Chapter 3 Water management implementation
Part 1 Basic landholder rights
Division 1 Domestic and stock rights
(1) An owner or occupier of a landholding is entitled, without the need for an access licence, water supply work approval or water use approval:(a) to take water from any river, estuary or lake to which the land has frontage or from any aquifer underlying the land, and(b) to construct and use a water supply work for that purpose, and(c) to use the water so taken for domestic consumption and stock watering, but not for any other purpose.(2) Subsection (1) does not authorise a landholder to construct a dam or water bore without a water supply work approval.(3) In this section:domestic consumption, in relation to land, means consumption for normal household purposes in domestic premises situated on the land.
stock watering, in relation to land, means the watering of stock being raised on the land, but does not include the use of water in connection with intensive animal husbandry.
(1) An owner or occupier of a landholding within a harvestable rights area is entitled, without the need for any access licence, water supply work approval or water use approval:(a) to construct and use a dam for the purpose of capturing and storing rainwater run-off, and(b) to use water that has been captured and stored by a dam so constructed,in accordance with the harvestable rights order by which the area is constituted.(2) A single dam may be used both for rainwater run-off that has been captured and other water that has been lawfully taken from a water source, but only if the harvestable rights order so provides.(3) This section does not allow a landholder:(a) to supply any other land with water that has been captured and stored under this section, or(b) to construct or use a dam that obstructs the flow of a river, unless the river is declared by the relevant harvestable rights order to be a minor stream for the purposes of this Division.
(1) The Minister may, by order published in the Gazette, constitute any land as a harvestable rights area and may, by the same or a subsequent order so published, name the area and fix its boundaries.(2) The order by which a harvestable rights area is constituted must specify the following:(a) the proportion of the average rainwater run-off that may be captured by landholders in the area (being no less than 10% of that average),(b) the procedures to be followed for calculating the average rainwater run-off for a landholding in the area.(3) The order may allow an existing dam to be used both for rainwater run-off that has been captured and other water that has been lawfully taken from a water source.(4) The order may also deal with the following matters:(a) the types and locations of dams that may be used by a landholder to capture and store rainwater run-off,(b) the means by which the maximum capacity of a dam that may be used by a landholder to capture and store rainwater run-off is to be calculated,(c) the arrangements that may be made by landholders of adjoining land for the shared use of a single dam for the capture of rainwater run-off,(d) such other matters as are necessary or convenient to give effect to the order.(5) For the purpose of calculating any matter under an order under this section, a reference in the order to an area of land is, in the case of land that is valued under the Valuation of Land Act 1916, a reference to the area of a portion or parcel of land that is separately valued under that Act.(6) An order under this section may deal with any matter by reference to a map held in the head office of the Department.(7) Any map that is so referred to is to be available for public inspection, free of charge, during normal office hours at the head office of the Department and at the regional office for the area to which the relevant order relates.
Division 3 Native title rights
(1) A native title holder is entitled, without the need for an access licence, water supply work approval or water use approval, to take and use water in the exercise of native title rights.(2) This section does not authorise a native title holder:(a) to construct a dam or water bore without a water supply work approval, or(b) to construct or use a water supply work otherwise than on land that he or she owns.(3) The maximum amount of water that can be taken or used by a native title holder in any one year for domestic and traditional purposes is the amount prescribed by the regulations.
(1) An access licence entitles its holder:(a) to specified shares in the available water within a specified water management area or from a specified water source (the share component), and(b) to take water:(i) at specified times, at specified rates or in specified circumstances, or in any combination of these, and(ii) in specified areas or from specified locations,(the extraction component).(2) Without limiting subsection (1) (a), the share component of an access licence may be expressed:(a) as a specified maximum volume over a specified period, or(b) as a specified proportion of the available water, or(c) as a specified proportion of the storage capacity of a specified dam or other storage work and a specified proportion of the inflow to that dam or work.(3) Shares in available water may be assigned generally or to specified categories of access licence.(4) In the case of a local water utility licence, its share component is to be expressed as a specified volume per year.(5) The Minister may, by order published in the Gazette, declare that the access licences for specified water management areas are to be issued separately for the share components and extraction components.Note. If the share component and extraction component of an access licence have been issued separately, those components may be held by different persons.(6) In the case of a water management area for which separate access licences are issued for the share component and extraction component, any requirement of this or any other Act for a person to be the holder of an access licence (such as section 341) is taken to be a requirement for the person to be:(a) the holder of an access licence for the share component, and(b) the holder of an access licence for the extraction component.Note. An access licence:(a) does not confer a right on any person to use water for any particular purpose (that right is conferred by a water use approval), and(b) does not confer a right on any person to construct or use a water supply work (that right is conferred by a water supply work approval).
There are the following categories of access licence:(a) local water utility access licences,(b) major utility access licences,(c) domestic and stock access licences,(d) regulated river (high security) access licences,(e) regulated river (general security) access licences,(f) regulated river (supplementary water) access licences,(g) unregulated river access licences,(h) aquifer access licences,(i) estuarine water access licences,(j) coastal water access licences,(k) such other categories of access licence as may be prescribed by the regulations.Note. Local water utility access licences and major utility access licences will be held by local water utilities and major utilities, respectively. Those utilities (like anyone else) may also hold other categories of access licences. However, an access licence does not become a local water utility access licence or major utility access licence merely because it is held by a local water utility or major utility.
58 Priorities between different categories of licence
(1) For the purposes of this Act, the following priorities are to be observed in relation to access licences:(a) local water utility access licences, major utility access licences and domestic and stock access licences have priority over all other access licences,(b) regulated river (high security) access licences have priority over regulated river (general security) access licences and regulated river (supplementary water) access licences,(c) regulated river (general security) access licences have priority over regulated river (supplementary water) access licences.(2) If one access licence (the higher priority licence) has priority over another access licence (the lower priority licence), then if the water allocations under them have to be diminished, the water allocations of the higher priority licence are to be diminished at a lesser rate than the water allocations of the lower priority licence.
59 Available water determinations
(1) From time to time the Minister may, by order in writing, make a determination as to the availability of water for the various categories of access licence in relation to a specified water management area or water source (an available water determination).(2) The regulations may make provision for or with respect to the manner in which an available water determination is to be publicly notified.
60 Rules of distribution applicable to making of available water determinations
(1) Except while an order under subsection (2) is in force, the following rules of distribution apply to the making of an available water determination:(a) the rules of priority established by section 58,(b) the provisions of any relevant bulk access regime,(c) the provisions of any relevant management plan,(d) the provisions of any relevant implementation program.(2) If satisfied that there is a severe water shortage, either generally or in relation to a particular water management area or water source or particular class of water management areas or water sources, the Minister may, by order published in the Gazette, suspend the operation of the rules of distribution referred to in subsection (1).(3) While an order under subsection (2) is in force, the following rules of distribution apply to the making of an available water determination:(a) first priority is to be given to:(i) the needs of major utilities and local water utilities (in relation to domestic water supplies), and(ii) the needs of persons exercising basic landholder rights,(b) second priority is to be given to the needs of the environment,(c) third priority is to be given to:(i) the needs of major utilities and local water utilities (in relation to commercial water supplies), and(ii) in the case of regulated rivers, the needs of persons holding regulated river (high security) access licences,(d) fourth priority is to be given to:(i) the needs of persons holding other categories of access licences, and(ii) the needs of major utilities and local water utilities (otherwise than in relation to domestic and commercial water supplies).(4) Nothing in this section gives rise to a claim for compensation under section 87.
Division 2 Granting and renewal of access licences
61 Granting and renewal of access licences
(1) Subject to any embargo, any person may apply to the Minister for an access licence.(2) An application for a regulated river (supplementary water) access licence may only be made as part of an application for some other kind of access licence, which application must nominate one of the other access licences as the access licence with which the regulated river (supplementary water) access licence is to be associated.(3) In the case of an application under subsection (1) for an access licence:(a) for water in an area that is not within a water management area, or(b) for water in a water management area for which there is no water sharing management plan in force,the Minister must cause the application to be advertised in accordance with the regulations.(4) Subsection (3) does not apply to an application for the renewal of an existing access licence.
62 Objections to granting of access licences
(1) Any person may, in accordance with the regulations, object to the granting of an access licence:(a) for water in an area that is not within a water management area, or(b) for water in a water management area for which there is no water sharing management plan in force.(2) The Minister must inform the applicant for the access licence of the grounds of any objection to the granting of the licence and must allow the applicant a specified time within which to make a written response to the Minister in relation to the objection.(3) The Minister:(a) may require an objector or applicant to provide additional information within a specified time if of the opinion that additional information would be relevant to consideration of the objection or response, and(b) may delay consideration of the objection or response until the information is provided or, if the information is not provided within the time specified, may refuse to consider the objection or response.(4) If there is a deficiency in an objection or response, the Minister may notify the objector or applicant accordingly and allow further time to enable the deficiency to be rectified.(5) Before making a decision on an application for an access licence in respect of which any objection has been made, the Minister must endeavour to resolve the issues raised by the objection by means of consultation with the applicant and the objector, with a view to reaching agreement on the matters raised by the objection.(6) For the purpose of reaching such an agreement, the Minister may propose that the matters raised by the objection be dealt with by way of mediation or neutral evaluation involving an independent mediator or evaluator selected by agreement between the applicant, the objector and the Minister.(7) An application or objection may be dismissed by the Minister if the applicant or objector, as the case may be, fails to participate in any mediation or neutral evaluation proceedings referred to in subsection (6).
63 Determination of applications
(1) The Minister may determine an application for an access licence by granting or refusing to grant the licence.(2) An access licence is not to be granted unless the Minister is satisfied that:(a) the granting of an access licence, or an access licence of the category to which the application relates, is permitted by the relevant provisions of a management plan or Minister’s plan, and(b) adequate arrangements are in force to ensure that minimal harm will be done to any water source as a consequence of water being taken from the water source under the licence.(3) Despite subsection (1):(a) a local water utility access licence may only be granted to a local water utility, and(b) a major utility access licence may only be granted to a major utility, and(c) a regulated river (supplementary water) access licence may only be granted to the holder of some other access licence.
After determining an application under this Division, the Minister must cause notice of the determination to be given to the applicant and, if the application relates to:(a) an area that is not within a water management area, or(b) a water management area for which there is no water sharing management plan in force,to each person who has made an objection in connection with the application.
65 Controlled allocation of access licences
(1) The Minister may, by order published in the Gazette:(a) impose an embargo on applications for access licences for a specified water management area, and(b) declare that access licences for that area are to be allocated by auction, tender or any other means specified in the order.(2) While such an order is in force, access licences for the water management area to which the order relates are to be allocated in accordance with the terms of the order and not otherwise.
Division 3 Conditions and duration of access licences
66 Conditions of access licence
(1) An access licence is subject to:(a) such conditions as are from time to time required to be imposed on the access licence by the relevant management plan or Minister’s plan (mandatory conditions), and(b) such other conditions as the Minister may from time to time impose on the access licence (discretionary conditions).(2) A mandatory condition prevails over a discretionary condition to the extent of any inconsistency between them.Note. If a management plan or Minister’s plan is replaced or amended during the term of an access licence, the mandatory conditions applying to the access licence may vary.(3) At the end of each 5-year period, the Minister is to vary each local water utility licence so as to reflect any variation in population, together with any variation in associated commercial activities, that has occurred during that period in the area in which domestic water is supplied under the licence.(4) On the application of a local water utility, the Minister may at any time increase the utility’s entitlement to water under a local water utility licence so as to reflect any rapid growth of population within the utility’s area requiring an immediate increase in the availability of water for supply by that utility.
67 Imposition of conditions after access licence is granted
(1) Discretionary conditions may not be imposed on an access licence after it has been granted unless the Minister:(a) has given written notice to the holder of the access licence that the Minister proposes to impose such conditions, and(b) has given the holder of the access licence a reasonable opportunity to make submissions to the Minister with respect to the proposed conditions, and(c) has taken any such submissions into consideration.(2) Subsection (1) does not apply to conditions imposed on an access licence at the request of the holder of the access licence.(3) The Minister must cause written notice of any discretionary conditions imposed on an access licence after the time it is granted to be served on the holder of the access licence.(4) A discretionary condition referred to in subsection (3) takes effect on the day on which the notice referred to in that subsection is served on the holder of the access licence or on such later day as may be specified in the notice in that regard.
The Minister may at any time revoke any discretionary conditions to which an access licence is subject, whether or not on the application of the holder of the access licence.
69 Duration of access licences
(1) An access licence (other than an access licence for a major utility) has effect:(a) for 15 years, except in the case of an access licence referred to in paragraph (b) or (c), or(b) for 20 years, in the case of a local water utility access licence, or(c) for the term of the associated access licence referred to in section 61 (2), in the case of a regulated river (supplementary water) access licence.(2) If the relevant application so requests, an access licence may be issued for a shorter period than that provided by subsection (1) in relation to the licence.(3) The holder of an access licence may, at any time within the 12 months before the access licence expires, apply to the Minister for renewal of the access licence.(4) If an application for renewal of an access licence is lodged before it expires, the term of the expiring licence is extended until:(a) the date of the final decision on the application, or(b) such later date as the Minister may determine.
70 Duration of access licences held by major utilities
(1) An access licence held by a major utility has effect for 20 years.(2) At the end of each 5 year period following the date on which an access licence is granted to a major utility, the major utility may apply to the Minister for an extension of the period of the licence for a further 5 years.(3) In determining whether or not to grant such an extension, the Minister must have regard to the latest review that has been conducted under section 282 in relation to that 5 year period.
Division 4 Access licence transfers
The Minister may, by order published in the Gazette, establish transfer principles for the purposes of this Division.
72 Transfer of access licences
(1) The parties to a proposed transfer of an access licence may apply to the Minister for consent to the transfer.(2) The application may relate to:(a) the whole of the access licence for the whole of the period for which the access licence is in force, or(b) the whole of the access licence for part only of the period for which the access licence is in force, or(c) part only of the access licence for the whole of the period for which the access licence is in force, or(d) part only of the access licence for part only of the period for which the access licence is in force.(3) An application under this section is to be dealt with in accordance with the local transfer rules.(4) Despite subsections (1), (2) and (3):(a) the maximum period for which a local water utility access licence or major utility access licence may be transferred is one year, and(b) a regulated river (supplementary water) access licence may not be transferred unless such a transfer is permitted by the relevant management plan or Minister’s plan.(5) In the case of an access licence in respect of which any third party interest is entered on the register of access licences, the application must be accompanied by documentary evidence that the holder of that interest consents to the application being made.(6) On completing a transfer to which consent has been given under this section, the parties to the transfer must cause notice of that fact to be given to the Minister.(7) The transfer takes effect on the date on which details of the transfer are entered on the register of access licences.
73 Account water may be transferred
(1) Water may be transferred between access licences in accordance with this section.(2) Two or more holders of access licences may apply to the Minister for consent to the transfer of water between the accounts for their respective access licences.(3) An application under this section is to be dealt with in accordance with any local transfer rules established by the relevant management plan.(4) On completing a transfer to which consent has been given under this section, the parties to the transfer must cause notice of that fact to be given to the Minister.(5) The transfer takes effect on the date on which details of the transfer are entered on the register of access licences.(6) In the case of a water management area in which the share components and extraction components are separately issued, water may only be transferred from share component to share component or from extraction component to extraction component.
(1) The Minister may enter into an agreement with a Minister of a participating State or Territory for the interstate transfer of access licences and their corresponding interstate equivalents.(2) Any interstate equivalent to an access licence that is transferred in accordance with such an agreement so as to become available for use in New South Wales is taken to be an access licence for the purposes of this Act.(3) In this section, participating State or Territory means a State or Territory that has laws relating to the distribution of water rights that are declared by the regulations under this Act to be substantially similar to the provisions of this Act.
(1) The regulations may establish water return flow rules for the purposes of this Division.(2) Such a regulation may not be made except with the concurrence of the Minister for the Environment.
76 Water allocations may be credited
(1) Water allocations that have been used by the holder of an access licence may be regained in accordance with this section.(2) The holder of an access licence may apply to the Minister for used water allocations to be recredited to the licence.(3) An application under this section is to be dealt with in accordance with the water return flow rules.
Division 6 Surrender, suspension, cancellation and compulsory acquisition of access licences
77 Surrender of access licences
(1) The holder of an access licence may surrender the licence at any time by notice in writing sent to the Minister.(2) In the case of an access licence in respect of which any third party interest is entered on the register of access licences, the notice of surrender must be accompanied by documentary evidence that the holder of that interest consents to the licence being surrendered.(3) The surrender takes effect on the date on which the notice is received by the Minister or such later date as is specified in the notice.
78 Suspension and cancellation of access licences
(1) The Minister may suspend or cancel an access licence on any one or more of the following grounds:(a) that the holder of the licence has failed to comply with the conditions to which the licence is subject,(b) that the holder of the licence has been convicted of an offence against this Act or the regulations,(c) if any charges payable in respect of the licence have not been paid.(2) Instead of or in addition to suspending or cancelling an access licence, the Minister may order a major utility to pay to the Minister a civil penalty not exceeding $500,000 and, in the case of a continuing offence, a further penalty not exceeding $20,000 for each day for which the offence continues.(3) Action under this section may not be taken in relation to an access licence unless the Minister:(a) has given written notice to the holder of the access licence that the Minister proposes to take such action, and(b) has given the holder of the access licence a reasonable opportunity to make submissions to the Minister with respect to the proposed action, and(c) has taken any such submissions into consideration.
79 Compulsory acquisition of access licences
(1) The Minister may, by notice in writing served on their holders, compulsorily acquire access licences if of the opinion that, in the special circumstances of the case, the public interest requires their compulsory acquisition.(2) A person from whom an access licence is compulsorily acquired under subsection (1) is entitled to compensation from the State for the market value of the licence as at the time it was compulsorily acquired.(3) The amount of compensation payable is to be determined by agreement between the Minister and the person entitled to compensation or, if agreement cannot be reached, is to be determined by the Valuer-General.(4) A person who is dissatisfied with the amount of compensation offered to the person under this section, or with any delay in the payment of compensation, may appeal to the Land and Environment Court.(5) The regulations may make provision for or with respect to the payment of compensation under this section.(6) Nothing in this section prevents the Ministerial Corporation from acquiring an access licence by way of transfer.(7) For the avoidance of doubt, it is declared that a reduction of the water entitlements and allocations under an access licence as a consequence of a variation in the mandatory conditions of the licence does not constitute the compulsory acquisition of an access licence or any part of an access licence.
Division 7 Embargoes on applications for access licences
(1) The Minister may, by order published in the Gazette, declare an embargo on the making of applications for access licences with respect to any water management area.(2) An order under this section may relate to all applications, to applications of a specified kind or to all applications other than applications of a specified kind.(3) A copy of any order under this section is to be published in a local newspaper.(4) An order under this section takes effect on the date on which it is published in the Gazette and, unless sooner revoked, expires at the end of 2 years after that date.
(1) The Governor may, by proclamation published in the Gazette, declare an embargo on the making of applications for access licences with respect to any water management area.(2) A proclamation under this section may relate to all applications, to applications of a specified kind or to all applications other than applications of a specified kind.(3) A copy of any proclamation under this section is to be published in a local newspaper.(4) A proclamation under this section takes effect on the date on which it is published in the Gazette and continues in force until it is revoked by a further proclamation so published.
(1) An embargo does not apply to:(a) an application made before the embargo took effect, or(b) an application to amend an application made before the embargo took effect (other than an application to amend an application for an access licence in such a manner as to increase the amount of water sought by the proposed access licence), or(c) an application for the renewal of an access licence, or(d) an application for a transfer of an access licence, or(e) any other application of a kind prescribed by the regulations.(2) An application to which an embargo relates is a nullity and is not revived merely because the embargo is subsequently revoked.
Division 8 Registers and registration
83 Register of access licences
(1) The Minister is to cause a register to be kept of:(a) every application for an access licence, and(b) every access licence that is granted, renewed, transferred, surrendered, suspended or cancelled under this Act, and(c) such interests in an access licence as the holder of the access licence, or the holder of any interest in the access licence, requests to be included in the register.(2) For the purposes of subsection (1) (c), a person is not taken to hold an interest in an access licence held by a corporation merely because the person is a shareholder of the corporation.(3) The regulations may make provision for or with respect to the form in which such a register is to be kept and the particulars that are to be recorded in such a register.(4) The register must be made available at the head office of the Department for inspection, free of charge, by members of the public.
84 Register of available water determinations
(1) The Minister is to cause a register to be kept of each available water determination made under section 59.(2) The regulations may make provision for or with respect to the form in which such a register is to be kept and the particulars that are to be recorded in such a register.(3) The register must be made available at the head office of the Department for inspection, free of charge, by members of the public.
(1) For each access licence, the Minister is to cause an account to be kept of:(a) the water allocations that are acquired or accrued from time to time under the licence, and(b) the water allocations that are used or transferred from time to time under the licence.(2) The regulations may make provision for or with respect to the form in which such an account is to be kept and the particulars that are to be recorded in such an account.
86 Devolution of rights of holder of access licence
A person on whom the rights of the holder of an access licence have devolved by operation of law may apply to the Minister to have that person’s name recorded as the holder of the licence and, if the Minister is satisfied that those rights have so devolved, the Minister may so record the name of the applicant.
Division 9 Compensation when management plan bulk access regime varied
87 Compensation payable for reductions in water allocations arising from Minister’s amendment of management plan
(1) A holder of an access licence (other than a regulated river (supplementary water) access licence) whose water allocations are reduced as a consequence of the variation of a bulk access regime may claim compensation for loss suffered by the holder as a consequence of that reduction.(2) Despite subsection (1), compensation may not be claimed if the variation of the bulk access regime results from:(a) a management plan that has been made in relation to a water management area for which a bulk access regime has not been established by any other management plan, or(b) a management plan that has been made on the basis of a draft management plan prepared by a management committee, and is in the form in which it was finally submitted to the Minister by the committee, as referred to in section 41 (1) (a), or(c) a management plan that has been amended by the Minister in accordance with section 42 (2).(3) The regulations may make provision for or with respect to the manner and form in which such a claim is to be made.(4) The Minister may determine whether or not compensation should be paid and, if so, the amount of any such compensation and the manner and timing of any such payments.(5) The amount of any such compensation is to be determined on the advice of the Valuer-General.(6) In formulating advice for the Minister, the Valuer-General is to have regard to the market value of the water foregone to the claimant for compensation as a consequence of the variation of the bulk access regime.(7) A person who is dissatisfied with the amount of compensation offered to the person under this section, or with any delay in the payment of compensation, may appeal to the Land and Environment Court.(8) Payment of compensation under this section is to be made out of the Consolidated Fund which is, to the extent necessary, appropriated accordingly.
The regulations may make provision for or with respect to the following matters:(a) the procedures to be followed in relation to the making of applications under this Part,(b) the procedures to be followed in relation to the granting, renewal and transfer of access licences,(c) the procedures to be followed in relation to the transfer of water allocations under an access licence,(d) the procedures to be followed in relation to the recrediting of water allocations under an access licence.
A water use approval confers a right on its holder to use water for a particular purpose at a particular location.
90 Water management work approvals
(1) There are three kinds of water management work approvals, namely, water supply work approvals, drainage work approvals and flood work approvals.(2) A water supply work approval authorises its holder to construct and use a specified water supply work at a specified location.(3) A drainage work approval confers a right on its holder to construct and use a specified drainage work at a specified location.(4) A flood work approval confers a right on its holder to construct and use a specified flood work at a specified location.
(1) There are two kinds of activity approvals, namely, controlled activity approvals and aquifer interference approvals.(2) A controlled activity approval confers a right on its holder to carry out a specified controlled activity at a specified location in, on or under waterfront land.(3) An aquifer interference approval confers a right on its holder to carry out an aquifer interference activity at a specified location, or in a specified area, in the course of carrying out specified activities.Note. Examples of where an aquifer interference approval may be needed include mining operations, road construction and any other large scale activity that involves excavation.
Division 2 Applications for approvals
(1) Subject to any embargo, any person may apply for an approval.(2) An application for an approval must be made to the Minister in accordance with the regulations.(3) The regulations may require the application to be accompanied by a management program for the land to which the application relates.(4) An application may relate to more than one approval, whether of the same or of a different kind, unless the Minister requires a separate application to be made in relation to one or more of them.(5) The Minister:(a) may require an applicant for an approval to provide additional information within a specified time if of the opinion that additional information would be relevant to consideration of the application, and(b) may delay consideration of the application until the information is provided or, if the information is not provided within the time specified, may refuse to consider the application.(6) The Minister may refuse to accept an application for an approval if it appears to the Minister that the application is incomplete.(7) The regulations may require any application, or any specified class of applications, to be advertised.(8) Subsection (6) does not apply to an application for the renewal of an existing approval.Note. Approvals are listed in section 91 of the Environmental Planning and Assessment Act 1979. Development that requires an approval is consequently integrated development for the purposes of that Act.
93 Objections to applications for approvals
(1) Any person may, in accordance with the regulations, object to the granting of an approval that has been advertised pursuant to section 92.(2) The Minister must inform the applicant for an approval of the grounds of any objection to the granting of the approval and must allow the applicant a specified time within which to make a written response to the Minister in relation to the objection.(3) The Minister:(a) may require an objector or applicant to provide additional information within a specified time if of the opinion that additional information would be relevant to consideration of the objection or response, and(b) may delay consideration of the objection or response until the information is provided or, if the information is not provided within the time specified, may refuse to consider the objection or response.(4) If there is a deficiency in an objection or response, the Minister may notify the objector or applicant accordingly and allow further time to enable the deficiency to be rectified.(5) Before making a decision on an application for the approval in respect of which any objection has been made, the Minister must endeavour to resolve the issues raised by the objection by means of consultation with the applicant and the objector, with a view to reaching agreement on the matters raised by the objection.(6) For the purpose of reaching such an agreement, the Minister may propose that the matters raised by the objection be dealt with by way of mediation or neutral evaluation involving an independent mediator or evaluator appointed by agreement between the applicant, the objector and the Minister.(7) The costs of any such mediation or neutral evaluation are to be paid for by the Minister.(8) An application or objection may be dismissed by the Minister if the applicant or objector, as the case may be, fails to participate in any mediation or neutral evaluation proceedings referred to in subsection (6).
94 Determination of applications affected by public inquiries under the Environmental Planning and Assessment Act 1979
(1) This section applies to any application for an approval in respect of which a Commission of Inquiry has given a section 120A notice to the Minister before the Minister makes a decision on the application.(2) The Minister:(a) must refer to the Commission of Inquiry:(i) the application (including any information furnished in relation to the application), and(ii) any objection to the application (including any information furnished in relation to the objection),whether the application or objection is made or lodged before or after the section 120A notice is received, and(b) must defer making any decision on the application until it receives the Commission of Inquiry’s section 119 report.(3) In making a decision on the application, the Minister must have regard to the findings and recommendations contained in the Commission of Inquiry’s section 119 report.(4) In this section:Commission of Inquiry means a Commission of Inquiry constituted under section 119 of the Environmental Planning and Assessment Act 1979.
section 119 report means a report referred to in section 119 (6) of the Environmental Planning and Assessment Act 1979.
section 120A notice means a notice referred to in section 120A (1) of the Environmental Planning and Assessment Act 1979.
95 Determination of applications
(1) After considering an application and all matters relevant to the application, the Minister is to determine the application:(a) by granting the approval to which the application relates, or(b) by refusing the application.(2) A single approval may be granted in relation to more than one water management work or activity and in relation to more than one kind of water management work or activity.(3) An approval may not be granted in contravention of the provisions of any relevant management plan.
96 Matters affecting consideration of applications
In considering whether or not to grant an approval, the Minister must take into account:(a) such matters as are prescribed by the regulations, and(b) such other matters as the Minister considers to be relevant.
97 Grounds of refusal of certain applications
(1) A water use approval is not to be granted unless the Minister is satisfied that adequate arrangements are in force to ensure that minimal harm will be done to any water source, or its dependent ecosystems, as a consequence of the proposed use of water on the land in respect of which the approval is to be granted.(2) A drainage work approval is not to be granted unless the Minister is satisfied that adequate arrangements are in force to ensure that minimal harm will be done to any water source, or its dependent ecosystems, as a consequence of the construction or use of the proposed drainage work.(3) A flood work approval is not to be granted unless the Minister is satisfied that adequate arrangements are in force to ensure that minimal harm will be done to any water source, or its dependent ecosystems, as a consequence of the construction or use of the proposed flood work.(4) A controlled activity approval is not to be granted unless the Minister is satisfied that adequate arrangements are in force to ensure that minimal harm will be done to any waterfront land as a consequence of the carrying out of the proposed controlled activity.(5) A water management work approval for a water management work that is, or is proposed to be, situated on land not owned by the applicant is not to be granted unless the Minister is satisfied:(a) that the applicant is likely to become the owner of the land within a reasonable time, or(b) that the land is subject to an easement that authorises the construction and use of such a work for the benefit of the applicant’s land.(6) An aquifer interference approval is not to be granted unless the Minister is satisfied that adequate arrangements are in force to ensure that minimal harm will be done to the aquifer, or its dependent ecosystems, as a consequence of its being interfered with in the course of the activities to which the approval relates.
After determining an application under this Division, the Minister must cause notice of the determination to be given to the applicant and, if the application relates to a water use approval, to each person who has made an objection to the Minister in connection with the application.
99 Procedures in relation to integrated development
(1) In this section, consent authority, development consent and integrated development have the same meanings as they have in the Environmental Planning and Assessment Act 1979.(2) The provisions of this Act with respect to the advertising of an application for an approval do not apply if the application relates to integrated development.(3) If a consent authority grants development consent to integrated development, either as a consequence of having obtained the general terms of any approval proposed to be issued by the Minister or as a consequence of the Minister having failed to inform the consent authority as to whether or not an approval will be granted:(a) no person has any right to lodge an objection under this Act to the granting of the approval, and(b) no person has any right under this Act to appeal to the Land and Environment Court against the granting of the approval.(4) Subsection (3) (b) does not affect any right of appeal to which an objector may be entitled under section 98 of the Environmental Planning and Assessment Act 1979.
Division 3 Conditions and duration of approvals
100 Conditions of approval generally
(1) An approval is subject to:(a) such conditions as are from time to time required to be imposed on the approval by the relevant management plan or Minister’s plan (mandatory conditions), and(b) such other conditions as the Minister may from time to time impose on the approval (discretionary conditions).(2) A mandatory condition prevails over a discretionary condition to the extent of any inconsistency between them.Note. If a management plan or Minister’s plan is replaced or amended during the term of an approval, the mandatory conditions applying to the approval may vary.
101 Conditions of approval for joint water supply schemes
(1) This section applies to a water supply work approval granted in relation to a joint water supply scheme, that is, a scheme under which landholders of different parcels of land hold a single water supply work approval for a water supply work located on, or passing through, all of those parcels.(2) A water supply work approval for a water supply work the subject of a joint water supply scheme is subject to such conditions as are required to be imposed on the approval by the regulations, being conditions as to the rights and duties of the landholders concerned in relation to:(a) the granting of access to the work, and(b) the apportionment of water supplied by means of the work, and(c) the apportionment of the cost of constructing and maintaining the work, and(d) the apportionment of such other costs relating to the work as are prescribed by the regulations, and(e) the exclusion of land from the operation of the scheme.
102 Imposition of conditions after approval is granted
(1) Discretionary conditions may not be imposed on an approval after it has been granted unless the Minister:(a) has given written notice to the holder of the approval that the Minister proposes to impose such conditions, and(b) has given the holder of the approval a reasonable opportunity to make submissions to the Minister with respect to the proposed conditions, and(c) has taken any such submissions into consideration.(2) Subsection (1) does not apply to conditions imposed on an approval at the request of the holder of the approval.(3) The Minister must cause written notice of any discretionary conditions imposed on an approval after the time it is granted to be served on the holder of the approval.(4) A discretionary condition referred to in subsection (3) takes effect on the day on which the notice referred to in that subsection is served on the holder of the approval or on such later day as may be specified in the notice in that regard.
The Minister may at any time revoke any discretionary conditions to which an approval is subject, whether or not on the application of the holder of the approval.
(1) An approval (other than an approval for a major utility) has effect for such period as may be specified in the approval in that regard, being a period not exceeding:(a) 3 years, in the case of a controlled activity approval, or(b) 10 years, in the case of a water use approval or aquifer interference approval, or(c) 20 years, in the case of a water management work approval.(2) If an application for renewal of an approval is lodged before it expires, the term of the expiring approval is extended until:(a) the date of the final decision on the application, or(b) a date fixed by the Minister for the approval,whichever is the later date.(3) If:(a) an approval expires without an application for its renewal being made, and(b) an application for its renewal is subsequently made by the former holder of an approval and is accompanied by a statutory declaration of the reasons for the delay in making the application, and(c) the reasons are accepted by the Minister,the term of the approval is taken to have been extended, and the application may be dealt with, as if the application had been made before the approval expired.
105 Duration of approvals held by major utilities
(1) An approval held by a major utility has effect for 20 years.(2) At the end of each 5 year period following the date on which an approval is granted to a major utility, the major utility may apply to the Minister for an extension of the period of the approval for a further 5 years.(3) In determining whether or not to grant such an extension, the Minister must have regard to the latest review that has been conducted under section 282 in relation to that 5 year period.
106 Land benefited by water use approval or water management work approval
(1) A water use approval or water management work approval is taken to be held by, and for the benefit of, each successive landholder for the time being of the land specified in the approval as the land benefited by the approval.(2) While the approval is in force, each such landholder:(a) is under a duty to comply with the conditions to which the approval is subject, and(b) is entitled to commence and maintain legal proceedings against any other such landholder with respect to that other landholder’s failure to comply with those conditions.(3) For the purposes of this section, an irrigation corporation, private irrigation board, private drainage board or private water trust is taken to be a landholder of land in respect of which a water use approval or water management work approval held by it is in force.(4) This section does not apply in such circumstances as may be prescribed by the regulations.
Division 4 Amendment, surrender, suspension and cancellation of approvals
107 Amendment of water management work approval on application by holder of approval
(1) On the application of the holder of a water management work approval, the Minister may amend the approval:(a) so as to allow an alteration or extension of the relevant water management work, or(b) so as to allow the construction or use of an additional water management work on adjoining land occupied by the holder of the approval.(2) The Minister may treat an application under this section as an application for the grant, on surrender of the existing water management work approval, of a replacement approval conferring the same authority as would have been conferred by the existing approval had it been amended in accordance with the application.
(1) The holder of an approval may surrender the approval at any time by notice in writing sent to the Minister.(2) The surrender takes effect on the date on which the notice is received by the Minister or such later date as is specified in the notice.
109 Suspension and cancellation of approvals
(1) The Minister may suspend or cancel an approval on any one or more of the following grounds:(a) that the holder of the approval has failed to comply with the conditions to which the approval is subject,(b) that the holder of the approval has been convicted of an offence against this Act or the regulations,(c) that the holder of the approval has failed to make due payment with respect to any fee or charge that is payable under this Act in relation to the approval,(d) in the case of an approval granted in relation to a water management work, the holder of the approval has failed to comply with any direction given to the holder under this Act in connection with the work.(2) Instead of or in addition to suspending or cancelling an approval, the Minister may order a major utility to pay to the Minister a civil penalty not exceeding $500,000 and, in the case of a continuing offence, a further penalty not exceeding $20,000 for each day for which the offence continues.(3) Action under this section may not be taken in relation to an approval unless the Minister:(a) has given written notice to the holder of the approval that the Minister proposes to take such action, and(b) has given the holder of the approval a reasonable opportunity to make submissions to the Minister with respect to the proposed action, and(c) has taken any such submissions into consideration.
Division 5 Embargoes on applications for approvals
(1) The Minister may, by order published in the Gazette, declare an embargo on the making of applications for approvals with respect to any water management area.(2) An order under this section may relate to all applications, to applications of a specified kind or to all applications other than applications of a specified kind.(3) A copy of any order under this section is to be published in a local newspaper.(4) An order under this section takes effect on the date on which it is published in the Gazette and, unless sooner revoked, expires at the end of 2 years after that date.
(1) The Governor may, by proclamation published in the Gazette, declare an embargo on the making of applications for approvals with respect to any water management area.(2) A proclamation under this section may relate to all applications, to applications of a specified kind or to all applications other than applications of a specified kind.(3) A copy of any proclamation under this section is to be published in a local newspaper.(4) A proclamation under this section takes effect on the date on which it is published in the Gazette and continues in force until it is revoked by a further proclamation so published.
(1) An embargo does not apply to:(a) an application made before the embargo took effect, or(b) an application to amend an application made before the embargo took effect, or(c) an application for the renewal of an approval, or(d) any other application of a kind prescribed by the regulations.(2) An application to which an embargo relates is a nullity and is not revived merely because the embargo is subsequently revoked.
(1) The Minister is to cause a register to be kept of:(a) every application for an approval that is duly made under this Act, and(b) every approval that is granted, renewed, transferred, surrendered, suspended or cancelled under this Act.(2) The regulations may make provision for or with respect to the form in which such a register is to be kept and the particulars that are to be recorded in such a register.(3) The register must be made available at the head office of the Department for inspection, free of charge, by members of the public.
114 Minister may impose fees and charges
The Minister may impose fees and charges for the purposes of this Act.Note. Under the Independent Pricing and Regulatory Tribunal Act 1992, any fees and charges imposed by the Minister under this section cannot exceed any relevant determination made by the Independent Pricing and Regulatory Tribunal.
115 Certificate as to charges outstanding
(1) The Minister may, in relation to any land, issue a certificate to the effect that, as at the date on which the certificate is issued:(a) a specified amount is payable in relation to the land pursuant to charges imposed under this Part, or(b) no amount is so payable.(2) Such a certificate is conclusive proof, in favour of a purchaser in good faith and for value of the land to which it relates, that, as at the date on which it was issued, no amounts were payable in respect of the land other than such amounts as are specified in the certificate.