Water Management Act 2000 No 92
Current version for 17 September 2014 to date (accessed 23 December 2014 at 08:20)
Chapter 5Part 2

Part 2 Hunter Valley flood mitigation works

Division 1 Preliminary

253   Application of Part

This Part applies to and in respect of land in the Hunter Valley.

254   Definitions

In this Part:

Hunter River includes all tributaries that, directly or indirectly, flow into the Hunter River, and includes the estuary of the Hunter River and all arms and branches of that estuary.

Hunter Valley means the catchment area of the Hunter River, and includes the land shown on the plan marked “DWR PLA No 20/2551” held by the Department, and also includes such other land as is declared by the regulations to form part of the Hunter Valley.

levee bank means a levee bank designed or intended for the purpose of or that could or might have the effect of excluding or partially excluding the waters of the Hunter River or waters overflowing from the Hunter River from any land.

protective works means works for the protection of any works vested in or otherwise under the control of a public authority:

(a)  against flooding by waters overflowing from the Hunter River, or
(b)  against the effects of any such flooding, or
(c)  against the effects of river bank erosion.

tree includes sapling and shrub.

Division 2 Powers of Minister

255   Restriction on use of lands adjacent to levee banks

(1)  If a levee bank has been constructed adjacent to the Hunter River, the Minister may, by notice in writing to:
(a)  the landholder of the land on which the levee bank has been constructed, or
(b)  the landholder of any land adjacent to the levee bank, or
(c)  the landholder of the whole or any part of the land lying between the levee bank and the Hunter River,
impose such conditions and restrictions on the use of such levee bank or land as the Minister considers necessary or desirable to ensure the stability of the levee bank and in the interests of flood prevention or mitigation within the Hunter Valley generally.
(2)  The Minister may in the like manner revoke or vary any notice given in pursuance of this section.
(3)  If any landholder to whom such a notice has been given contravenes any condition or restriction imposed by the notice, the Minister:
(a)  may authorise any person to enter the land to which such notice relates, and to take such remedial measures on that land as the Minister considers necessary, and
(b)  may recover any cost incurred in so doing from the landholder in any court of competent jurisdiction as a debt due and owing to the Crown.
(4)  If under this section conditions or restrictions on the use of any levee bank or land are imposed by the Minister, the landholder of the levee bank or land is entitled to claim and be paid compensation for any loss sustained by reason of those conditions or restrictions.

256   Construction of fences, structures and flood works

(1)  A person must not:
(a)  construct any building, fence or structure in, on, or adjacent to, a levee bank, or
(b)  construct a flood work on a floodplain,
except with the consent of the Minister.

Tier 2 penalty.

(2)  The Minister’s consent may be given unconditionally or subject to conditions.
(3)  An authorised officer:
(a)  may enter any lands on which any building, fence or flood work has been constructed otherwise than in accordance with the Minister’s consent, and
(b)  may take such measures as are necessary to demolish or remove the building, fence or flood work or to render the flood work ineffective.
(4)  The costs incurred by an authorised officer under this section are recoverable from the landholder as a debt in a court of competent jurisdiction.
(5)  The Minister may, by notice published in the Gazette, exclude any lands from a floodplain.
(6)  In this section, floodplain means any lands declared to be within the floodplain of the Hunter River by a proclamation in force under section 16 of the former Hunter Valley Flood Mitigation Act 1956, other than lands excluded from the floodplain by a notice published under this section.

Division 3 Finance

257   Accounts to be kept in Special Deposits Account

There is to be established in the Special Deposits Account an account to be called the “Hunter Valley Flood Mitigation Account”.

258   Allocation of money

(1)  Within the Hunter Valley Flood Mitigation Account is to be kept an account to be called the “Hunter Valley Flood Mitigation Working Account”, in this Part referred to as the Working Account.
(2)  Any amount paid to the Minister by Local Land Services is to be paid into the Working Account, from which account may be made, in such manner as the Treasurer determines, any payments that the Minister is required to make under or for the purposes of this Part.

259   Cost of works generally

(1)  This section applies to all flood works that are constructed or maintained by the Minister, other than those for which Local Land Services is liable to make contribution under some other provision of this Division.
(2)  Local Land Services is liable to contribute one-quarter of the cost to the Minister of constructing and maintaining any flood work to which this section applies.

260   Cost of works to protect towns and villages

(1)  This section applies to all flood works constructed or maintained by the Minister for the purpose of protecting a town or village from flooding, being works that have been constructed at the request or with the concurrence of the local council within whose area the town or village is situated.
(2)  Of the cost to the Minister of constructing and maintaining any flood work to which this section applies:
(a)  the local council is liable to contribute such percentage (not exceeding 12%) as the Minister may determine, and
(b)  Local Land Services is liable to contribute one-quarter of the balance.

261   Cost of protective works

(1)  Of the cost to the Minister of constructing and maintaining any protective works:
(a)  the public authority whose works are protected by the protective works is liable to contribute such percentage as the Minister may determine, and
(b)  Local Land Services is liable to contribute one-quarter of the balance.
(2)  The Minister may pay to any public authority that constructs or maintains any protective works such amount as the Minister considers appropriate towards the cost to the public authority of so doing.
(3)  Local Land Services is liable to pay to the Minister one-quarter of any amount paid to a public authority under subsection (2).

262   Annual contribution to works program by Local Land Services

(1)  Local Land Services is liable to pay to the Minister in each financial year:
(a)  one-quarter of the estimated cost of constructing any flood works that the Minister proposes to construct during that financial year, and
(b)  one-quarter of the estimated cost of maintaining any flood works that the Minister proposes to maintain during that financial year.
(2)  The following amounts are to be deducted from the estimated costs for the purpose of calculating Local Land Services’ liability under this section:
(a)  any contribution to those costs for which a local council will be liable under this Division,
(b)  any amount that Local Land Services has paid to the Minister under this section during the previous financial year but that remained unexpended at the end of that year.
(3)  Any estimates are to be made by the Minister whose decision is final.

263   Consultation with Local Land Services as to works program

(1)  Before the beginning of each financial year or as soon as practicable thereafter, the Minister must submit to Local Land Services a program of the flood works that the Minister proposes to construct or maintain during that year.
(2)  Such a program must be consistent with any management plan that applies to the land on which the works or proposed works are situated.
(3)  Such a program must be accompanied by a statement setting out the following particulars:
(a)  the estimated cost of constructing any work,
(b)  the estimated annual cost of maintaining any work,
(c)  the amount for which Local Land Services will be liable,
(d)  such other particulars as may be prescribed by the regulations.

264   Consultation with local council as to works program

(1)  This section applies to all flood works constructed or maintained by the Minister for the purpose of protecting a town or village from flooding, being works that have been constructed at the request or with the concurrence of the local council within whose area the town or village is situated.
(2)  Before the beginning of each financial year or as soon as practicable thereafter, the Minister must submit to the local council concerned a program of the flood works that the Minister proposes to construct or maintain during that year.
(3)  Such a program must be consistent with any management plan that applies to the land on which the works or proposed works are situated.
(4)  Such a program must be accompanied by a statement setting out the following particulars:
(a)  the estimated cost of constructing any work,
(b)  the estimated annual cost of maintaining any work,
(c)  the percentage that the Minister has determined that the council should contribute to the cost of the construction and maintenance of the work,
(d)  the amount for which the council will be liable,
(e)  such other particulars as may be prescribed by the regulations.
(5)  Any estimates are to be made by the Minister whose decision is final.
(6)  When the work has been completed, the Minister must notify the local council of the actual cost of the work.
(7)  If the amount paid by the local council in respect of the work is more than the amount for which the council is liable, the Minister must repay to the council the amount of such excess.
(8)  If the amount paid by the local council in respect of the work is less than the amount for which the council is liable, the council must pay to the Minister the amount of the shortfall.
(9)  Any amount paid to the Minister by a local council under this section is to be paid into the Hunter Valley Flood Mitigation Working Account.

265   Payment of contribution towards maintenance by a local council

(1)  A local council that is liable to contribute to the cost of maintenance of any flood work must pay to the Minister in each financial year the same percentage of the estimated cost of maintenance as the council is liable to contribute to the actual cost of maintenance of that work.
(2)  In calculating the local council’s liability under this subsection in respect of any financial year there is to be deducted any amount that the council has paid to the Minister in respect of any flood work during any previous financial year and that remained unexpended at the end of the immediately preceding financial year.
(3)  Any estimate is to be made by the Minister whose decision is final.

266   Consultation with local council as to maintenance program

(1)  Before the beginning of each financial year, the Minister must furnish the local council with a statement setting out the following particulars:
(a)  the amount that the council will be liable to pay under this Division for that financial year,
(b)  such other particulars as may be prescribed by the regulations.
(2)  The local council must pay to the Minister the amount referred to in subsection (1) (a).
(3)  Any such amount is to be paid into the Hunter Valley Flood Mitigation Working Account.

267   Urgent maintenance works

(1)  If in the opinion of the Minister it becomes necessary to carry out urgent maintenance on any flood work, the Minister may carry out the maintenance, despite maintenance not having been included in any program of works or any statement furnished to a local council.
(2)  When the maintenance has been completed, the Minister must determine the total amount paid in respect of such maintenance and notify any local council affected by the work and Local Land Services of the respective amounts that they are required to contribute in accordance with this Division.
(3)  Any money paid to the Minister under this section is to be paid into the Hunter Valley Flood Mitigation Working Account.

268   Payments to be duly made

Any amount that is payable to the Minister under this Division:
(a)  by Local Land Services, or
(b)  by a local council, or
(c)  by any other public authority,
is payable at such times, and in such instalments, as the Minister may determine.

Division 4 Miscellaneous

269   Works to protect public and local government works to be approved by Minister

(1)  A public authority must not construct any protective works unless the Minister has approved of the site, nature, dimensions and design of the works.
(2)  In giving approval, the Minister may require such amendment of the site, nature, dimensions or design of the protective works as the Minister considers necessary, and the public authority must comply with that requirement accordingly.
(3)  The Minister may by notice in writing require the public authority by which any protective works have been constructed to take specified measures for the proper upkeep, preservation and maintenance of the protective works.
(4)  The public authority must comply with the requirements specified in the notice in such manner and within such time as is so specified.
(5)  If a public authority fails to comply with the terms of the notice, the Minister:
(a)  may authorise any person to enter the land on which the protective works are located and carry out the measures specified in such notice, and
(b)  may recover any cost incurred in so doing from the public authority in any court of competent jurisdiction as a debt due to the Crown.

270   Major floodgates to be maintained and operated by local councils

(1)  If in the opinion of the Minister any floodgate operates for the protection of lands other than lands owned by one landholder or a small localised group of landholders, the Minister may by notice in writing to the local council declare the floodgate to be a major floodgate.
(2)  It is the duty of the local council:
(a)  to keep any major floodgate at all times in a good and proper state of repair and working order, and
(b)  to maintain and operate it in accordance with any directions that may from time to time be given by the Minister.
(3)  If the local council fails to perform that duty, the Minister:
(a)  may authorise any person to enter the land on which the major floodgate is located and to take such measures as to the maintenance, operation or repair of the floodgate as the Minister considers necessary, and
(b)  may recover any cost incurred in so doing from the council in any court of competent jurisdiction as a debt due to the Crown.

271   Maintenance of minor floodgates

(1)  In this section, minor floodgate means any floodgate that is not a major floodgate.
(2)  It is the duty of each landholder for the protection of whose land a minor floodgate operates to keep the floodgate at all times in a good and proper state of repair and working order.
(3)  If any such landholder fails to perform that duty, the Minister may by notice in writing direct the landholder to take such measures as to the maintenance, operation or repair of the floodgate as may be specified in the notice.
(4)  If any landholder fails to comply with the terms of the notice, the Minister:
(a)  may authorise any person to enter the land on which the minor floodgate is located and to take such measures as to the maintenance, operation or repair of the floodgate as the Minister considers necessary, and
(b)  may recover any cost incurred in so doing from the landholder in any court of competent jurisdiction as a debt due to the Crown.
(5)  In the case of multiple landholders, the liability imposed on them under this section is joint and several but, as between themselves, each is liable only for such share of the liability as bears the same proportion to the total liability as the area of the person’s land for the protection of which the floodgate operates bears to the total area of land for the protection of which the floodgate operates.
(6)  If any landholder pays to the Minister more than the person’s share of the total liability the landholder may recover the excess by way of contribution from the others.

272   Application of Public Works Act 1912

Sections 91–95 of the Public Works Act 1912 do not apply to any works constructed under this Part.

273   Evidence of cost of works

If the Minister is empowered to recover any cost incurred in carrying out any work or measure, a certificate by the Minister of the amount of such cost is evidence of that cost.
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