Australia: Wide Bay Conservation Council v Burnett Water Pty Ltd: The Queensland Lungfish Case

Environment and Planning Insights
Last Updated: 5 April 2011
Article by Kathryn Pacey

Key Points:

The Court found that the condition attached to the approval under the EPBC Act requiring a fishway had been complied with.

On 4 March 2011, Justice Logan of the Federal Court of Australia handed down his decision in Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No 8) [2011] FCA 175. The case provides a recent example of public interest litigation being instituted by an "interested person" under the Environment Protection and Biodiversity Conservation Act's (EPBC Act) broad standing powers in relation to compliance with a condition on an approval.

The dam and the rare fish

The case concerned a condition attached to the construction of Paradise Dam on the Burnett River. The Burnett River is one of the few rivers in Australia inhabited by the Queensland lungfish, Neoceratodus forsteri.

The construction of the dam constituted, and its operation continues to constitute, a controlled action under the EPBC Act. Approval by the Federal Environment Minister for the construction and operation of the dam was granted on 25 January 2002.

In August 2003 the approval was amended with the consent of both parties, to include, amongst other things, the condition that:

"Burnett Water Pty Ltd must install a fish transfer device on the Burnett River Dam suitable for the lungfish. The fishway will commence when the dam becomes operational."

The Conservation Council alleged that Burnett Water had contravened this condition and sought an injunction requiring Burnett Water to comply with the condition.

The alleged contraventions

The Conservation Council argued that Burnett Water had contravened the condition by not installing a fish transfer device which was "suitable" for the lungfish. This was because Burnett Water had:

  • installed the downstream fishway with an operation range of water levels in the dam reservoir between EL 62.0 m and EL 67.9 m, such that it was not suitable for lungfish when water levels in the dam reservoir were beneath EL 62.0 m because it could not be operated and lungfish were unable to enter it;
  • failed to commence to operate the downstream fishway when the dam became operational in or about November 2005;
  • failed to operate the downstream fishway continuously, subject only to minor interruptions for repairs and maintenance and environmental flows, after the dam became operational in or about November 2005.

Standing of the interested person

In relation to standing under EPBC Act, the court observed that, "in the field of public law, there has never been such universality of standing for the prevention, in the public interest, of illegality."

The Court compared this to standing under the Crimes Act 1914 (Cth), which allows any person to institute criminal proceedings against another but is "tempered though by the ability of the Commonwealth Director of Public Prosecutions to take over and decline to carry on any such proceeding." Justice Logan observed that there may be some value in a similar power being conferred on the Minister.

The construction of the condition

The Court found that the general construction of the condition left it to Burnett Water to "use its discretion, good sense and judgment as to how to achieve the specified result," in ensuring that the fishway was "suitable."

The Court rejected the submission of the Conservation Council that in order to be "suitable" the fishway must "maintain similar opportunity for lungfish movement as existed prior to the construction of the dam." Rather,

"the fishway which must be 'suitable' for the species is one which takes into account the needs of the species in the context of the impact of the approved dam as constructed. Such considerations flow naturally from recalling that the condition must be construed in the context in which is appears."

In considering whether the fishway was "suitable," the Court accepted evidence that under pre-development conditions it was unlikely that suitable lungfish spawning conditions would have been available in the river every year, to the extent that some years, water levels would have been so low as to prevent the passage of the lungfish past the dam site. The Court found that:

"As designed, the fishway still provides considerable opportunities for lungfish to move past and access habitat downstream. In these circumstances, the existence of the Paradise Dam with this fishway is not likely to result in serious or irreversible harm to lungfish populations in the Burnett River or across the distribution of the species."

The Court acknowledged that there was a three-year period between the completion of the dam and the fishway becoming operational because of the time it took for the dam to reach EL 62, the water level required for the fishway to work. Notwithstanding this, the Court found that the device was ready for use in 2005.

In the alternative, if the fishway did not commence when the dam became operational, the judge stated that he would not have granted the injunction as the period when the device did not operate was, from a long-term perspective, a transitory commissioning event that had now passed, making the fishway presently suitable for the lungfish.

Burnett Water was not found to have contravened the condition and the injunction was not granted.

You might also be interested in...

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.