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An EAP produced : in accordance with the 2002 Guidelines is not generally intended to apply to

upstream property owners as

it is anticipated that all of the land either partially or completely inundated as a consequence of a flood

event would likely have been compulsorily acquired and would have been included in the application

and approval required under the Integrated Planning Act 1997(IPA).

Development Approval to Raise Dam Unlawful: Not a Properly Made Application

This leads to consideration as to how upstream landowners are protected as a

Consequence of inundation caused by an emergency flood event arising from a dam failure.

According to the 2002 Guidelines, an application for a development approval for a material change of

use (MCU) was required under the IPA for the elevation of the dam wall where it increased storage

Capacity by greater than 10%. That percentage identifies, in effect, the extent of the materialchange to

the intensity or scale of the use of the premises under IPA namely, to the storage capacity of the dam,

that enlivens the requirement for a development approval.

The Hervey Bay City Council transitional planning scheme gazetted on 29 March 1996

the definition of Major Public Utility was applicable to "an undertaking for the supply of water, hydraulic

power, electricity or gas for the provision of sewerage or drainage services including a pumping station"

when undertaken by, amongst others, a local authority or statutory authority.26 September 2013

It is understand that this was the applicable planning scheme in force at the time the combined

application for a MCU and operational works occurred.

The area of land inundated for the purpose of the undertaking for the supply of water for the Major

Public Utility ought to have been included in any application, That area ought to have included the Allans

dwelling area and title.

In that planning scheme a Major Public Utility required an application for permitted development

subject to conditions for land in the rural zone.

In transitioning the planning scheme for the purpose of the IPA permitted development, subject to

conditions, became assessable development.

The storage capacity of the dam has been raised from a FSL of 17,256 ML to a FSL of 28,406 ML. That

increase is significantly greater than 10% and in any event, has a material impact.

One of the fundamental tenets of planning legislation including the IPA is that the owner of the land the

subject of the application must consent to the application being made (ss 3.2.1(1) to 3.2.1(3)(a) and

3.2.1(10)(a)(i) of the IPA)

In order for an application for an MCU to have been properly made, an accurate description of the land

the subject of the application is mandatory (s 3.2.1(2) of the IPA).

The Conditions Schedule (Annexure 3 to Mr Cares statement) identifies (on page 1) the property

description as Lot 21, Plan SP134986 as the Location and the Property description of lots inundated or

partially inundated by storage or covered/partially covered by dam structure.

Allans land is not identified in that descriptor.

There is an exception to the requirement to obtain the consent of an owner in circumstances where theland the subject of the application is acquisition land(s 3.2.1(13) of the IPA, inserted into the IPA on 7

December 2006: Act No. 54 s 16; definition acquisition land inserted by Act No. 54 s 19). For the

reasons set out below that exception did not apply to the development application to raise the elevation

of the dam. Allans consent was required and never obtained.

Acquisition land is relevantly defined in the IPA (Schedule 10) to include land "(b) in relation to which

a Notice of Intention to Resume under theAcquisition of Land Act 1967has been served, and the

proposed taking or acquisition has not been discontinued; and (c) that has not been taken or acquired."

Prior to 7 December 2006, the date s 3.2.1(13) and the definition ofacquisition land in Schedule 10 of

the IPA commenced , the requirement was simply for an owner to consent.

26 September 2013Page 4

As a consequence of the elevation of the dam and its increase in storage capacity Allans land hasundisputedly been inundated beyond the area the subject of draft plan IS 135178 as amended by Cullen

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and Couper after 17 February 2000.

The exclusion of 4 hectares, being the area where the house and ancillary improvements are located, is

inconsistent with the Background Information Statement dated 17 February 2000 that forms part of the

Notice of Intention to Resume wherein it states:- "The raising of Lenthalls Dam by 2 m will raise the

inundation level of the dam. Preliminary findings have indicated that above normal rainfall events may

cause inundation exceeding the RL = 26 m (AHD). Acquisition of land to RL = 30 m (AHD) therefore

allows for the inundation of this land. This will minimise any material damages or potential injuries that

may be incurred as a result of a much greater inundation."

The area of 4 hectares that was excluded from the land resumed by FCRC on 16 July 2004 with

knowledge that it was likely to be inundated means that the application to increase the height of the

dam was not properly made as the 4 hectares of land was not "acquisition land" or Allans consent

was not otherwise obtained.

Mr Peter Allen, Director Dam Safety (Water Supply), wrote to Mr David Wiskar the Acting Chief

Executive officer of the Wide Bay Water Corporation (WBWC) and to Mr Tim Waldron the Chief

Executive Officer of the WBWC in two separate letters dated 14 of May 2009 recommending that

WBWC seriously consider taking appropriate actions regarding the Allan land and property such that a

1% AEP flood level protection is achieved and more specifically to the chief executive officer that WBWC

should "seriously consider either: (a) Relocating the Allan house above the 1% AEP flood level at thehouse; or (B) that resuming those portions of the Allan property below the 1% AEP flood level."

The exclusion of the 4 hectares from the land resumed for the purposes of raising the dam was

maintained in the face of that advice. The recommendation by Mr Peter Allen to relocate the house and

other structures was simply ignored.

Allans have never consented to the construction of the dam impacting on their land.

Fraser Coast Regional Councils application and approval has proceeded without a properly made

application, with knowledge of the need to acquire further land from Allans and without properly

identifying all of the land to be inundated as a consequence of the elevation of the dam.

Accordingly, the development approval that has been obtained is in breach of the applicable subsections

of s 3.2.1 of the IPA and is thereby unlawful.

SafetyIt is patently clear that a properly made application including all of Allan land ought to have been

made.

The circumstances of causing inundation to areas in which people reside would ordinarily be considered

in the context of such an application.

The factors relating to the safety of the residents of the house including the alteration of the access to

and from the Allans farm, its isolation and the manner in which it is cut off were the subject of advice

from Mr Peter Allen DSR to take appropriate action but were ultimately not adopted by FCRC