By Jeremy Sollars
Conditions of approval set by the Southern Downs Regional Council on a commercial water extraction operation at Cherrabah Resort may be challenged by the owners of the property and could result in the plan not proceeding.
A majority of councillors at their December 2019 meeting voted in favour of approving an application for ‘commercial ground water extraction’ submitted by Joyful View Garden Real Estate Development Resort Co, the Cherrabah ownership entity owned by brothers Wenxing and Wenwei Ma.
The Ma brothers’ plan is to extract up to 96 megalitres of underground water a year from Cherrabah at Elbow Valley east of Warwick and truck it to the Gold Coast for commercial bottling.
Mayor Tracy Dobie has since defended the council approval on the basis that water licences held by the Ma brothers were issued by the Queensland Government and that the council had no power to refuse commercial extraction of Cherrabah water.
Cr Dobie has said the council only had the power to set conditions on aspects of the operation such as location of water extraction ‘infrastructure’ and vehicle movements, and not use of the water itself.
But in any case the Ma brothers have foreshadowed they may object to some of the council’s approval conditions, with specific details not yet publicly disclosed.
Consultancy firm Cardno, acting for the Ma brothers, has written to the council requesting their legal appeal period be suspended for 20 business days to allow them to “submit representations to Council concerning relevant matters” relating to the council’s approval.
Under planning rules, an applicant – in this case the Ma brothers – has the right to appeal conditions of a council development approval they believe are unreasonable or are unable to be met.
They also have the option of suspending that formal appeal period to allow for extra time to negotiate changes to council conditions without resorting to formal legal action, an option the Ma brothers have now exercised.
Neighbouring property owners can launch a legal appeal of their own against a council approval, but that process can only take place after the applicant has either exercised or waived their own appeal rights.
Comment has been sought from the Ma brothers on the specifics of the approval conditions they wish to negotiate, and if they believe those conditions may otherwise make their water extraction proposal unviable.
HOW THEY VOTED…
Voting in favour of the Cherrabah application at the 19 December council meeting were Mayor Tracy Dobie, Deputy Mayor Jo McNally and Councillors Rod Kelly, Sheryl Windle and Neil Meiklejohn.
Voting against were Councillors Vic Pennisi, Cameron Gow and Yve Stocks.
Cr Marika McNichol was absent from the December meeting due to a bushfire affecting her property in the Mt Lindesay area.
But Cr McNichol has told the Free Times today, Friday 3 January, that she would have voted “no” on the Cherrabah application, although such a vote would have been unlikely to have changed the outcome.
“I feel that it would have been important for me to be at the debate to hear all arguments for and against before I would have made an informed decision,” Cr McNichol said today.
“But I feel that it was wrong timing for this project to go ahead given the severe drought we are going through and the potential impact that it may have on the neighbours.
‘A difficult decision as it is the state government that has approved it years ago for the extraction of water, we were only approving infrastructure.
“In saying that I would have voted against it.”
The Ma brothers originally submitted their commercial water extraction application to the council in 2018 and it was to have been considered at the December 2018 council meeting, but the Ma’s withdrew the application prior to that meeting.
Council officers in 2018 recommended the application be refused by councillors, advising that council could not be sure that long-term water extraction from Cherrabah would not have an impact on underground water supplies in the wider Elbow Valley area and on other property owners.
But in 2019 the Ma brothers commissioned a new consultant’s report they claim shows the planned extraction would not be detrimental to other water users in the Elbow Valley area.
Council officers accepted the new 2019 evidence and recommended councillors approve the Cherrabah plan at the December 2019 meeting.