Springbrook groundwater case

This case study involves an appeal against refusal of an application for commercial groundwater extraction in the midst of World Heritage areas on the Springbrook plateau in southeast Queensland.

The appeal was ultimately allowed in part, granting approval for reduce extraction subject to strict conditions for monitoring.

Background

In April 2018 Hoffmann Drilling Pty Ltd Superannuation Fund (applicant) applied to the Gold Coast City Council (GCCC) under the Planning Act 2016 (Qld) for a material change of use (MCU) to extract groundwater on a commercial basis at 263 Repeater Station Road, Springbrook, Queensland.

The extracted groundwater is proposed to be trucked from the Springbrook Plateau for use by water bottling industries on the Gold Coast.

The original application was for an “undefined use (commercial groundwater extraction)” but, when it was publicly notified, public submissions identified that the application for an “undefined use” was for the wrong use as it met the definition of “extractive industry” under the planning scheme, the Gold Coast City Plan.

GCCC accepted that the public submissions were correct, that the wrong use had been identified in the application and that, therefore, the application was not properly made.

In January 2019 GCCC wrote to the applicant requesting that it amend its application to apply for an MCU for “extractive industry (commercial groundwater extraction)” and return to the confirmation notice stage of the development assessment (DA) process.

In May 2019 the applicant applied to amend its application to apply for an MCU for “extractive industry (commercial groundwater extraction)”, relying on the same reports and amended DA forms as its original application.

The amended application was publicly notified and GCCC received hundreds of public submissions opposed to it.

In December 2019 the GCCC unanimously refused the amended application. The Council’s later List of Matters relied upon as grounds for refusal included that “the cumulative impacts of the proposed extraction with other groundwater extraction operations and climate change” on the surrounding matters of environmental significance.

In January 2020 the applicant appealed the Council’s refusal of its application to the Planning and Environment Court (the P&E Court).

The Australian Rainforest Conservation Society Inc (ARCS), Gecko and three Springbrook residents have elected to join the appeal as Co-Respondents due to concerns about the impacts of the development, including impacts to the outstanding universal value of the nearby Springbrook National Park, which is part of the Gondwana Rainforests of Australia World Heritage Area (Gondwana WHA) inscribed on the World Heritage List under the World Heritage Convention.

The development is proposed within the catchment of Boy-Ull Creek, approximately 1000m upstream from Twin Falls within Springbrook National Park, which is part of the World Heritage Area.

Numerous groundwater springs and seeps are located within 300m (horizontally) and at a similar height above sea level as the proposed groundwater extraction bores (which will draw groundwater from approximately 80m depth on the ridgeline).

In addition to trees and other plants, many animal species depend on groundwater springs and seeps maintaining soil moisture and streamflow during drier times.

One such species found at Springbrook is the pouched frog (Assa darlingtoni), or hip pocket frog, a small (<3cm), terrestrial frog found in rainforests in mountain areas.

The pouched frog hides under logs, rocks, and leaf litter in rainforests and adjacent wet sclerophyll forests. Eggs are laid on the land (under decomposing logs, rock or leaf litter) as the tadpoles do not need water for metamorphosis. Breeding takes place during spring and summer. Both male and female frogs guard the nest of eggs and the male carries the tadpoles in the pouch once they have hatched. The tadpoles will reside in the pouch until they have morphed.

Groundwater extraction that reduces soil moisture in the surrounding areas of rainforest will, therefore, impact on species like the pouched frog.

Another species potentially affected in a similar way is the newly discovered Philoria knowlesi, which breeds in spring and early summer in small bogs and along the banks of mountain streams in the Gondwana WHA.

Legal context of the appeal

In assessing the proposed development, the P&E Court applied the statutory framework created by the Planning Act 2016 (Qld) (PA). Sections 45 and 60 are particularly important in this statutory framework for the present appeal.

The proposed groundwater extraction was categorised as impact assessable under the Gold Coast planning scheme, City Plan (version 6), therefore, in applying section 60(3) of the PA, the Court must carry out an impact assessment as defined in section 45 of the Act. This, relevantly, requires the Court to assess the proposed development against:

• the assessment benchmarks stated in the planning scheme; and
• any other relevant matter (e.g. a planning need), other than a person’s personal circumstances, financial or otherwise.

The P&E Court has considered this test in numerous cases, including in relation to the Gold Coast City Plan.

A useful recent case involving the Gold Coast City Plan and assessment of impacts on matters of environmental significance is GTH Resorts No 5 Pty Ltd v Gold Coast City Council [2020] QPEC 20 (Williamson QC DCJ).

In that case, Williamson QC DCJ noted, at [103]-[104], that the “land’s strategic location in an ecological sense” for connectivity of habitat was an important consideration. His Honour also rejected, at [107], the assumption that “vegetation is expendable where reserves are high” and that “City Plan provides no support for this view.”

The legal context of the appeal also included that the Queensland Government has temporarily banned new commercial groundwater bores being drilled on Tamborine Mountain and Springbrook. The banned was imposed by a moratorium under s 30 of the Water Act 2000 (Qld). It commenced on 6 March 2020 and has been extended.

Maintaining World Heritage values and integrity

ARCS argued that the potential impacts of the proposed development on the surrounding Gondwana Rainforests of Australia World Heritage Area and that approval would not be consistent with Australia’s obligations under the World Heritage Convention.

The integrity of a World Heritage property is an important aspect of its listing under the Convention. The World Heritage Committee has defined “integrity” in paragraph 88 of the Operational Guidelines for the the Implementation of the World Heritage Convention as:

“Integrity is a measure of the wholeness and intactness of the natural and/or cultural heritage and its attributes. Examining the conditions of integrity, therefore requires assessing the extent to which the property:
a) includes all elements necessary to express its Outstanding Universal Value;
b) is of adequate size to ensure the complete representation of the features and processes which convey the property’s significance;
c) suffers from adverse effects of development and/or neglect.”

If the proposed development will cause a loss of connectivity and habitat between World Heritage areas, it will damage the integrity of the World Heritage areas and affect its Outstanding Universal Values.

The impacts on the integrity of the World Heritage area need to be assessed in the context of the cumulative impacts of climate change. Many Australian ecosystems, including its World Heritage rainforest areas, are already being severely impacted by climate change. The cumulative impacts of climate change on these ecosystems include increased temperatures, reduced rainfall driving deeper winter droughts, and dramatically increased fire risk.

Impacts of climate change on bushfire risk

The Council and ARCS identified the list of issues for the appeal to include in relation to groundwater that:

“It has not been demonstrated that the proposed extraction will not cause unacceptable environmental impacts, including when considering the cumulative impacts of the proposed extraction with other groundwater extraction operations and climate change.”

At pre-trial hearing on 15 February 2021, Judge Kefford ruled that the following statements by Professor Brendan Mackay (BM) in the Climate Change Joint Expert Report (JER) were irrelevant because ARCS had not identified bushfire as an issue (footnotes omitted):

[16] BM says that climate change will also increase fire risk and this is a relevant consideration for this development application. A related factor is that by maintaining access to groundwater during the dry season, the Springbrook vegetation is able to stay greener and moister, thereby reducing the risk of fire. This is because it is the dryness of fuel not the amount of fuel that controls fire risk. There has been an increase in dangerous fire weather since the 1970’s due to climate change and projections point to this trend continuing as a consequence of declining reliability in winter rain and dramatically increasing spring temperatures. It follows that maintaining the hydro-ecological connections between the groundwater and phreatophytic vegetation also reduces fire risk during extreme fire weather conditions, for example, the wildfires of 2019-2020 following a deep winter drought and early, hot spring. These are the preconditions for extreme and catastrophic wildfires, which are projected to increase in the coming decades making conventional approaches to fire risk management less effective, as noted by the report of the 2020 Royal Commissions into Royal Commission into National Natural Disaster Arrangements. Note also that the unprecedented 2019-2020 bushfires burnt some 2,114 ha of rainforest in the neighbouring Lamington National Park, illustrating how significantly dangerous fire weather has increased.

[17] BM says that the proposed commercial groundwater extraction could therefore increase the flammability of the forest in the surrounding World Heritage areas and national parks during times of dangerous fire weather by increasing the dryness of the forest vegetation as the consequence of reduced ecosystem access to water resources. The extent of these impacts caused by the development depends on the extent of the impacts it causes to groundwater both on the site and in the surrounding area (which is a matter for the groundwater experts) and the future extent of climate change (which is expected to increase over time subject to the level of global mitigation action).

As a consequence of the Court’s ruling and striking out these paragraphs from the Climate Change JER (compare the original and redacted versions), the proposed development was assessed at trial without consideration of the impacts of climate change on increased bushfire risk in the area.

This ruling is an example of how procedural issues often have important practical consequences for environmental litigation.

Hearing of the appeal

The appeal was originally listed for a 10-day hearing from 14-21 February 2022; however, on 15 February 2022 the hearing was adjourned due to delivery by the Appellant at 10.30pm on the second last working day before the hearing of an affidavit over 4,000 pages long containing substantial new information about groundwater monitoring on the site (the Hair Affidavit).

A further hearing of the appeal occurred in late February and early March 2023 in the P&E Court in Brisbane.

The hearing concluded on 7 March 2023 after the GCCC agreed to the appeal being allowed on the basis of the rate of groundwater extraction being reduced from 16 megalitres (ML) per year, to 8 ML/yr and conditions formulated by the parties and experts for:

1. Baseline monitoring prior to groundwater extraction occurring;
2. Ongoing monitoring for the duration of the use in accordance with particular criteria;
3. The rate of groundwater extraction must be reduced if particular criteria are met, which will include criteria that requires changes to the rate of extaction depending on seasonal variation in rainfall;
4. Groundwater extraction to cease if particular criteria are met.

After GCCC agreed to this outcome, ARCS and the other members of the community who were co-respondents by election in the case, were left exposed to costs being awarded against them if they continued. Given the grave financial risks, they agreed to settle the appeal on the same basis as GCCC.

The parties negotiated the conditions of approval and the appeal was ultimately allowed, in part, subject to the conditions agreed by the parties.

Conditions agreed by consent

In summary, parties argeed to a set of conditions for approval of 8ML of groundwater extraction. The conditions included:

• additional monitoring bores near the groundwater springs to the east of the production bores
• monitoring flow from the groundwater springs on the site using a V notch weir installed beneath the springs
• all monitoring bores be fitted with telemetry and data uploaded to a website for real-time monitoring
• 3 pumping tests during dry months to better understand the aquifer properties on the site
• a 12-month baseline monitoring period prior to commercial groundwater extraction commencing to establish baseline values for a range of groundwater and ecological parameters (see condition 11), including for:
  • groundwater levels in the network of monitoring bores on the site
  • springflow at the V notch weir installed beneath the springs
  • soil moisture in a transect running west-east across the site
  • Water stress monitoring using remote sensing / satellite dataEnvironmental DNA (eDNA)
  • Sap flow and stem diameter monitoring
  • flora within 3 permanent vegetation monitoring plots on the site
  • targeted groundwater dependent fauna such as the Tusked Frog (Adelotus brevis)
• after the baseline monitoring period, approval of an Operational monitoring management plan for continued monitoring of the groundwater and ecological parameters monitored during the baseline period (see condition 12)
• cessation triggers to be determined from the baseline monitoring period which, if reached, will require pumping to cease until recovery of the relevant parameters (see condition 13)