Part 2(1) This Part applies to:(a) each part of the State or each water source, and(b) each category or subcategory of access licence that relates to that part of the State or that water source,that is declared by proclamation to be a part of the State or water source, and category or subcategory of access licence, to which this Part applies.Editorial note. For declarations proclaimed under this subsection see Gazettes No 110 of 1.7.2004, p 5004; No 120 of 29.9.2006, p 8440; No 127 of 27.10.2006, pp 8906, 8907; No 83 of 29.6.2007, p 3967; No 11 of 31.1.2008, p 213; No 76 of 27.6.2008, p 5871; No 93 of 26.6.2009, p 3581 and No 109 of 31.7.2009, p 4665, and proclamations published on the NSW legislation website: 2010 (342) LW 1.7.2010; 2010 (739) LW 17.12.2010; 2011 (152) LW 3.3.2011; 2011 (153) LW 3.3.2011; 2011 (521) LW 30.9.2011; 2011 (576) LW 11.11.2011; 2011 (677) LW 16.12.2011; 2012 (28) LW 27.1.2012; 2012 (135) LW 30.3.2012; 2012 (231) LW 1.6.2012; 2012 (352) LW 3.8.2012; 2012 (464) LW 14.9.2012 and 2012 (496) LW 4.10.2012.(2) Despite subsection (1), specified provisions of this Part may be declared by proclamation to apply to the whole of the State, and apply accordingly.Editorial note. See Gazette No 263 of 20.12.2002, p 10752 for proclamation applying section 71L (renumbered as section 71Z) to the whole of the State on and from 20 December 2002.
(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, or(d) as a specified number of units.(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.(4A) Without limiting subsection (1) (b), the extraction component of an access licence may authorise the taking of water from a water source specified in the share component of the licence and from another water source not so specified if those water sources are vertically abutting (either wholly or partly) water sources.(4B) In the circumstances referred to in subsection (4A), the water source specified in the share component of the access licence is to be the water source that is the main source for the extraction of water by the holder of the licence.(5) For the purposes of this Act, an access licence may also be referred to as a water access licence or a WAL.(6) (Repealed)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).
(1) There are the following categories of access licences:(a) regulated river (high security) access licences,(b) regulated river (general security) access licences,(c) regulated river (conveyance) access licences,(d) unregulated river access licences,(e) aquifer access licences,(f) estuarine water access licences,(g) coastal water access licences,(h) supplementary water access licences,(i) major utility access licences,(j) local water utility access licences,(k) domestic and stock access licences,(l) such other categories of access licence as may be prescribed by the regulations.(2) Subcategories of any category of access licence may be prescribed by the regulations.
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 all other access licences (other than those referred to in paragraph (a)),(c) access licences (other than those referred to in paragraphs (a), (b) and (d)) have priority between themselves as prescribed by the regulations,(d) supplementary water access licences have priority below all other 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.(3) In relation to the water management area or water source to which it applies, a management plan may provide for different rules of priority to those established by subsection (1).(4) If a management plan so provides for different rules of priority, those different rules are taken to have been established by this section.
59 Available water determinations
(1) From time to time, the Minister may, by order in writing, make either or both of the following determinations (an available water determination):(a) a determination as to the availability of water for one or more categories or subcategories of access licences in relation to one or more specified water management areas or water sources,(b) while an order is in force under section 49A (1), a determination as to the availability of water for one or more individual access licences in relation to one or more specified water management areas or water sources.(1A) An available water determination that is made in relation to a particular category of access licence applies to all subcategories of that category except to the extent to which it otherwise provides.(2) The regulations may make provision for or with respect to the manner in which an available water determination is to be notified.(3) If the extraction component of an access licence authorises the taking of water from a water source specified in the share component of the licence and from another water source not so specified and those water sources are vertically abutting (either wholly or partly) water sources, the available water determinations that apply to the licence are those made in relation to the water source specified in the share component of the licence.(4) If the Minister consents to the amendment of an access licence to enable water to be taken by a nominated water supply work located in some other water management area or water source than that to which the licence relates, the available water determinations applicable to water taken by means of the work are those made in relation to the relevant category or subcategory of access licence in relation to that other water management area or water source.
60 Rules of distribution applicable to making of available water determinations
(1) Except while an order under section 49A is in force, the following rules of distribution apply to the making of an available water determination of a type referred to in section 59 (1) (a):(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) (Repealed)(3) While an order under section 49A 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 taking of water for domestic purposes by persons exercising basic landholder rights, and(ii) the taking of water for domestic purposes or essential town services authorised by an access licence,(b) second priority is to be given to the needs of the environment,(c) third priority is to be given to:(i) the taking of water for stock purposes by persons exercising basic landholder rights, and(ii) in the case of regulated rivers, the taking of water for purposes (other than domestic purposes) authorised by a regulated river (high security) access licence, and(iii) the taking of water for the purposes of supply of commercial and industrial activities authorised by a major utility access licence or local water utility access licence, subject to the water made available being in accordance with any drought management strategy established by the Minister for that purpose, and(iv) the taking of water for the purposes of electricity generation authorised by a major utility access licence, and(v) the taking of water for purposes authorised by a domestic and stock access licence or by persons exercising any other water rights in relation to stock, and(vi) the taking of water for purposes authorised by a conveyance access licence in connection with the supply of water for any other purpose or need referred to in this paragraph,(d) fourth priority is to be given to the taking of water for purposes authorised by any other category or subcategory of access licence.(4) Nothing in this section gives rise to a claim for compensation under Division 9.
60A Taking water without, or otherwise than authorised by, an access licence
(1) A person:(a) who takes water from a water source to which this Part applies, and(b) who does not hold an access licence for that water source, and(c) who intentionally or negligently takes that water without obtaining an access licence for that water source,is guilty of an offence.Tier 1 penalty.
(2) A person:(a) who takes water from a water source to which this Part applies, and(b) who does not hold an access licence for that water source,is guilty of an offence.Tier 2 penalty.
(3) A holder of an access licence:(a) who takes water from a water source to which this Part applies otherwise than as authorised by the licence, and(b) who intentionally or negligently takes that water without obtaining an access licence that authorises the taking of that water,is guilty of an offence.Tier 1 penalty.
(4) A holder of an access licence who takes water from a water source to which this Part applies otherwise than as authorised by the licence is guilty of an offence.Tier 2 penalty.
(5) Without limiting subsections (3) and (4), a person takes water otherwise than as authorised by an access licence if the person takes water while the licence is suspended.(6) Without limiting subsections (3), (4) and (5), a person takes water otherwise than as authorised by a supplementary water access licence if the person takes water otherwise than in accordance with the terms of an order in force under section 70.(7) It is a defence to a prosecution under this section in relation to the taking of water from a water source to which this Part applies if the accused person establishes that the water was taken:(a) by means of a nominated water supply work for that water source, or(b) by means of a water supply work that, at all material times, was nominated in relation to the interstate equivalent of an access licence,and was otherwise taken in accordance with the terms and conditions of the access licence in connection with which it is nominated.(8) The defence established by subsection (7) (b) is not available unless the Minister has been duly notified that the relevant water supply work has been nominated as referred to in that paragraph.
60B Contravention of terms and conditions of access licence
(1) A person (other than the holder) who takes water pursuant to an access licence is guilty of an offence if the person contravenes any term or condition of the licence.Tier 2 penalty.
(2) If any term or condition of an access licence is contravened by any person, each holder of the access licence is guilty of an offence.Tier 2 penalty.
(3) It is a defence to a prosecution under subsection (2) if the accused person establishes:(a) that the contravention of the term or condition was caused by another person, and(b) that the other person was not associated with the holder at the time the term or condition was contravened, and(c) that the holder took all reasonable steps to prevent the contravention of the term or condition.A person is associated with the holder for the purposes of this subsection (but without limiting any other circumstances of association) if the person is an employee, agent, licensee, contractor or sub-contractor of the holder.
60C Taking water for which there is no, or insufficient, water allocation
(1) A person who takes water from a water source to which this Part applies otherwise than in accordance with the water allocation for the access licence by which the taking of water from that water source is authorised and:(a) who intentionally or negligently fails to ascertain whether the taking of water is in accordance with the water allocation, or(b) who knows or has reasonable cause to believe that the taking of the water is not in accordance with the water allocation,is guilty of an offence.Tier 1 penalty.
(2) A person who takes water from a water source to which this Part applies otherwise than in accordance with the water allocation for the access licence by which the taking of water from that water source is authorised is guilty of an offence.Tier 2 penalty.
(3) If a person who has the control or management of a water supply work takes water by means of that work in contravention of subsection (2), and the water supply work is nominated in relation to an access licence held by some other person, both persons are taken to have contravened that subsection.(4) Either person referred to in subsection (3) may be proceeded against and convicted for an offence under subsection (2), as the case requires, whether or not the other person has been proceeded against or convicted for such an offence.
60D Taking water otherwise than from a nominated water supply work
A person who takes water from a water source to which this Part applies otherwise than by means of a nominated water supply work for that water source is guilty of an offence.Tier 2 penalty.
60E Liability of occupier of premises for certain offences
(1) The occupier of premises at or from which water is taken in contravention of a provision of this Division is taken to have contravened that provision unless it is established that:(a) the water was taken by another person, and(b) the other person was not associated with the occupier at the time the water was taken, and(c) the occupier took all reasonable steps to prevent the water being taken.A person is associated with the occupier for the purposes of paragraph (b) (but without limiting any other circumstances of association) if the person is an employee, agent, licensee, contractor or sub-contractor of the occupier.
(2) Subsection (1) does not prevent proceedings being taken under this Act against the person who actually committed the offence.
(1) It is a defence to a prosecution under this Division in relation to a Tier 1 offence if the accused person establishes:(a) that the commission of the offence was due to causes over which the person had no control, and(b) that the person took reasonable precautions and exercised due diligence to prevent the commission of the offence.(2) It is a defence to a prosecution under this Division in relation to the taking of water from a water source to which this Part applies if the accused person establishes:(a) that the water was taken pursuant to a basic landholder right, a consent given under section 71V or an order under section 85A, or(b) that the person was exempt, pursuant to this Act or the regulations, from any requirement for an access licence in relation to the taking of water from that water source.(3) This Division does not prevent a person from taking water pursuant to an entitlement in force under the Water Act 1912, where entitlement has the same meaning as it has in Schedule 10.
60G Minister may charge for water illegally taken
(1) If satisfied on the balance of probabilities that a person has taken water from a water source to which this Part applies in contravention of this Division, the Minister may do either or both of the following:(a) impose on the person a charge for water taken (which may include a penalty component) not exceeding 5 times the value of the water so taken, as determined in accordance with the regulations,(b) if the person holds an access licence, order that any water allocations credited or to be credited to the water allocation account for the licence be debited up to 5 times the quantity of the water so taken.(2) Action under this section may not be taken against a person unless the Minister:(a) has given written notice to the person that the Minister proposes to take such action, and(b) has given the person a reasonable opportunity to make submissions to the Minister with respect to the proposed action, and(c) has taken any such submissions into consideration.
60H Application of Division in relation to interstate licences
In this Division, a reference to an access licence includes a reference to any licence of a similar nature (however described):(a) that is granted under the law of another State or Territory, and(b) that is declared by the regulations to have the same effect as an access licence for the purposes of this Division.
60I Access licence required for water used in mining activities
(1) A person who takes water in the course of carrying out a mining activity is, for the purposes of this Act, taking water from a water source.(2) Without limiting the generality of subsection (1), a person takes water in the course of carrying out a mining activity if, as a result of or in connection with, the activity or a past mining activity carried out by the person, water is removed or diverted from a water source (whether or not water is returned to that water source) or water is re-located from one part of an aquifer to another part of an aquifer.(3) To avoid doubt, a person who takes water in the course of carrying out a mining activity as referred to in subsection (2) is required to hold an access licence authorising the taking of that water.(4) In this section:mineral has the same meaning as it has in the Mining Act 1992.
mineral exploration means prospecting pursuant to an assessment lease, exploration licence, mineral claim, mining lease or opal prospecting licence under the Mining Act 1992.
mining means the winning or removal of materials by methods such as excavating, dredging, drilling or tunnelling for the purpose of obtaining minerals or petroleum, and includes:
(a) the construction, commissioning, operation and decommissioning of associated works, and(b) the stockpiling, processing, treatment and transportation of materials extracted, and(c) the rehabilitation of land affected by mining.mining activity means any of the following:
(a) mining,(b) mineral exploration,(c) petroleum exploration.petroleum has the same meaning as it has in the Petroleum (Onshore) Act 1991.
petroleum exploration means prospecting pursuant to a petroleum title under the Petroleum (Onshore) Act 1991.
(5) This section does not limit any other provision of this Act.
Division 2 Granting of access licences
61 Applications for granting of access licences
(1) A person may apply to the Minister for an access licence if:(a) the application is for a specific purpose access licence in circumstances where:(i) the regulations provide, or a relevant management plan provides, that an application for the licence may be made, and(ii) the application does not contravene any restriction on the making of such an application contained in a relevant management plan, or(b) the application is for an access licence with a zero share component (as referred to in section 63 (5)), or(c) the person has acquired the right to apply for the licence under section 65.(2) (Repealed)(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) (Repealed)(5) The Minister:(a) may require an applicant for an access licence 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 access licence if it appears to the Minister that the application is incomplete.
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 application has been made as provided by section 61 (1) (a), (b) or (c), and(b) adequate arrangements are in force to ensure that no more than 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.(c) (Repealed)(4) An access licence must specify:(a) in relation to its share component, the water management area or water source to which it relates, and(b) in relation to its extraction component, the times, rates or circumstances in which, and the areas or locations from which, water may be taken under the licence.(5) An access licence may be issued with a zero share component or zero extraction component (or both) but, even if it is issued with a zero share component, must still specify the water management area or water source to which it relates.(6) Two or more co-holders of an access licence granted under this section are taken to hold the access licence:(a) as provided by the application for the access licence, or(b) if the application makes no such provision, as tenants in common with the entitlements conferred by the licence under section 56 apportioned equally between the tenants.(7) An access licence is to be in such form as the Minister may determine.(8)–(10) (Repealed)
63A Commonwealth and other access licences arising from arrangements
(1) The Minister may grant an access licence to the Commonwealth, or a person nominated by the Commonwealth, at the Minister’s discretion, if the Minister is satisfied that:(a) the licence is required in order to give effect to an agreement or other arrangement (including, but not limited to, a funding agreement or arrangement) entered into by or on behalf of the State, and(b) the licence is to form part of the Commonwealth environmental water holdings within the meaning of the Water Act 2007 of the Commonwealth.(2) Sections 61 and 63 (1) and (2) do not apply to an access licence granted under this section.
63B Licences arising out of State arrangements or agreements
(1) The Minister may grant an access licence to the State or a public authority prescribed by the regulations, at the Minister’s discretion, if the Minister is satisfied that the licence is required in order to give effect to an agreement or other arrangement (including, but not limited to, a funding agreement or arrangement) entered into by or on behalf of the State.(2) A licence granted by the Minister under this section:(a) may be granted subject to an adaptive environmental water condition, or(b) may be a licence of an environmental subcategory, or(c) may be for water taken or permitted to be taken under a licence of a class prescribed by the regulations for environmental purposes.(3) Sections 61 and 63 (1) and (2) do not apply to an access licence granted under this section.
(1) 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.(2) (Repealed)(3) A notification under subsection (1) must be given within 7 days of the determination.
65 Controlled allocation of access licences
(1) The Minister may, by order published in the Gazette, declare that the right to apply for an access licence for a specified water management area or water source is to be acquired by auction, tender or other means specified in the order.(2) An order under this section:(a) may relate to one or more particular access licences, or a particular class of access licences or all access licences, for a specified water management area or water source, and(b) may specify a limited period for which such an access licence is to have effect.(3), (4) (Repealed)
Division 3 Conditions, duration and amendment of access licences
Note. An access licence may be amended under section 71S, on application of the licence holder, so as to change the extraction component of the licence. The share component of an access licence may be changed, on application of the licence holder, under section 71R.
66 Conditions of access licence generally
(1) An access licence is subject to such conditions as the Minister may from time to time impose:(a) which must include such conditions as are required to be imposed on the licence by this Act or by any relevant management plan (mandatory conditions), and(b) which may include such other conditions, such as:(i) conditions to give effect to any agreement between an applicant and objector under section 62 (5), and(ii) conditions relating to the protection of the environment,as the Minister thinks fit (discretionary conditions).(1A) Mandatory conditions do not have effect in relation to an access licence unless they are included in the terms of the licence.(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.(2A) When granting a specific purpose access licence, the Minister is to impose a condition on the licence so as to ensure that the licence is used for the purpose for which it is granted. Such a condition may limit the operation of the licence to a particular location.(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.(3A) In subsection (3), associated commercial activities means activities within the following categories recognised in the Australian and New Zealand Standard Industry Classification (ANZSIC), 1993 edition (Australian Bureau of Statistics publication, Catalogue No 1292.0):(a) construction (category E),(b) wholesale trade (category F),(c) retail trade (category G),(d) accommodation, cafes and restaurants (category H),(e) communication services (category J),(f) finance and insurance (category K),(g) property and business services (category L),(h) government administration and defence (category M),(i) education (category N),(j) health and community services (category O),(k) cultural and recreational services (category P),(l) personal and other services (category Q).(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:(a) at the request of the holder of the access licence, or(b) as a result of action taken under section 66 (3), or(c) when the access licence is amended under section 68B, or(d) in connection with a dealing under Division 4.(2A) Mandatory conditions of an access licence may be imposed, amended, revoked or suspended by the Minister whenever it is necessary to do so in order to enable compliance with or to give effect to this Act, the regulations or a relevant management plan.(3) The Minister must cause written notice of any conditions imposed, amended, revoked or suspended on an access licence after the time it is granted to be served on the holder of the access licence.(4) A condition imposed, or a change, as 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.
68A Amendment of share or extraction components of access licences by Minister
(1) The Minister may amend the share component or extraction component of an access licence in accordance with this Act or the relevant management plan.(1A) The Minister may amend the share component or extraction component (or both) of an access licence so as to alter the water management area or water source to which the share component of the licence relates, or the locations from which water may be taken in accordance with the extraction component of the licence.(1B) An amendment may only be made under subsection (1A) if:(a) the amendment is for the purpose of enabling the holder of the licence to take water from a different water source to that authorised by the licence because erroneous location data has resulted in the holder taking water from that different source, and(b) at the time at which the granting of the access licence was recorded in the Access Register, an access licence could have been granted to the holder authorising the taking of water from that different water source.(2) The Minister must cause written notice of an amendment of an access licence under this section to be served on the holder of the licence and any security holder in relation to the licence.(3) An amendment under this section has no effect until it is recorded in the Access Register.Note. The holder of an access licence that is amended in accordance with this section may be entitled to compensation under section 87.
68B Increase of share components of Commonwealth and other access licences arising from arrangements
(1) The Minister may amend an access licence held by the Commonwealth (or a person nominated by the Commonwealth), at the Minister’s discretion, by increasing the share component of the licence if the Minister is satisfied that:(a) the amendment is required in order to give effect to an agreement or other arrangement (including, but not limited to, a funding agreement or arrangement) entered into by or on behalf of the State, and(b) the licence forms part of the Commonwealth environmental water holdings within the meaning of the Water Act 2007 of the Commonwealth.(2) The Minister may amend an access licence held by the State (or a public authority prescribed by the regulations), at the Minister’s discretion, by increasing the share component of the licence if:(a) the Minister is satisfied that the amendment is required in order to give effect to an agreement or other arrangement (including, but not limited to, a funding agreement or arrangement) entered into by or on behalf of the State, and(b) the licence:(i) is subject to an adaptive environmental water condition, or(ii) is of an environmental subcategory, or(iii) is for water taken or permitted to be taken under a licence of a class prescribed by the regulations for environmental purposes.
An access licence ceases to be in force on the date that the cancellation of the licence is recorded in the Access Register.
70 Special provisions with respect to supplementary water
(1) The Minister may, by order published in accordance with the regulations, authorise the taking of water pursuant to supplementary water access licences within the whole or any part of a specified water management area or specified water source.(2) Such an order:(a) must specify the period for which the order authorises water to be taken, and(b) may impose such restrictions as the Minister considers appropriate on the taking of water.(3) Such an order must be consistent with the provisions of any management plan in force in relation to the water management area or water source concerned.
Division 3A Water Access Licence Register
Subdivision 1 Keeping of the Access Register
71 Water Access Licence Register
(1) The Minister is to keep a Water Access Licence Register for the purposes of this Act (the Access Register).(2) In the Access Register, there is to be a division recording the matters specified in section 71A (1) (the General Division) and a division recording the matters specified in section 71A (2) (the Assignment Division).(3) The Access Register is to be kept in the form and manner determined by the Minister.(4) Without limiting subsection (3), the Access Register may be kept in the form of a computer record.
71A Dealings and other matters that must be recorded in the Access Register
(1) The following matters relating to an access licence (including a replacement access licence) or a holding in an access licence must be recorded in the General Division of the Access Register:(a) Ministerial action in relation to the licence or holding,(b) any general dealing in the licence or holding,(c) any dealing on default in relation to the licence or holding,(d) any caveat lodged in relation to the licence or holding,(e) any security interest held over the licence or holding,(f) any devolution of the licence or holding as referred to in section 72,(g) any alteration in co-holder’s tenancy arrangements in relation to the licence or holding, as referred to in section 73,(h) any other matter prescribed by the regulations.(2) The following matters are to be recorded in the Assignment Division of the Access Register in such manner as the Minister considers appropriate:(a) any assignment dealing in an access licence,(b) any other matter prescribed by the regulations.
71B When matters required to be recorded in General Division of Access Register have effect
(1) Subject to this section, any matter required to be recorded in the General Division of the Access Register:(a) has no effect unless it is so recorded, and(b) takes effect on being recorded.(2) An assignment dealing in relation to an access licence takes effect when details of the assignment are entered in the water allocation account for the access licence.(3) If an application for the extension of a term transfer under section 71N is received before the expiry of the term transfer, the extension is to be recorded in the Access Register as taking effect from the end of the current term of the term transfer.
71C Provisions with respect to registration of dealings, security interests, caveats and other matters in the Access Register
Schedule 1A has effect.
Subdivision 2 Registration of security interests
71D Creation of registered security interests by recording in Access Register
(1) A registered security interest over an access licence (or a holding in an access licence that is held as a tenancy in common) is created by:(a) execution of an instrument in the approved form evidencing the existence of a security interest over the licence or holding, and(b) registering the security interest by recording it in the Access Register in accordance with Part 1 of Schedule 1A.Note. A security interest has no effect until recorded in the Access Register—see sections 71A (1) (e) and 71B.(2) Subsection (1) does not apply to:(a) a specific purpose access licence, or(b) a security interest referred to in clause 19 of Schedule 10.Note. Clause 19 of Schedule 10 makes provision for the registration of security interests in access licences arising from entitlements under former legislation.(3) For the purposes of Chapter 7 of the Duties Act 1997:(a) a registered security interest over an access licence or holding in an access licence is taken to be a security by way of mortgage or charge over property wholly or partly in New South Wales, and(b) the liability date is the date on which the registered security interest is first recorded in the Access Register,except as provided by the regulations.
Subdivision 3 Registration of caveats
71E Minister may register caveats
(1) The Minister may, on the application in the approved form of an affected person, record a caveat on an access licence (or holding in an access licence) in the Access Register in such manner as appears to the Minister to be appropriate.(2) Without limiting subsection (1), the Minister may (whether or not on the application of an affected person) record a caveat in the Access Register:(a) on behalf of any person with a legal disability or on behalf of the Crown, or(b) if it appears to the Minister that any error has been made by misdescription or otherwise in relation to an access licence, or to prevent any fraud or improper dealing with a licence.(3) In this section:affected person, in relation to an access licence or holding in an access licence, means the following:
(a) the holder or a co-holder of the licence or holding,(b) a holder of a security interest over the licence or holding (whether or not registered),(c) a party to a dealing, or prospective dealing, in the licence or holding,(d) a person entitled, or claiming to be entitled, to be registered as a holder or co-holder of the licence or holding by devolution as referred to in section 72,(e) any other person of a class prescribed by the regulations.
(1) A caveat on an access licence (or holding in an access licence) prohibits the recording in the Access Register of any general dealing, security interest or change in co-holder’s tenancy arrangements in relation to the licence or holding that interferes with the entitlements or rights in respect of the licence or holding claimed by the person by or on whose behalf the caveat is lodged (the caveator).(2) A caveat on an access licence or holding in an access licence does not affect the recording in the Access Register of any Ministerial action, devolution, assignment dealing or dealing on default in relation to the licence or holding.(3) Subsection (1) does not prohibit the registration of any matter if:(a) the caveator consents to the registration, or(b) a court of competent jurisdiction orders the registration, or makes an order that by necessary implication requires it, despite the caveat, or(c) the matter is required to be registered expressly or by necessary implication by any enactment of the State or the Commonwealth, or(d) in such other circumstances as are prescribed by the regulations.(4) Subsection (1) does not prohibit registration of any matter in relation to the access licence or holding in an access licence the subject of a caveat if the matter was lodged for registration before the caveat was lodged.Note. Part 2 of Schedule 1A contains further provisions with respect to caveats.
71G Minister may require production of access licence certificate before recording matters in Access Register
The Minister may require the access licence certificate for an access licence to be produced to the Minister before the Minister records any dealing, security interest or changes to co-holder’s tenancy arrangements under the licence in the Access Register.
71H Searches of the Access Register
(1) The Minister may, on application made by a person in the approved form for a search of any information recorded in the Access Register, cause:(a) a search to be made of the Access Register, and(b) a certificate of the result of the search to be issued to the person.(2) The search is to be authenticated in such manner as the Minister considers appropriate.(3) The Minister is not required to cause a search to be carried out, or a certificate to be issued, under this section, unless:(a) the approved fee (if any) for the search or certificate has been paid, or(b) the Minister is satisfied that the fee will be paid in accordance with arrangements approved by the Minister.
71I Correction and amendment of Access Register
The Minister may, on such evidence as the Minister considers sufficient, correct an error, omission or defect, or amend for any other reason, any recording in the Access Register.
71J Access to the Access Register
(1) The Minister is to make the information recorded in the Access Register available to any member of the public at the times and in the manner and on payment of the fee (if any) approved by the Minister.(2) The information may be made available in accordance with such conditions as are determined by the Minister.(3) The conditions may:(a) require the payment, whether on a periodic or other basis, of fees and charges, and(b) restrict access to information in the Access Register or any part of the Register.
71K Minister to supply reasons for certain decisions in relation to Access Register
(1) A person who is dissatisfied with any decision of the Minister in relation to the keeping of the Access Register may apply to the Minister for a copy of the Minister’s reasons for the decision.(2) It is the Minister’s duty to provide the person with those reasons.
Division 4 Dealings with access licences
71L How does a dealing take effect?
(1) General dealings requiring consent
A general dealing in an access licence or holding in an access licence that requires the Minister’s consent takes effect as follows:(a) application is made to the Minister in the approved form, and accompanied by the approved fee, for consent to the dealing,(b) the Minister grants consent, but only if:(i) the dealing complies with section 71Y (General) and with the other provisions of this Division that are applicable to the dealing, and(ii) in the case of an access licence that is co-held—each co-holder of the licence has (subject to sections 71M and 71N) consented to the application,(c) if an access licence or holding in an access licence is subject to a registered security interest, the security holder consents to the recording of the dealing in the Access Register,(d) application is made to the Minister in accordance with subsection (2) to record the dealing in the Access Register,(e) the dealing takes effect on registration (subject to and in accordance with this Act) in the Access Register.(2) An application to record a dealing requiring the Minister’s consent in the Access Register must be lodged with the Minister within 6 months (or such other period as is prescribed by the regulations) after consent is granted. Consent is taken to be revoked if an application is not lodged within that period.(3) Dealings on default and general dealings not requiring consent
A dealing on default or general dealing in an access licence or holding in an access licence that does not require the Minister’s consent takes effect as follows:(a) in the case of a general dealing in an access licence that is co-held—each co-holder of the licence has (subject to sections 71M and 71N) consented to the recording of the dealing in the Access Register,(b) in the case of a general dealing in an access licence or holding in an access licence that is the subject of a registered security interest—consent to the recording of the dealing in the Access Register is obtained from the security holder,(c) in the case of a dealing in default in an access licence or holding in an access licence—the dealing complies with section 71X (1),(d) the dealing on default or general dealing complies with any other provisions of this Division that are applicable to the dealing,(e) an application is made to the Minister to record the dealing in the Access Register,(f) the dealing takes effect on registration (subject to and in accordance with this Act) in the Access Register.(4) Assignment dealings
An assignment dealing in an access licence takes effect as follows:(a) an application is made to the Minister in the approved form for consent to the dealing,(b) if the Minister grants consent, details of the assignment are entered in the water allocation account for the access licence and the dealing takes effect on that entry.
71M Transfer of access licences
(cf former s 71A)
(1) Access licences may be transferred in accordance with this section.(2) A local water utility access licence may be transferred only if the transferee is a local water utility.(3) A major utility access licence may be transferred only if the transferee is a major utility.(4) The consent of the Minister is required before:(a) the transfer of an access licence of a category or subcategory prescribed by the regulations, or(b) the transfer of an access licence in circumstances prescribed by the regulations.(5) The consent of the proposed transferee is required before the transfer of any access licence.(6) Two or more co-holders of an access licence that is transferred under this section are taken to hold the licence in the way recorded in the Access Register.(7) This section applies to the transfer of a holding in an access licence in the same way as it applies to the transfer of an access licence held by a single person. However, holdings in access licences may be transferred only if the co-holders hold as tenants in common.(8) A person who is the holder of a holding in an access licence may transfer it without the consent of any other persons who are co-holders of the access licence concerned.
71N Term transfers of entitlements under access licences
(1) This section applies to access licences except local water utility access licences and major utility access licences.(2) The holder of an access licence to which this section applies (the actual holder of the licence) may transfer the water entitlements conferred by the licence to another person for a specified period of not less than 6 months (a term transfer).(3) The consent of the proposed transferee to the term transfer is required.(4) The consent of the Minister is required before:(a) the term transfer of an access licence of a category or subcategory prescribed by the regulations, or(b) the term transfer of an access licence in circumstances prescribed by the regulations.(5) During the period for which a term transfer has effect, the transferee is taken to be the holder of the access licence concerned in relation to any water entitlements (to the exclusion of the actual holder of the licence) for the following purposes:(a) any entitlements conferred by the licence on the holder of the licence,(b) the payment of fees and charges under the licence,(c) compliance with the terms and conditions of the licence,(d) compliance with any order or direction issued under this Act with which the holder of the licence must comply,(e) Division 1A of this Part,(f) an application under section 71W (Access licence may nominate water supply works) or 71T (Assignment of water allocations between access licences),(g) any other purpose prescribed by the regulations.(6) The period for which a term transfer is in force may be reduced with the consent of the transferee.(7) Despite subsection (6), the Minister may consent to a reduction of the period of a term transfer without the consent of the transferee if satisfied that the transferee has failed to comply with any obligations imposed on the transferee under subsection (5).(7A) The period for which a term transfer has effect may be extended, with the consent of the transferee, while the term transfer remains in force.(8) During the period for which a term transfer is in force, the actual holder of the licence is entitled to apply in accordance with this Act for registration of any dealing with respect to the licence, but, in the case of a dealing other than a dealing under section 71M, only with the written consent of the transferee.(9) This section applies to a term transfer of such water entitlements as are conferred by a holding in an access licence in the same way as it applies to the transfer of the whole of the water entitlements conferred by an access licence. In so applying this section, a reference in this section to the holder of an access licence is to be read as the holder of the holding in the access licence.(10) However, holdings in access licences may be the subject of a term transfer only if the co-holders hold as tenants in common.(11) A person who holds a holding in an access licence may transfer such water entitlements as are conferred by the holding without the consent of any of the other co-holders of the access licence.
71O Conversion of access licence to new category
(cf former s 71B)
(1) On the application of the holder of an access licence, the Minister may consent to the cancellation of the licence and the grant of a new licence of a different category or subcategory.(2) Subsection (1) does not apply to a local water utility access licence or to a supplementary water access licence.(3) An access licence arising under this section may only be granted:(a) subject to the mandatory conditions applicable to the category or subcategory of licence to which it belongs, and(b) for a period no greater than the residue of the period for which the cancelled access licence would have had effect if it had not been cancelled.(4) An access licence arising under this section may only be granted in relation to the same water management area or water source as the cancelled access licence.(5) Any interests that subsisted in the cancelled access licence, as in force immediately before it was cancelled, become equivalent interests in the new access licence.(6) (Repealed)
71P Subdivision and consolidation of access licences
(cf former s 71C)
(1) On the application of the holder of the access licence or access licences concerned, the Minister may consent:(a) to the subdivision of an access licence—by cancelling the licence and granting two or more access licences in its place, or(b) to the consolidation of two or more access licences that relate to the same water management area or water source and are of the same category or subcategory—by cancelling the licences and granting a single licence in their place.(2) Access licences arising from a subdivision referred to in subsection (1) (a) may only be granted:(a) with combined share components and combined extraction components no greater than the corresponding components of the cancelled access licence, and(b) subject to the same mandatory conditions as those to which the cancelled access licence was subject, and(c) for a period no greater than the residue of the period for which the cancelled access licence would have had effect if it had not been cancelled.(3) Access licences arising from a consolidation referred to in subsection (1) (b) may only be granted:(a) with combined share components and combined extraction components no greater than the sum of the corresponding components of the cancelled access licences, and(b) subject to conditions consistent with those to which the cancelled access licences were subject, and(c) for a period no greater than the residue of the period for which the earliest expiring of the cancelled access licences would have had effect if they had not been cancelled.(4) An access licence arising from a subdivision or consolidation may only be granted in relation to the same water management area or water source as the cancelled access licence or licences.(5) Any interests that subsisted in the cancelled access licences, as in force immediately before they were cancelled, become equivalent interests in the new access licences.(6) (Repealed)
71Q Assignment of rights under access licence
(cf former s 71D)
(1) On the application of the holder or holders of two or more access licences of the same category with respect to the same water management area or water source, the Minister may consent to the assignment of rights between the access licences concerned by:(a) reduction of the share or extraction component, or both, of one or some of the licences, and(b) a corresponding increase in the share or extraction component, or both, of the others.(2)–(4) (Repealed)(5) This section does not authorise the reduction of the share or extraction component, or both, of a local water utility access licence.(6) An access licence whose share or extraction component is varied under this section is to be made subject to the mandatory conditions applicable to an access licence with a share or extraction component as so varied.(7) An access licence is not cancelled merely because, as a result of an assignment under this section, it has a zero share component or zero extraction component (or both) for the time being.
71R Amendment of share component of access licence
(cf former s 71E)
(1) On the application of the holder of an access licence, the Minister may consent to the cancellation of the access licence and the grant of a new access licence with a share component specifying a different water source or water management area.(2) Subsection (1) does not apply to a local water utility access licence or supplementary water access licence.(3) An access licence arising under this section may only be granted:(a) subject to the mandatory conditions applicable to an access licence of the same category or subcategory for the water management area or water source specified in its share component, and(b) for a period no greater than the residue of the period for which the cancelled access licence would have had effect if it had not been cancelled.(4) Any interests that subsisted in the cancelled access licence, as in force immediately before it was cancelled, become equivalent interests in the new access licence.(5) (Repealed)
71S Amendment of extraction component of access licence
(cf former s 71F)
(1) On the application of the holder of an access licence, the Minister may consent to the amendment of the extraction component of the licence so as:(a) to vary the times, rates or circumstances specified in the licence with respect to the taking of water under the licence, or(b) to vary the areas or locations specified in the licence as the areas or locations from which water may be taken under the licence.(2) The area or location arising from a variation referred to in subsection (1) (b) must relate to the same water management area or water source as that to which the original area or location related.(3) An access licence that is amended under this section is subject to the mandatory conditions applicable to the licence as so amended.(4) The Minister may, by order published in the Gazette, declare that the right to apply for an amendment of the extraction component of an access licence for a specified water management area or water source is to be acquired by auction, tender or other means specified in the order.
71T Assignment of water allocations between access licences
(cf former s 71G)
(1) Water allocations may be assigned from one access licence to another in accordance with this section.(2) The holders of two or more access licences may apply to the Minister for consent to the assignment of water allocations between the water allocation accounts for their respective access licences.(3) Such an application may only be made with respect to water allocations currently credited to the water allocation account for the access licence from which water allocations are to be assigned.(4) On completing an assignment to which consent has been given under this section, the parties to the assignment must cause notice of that fact to be given to the Minister.(5) (Repealed)
71U Interstate transfer of access licences
(cf former s 71H)
(1) The Minister may enter into an agreement with a Minister of any other State or Territory for the interstate transfer of access licences and their corresponding interstate equivalents.(2) On an application made pursuant to such an agreement, the Minister may consent to the grant or cancellation of an access licence to give effect to such a transfer.(3) In respect of each access licence arising under this section, the Minister:(a) must impose on the licence such mandatory conditions as any relevant management plan may require to be imposed on the licence, and(b) (Repealed)(4) The provisions of section 63 (4), (5), (6) and (7) apply to an access licence arising under this section in the same way as they apply to an access licence granted under section 63.
71V Interstate assignment of water allocations
(cf former s 71I)
(1) The Minister may enter into an agreement with a Minister of any other State or Territory for the interstate assignment of water allocations and their corresponding interstate equivalents.(2) On an application made pursuant to such an agreement, the Minister may consent to the crediting of water allocations to the water allocation account for an access licence, or the debiting of water allocations from the water allocation account for an access licence, to give effect to such an assignment.(3) Such an application may only be made with respect to water allocations currently credited to the water allocation account for the access licence from which water allocations are to be assigned.
71W Access licence may nominate water supply works
(cf former s 71J)
(1) On the application of the holder of an access licence, the Minister may consent to the amendment of the licence so as:(a) to nominate a specified water supply work, or group of water supply works, as a work or group of works by means of which water allocations under the licence may be taken, or(b) to withdraw any such nomination.(2) The water supply work or group of water supply works nominated must be in one or more of the following:(a) the same water management area or water source as the access licence concerned,(b) a NSW water tagging zone,(c) an interstate water tagging zone in another State or Territory if the operation of the work or works is lawful in that zone and an arrangement is in place (as referred to in section 391A) between the Minister and a Minister of the other State or Territory.(3) For the avoidance of doubt, a water supply work or group of water supply works may be nominated under this section even though no approval is required to be held in relation to the work or works under this Act.(4) In this section:interstate water tagging zone means an interstate water tagging zone established by the access licence dealing principles.
NSW water tagging zone means a NSW water tagging zone established by the access licence dealing principles.
(1) A security holder (or a receiver referred to in section 115A of the Conveyancing Act 1919) may transfer the access licence or holding in an access licence over which the security interest is held under this section if:(a) default is made in the payment of any debt or performance of any other obligation under a contract or other legally enforceable arrangement secured by the security interest, and(b) notice is served, in accordance with the regulations, on the holder or co-holder of the licence who is in default (the defaulter), on any other person having a registered security interest (whether or not having less priority), or who has registered a caveat, over the licence or holding and on the Minister, and(c) the defaulter fails, for a period of not less than 30 days after service of the notice, to rectify the default, and(d) the security holder or receiver offers the licence or holding for sale, and(e) the security holder or receiver takes all reasonable steps to secure the highest possible amount by the sale, and(f) application is made to the Minister in the approved form, to record the transfer of the licence or holding in the Access Register to give effect to the sale, or, if the security holder is unable to realise the money secured by the security interest by sale after taking all reasonable steps to do so, to record the transfer of the licence or holding to the security holder in the Access Register.(2) The purchase money from a sale under this section is to be applied as follows:(a) firstly, in payment of any outstanding fees, charges or civil penalties incurred in respect of the licence or holding,(b) secondly, in payment of the expenses of the sale and costs of the transfer,(c) thirdly, in payment of money then due or owing to any holders of registered security interests over the licence or holding in order of their priority,(d) fourthly, in payment of any residue to the defaulter.(3) For the purposes of a transfer under this section, the security holder is taken to be the holder or co-holder of the licence and, accordingly:(a) the security holder may do any thing necessary to effect the transfer and may give any discharge to the transferee that could be given by the holder or co-holder of the licence, and(b) the transferee need make no enquiry in relation to the sale that the purchaser would not be required to make of the holder or co-holder of the licence.(4) On registration of the transfer, the licence or holding is held by the transferee freed and discharged from the registered security interest and any other registered security interest over the licence or holding of less priority. Otherwise the transferee holds the licence or holding with an equivalent interest in the licence or holding to the interest held by the defaulter and subject to the same conditions and obligations (including the payment of any outstanding fees, charges or civil penalties incurred in respect of the licence or holding) to which the defaulter would, but for the transfer, be subject under this Act.(5) An affected person may apply, in accordance with rules of court, to the Land and Environment Court for an order prohibiting the registration of the transfer of an access licence or holding in an access licence under this section. The Court may make such an order if it is satisfied that the security holder or receiver has failed to comply with the requirements of subsection (1) or (2) with respect to the transfer of the licence or holding.(6) If a security holder or receiver fails to comply with the requirements of subsection (1) or (2) with respect to the transfer of an access licence or holding in an access licence under this section, the security holder is liable to pay to any affected person who suffers pecuniary loss that is attributable to that failure compensation with respect to that loss.(7) The compensation is recoverable in proceedings in the Land and Environment Court by the person who claims to have sustained the loss.(8) In this section:affected person, in relation to the transfer of an access licence or holding in an access licence under this section, means any person on whom notice is required to be served under subsection (1) (b), or who is entitled to purchase money from a sale under subsection (2), in relation to the transfer.
(cf former s 71K)
(1) An application for the Minister’s consent to a general dealing, dealing on default or assignment under section 71T or 71V is to be dealt with in accordance with:(a) the water management principles, and(b) the access licence dealing principles, and(c) the access licence dealing rules established by any relevant management plan.(2) Subsection (1) does not require a dealing to be dealt with in accordance with the access licence dealing rules established by a relevant management plan to the extent to which the rules are suspended by an order in force under section 49A.(3) In the case of an application under section 71R:(a) the management plan for the water management area or water source to which the share component of the licence currently relates, and(b) the management plan for the water management area or water source to which the share component of the licence is intended to relate if the application is granted,are each relevant management plans.(4) Except to the extent to which the regulations so provide, Division 2 does not apply to or in respect of an application under this Division.(5) Subject to the regulations, notice of the Minister’s determination of an application under this Division is to be given to the applicant or applicants as soon as practicable after the determination is made.(6) The Minister may, if the Minister thinks it appropriate, deal with 2 or more related dealings under this Act at the same time, and in the same application, as if they comprised one dealing.
71Z Access licence dealing principles
(cf former s 71L)
(1) The Minister may, by order published on the NSW legislation website, establish access licence dealing principles:(a) to regulate or prohibit the kinds of access licence dealing rules that may be established by a management plan, and(b) to regulate or prohibit the kinds of dealings that may be effected under this Division, and(c) to establish conversion factors applicable to the share components of access licences in respect of which dealings are effected under this Division.(2) The access licence dealing principles may include provisions relating to any or all of the following:(a) the establishment of interstate water tagging zones for the purposes of section 71W,(b) the establishment of NSW water tagging zones for the purposes of section 71W,(c) the criteria to be considered for the granting of an application in circumstances referred to in section 71W (2) (b) or (c).(3) The access licence dealing principles prevail over the access licence dealing rules to the extent of any inconsistency.
Division 4A Devolution of, and tenancy arrangements and other matters relating to, access licences
72 Devolution of access licences
(1) A person to whom an access licence or holding in an access licence has devolved by operation of law may apply to the Minister in the approved form to be recorded in the Access Register as the holder or a co-holder of the licence or holding.(2) Without limiting subsection (1), such an application may be made:(a) by an executor, administrator or other person claiming to be entitled to be registered on the death, will or intestacy of the holder or co-holder of the licence or holding, or otherwise, as the holder or co-holder, or(b) by or on behalf of a person who was a co-holder as joint tenant of an access licence or holding in an access licence on the death of a person recorded in the Access Register with the person as a co-holder as joint tenant of the licence or holding, or(c) by or on behalf of a person that a court has ordered is to be recorded in the Access Register as the holder or co-holder of the licence or holding.(3) The application must be supported by such evidence of the applicant’s entitlement to be recorded in the Access Register as a holder or co-holder as the Minister may require.(4) The Minister is to record the person as the holder or co-holder of the licence or holding:(a) if satisfied that the applicant is entitled to be recorded in the Access Register as the holder or co-holder, and(b) if nothing recorded in the Access Register prevents the registration.(5) This section applies to 2 or more persons to whom rights have devolved in the same way as it applies to a single person to whom rights have devolved.
72A Special provisions relating to co-holdings in access licences
(1) Subject to sections 71M, 71N and 74, any dealing in relation to an access licence held by co-holders, and any application for the Minister’s consent to such a dealing, requires the consent of all of the co-holders (a co-holder’s consent).(2) A co-holder of an access licence may, in accordance with the regulations:(a) appoint another co-holder (the first co-holder’s nominee), to give, on his or her behalf, any co-holder’s consent required by subsection (1) in relation to an application for the Minister’s consent to a dealing, and(b) revoke any appointment that the co-holder has made under paragraph (a).(3) The same person may be nominee for more than one co-holder.(4) Any co-holder’s consent given by the co-holder’s nominee in relation to an application for the Minister’s consent to a dealing in an access licence is taken to have been given by the co-holder.(5) The revocation of a nominee’s appointment under subsection (2) (b) does not affect any co-holder’s consent given by the nominee before the revocation took effect.
73 Changes in co-holder’s tenancy arrangements
(1) A co-holder of an access licence (whether held as joint tenant or tenant in common) may apply to the Minister in the approved form to record an alteration in the way in which the licence is held by the co-holders (the co-holder’s tenancy arrangement) in the Access Register.(2) The alteration to the co-holder’s tenancy arrangement takes effect when it is recorded in the Access Register.(3) The Minister must not record the alteration unless:(a) each co-holder of the licence that is affected by the alteration has consented to it being recorded, and(b) any holder of a security interest over the licence or a holding in the licence that is affected by the alteration has consented to it being recorded.(4) Subsection (3) (a) does not apply where a joint tenant unilaterally wishes to sever a joint tenancy by relinquishing the joint tenancy.(5) The Minister may require an applicant to verify any information provided for the purposes of this section by statutory declaration.
74 Exit from co-held access licence
(1) On the application of one or more of the co-holders of an access licence (the original access licence), the Minister may consent to the extinguishment of the holdings of one or more co-holders in the licence and the granting of a new access licence in accordance with Schedule 1B.(2) If the Minister extinguishes holdings in the original licence and grants a new access licence under subsection (1), the Minister is to reduce the entitlements under the original access licence to the extent necessary to reflect the entitlements conferred by the new licence.(3) An application may not be made under subsection (1) without the consent in writing of all of the co-holders of the access licence concerned or of co-holders who hold a majority share of the holdings under the licence.(4) On the application of one or more co-holders of an access licence, the Supreme Court may, if it considers it just and equitable to do so, order that the consent referred to in subsection (3) need not be obtained and may make ancillary orders for the purposes of this section.(5) When determining such an application where the water supply work nominated by the access licence concerned is shared by some or all of the co-holders of the licence, the Supreme Court is to take into consideration the likely effect that the taking of action under subsection (1) would have on the use of that work and the co-holders who have the benefit of it.(6) This section does not apply to an access licence if:(a) there is any money due under this Act in respect of the access licence, including any civil penalties imposed under this Act, or(b) the co-holders hold the licence as joint tenants, or(c) the access licence dealing principles or the access licence dealing rules prevent an application being made under this section.(7) Schedule 1B has effect.
(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 Climate Change and 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 water allocation account for 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 Access 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) If the notice of surrender of an access licence provides that the surrender is not to take effect until after a date specified in the notice, the Minister is not to record the surrender under section 71A in the Access Register before that date.(4) The Minister must record in the Access Register that the Minister is the holder of the surrendered access licence.(5) Subsection (4) does not prevent the Minister from subsequently dealing with a surrendered access licence in any manner that a holder of the licence may deal with it (for example, transferring the licence).
77A Cancellation of access licences that can no longer be used or are no longer required
(1) The Minister is to cancel a supplementary water access licence when the relevant management plan ceases to make provision for the extraction of water under such an access licence.(2) The Minister is to cancel a specific purpose access licence if the Minister is of the opinion that the purpose for which the licence was granted no longer exists.(2A) Subsection (2) does not apply to an access licence in relation to which action is taken by the Minister under section 8D.(3) The regulations may prescribe criteria which the Minister is to consider when determining under subsection (2) whether the purpose for which a specific purpose access licence was granted no longer exists.(4) The Minister is to cancel an access licence of a category prescribed by regulations referred to in section 57 (1) (l) (other than a specific purpose access licence) if the regulations prescribe the period for which such a licence is to have effect and the period has expired.(5) The Minister is to cancel an access licence if the period for which the licence is to have effect was specified in an order under section 65 and the period has expired.(6) The Minister may cancel any access licence of which the Minister is the holder.
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 any term or condition 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 fees, charges or civil penalties in respect of the licence have not been paid, whether or not those fees, charges or civil penalties were incurred by the current holder of the licence,(d) that the holder of the licence has failed to comply with any direction given to the holder under this Act in connection with the licence,(e) that the licence was granted as a result of false, misleading or materially inaccurate information supplied by or on behalf of the applicant.(2) Instead of or in addition to suspending or cancelling an access licence, the Minister may order a major utility or local water utility to pay to the Minister a civil penalty of an amount not exceeding $500,000 and a further civil penalty of an amount not exceeding $20,000 for each day that the circumstances giving rise to the initial civil penalty continue to exist.(3) During any period of suspension of an access licence:(a) the holder of the licence is not authorised by the licence to order or take any water credited to the water allocation account for the licence, and(b) the holder of the licence is not entitled to apply for the registration of any dealing with respect to the licence, and(c) appropriate water allocations continue to accrue to the water allocation account for the licence, and(d) fees and charges payable under this Act in respect of the licence will continue to apply.(4) (Repealed)
78A Notification of intention to suspend, cancel or require payment of penalty
(1) Action under section 77A or 78 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, and if there are security holders in relation to the access licence to those security holders, that the Minister proposes to take such action, and(b) has given any such person that has been notified a reasonable opportunity to make submissions to the Minister with respect to the proposed action, and(c) has taken any such submissions into consideration.(2) Subsection (1) (b) and (c) do not apply to the cancellation of an access licence under section 77A (1), (4), (5) or (6).(3) Despite subsection (1), a security holder is not entitled to make a submission in relation to the proposed suspension or cancellation of an access licence other than a submission to the effect that the security holder is prepared to make arrangements satisfactory to the Minister for the payment of any outstanding fee, charge or civil penalty if such payment would result in the Minister not proceeding with the suspension or cancellation.
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.
80–83A(Repealed)
Division 8A Register of available water determinations and accounting for water
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 for public inspection during normal business hours at such places as may be prescribed by the regulations.
85 Keeping of water allocation accounts
(1) For each access licence, the Minister is to cause an account to be kept of:(a) the water allocations that are acquired under section 71T or 71V in relation to the water allocation account for the licence or otherwise credited from time to time to the water allocation account for the licence, and(b) the water allocations that are taken or assigned under section 71T or 71V or otherwise debited or withdrawn from time to time in relation to the water allocation account for the licence, and(c) the water allocations that are recredited to the water allocation account for the licence from time to time under section 76.(2) Water allocations are to be credited to the water allocation account for an access licence in accordance with any relevant available water determination.(3) Despite subsection (2), an amount of water may be credited to the water allocation account for an access licence as a result of arrangements made with the Minister for the early release of water by Snowy Hydro Limited. However, the same amount of water as is so credited is to be debited subsequently in accordance with the directions of the Minister.(4) The first amount of water to be credited to the water allocation account of an access licence granted part of the way through an accounting period is to bear the same proportion to the amount of available water that would be allocated to the licence if it had existed for the whole of the accounting period as the part of the accounting period remaining when the licence was granted bears to the whole of the accounting period.(5) Water allocations in a water allocation account may be withdrawn by the Minister to the extent provided by the relevant management plan, as referred to in section 21 (c).(6) The regulations may make provision for or with respect to the form in which a water allocation account is to be kept under this section and the particulars that are to be recorded in such a water allocation account.
85A Authorisation to take water from uncontrolled flows
(1) This section applies to a water source in respect of which a management plan makes provision for the taking of water from uncontrolled flows.(2) The Minister may, by order in writing, authorise the holders of regulated river (high security) access licences or regulated river (general security) access licences, or both, that relate to a water source to which this section applies to take water from the water source that has not been credited to the water allocation accounts of those licences.(3) Such an order:(a) may only be made in accordance with the provisions of the relevant management plan relating to the taking of water from uncontrolled flows, and(b) is to set out the water sharing provisions of the relevant management plan that provide for the taking of water from uncontrolled flows, and(c) is to specify the circumstances in which water may be taken (for example, in accordance with announcements made by the Minister).(4) As soon as practicable after making such an order in respect of a water source, the Minister must cause notice of the order to be published in the Gazette and in an appropriate newspaper.(5) An order under this section takes effect when it is first published in the Gazette or at such later time as may be specified in the order.(6) The amount of water taken by the holder of an access licence in accordance with an order under this section is to be noted in the water allocation account for the licence.(7) The provisions of an order under this section have effect despite any other provision of this Act relating to water sharing or to rules of distribution of water (other than section 324).
Division 9 Compensation relating to access licences
In this Division:compensation includes damages or any other form of monetary compensation.
the Crown means the Crown within the meaning of the Crown Proceedings Act 1988, and includes any officer, employee or agent of the Crown.
87 Compensation payable in certain circumstances for reductions in water allocations arising during initial period for which management plan is in force
(1) A holder of an access licence (other than a 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) (Repealed)(a1) a management plan that is made following the expiry of the management plan that established the bulk access regime, 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) an amendment of a management plan by the Minister under section 45 that is authorised by the plan or that is required to give effect to a decision of the Land and Environment Court relating to the validity of the plan, or(d) an amendment made by an Act to a management plan.(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.(9) Despite the other provisions of this section, compensation may be claimed under this section only in respect of a reduction in water allocations occurring during the period for which the first management plan that established the bulk access regime concerned is in force (excluding any period for which that plan is extended under section 43A (1)).
87AA Compensation payable in certain circumstances for reductions in water allocations arising after initial period that management plan is in force
(1) This section applies to the following categories and subcategories of access licence:(a) regulated river (high security) access licences,(b) regulated river (general security) access licences,(c) Murrumbidgee Irrigation (conveyance) access licences,(d) Coleambally Irrigation (conveyance) access licences,(e) unregulated river access licences,(f) aquifer access licences,(g) any other category or subcategory of access licence that is prescribed by the regulations (other than supplementary water access licences or specific purpose access licences).(2) A holder of an access licence to which this section applies whose water allocations are reduced because of a change to provisions of the relevant management plan dealing with water sharing is entitled to compensation as assessed by the Minister in accordance with subsections (5) and (6).(3) Despite subsection (2), the holder of an access licence is not entitled to compensation under this section if:(a) the reduction in water allocations occurred while the first management plan (excluding any period for which that plan was extended under section 43A (1)) was in force, or(b) the reduction in water allocations occurred as a result of an amendment of a management plan by the Minister under section 45 that is authorised by the plan or that is required to give effect to a decision of the Land and Environment Court relating to the validity of the plan, or(c) the reduction in water allocations is for the purpose of restoring water to the environment because of natural reductions in inflow to the water source, including but not limited to changes resulting from climate change, drought or bushfires.(4) A reference in subsection (2) to a change in the provisions of a management plan includes a change between the provisions of the management plan concerned and provisions of the management plan that it replaced.(5) Compensation is payable to the holder of an access licence whose water allocations are reduced because of a change in the provisions of a management plan as a result of an amendment that is specified under section 46 (1) (c) by the Minister as due to a change in State government policy.(6) Compensation is payable as follows for a reduction in water allocations that is specified under section 46 (1) (b) by the Minister as being for the purpose of providing additional water to the environment because of more accurate scientific knowledge that demonstrates that the amount previously allocated to the environment is inadequate:(a) no compensation is payable for reductions of 3% or less,(b) compensation is payable for reductions of more than 3% over any 10-year period commencing on or after the expiration of the period for which the first management plan for the relevant area was in force (including any period for which that plan was extended under section 43A (1)),(c) only one third of the compensation payable for a reduction of more than 3% but not more than 6% over any applicable 10-year period is liable to be paid under this section,(d) only one half of the compensation payable for a reduction of more than 6% over any applicable 10-year period is liable to be paid under this section.(7) The regulations may make provision for or with respect to the following:(a) the basis on which reductions in water allocations are to be calculated or the method of determining such reductions for the purposes of this section,(b) the basis on which compensation is to be calculated or the method for calculating the payment of compensation for the purposes of this section,(c) the manner and time of payment of compensation.(8) This section has effect in relation to water sources that are Basin water resources only while there is in force an agreement between the State and the Commonwealth (separate from the agreement referred to in subsection (8A)) for or with respect to supplementing the payment of compensation under this section.(8A) This section has effect in relation to water sources that are not Basin water resources only while there is in force an agreement between the State and the Commonwealth (separate from the agreement referred to in subsection (8)) for or with respect to supplementing the payment of compensation under this section.(9) Despite any other provision of this section, no compensation is payable under this section in respect of a reduction in water allocations of a kind referred to in subsection (6) if the Commonwealth has not provided funding in respect of that reduction to meet its obligations under the agreements referred to in subsections (8) and (8A).(10) A person may appeal to the Land and Environment Court on the ground that the person is entitled to the payment of compensation under this section but has not been determined as being entitled to any compensation.
87AB Compensation is not payable in relation to certain conduct
(1) Compensation is not payable by or on behalf of the Crown in respect of any relevant conduct in relation to a management plan.(2) In this section, relevant conduct, in relation to a management plan, means an act or omission occurring before the commencement of the management plan in respect of the content, effect or State government policy concerning the management plan, including the following:(a) any act or omission, whether unconscionable, misleading, deceptive or otherwise,(b) a representation of any kind, whether made verbally or in writing and whether negligent, false, misleading or otherwise.(3) This section has effect despite section 87.(4) In this section, a reference to a management plan includes a reference to an amendment of a management plan.
87A No compensation payable in relation to access licence
No compensation is payable by or on behalf of the Crown to any person who suffers loss or damage because of any of the following:(a) the suspension or cancellation of an access licence,(b) any error, misdescription or omission in the Access Register,(c) the registration in the Access Register of any person as the holder of an access licence or a security interest in an access licence,(d) the registration of a caveat in the Access Register.
87B Access licence certificate
(1) The Minister may from time to time issue a certificate in the approved form in respect of an access licence (an access licence certificate).(2) If the Minister issues an access licence certificate, the Minister must cancel, wholly or partially as the case requires, any access licence certificate superseded by the new certificate that is available to the Minister. For that purpose, the Minister may require production to the Minister of the superseded certificate.(3) If an access licence certificate is lost, mislaid or destroyed, the person to whom it was issued (or a person having legal authority to act on the person’s behalf) may apply in the approved form to the Minister for the issue of a new access licence certificate.(4) The application is to be supported by such evidence as the Minister may require.(5) The Minister may, if satisfied that an access licence certificate has been lost, mislaid or destroyed, issue a new access licence certificate or new access licence certificates for the licence or holding in an access licence to which the lost, mislaid or destroyed certificate relates and may record in the Access Register that the new certificate or certificates have been issued.
87C Offences with respect to the Access Register
(1) A person must not:(a) fraudulently obtain, or assist in fraudulently obtaining:(i) the issue or delivery of an access licence certificate, or(ii) a recording in the Access Register, or(iii) any alteration in any instrument or approved form issued by the Minister, or(b) fraudulently use, or assist in fraudulently using, any approved form issued by the Minister, or(c) by any false statement or misrepresentation obtain, or attempt to obtain, an access licence certificate or instrument evidencing any matter that may be recorded in the Access Register.Tier 2 penalty.
(2) Any recording in the Access Register obtained in contravention of this section is void as between all parties to the fraud.
(1) 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 and transfer of access licences,(c) the procedures to be followed in relation to the transfer of water allocations in the water allocation account for an access licence,(d) the procedures to be followed in relation to the recrediting of water allocations in the water allocation account for an access licence,(e) the recording of any dealing, caveat, security interest, devolution, change in co-holder’s tenancy arrangements or other matter in relation to an access licence or holding in an access licence in the Access Register.(2) Without limiting subsection (1) (e), the regulations may, for the purposes of this Part, apply, adopt or incorporate, whether with or without modification, any provision of the Real Property Act 1900 or the regulations made under that Act.(3) The regulations may exclude a specified class of licence granted under this Act from the operation of section 11 (1) (h) of the Duties Act 1997.