Part 2(1) An access licence entitles its holder:(a) to specified shares in the available water within a specified water management area or from a specified water source (the share component), and(b) to take water:(i) at specified times, at specified rates or in specified circumstances, or in any combination of these, and(ii) in specified areas or from specified locations,(the extraction component).(2) Without limiting subsection (1) (a), the share component of an access licence may be expressed:(a) as a specified maximum volume over a specified period, or(b) as a specified proportion of the available water, or(c) as a specified proportion of the storage capacity of a specified dam or other storage work and a specified proportion of the inflow to that dam or work.(3) Shares in available water may be assigned generally or to specified categories of access licence.(4) In the case of a local water utility licence, its share component is to be expressed as a specified volume per year.(5) The Minister may, by order published in the Gazette, declare that the access licences for specified water management areas are to be issued separately for the share components and extraction components.Note. If the share component and extraction component of an access licence have been issued separately, those components may be held by different persons.(6) In the case of a water management area for which separate access licences are issued for the share component and extraction component, any requirement of this or any other Act for a person to be the holder of an access licence (such as section 341) is taken to be a requirement for the person to be:(a) the holder of an access licence for the share component, and(b) the holder of an access licence for the extraction component.Note. An access licence:(a) does not confer a right on any person to use water for any particular purpose (that right is conferred by a water use approval), and(b) does not confer a right on any person to construct or use a water supply work (that right is conferred by a water supply work approval).
There are the following categories of access licence:(a) local water utility access licences,(b) major utility access licences,(c) domestic and stock access licences,(d) regulated river (high security) access licences,(e) regulated river (general security) access licences,(f) regulated river (supplementary water) access licences,(g) unregulated river access licences,(h) aquifer access licences,(i) estuarine water access licences,(j) coastal water access licences,(k) such other categories of access licence as may be prescribed by the regulations.Note. Local water utility access licences and major utility access licences will be held by local water utilities and major utilities, respectively. Those utilities (like anyone else) may also hold other categories of access licences. However, an access licence does not become a local water utility access licence or major utility access licence merely because it is held by a local water utility or major utility.
58 Priorities between different categories of licence
(1) For the purposes of this Act, the following priorities are to be observed in relation to access licences:(a) local water utility access licences, major utility access licences and domestic and stock access licences have priority over all other access licences,(b) regulated river (high security) access licences have priority over regulated river (general security) access licences and regulated river (supplementary water) access licences,(c) regulated river (general security) access licences have priority over regulated river (supplementary water) access licences.(2) If one access licence (the higher priority licence) has priority over another access licence (the lower priority licence), then if the water allocations under them have to be diminished, the water allocations of the higher priority licence are to be diminished at a lesser rate than the water allocations of the lower priority licence.
59 Available water determinations
(1) From time to time the Minister may, by order in writing, make a determination as to the availability of water for the various categories of access licence in relation to a specified water management area or water source (an available water determination).(2) The regulations may make provision for or with respect to the manner in which an available water determination is to be publicly notified.
60 Rules of distribution applicable to making of available water determinations
(1) Except while an order under subsection (2) is in force, the following rules of distribution apply to the making of an available water determination:(a) the rules of priority established by section 58,(b) the provisions of any relevant bulk access regime,(c) the provisions of any relevant management plan,(d) the provisions of any relevant implementation program.(2) If satisfied that there is a severe water shortage, either generally or in relation to a particular water management area or water source or particular class of water management areas or water sources, the Minister may, by order published in the Gazette, suspend the operation of the rules of distribution referred to in subsection (1).(3) While an order under subsection (2) is in force, the following rules of distribution apply to the making of an available water determination:(a) first priority is to be given to:(i) the needs of major utilities and local water utilities (in relation to domestic water supplies), and(ii) the needs of persons exercising basic landholder rights,(b) second priority is to be given to the needs of the environment,(c) third priority is to be given to:(i) the needs of major utilities and local water utilities (in relation to commercial water supplies), and(ii) in the case of regulated rivers, the needs of persons holding regulated river (high security) access licences,(d) fourth priority is to be given to:(i) the needs of persons holding other categories of access licences, and(ii) the needs of major utilities and local water utilities (otherwise than in relation to domestic and commercial water supplies).(4) Nothing in this section gives rise to a claim for compensation under section 87.
Division 2 Granting and renewal of access licences
61 Granting and renewal of access licences
(1) Subject to any embargo, any person may apply to the Minister for an access licence.(2) An application for a regulated river (supplementary water) access licence may only be made as part of an application for some other kind of access licence, which application must nominate one of the other access licences as the access licence with which the regulated river (supplementary water) access licence is to be associated.(3) In the case of an application under subsection (1) for an access licence:(a) for water in an area that is not within a water management area, or(b) for water in a water management area for which there is no water sharing management plan in force,the Minister must cause the application to be advertised in accordance with the regulations.(4) Subsection (3) does not apply to an application for the renewal of an existing access licence.
62 Objections to granting of access licences
(1) Any person may, in accordance with the regulations, object to the granting of an access licence:(a) for water in an area that is not within a water management area, or(b) for water in a water management area for which there is no water sharing management plan in force.(2) The Minister must inform the applicant for the access licence of the grounds of any objection to the granting of the licence and must allow the applicant a specified time within which to make a written response to the Minister in relation to the objection.(3) The Minister:(a) may require an objector or applicant to provide additional information within a specified time if of the opinion that additional information would be relevant to consideration of the objection or response, and(b) may delay consideration of the objection or response until the information is provided or, if the information is not provided within the time specified, may refuse to consider the objection or response.(4) If there is a deficiency in an objection or response, the Minister may notify the objector or applicant accordingly and allow further time to enable the deficiency to be rectified.(5) Before making a decision on an application for an access licence in respect of which any objection has been made, the Minister must endeavour to resolve the issues raised by the objection by means of consultation with the applicant and the objector, with a view to reaching agreement on the matters raised by the objection.(6) For the purpose of reaching such an agreement, the Minister may propose that the matters raised by the objection be dealt with by way of mediation or neutral evaluation involving an independent mediator or evaluator selected by agreement between the applicant, the objector and the Minister.(7) An application or objection may be dismissed by the Minister if the applicant or objector, as the case may be, fails to participate in any mediation or neutral evaluation proceedings referred to in subsection (6).
63 Determination of applications
(1) The Minister may determine an application for an access licence by granting or refusing to grant the licence.(2) An access licence is not to be granted unless the Minister is satisfied that:(a) the granting of an access licence, or an access licence of the category to which the application relates, is permitted by the relevant provisions of a management plan or Minister’s plan, and(b) adequate arrangements are in force to ensure that minimal harm will be done to any water source as a consequence of water being taken from the water source under the licence.(3) Despite subsection (1):(a) a local water utility access licence may only be granted to a local water utility, and(b) a major utility access licence may only be granted to a major utility, and(c) a regulated river (supplementary water) access licence may only be granted to the holder of some other access licence.
After determining an application under this Division, the Minister must cause notice of the determination to be given to the applicant and, if the application relates to:(a) an area that is not within a water management area, or(b) a water management area for which there is no water sharing management plan in force,to each person who has made an objection in connection with the application.
65 Controlled allocation of access licences
(1) The Minister may, by order published in the Gazette:(a) impose an embargo on applications for access licences for a specified water management area, and(b) declare that access licences for that area are to be allocated by auction, tender or any other means specified in the order.(2) While such an order is in force, access licences for the water management area to which the order relates are to be allocated in accordance with the terms of the order and not otherwise.
Division 3 Conditions and duration of access licences
66 Conditions of access licence
(1) An access licence is subject to:(a) such conditions as are from time to time required to be imposed on the access licence by the relevant management plan or Minister’s plan (mandatory conditions), and(b) such other conditions as the Minister may from time to time impose on the access licence (discretionary conditions).(2) A mandatory condition prevails over a discretionary condition to the extent of any inconsistency between them.Note. If a management plan or Minister’s plan is replaced or amended during the term of an access licence, the mandatory conditions applying to the access licence may vary.(3) At the end of each 5-year period, the Minister is to vary each local water utility licence so as to reflect any variation in population, together with any variation in associated commercial activities, that has occurred during that period in the area in which domestic water is supplied under the licence.(4) On the application of a local water utility, the Minister may at any time increase the utility’s entitlement to water under a local water utility licence so as to reflect any rapid growth of population within the utility’s area requiring an immediate increase in the availability of water for supply by that utility.
67 Imposition of conditions after access licence is granted
(1) Discretionary conditions may not be imposed on an access licence after it has been granted unless the Minister:(a) has given written notice to the holder of the access licence that the Minister proposes to impose such conditions, and(b) has given the holder of the access licence a reasonable opportunity to make submissions to the Minister with respect to the proposed conditions, and(c) has taken any such submissions into consideration.(2) Subsection (1) does not apply to conditions imposed on an access licence at the request of the holder of the access licence.(3) The Minister must cause written notice of any discretionary conditions imposed on an access licence after the time it is granted to be served on the holder of the access licence.(4) A discretionary condition referred to in subsection (3) takes effect on the day on which the notice referred to in that subsection is served on the holder of the access licence or on such later day as may be specified in the notice in that regard.
The Minister may at any time revoke any discretionary conditions to which an access licence is subject, whether or not on the application of the holder of the access licence.
69 Duration of access licences
(1) An access licence (other than an access licence for a major utility) has effect:(a) for 15 years, except in the case of an access licence referred to in paragraph (b) or (c), or(b) for 20 years, in the case of a local water utility access licence, or(c) for the term of the associated access licence referred to in section 61 (2), in the case of a regulated river (supplementary water) access licence.(2) If the relevant application so requests, an access licence may be issued for a shorter period than that provided by subsection (1) in relation to the licence.(3) The holder of an access licence may, at any time within the 12 months before the access licence expires, apply to the Minister for renewal of the access licence.(4) If an application for renewal of an access licence is lodged before it expires, the term of the expiring licence is extended until:(a) the date of the final decision on the application, or(b) such later date as the Minister may determine.
70 Duration of access licences held by major utilities
(1) An access licence held by a major utility has effect for 20 years.(2) At the end of each 5 year period following the date on which an access licence is granted to a major utility, the major utility may apply to the Minister for an extension of the period of the licence for a further 5 years.(3) In determining whether or not to grant such an extension, the Minister must have regard to the latest review that has been conducted under section 282 in relation to that 5 year period.
Division 4 Access licence transfers
The Minister may, by order published in the Gazette, establish transfer principles for the purposes of this Division.
72 Transfer of access licences
(1) The parties to a proposed transfer of an access licence may apply to the Minister for consent to the transfer.(2) The application may relate to:(a) the whole of the access licence for the whole of the period for which the access licence is in force, or(b) the whole of the access licence for part only of the period for which the access licence is in force, or(c) part only of the access licence for the whole of the period for which the access licence is in force, or(d) part only of the access licence for part only of the period for which the access licence is in force.(3) An application under this section is to be dealt with in accordance with the local transfer rules.(4) Despite subsections (1), (2) and (3):(a) the maximum period for which a local water utility access licence or major utility access licence may be transferred is one year, and(b) a regulated river (supplementary water) access licence may not be transferred unless such a transfer is permitted by the relevant management plan or Minister’s plan.(5) In the case of an access licence in respect of which any third party interest is entered on the register of access licences, the application must be accompanied by documentary evidence that the holder of that interest consents to the application being made.(6) On completing a transfer to which consent has been given under this section, the parties to the transfer must cause notice of that fact to be given to the Minister.(7) The transfer takes effect on the date on which details of the transfer are entered on the register of access licences.
73 Account water may be transferred
(1) Water may be transferred between access licences in accordance with this section.(2) Two or more holders of access licences may apply to the Minister for consent to the transfer of water between the accounts for their respective access licences.(3) An application under this section is to be dealt with in accordance with any local transfer rules established by the relevant management plan.(4) On completing a transfer to which consent has been given under this section, the parties to the transfer must cause notice of that fact to be given to the Minister.(5) The transfer takes effect on the date on which details of the transfer are entered on the register of access licences.(6) In the case of a water management area in which the share components and extraction components are separately issued, water may only be transferred from share component to share component or from extraction component to extraction component.
(1) The Minister may enter into an agreement with a Minister of a participating State or Territory for the interstate transfer of access licences and their corresponding interstate equivalents.(2) Any interstate equivalent to an access licence that is transferred in accordance with such an agreement so as to become available for use in New South Wales is taken to be an access licence for the purposes of this Act.(3) In this section, participating State or Territory means a State or Territory that has laws relating to the distribution of water rights that are declared by the regulations under this Act to be substantially similar to the provisions of this Act.
(1) The regulations may establish water return flow rules for the purposes of this Division.(2) Such a regulation may not be made except with the concurrence of the Minister for the Environment.
76 Water allocations may be credited
(1) Water allocations that have been used by the holder of an access licence may be regained in accordance with this section.(2) The holder of an access licence may apply to the Minister for used water allocations to be recredited to the licence.(3) An application under this section is to be dealt with in accordance with the water return flow rules.
Division 6 Surrender, suspension, cancellation and compulsory acquisition of access licences
77 Surrender of access licences
(1) The holder of an access licence may surrender the licence at any time by notice in writing sent to the Minister.(2) In the case of an access licence in respect of which any third party interest is entered on the register of access licences, the notice of surrender must be accompanied by documentary evidence that the holder of that interest consents to the licence being surrendered.(3) The surrender takes effect on the date on which the notice is received by the Minister or such later date as is specified in the notice.
78 Suspension and cancellation of access licences
(1) The Minister may suspend or cancel an access licence on any one or more of the following grounds:(a) that the holder of the licence has failed to comply with the conditions to which the licence is subject,(b) that the holder of the licence has been convicted of an offence against this Act or the regulations,(c) if any charges payable in respect of the licence have not been paid.(2) Instead of or in addition to suspending or cancelling an access licence, the Minister may order a major utility to pay to the Minister a civil penalty not exceeding $500,000 and, in the case of a continuing offence, a further penalty not exceeding $20,000 for each day for which the offence continues.(3) Action under this section may not be taken in relation to an access licence unless the Minister:(a) has given written notice to the holder of the access licence that the Minister proposes to take such action, and(b) has given the holder of the access licence a reasonable opportunity to make submissions to the Minister with respect to the proposed action, and(c) has taken any such submissions into consideration.
79 Compulsory acquisition of access licences
(1) The Minister may, by notice in writing served on their holders, compulsorily acquire access licences if of the opinion that, in the special circumstances of the case, the public interest requires their compulsory acquisition.(2) A person from whom an access licence is compulsorily acquired under subsection (1) is entitled to compensation from the State for the market value of the licence as at the time it was compulsorily acquired.(3) The amount of compensation payable is to be determined by agreement between the Minister and the person entitled to compensation or, if agreement cannot be reached, is to be determined by the Valuer-General.(4) A person who is dissatisfied with the amount of compensation offered to the person under this section, or with any delay in the payment of compensation, may appeal to the Land and Environment Court.(5) The regulations may make provision for or with respect to the payment of compensation under this section.(6) Nothing in this section prevents the Ministerial Corporation from acquiring an access licence by way of transfer.(7) For the avoidance of doubt, it is declared that a reduction of the water entitlements and allocations under an access licence as a consequence of a variation in the mandatory conditions of the licence does not constitute the compulsory acquisition of an access licence or any part of an access licence.
Division 7 Embargoes on applications for access licences
(1) The Minister may, by order published in the Gazette, declare an embargo on the making of applications for access licences with respect to any water management area.(2) An order under this section may relate to all applications, to applications of a specified kind or to all applications other than applications of a specified kind.(3) A copy of any order under this section is to be published in a local newspaper.(4) An order under this section takes effect on the date on which it is published in the Gazette and, unless sooner revoked, expires at the end of 2 years after that date.
(1) The Governor may, by proclamation published in the Gazette, declare an embargo on the making of applications for access licences with respect to any water management area.(2) A proclamation under this section may relate to all applications, to applications of a specified kind or to all applications other than applications of a specified kind.(3) A copy of any proclamation under this section is to be published in a local newspaper.(4) A proclamation under this section takes effect on the date on which it is published in the Gazette and continues in force until it is revoked by a further proclamation so published.
(1) An embargo does not apply to:(a) an application made before the embargo took effect, or(b) an application to amend an application made before the embargo took effect (other than an application to amend an application for an access licence in such a manner as to increase the amount of water sought by the proposed access licence), or(c) an application for the renewal of an access licence, or(d) an application for a transfer of an access licence, or(e) any other application of a kind prescribed by the regulations.(2) An application to which an embargo relates is a nullity and is not revived merely because the embargo is subsequently revoked.
Division 8 Registers and registration
83 Register of access licences
(1) The Minister is to cause a register to be kept of:(a) every application for an access licence, and(b) every access licence that is granted, renewed, transferred, surrendered, suspended or cancelled under this Act, and(c) such interests in an access licence as the holder of the access licence, or the holder of any interest in the access licence, requests to be included in the register.(2) For the purposes of subsection (1) (c), a person is not taken to hold an interest in an access licence held by a corporation merely because the person is a shareholder of the corporation.(3) The regulations may make provision for or with respect to the form in which such a register is to be kept and the particulars that are to be recorded in such a register.(4) The register must be made available at the head office of the Department for inspection, free of charge, by members of the public.
84 Register of available water determinations
(1) The Minister is to cause a register to be kept of each available water determination made under section 59.(2) The regulations may make provision for or with respect to the form in which such a register is to be kept and the particulars that are to be recorded in such a register.(3) The register must be made available at the head office of the Department for inspection, free of charge, by members of the public.
(1) For each access licence, the Minister is to cause an account to be kept of:(a) the water allocations that are acquired or accrued from time to time under the licence, and(b) the water allocations that are used or transferred from time to time under the licence.(2) The regulations may make provision for or with respect to the form in which such an account is to be kept and the particulars that are to be recorded in such an account.
86 Devolution of rights of holder of access licence
A person on whom the rights of the holder of an access licence have devolved by operation of law may apply to the Minister to have that person’s name recorded as the holder of the licence and, if the Minister is satisfied that those rights have so devolved, the Minister may so record the name of the applicant.
Division 9 Compensation when management plan bulk access regime varied
87 Compensation payable for reductions in water allocations arising from Minister’s amendment of management plan
(1) A holder of an access licence (other than a regulated river (supplementary water) access licence) whose water allocations are reduced as a consequence of the variation of a bulk access regime may claim compensation for loss suffered by the holder as a consequence of that reduction.(2) Despite subsection (1), compensation may not be claimed if the variation of the bulk access regime results from:(a) a management plan that has been made in relation to a water management area for which a bulk access regime has not been established by any other management plan, or(b) a management plan that has been made on the basis of a draft management plan prepared by a management committee, and is in the form in which it was finally submitted to the Minister by the committee, as referred to in section 41 (1) (a), or(c) a management plan that has been amended by the Minister in accordance with section 42 (2).(3) The regulations may make provision for or with respect to the manner and form in which such a claim is to be made.(4) The Minister may determine whether or not compensation should be paid and, if so, the amount of any such compensation and the manner and timing of any such payments.(5) The amount of any such compensation is to be determined on the advice of the Valuer-General.(6) In formulating advice for the Minister, the Valuer-General is to have regard to the market value of the water foregone to the claimant for compensation as a consequence of the variation of the bulk access regime.(7) A person who is dissatisfied with the amount of compensation offered to the person under this section, or with any delay in the payment of compensation, may appeal to the Land and Environment Court.(8) Payment of compensation under this section is to be made out of the Consolidated Fund which is, to the extent necessary, appropriated accordingly.
The regulations may make provision for or with respect to the following matters:(a) the procedures to be followed in relation to the making of applications under this Part,(b) the procedures to be followed in relation to the granting, renewal and transfer of access licences,(c) the procedures to be followed in relation to the transfer of water allocations under an access licence,(d) the procedures to be followed in relation to the recrediting of water allocations under an access licence.