Victorian town ordered to pay $90,000 after losing bottled water battle with farmer
Residents from a tiny Victorian town have been ordered to pay $90,000 in legal costs after they launched a failed bid to prevent a farmer from extracting and selling groundwater as bottled springwater to a subsidiary of the Japanese beverage giant Asahi.
The supreme court of Victoria made the costs ruling last week, four months after a residents association in the town of Stanley, which has a population of 400, was denied leave to appeal previous decisions allowing the water extraction.
The Stanley Rural Community Inc, which had 41 people attend its last meeting, objected to a licence that allowed Tim Carey, trading as Stanley Pastoral Pty Ltd, to extract 19ML of groundwater a year from a bore on his property and truck the filtered water to the Mountain H2O plant in Albury to be bottled as springwater.
Mountain H20 is owned by Asahi Beverages Australia, a subsidiary of Asahi.
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The court of appeal upheld previous rulings that found that water mining – pumping water for the purpose of selling it elsewhere – was not explicitly forbidden in local planning provisions and was allowed under the Water Act 1989.
Ed Tyrie, chairman of Stanley Rural Community Inc, called on parliament to change regulations to prevent water mining in future.
“It fails us and all Victorians when a private company is lawfully allowed to take groundwater and sell it for use as bottled water at a significant wholesale price to a multinational corporation, Asahi Beverages-Schweppes, without any measurable, meaningful dividend for the environment and for our community,” Tyrie said in a statement following the costs ruling.
The latest court ruling comes as a second farmer, Boyd Collins, has threatened to take a similar case to the Victorian civil appeals tribunal (VCAT) after he was denied planning permission by Indigo shire council to run a similar 19ML water mining operation on his property, also in Stanley.
The legal stoush dates back to 2013, when Carey bought a 16ha property near Stanley that came with a 50 megalitre irrigation and domestic water use licence for a nearby creek.
Carey applied to local water authority Goulburn Murray Water to vary the licence to allow him to extract 19ML of that allocation through groundwater for “industrial or commercial use”.
The permit application specified that the water would be extracted then filtered, stored in tanks and onsold in bulk using water tankers.
Carey then sought and was denied planning permission from Indigo shire council to build two storage tanks and filtration equipment on the property.
He successfully challenged that refusal in VCAT, which granted the planning permission in 2015.
Stanley residents appealed that decision to a single judge in the supreme court, who also found in favour of Carey, before applying for leave to appeal the decision in January 2017, raising $20,000 through crowdfunding as a surety to cover Carey’s costs.
Leave to appeal was denied in December.
Residents had argued that allowing water mining would deplete the local groundwater resource, an argument that was supported by expert witness, hydrologist Peter Dahlhaus.
Unlike surface water irrigation licences in the Ovens river catchment, which are subject to strict rostering during the summer months, the holders of groundwater licences are allowed to extract their full allocation year-round.
Drawing the full allocation from the bore over the summer months, Dahlhaus said, “will almost certainly result in a reduction in the irrigation water available for agriculture, since there is clear connection between the groundwater and surface water in the Cue Springs area”.
“The reduction will be particularly felt by the downstream surface water users in dry years,” he said.
The court of appeal upheld the decision of both VCAT and the trial judge that unless a planning scheme explicitly limited or qualified water use, then water rights remained under the purview of the Water Act and the relevant water authority, and could not be challenged in VCAT.