Part 1Part 1 Directions to landholder and other persons
(1) In this Part:landholder, in relation to land, includes any person having the care, control or management of the land.
specified measures include measures that involve doing, or refraining from doing, any act.
(2) In this Part:(a) a power to direct a person to take specified measures includes a power to direct in what circumstances, in what order and in what manner those measures are to be taken, and(b) a reference to a water management work of any kind includes a reference to a corresponding kind of work to which Part 2, 5 or 8 of the Water Act 1912 extends, and(b1) a reference to an approval or an access licence includes a reference to an entitlement (within the meaning of clause 2 of Schedule 10) that confers a corresponding authority, and(c) a reference to this Act or the regulations extends to the Water Act 1912 and the regulations under that Act.(3) For the purpose of applying this Part to the Water Act 1912 and the regulations under that Act, references to this Act in section 390 of this Act, and in the definition of authorised officer in the Dictionary to this Act, extend to the Water Act 1912 and the regulations under that Act.
Division 2 Conservation of water
324 Temporary water restrictions
(1) If satisfied that it is necessary to do so in the public interest (such as to cope with a water shortage or threat to public health or safety), the Minister may, by order in writing, direct that, for a specified period, the taking of water from a specified water source is prohibited, or is subject to specified restrictions, as the case requires.(2) If satisfied that it is necessary to do so:(a) to maintain or protect water levels in an aquifer, or(b) to maintain, protect or improve the quality of water in an aquifer, or(c) to prevent land subsidence or compaction in an aquifer, or(d) to protect groundwater-dependent ecosystems, or(e) to maintain pressure, or to ensure pressure recovery, in an aquifer,the Minister may, by order in writing, direct that, within a specified area and for a specified period, the taking of water from that aquifer, or from any other aquifer that is above, below or adjacent to that aquifer, is prohibited, or is subject to specified restrictions, as the case requires.(3) The Minister must cause a copy of an order under this section to be published in the Gazette and notice of the order to be published in an appropriate newspaper.(4) If satisfied that circumstances require publication of an order under subsection (1) or (2) sooner than can be achieved under subsection (3), the Minister may, prior to its publication under that subsection, cause notice of the order to be broadcast by a television or radio station transmitting to the part or parts of the State within which the water source is situated.(5) An order under this section takes effect when it is first published or broadcast in accordance with subsection (3) or (4), as the case may be, or at such later date or time as may be specified in the order.(6) Unless sooner repealed, an order under this section ceases to have effect on the expiry of the period specified in the order.(7) In the event of any inconsistency between an order under this section and any other provision of this Act relating to the distribution, sharing or taking of water (including any order made, or any condition imposed on an access licence or approval, under this Act), the order under this section prevails to the extent of the inconsistency.(8) Nothing in this section gives rise to a claim for compensation under Division 9 of Part 2 of Chapter 3.
325 Directions concerning waste of water
The Minister may, by order in writing served on a landholder, direct the landholder to take specified measures to ensure that:(a) water taken and used under the authority of:(i) a domestic and stock right, or(ii) a domestic and stock access licence,is taken and used in accordance with the mandatory guidelines established under section 336B, and(b) water taken and used under the authority of:(i) a domestic and stock right, or(ii) a domestic and stock access licence,is beneficially used, and is not wasted or improperly used, and(c) water taken by means of a water supply work situated on the land, or used under the authority of a water use approval applying to the land, is beneficially used, and is not wasted or improperly used.
326 Directions to install and maintain metering equipment
(1) The Minister may, by order in writing served on:(a) a landholder on whose land is situated a water supply work, or(b) any person having the control and management of such a work,direct the landholder or person to take specified measures to install, replace or to properly maintain metering equipment for use in connection with that work.(2) Unless the direction otherwise specifies, a direction to take specified measures to install or replace metering equipment is taken to include:(a) a direction that the equipment be properly maintained, and(b) a direction that the equipment not be used unless it is properly sealed.(2A) A direction under this section may specify the only person or persons who may install, replace, maintain or seal metering equipment.(3) Metering equipment is properly maintained and properly sealed only if it is maintained and sealed by a duly qualified person or a person specified under subsection (2A).(4) In this section, duly qualified person means a person who has such qualifications, skills and experience as are prescribed by the regulations.
Division 3 Unlawful works and activities
327 Stop work order regarding unlawful construction or use of water management work
(1) This section applies to a water management work that, in the Minister’s opinion, is being constructed or used, or is about to be constructed or used, in contravention of this Act.(2) The Minister may, by order in writing served on any person having control or management of the water management work, direct the person to take specified measures:(a) to prohibit or discontinue its construction or use, or(b) to construct or use the work only as specified.(3) Without limiting subsection (2), the landholder on whose land the water management work is situated, or is proposed to be situated, is taken to have control and management of the work.
328 Stop work order regarding unlawful controlled activity or aquifer interference activity
(1) This section applies to a controlled activity or aquifer interference activity that, in the Minister’s opinion, is being carried out, or is about to be carried out, in contravention of this Act.(2) The Minister may, by order in writing served on any person carrying out the controlled activity or aquifer interference activity, direct the person to take specified measures:(a) to prohibit or discontinue that activity, or(b) to carry out that activity only as specified.(3) Without limiting subsection (2), the landholder on whose land a controlled activity or aquifer interference activity is being carried out, or is proposed to be carried out, is taken to be carrying out that activity.
329 Removal of unlawful water management works
(1) This section applies to a water management work for which no water management work approval is in force.(2) The Minister may, by order in writing served on any person having control or management of the work, direct the person to take specified measures to demolish, remove, modify or dismantle the work or otherwise render it ineffective.(3) Such a direction may be given even if the work is not being used or is not capable of being used.(4) Such a direction may not be given in relation to a water supply work that is being used solely:(a) to take water from a water source pursuant to a landholder’s domestic and stock rights, or(b) to capture and store rainwater run-off pursuant to a landholder’s harvestable rights.(5) Without limiting subsection (2), the landholder on whose land the work is situated is taken to have control and management of the work.
Division 4 Temporary stop work orders
330 Temporary stop work order to protect public interest
(1) If satisfied that the public interest so requires, the Minister may, by order in writing served on:(a) a landholder on whose land is situated a water management work, or(b) any person having the control or management of such a work, or(c) any person by whom a controlled activity or aquifer interference activity is being carried out,direct that, for a specified period, the use of that work, or the carrying out of that activity, is prohibited, or is subject to specified restrictions or specified measures, as the case requires.(2) Such a direction may be given in relation to a flood work only so as to regulate the use of those parts of the work (including, without limitation, sluices and flood gates) as are capable of being operated to influence the flow of water.
Division 5 Protection of public health, public safety and the environment
331 Directions to holders of basic landholder rights
The Minister may, by order in writing served on:(a) a landholder on whose land is situated a water supply work that is being used:(i) to take water from a water source pursuant to the landholder’s domestic and stock rights, or(ii) to capture and store rainwater run-off pursuant to the landholder’s harvestable rights, or(b) any person having the control or management of such a work,direct the landholder or person to take specified measures to protect the environment, to preserve basic landholder rights or to overcome a threat to public health.
332 Directions concerning damage caused by straying stock
The Minister may, by order in writing served on any landholder, direct the landholder to take specified measures:(a) to prevent stock from straying from the landholder’s land into or onto a water management work that is owned by, or is under the control or management of, the Ministerial Corporation, or(b) to repair any damage caused to any such water management work as a consequence of stock having strayed from the landholder’s land.
333 Directions to protect water sources
(1) This section applies if the Minister is of the opinion that:(a) the construction or use of a water management work, or(b) a controlled activity or aquifer interference activity,is having, has had, or is likely to have, an adverse effect on a water source or waterfront land.(2) The Minister may, by order in writing served on:(a) the person having control or management of the water management work, or(b) the person who has carried out, is carrying out or proposes to carry out the controlled activity or aquifer interference activity,direct the person to take specified measures to prevent, minimise or mitigate any adverse effect on the water source or waterfront land as a consequence of the construction or use of the work or the carrying out of the activity.(3) Without limiting subsection (2), the measures that may be specified in a direction under this section include:(a) a direction to repair any damage caused by the construction or use of the water management work or the carrying out of the controlled activity or aquifer interference activity, and(b) a direction to rehabilitate any water source or waterfront land that has been adversely affected by the construction or use of the water management work or the carrying out of the controlled activity or aquifer interference activity, and(c) a direction to ensure that the construction or use of the water management work, or the carrying out of the controlled activity or aquifer interference activity, will not in future adversely affect any water source or waterfront land.(4) Without limiting subsection (2):(a) the person who, at the time of the construction or use of a water management work to which this section applies, was the landholder on whose land the work was situated is taken to have control and management of the work, and(b) the landholder on whose land a water management work is situated, or is proposed to be situated, is taken to have control and management of the work, and(c) the person who, at the time a controlled activity or aquifer interference activity to which this section applies, was the landholder on whose land the activity was carried out is taken to be carrying out the activity, and(d) the landholder on whose land a controlled activity or aquifer interference activity is carried out, or is proposed to be carried out, is taken to be carrying out the activity.
334 Directions to prepare reports
(1) A direction served on a person under this Part may require the person to prepare, and submit to the Minister, reports as to any of the following:(a) the measures the person proposes to take for the purpose of complying with the direction,(b) the progress made by the person in implementing any such measures.(2) The direction may also prohibit the person from implementing any such measures until they have been approved by the Minister.
Division 6 Enforcement by Land and Environment Court
335 Land and Environment Court may grant injunctions
On the application of the Minister, the Land and Environment Court may grant an injunction directing any person to whom a direction has been given under this Part to comply with the direction.
336 Restraint of breaches of this Act
(1) Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act or the regulations.(2) Any such proceedings may be brought whether or not proceedings have been instituted for an offence against this Act or the regulations.(3) Any such proceedings may be brought whether or not any right of the person has been or may be infringed by or as a consequence of the breach.(4) Any such proceedings may be brought by a person on the person’s own behalf or on behalf of another person (with their consent), or of a body corporate or unincorporate (with the consent of its committee or other controlling body), having like or common interests in those proceedings.(5) Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings.(6) If the Land and Environment Court is satisfied that a breach has been committed or that a breach will, unless restrained by the order of the Court, be committed, it may make such orders as it thinks fit to remedy or restrain the breach.(7) In this section, breach includes a threatened or apprehended breach.
336A Remedial measures may be taken by Minister
(1) If a person fails to take the measures specified in a direction under this Part, the Minister may authorise any other person to take those measures.(2) The amount of any costs and expenses incurred by the authorised person as a result of the taking of those measures is recoverable in a court of competent jurisdiction as a debt due to the Ministerial Corporation from the person on whom the direction was served.
(1) The Minister may, by order published on the NSW legislation website, establish mandatory guidelines with respect to the taking and use of water for domestic consumption and stock watering by landholders or other persons authorised to take and use water for either or both of those purposes under:(a) a domestic and stock right, or(b) a domestic and stock access licence.(2) Before establishing any guidelines under this section, the Minister must prepare draft guidelines.(3) The Minister:(a) must give public notice of the draft guidelines, and(b) must exhibit the draft guidelines (together with such other information as is appropriate or necessary to enable the draft guidelines and their implications to be understood) at the places, on the dates and during the times set out in the notice.(4) The public notice referred to in subsection (3) (a):(a) must specify the places at which, the dates on which, and the times during which, the draft guidelines may be inspected by the public, and(b) must specify a period of at least 40 days during which submissions may be made to the Minister in relation to the guidelines (the submission period), and(c) must be published in an appropriate newspaper.(5) During the submission period, any person may make written submissions to the Minister on the draft guidelines.(6) After complying with the requirements of this section, the Minister:(a) may establish guidelines under this section in accordance with the draft guidelines, or(b) may establish guidelines under this section in accordance with the draft guidelines, but with such alterations as the Minister thinks fit, or(c) may decide not to proceed with the draft guidelines.(7) The Minister is to cause:(a) a copy of any guidelines established under this section as in force from time to time to be published on the Department’s internet site, and(b) copies of the guidelines as in force from time to time to be made available for inspection by members of the public during ordinary business hours at such places as the Minister directs.(8) A failure to comply with subsection (7) does not affect the validity of any guidelines established under this section.(9) In this section:domestic consumption, in relation to land, includes (but is not limited to) domestic consumption within the meaning of section 52.
stock watering, in relation to land, includes (but is not limited to) stock watering within the meaning of section 52.
336C Contravention of certain directions
(1) A person who fails to comply with a direction under this Part is guilty of an offence.Tier 2 penalty.
(2) For the avoidance of doubt, a person fails to comply with a direction under this Part if the direction requires compliance within a specified period and the direction is not fully complied with within that period.
336D Prior notice of direction not required
The Minister is not required to notify any person who may be affected by a direction under this Part before giving the direction.