This is an inquiry into the desirability of granting a surface water licence ("the licence") under section 10 of the Water Act 1912 ("the Act") to Kulbir Singh Atwal & Surinder Kaur Atwal ("the Licence Applicants" or "the Atwals") in respect of the construction of a dam and a pump ("the Proposed Works"). The Licence Applicants own and occupy property at Bucca Road Bucca - Lot 86 DP 134693 Parish Moonee County Fitzroy ("the Property"). The Proposed Works are for irrigation of berry fruit (blueberries and raspberries), farming and domestic purposes on the Property. The proposal is to allow irrigation through a bywash dam and centrifugal pumps.
The Water Administration Ministerial Corporation ("the Ministerial Corporation") has participated in these proceedings as an interested party and has provided submissions to assist the Tribunal.
[2]
Background
The Ministerial Corporation has provided what appears to be an accurate a summary of the background to these proceedings. The Licence Application dated 11 June 2014 sought approval to build two dams and two pumps and was accompanied by an Application for Permanent Transfer of Surface Water Rights. The Proposed Works were subsequently amended to one dam and one pump.
Particulars of the Licence Application were published in the Government Gazette and the Coffs Harbour Advocate, a newspaper published and circulating in the district where the Proposed Works are to be situated.
Section 11(2A) of the Act provides:
(2A) Where, at the time the application is made, the work is not, or is not proposed to be, situated within a declared local area, any person whose interests may be affected by the granting of the application may, within 28 days after the date of the publication of the later of the advertisements referred to in subsection (1), lodge with the Ministerial Corporation an objection thereto.
The Licence Applicants seek to have the rights to 34 megalitres of surface water per year transferred to them from Kenneth Raymond Hall ("Mr Hall") for a consideration of $68,000. The transfer of water rights is conditional on the licence to enable the Licence Applicants to take and use the water under the water rights.
The transfer of water rights application concerns an existing allocation of water in the Bucca Bucca creek Catchment. Mr Hall was allocated 69 megalitres of water for use on his property at Bucca Road Bucca. The Application is for a transfer of 34 megalitres of Mr Hall's existing allocation.
Several objections were lodge with the Ministerial Corporation however, with the exception of Gaven and Rohan Wear, the objectors were not considered to be sufficiently affected by the granting of the Licence Application as provided by section 11(2A) of the Act. Consequently, those objections were not considered further.
Gaven Wear and Rohan Wear ("the Objectors") own and occupy Lot 83 DP 752837 and Lot 180 DP 729116 which are located near the Licence Applicants' property.
Each of the parties has provided written submissions and also had the opportunity to make oral submissions at the open hearing.
[3]
The objections
The objectors opposed the grant of the licence on the following bases:
a. that reduced water flow could adversely impact on the water available to the cattle owned by the Objectors;
b. the possibility of nutrient, sediment and chemical run off from the Licence Applicants' property;
c. the lack of enforcement of licence conditions;
d. that the capacity of the dam constructed by Mr Hall should be reduced in light of the reduction in his water allocation after the transfer of 34 megalitres of surface water rights to the Licence Applicants; and
e. that the Ministerial Corporation does not monitor or study the water flow at Bucca Bucca creek.
Those objections were made in response to the notification of the particulars of the licence application. They were reiterated when the Tribunal convened for the inquiry and it is clear that the objections are maintained.
As will be discussed below, a number of other objections have been raised by others in submissions made pursuant to section 11(6B) of the Act.
[4]
The Ministerial Corporation's recommendation
Ministerial Corporation undertook assessments in relation to the licence application and it recommended that the Licence Application be approved subject to the eleven conditions contained in the Conditions Statement. The proposed conditions were:
(1) The holder of the license shall within three months of being called upon by NSW Office of Water to do so, install to the satisfaction of the department in respect of location, form, type and construction, an appliance or appliances for the measurement of the quantity of water diverted or taken by means of the licensed work, such appliance or appliances to consist of either a measuring weir or weirs with automatic recorder or meter or meters of the Dethridge type, or such other class of meter or means of measurement as may be approved by the department, and shall continuously maintain such appliance or appliances in good working order and condition, and shall, after the installation of such appliance or appliances, record the measurements of all water diverted or taken by means of the licensed work and supply particulars of such measurements to the department at such intervals as shall be directed by the department. Whenever called upon to do so a test certificate furnished either by the manufacturer concerned or by some person or authority duly qualified shall be supplied by the holder of the licence as to the accuracy of the appliance or appliances installed.
(2) Water extracted by means of the licensed works shall not be used for the irrigation of grasses or pastures which are not sown grasses or improved pastures.
(3) The licensee shall not allow any tailwater drainage to discharge into or onto:
any adjoining public or crown road;
any other persons land; -any crown land;
any river, creek or watercourse;
any groundwater aquifer;
any native vegetation as described under the Native Vegetation Conservation Act 1997 or the Native Vegetation Act 2003;
any wetlands of environmental significance.
(4) Works used for the purpose of conveying, distributing or storing water taken by means of the licensed works shall not be constructed or installed so as to obstruct the reasonable passage of floodwaters flowing into or from a river.
(5) A vegetated buffer zone of not less than 10 metres must be maintained between the irrigated area and the high bank of the unnamed watercourses.
(6) (A) Subject to any access or flow condition contained in the licence, the holder may in any one year commencing 1 July divert up to the licenced volume of 34 megalitres of water for irrigation use.
(B) Notwithstanding paragraph (A), the holder may divert up to twice the licenced volume in one year provided diversions do not exceed three times the licenced volume in any three year period.
(C) The holder shall maintain records of water usage as specified by the department and when requested to do so, shall furnish the records to the department.
(7) The level of the invert of the pipe spillway of the dam shall be fixed at not higher than 1.5 metres below the level of a bench mark established on a tree on the right bank of the watercourse near the work and particulars of which are retained in the office of NSW Office of Water.
(8) The location of the dam(s) as shown on a plan retained in the office of NSW Office of Water shall not be altered.
(9) The work shall be constructed and maintained in a safe and proper manner that will minimise the possibility of damage being occasioned by it, or resulting from it to any public or private interest.
(10) A pipe with a diameter of not less than 50 mm, fitted with a stop valve or other control device shall be constructed through the dam to the satisfaction of NSW Office of Water. The level of the invert of the said pipe shall be fixed at not higher than 3.1 metres below the level of the bench mark referred to in condition 7.
(11) The licence holder must ensure that during the construction, operation and maintenance of the approved works, any activity that results in soil or vegetation disturbance is performed so as to prevent soil erosion and the entry of sediments into any river, lake, waterbody, wetland or groundwater system.
The Objectors informed the Ministerial Corporation that they would not be withdrawing the objection and so the matter was referred to the Tribunal in accordance with section 11(5)(a) of the Act.
[5]
Jurisdiction
The function of the Tribunal is to inquire into the desirability of granting the application for a licence. Under section 4A of the Act, the Tribunal is required to take into account, and to have due regard to a number of matters, which are then listed.
(a) any relevant policy that concerns the subject-matter of the inquiry or appeal and that is brought to the attention of the judicial body,
(b) any State-wide water resource management objectives that are brought to the attention of the judicial body,
(c) any relevant inter-government agreement, treaty or arrangement relating to the management, preservation or sharing of the State's water resources that is brought to the attention of the judicial body,
(d) the state of water resources, and the state of the environment generally, at a local, regional and State-wide level as brought to the attention of the judicial body,
(e) the impact that the judicial body's determination or recommendation could or might have:
(i) on the allocation of water resources at a local, regional and State-wide level, and
(ii) on other persons who are entitled to take and use water (apart from those to whom the inquiry or appeal relates), and
(iii) on the state of water resources, and on the state of the environment generally, at a local, regional and State-wide level, and
(iv) in relation to the management, protection and enhancement of the State's water resources.
Section 5A of the Environmental Planning and Assessment Act 1979 ("the EPA Act") provides:
5A Significant effect on threatened species, populations or ecological communities, or their habitats
(1) For the purposes of this Act and, in particular, in the administration of sections 78A, 79B, 79C, 111 and 112, the following must be taken into account in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats:
(a) each of the factors listed in subsection (2),
(b) any assessment guidelines.
(2) The following factors must be taken into account in making a determination under this section:
(a) in the case of a threatened species, whether the action proposed is likely to have an adverse effect on the life cycle of the species such that a viable local population of the species is likely to be placed at risk of extinction,
(b) in the case of an endangered population, whether the action proposed is likely to have an adverse effect on the life cycle of the species that constitutes the endangered population such that a viable local population of the species is likely to be placed at risk of extinction,
(c) in the case of an endangered ecological community or critically endangered ecological community, whether the action proposed:
(i) is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction, or
(ii) is likely to substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction,
(d) in relation to the habitat of a threatened species, population or ecological community:
(i) the extent to which habitat is likely to be removed or modified as a result of the action proposed, and
(ii) whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed action, and
(iii) the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species, population or ecological community in the locality,
(e) whether the action proposed is likely to have an adverse effect on critical habitat (either directly or indirectly),
(f) whether the action proposed is consistent with the objectives or actions of a recovery plan or threat abatement plan,
(g) whether the action proposed constitutes or is part of a key threatening process or is likely to result in the operation of, or increase the impact of, a key threatening process.
(3) In this section:
assessment guidelines means assessment guidelines issued and in force under section 94A of the Threatened Species Conservation Act 1995 or, subject to section 5C, section 220ZZA of the Fisheries Management Act 1994.
key threatening process has the same meaning as in the Threatened Species Conservation Act 1995 or, subject to section 5C, Part 7A of the Fisheries Management Act 1994.
Section 111 of the EPA Act provides:
111 Duty to consider environmental impact
(1) For the purpose of attaining the objects of this Act relating to the protection and enhancement of the environment, a determining authority in its consideration of an activity shall, notwithstanding any other provisions of this Act or the provisions of any other Act or of any instrument made under this or any other Act, examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity.
...
(4) Without limiting subsection (1), a determining authority must consider the effect of an activity on:
(a) critical habitat, and
(b) in the case of threatened species, populations and ecological communities, and their habitats, whether there is likely to be a significant effect on those species, populations or ecological communities, or those habitats, and
(c) any other protected fauna or protected native plants within the meaning of the National Parks and Wildlife Act 1974.
Clause 228 of the Environmental Planning and Assessment Regulation 2000 ("the EPA Regulations") provides:
228 What factors must be taken into account concerning the impact of an activity on the environment?
(1) For the purposes of Part 5 of the Act, the factors to be taken into account when consideration is being given to the likely impact of an activity on the environment include:
(a) for activities of a kind for which specific guidelines are in force under this clause, the factors referred to in those guidelines, or
(b) for any other kind of activity:
(i) the factors referred to in the general guidelines in force under this clause, or
(ii) if no such guidelines are in force, the factors referred to subclause (2).
(2) The factors referred to in subclause (1) (b) (ii) are as follows:
(a) any environmental impact on a community,
(b) any transformation of a locality,
(c) any environmental impact on the ecosystems of the locality,
(d) any reduction of the aesthetic, recreational, scientific or other environmental quality or value of a locality,
(e) any effect on a locality, place or building having aesthetic, anthropological, archaeological, architectural, cultural, historical, scientific or social significance or other special value for present or future generations,
(f) any impact on the habitat of protected fauna (within the meaning of the National Parks and Wildlife Act 1974),
(g) any endangering of any species of animal, plant or other form of life, whether living on land, in water or in the air,
(h) any long-term effects on the environment,
(i) any degradation of the quality of the environment,
(j) any risk to the safety of the environment,
(k) any reduction in the range of beneficial uses of the environment,
(l) any pollution of the environment,
(m) any environmental problems associated with the disposal of waste,
(n) any increased demands on resources (natural or otherwise) that are, or are likely to become, in short supply,
(o) any cumulative environmental effect with other existing or likely future activities,
(p) any impact on coastal processes and coastal hazards, including those under projected climate change conditions.
…
Where the decision of the Tribunal is in favour of the granting of the application the Tribunal shall also make recommendations to the Ministerial Corporation with respect to the terms, limitations and conditions which should be applied to the licence.
I set out my understanding of the background to this jurisdiction in my decision in Howard v Turner and Petersen [2015] NSWCATAD 247. I will not repeat it here.
[6]
The Issues before the Tribunal
The Licence Applicants have sought approval for the construction of a dam and a pump on a second order stream - the Unnamed Watercourse in Bucca, NSW and for permanent transfer of surface water rights.
The Tribunal's role is to determine whether it is desirable to grant the application.
[7]
The Licence Applicants' case
In NSW, allocated water rights are transferrable in whole or in part subject to compliance with the proper processes and meeting the requirements of the Act.
The Licence Application concerns an existing allocation of water in the Bucca Bucca creek catchment. The Licence Applicants seek to transfer 34 megalitres of Mr Hall's 69 megalitres licence allowance for irrigation and farming use on the Property. The works to be undertaken on the Property is for the irrigation of blueberries and raspberries.
The Licence Applicants consider that the granting of the Licence Application should be recommended for a number of reasons.
In the Bucca Bucca creek catchment, the volume of water considered safe to be drawn for use on surrounding land has been determined following extensive studies of the catchment area and the watercourse(s) within it. A predetermined volume of water from which water licences may be granted and/or transferred has been set. The total volume of water granted pursuant to licences will never exceed the set volume that has been predetermined for the catchment area. The Licence Application does not concern any new allocation of water from the Bucca Bucca creek Catchment. The Licence Application concerns a transfer within the same catchment area, meaning there is no net change to water being taken from the Bucca Bucca creek Catchment.
To refuse the Licence Application would undermine the NSW water transfer process.
The Licence Applicants submit that the Ministerial Corporation has complied with its statutory obligations in relation to the Licence Application; it followed the proper process, including considering relevant considerations, in accordance with the Act.
The Licence Applicants submit that denying the Licence Application is unlikely to address any of the objectors' concerns. This is because Mr Hall's property was sold in December 2015 and the purchasers have commenced blueberry farming on that property. If the transfer Application is denied, the 34 megalitres would be retained for use on Mr Hall's property. Therefore the same water would be available for use for blueberry farming and through similar works as that sought by the Licence Applicant.
The Licence Applicants consider that the Licence Application is also desirable because of the economic benefits to the region. Blueberries are a multi-million dollar industry in the NSW Mid North Coast. The Licence Applicants propose to invest over 3 million dollars in the development of berry fruit farming at the Property. When the blueberry farm is fully functioning, employment of around 20 fulltime equivalent staff will be necessary at the site.
They argue that as the Property is within a low socio-economic area, the prospective impact on employment and economy as a result of the Licence Application transfer is highly desirable.
They also contend that their farming approach uses various techniques to protect the watercourse and minimise chemical, sediment and nutrient runoff. They use the drip or pulse irrigation technique with water or nutrients dripping from pipes onto the base of the plant. This technique is not forceful and minimises the chance of irrigation water runoff.
They have excavated a trench to collect, carry and store runoff. This trench is 1 metre deep by 1.5 metre wide on the lower side of all existing blueberry rows to prevent runoff entering the Bucca Bucca creek watercourse. The trench flows into another trench which is approximately 0.5 metres deep. That trench carries excess water into a holding trench, thereby minimising the likelihood of chemical/nutrient leaching to the Bucca Bucca creek watercourse.
They have also excavated a trench which is approximately 0.5 metres deep by 2.5 metres wide across the higher side of all existing blueberry rows. This trench is intended to catches excess water flowing off Bucca Road and the properties on higher ground on the opposite side of Bucca Road, and carries this excess water to holding trenches. This trench is designed to stop water runoff and the transfer of chemicals/nutrients from higher ground properties to the Licence Applicants' property and, in turn, the Bucca Bucca creek watercourse.
The Licence Applicants contend that all chemicals that they use are approved by the Australian Pesticide and Veterinary Medicine Authority (APVMA). The Licence Applicants' personnel who deal with chemicals are trained and ChemCert Australia certified. They use a calibrated fine mist sprayer, as opposed to a high pressure runoff sprayer. This minimises chemical runoff.
They also say that their use of sprays and chemicals is minimal. Because of the low chemical environment, pollination bees which are brought onto the property to pollinate the blueberries can successfully pollinate without fatalities.
In regard to the environmental concerns raised by those opposed to the Licence Application, the Licence Applicants provided a report from ecologist David Carr of Stringybark Ecological. The majority of the concerns raised are focused on the perceived detrimental impact that the transfer of the 34 mega litre entitlement will have on the flow levels of the Bucca Bucca creek. Stringybark Ecological was engaged to conduct an assessment of any matters under Section 5A of the EPA Act considered as likely to be affected by the construction of a dam on an unnamed watercourse on the Property. This included consideration of:
• Threatened species, ecological communities, populations and critical habitat under Threatened Species Conservation Act 1995.
• Threatened species and ecological communities under the Fisheries Management Act 1994.
Mr Carr conducted a preliminary desktop assessment to determine possible or known threatened species or ecological communities, followed by a site assessment. The field surveys were conducted at a time of year where some of the threatened species that may occur in the area were unlikely to be detected. This was due to time constraints. A night time survey was carried out at the site on 15 May 2016 between 6.30 and 8.30pm, specifically to search for frog species. The threatened frog species, Mixophyes iteratus, usually breeds between October and February, when it is easily detected by the male frog's calls. A field survey was carried out at the site on 16 May 2016 from 8.30am to 1pm.
Mr Carr stated that the survey followed the Office of Environment and Heritage Guidelines for Field Surveys which provide that where surveys are carried out under sub-optimal conditions (such as the wrong time of the year), then habitat assessment can be used instead. If the habitat of a threatened species is found at a site then the threatened species should be assumed to be present.
Mr Carr noted that the proposed dam will cover an area of approximately 1.5ha. Direct impacts will include:
• Destruction of vegetation in the vicinity of the dam due to dam excavation and bank construction,
• Mobilisation of sediment from the site.
• Offsite impacts such as altered hydrology, sediment and nutrient run-off.
Indirect impacts will include changes to the volume and quality of water reaching the lower parts of the catchment, including Bucca Bucca Creek.
Mr Carr also considered matters listed under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999. He identified that the threatened ecological community, Lowland Rainforest of Subtropical Australia may occur at or near the site so this was included in the targeted survey. He did not consider Protected Fauna (Platypus) in his assessment. However, he notes that there would be no direct harm to platypus as a result of the development.
Mr Carr's, summary and recommendations are:
• This assessment has considered the direct impacts on threatened species, ecological communities, critical habitat and threatened populations at the site of the proposed dam construction and has found that there are none of these matters of interest occurring at the site.
• The assessment also considered indirect impacts on threatened species, ecological communities, critical habitat and threatened populations as a result of the proposed dam construction in a study area of approximately 10ha. The study area includes the riparian areas (30-50m wide) between the junction of the 2nd order stream (gully where dam will go) and the 3rd order stream downstream to the junction of Bucca Bucca Creek and Finberg Creek. Possible indirect impacts are reduction in water quantity and quality.
• The only matter of interest likely to occur in the study area and be affected by the indirect impacts is the endangered Giant Barred Frog (Mixophyes iteratus). Despite no Giant Barred Frogs being found in the study area due to timing and temperature, the 3rd order stream has habitat that is suitable for this species and they must therefore be presumed to use the area. The dam site would not be used by this species due to the dense grass layer surrounding the existing dam and the lack of leaf litter or tree canopy.
• The reduction of mean flow in the 3rd order stream of 7.34% may have some impact on a population of Great Barred Frogs that might be present in the study area. An Assessment of Significance considering the licence conditions and other proposed mitigation measures, shows that this impact will be negligible.
A Species Impact Statement is not required.
No other threatened species or ecological communities will be affected directly or indirectly by the proposed dam.
The following mitigation measures are recommended to reduce any impacts:
• Maintain a 3-6m buffer of dense grass and widely-spaced shrubs on the upslope side of the dam and along the 2nd order stream to the existing dam.
• Prevent sediment reaching the 3rd order stream according to licence condition 11.
• Install and operate the low-flow pipe referred to in licence condition 10.
• Do not disturb or remove canopy trees (including Camphor Laurels) or leaf litter during construction of the dam.
The Licence Applicants submit that the proposed conditions are adequate to address any potential environmental impacts (including with respect to potential protected species downstream) and result in the likely impact on ecological species being negligible. Further, the drip irrigation system used to water and fertilise the blueberries is highly unlikely to result in significant quantities of nutrients reaching the 2nd order stream, 3rd order stream or Bucca Bucca creek. Further, they argue that the amount reaching these streams will be negligible when compared to that from cattle grazing in and near riparian zones throughout the catchment.
The Licence Applicants submit that the proposed condition 11, which provides for sediment run-off control measures that will be put in place during construction of the dam and until the dam wall stabilises with vegetation cover, will ensure survival of any Giant Barred Frogs species present below the proposed dam site.
The Licence Applicants submit that they have demonstrated that the transfer of a water entitlement within the Bucca Bucca creek catchment and granting of the surface water licence is desirable from an economic and environmental point of view. That being the case, the Ministerial Corporation decision to grant the surface water licence should be upheld without the imposition of further conditions.
[8]
The Section 11(6B) Submissions
Section 11(6B) of the Act provides:
(6B) In addition to the Ministerial Corporation and the applicant, the Civil and Administrative Tribunal is to permit such other persons or bodies as it considers have interests that may be affected by any matter to which the inquiry relates to make submissions to the inquiry.
At the public hearing I expressed the view that section 11(6B) of the Act should be interpreted broadly. Several members of the public made oral submissions but due to time constraints not all of those who wanted to make submissions could be heard. I therefore invited those who consider that they have interests that may be affected by any matter to which the inquiry relates to make written submissions.
I allowed time for the parties to respond to those submissions. It is necessary that I determine which of those persons or bodies, if any, fall within the scope of section 11(6B) of the Act and to take account of any relevant submissions.
Thirteen submissions were received. Of those, six oppose the granting of the Licence; three propose additions or amendments to the proposed Conditions attached to the Licence; and four support the granting of the Licence.
Submissions opposing the granting of the Licence were received from:
● Gaven Wear;
● Margaret Payne;
● Gavin & Debbie Howard;
● Len Goodenough;
● Andrew & Carol Wright; and
● Orara Valley Rivercare Groups Management Committee.
Submissions that proposed additions or amendments to the proposed Conditions were received from:
● Douglas Binns;
● Nana Glen LandCare Group; and
● Ray Hallgath;
Submissions supporting the granting of the Licence were received from:
● Frank Eberstadt;
● Kamaldeep Singh Clair;
● Philip Wilk; and
● Kulbir and Surinder Atwal.
As I have indicated above, it is my view that section 11(6B) of the Act should be given a broad interpretation. I am of the view that, with the exception of Kamaldeep Singh Clair and Phillip Wilk, each of the persons and bodies who have made submissions has interests that may be affected by "any matter to which the inquiry relates". While I accept that Mr Wilk and Mr Singh Clair have an interest in the industry generally, it is my view that their interests are too remote to fall within the scope of section 11(6B) of the Act. Nevertheless, I am satisfied that the issues that they have raised are relevant and have been addressed adequately by the Licence Applicants.
I note that the interests of the Orara Valley Rivercare Groups Management Committee and the Nana Glen LandCare Group are also wider than the specific locality that is the subject of this enquiry. However, I am also satisfied that some of the activities of these groups are directed towards rehabilitation works in regard to the Bucca Bucca creek. In my view their interests fall within the scope of section 11(6B) of the Act. In any event, other submissions have also addressed the issues that they have raised.
[9]
Gaven Wear;
Gaven Wear is the primary objector. He is a fourth generation resident in the Bucca Valley. His great grandparents selected properties in the area during the 1880's and he has lived there his whole life. He owns two properties which have Bucca Bucca creek as their boundary. One is upstream of the proposed development and one downstream.
He is extremely concerned over the current health of Bucca Bucca creek and the more frequent periods of low flows which he believes are caused by increased extraction, potentially affecting the long term survival of protected fauna like platypus and other aquatic species. He is a member of the local land care group.
His objection is based on the need to maintain environmental flows with improved water quality. He does not believe that the Department of Primary Industries - Water ("DPI Water") have correctly assessed the Licence Application for the transfer of Mr Hall's water Licence under the EPA Act. He made submission in support of his objection.
Mr Wear contends that during the public hearing DPI Water made the admission that Mr Hall's licence had been converted to a sleeper licence. He further contends that DPI Water is also aware that the remaining percentage of Mr Hall's original allocation is now or soon to be active and that DPI Water is also aware of other currently inactive/sleeper licences in the Bucca catchment that are being purchased and transfer applications lodged for transfer of those licences.
Mr Wear submitted that clause 228(2)(o) of the EPA Regulations requires that DPI Water take the cumulative impact of these combined developments into consideration in the assessment of licence applications. He contends they have not considered the cumulative impact that reduced water flows will have on the protected flora and fauna.
Further, he submits that clause 228(2)(n) of the EPA Act requires that consideration be given to increased demand on resources which are in short supply. This has not been done in respect of activation of sleeper licences.
Mr Wear submitted that the threatened frog species "Mixophyes iteratus" was identified but that no further consideration was given to this species or the key threatening processes that is affecting its viability. He submitted that upstream clearing, changes in water flow regimes and degradation of water quality should have been considered by DPI Water during their assessment as required by section 111(4)(b) of the EPA Act.
Mr Wear was also concerned that the proposed licence conditions will not be adequate to address the issues that he has raised. He believes that the proposed licence conditions requirement of a 50mm bypass pipe would be completely ineffectual to maintain a flow downstream to minimize impacts on the low flows as it was only to be "flow in flow out' of the lower proposed dam. The Licence Applicants will be pumping from the middle dam, which is located upstream of the proposed dam. Therefore, they would be able to control any requirement of flow out of the lower dam during low flow periods, by the level they maintained in the middle dam. He submits that this fails to meet the requirement of DPI Water's own assessment.
Mr Wear referred to the proposed condition 3 which states that no tailwater drainage is to be discharged into any river, creek or watercourse. He contends that during the property inspection it appeared that the drainage channel constructed to capture this water bypassed the existing dams and took the tailwater towards the 3rd order stream. This channel appears to be of insufficient size and would be quickly overwhelmed during high rainfall. The proposed dam is also situated in the lower part of the property where there are significant amounts of flood water backed up during flooding. Mr Wear is concerned that if this tailwater is to be diverted into the dam and the dam becomes fully or partially submerged, then any nutrient and sediment run off will enter the 3rd order stream directly.
Mr Wear referred to the proposed condition 5 which states that a vegetated buffer zone of not less than 10 meters must be maintained between the irrigated area and the high bank of the unnamed water courses. He contends that during the property inspection it appeared that the buffer zone is nothing more than a strip of mown grass. He contends that this is completely ineffectual to control sediment and nutrient run off. A vegetated section would be required to assist in removal of nutrients and sediment prior to tailwater entering the proposed dam if this dam is all that separates the runoff from the 3rd order stream.
Mr Wear contends that the most critical effect of all agricultural development is the lack of an adequate environmental flow during periods of low rainfall. He contends that the rate of flow of Bucca Bucca creek has never been properly assessed and submits that it should be calculated to include the life cycle requirements of all protected species, both flora and fauna.
Mr Wear submitted that DPI Water have not carried out proper assessment under the EPA Act and they have also failed to correctly implement any processes or steps taken to reduce the impact of low flows and chemical/nutrient and sediment run off on the protected fauna species of Bucca Bucca creek.
Mr Wear also provided submissions in reply to those submissions provided under section 11(6B) of the Act. He summarised his position as follows:
There are significant negative economic impacts as well as the positive ones.
The planned water usage is understated; any allocation granted must have independently monitored metering.
The economic flow-on is not as significant as the industry would have us believe, the seasonal workers have been exploited.
No Explanation of how this transfer can happen when the original allocation was for the construction of a dam (not irrigation), and how the remaining allocation will be monitored to prevent over extraction.
Contradicting statements from the second applicant about the usage of water from the proposed dam.
The nine submissions opposing the licence demonstrated their interests and raised issues that require consideration as allowed for by section 4A of the Water Act).
DPI Water have failed to consider any cumulative impacts on neighbours, threatened and protected flora and fauna. In addition to this application, there are three other licence transfers currently being assessed - in the Bucca Valley for blueberry development. All with understated water requirements.
[10]
Ray Hallgath on behalf of the Hallgath Family ("the Hallgaths")
The Hallgaths own property at the lower end of the Bucca Bucca creek catchment. The Hallgaths' property fronts about 1.5 kilometres of the Bucca Bucca creek and has been farmed by the Family for more than 80 years.
Their interest is the continued supply of water for domestic / stock purposes and environmental flows in Bucca Bucca creek during extended dry periods. In particular, they are concerned that this application, and others like it, will increase the frequency of low flows in the creek and the frequency of no flow. They are concerned that water, over and above harvestable rights, captured and (retained by dams in the upper catchment or pumping directly from the river during low flows, reduces flows and flow frequencies at the lower end of the catchment.
They contend that once dormant surface water licences are being transferred and activated, jeopardising the Bucca Bucca creek system. The situation is so critical that it raises major concerns of fairness and availability; access to limited water resources in the catchment.
Section 5A comes within the ambit of section 5 that outlines the objectives of the EPA Act. To ignore cumulative impacts would appear to be contrary to the objectives of the EPA Act 1979.
The Hallgaths note that the Tribunal heard evidence from Mr Goodenough that the 3rd order stream through his property immediately downstream of the development never dried up in his lifetime until recently when the two existing dams were deepen and enlarged under Harvestable Rights rules. It was a soakage point to the 3rd order stream. Three paddocks relied upon this source during dry periods.
They contend that the Atwal's proposal is not the only land potentially available for development in the same catchment of this 3rd order stream and that any potential development of these remaining areas in this catchment may be looking at the outcomes of this Application.
It is recommended that the proposed approval conditions be amended as follows:
a. Condition 1 - Amended to require metering of the irrigation pump at the commencement of use (mag flow meters are preferred).
b. Condition 3 - Amended to make it clear how the future dam wall will interact with the 3rd stream.
c. Condition 5 - The width of the buffer needs to be specified along with the plants and planting arrangements.
d. Condition 6A - The Applicant is limited to pumping (extracting) 24.5 ML per annum OR 19 ML per annum over and above harvestable rights of 5.5 ML per annum (Part 8), which ever applies, so that the maximum extraction at the site does not exceed 24.5 ML per annum.
e. Condition 6B - Delete. While this condition is standard in licences, it is unsustainable condition for the Bucca Bucca creek.
f. Condition 6C - Amend to require the Holder to maintain records of water usage and make returns to the DPI annually by 31 August. Modern public management practices and third party accreditation in the private sector are concerned with businesses being openly accountable. Water licences are no different.
g. Condition 6D - New condition. That the volume of the proposed dam be no more than 28.2 ML.
h. Condition 10 - The dam to be fitted with a 50 mm low level pipe that has an orifice at its end to maintain a base flow of 2 litres per minute discharging all the time. The pipe shall be extended to the 3rd order stream and discharge at a location easily viewed from the concrete bridge on Bucca Road.
i. Condition 11 - Standard requirement, which oddly does not require the preparation of a sedimentation plan before construction for assessment of the Office of Water.
[11]
Douglas Binns
Mr Binns is a resident of Bucca Bucca creek catchment area and his property adjoins Bucca Bucca creek. He is also a Senior Scientist in the Science Division of the NSW Office of Environment and Heritage. He has post-graduate qualifications in ecology and 35 years professional experience in ecological science and ecological assessment.
He has a substantial revegetation project in progress on the flat adjacent Bucca Bucca creek and he is concerned that the proposed development, in combination with other similar developments, both recently completed and proposed, will have significant adverse environmental effects on the riparian ecosystems throughout the catchment area. He is concerned that these catchment-wide impacts will also affect the natural values of riparian areas of his property, in particular, his revegetation area.
He submits that the assessment did not adequately consider matters which require assessment under Part 5 and that the recommendation is consequently inappropriate.
The WAMC appears to have assumed that there will be no impact because the development does not require clearing of native vegetation and the water licence is a transfer which does not increase the total water allocation in the catchment area.
However, the latter assumption fails to acknowledge that water extraction appears to have increased greatly in the Bucca Bucca creek catchment during the last several years, due to a large and rapid expansion of intensive irrigated agriculture, a type of land use previously conducted to only a very limited extent in the catchment area.
Legal water extraction in the area may be nominally within the limits set by existing licence entitlements, but actual use appears to have greatly increased due to activation of previously inactive licence entitlements.
The proposed licence allows extraction of up to 68 ML in any one year, subject to other constraints. Maximum extraction is most likely to be required for irrigation during dry periods, when natural flow rates are low and close to critical thresholds for ecosystem function. Thus, highest extraction rates are most likely to occur when they will have the greatest adverse environment impact.
The cumulative impact when combined with other similar intensive irrigation developments, existing and proposed, is potentially very severe.
His concerns over adverse environmental impact relate primarily to reduced water flow during periods of naturally low flow, to the extent that critical thresholds are breached, ecosystem function is potentially degraded and populations of threatened species and protected fauna are reduced. These include Mixophyes iteratus - a frog is listed as Endangered; Kerivoula papuensis - a small insectivorous bat; and a Critically Endangered area of Lowland Rainforest on McCraes Creek.
He stated that his concerns could be substantially ameliorated if two conditions were applied:
the subject development was an off-stream storage which filled only during high flow periods and which allowed normal stream flow during periods of naturally low flow; and
the existing upstream storage was deconstructed so that it was not used to capture all low flows and the harvested water then pumped to the off-stream storage.
Mr Binns accepts that it may be necessary to increase the size of the off-stream storage to compensate for the storage capacity lost under condition 2, but he feels that doing so would provide a net improvement in environmental outcomes compared to the current proposal.
These conditions would satisfy irrigation requirements without adversely affecting natural flows and would not require regulation or monitoring because off-stream storage can be made to be self-regulating.
If it is not feasible to impose these conditions, or alternative conditions with similar outcomes for ameliorating adverse environmental impacts, then he submits that an embargo should be placed on all water licence transfers and new water storage construction until a comprehensive review is conducted of the catchment-wide environmental impacts of the recent expansion and intensification of irrigated agriculture in Bucca Bucca creek catchment.
Mr Binns notes that section 111(4)(b) of the EPA Act requires that impact on threatened species and ecological communities be considered. He submitted that while this has been done for aquatic species listed under the Fisheries Act, it has not been done for amphibian or terrestrial, but stream-dependent, species under the NSW Threatened Species Act 1995. He submitted that impacts on terrestrial species have been ignored or dismissed, apparently because the development does not require clearing of native vegetation. The impact of reduced stream flow on these species has not been considered.
[12]
Frank Eberstadt
Mr Eberstadt is the Manager of the Hoey Moey Backpackers lodge which provides accommodation for travellers who are able to obtain work picking blueberries to fulfil the terms of their working holiday visas.
Mr Eberstadt is supportive of the blueberry industry because of the financial benefits that it brings to his business and the Coffs harbour area more generally.
[13]
Len Goodenough
Mr Goodenough runs a small beef producing farm opposite the Atwals' farm and downstream of proposed dam sites. His family selected the property in the 1800s and he has lived there for 86 years. Bucca Bucca creek flows through his property.
He objects to the granting of this licence. He is concerned about the impact of the Proposed Works on the flow of water to his property. He stated that soak areas on the unnamed water course located on the Atwals' property had previously supplied water to three paddocks on his property. However, since the construction of a large dam by the Atwals on this unnamed water course these three paddocks are now without water.
He is concerned that the consequence of the proposed dam construction is that he will only obtain water on his property following substantial rainfall or possible flood conditions and this will only be after all the Atwals dams have been filled. He feels that his property will become useless without a water supply in his paddocks.
[14]
Gavin & Debbie Howard
Gavin & Debbie Howard own a property that borders Bucca Bucca creek. Their family have lived on and around Bucca for 5 generations.
They are involved with landcare in revegetating and rejuvenating Bucca Bucca creek and are gravely concerned about the health of the creek and for the protected fauna and threatened species relying on the creek as their habitat.
They noted that peak water extraction for blueberry production is during the periods of fruit set and growth between June and October/November and that this also coincides with the breeding season for the platypus. They submitted that allowing construction of dams in the Bucca Bucca creek catchment areas will have an adverse effect on the life cycle of not only the platypus but frogs, fish and other protected fauna.
They ask that consideration be given to the overall picture and cumulative effect as required under Section 5A of the EPA Act. They say that not only will they suffer, but the environment and fellow blueberry farmers downstream will also suffer. They seek a balance that benefits communities, creates profit and minimizes harm to the environment.
[15]
Margaret Payne
While it is not clear from her submission, it appears that Ms Payne's property has frontage to Bucca Bucca creek. She objects to the granting of a licence transfer on the basis that the transfer of the water is not in the best interest of Bucca Bucca creek or its platypus communities.
She submitted that the amount of run-off reaching rivers after rainfall has dramatically declined in many systems due to construction of dams on gullies. At the same time, the availability of substantial natural pools has often been vastly reduced. The capacity of platypus populations to cope with natural and anthropogenic drought has diminished accordingly.
She notes that the Atwals have bought a 34 megalitre water licence from Halls property downstream. She submits that this was a "sleeper" water allocation in that the dam has not been pumped for irrigation allowing the catchment water following rain to flow over the dam and make its way into the Bucca Bucca creek. The Atwals are upstream and their property is in another part of the catchment area, which will impact on a different part of Bucca Bucca creek.
She is concerned that the transfer of the water licence does not include the seller reducing their dam by the 34 megalitres that they have sold. This equates to 68 megalitres being kept out of the creek. Multiply that by the number of water licences that have been sold, and she believes this is compounding the problem of the creek having a very low flow of water.
Ms Payne further submits that as the Atwals are pumping from harvestable rights dams for irrigation any rainfall has to fill these before run-off reaches the unnamed creek. The proposed construction will capture most of the remainder run-off water that should be entering the unnamed creek. When the irrigation is in peak usage through spring and summer, then this dam will be filling the other dams, which then means every time it rains the 3 dams will need to be filled prior to any water going into the unnamed creek.
She disputes the effectiveness of the proposed extra conditions for the licence, including a low flow pipe to ensure there is water going past the dam. She submitted that as there are dams above the proposed dam, the water getting past these dams will be minimal. She believes that if the licence is to be approved, there should be a low flow pipe from each of the 3 dams, and it should be regularly monitored and inspected by an independent party.
The majority of the unnamed creeks which feeds the water from the catchment area into the Bucca Bucca creek are being dammed. This is creating a major problem for the health and flow of the creek as this is the main way the creek gets its water.
She argues that the proposed licence will have significant effect on threatened species, populations or ecological communities, or their habitats, with reference to Platypus who live on Bucca Bucca creek. The platypus population in the Bucca Bucca creek is under severe stress. The proposed transfer of the water licence constitutes a key threatening process to the platypuses in Bucca Bucca creek. Their critical habitat is being adversely affected. The risk of the small amount of run-off from the Atwals blueberry farm to include chemicals is very high and this would be concentrated in the low quantity of water in the creek, adversely affecting the food supply of the platypus.
The low flow of water also prevents the platypus to safely travel along their home range. Any time the platypus has to travel out of water, they are at a greater risk of death from predators including wedge -tailed eagles, carpet pythons, cats, dogs and foxes.
The breeding season of the platypus in spring is the same time the blueberries have their higher water usage. The platypuses require adequate water for breeding. Lack of food and water, causing a dwindling population for future breeding means the local population of platypus are likely to be placed at risk of extinction.
She submitted that the practice of looking at each individual licence separately is not the best practice for the survival of the creek as it is a cumulative effect of keeping water from replenishing the creek.
[16]
Andrew & Carol Wright
Andrew & Carol Wright ("the Wrights") are land owners whose property adjoins the Bucca Bucca creek downstream of the Licence Applicants' property. The licence transfer under consideration changes the extraction point of 34 ML of water from downstream to upstream of their property.
For the past ten years the Wrights have been working on a large revegetation project of the riparian zone along their boundary that adjoins the Bucca Bucca creek. This project is part of developing and maintaining the habitat for the ecological community of the locality.
The Wrights have concerns for the future of this habitat where the flows into Bucca Bucca creek continue to be impeded.
They also have concerns relating to the cumulative impact of existing and proposed developments that require significant extraction of water from Bucca Bucca creek and the unnamed water courses that feed into it. While they understand that the licence transfer under consideration is to allow for the filling of a dam to be constructed, they also noted that the Hall dam has not been modified to reflect the transfer of its water allocation. This is relevant to the cumulative impact issue and the desirability of the transfer of this particular licence.
They submitted that to monitor the expected cumulative impact there is a need to re-establish flow data for Bucca Bucca creek. Therefore, the installation of a flow gauge is essential. There is also a need for the regular monitoring of any conditions to which the licence would be subject.
[17]
Nana Glen LandCare Group Inc.
Nana Glen LandCare is comprised of landholders and residents of the Orara and Bucca Valleys who are concerned with the health of the waterways, the control of invasive weed species, establishing native vegetation in riparian zones, soil erosion and farm land diversity. All these aspects rely on water quality and volume.
The LandCare group has contributed to significant regeneration activities in the Bucca and Orara catchment areas. In the Bucca Valley, there has been significant work for over sixteen years, improving approximately thirty properties, mostly in riparian zones along Bucca Bucca creek and also establishing native vegetation corridors linking properties to each other and to the forests surrounding these properties.
Their interest in this matter is with protecting the environment, specifically in regard to the effect of any increase in water usage in the Bucca catchment (causing decrease in flow of Bucca Bucca creek) - and the impact on ecological communities, which are essential habitats for many native plant and animal species.
Their concerns are:
• the environmental impact of reduced water during periods of significant dryness (between flood times). Any reduction of flow in the catchment has an impact downstream.
• the ability to transfer water licences, without a reduction in water catchment (dam) volume on the original licence holder's property. This may lead to the potential for abuse, through on selling of licences without a reduction of dam capacity validated by the original licence, which is no longer held, (for dams which are constructed to align with water licence allocations).
• the increased storage of water in dams - the increased evaporation through exposures, as opposed to holding the water in the creek
They submit that they are not seeking to reduce the pumping rights of landholders, nor their capacity to operate commercially. Rather, they are recommending sensible controls be installed that mitigate risks associated with uncontrolled and unmonitored pumping by any landowner in the Bucca catchment, creating sustainable environment protection, which relies on water flow at critical times.
They propose the following considerations:
The re-establishment of capturing Bucca Bucca creek flow data. Even this 68ML license will have the potential to impact on natural flows downstream during low flow periods. It is essential to maintain a low flow index as a measure of when pumping should be reduced or stopped.
Reduction or cessation of pumping during low flow periods. This is critical for protection of ecological communities and habitats, without which native plant and animal populations will suffer. All landowners with water rights should be subject to such a condition.
To apply individual flow extraction measures.
To regulate and enforce any applied conditions.
They do not oppose the extraction of water licence allocations during periods of normal or high flow.
[18]
Orara Valley Rivercare Groups Management Committee
The Orara Valley Rivercare Groups Management Committee ("OVRGMC") submitted that the environmental impacts associated with the proposed dam have been inadequately considered; that the required section 5A assessment has not been adequately covered; and that the desirability of the proposed dam for the project and its participants is low.
The OVRGMC's interest is based on 20 years of river rehabilitation works within the Orara catchment, which includes the Bucca Bucca creek catchment. Currently, there are over 120 properties participating in the project, with over 25 from Bucca Bucca creek. Project works are guided by the Orara River Rehabilitation Strategy 2013-2023 adopted by Coffs Harbour City Council, and expert guidance from North Coast Local Land Services and Coffs Harbour Regional Landcare.
The OVRGMC raised a number of issues concerning the assessment of environmental impacts under section 5A of the EPA Act and submits that the assessment was inadequate and contains a number of errors and omissions. The OVRGMC identified issues in regard to
● Land clearing;
● likely impact on protected fauna and flora;
● the cumulative impacts of water extraction on Bucca Bucca creek;
● the likelihood of degradation of the quality of the environment;
● the management of tailwater;
● the cumulative impacts of reduced flows to the Creek on the ecosystem;
● the cumulative impacts of reduced flows to the Creek on the community;
Issues relating to the desirability of the proposed dam
The OVRGMC questions the desirability of the proposed dam for the following reasons:
Volume of water extraction and storage
The volume of water storage and the impacts on downstream flows are considered substantial. The cumulative impacts of the existing harvestable rights dams and large scale dams have reduced the flow of Bucca Bucca creek to zero for approximately 6 months despite regular rainfall in the catchment. The area is not in drought (this area rarely is) however rainfall is naturally variable and has been lower than average in recent months, but not low enough to cause the low creek levels. Reports from multiple landholders who are part of the Orara River Rehabilitation Project indicate the low flows are due to extraction (the creek water levels can drop over night when pumping occurs) and the obstruction of tributary flows through the construction of new dams. These low flows are impacting aquatic life (there are reports of platypus mortalities) and are also impacting local residents who cannot meet their domestic water needs. Some of the senior residents report they have never seen the creek so low. The river styles assessment indicates the low stream gradient and resulting low power make the creek susceptible to over extraction in localised areas.
The failure of the current assessment system to consider the existing storage and water entitlements for the creek is concerning. The 34 megalitre water entitlement transferred to the Atwals comes from an existing entitlement allocated approximately 30 years ago to a landholder who constructed a 108 megalitre dam (an Olympic swimming pool is 2.5ML) for water-skiing. This dam still exists and is not required to be in-filled or reduced in size despite part of the allocation being transferred. This particular property has recently been sold to berry growers who may use the dam for their water needs. This leads to a dangerous over allocation of water within the creek's catchment.
Inequity of water allocations and entitlements
The Committee is concerned that the allocation of surface water entitlements is over so few licences. This produces an inequitable sharing of water and leaves little for any other landholders requiring additional water for their needs. It appears to favour one industry over another. A more equitable distribution of allocations and entitlements is requested.
Economic desirability
The economic benefits of the berry industry were presented at the public hearing as being highly desirable considering the low socio-economic status of Bucca. The economic benefits are in reality far less than stated for the local residents. The berry growers routinely employ backpackers as their primary labour source, and the work is temporary. Their produce is sold directly to national and international markets using their own internal supply chain, again not providing any benefits to the local community. The materials for infrastructure and their agricultural supplies are all sourced from outside the region (confirmed by conversations with local suppliers) again providing less economic benefit for the community than stated.
According to the members of the Interagency Forum on Blueberry Industry Development issues, the Blueberry market has reached oversupply, therefore once the profit margins have reduced, the industry will adjust and many of these properties will stop producing once the plants reach the end of their productive life (at 10 years). At this point the soils are degraded, the high level of land clearing and dam construction associated with this industry results in rural land left in a degraded condition. This type of intensive agriculture is therefore considered short-term in nature, and ideally needs to be managed well (and can be) to prevent any environmental impacts.
Long-term desirability
The legal representative for the Atwals stated that this was just a family wanting to provide for their sons' future. Another landholder who is also a berry producer stated that land values are increasing in the area due to berry growing. Many landholders along Bucca Bucca creek would like to pass on their properties to their children so that they may benefit from the investment of their parents. However, if the creek is dry due to the inequitable and over allocation of water, the value of the land will be damaged and land values will not stay at current levels. Therefore water allocations require better management if the long-term viability of all land along the creek is to be assured.
The OVRGMC recommends the following:
● The environmental assessment based on section 5A of the EPA Act appears to be inadequate and it requests a re-assessment;
● The current allocations of water and the number and volume of both harvestable rights dams and irrigation dams be quantified with respect to the Draft Water Sharing Plan for the Clarence System - Bucca Bucca creek to see if an over-allocation is already occurring;
● If after re-assessment the proposed dam is approved, a significantly reduced volume is recommended to prevent environmental impacts and maintain some level of flow to the Creek;
● If approved, a properly vegetated buffer strip between the dam and the E2 protected riparian zone is required in the licence conditions. Grass is not a sufficient buffer;
● If approved, a low-flow by-pass licence condition is essential and must be designed appropriately prior to dam construction to ensure it is effective in maintaining water flow at critical times;
● the dam design should encourage flows to the creek as a priority, with diversion into the dam at times of high rainfall, essentially providing an off-stream approach to dam design; and
● DPI Water needs to reinstate a flow gauge in Bucca Bucca creek.
[19]
Kamaldeep Singh Clair
Kamaldeep Singh Clair is the CEO of Oz Group Co-op Ltd ("Oz Group"). Oz Group is a co-operative of blueberry growers located in the Coffs harbour district. Mr Singh Clair provided submissions in which he set out details in support of the blueberry industry as a major contributor to the financial development and economic growth of the Coffs Harbour region.
Oz Group is involved in the packing, distribution and marketing of blueberries. The Coffs Harbour region produces around 80% of blueberries grown in Australia and 105 local growers supply fruit to the co-operative for packing and marketing on their behalf. Oz Group growers produce 35% of the blueberries produced in Australia and it estimates that the blueberry industry brings over 160 million dollars of business to the region with cumulative production growing at the rate of 25%-30% for last 5 years.
Apart from packing operations, Oz Group also runs a rural supplies store for its growers.
Mr Singh Clair stated that Oz Group and its growers focus is not only to grow more berries in the region but also to make the industry as sustainable and environmentally friendly as possible. It runs training and workshops for its growers for responsible use of chemicals and minimise wastage of water and has two full time blueberries experts working with growers. They aim to have this industry remain sustainable for the long term; and to provide long term employment and benefits to the families in this region.
He submits that this industry has the potential to reduce high youth unemployment in the area and it is developing and creating more skilled positions in this area.
[20]
Phillip Wilk
Mr Wilk is an Industry Development Officer, Blueberries with the Wollongbar Primary Industries Institute - a research centre for NSW Department of Primary Industries. His submission also concerns the value of the industry to the local economy.
He submitted that the Australian Blueberry industry contributes from $160 to $170M directly to the NSW state economy. There is a further multiplier effect as the farms employ large numbers of pickers each season. This multiplier effect would equate to approximately $500M to $800M to the NSW state economy. The industry is growing at approximately 10% per year.
The peak Industry body, the Australian Blueberry growers association, is working hard and investing levy money in regaining access to the Japanese market and in gaining access to the Chinese and Korean markets. Gaining access to these markets would create a huge demand and would mean that further expansion in the region will be inevitable.
[21]
The Ministerial Corporation's submissions
Ms Keane, the solicitor for the Ministerial Corporation, appeared at the public hearing and presented submissions in relation to the desirability of granting the licence. Ms Keane also provided a response to the submissions that were provided pursuant to section 11(6B) of the Act.
The Ministerial Corporation has recommended that it would be open to the Tribunal to find that the proposed conditions adequately mitigate against the risks that were identified by the objectors; and that the provisions of the Act, and the enforcement provisions contained in Chapter 7 of the Water Management Act 2000 are likely to act as a sufficient deterrent against risks of overuse of water.
As part of its assessment of the licence application the Ministerial Corporation conducted an inspection of the property on which the Proposed Works are to be situated. It noted that:
a. the Proposed Works will not divert flow of the watercourse other than by bywash,
b. any bywash flows will return to the watercourse within the Property, and
c. no native animals were observed on or around the site.
The Assessment Sheet for the Ministerial Corporation's assessment of the licence application noted that:
a. There is no existence of "protected matter" as defined by the Environment Protection and Biodiversity Conservation Act 1999 (Cth) in or in close proximity to the site of the Proposed Works;
b. There were no recorded aboriginal sites, declared aboriginal places or heritage sites in or near the site of the Proposed Works;
c. The aquatic habitat assessment concludes that there were no likely impacts on vulnerable or endangered species, endangered populations or critically endangered, endangered or vulnerable ecological communities, or threatening process identified. Any negative impact on the eastern freshwater cod, identified as a potential threatened species, can be mitigated by requiring a pipe bypass to guard against low flow and pool riffle connectivity;
d. There was no expected cumulative environmental effect with other existing or likely future activities;
e. Erosion and sediment controls may be required to ensure minimal impact on the quality of the environment; and
f. No contaminated sites were identified
An assessment of threatened fauna identified a list of seven potential threatened species within 1000 metres of the site of the Proposed Works. However, it was concluded that there is no impact on the threatened species as the Proposed Works do not require clearing of native vegetation.
As a result of the above assessments it was recommended that the Licence Application be approved subject to specified conditions and the withdrawal of the outstanding objection.
Ms Keane made submissions in relation to the factors to which the Tribunal is required to have due regard in undertaking its assessment. These include the impact that the Tribunal's determination or recommendation could or might have:
i. on the allocation of water resources at a local, regional and State-wide level, and
ii. on other persons who are entitled to take and use water (apart from those to whom the inquiry or appeal relates), and
iii. on the state of water resources, and on the state of environment generally, at a local, regional and State-wide level, and
iv. in relation to the management, protection and enhancement of the State's water resources.
Impact on the allocation of water resources at a local, regional and State-wide level
The Licence Application is consequential to the Transfer of Water Rights which reduces the water allocated to Mr Hall from 69 megalitres to 35 megalitres per year. Ms Keane submitted that, as the water concerned was available for use by Mr Hall prior to the Licence Application, the overall impact on the allocation of water resources is minimal.
It would be open to the Tribunal to find that the granting of the Licence represents a negligible impact on the water resources at a local, regional and State-wide level, as the water rights attaching to the Licence are merely transferred from one licence holder to another.
Impact on other persons who are entitled to take and use water (apart from those to whom the inquiry or appeal relates)
No other impacted persons have been identified as the Licence relates to a transfer of an existing water allocation.
It would be open to the Tribunal to find that the granting of the Licence will have no impact, or minimal impact at the most, on other persons entitled to take or use the water.
Impact on the state of water resources, and on the state of the environment generally, at a local, regional and State-wide level
On the basis of the assessment conclusions and because the Licence relates to a transfer of an existing water allocation, it is open to the Tribunal to find that there is a minimal impact on the state of water resources and on the state of the environment generally, at a local, regional and State-wide level.
Impact in relation to the management, protection and enhancement of the State's water resources
Should the Tribunal find in favour of granting the Licence, the Ministerial Corporation proposes that the eleven conditions contained in the Conditions Statement be imposed on the Licence. It also submitted that it is open to the Tribunal to impose a further condition to ensure that the relevant pipe to be constructed bypasses low flowing water.
It proposed the following:
"(12) When a flow is entering the storage of the dam the pipe referred to in condition 10 shall be so operated as to maintain a flow in the watercourse downstream of the said dam equivalent to the flow entering the storage of the dam for the time being or the capacity of the said pipe, whichever is the lesser."
Ms Keane also noted that a draft Water Sharing Plan ("WSP") for the Clarence Unregulated and Alluvial Water Sources was being developed. The WSP commenced on 1 July 2016. The rules for the WSP are based on the volume of water extracted relative to stream flows, risk to environmental values and the level of social and economic dependence on water extracted.
Ms Keane submitted that, given the introduction of the WSP and because the Licence relates to a transfer of an existing water allocation, it is open to the Tribunal to find that there is a minimal impact on the management, protection and enhancement of the State's water resources.
In response to the objections and submissions raised by the Objectors, Ms Keane submitted that it is open to the Tribunal to find that the conditions imposed on the licence adequately address the concerns.
In relation to the submission that the capacity of the dam constructed by Mr Hall should be reduced in light of the reduction in his water allocation after the transfer of 34 megalitres of surface water rights to the Licence Applicants, Ms Keane submitted that the capacity of Mr Hall's dam is irrelevant to the Tribunal's consideration of whether it is desirable to grant the Licence Application. She argued that Mr Hall is not a party to these proceedings and his water entitlements and associated works are not under review in these proceedings. Upon completion of the Transfer of Water Rights, Mr Hall's allocation of water would be reduced to 35 megalitres. Ms Keane referred to the enforcement provisions available under the Act and the Water Management Act 2000 and noted that it is an offence under section 17B(1) of the Act for a licence holder to contravene the terms, limitations or conditions of the licence, including taking more water than is prescribed by the conditions. She submitted that any failure to comply with licence conditions would be a matter for appropriate investigation and possible enforcement action, which would include issuing directions, penalty infringement notices, civil or criminal proceedings and cancellation of licence.
[22]
Ministerial Corporation's Response to the Section 11(6B) Submissions
The Ministerial Corporation provided submissions in response to the key issues raised in the submissions of the Objectors; and the additional or amended conditions proposed by the Objectors. Ms Keane identified the key issues as:
Whether the Proposed Works are likely to have an adverse cumulative environmental effect with other existing or likely future activities;
Whether the Proposed Works are likely to have an adverse impact on the following fauna, flora or ecosystems in the region:
• the platypus;
• the mixophyes iterates;
• the guppies;
• the riparian vegetation downstream of the Proposed Works;
• McCraes Creek;
Whether the capacity of Kenneth Hall's dam is a relevant consideration;
Whether Mr Goodenough's water entitlements are adversely affected by the granting of the Licence.
Whether the Proposed Works are likely to have an adverse cumulative environmental effect with other existing or likely future activities
Ms Keane accepts that the cumulative environmental effect of the Proposed Works with other existing or likely future activities is a relevant consideration for the Tribunal as it was for the Ministerial Corporation.
The Ministerial Corporation considered that there was no expected cumulative environmental effect with other existing or likely future activities. This conclusion was reached on the basis that:
• the Proposed Works would collect water that was transferred from an existing allocation of water. The existing allocation of water belongs to Mr Hall who collects the water from Finberg Creek - a creek, which, like the Unnamed Watercourse, eventually flows into Bucca Bucca creek. Consequently, the net cumulative effect on the water flow into Bucca Bucca creek is nil, regardless of whether the water is being extracted by the Second Applicants or by Mr Hall.
• the proposed Condition 10 requiring the installation of a low flow bypass pipe with a diameter of no less than 50mm, would maintain a minimum level of flow in the watercourse and minimise the impact of the Proposed Works on water flow.
In May 2016, DPI Water conducted a hydrological analysis to mathematically identify the water flow impact of the Proposed Works. The hydrological analysis report concluded:
The dam will have a minimal detrimental impact on median and mean annual flows based on the percentage change in flows ... Furthermore, the dam will have a minimal detrimental impact on the flow yield direct from natural catchment. A low flow pipe should be installed that delivers a minimum of 0.66 ML/week.
The hydrological analysis report estimated:
• a 7.34% change in median flows at the dam site;
• a 6.2% change in mean flows at the dam site; and
• a 16.4% change in the volume of water flow the flow yield direct from natural catchment.
Ms Keane submitted that the hydrological analysis report does not take into account the effect of a low flow bypass pipe on the water flow. Therefore, she submitted, the imposition of Condition 10 will mean that the impact of the Proposed Works on water flow is even lower than what the hydrological analysis report estimated.
Ms Keane further submitted that while clause 228(2)(o) of the EPA Regulations requires the consideration of the cumulative impact of the Proposed Works with likely future activities, this does not require or permit the Tribunal to take into account entirely hypothetical matters such as the potential for other blueberry farmers to also construct dams in the local region. The intended purpose of clause 228(2)(o) is for consideration to be given to the cumulative environmental effect of existing and likely future activities that are associated with the Proposed Works alone.
Ms Keane submitted that the question for the Tribunal focuses on the impact of the specific activities in question and does not permit considerations of the potential impact of an entire industry or range of activities. She submitted that it is untenable to consider the environmental impact of potential licence applications in the future from an unknown number of blueberry farmers which the Ministerial Corporation has not received, assessed or approved. Even if the Tribunal considers that potential applications for licences by blueberry farmers are a relevant consideration, the Tribunal is not presented with any reliable evidence as to the adverse environmental impact of these future potential licences.
Whether the Proposed Works is likely to have an adverse impact any flora, fauna or ecosystems in the region
a) The Platypus
Ms Keane accepts that the platypus is a protected fauna under the National Parks and Wildlife Act 1974 and that any adverse impact on this species is a relevant consideration for the Tribunal. However, she submitted that the Tribunal has not been presented with any reliable evidence as to the adverse impact that the Proposed Works would have on any platypus habitat. The Ministerial Corporation contends that because of the minimal impact of the Proposed Works on the water flow, any impact on platypus in the region is also likely to be minimal.
b) The mixophyes iterates
Ms Keane accepts that the frog species identified as mixophyes iterates is a threatened species and that any adverse impact on this species is a relevant consideration for the Tribunal. However, the Ministerial Corporation concluded that the Proposed Works is not likely to result in a direct impact on threated species. Further, she submitted that the Tribunal has not been presented with any reliable evidence as to the adverse impact that the Proposed Works would have on any mixophyes iterates habitat. The Ministerial Corporation contends that because of the minimal impact of the Proposed Works on the water flow, any impact on mixophyes iterates habitat in the region is also likely to be minimal.
c) The guppies
Ms Keane submitted that the aquatic habitat assessment conducted by the Ministerial Corporation did not identify guppies as a vulnerable, endangered, protected or threatened species in the Unnamed Watercourse. Further, the Tribunal has not been presented with any reliable evidence as to the adverse impact that the Proposed Works would have on guppies and whether guppies live in the Unnamed Watercourse at all. Fisheries NSW confirmed that the Unnamed Watercourse is not a key fish habitat as it is a second order stream. For these reasons, the Ministerial Corporation contends that the Proposed Works is unlikely to have an impact on guppies in the local region.
d) The riparian vegetation downstream of the Proposed Works
Ms Keane submitted that the Tribunal has not been presented with any reliable evidence as to the adverse downstream impact that the Proposed Works would have on riparian vegetation. The Ministerial Corporation contends that because of the minimal impact of the Proposed Works on the water flow, any impact on riparian vegetation downstream of the Proposed Works is also likely to be minimal.
e) McCraes Creek
Ms Keane submitted that the Tribunal has not been presented with any reliable evidence that an endangered ecological community exists on McCraes Creek. In any event, the Ministerial Corporation contends that McCraes Creek is upstream of the location of the Proposed Works and is therefore not affected by the Proposed Works.
Whether the capacity of Mr Kenneth Hall's dam is a relevant consideration for the Tribunal
As noted above, the Ministerial Corporation submits that the capacity of Mr Hall's existing dam is an irrelevant consideration for the Tribunal in determining the desirability of granting a licence for the Proposed Works.
Whether Mr Goodenough's water entitlements are sufficiently affected by the granting of the Licence
The Ministerial Corporation submits that there is a minimal impact on Mr Goodenough's ability to access his water entitlements for the following reasons:
Mr Goodenough's property is serviced by a 3rd order stream, in addition to the Unnamed Watercourse. Any impact on the water flow of the Unnamed Watercourse is negated by Mr Goodenough's ability to collect water from the 3rd order stream.
Given the minimal impact of the Proposed Works on the water flow, any impact on Mr. Goodenough's ability to access his water entitlements is also likely to be minimal.
[23]
Discussion
In these reasons I have referred to specific material and submissions relied on by each of the parties and other interested persons. However I do not refer to all of the material that has been filed. With the exception of the section 11(6B) submissions that I have referred to above, I have had regard to all of the filed material, including material that I do not refer to in these reasons.
The section 11(6B) submissions have raised many issues that are relevant consideration for the Tribunal. I accept that many of those who live and work along and in close proximity to the Bucca Bucca creek have been in a position to observe the creek over a long period of time and are well placed to make observations about the health of the creek. The knowledge of individuals who have spent their whole lives in the area such as by Mr Goodenough, Mr Wear and Gavin and Debbie Howard as well as the combined knowledge of the many individuals represented by the OVRGMC and the LandCare group is an invaluable resource.
I have referred above to many of the issues that these objectors have raised and the bases of their concerns. While I accept that for the most part these are legitimate concerns, the material in support is anecdotal. For example, Mr Goodenough has indicated that the 3rd order stream that passes through his property had never dried up in his lifetime but it is now without water. He attributes this change to dam construction that has already occurred and he is concerned about the impact of further development.
Similar observations have been made regarding the health of the Bucca Bucca creek and the potential impact on flora and fauna such as the platypus and Mixophyes iterates and an area of Lowland Rainforest on McCraes Creek.
These are legitimate concerns. However, there is no data against which the observed changes can be assessed to determine the actual causes of the changes that have been observed.
I have had the benefit of the report from an ecologist, Mr Carr, who has specifically addressed many of the concerns that have been raised. I have also been referred to the Water Sharing Plan for the Clarence Unregulated and Alluvial Water Sources which is applicable to the Bucca Bucca creek and links the volume of water extracted to stream flows and the risk to environmental values. The water sharing plan is intended to ensure the water source is sustainable in the long-term.
This material provides a basis on which the impact of development can be monitored in the future and where risk are identified on the basis of empirical data, measures can be taken to address those risks. This will allow more accurate consideration of the cumulative impact on the protected flora and fauna.
Clause 228(2)(o) of the EPA Regulations requires that any cumulative environmental effect with other existing or likely future activities be taken into consideration in the assessment of licence applications. However, I agree with Ms Keane's submission that clause 228(2)(o) does not require or permit the Tribunal to take into account entirely hypothetical matters such as the potential for other blueberry farmers to also construct dams in the local region. The impact of any such proposed developments will need to be assessed at the time that those proposals are presented and the opportunity will be available for objections to be made at that time. This is not the appropriate forum to raise those concerns.
Similarly, while I agree that there is merit in Mr Binns' suggestion for a comprehensive review of the environmental impacts of the recent expansion and intensification of irrigated agriculture in Bucca Bucca creek catchment, his suggestion that an embargo be placed on all water licence transfers and new water storage construction until such a review takes place is outside the scope of this application.
As has been noted, the application before me involves the transfer of an existing water allocation. The Licence Application does not concern any new allocation of water from the Bucca Bucca creek Catchment. The proposal is to transfer part of Mr Hall's allocation. It concerns a transfer within the same catchment area. I accept that Mr Hall's allocation is based on a different part of the catchment area to the present application. However, there is no net change to the allocation of water that can be taken from the Bucca Bucca creek catchment.
Nevertheless, concern has been raised that the actual amount of water taken from the Bucca Bucca creek catchment will increase because Mr Hall's water allocation was a "sleeper" allocation i.e. that the dam has not been pumped for irrigation. The Atwals have purchased 34 megalitre of Mr Hall's allocation for irrigation use and therefore the actual amount of water taken from the Bucca Bucca creek catchment will increase by that amount. Concern has also been raised that there is no provision for reduction in the capacity of Mr Hall's dam to reflect the transfer of its water allocation.
I have no evidence to confirm the assertion that Mr Hall's water allocation was a "sleeper" allocation; nor is this disputed. However, it seems that Mr Hall's property was sold in December 2015 and the purchasers have commenced blueberry farming on that property.
There does not seem to be any dispute that if the Licence Applicants' transfer application is denied, the 34 megalitre allocation would be retained for use on Mr Hall's property. Further, it is probable that the water would be available for use in blueberry farming and through similar works as that sought by the Licence Applicant.
For this reason, it is my view that the concerns that have been raised would not by addressed if the Licence Applicants' transfer application is denied. In fact, in light of the fact that the allocation has already been approved for use on Mr Hall's property, the Tribunal has no power to address the concerns that have been raised by imposing conditions on that use.
I agree with Ms Keane that the capacity of Mr Hall's dam and his water entitlements are not under review in these proceedings. The enforcement provisions available under the Act and the Water Management Act 2000 provide an avenue to address issues relating to that entitlement.
In my view, the appropriate response is to allow the transfer of 34 megalitres of surface water per year from Mr Hall's allocation to the Licence Applicants and to impose conditions that are designed to ensure that the concerns that have been raised are addressed.
As has been noted above, eleven licence conditions were proposed by the Ministerial Corporation at the time of the original determination. A further condition has subsequently been proposed in light of the section 11(6B) submissions.
Mr Wear and several others have expressed concerned that the proposed licence conditions will not be adequate to address the issues that have been raised. I do not share that concern. In my view, the combination of the proposed conditions, the WSP and the regulatory powers provided for by the legislation should be sufficient to ensure that the impact of the proposed development on the rate of flow of Bucca Bucca creek and associated issues is minimised. I am also satisfied that the measures put in place by the Licence Applicants should be sufficient to address the concerns raised in relation to the use of chemicals and run-off.
Nevertheless, I propose that there be regular monitoring of compliance with the conditions to which the licence would be subject and that those conditions be reviewed after a period of two years in order to assess their effectiveness.
In these circumstances, it is my view that the proposed grant of a surface water licence in respect of the construction of a dam and a pump on the Property is desirable. The grant should be subject to the twelve conditions proposed by the Ministerial Corporation and the additional condition that those conditions be reviewed after a period of two years in order to assess their effectiveness in limiting the environmental impact of the Proposed Works.
[24]
Orders
The Tribunal determines pursuant to section 11(6C)(a) of the Water Act 1912 that a surface water licence should be granted to the Applicants in respect of the construction of a dam and a pump on the property at Lot 86 DP 134693 Parish Moonee County Fitzroy for a period of five years subject to the conditions set out in paragraphs 14 and 149 of these reasons and the additional requirement that those conditions be reviewed after a period of two years in order to assess their effectiveness in limiting the environmental impact of the proposed construction of a dam and a pump on the property.
[25]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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.
Decision last updated: 12 January 2017