would ultimately discharge onto Mr Reynolds' land. According to Dr Sadler the vice in this proposal is not in its discharge rate but in the total volume of water which it will produce. Dr Sadler said that if the development proceeds with the present plan, Mr Reynolds' land will receive more floodwater and the inundation of his land will be for a longer time. Mr Berry supported this view, the Co-operative's expert Mr Trigg conceded that this may be the case.
2. According to Dr Sadler the Reynolds family has used its land in this area for generations for sheep grazing but more recently for cropping. He said the average fall in the land is one in 250 to the South. Dr Sadler's submission put the Reynolds' land some 2 km south of the subject land. [In his viva voce evidence Mr Reynolds put the location at 1 km south.]
3. Dr Sadler said that TGM's analysis was 'flawed' because it incorrectly depicted the pre-development flow, that is, via the table drain and did not 'consider the downstream consequences of releasing water into the table drain'.
4. According to Dr Sadler, Mr Reynolds raised no objection to this development proposal except for the drainage issue. Dr Sadler submitted on behalf of Mr Reynolds that if the development proposal goes ahead with the stormwater management plan endorsed as it now stands, about 36.5 hectares of his farm land will be subject to worsened flooding with a consequent loss of production. This land is already subject to inundation but the problem will be made worse. The affected land is constituted by the Maccas and the Humphreys paddocks, the former of which is subject to a Land Subject to Inundation Overlay relative to the Woady Yaloak River and the latter of which is subject to a Salinity Management Overlay. Dr Sadler relied on a statement from an agricultural scientist Mr Cuming who said increased susceptibility to flooding would worsen the roots for water logging damage, inhibiting aeration of the soil, damaging roots etc. According to Dr Sadler, Mr Cuming's estimate is that Mr Reynolds may suffer a capital loss of $18,000 together with ongoing losses of $8,550 annually.
5. He said the Co-operative's expert Mr Trigg conceded that the implementation of the proposal would lead to the Reynolds' land being flooded for longer. Dr Sadler said that Mr Trigg's analysis showed that the problem is caused by the state of the table drain 'and an increase in capacity of that drain would solve the problem'. In the circumstances said Dr Sadler it was for the Co-operative 'to secure resolution to the deficiencies in the table drain'.
6. Referring to the evidence of Mr Berry he said that evidence would establish inter alia that:
   • It was not correct to say that in common rainfall events water presently discharges from the site into the road table drain.
   • If the development proceeds using the current stormwater plan, water will be drained from the site into the table drain. At present the water does not drain into the table drain because of the levee to the south-east of the subject site.
   • This will result in a greater volume of water in the table drain.
   • The table drain has limited capacity and would be unable to cope with the water discharge from the site.
   • Even if the rate of discharge from the site is controlled the flooding problem for Mr Reynolds will not be solved because even at extremely low rates of discharge the table drain is not capable of handling any sufficient quantity of water.
   • If the permit applicant discharges 544-1,000 litres per second into the drain the capacity of the drain would need to be upgraded to cope with the additional load just to maintain the status quo.
   • This coupled with the problems with the drain at the corner of Colac-Ballarat and Cressy-Pitfield Roads will cause further inundation to the Reynolds land.
   • Inundation of the Reynolds' land is likely to be more frequent and more severe if the current proposal proceeds.
7. He noted that Mr Berry has put proposals which would resolve these drainage difficulties including the enhancement of the table drain and changing the configuration of the drains at the road intersection between Colac-Ballarat and Cressy-Pitfield Roads.
8. According to Dr Sadler there is a strong emphasis in State and Local Planning Policy for environmentally sound and sustainable development with protection of drainage and floodway functions. He referred to Clause 35.07 of the Planning Scheme, stating the following purposes of the Farming Zone inter alia:
   • To encourage the retention of productive agricultural land.
   • To encourage use and development of land based on comprehensive and sustainable land management practices and infrastructure provision.
   • To protect and enhance natural resources and the bio-diversity of the area.
9. Next he referred to decision guidelines at Clause 35.07-6 requiring decisions relative to Farming Zone land to be informed by the considerations:
   • How the use or development relates to sustainable land management.
   • Whether the site is suitable for the use or development and whether the proposal is compatible with adjoining and nearby land uses.
10. Dr Sadler said this proposal would adversely affect Mr Reynolds' land and its productivity and therefore was not 'compatible with adjoining and nearby land uses'. It was also necessary to consider under this clause he said:
    • The potential for the use or development to limit the operation and expansion of adjoining and nearby agricultural uses.
11. This proposal given its drainage features would, he said, limit the operation of nearby agricultural uses. Finally, relative to this clause he said it was necessary in accordance with the scheme to consider:
    • The impact of the proposal on natural physical features and resources of the area, in particular on soil and water quality.
12. Next he referred to Clause 13 of the Scheme dealing with environmental risks which he said required best practice environmental management 'to avoid or minimise environmental degradation and hazard'. It was also necessary under this clause he said to consider the impact of a proposal:
    • Upon the economic, environmental or social well-being of society.
13. Dr Sadler said that flooding Mr Reynolds' land was an environmental hazard and therefore should in accordance with this clause be avoided or minimised. He referred to Clause 13.02-1 dealing with floodplains which stated policy objectives of the protection of life, property and community infrastructure from flood hazard. Amongst the strategies to achieve this objective were according to Dr Sadler to 'avoid intensifying the impacts of flooding through inappropriately located uses and developments'. This proposal said Dr Sadler would intensify the impacts of flooding. Next, he turned to Clause 13.03-3 dealing with salinity which stated as an objective:

To minimise the impact of salinity and rising water tables on land uses, buildings and infrastructure in rural and urban areas and areas of environmental significance and reduce salt loads in rivers.

1. Amongst the strategies postulated in the Scheme he said were those to 'prevent inappropriate development in areas affected by groundwater salinity'.
2. Next Dr Sadler turned to Clause 14 of the Scheme dealing with natural resource management which advocated the:

Wise use of natural resources including energy, water, land, stone and minerals to support both environmental quality and sustainable development.

1. At Clause 14.01-1 he noted a planning objective:

To protect productive farm land which is of strategic significance in the local or regional context.

1. The strategies postulated by the clause to achieve this result include according to Dr Sadler ensuring:

That the State's agricultural base is protected from the unplanned loss of productive agricultural land due to permanent changes of land use.

... in assessing rural development proposals, planning and responsible authorities must balance the potential off-site affects of rural land use proposals (such as degradation of soil or water quality and land salinisation) which might affect productive agricultural land against the benefits of the proposals.

1. Therefore said Dr Sadler it was necessary to undertake a balancing process:

Between the adverse effects of off-site impacts that is impacts in the Reynolds' land by flooding and salinisation, and conversely the benefits of the proposal.

1. Next he noted Clause 14.02-1 which stated as one of the objectives of catchment planning and management to:

Assist the protection and, where possible, restoration of catchments, waterways, water bodies, groundwater, and the built environment

Undertake measures to minimise the quantity and retard the flow of stormwater runoff from developed areas.

1. According to Dr Sadler this was of critical importance to Mr Reynolds' complaint. Next Dr Sadler referred to Clause 21.02 of the Scheme which refers to key issues affecting the Shire's land use and development. Amongst those major issues he said were:
   • Managing residential growth.
   • Enhancing economic growth.
   • Maintaining and encouraging viable agricultural industries.
   • Protecting and enhancing the natural and built environment.
2. Dr Sadler said that worsening flooding in Mr Reynolds' land was in the teeth of this objective. Then he referred to statements under the heading 'Natural and built environment' identifying the need to control salinity.
3. Dr Sadler then quoted at length in Clause 22.11 of the Scheme dealing with floodplain management. The passage which identified the Woady Yaloak River as 'another key floodplain'. According to Dr Sadler this river would 'receive increased flooding from the development'. He continued:

The proposed levees will alter the natural flood flow (from south into paddocks to the table drain and thence into Mr Reynolds' land and the LSIO area), thus altering and concentrating the flood flow into a flood prone area and 'key floodplain'.

1. Dr Sadler then quoted at length from the objectives and policies of floodplain management in the Scheme and Clause 44.04 dealing with Land Subject to Inundation. One of the decision guidelines as to these pieces of land is at Clause 44.04-6 which requires a consideration of:

The effect of the development on redirecting or obstructing floodwater, stormwater or drainage water and the effect of the development on reducing flood storage and increasing flood levels and flow velocities.

1. The decision guidelines at Clause 65 invite consideration of:

Whether the proposed development is designed to maintain or improve the quality of stormwater within and exiting the site.

The degree of flooding associated with the location of the land and the use, development or management of [the land].

1. Dr Sadler noted that the Woady Yaloak Creek described as a key floodplain traversed a paddock which would receive increased flooding from the development. He said this amounted to altering and concentrating the flood flow into a flood prone area and key floodplain. This he said was inconsistent with Clause 22.02 and Clause 22.11 of the Scheme relative to salinity and floodplain management. He noted that according to the Scheme the objectives and policies of floodplain management in the Shire included objectives inter alia, ensuring that floodplain development did not cause any significant rise in flood level or flow velocity and would not cause any impact on adjacent property but would minimise flood damage and minimise risk associated with overland flow of stormwater. With respect to the Land Subject to Inundation Overlay at Clause 44.04 he noted that this clause of the Scheme required consideration of flood risks including:

The effect of the development on re-directing or obstructing floodwater, stormwater or drainage water and the effect of the development on reducing flood storage and increasing flood levels and flow velocities.

1. He noted that the general decision guidelines required consideration of factors that were likely to contribute to salinity and:

Whether the proposed development is designed to maintain or improve the quality of stormwater within and exiting the site.

1. According to Dr Sadler the protection apparently provided by Clauses 14 to 16 and 25 of the Council's Notice of Determination was 'illusory', the controls would limit the rate of discharge but not the ultimate volume of discharge. Accordingly the proposed development represented 'an unacceptable outcome in terms of the policies and decision guidelines'.
2. As to Mr Reynolds' claim under the Water Act, Dr Sadler referred to Sections 16(1), 19(3)(a) and (b) of the Water Act 1989 and Section 123 and 124 of the Victorian Civil and Administrative Tribunal Act 1998. He said:

Mr Reynolds seeks an injunction to restrain the respondent discharging water from the development site into the table drain in a more concentrated form than the volume and rate of the natural flow.

1. He said there is no question of the 'free flow principle' embodied in the Water Act being engaged cf Kopitschinski v Song [2007] VCAT 1958. He referred to the test for the grant of quia timet injunctions postulated by the Full Court of the Supreme Court of Victoria in Grasso v Love [1980] VicRp 20; [1980] VR 163. In terms of this test he said the Co-operative's action was 'imminent' and would cause, it had been proved, he said, substantial damage to Mr Reynolds by inundation and economic loss.
2. According to Dr Sadler the cause of action created by Section 16(1) of the Water Act 'does not rely upon fault to justify liability - it creates a form of strict liability'. He referred to B.E. and D. Mawby Pty Ltd v Bingham [2007] VCAT 813 [31] - [32]. He submitted that in accordance with the criteria laid down in Section 20 the additional flow of water onto the Reynolds' property was not reasonable. The issue of causation was to be determined in the same way as a court determined such questions in a cause of action based on negligence. He referred to Section 19(9) of the Water Act 1958. This required, he submitted, the application of a commonsense judgment. He referred to March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 515 per Gaudron and Toohey JJ. Dr Sadler said that but for the threatened discharge of more concentrated and a greater volume of water into the table drain 'the potential additional flooding would not occur'. He said this additional flow would decrease Mr Reynolds' agricultural production potential.
3. Dr Sadler denied the defence asserted by the Co-operative that any additional flow of water could be caused not by its discharge but by the disrepair of the table drain. He said the flow of water from one piece of land onto another does not have to be direct and immediate. He referred to Coles Myer v City West Water [1998] VSC 63 [38] - [40]. It was sufficient he submitted for the Co-operative to be regarded as having caused damage for the purposes of Section 16 if its acts or omissions were a material cause. He referred to Roads and Traffic Authority v Royal [2008] HCA 19 per Kirby J at [85].
4. Dr Sadler noted that it was asserted that if the permit were granted then the relevant flow of water would not be characterised as unreasonable because for the purposes of Section 20 of the Water Act it would have been authorised by the permit. He noted further that Mr Reynolds would have no right to seek a review of a determination by the Council as responsible authority, as to whether the stormwater management plan was satisfactory. He referred to Section 148 of the Planning and Environment Act 1987. He continued:

If the Tribunal grants the permit in its current form Mr Reynolds will be potentially deprived of the legal capacity to stop the development, and deprived of any entitlement to compensation when his land is flooded.

1. The reference in Condition 14 to nuisance or loss of amenity would not assist because they

Do not preserve a Section 16(1) claim. It has long been established that if a claim is available under the Water Act, the common law claims are abrogated (s.17(1) and Coles Myer at [50] - [54]). This raises the problem of a s.16 claim being the only available cause of action, but the very permit itself, by authorising the flow, arguably worked to prevent Mr Reynolds being able to demonstrate an essential element of the cause of action that is that the flow is 'not reasonable'.

1. Dr Sadler said the development should be permitted only if the mitigation measures advocated by Mr Reynolds' expert Mr Berry were implemented. Mr Berry recommended two options which would entail enhancing the western table drain on the road reserve subject to the consent of VicRoads and the creation of a drain across Mr Reynolds' land. According to Dr Sadler:

Mr Reynolds consents to the respondent doing that work. It also involves ultimate discharge of drainage into a local creek that may require a 'works on waterway' licence from the local catchment management authority. Again the permit could be conditional on procuring that licence.

1. In conclusion Dr Sadler contended that the permit should be directed to issue subject to conditions requiring the carrying out of the off-site drainage works advocated by Mr Berry. Alternatively, an injunction should be granted pursuant to the Water Act restraining the carrying out of the development in the absence of the off-site works advocated by Mr Berry or else the Tribunal ought to declare that grant of the permit on the terms set out in the Notice of Determination would not constitute 'authorisation' of the relevant flows of water for the purposes of Section 20 of the Water Act 1989.

1. The Co-operative was represented by Mr Walker of Counsel who submitted that the Responsible Authority's Notice of Determination should be affirmed. He took us first to a description of the Co-operative and its works which he said were 'focussed on southern Victoria, where the grain growing conditions are more favourable'. Amongst the services which the Co-operative provided he said were grain storage facility, the use of buying power to purchase fertilisers and other farm products at reduced prices, investment in research organisations which use the latest research and development techniques to locate new and better varieties of seed. The Co-operative's profits were returned to members through dividends he said and members were supported by providing links to organisations such as Beyond Blue [a foundation devoted to the alleviation of depression]. Therefore, he said, the Co-operative 'supports the local farming community, and assists farmers in continuing the productive agricultural use of farming land'. The timing of this development was crucial he said. The Co-operative hoped to construct Stage 1 'by November 2011, so that it can start operations in time for the next grain season which starts in November 2011'.
2. He submitted Mr Reynolds' case under the Planning and Environment Act should be rejected. The proposed development was complementary to agricultural activities and was therefore most appropriate in a Farming Zone. The surrounding land is used for cropping and grazing and 'there are no adjacent residences within 500m'. He said:

The subject land is in a strategic location. It has convenient access to the Hamilton Highway, and therefore farms to the east and to the west (and to the ports of Geelong and Portland). It also has convenient north-south access via Colac-Ballarat Road.

1. He said that the drainage conditions were standard drainage conditions for many forms of development. He noted that so much was conceded in cross-examination by Mr Reynolds' expert, Mr Berry.
2. In considering the drainage issues agitated, Mr Walker said it was appropriate to bear in mind 'that the proposed development otherwise has overwhelming policy support'.
3. It was clear he said that the Co-operative could comply with Condition 14 of the Notice of Determination, therefore 'the sole issue for the Tribunal to determine in the planning appeal is therefore whether Condition 14 of the NOD is appropriate'.
4. He considered the elements of the cause of action asserted to exist under the Water Act 1989 together with discretionary issues which might attend the grant or refusal of an injunction. He continued:

If the Water Act claim is dismissed, then it follows that Condition 14 of the NOD should be upheld, and the planning appeal [should] also [be] dismissed.

1. Mr Walker said that part of the Reynolds' land viz. the Humphrey's paddock, floods already in severe flood events and the western drain on Colac-Ballarat Road and the drain under Cressy-Pitfield Road were unable to cope with those flood events. According to Mr Walker the Reynolds' land was flood prone because it is low lying and relatively flat and therefore difficult to drain. He noted that Humphrey's paddock 'significantly contributes to the existing problems with the Colac-Ballarat Road roadside drain and the Cressy-Pitfield Road culvert'. The flooding of the Humphrey's Paddock and the limitations in the western table drain and the culvert under Cressy-Pitfield Road were therefore existing conditions. He said:

The Cressy-Pitfield Road culvert is at the intersection of the Colac-Ballarat Road roadside drain and the Cressy-Pitfield Road drain. The Cressy-Pitfield Road drain also serves a large catchment, and contributes to the flooding of the Cressy-Pitfield Road culvert.

1. Mr Walker said that under existing conditions, Mr Berry was incorrect in saying that water does not flow from the subject land into the Colac-Ballarat Road table drain but rather flows south across the paddocks. He continued:

An analysis of the photographs and drain patterns [shows] that a significant amount of water does drain from the subject land into the Colac-Ballarat Road roadside drain.

1. This accorded, he said, with Mr Trigg's assessment on behalf of the Co-operative. Mr Walker continued:

The key question for Tribunal particularly in the Water Act proceedings, is whether, in the context of land which already floods, the proposed development will make this situation significantly worse.

1. In fact he said this development would improve the situation because the subject land would only discharge water when the 8 ML storage dam was full. The post development rate of discharge would be controlled by the low flow box culvert and the head pressure above the low flow box culvert, development therefore 'even if a discharge does occur, the post development flow rate will be significantly less than the pre-development flow rate'. Therefore, said Mr Walker:

Whilst the proposed development will collect, and will potentially discharge, a greater volume of water than currently, the discharge will be at a significantly lower rate than current rates. This will give the Colac-Ballarat Road roadside drain a better opportunity to cope with water flows.

Therefore, he said the discharge from the proposed development would be reasonable.

1. As to the proceeding under the Planning and Environment Act, he said the policy that supports the development was to be found in the State Planning Policy Framework which supports rural industries and the productive use of agricultural land. The Local Planning Policy Framework in the relevant planning scheme he said 'also strongly supports the proposed development'. Clause 21.04-3 of that framework noted he said:

The Shire's ready access to metropolitan and regional markets, export facilities and suppliers, is its competitive advantage. It is essential to maintain the efficiency of transport linkages to these markets, facilities and suppliers in order to build on this advantage.

1. The development was he said consistent with the objects and strategies at Clause 21.04-3 which he quoted at length. Mr Walker noted that the subject land was not within an area identified as subject to salinity or inundation:

In any case, the proposed development will not increase the salinity of the Humphrey's paddock or any other land owned by the Reynolds.

1. As to water flow issues, Mr Walker said it was necessary to analyse existing flow patterns first. He said the subject land and Humphrey's paddock were 'part of a catchment that extends at least 3.5km to the north, to Kennersley's Road'. He said the flow on the western table drain in Colac-Ballarat Road:

Is transferred to the drain on the east side of Colac-Ballarat Road via a culvert [the transfer culvert]. The transfer culvert is located about 500m south of the intersection of Werneth Road and Colac-Ballarat Road.

1. According to Mr Walker water from Werneth Road to the west of Colac-Ballarat Road follows a complex route from the intersection of the two roads. He said first there is a culvert under Werneth Road which transfers the water from the Werneth Road roadside on the northern side to the southern side. This Werneth Road drain then drains into a drain just to the east of the fence of the subject land, that is a drain on the subject land separate from the western table drain in Colac-Ballarat Road. This drain continues southerly along the subject land adjacent to its fence line. This water then flows into a dam on the south-east corner of the subject land and ultimately reaches the western table drain either by a dam overflow or other drains running to the western table drain further south including drains on Mr Hirth's land to the south of the subject property and north of the Reynolds' land. He noted there were also two drains on Humphrey's paddock which drain water from that paddock into the western table drain.
2. This relatively elaborate drainage pattern explains why, he said, any of the photographs produced by Mr Reynolds show more water in the eastern table drain than on the west. Mr Walker said:

This is because the east side is serving a much larger catchment.

Any water in the Colac-Ballarat Road roadside drain, in between the transfer culvert and the two Reynolds' drains, comes either from the subject land or the small catchment served by the Werneth Road drains.

1. Therefore, said Mr Walker we should accept the evidence of Mr Trigg 'that water from the subject land flows into the Colac-Ballarat Road roadside drain'.
2. Mr Walker said that the flooding on Humphrey's paddock in recent months was unsurprising. The land is low lying and flood prone and at the time he said 'much of Victoria was flooded'. In addition spoon drains connecting the Humphrey's paddock to the western table drain moved water from the Humphrey's paddock 'to the area surrounding the Colac-Ballarat Road roadside drain and Cressy-Pitfield Road culvert'.
3. Mr Walker noted that despite earlier expressions of view to the contrary, the joint report of the experts (Messrs Berry and Trigg) concluded that

83% of the existing water flow from the subject land would drain to the Colac-Ballarat Road roadside drain, during a significant rainfall event'.

1. He noted however that Mr Berry's evidence at the hearing was that 83% of the water in the subject land would flow generally towards the western table drain and some would actually reach the table drain. On the other hand in less significant rainfall events, water tending towards the western table drain would be contained on the subject land by the 'levy along the fence line of the Colac-Ballarat Road'.
2. Mr Walker noted that there was no challenge to the co-efficient used by Mr Trigg to calculate the rate of outflow from the subject land predevelopment. Mr Walker said that flooding of Humphrey's paddock 'during less significant flooding events' was not by reason of any overflow from the western table drain or the Cressy-Pitfield Road culvert. The proposed development, he said, 'would not significantly change this situation'. The affect of the management plan would be, according to the evidence of Mr Trigg, said Mr Walker that 'the flow rate will be significantly reduced for significant rainfall events (1:1 ARI - 1:1,000 ARI)'.
3. Mr Walker said that Mr Berry's views were flawed because he had incorrectly asserted that the western table drain under present conditions 'did not have any flow'. Mr Walker said that the evidence demonstrated otherwise.
4. Mr Walker reiterated his submissions that the development and its stormwater management plan would improve the drainage situation. First he said there will be no discharge at all until the 8ML retention dam was full. Secondly, maximum discharge would only be attained for a short period of time having regard to the 'head' above the low flow box culvert. The effect is that outflow would be limited to a one in 10 storm even in the event of a more severe storm such a one in 100 year event and the maximum one in 10 year storm flow:

Is only achieved for a brief period in a one in 100 ARI storm event, that is, when the low flow box culvert is overtopped by 300mm, so that the head pressure is sufficient to push the water through at this maximum flow rate.

1. Most of the time however the flow rates 'will be significantly lower than the one in 10 ARI flow rates'. All these matters he said could be derived from Mr Trigg's report at page 8. Mr Walker conceded that it was possible that a larger volume of water would be discharged from the subject land, nevertheless such discharge would be at significantly lower rates than current rates and 'the reduction is even greater for more severe rainfall events'.
2. Even in a worst case scenario according to Mr Trigg's figures, in a one in 100 year rainfall event, the plan would have discharge taking place over 9.5 hours as compared to 50 minutes and the one in 10 year flood four hours compared to 25 minutes and in a one in one year flood three hours compared to 12 minutes. He said:

Any increase in the length of time that the Humphrey's paddock is inundated was so insignificant that it should be disregarded.

1. In any event it should be noted that Humphrey's paddock is itself waterlogged and insofar as it contains two spoon drains, it significantly contributes to the flooding of the western table drain in existing conditions. He said:

There is no credible evidence to assert that this additional volume will cause Mr Reynolds' loss, for example by tipping a crop on already flood prone land from a viable crop to an unviable crop.

1. Mr Walker then turned to the application under the Water Act. First, he denied any causal link between the development and any act or omission of the Co-operative and any threatened worsening of flooding of Humphrey's paddock. The table drain he said was outside the Co-operative's control and its defects in maintenance and design were prime causes of flooding not anything that the Co-operative would do in carrying out its development. He noted that ultimately VicRoads would have to approve any discharge to the table drain. In any event the Humphrey's paddock is already subject to flood. On any view he said the Co-operative 'could not be said to be the sole cause of any additional flooding that may occur'. As a result he said the Water Act claim was:

Misconceived in that Mr Reynolds should have brought the claim against VicRoads rather than [the Co-operative] or at least VicRoads as a party.

In any case the fact that, through no fault of [the Co-operative], the Reynolds' land is susceptible to flooding, and both Mr Reynolds, and a third party, VicRoads, is to at least some extent responsible for this situation, are at least relevant factors in determining whether the proposed discharge is reasonable.

1. He referred to Trycala Importers and Wholesalers Pty Ltd v Growmac Imports Pty Ltd [2001] VCAT 1445 [15] - [17]; Barlow v South East Water Limited (No. 2) [2001] VCAT 659; (2001) 17 VAR 382, 390 [39]. In his written submission under the heading 'What is the reasonable use and development of the land?' Mr Walker said:

The Tribunal is entitled to consider the overwhelming strategic support for the proposed development overrides the concerns Mr Reynolds has raised about the proposed discharge.

If the Tribunal determined that the planning appeals should succeed [scil that the Co-operative's case should succeed] then in effect, the proposed discharge would be authorised. This is a factor that the Tribunal must have regard to pursuant to Section 20(1)(a) [of the Water Act 1989] and would support a conclusion that the Water Act claim should also be dismissed.

1. The development he said would regulate a flow which was now unregulated and uncontrolled. He referred to the free flow principle as explained in the Tribunal's decision of Kopitschinski v Song [2007] VCAT 1958 [34] - [37] and [49]. Mr Walker said:

So even if Mr Berry is right, and water flows southward from the subject land to the Humphrey's paddock, then there is nothing Mr Reynolds can force [the present owner of the subject land] to do to abate the situation.

1. The proposed development would he said remove the source of water for any overland flows to the south such as Mr Berry said now exist, re-directing these flows into the table drain. If that caused a problem then work could be carried out on the table drain or on the culvert under the Cressy-Pitfield Road:

While the proposed development will collect and store water through the use of a hardstand area and storage dam, this is an unavoidable consequence of constructing a grain storage facility.

1. Mr Walker said that no injunction should be granted, damages would he said be an adequate remedy. He said:

Further, Mr Reynolds can claim damages in the event that the flow is unreasonable, and he does suffer loss.

1. As to damages, Mr Walker said that the basis for the allegation that loss would be suffered by reason of the further flooding, was a statement by Mr Cuming. Mr Walker noted that Mr Cuming had not been made available for cross-examination and it was not apparent:

Whether Mr Cuming has ... been advised of the extent of the existing flooding, and whether a small increase in the time land is flooded is likely to 'tip a crop over the edge' so that it turns from a successful crop to a crop which fails.

1. Mr Walker said in any event it was inappropriate for Mr Reynolds to attempt to grow on flood prone land crops which have a limited resistance to water logging. He said in any event where the damage proven to be likely is not substantial, a court would be less likely to grant a quia timet injunction. He referred to _Grasso v Lo_ve [1980] VicRp 20; [1980] VR 163, 167.
2. As to the proposed declaration, Mr Walker said it was far too wide and failed to meet the criteria for a successful declaration application. As to what might happen in the future in any further proceeding under the Water Act it was a matter for the Court or Tribunal hearing that proceeding to determine whether a cause of action had been made out rather than for the present Tribunal to try and control what might be determined in the future.

1. The problems here derive fundamentally from inadequate infrastructure. The evidence shows that the present table drain system is not coping with existing conditions. VicRoads' submission takes altogether too sanguine a view of the present arrangement. Photographs were produced by Mr Reynolds showing water flooding over the Pitfield-Cressy Road on 14 January this year. Mr Reynolds said, and I did not understand him to be challenged on this, that this scenario persisted for three days. VicRoads' concern is as to the integrity of the asphalt road surface in the Colac-Ballarat Road. Perhaps the occasional inundation of that asphalt surface is not a matter of great concern. Neighbouring landowners have more extensive but quite legitimate concerns.
2. The free flow principle explained in Kopitchinski's case is of no assistance in determining the present dispute. Mr Walker is correct in saying that the principle means that Mr Reynolds has no legal ground to complain about whatever overland flows reach his property from the subject land under present arrangements. The flow-off from rainfall on the open paddock as it now is, is in the same category as the flow-off from the rainfall in the flower bed in Kopitchinski. The flow generated from the extensive hardstand areas which are entailed in the present development are in an entirely different situation. In broad terms Mr Trigg conceded that the effect of the development would be approximately to double the runoff from the subject land. This is not a natural flow and is not covered by the free flow principle.
3. Without going to the detail of the policies pressed upon us by Mr Walker, we accept that, drainage issues aside, planning policy both State and local is overwhelmingly supportive of the proposed development. The real question here is whether what is admittedly an appropriate development should be allowed to proceed without offsite drainage works as the Co-operative and the Council contend or should be allowed to proceed only subject to offsite drainage works as Mr Reynolds contends through his Counsel, Dr Sadler. These offsite works have not been costed. An 'off the top of the head' estimate from Mr Berry was that 'depending on which option was selected the cost could be $80,000 to $120,000'. The area draining to the flood affected areas of Mr Reynolds' land is quite extensive. In area the subject property would not exceed 10% of that catchment. Given that the runoff will be doubled by the proposed development one could treat the contribution of the proposed development as being 20% at most. Would it be fair, other things being equal, to require the Co-operative to bear this substantial cost as part of its development having regard to the very limited proportion of the entire problem which it contributes? This is particularly so where the execution of the suggested off-site works would work a betterment to Mr Reynolds alleviating the present situation of Humphrey's Paddock.
4. We accept that the worsening of existing drainage problems represents a relevant amenity concern and also invokes a number of strategic issues under the State and local policies applicable to this Planning Scheme. But how much worse will the existing flooding difficulties be than they are now?
5. The stormwater management plan which has been proposed by the Co-operative designed by Mr Trigg and favourably viewed by Council and likely to be approved by Council will limit the rate of discharge. There is no challenge to the effectiveness of this proposed plan to achieve that result. Dr Sadler's point is that whilst the rate of discharge will be controlled and cut, albeit made more concentrated, the total volume will not be. What is the likely effect of this for the flood prone areas of Mr Reynolds' land, chiefly Humphrey's Paddock? Mr Berry says that it will probably increase the frequency and duration of water logging of this part of Mr Reynolds' land. He expressed this conclusion with great circumspection. A Tribunal Member asked him if this meant that there was almost as much chance that there would be no worsening of the situation. He said he was unsure because a more confident answer would require the conduct of elaborate modelling exercises which had not been done. So much may be accepted. The present drainage arrangements ultimately attempt to convey water from the western table drain into the Woady Yaloak River. There are significant deficiencies in capacity and inefficiencies in design and maintenance. It is not suggested however that the system is entirely ineffective. Therefore even larger volumes of water have the potential to be capable of being managed and drained to the river through the existing system if the rate of discharge is 'throttled back' as the stormwater management plan suggests it would be. The modelling simply has not been done to indicate whether this would occur in reality. Mr Trigg conceded that the frequency and duration of inundation of Mr Reynolds' land might be increased. He was not prepared to agree that this was a probability. In our view the evidence leaves it uncertain whether the proposed development with its stormwater management plan will in fact increase the frequency and duration of inundation of Mr Reynolds' land. We cannot make a finding even on the balance of probabilities that this will be the effect.
6. In these uncertain circumstances given the very strong policy support which this proposed development has, we are unwilling to prevent its occurrence without the imposition of what might be a very expensive and onerous requirements to carry out off-site works the cause of which would be neither wholly nor predominately the construction of this proposed development.
7. Subject to one issue as to conditions to which we will turn shortly, we believe Council's determination should be affirmed in the proceeding under the Planning and Environment Act.
8. Turning now to the proceeding under the Water Act. The principal relief sought by Mr Reynolds was a quia timet injunction (that is an injunction to restrain future action which it is feared will damage Mr Reynolds' property) to restrain the construction of the proposed development without the offsite works advocated by his expert Mr Berry. All parties were agreed that the proper test to apply to determine whether a quia timet injunction should be granted is the one to be found in the joint judgment of Starke, Murphy and Brooking JJ as Judges of the Full Court of the Supreme Court in Grasso v Love [1980] 163, 167 where their Honours said at line 25 and following:

What we are disposed to think is the true position is that, to obtain a quia timet injunction, the plaintiffs must prove that there is a real probability that activities of the defendants are imminent and if performed will cause substantial damage to the plaintiffs.

1. What this formulation required is that there be a 'real probability that the defendant's activities are imminent and if performed will cause substantial damage'. It is clear there is a real probability that the Co-operative's proposal is imminent. The Co-operative is champing at the bit to construct its terminal. Has it been demonstrated however that there is a real probability that substantial damage will be caused to Mr Reynolds? In light of the findings which we have made above the requirements of this formulation have simply not been made out and for that reason alone the application for a quia timet injunction should not be acceded to.
2. But there are other considerations which would also point away from granting the injunction sought. On the same page their Honours approved a formulation of the rule as to quia timet injunctions by Dr Spry in the first edition of his work on Equitable Remedies. The final sentence of the formulation as approved is as follows:

Accordingly, the greater the injury or distress that would be caused by the apprehended injury, if it occurred, the more readily will the court intervene despite uncertainties and deficiencies of proof.

1. Earlier in his formulation Dr Spry refers to the need to consider 'the balance of hardship or inconvenience between the parties'. Here it is demonstrated that the Co-operative's terminal will be a boom to the entire farming community of the district. The 'fix' which would enable the development to go forward if an injunction were granted would be in relative terms quite expensive and perhaps unjust in its totality upon the Co-operative. In a legal context where there is no machinery to distribute the cost of the 'fix' more widely (there being no special rate or charge scheme for drainage work in prospect here), the losses to agricultural production to be suffered by Mr Reynolds as assessed by Mr Cuming even if no credence at all is given to the criticisms and misgivings voiced by Mr Walker in his submission are relatively small. This is another reason why a quia timet injunction ought not be given.
2. Mr Walker it will be recalled submitted that damages would be an adequate remedy for any loss which Mr Reynolds might suffer. No equitable remedy at all will be granted where damages are an adequate remedy; but the adequacy of damages as a remedy may arise at a variety of levels in the consideration of whether for instance an injunction might be granted or not. It arises at the first level in considering whether equitable remedies are appropriate at all. In this sense a distinction is generally drawn between interest relative to real estate and interests that pertain to property such as moneys or ordinary items of commerce. The latter classes are regarded as fungible, that is that one fund of money is as good as any other, that one tonne of wheat or 500 tonnes of gravel of a particular grade are as good as any other. Hence damages are generally regarded as adequate remedies with regard to these sort of property rights. Each piece of land is regarded as unique. Therefore whilst specific performance is generally not granted with respect to sales of goods unless they are special heirlooms or antiques, it is generally granted with respect to contracts for the sale or purchase of land. Again, a plaintiff whose land is adversely affected by a nuisance would generally be entitled to some form of injunctive relief other things being equal.
3. At this first level of analysis since Humphrey's Paddock (and Macca's Paddock if it matters) are unique and since the proof of the precise amount of damage which might be suffered to adverse affection of those pieces of land may be difficult to calculate at the first level it may be said that damages are not an adequate remedy.
4. Where however the general requirements for the grant, for instance of an injunction, have been made out, there remains a discretion in a court and presumably also in this Tribunal having regard to the nature of the equitable remedy of the injunction nevertheless to accept that an injunction might appropriately be granted but nevertheless to grant damages in lieu. The effect of such a determination is compulsorily to acquire the plaintiff or applicant's right against monetary compensation.
5. Even if we were satisfied of the probability to the appropriate level of significant damage to Mr Reynolds' land we believe this principle would operate in the present situation to deny him injunctive relief based on the relatively modest quantum of damage which would be suffered.
6. A court or Tribunal considering the same issues even after damage has been proven to have been inflicted might reach the same conclusion so according to Dr Spry:

The court may in its discretion decline to grant an injunction if to do so would result in such substantial hardship to the defendant that, account being taken of any detriment that the plaintiff will suffer on his being confined to damages, disproportionate prejudice would be caused by its intervention. Here it must be remembered that the plaintiff whose rights are threatened to be breached has prima facie and equitable right to have the breach restrained and that he will be denied specific relief only in exceptional cases.

1. In the event that an injunction were refused in those circumstances even after proven damage the award of damages would appropriately take account of ongoing losses from losses of crops; but in accordance with established principle those ongoing losses would be discounted to allow for the fact that the award of damages would be being made there and then with respect to amounts which might otherwise have been derived from cropping for years into the future. The damages award therefore would in these circumstances remain at a fairly modest level. This is a further reason why we do not think it appropriate to grant any injunction now.
2. The directions which had these two proceedings, one under the Planning and Environment Act and the other under the Water Act heard together required that this hearing deal in relation to the Water Act with matters of liability and not matters of damages at all. Accordingly it is inappropriate for us to say more on the subject of damages.
3. This brings us finally to the matter of the proposed declaration. This declaration is sought as a 'fall back' position for Mr Reynolds to ensure that his ability to obtain relief under the Water Act in the future is not subverted by the very existence of the permit which will now issue characterising the discharge from the subject land as being 'authorised' for the purposes of Section 20 of the Water Act.
4. To put the matter in context it is appropriate to set out the matters which are to be considered in determining whether a flow of water is reasonable or unreasonable. Section 20(1), (2) and (3) provides as follows:

(1) In determining whether a flow of water is reasonable or not reasonable, account must be taken of all the circumstances including the following matters -

(a) whether or not the flow, or the act or works that caused the flow, was or were authorised;

(b) the extent to which any conditions or requirements imposed under this Act in relation to an authorisation were complied with;

(c) whether or not the flow conforms with any guidelines or principles published by the Minister with respect to the drainage of the area;

(d) whether or not account was taken at the relevant time of the likely impact of the flow on drainage in the area having regard to the information then reasonably available about the cumulative effects on drainage of works and activities in the area;

(e) the uses to which the lands concerned and any other lands in the vicinity are put;

(ii) collected, stored or concentrated on that land; or

and if so, for what purpose and with what degree of care this was done;

(h) whether or not the flow was affected by any works restricting the flow of water along a waterway;

(i) whether or not the flow is likely to damage any waterway, wetland or aquifer.

(2) In taking account of the matters specified in subsection (1), greater weight must be attached to the matters specified in paragraphs (a), (b), (c) and (d) than to the other specified matters.

(3) An Authority that has a waterway management function in the area to which a proceeding before the Tribunal relates may make a submission to the Tribunal on the matters specified in paragraphs (c), (d) and (i) of subsection (1)

1. The definition of 'authorised' in Section 3 is as follows:

authorised, in relation to any act, means authorised (whether generally or specifically) by this or any other Act or by a licence, permit or other authority granted under this or any other Act and, in determining whether or not the construction of a dam is authorised, no account is to be taken of any direction given under section 80(1) or (2) or of the fact that any such direction has been complied with;

1. There is a certain inconsistency in the submissions made by the Co-operative on this issue. On the one hand it says that if the permit issues the discharge of water from the subject site will be 'authorised' and therefore not unreasonable. The Water Act claim should fail. On the other hand it contends that the permit should issue leaving it to Mr Reynolds hereafter to obtain relief under the Water Act should he be able to prove that things have turned out as badly in reality as he and Mr Berry have predicted they will. If the first argument is good the existence of the permit would stymie an effective claim by Mr Reynolds upon proof of actual damage after the development has been completed.
2. As we read Section 20, the question of authorisation is not the be all and end all of the question whether a flow of water was reasonable. It is one of the more significant considerations by virtue of sub-section (2); nevertheless it is not conclusive. Dr Sadler, if all else fails, seeks a declaration in the following terms:

A declaration that the NOD or any planning permission given in accordance therewith does not authorise the respondent and each or either of them to create a flow of water from the development onto the applicant's land which causes the applicant to suffer loss or damage.

1. We agree with Mr Walker that it would be inappropriate to grant a declaration in those terms as it would attempt to fetter the determination that a future Tribunal might make applying the Section 20 criteria. Dr Sadler points out however that whilst condition 16 of the Notice of Determination requires that the use or development must not cause any nuisance or a loss of amenity in adjacent land the effect of Part 2 of the Water Act 1989 is to abolish the law of nuisance as a remedy to a land owner in these drainage matters. Given that we have determined these two matters in favour of the Co-operative not because we are certain that Mr Reynolds' rights will not be invaded but rather because the probability that they will be invaded or affected has not been established it would be inappropriate to part with these proceedings in any way which would deprive Mr Reynolds of the opportunity to seek relief under the Water Act should it appear hereafter that he and Mr Berry were correct. This difficulty can in our view be dealt with by modifying the terms of proposed Condition 16 so as to read:
   1. The use and development hereby permitted must not cause any nuisance or a loss of amenity in any adjacent or nearby land by reasons of discharge of drainage or lead to any unreasonable flow of water (within the meaning of Part 2 of the Water Act 1989) from the site.
2. The result may be somewhat circular but would mean that the permit authorised no flow of water which, the permit apart, would be regarded as unreasonable.