An Act to provide for the protection, conservation and ecologically sustainable development of the water sources of the State, and for other purposes.

Chapter 1 Preliminary

1   Name of Act

This Act is the Water Management Act 2000.

2   Commencement

(1)  This Act commences on a day or days to be appointed by proclamation.

(2)  Different days may be appointed for the commencement of a single provision of Schedule 7 or 8 for the purpose of commencing the repeals or amendments effected by the provision on different days.

3   Objects

The objects of this Act are to provide for the sustainable and integrated management of the water sources of the State for the benefit of both present and future generations and, in particular:

(a)  to apply the principles of ecologically sustainable development, and

(b)  to protect, enhance and restore water sources, their associated ecosystems, ecological processes and biological diversity and their water quality, and

(c)  to recognise and foster the significant social and economic benefits to the State that result from the sustainable and efficient use of water, including:

(i)  benefits to the environment, and

(ii)  benefits to urban communities, agriculture, fisheries, industry and recreation, and

(iii)  benefits to culture and heritage, and

(iv)  benefits to the Aboriginal people in relation to their spiritual, social, customary and economic use of land and water,

(d)  to recognise the role of the community, as a partner with government, in resolving issues relating to the management of water sources,

(e)  to provide for the orderly, efficient and equitable sharing of water from water sources,

(f)  to integrate the management of water sources with the management of other aspects of the environment, including the land, its soil, its native vegetation and its native fauna,

(g)  to encourage the sharing of responsibility for the sustainable and efficient use of water between the Government and water users,

(h)  to encourage best practice in the management and use of water.

4   Interpretation

(1)  Words and expressions that are defined in the Dictionary at the end of this Act have the meanings set out in that Dictionary.

(1A)  A word or expression (not being a word or expression defined in the Dictionary to this Act) that is used in this Act and that is defined in the Real Property Act 1900 has the same meaning in this Act in relation to an access licence (or holding in an access licence) or dealing in such a licence (or holding) as it has in that Act in relation to land or an estate or interest in land.

(1B)  Subsection (1A) applies except in so far as the context or subject-matter otherwise indicates or requires.

(2)  Notes in the text of this Act do not form part of this Act.

Chapter 2 Water management planning

Part 1 General

Division 1 Water management principles

5   Water management principles

(1)  The principles set out in this section are the water management principles of this Act.

(2)  Generally:

(a)  water sources, floodplains and dependent ecosystems (including groundwater and wetlands) should be protected and restored and, where possible, land should not be degraded, and

(b)  habitats, animals and plants that benefit from water or are potentially affected by managed activities should be protected and (in the case of habitats) restored, and

(c)  the water quality of all water sources should be protected and, wherever possible, enhanced, and

(d)  the cumulative impacts of water management licences and approvals and other activities on water sources and their dependent ecosystems, should be considered and minimised, and

(e)  geographical and other features of indigenous significance should be protected, and

(f)  geographical and other features of major cultural, heritage or spiritual significance should be protected, and

(g)  the social and economic benefits to the community should be maximised, and

(h)  the principles of adaptive management should be applied, which should be responsive to monitoring and improvements in understanding of ecological water requirements.

(3)  In relation to water sharing:

(a)  sharing of water from a water source must protect the water source and its dependent ecosystems, and

(b)  sharing of water from a water source must protect basic landholder rights, and

(c)  sharing or extraction of water under any other right must not prejudice the principles set out in paragraphs (a) and (b).

(4)  In relation to water use:

(a)  water use should avoid or minimise land degradation, including soil erosion, compaction, geomorphic instability, contamination, acidity, waterlogging, decline of native vegetation or, where appropriate, salinity and, where possible, land should be rehabilitated, and

(b)  water use should be consistent with the maintenance of productivity of land in the long term and should maximise the social and economic benefits to the community, and

(c)  the impacts of water use on other water users should be avoided or minimised.

(5)  In relation to drainage management:

(a)  drainage activities should avoid or minimise land degradation, including soil erosion, compaction, geomorphic instability, contamination, acidity, waterlogging, decline of native vegetation or, where appropriate, salinity and, where possible, land should be rehabilitated, and

(b)  the impacts of drainage activities on other water users should be avoided or minimised.

(6)  In relation to floodplain management:

(a)  floodplain management must avoid or minimise land degradation, including soil erosion, compaction, geomorphic instability, contamination, acidity, waterlogging, decline of native vegetation or, where appropriate, salinity and, where possible, land must be rehabilitated, and

(b)  the impacts of flood works on other water users should be avoided or minimised, and

(c)  the existing and future risk to human life and property arising from occupation of floodplains must be minimised.

(7)  In relation to controlled activities:

(a)  the carrying out of controlled activities must avoid or minimise land degradation, including soil erosion, compaction, geomorphic instability, contamination, acidity, waterlogging, decline of native vegetation or, where appropriate, salinity and, where possible, land must be rehabilitated, and

(b)  the impacts of the carrying out of controlled activities on other water users must be avoided or minimised.

(8)  In relation to aquifer interference activities:

(a)  the carrying out of aquifer interference activities must avoid or minimise land degradation, including soil erosion, compaction, geomorphic instability, contamination, acidity, waterlogging, decline of native vegetation or, where appropriate, salinity and, where possible, land must be rehabilitated, and

(b)  the impacts of the carrying out of aquifer interference activities on other water users must be avoided or minimised.

Division 2 State Water Management Outcomes Plan and water source classification

6   State Water Management Outcomes Plan

(1)  The Governor may, by order published in the Gazette, establish a State Water Management Outcomes Plan for the development, conservation, management and control of the State’s water resources in furtherance of the objects of this Act.

(2)  The objects of a State Water Management Outcomes Plan are as follows:

(a)  to set the over-arching policy context, targets and strategic outcomes for the management of the State’s water sources, having regard to:

(i)  relevant environmental, social and economic considerations, and

(ii)  the results of any relevant monitoring programs,

(b)  to promote the water management principles established by this Act,

(c)  to give effect to any State government policy statement in relation to salinity strategies.

(3)  The State Water Management Outcomes Plan must be consistent with:

(a)  government obligations arising under any inter-governmental agreement to which the government is a party, such as the Murray-Darling Basin Agreement referred to in the Murray–Darling Basin Act 1992, and

(b)  government obligations arising in connection with any international agreement to which the government of the Commonwealth is a party, and

(c)  State government policy, including State government policy in relation to the environmental objectives for water quality and river flow.

(4)  For the purposes of this section, State government policy includes such matters as are declared by the regulations to be State government policy.

(5)  The regulations may make provision for or with respect to the public consultation procedures to be complied with in relation to the establishment or amendment of a State Water Management Outcomes Plan.

(6)  A State Water Management Outcomes Plan has effect for the period of 5 years commencing on the date on which it is published in the Gazette.

7   Classification of water sources

(1)  The Minister may, by order published in the Gazette, classify water sources for the purposes of this Act.

(2)  Such an order may only be made with the concurrence of the Minister for Climate Change and the Environment.

(3)  Water sources are to be classified as follows:

(a)  as to the extent to which they are at risk (that is, the extent to which harm to the water source or its dependent ecosystems is likely to occur),

(b)  as to the extent to which they are subject to stress (that is, the extent to which harm to the water source or its dependent ecosystems has occurred or is occurring),

(c)  as to the extent of their conservation value (that is, the extent to which their intrinsic value merits protection from risk and stress).

(4)  It is the intention of Parliament that, within 12 months after the date of assent to this Act:

(a)  the water sources of the State be classified in accordance with this section, and

(b)  bulk access regimes be established for such of those water sources as are classified high risk, high stress or high conservation value.

(5)  A bulk access regime referred to in subsection (4) (b) is to be established by means of a Minister’s plan made, in the case of a water source that is within a water management area for which a management committee has been established, in consultation with that committee.

(6)  A bulk access regime referred to in subsection (4) (b) has effect for 10 years from the date on which it is established, but may be varied under section 45 as if it had been established by a management plan, in which case section 87 applies accordingly.

(7)  The regulations may prescribe rules in accordance with which water sources are to be classified for the purposes of this Act.

8   Environmental water

(1)  For the purposes of this Act, environmental water comprises the following:

(a)  water that is committed by management plans for fundamental ecosystem health or other specified environmental purposes, either generally or at specified times or in specified circumstances, and that cannot to the extent committed be taken or used for any other purpose (planned environmental water),

(b)  water (licensed environmental water) that is:

(i)  committed by an adaptive environmental water condition under section 8B, 8C, 8D or 63B, or

(ii)  taken or permitted to be taken under a licence of an environmental subcategory, or

(iii)  taken or permitted to be taken under a licence of a class prescribed by the regulations for the purposes of this paragraph.

(1A)  A management plan is to commit water as planned environmental water in at least 2 of the following ways (whether by 2 separate ways or a combination of 2 ways):

(a)  by reference to the commitment of the physical presence of water in the water source,

(b)  by reference to the long-term average annual commitment of water as planned environmental water,

(c)  by reference to the water that is not committed after the commitments to basic landholder rights and for sharing and extraction under any other rights have been met.

(2)  A management plan must contain provisions for the identification, establishment and maintenance of planned environmental water (environmental water rules). The environmental water rules relating to a water source do not need to specify that a minimum quantity of water is required to be present in the water source at all times.

(3)  Environmental water rules are to be established for all of the water sources in the State as soon as practicable after the commencement of this section.

(4)  (Repealed)

8A   Planned environmental water

(1)  The Minister may cancel any supplementary water access licence, and any other category or subcategory of licence prescribed by the regulations, that is held by the Minister and commit an equivalent amount of water as determined in accordance with the management plan as planned environmental water for the water source to which the licence related.

(2)  Planned environmental water committed under this section is to be used for only those purposes specified in the relevant management plan.

(3)  Sections 78, 78A and 87 do not apply to the cancellation of an access licence under this section.

8B   Adaptive environmental water through dedication of existing water entitlements

(1)  The holder of an access licence may request that the Minister impose an adaptive environmental water condition in respect of the whole or a part of the access licence.

(2)  A condition imposed under this section may be amended, and is to be revoked, by the Minister at the request in writing of the holder of the access licence, except as provided by the regulations.

8C   Adaptive environmental water through system improvements

(1)  The Minister may grant an access licence of a category or subcategory determined by the Minister to the Minister, a catchment management authority or other public body, without the need for an application to be made for the licence in accordance with Part 2 of Chapter 3, so long as:

(a)  works or other actions result in water savings in the system being made in the water source in respect of which the licence is granted, and

(b)  the share component of the licence is equivalent to the value of water savings in the system made, and

(c)  an adaptive environmental water condition is imposed on the licence.

(2)  In this section, system means that part of a water source to which a management plan applies that is not identified by the plan for commitments to basic landholder rights and for sharing and extraction under any other rights.

8D   Adaptive environmental water conditions after surrender of licences

(1)  The Minister may keep an access licence surrendered by the holder of the licence or transfer it to a catchment management authority or other public body, and may change the licence to a different category or subcategory, if:

(a)  the share component of the licence is equivalent to the share component of the surrendered licence (subject to the application of any conversion factor prescribed by the access licence dealing principles or the regulations), and

(b)  an adaptive environmental water condition is or has been imposed on the licence.

(2)  The Minister may cancel an access licence surrendered by the holder of the licence and transfer the share component of the surrendered licence (subject to the application of any conversion factor prescribed by the access licence dealing principles or the regulations) to another licence if an adaptive environmental water condition is or has been imposed on the licence.

8E   General provisions relating to access licences with adaptive environmental water conditions

(1)  This section applies to access licences that are subject to an adaptive environmental water condition.

(2)  For the purposes of this Act (but subject to section 8B (2)), an adaptive environmental water condition is a mandatory condition.

(3)  The terms of an adaptive environmental water condition imposed in respect of an access licence are to further the objectives of the relevant management plan.

(4)  If the adaptive environmental water condition on an access licence requires the water to be left in the water source for environmental purposes, then the water allocation account is to be debited when the water is available in accordance with the condition.

(5)  If the adaptive environmental water condition requires the environmental water to be taken from the water source then the water allocation account is to be debited when it is taken.

(6)  (Repealed)

(7)  Before imposing an adaptive environmental water condition on an access licence, the Minister is to approve a plan for the implementation of the condition.

(8)  The Minister is to ensure that the plan referred to in subsection (7), and a requirement to comply with the plan, forms part of the adaptive environmental water condition.

(9)  An access licence to which this section applies, or a part of such a licence to which the adaptive environmental water condition concerned is expressed to relate, may be the subject of a dealing in accordance with this Act if the plan approved under subsection (7) so provides.

8F   Auditing of compliance with extraction limits

(1)  This section applies for the purpose of auditing compliance with the long-term extraction limit (however expressed) under a management plan.

(2)  The long-term extraction limit is taken to be varied by the amount of any change to the amount of water committed as licensed environmental water.

(3)  The variation in the long-term extraction limit is to be determined in accordance with a methodology approved by the Minister and published in the Gazette.

(4)  To avoid doubt, water savings in a system (within the meaning of section 8C) are not to be taken into account when determining the variation.

(5)  Water committed as licensed environmental water is not to be accounted for as extraction.

Division 3 General

9   Act to be administered in accordance with water management principles and State Water Management Outcomes Plan

(1)  It is the duty of all persons exercising functions under this Act:

(a)  to take all reasonable steps to do so in accordance with, and so as to promote, the water management principles of this Act, and

(b)  as between the principles for water sharing set out in section 5 (3), to give priority to those principles in the order in which they are set out in that subsection.

(2)  It is the duty of all persons involved in the administration of this Act to exercise their functions under this Act in a manner that gives effect to the State Water Management Outcomes Plan.

10   Review of work and activities of Department

(1)  The Minister is to ensure that the work and activities of the Department are reviewed at intervals of not more than 5 years for the purpose of determining whether they have been effective in giving effect to the water management principles of this Act and the State Water Management Outcomes Plan.

(2)  The results of each review under this section are to be included in the relevant annual report for the Department under the Annual Reports (Departments) Act 1985.

Part 2 Management committees

11   Constitution of water management areas

(1)  The Minister may, by order published in the Gazette, constitute any land as a water management area.

(2)  An order under this section must name the area and fix its boundaries.

12   Establishment of management committees

(1)  The Minister may, by order published in the Gazette:

(a)  establish a management committee to carry out a specific task in relation to water management in a water management area, and

(b)  set terms of reference in accordance with which the committee is to carry out that task.

(2)  The task for which a management committee is appointed may relate to any aspect of water management, including (without limitation) water sharing, water source protection, floodplain management and drainage management.

(3)  At any time the Minister may, by order published in the Gazette, abolish a management committee, and may do so whether or not it has completed the task for which it was established.

(4)  Nothing in this section prevents the establishment of two or more committees for the same water management area so long as they do not have overlapping functions.

13   Membership of committee

(1)  A management committee consists of at least 12, but not more than 20, members appointed by the Minister, of whom:

(a)  at least two are to be persons appointed to represent the interests of environmental protection groups, and

(b)  at least two are to be persons appointed to represent the interests of water user groups, and

(c)  at least two are to be persons appointed to represent the interests of local councils, and

(d)  at least one is to be a person appointed to represent the interests of catchment management authorities, and

(e)  at least two are to be Aboriginal persons appointed to represent the interests of Aboriginal persons, and

(f)  at least one is to be a member of staff of the Department, and

(g)  at least one is to be a person nominated by the Minister for Climate Change and the Environment, and

(h)  such other persons as are appointed to represent such interests as the Minister considers require representation, and

(i)  one is to be a person (not being a member of staff of the Department) who is appointed as an independent chairperson for the committee.

(2)  The regulations may make provision with respect to qualifications for appointment as a member of a management committee.

(3)  The members appointed as referred to in subsection (1) (a)–(e) should, as far as practicable, be persons who reside within the water management area for which the management committee is being constituted.

(4)  Schedule 6 has effect with respect to the constitution and procedure of a management committee.

14   Functions of management committees

(1)  The principal function of a management committee is to carry out the task for which it is appointed.

(2)  The task for which a committee is appointed may include any one or more of the following:

(a)  to prepare a draft management plan for the whole or any part of the management area or of the water sources in the area,

(b)  to review a management plan that is in force in the water management area,

(c)  to investigate such matters affecting the management of the water management area as the Minister refers to it for investigation,

(d)  to report to the Minister on such matters affecting the management of the water management area as the Minister refers to it for report,

(e)  to advise the Minister on such matters affecting the management of the water management area as the Minister refers to it for advice.

(3)  It is the duty of a management committee to exercise its functions consistently with the principles of ecologically sustainable development.

Part 3 Management plans

Division 1 Preliminary

15   Preparation of draft management plan

(1)  The Minister may, by the order by which a management committee is established or by a subsequent order in writing:

(a)  direct the committee to prepare a draft management plan, and review any related implementation program, on any aspect of water management, including (but not limited to):

(i)  water sharing, and

(ii)  water source protection, and

(iii)  drainage management, and

(iv)  floodplain management, and

(b)  set terms of reference in accordance with which such a plan is to be prepared.

(2)  A management committee to which such an order is given is to prepare a draft management plan in accordance with the terms of reference specified in the order.

(3)  If the management committee fails to prepare a draft management plan in accordance with its terms of reference, the Minister may make a Minister’s plan under section 50 in respect of the matter.

(4)  (Repealed)

16   Management plans to be consistent with other instruments

(1)  A management plan must be consistent with:

(a)  the State Water Management Outcomes Plan, and

(b)  any State environmental planning policy under the Environmental Planning and Assessment Act 1979, and

(c)  any protection of the environment policy under the Protection of the Environment Operations Act 1997, and

(d)  any regulation under the Sydney Water Catchment Management Act 1998 or the Googong Dam Catchment Area Act 1975, and

(e)  State government policy, including State government policy in relation to the environmental objectives for water quality and river flow.

(2)  For the purposes of this section, State government policy includes such matters as are declared by the regulations to be State government policy.

17   Provisions applicable to all management plans

A management plan may, in respect of a water management area or water source to which it applies, contain the following kinds of provisions:

(a)  provisions with respect to the preservation and enhancement of the quality of water,

(b)  provisions with respect to the kinds of monitoring and reporting requirements that should be imposed as conditions of approvals,

(c)  provisions with respect to the conditions to which access licences and approvals are to be subject (mandatory conditions),

(d)  provisions indicating the circumstances in which, the matters in respect of which and the extent to which the management plan may be amended by the Minister during the period for which it is in force,

(e)  provisions with respect to such other matters as may be authorised by the regulations.

18   Matters for consideration

(1)  In formulating a draft management plan, the management committee must have due regard to the socio-economic impacts of the proposals considered for inclusion in the draft plan.

(1A)  In formulating a draft management plan, the management committee must also have due regard to the provisions of any relevant catchment action plan under the Catchment Management Authorities Act 2003.

(2)  Due regard may also be had, in the formulation of the plan’s proposals, to the effect within each water management area or water source to which the plan applies of activities occurring, or likely to occur, outside each such area or water source.

Division 2 Water sharing

19   Application of Division

(1)  This Division applies to the provisions of a management plan to the extent to which they deal with water sharing.

(2)  The water sharing provisions of a management plan may apply to the whole or any part of a water management area, or to the whole or any part of one or more water sources within a water management area.

20   Core provisions

(1)  The water sharing provisions of a management plan for a water management area or water source must deal with the following matters:

(a)  the establishment of environmental water rules for the area or water source,

(b)  the identification of requirements for water within the area, or from the water source, to satisfy basic landholder rights,

(c)  the identification of requirements for water for extraction under access licences,

(d)  the establishment of access licence dealing rules for the area or water source,

(e)  the establishment of a bulk access regime for the extraction of water under access licences, having regard to the rules referred to in paragraphs (a) and (d) and the requirements referred to in paragraphs (b) and (c).

(2)  The bulk access regime referred to in subsection (1) (e):

(a)  must recognise and be consistent with any limits to the availability of water that are set (whether by the relevant management plan or otherwise) in relation to the water sources to which the regime relates, and

(b)  must establish rules according to which access licences are to be granted and managed and available water determinations to be made, and

(c)  must recognise the effect of climatic variability on the availability of water, and

(d)  may establish rules with respect to the priorities according to which water allocations are to be adjusted as a consequence of any reduction in the availability of water, and

(e)  may contain provisions with respect to the conditions that must (as mandatory conditions) be imposed on access licences under section 66 (1), including conditions providing for the variation, from time to time, of the share and extraction components of access licences, and

(f)  must be consistent with the water management principles.

(3)  The rules referred to in subsection (2) (d) must comply with the priorities established under section 58.

(4)  The access licence dealing rules established under subsection (1) (d):

(a)  must comply with the access licence dealing principles, and

(b)  must not deal with any matter for which the access licence dealing principles may make provision under section 71Z (2), and

(c)  subject to paragraph (b) and the access licence dealing principles, may regulate or prohibit any dealing under Division 4 of Part 2 of Chapter 3.

21   Additional provisions

The water sharing planning provisions of a management plan for a water management area or water source may also deal with the following matters:

(a)  the rates, times and circumstances under which water may be taken from any water source in the area, or the quantity of water that may be taken from any water source in the area or delivered through the area,

(b)  the kinds of water supply works that may be constructed and used in the area,

(c)  the operation of water accounts for the area or water source, such as the carrying over of credits from one accounting period to the next, the maximum credit that may be allowed to accumulate in any account and the withdrawal of water from any account by reason of evaporation or dam spill or in such other circumstances as may be prescribed by the regulations,

(d)  water sharing measures for the protection and enhancement of the quality of water in the water sources in the area or for the restoration or rehabilitation of water sources or their dependent ecosystems,

(e)  measures to give effect to the water management principles and the objects of this Act,

(f)  such other matters as are prescribed by the regulations.

Division 3 Water use

22   Application of Division

(1)  This Division applies to the provisions of a management plan to the extent to which they deal with water use.

(2)  The water use provisions of a management plan may apply to the whole or any part of a water management area.

23   Core provisions

The water use provisions of a management plan for a water management area must deal with the following matters:

(a)  the identification of existing and potential water use practices and related activities,

(b)  the identification of those uses and activities which have adverse impacts, including cumulative impact, on water sources or their dependent ecosystems or on other water users,

(c)  the identification of the occurrence of land degradation, including soil erosion, compaction, geomorphic instability, contamination, acidity, waterlogging, decline of native vegetation or, where appropriate, salinity within the area and any impacts on water sources.

24   Additional provisions

The water use provisions of a management plan for a water management area may also deal with the following matters:

(a)  best practice for water conservation, water efficiency and total water cycle management,

(b)  prevention of off-site impacts of water use,

(c)  requirements for the restoration or rehabilitation of land or water sources or their dependent ecosystems,

(d)  protection of the habitats or pathways of animals and plants,

(e)  the preservation and enhancement of the quality of water of the water sources in the area affected by water use and related practices,

(f)  structural or operational modifications for existing works,

(g)  other measures to give effect to the water management principles and the objects of this Act,

(h)  such other matters as are prescribed by the regulations.

Division 4 Drainage management

25   Application of Division

(1)  This Division applies to the provisions of a management plan to the extent to which they deal with drainage management.

(2)  The drainage management provisions of a management plan may apply to the whole or any part of a water management area.

26   Core provisions

The drainage management provisions of a management plan for a water management area must deal with the following matters:

(a)  the identification of the existing and natural hydrological regimes in the area,

(b)  the identification of existing drainage works in the area and the way they are managed,

(c)  the ecological impacts and impacts on water quality, including cumulative impacts, of the drainage works in the area.

27   Additional provisions

The drainage management provisions of a management plan for a water management area may also deal with the following matters:

(a)  proposals for the construction of new drainage works,

(b)  the modification or removal of existing drainage works,

(c)  restoration or rehabilitation of land, habitats, water sources or their dependent ecosystems,

(d)  the preservation and enhancement of the quality of water of the water sources in the area affected by drainage management,

(e)  other measures to give effect to the water management principles and the objects of this Act,

(f)  such other matters as are prescribed by the regulations.

Division 5 Floodplain management

28   Application of Division

(1)  This Division applies to the provisions of a management plan to the extent to which they deal with floodplain management.

(2)  The floodplain management provisions of a management plan may apply to the whole or any part of a water management area.

29   Core provisions

The floodplain management provisions of a management plan for a water management area must deal with the following matters:

(a)  identification of the existing and natural flooding regimes in the area, in terms of the frequency, duration, nature and extent of flooding,

(b)  the identification of the ecological benefits of flooding in the area, with particular regard to wetlands and other floodplain ecosystems and groundwater recharge,

(c)  the identification of existing flood works in the area and the way they are managed, their benefits in terms of the protection they give to life and property, and their ecological impacts, including cumulative impacts,

(d)  the risk to life and property from the effects of flooding.

30   Additional provisions

The floodplain management provisions of a management plan for a water management area may also deal with the following matters:

(a)  proposals for the construction of new flood works,

(b)  the modification or removal of existing flood works,

(c)  restoration or rehabilitation of land, water sources or their dependent ecosystems, in particular in relation to the following:

(i)  the passage, flow and distribution of floodwater,

(ii)  existing dominant floodways and exits from floodways,

(iii)  rates of flow, floodwater levels and duration of inundation,

(iv)  downstream water flows,

(v)  natural flood regimes, including spatial and temporal variability,

(d)  the control of activities that may affect or be affected by the frequency, duration, nature or extent of flooding within the water management area,

(e)  the preservation and enhancement of the quality of water in the water sources in the area during and after flooding,

(f)  other measures to give effect to the water management principles and the objects of this Act,

(g)  such other matters as are prescribed by the regulations.

Division 6 Controlled activities and aquifer interference activities

31   Application of Division

(1)  This Division applies to the provisions of a management plan to the extent to which they deal with controlled activities and aquifer interference activities.

(2)  The controlled activity and aquifer interference activity provisions of a management plan may apply to the whole or any part of a water management area.

32   Core provisions

The controlled activity and aquifer interference activity planning provisions of a management plan for a water management area must deal with the following matters:

(a)  identification of the nature of any controlled activities or aquifer interference causing impacts, including cumulative impacts, on water sources or their dependent ecosystems, and the extent of those impacts,

(b)  specification of controlled activities or aquifer interferences which are to require controlled activity approvals or aquifer interference approvals in the area.

33   Additional provisions

The controlled activity and aquifer interference activity provisions of a management plan for a water management area may also deal with the following matters:

(a)  the undertaking of work for the purpose of restoring or rehabilitating a water source or its dependent ecosystems,

(b)  protecting, restoring or rehabilitating the habitats or pathways of animals and plants,

(c)  specific controls on activities causing unacceptable impacts,

(d)  the preservation and enhancement of the quality of water in the water sources in the area affected by controlled activities or aquifer interference,

(e)  other measures to give effect to the water management principles and the objects of this Act,

(f)  such other matters as are prescribed by the regulations.

Division 7 Environmental protection

34   Environmental protection provisions

(1)  A management plan for a water management area, or any part of a water management area, may contain the following provisions (environmental protection provisions) in respect of any aspect of water management:

(a)  provisions identifying zones in which development should be controlled in order to minimise any harm to water sources in the area or to minimise any threat to the floodplain management provisions of the plan,

(b)  provisions identifying development that should be controlled in any such zone,

(c)  provisions identifying the manner in which any such development should be controlled in any such zone,

(d)  provisions to which State agencies and local authorities (including local councils) should be subject when taking action and making decisions concerning any such development,

(e)  provisions requiring development consent to the carrying out of any such development,

(f)  provisions requiring the Minister’s concurrence to the granting of any such development consent,

(g)  provisions requiring the establishment of action plans to encourage the abandonment of existing uses that cause harm to water sources, and to encourage the carrying out of remedial measures to minimise or alleviate any harm already caused to water sources by the continuance of existing uses.

(2)  In this section, control, development, development consent and existing use have the same meanings as they have in the Environmental Planning and Assessment Act 1979.

Division 8 Procedures for making management plans

35   Format of management plan

(1)  A management plan must include the following components:

(a)  a vision statement,

(b)  objectives consistent with the vision statement,

(c)  strategies for reaching those objectives,

(d)  performance indicators to measure the success of those strategies.

(2)  In the case of a water management area for which an equivalent management plan is already in force, the draft management plan may be in the form of:

(a)  an amendment to the existing management plan, or

(b)  a new plan to replace the existing management plan.

(3)  Subject to subsections (1) and (2), the format of a management plan is to be as determined by the Minister.

36   Notification of certain persons and bodies

(1)  In preparing a draft management plan, the following information must be notified to each person or body referred to in subsection (2):

(a)  the general aims and objectives of the draft plan,

(b)  a description of the water management area to which the draft plan is intended to apply,

(c)  such other matters as the Minister thinks fit.

(2)  The persons and bodies to be notified are as follows:

(a)  each local council within whose area the water management area is located,

(b)  each catchment management authority under the Catchment Management Authorities Act 2003 within whose area of operations the water management area is located,

(c)  each holder of an access licence or approval in respect of land within the water management area,

(d)  such other persons or bodies as the Minister may determine in relation to the plan.

(3)  Failure to notify a person or body referred to in subsection (2) does not affect the validity of a management plan.

(4)  A person to whom information is notified under this section may make written submissions to the Minister in relation to the preparation of the draft management plan within 28 days (or such longer period as may be determined by the Minister) after the information is notified.

37   Reference of draft management plan to Minister

(1)  After a draft management plan has been prepared, including a draft management plan that has been referred back to it under this section, the management committee must submit the plan to the Minister.

(2)  If the Minister is of the opinion that the draft plan does not comply with the requirements of this Part, the Minister is to refer the draft plan back to the management committee for further consideration.

(3)  This section does not apply to a draft management plan prepared by the Minister.

38   Public exhibition of draft management plan

(1)  Once the Minister is satisfied that a draft management plan is suitable for public exhibition, the Minister:

(a)  must give public notice of the draft plan, and

(b)  must exhibit the draft plan (together with such other information as is appropriate or necessary to enable the draft plan and its implications to be understood) at the places, on the dates and during the times set out in the notice.

(2)  The public notice referred to in subsection (1) (a):

(a)  must specify the places at which, the dates on which, and the times during which, the draft plan 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 plan (the submission period), and

(c)  must be published in an appropriate newspaper.

(3)  In the case of a draft management plan containing environmental protection provisions, the Minister must consult with the Minister for Urban Affairs and Planning before making a decision as to whether the plan is suitable for public exhibition.

39   Submissions on draft management plan

(1)  During the submission period, any person may make written submissions to the Minister on the draft management plan.

(2)  The Minister must send a copy of each such submission to the management committee by which the plan was prepared.

(3)  Subsection (2) does not apply to a draft management plan prepared by the Minister.

40   Resubmission of draft management plan to Minister

(1)  As soon as practicable after completing its consideration of any submissions received by it, the management committee must resubmit the draft management plan to the Minister together with the committee’s comments on the submissions.

(2)  Before making any alterations to the draft management plan, the Minister must consult with the management committee.

(3)  This section does not apply to a draft management plan prepared by the Minister.

41   Making of management plan

(1)  After complying with the requirements of this Part, the Minister:

(a)  may, by order published on the NSW legislation website, make a management plan in accordance with the draft plan, as finally submitted to the Minister, or

(b)  may, by order published on the NSW legislation website, make a management plan in accordance with the draft plan, as finally submitted to the Minister, but with such alterations as the Minister thinks fit, or

(c)  may cause the draft management plan to be re-exhibited (with such alterations as the Minister thinks fit) and resubmitted in accordance with this Part, or

(d)  may decide not to proceed with the draft management plan.

(2)  Before making a management plan, the Minister must obtain the concurrence of the Minister for Climate Change and the Environment to the making of the plan.

(3)  A management plan commences on the date on which it is published on the NSW legislation website or on such later date as may be specified in the plan.

42   Amendment of management plans

(1)  A management plan may be amended by a subsequent management plan made in accordance with this Part.

(2)  This section does not limit the operation of Division 9.

(3)  Each management plan specified in Schedule 12 is amended as set out in that Schedule.

(4)  The amendment of a management plan by this or any other Act does not prevent its later amendment or repeal in accordance with this Act.

43   Duration of management plans

(1)  Subject to section 43A, a management plan has effect for:

(a)  if the plan commenced on 1 July in any year—10 years from that date, or

(b)  in any other case—10 years from 1 July next after the date the plan commenced.

(2)  Within the fifth year after it was made, the Minister is to review each management plan (other than provisions dealing with water sharing) for the purpose of ascertaining whether its provisions remain adequate and appropriate for ensuring the effective implementation of the water management principles.

(3)  Such a review is to be conducted in consultation with the Minister for Climate Change and the Environment.

(4)  A new management plan may be made in accordance with this Act to replace an earlier management plan. Any such replacement plan may contain provisions of a savings or transitional nature consequent on the replacement of the plan.

43A   Extension of duration of management plan dealing with water sharing

(1)  The Minister may, on the recommendation of the Natural Resources Commission and by notice published in the Gazette before its expiry under section 43 or this section, extend a management plan that deals with water sharing for a further period of 10 years after the plan was due to expire.

(2)  More than one such extension of a management plan that deals with water sharing may be made.

(3)  Before deciding whether to extend a management plan that deals with water sharing or to make a new management plan, the Minister is to consider a report of the Natural Resources Commission that reviews (within the previous 5 years) the following:

(a)  the extent to which the water sharing provisions have materially contributed to the achievement, or the failure to achieve, the relevant State-wide natural resource management standards and targets in the relevant catchment management area (as referred to in section 5 of the Catchment Management Authorities Act 2003),

(b)  whether changes to those provisions are warranted.

(3A)  If a report of the Natural Resources Commission under subsection (3) recommends changes to a management plan that will result in a reduction of water allocations in relation to which compensation might be payable under section 87AA, the Commission is to state in the report whether the purpose of the proposed changes is:

(a)  to restore water to the environment because of natural reductions in inflow to the relevant water source, including but not limited to changes resulting from climate change, drought or bushfires, or

(b)  to provide additional water to the environment because of more accurate scientific knowledge that demonstrates that the amount previously allocated to the environment is inadequate.

(4)  For the purposes of a report under subsection (3):

(a)  the Natural Resources Commission is to call for public submissions and to have regard to any duly received, and

(b)  the Natural Resources Commission is to have regard to any other relevant State-wide and regional government policies or agreements that apply to the catchment management area.

(5)  A report of the Natural Resources Commission under subsection (3) is to be made public after the decision of the Minister with respect to the extension of the management plan or on the expiration of 6 months after the report is received by the Minister, whichever first occurs.

(6)  If the Minister decides not to extend a management plan under this section, the Minister may, by notice published in the Gazette, extend the existing management plan until the commencement of a replacement management plan or until the first anniversary of the date the plan would otherwise have expired, whichever first occurs.

44   Periodic auditing of management plans

(1)  The Minister is to ensure that a management plan is audited, at intervals of not more than 5 years, for the purpose of ascertaining whether its provisions are being given effect to.

(2)  An audit under this section is to be carried out by an audit panel appointed by the Minister in consultation with the Water Management Committee where one exists.

(3)  In setting terms of reference for the preparation of a management plan to replace an existing management plan, the Minister must have regard to the results of the most recent audit conducted under this section in relation to the existing management plan.

Division 9 Amendment of management plans by Minister

45   Minister may amend or repeal management plan

(1)  The Minister may at any time, by order published on the NSW legislation website, amend a management plan:

(a)  if satisfied it is in the public interest to do so, or

(b)  in such circumstances, in relation to such matters and to such extent as the plan so provides, or

(c)  if the amendment is required to give effect to a decision of the Land and Environment Court relating to the validity of the plan.

(2)  (Repealed)

(3)  Before amending a management plan, the Minister must obtain the concurrence of the Minister for Climate Change and the Environment to the amendment.

(4)  The date of commencement of a management plan may, but the duration of a management plan may not, be extended by an amendment of the plan under this section.

(5)  The Minister may at any time, by order published on the NSW legislation website, repeal a management plan (other than a management plan that deals with water sharing).

(6)  The amendment or repeal of a management plan under this section takes effect on the date the order is published on the NSW legislation website or on a later date specified in the order.

(7)  An order under subsection (1) (a) varying a bulk access regime is not to be made in relation to a water management area for which a management committee for water sharing is constituted unless the Minister has consulted with the committee in relation to the proposed amendment.

(8)  A provision of a management plan that authorises the amendment of the plan in accordance with section 42 (2) of this Act is to be construed as a reference to an amendment authorised by subsection (1) (b).

Division 10

(Repealed)

Division 11 Miscellaneous

46   Making or amendment of management plan

(1)  If the Minister makes a replacement management plan or amends a management plan and the replacement plan or amendment will result in a reduction of water allocations in relation to which compensation might be payable under section 87AA, the Minister is to include in the order in which the replacement plan or amendment is made, or in another order, a statement as to whether:

(a)  the purpose of the reduction to water allocations is to restore water to the environment because of natural reductions in inflow to the relevant water source, including but not limited to changes resulting from climate change, drought or bushfires, or

(b)  the purpose of the reduction to water allocations is to provide additional water to the environment because of more accurate scientific knowledge that demonstrates that the amount previously allocated to the environment is inadequate, but not if that purpose is also the purpose referred to in paragraph (d), or

(c)  the reduction to water allocations results from a change in State government policy, or

(d)  the purpose of the reduction to water allocations is to enable the replacement plan or amended plan, as the case may be, to be accredited under the Water Act 2007 of the Commonwealth.

(2)  A statement referred to in subsection (1):

(a)  need not be made if the reduction concerned arises from circumstances referred to in section 87AA (3) (a) or (b), and

(b)  in a case where the reduction is made for more than one of the purposes referred to in subsection (1), is to specify each of the relevant purposes and the extent to which the reduction relates to each of those relevant purposes.

47   Validity of management plans and exercise of plan-making functions

(1)  The validity of a management plan may not be challenged, reviewed, quashed or called into question before any court in any proceedings, other than before the Land and Environment Court in proceedings commenced within the judicial review period.

(2)  The judicial review period in respect of a management plan is:

(a)  the period of 3 months after the date the plan was published on the NSW legislation website, except as provided by paragraph (b), or

(b)  in relation to a provision of the plan that was inserted by an amendment of the plan (other than an amendment under section 45 (1) (c)), the period of 3 months after the date that the amendment was published on the NSW legislation website.

A judicial review period does not arise as a result of the extension of the duration of a management plan.

(3)  The judicial review period cannot be extended by the Land and Environment Court or any other court, despite any other Act or law.

(4)  Without limiting subsection (1), the exercise by a designated person of any plan-making function may not be:

(a)  challenged, reviewed, quashed or called into question before any court in any proceedings, or

(b)  restrained, removed or otherwise affected by any proceedings,

      other than before the Land and Environment Court in proceedings commenced within the judicial review period.

(5)  The provisions of or made under this Act and the rules of natural justice (procedural fairness), so far as they apply to the exercise of any plan-making function, do not place on a designated person any obligation enforceable in a court (other than in the Land and Environment Court in proceedings commenced within the judicial review period).

(6)  Accordingly, no court (other than the Land and Environment Court in proceedings commenced within the judicial review period) has jurisdiction or power to consider any question involving compliance or non-compliance, by a designated person, with those provisions or with those rules so far as they apply to the exercise of any plan-making function.

(7)  This section is not to be construed as applying the rules of natural justice to the exercise of plan-making functions for the purposes of proceedings instituted within the judicial review period.

(8)  In this section:

court includes any court of law or administrative review body.

designated person means the Minister, a management committee, the Director-General or any person or body assisting or otherwise associated with any of them.

exercise of functions includes the purported exercise of functions and the non-exercise or improper exercise of functions.

judicial review period—see subsection (2).

management plan includes purported management plan.

plan-making function means:

(a)  a function under this Act relating to the making of a management plan (including relating to the amendment, replacement or repeal of a management plan or the extension of the duration of a management plan), or

(b)  a function under section 46 of this Act relating to the statement of the purpose for which any provision of a management plan has been made.

proceedings includes:

(a)  proceedings for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, and

(b)  without limiting paragraph (a), proceedings in the exercise of the inherent jurisdiction of the Supreme Court or the jurisdiction conferred by section 23 of the Supreme Court Act 1970.

48   Effect of management plans on exercise of Minister’s functions

When exercising functions under this Act, the Minister must take all reasonable steps to give effect to the provisions of any management plan and, in particular, to ensure that any environmental water rules established by the plan are observed.

49   Consideration of management plans by public authorities

(1)  When exercising its functions, a public authority must have regard to the provisions of any management plan to the extent to which they apply to the public authority.

(2)  For the purposes of this section, a management plan may be expressed so as to apply:

(a)  to a specified public authority, to a specified class of public authorities or to public authorities generally, and

(b)  to a specified function, to a specified class of functions or to functions generally.

(3)  This section neither restricts a public authority’s statutory discretions nor authorises a public authority to do anything inconsistent with its statutory or other legal obligations.

49A   Suspension of management plans during severe water shortages

(1)  If satisfied that there is a severe water shortage in relation to a particular water management area or water source, the Minister may, by order published in the Gazette, suspend the operation of any management plan, either in whole or in part, in relation to that or any other water management area or water source.

(2)  Before suspending the operation of a management plan in relation to a water management area or water source, the Minister must obtain the concurrence of the Minister for Climate Change and the Environment.

(3)  As soon as practicable after an order under this section is published in the Gazette, a copy of the order must be published in an appropriate newspaper.

(4)  An order under this section expires at the end of 30 June following the date on which it is made or, if made on or after 1 April in any year, at the end of 30 June of the following year.

(5)  An order may not be made under this section in relation to a management plan that has, at any time during the previous 12 months, been subject to a prior order under this section unless the Minister is satisfied, for reasons specified in the order, that there is no need for the plan to be amended under Division 9.

Part 4 Minister’s plans

50   Minister’s plan

(1)  The Minister may, by order published on the NSW legislation website, make a plan (a Minister’s plan):

(a)  for any part of the State that is not within a water management area, or

(b)  for any water management area or water source, or part of a water management area or water source, for which a management plan is not in force, or

(c)  for any water management area or water source, or part of a water management area or water source, for which a management plan is in force, but only so as to deal with matters not dealt with by the management plan.

(1A)  A Minister’s plan may be made for more than one water management area or water source or for parts of more than one water management area or water source.

(2)  A Minister’s plan must in general terms deal with any matters that a management plan is required to deal with, and may also deal with any other matters that a management plan is authorised to deal with, other than matters that are already dealt with by a management plan.

(2A)  Part 3 (except sections 15 and 36–41) applies to a Minister’s plan. However, the Minister:

(a)  may adopt any of the provisions of sections 36–41 in a particular case, and

(b)  may dispense with a particular requirement of Part 3 in the case of a Minister’s plan referred to in subsection (1A).

(3)  Before making a Minister’s plan, the Minister must obtain the concurrence of the Minister for Climate Change and the Environment to the making of the plan.

(4)  Except to the extent to which this Act otherwise provides, a Minister’s plan has the same effect as a management plan.

(5)  The Minister may decide whether to make a Minister’s plan or a management plan in respect of any matter (whether or not any draft management plan has been submitted to the Minister).

Part 5 Implementation programs

51   Implementation programs

(1)  The Minister may, by order in writing, establish a program for implementing a management plan or Minister’s plan (an implementation program).

(2)  Before establishing the first implementation program for a management plan, the Minister must consult with the management committee by which the plan was prepared.

(3)  An implementation program must set out the means by which the Minister intends that the objectives of the relevant management plan or Minister’s plan are to be achieved.

(4)  On establishing an implementation program, the Minister must ensure that:

(a)  notice of that fact is published (in an appropriate newspaper and in such other manner as the Minister considers appropriate) to persons in the area to which the program relates, and

(b)  copies of the program (as currently in force) are made available for inspection during normal office hours, free of charge, at suitable locations within the area.

(5)  The Minister is to ensure that the implementation program is reviewed each year for the purpose of determining whether the implementation program is effective in implementing the management plan or Minister’s plan to which it relates.

(6)  The results of each review under this section are to be included in the annual report for the Department under the Annual Reports (Departments) Act 1985.

Chapter 3 Water management implementation

Part 1 Basic landholder rights

Division 1 Domestic and stock rights

52   Domestic and stock rights

(1)  Subject to subsection (2), an owner or occupier of a landholding is entitled, without the need for an access licence, water supply work approval or water use approval:

(a)  to take water from any river, estuary or lake to which the land has frontage or from any aquifer underlying the land, and

(b)  to construct and use a water supply work for that purpose, and

(c)  to use the water so taken for domestic consumption and stock watering, but not for any other purpose.

(2)  Subsection (1) does not allow a landholder:

(a)  to take or use water in contravention of any mandatory guidelines established under section 336B, or

(b)  to construct a dam or water bore without a water supply work approval, or

(c)  in the case of the owner or occupier of a landholding arising from a subdivision effected on or after 1 July 2004, to take or use water in contravention of any prohibition or restriction imposed by or under the regulations (including any prohibition or restriction that the Minister is authorised by the regulations to impose), or

(d)  to carry out a controlled activity without a controlled activity approval.

(3)  In this section:

domestic consumption, in relation to land, means consumption for normal household purposes in domestic premises situated on the land.

stock watering, in relation to land, means the watering of stock animals being raised on the land, but does not include the use of water in connection with the raising of stock animals on an intensive commercial basis that are housed or kept in feedlots or buildings for all (or a substantial part) of the period during which the stock animals are being raised.

Division 2 Harvestable rights

53   Harvestable rights

(1)  An owner or occupier of a landholding within a harvestable rights area is entitled, without the need for any access licence, water supply work approval or water use approval:

(a)  to construct and use a dam for the purpose of capturing and storing rainwater run-off, and

(b)  to use water that has been captured and stored by a dam so constructed,

      in accordance with the harvestable rights order by which the area is constituted.

(2)  A single dam may be used both for rainwater run-off that has been captured and other water that has been lawfully taken from a water source, but only if the harvestable rights order so provides.

(3)  This section does not allow a landholder:

(a)  to supply any other land with water that has been captured and stored under this section, or

(b)  to construct or use a dam that obstructs the flow of a river, unless the river is declared by the relevant harvestable rights order to be a minor stream for the purposes of this Division.

54   Harvestable rights orders

(1)  The Minister may, by order published on the NSW legislation website, constitute any land as a harvestable rights area and may, by the same or a subsequent order so published, name the area and fix its boundaries.

Editorial note. For harvestable rights orders see Gazette No 110 of 1.7.2004, pp 5515, 5517.

(2)  The order by which a harvestable rights area is constituted must specify the following:

(a)  the proportion of the average rainwater run-off that may be captured by landholders in the area (being no less than 10% of that average),

(b)  the procedures to be followed for calculating the average rainwater run-off for a landholding in the area.

(3)  The order may allow an existing dam to be used both for rainwater run-off that has been captured and other water that has been lawfully taken from a water source.

(4)  The order may also deal with the following matters:

(a)  the types and locations of dams that may be used by a landholder to capture and store rainwater run-off,

(b)  the means by which the maximum capacity of a dam that may be used by a landholder to capture and store rainwater run-off is to be calculated,

(c)  the arrangements that may be made by landholders of adjoining land for the shared use of a single dam for the capture of rainwater run-off,

(d)  such other matters as are necessary or convenient to give effect to the order.

(5)  For the purpose of calculating any matter under an order under this section, a reference in the order to an area of land is, in the case of land that is valued under the Valuation of Land Act 1916, a reference to the area of a portion or parcel of land that is separately valued under that Act.

(6)  An order under this section may deal with any matter by reference to a map held by the Department.

(7)  Any map that is so referred to is to be available for public inspection, free of charge, during normal office hours at the appropriate regional office of the Department for the area to which the relevant order relates.

Division 3 Native title rights

55   Native title rights

(1)  A native title holder is entitled, without the need for an access licence, water supply work approval or water use approval, to take and use water in the exercise of native title rights.

(2)  This section does not authorise a native title holder:

(a)  to construct a dam or water bore without a water supply work approval, or

(b)  to construct or use a water supply work otherwise than on land that he or she owns.

(3)  The maximum amount of water that can be taken or used by a native title holder in any one year for domestic and traditional purposes is the amount prescribed by the regulations.

Part 2 Access licences

Division 1 Preliminary

55A   Application of Part

(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.

56   Access licences

(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).

57   Categories of licence

(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.

Division 1A Offences

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.

60F   General defence

(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.

64   Notice of decision

(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.

68   Revocation of conditions

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.

69   Duration of access licence

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.

71F   Effect of a caveat

(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.

Subdivision 4 Miscellaneous

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.

71X   Dealings on default

(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.

71Y   General

(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.

71ZA   (Repealed)

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.

Division 5 Water return flows

75   Water return flow rules

(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.

Divisions 7, 8

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).

85B   (Repealed)

Division 9 Compensation relating to access licences

86   Definitions

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.

Division 10 Miscellaneous

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.

88   Regulations

(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.

Part 3 Approvals

Division 1 Preliminary

88A   Application of Part

(1)  This Part applies to:

(a)  each part of the State or each water source, and

(b)  each type or kind of approval 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 type or kind of approval, 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 8441; No 127 of 27.10.2006, pp 8906, 8907; No 83 of 29.6.2007, p 3967; No 10 of 25.1.2008, p 151; 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 (104) LW 28.2.2011; 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.

89   Water use approvals

(1)  A water use approval confers a right on its holder to use water for a particular purpose at a particular location.

(2)  A water use approval may authorise the use within New South Wales of water taken from a water source outside New South Wales.

90   Water management work approvals

(1)  There are three kinds of water management work approvals, namely, water supply work approvals, drainage work approvals and flood work approvals.

(2)  A water supply work approval authorises its holder to construct and use a specified water supply work at a specified location.

(3)  A drainage work approval confers a right on its holder to construct and use a specified drainage work at a specified location.

(4)  A flood work approval confers a right on its holder to construct and use a specified flood work at a specified location.

91   Activity approvals

(1)  There are two kinds of activity approvals, namely, controlled activity approvals and aquifer interference approvals.

(2)  A controlled activity approval confers a right on its holder to carry out a specified controlled activity at a specified location in, on or under waterfront land.

(3)  An aquifer interference approval confers a right on its holder to carry out one or more specified aquifer interference activities at a specified location, or in a specified area, in the course of carrying out specified activities.

Note. Examples of where an aquifer interference approval may be needed include mining operations, road construction and any other large scale activity that involves excavation.

Division 1A Offences

91A   Using water without, or otherwise than as authorised by, a water use approval

(1)  A person:

(a)  who uses water from a water source to which this Part applies, and

(b)  who does not hold a water use approval for that use,

      is guilty of an offence.

Tier 2 penalty.

(2)  A holder of a water use approval who uses water from a water source to which this Part applies:

(a)  otherwise than as authorised by the approval, or

(b)  if an access licence specifies or restricts the purposes for which the water may be used, otherwise than as authorised by the licence,

      is guilty of an offence.

Tier 2 penalty.

(3)  Without limiting subsection (2), a person uses water otherwise than as authorised by a water use approval if the person uses water while the approval is suspended.

(4)  It is a defence to a prosecution under subsection (1) if the accused person establishes that the water was used pursuant to a basic landholder right.

(5)  It is a defence to a prosecution under subsection (2) if the accused person establishes:

(a)  that the contravention of the subsection was caused by another person, and

(b)  that the other person was not associated with the accused person at the time the subsection was contravened, and

(c)  that the accused person took all reasonable steps to prevent the commission of the offence.

A person is associated with the accused person 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 accused person.

91B   Constructing or using water supply work without, or otherwise than as authorised by, a water supply work approval

(1)  A person:

(a)  who constructs or uses a water supply work, and

(b)  who does not hold a water supply work approval for that work,

      is guilty of an offence.

Tier 2 penalty.

(2)  A holder of a water supply work approval who constructs or uses a water supply work otherwise than as authorised by the approval is guilty of an offence.

Tier 2 penalty.

(3)  Without limiting subsection (2), a person constructs or uses a water supply work otherwise than as authorised by a water supply work approval if the person constructs or uses such a work while the approval is suspended.

(4)  This section does not prevent a person from constructing or using a drainage work or flood work in accordance with a drainage work approval or flood work approval.

(5)  It is a defence to a prosecution under subsection (1) if the accused person establishes that the water supply work was constructed or used pursuant to a basic landholder right.

91C   Constructing or using drainage work without, or otherwise than as authorised by, a drainage work approval

(1)  A person:

(a)  who constructs or uses a drainage work, and

(b)  who does not hold a drainage work approval for that work,

      is guilty of an offence.

Tier 2 penalty.

(2)  The holder of a drainage work approval who constructs or uses a drainage work otherwise than as authorised by the approval is guilty of an offence.

Tier 2 penalty.

(3)  Without limiting subsection (2), a person constructs or uses a drainage work otherwise than as authorised by a drainage work approval if the person constructs or uses such a work while the approval is suspended.

(4)  This section does not prevent a person from constructing or using a water supply work or flood work in accordance with a water supply work approval or flood work approval.

91D   Constructing or using flood work without, or otherwise than as authorised by, a flood work approval

(1)  A person:

(a)  who constructs or uses a flood work, and

(b)  who does not hold a flood work approval for that work,

      is guilty of an offence.

Tier 2 penalty.

(2)  The holder of a flood work approval who constructs or uses a flood work in or in the vicinity of a river or lake, or within a floodplain, otherwise than as authorised by the approval is guilty of an offence.

Tier 2 penalty.

(3)  Without limiting subsection (2), a person constructs or uses a flood work otherwise than as authorised by a flood work approval if the person constructs or uses such a work while the approval is suspended.

(4)  This section does not prevent a person from constructing or using a water supply work or drainage work in accordance with a water supply work approval or drainage work approval.

91E   Carrying out controlled activity without, or otherwise than as authorised by, a controlled activity approval

(1)  A person:

(a)  who carries out a controlled activity in, on or under waterfront land, and

(b)  who does not hold a controlled activity approval for that activity,

      is guilty of an offence.

Tier 2 penalty.

(2)  The holder of a controlled activity approval who carries out a controlled activity in, on or under waterfront land otherwise than as authorised by the approval is guilty of an offence.

Tier 2 penalty.

(3)  Without limiting subsection (2), a person carries out a controlled activity otherwise than as authorised by a controlled activity approval if the person carries out such an activity while the approval is suspended.

(4)  This section does not prevent a person:

(a)  from constructing and using a water management work in accordance with a water management work approval, or

(b)  from carrying out an aquifer interference activity in accordance with an aquifer interference approval.

91F   Carrying out aquifer interference activity without, or otherwise than as authorised by, an aquifer interference approval

(1)  A person:

(a)  who carries out an aquifer interference activity, and

(b)  who does not hold an aquifer interference approval for that activity,

      is guilty of an offence.

Tier 2 penalty.

(2)  The holder of an aquifer interference approval who carries out an aquifer interference activity otherwise than as authorised by the approval is guilty of an offence.

Tier 2 penalty.

(3)  Without limiting subsection (2), a person carries out an aquifer interference activity otherwise than as authorised by an aquifer interference approval if the person carries out such an activity while the approval is suspended.

(4)  This section does not prevent a person:

(a)  from constructing and using a water management work in accordance with a water management work approval, or

(b)  from carrying out a controlled activity in accordance with a controlled activity approval, or

(c)  from using a building or work that has been erected or carried out in accordance with a controlled activity approval.

91G   Contravention of terms and conditions of approval

(1)  A person (other than the holder) who uses water, constructs or uses a water management work or carries out a controlled activity or an aquifer interference activity, pursuant to an approval is guilty of an offence if the person contravenes any term or condition of the approval.

Tier 2 penalty.

(2)  If any term or condition of an approval is contravened by any person, each holder of the approval 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.

91H   Failure to install or maintain metering equipment

(1)  A person is guilty of an offence if the person fails to install any metering equipment that, pursuant to:

(a)  the conditions of an access licence or approval, or

(b)  a direction under section 326,

      the person is required to install in connection with a water supply work or drainage work.

Tier 2 penalty.

(2)  A person is guilty of an offence if the person fails to ensure the proper operation of any metering equipment that, pursuant to:

(a)  the conditions of an access licence or approval, or

(b)  a direction under section 326,

      the person is required to install in connection with a water supply work or drainage work.

Tier 2 penalty.

91I   Taking water when metering equipment not working

(1)  A person who takes water from a water source to which this Part applies by means of a metered work while its metering equipment is not operating properly or is not operating and:

(a)  who intentionally or negligently fails to ascertain whether the metering equipment is not operating properly or is operating, or

(b)  who knows or has reasonable cause to believe that the metering equipment is not operating properly or is not operating,

      is guilty of an offence.

Tier 1 penalty.

(2)  A person who takes water from a water source to which this Part applies by means of a metered work while its metering equipment is not operating properly or is not operating is guilty of an offence.

Tier 2 penalty.

(3)  Subsection (2) does not apply if:

(a)  the person is authorised by the Minister in writing to take water by means of a metered work while its metering equipment is not operating properly or is not operating, and

(b)  the water is taken in accordance with any conditions specified in the authorisation and any requirements prescribed by the regulations for the purposes of this subsection.

(4)  In this section, metered work means a water management work in connection with which metering equipment has been installed.

91J   Failure to keep metering records

A person is guilty of an offence if the person fails to keep metering records that, pursuant to:

(a)  the conditions of an access licence or approval, or

(b)  a direction under section 326,

the person is required to keep in connection with a water supply work or drainage work.

Tier 2 penalty.

91K   Meter tampering

(1)  A person is guilty of an offence if the person interferes with, damages, destroys or disconnects any metering equipment that has been installed in connection with a water supply work or drainage work, and does so intentionally or recklessly.

Tier 1 penalty.

(2)  A person is guilty of an offence if the person interferes with, damages, destroys or disconnects any metering equipment that has been installed in connection with a water supply work or drainage work.

Tier 2 penalty.

(3)  Without limiting subsections (1) and (2), a person interferes with metering equipment if the person unseals any sealed component of the equipment, blocks any part of the equipment, attaches to the equipment any device that is likely to affect the operation of the equipment or disconnects the equipment from its source of power.

(4)  This section does not apply to anything:

(a)  that a duly qualified person, or a person specified under section 326 (2A), does to metering equipment (other than metering equipment that may only be maintained, repaired, modified or replaced by the Ministerial Corporation or the State Water Corporation) for the sole purpose of maintaining, repairing or replacing the equipment, or

(b)  that is done to metering equipment by or with the written authority of the Ministerial Corporation or the State Water Corporation under this Act or the State Water Corporation Act 2004, or

(c)  that is done to metering equipment by or on behalf of the holder of the water supply work approval or drainage work approval solely for the purposes of complying with any requirements of regulations made under this Division.

(5)  In this section, duly qualified person means a person who has such qualifications, skills and experience as are prescribed by the regulations.

91L   Liability of occupier of premises for certain offences

(1)  The occupier of premises at which:

(a)  a water management work has been constructed or used in contravention of a provision of this Division, or

(b)  a controlled activity or aquifer interference activity has been carried out in contravention of a provision of this Division,

      is taken to have contravened that provision.

(2)  However, subsection (1) does not apply if it is established that:

(a)  the work was constructed or used, or the activity was carried out, by a person other than the occupier, and

(b)  the other person was not associated with the occupier at the time the work was constructed or used or the activity was carried out, and

(c)  the occupier took all reasonable steps to prevent the work being constructed or used or the activity being carried out.

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.

(3)  Subsection (1) does not prevent proceedings being taken under this Act against the person who actually committed the offence.

91M   General defence

(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 doing of anything without an approval if the accused person establishes that the person was exempt, pursuant to this Act or the regulations, from any requirement for an approval in relation to the doing of that thing.

(3)  This Division does not prevent a person from doing anything pursuant to an entitlement in force under the Water Act 1912, where entitlement has the same meaning as it has in Schedule 10.

91N   Corporations not required to hold approvals

Nothing in sections 91A–91D requires the Ministerial Corporation or the State Water Corporation to obtain an approval for the construction or use of metering equipment.

Division 2 Applications for approvals

92   Applications for approvals

(1)  Subject to any embargo, any person may apply for an approval.

(2)  An application for an approval must be made to the Minister in accordance with the regulations.

(3)  The regulations may require the application to be accompanied by a management program for the land to which the application relates.

(4)  An application may relate to more than one approval, whether of the same or of a different kind, unless the Minister requires a separate application to be made in relation to one or more of them.

(5)  The Minister:

(a)  may require an applicant for an approval to provide additional information within a specified time if of the opinion that additional information would be relevant to consideration of the application, and

(b)  may delay consideration of the application until the information is provided or, if the information is not provided within the time specified, may refuse to consider the application.

(6)  The Minister may refuse to accept an application for an approval if it appears to the Minister that the application is incomplete.

(7)  The regulations may require any application, or any specified class of applications, to be advertised.

(8)  (Repealed)

Note. Approvals are listed in section 91 of the Environmental Planning and Assessment Act 1979. Development that requires an approval is consequently integrated development for the purposes of that Act.

93   Objections to applications for approvals

(1)  Any person may, in accordance with the regulations, object to the granting of an approval that has been advertised pursuant to section 92.

(2)  The Minister must inform the applicant for an approval of the grounds of any objection to the granting of the approval and must allow the applicant a specified time within which to make a written response to the Minister in relation to the objection.

(3)  The Minister:

(a)  may require an objector or applicant to provide additional information within a specified time if of the opinion that additional information would be relevant to consideration of the objection or response, and

(b)  may delay consideration of the objection or response until the information is provided or, if the information is not provided within the time specified, may refuse to consider the objection or response.

(4)  If there is a deficiency in an objection or response, the Minister may notify the objector or applicant accordingly and allow further time to enable the deficiency to be rectified.

(5)  Before making a decision on an application for the approval in respect of which any objection has been made, the Minister must endeavour to resolve the issues raised by the objection by means of consultation with the applicant and the objector, with a view to reaching agreement on the matters raised by the objection.

(6)  For the purpose of reaching such an agreement, the Minister may propose that the matters raised by the objection be dealt with by way of mediation or neutral evaluation involving an independent mediator or evaluator appointed by agreement between the applicant, the objector and the Minister.

(7)  The costs of any such mediation or neutral evaluation are to be paid for by the Minister.

(8)  An application or objection may be dismissed by the Minister if the applicant or objector, as the case may be, fails to participate in any mediation or neutral evaluation proceedings referred to in subsection (6).

94   Determination of applications affected by reviews by Planning Assessment Commission

(1)  This section applies to any application for an approval in respect of which the Planning Assessment Commission has given notice of a review under the Environmental Planning and Assessment Act 1979 to the Minister before the Minister makes a decision on the application.

(2)  The Minister:

(a)  must refer to the Planning Assessment Commission:

(i)  the application (including any information furnished in relation to the application), and

(ii)  any objection to the application (including any information furnished in relation to the objection),

      whether the application or objection is made or lodged before or after the notice is received, and

(b)  must defer making any decision on the application until it receives the Commission’s report under the Environmental Planning and Assessment Act 1979.

(3)  In making a decision on the application, the Minister must have regard to the findings and recommendations contained in the Commission’s report under the Environmental Planning and Assessment Act 1979.

(4)  (Repealed)

95   Determination of applications

(1)  After considering an application and all matters relevant to the application, the Minister is to determine the application:

(a)  by granting the approval to which the application relates, or

(b)  by refusing the application.

(2)  The Minister may, with the consent of the applicant concerned:

(a)  grant a combined approval instead of separate approvals in relation to more than one type of approval or in relation to more than one use, work or activity or type or kind of use, work or activity, or

(b)  combine a new approval with an existing approval so long as the period for which the new approval is granted expires at the same time as the period for which the existing approval was granted.

(3)  An approval may not be granted in contravention of the provisions of any relevant management plan.

(4)  An approval is to be in such form as the Minister may determine.

(5)  An approval takes effect:

(a)  at the end of the time permitted by section 368 (3) for making an appeal with respect to the decision to grant the approval, or

(b)  if an appeal is made against the decision within that time, at the time the appeal is finally disposed of.

96   Matters affecting consideration of applications

In considering whether or not to grant an approval, the Minister must take into account:

(a)  such matters as are prescribed by the regulations, and

(b)  such other matters as the Minister considers to be relevant.

97   Grounds of refusal of certain applications

(1)  A water use approval is not to be granted unless the Minister is satisfied that adequate arrangements are in force to ensure that no more than minimal harm will be done to any water source, or its dependent ecosystems, as a consequence of the proposed use of water on the land in respect of which the approval is to be granted.

(2)  A water management work approval is not to be granted unless the Minister is satisfied that adequate arrangements are in force to ensure that no more than minimal harm will be done to any water source, or its dependent ecosystems, as a consequence of the construction or use of the proposed water management work.

(3)  (Repealed)

(4)  A controlled activity approval is not to be granted unless the Minister is satisfied that adequate arrangements are in force to ensure that no more than minimal harm will be done to any waterfront land as a consequence of the carrying out of the proposed controlled activity.

(5)  A water management work approval for a water management work that is, or is proposed to be, situated on land not owned by the applicant is not to be granted unless the Minister is satisfied:

(a)  that the applicant is likely to become the owner of the land within a reasonable time, or

(b)  that the land is subject to an easement that authorises the construction and use of such a work for the benefit of the applicant’s land, or

(c)  that the applicant is otherwise entitled (whether under this or any other Act or under an agreement applying to the land) to construct and use such a work.

(6)  An aquifer interference approval is not to be granted unless the Minister is satisfied that adequate arrangements are in force to ensure that no more than minimal harm will be done to the aquifer, or its dependent ecosystems, as a consequence of its being interfered with in the course of the activities to which the approval relates.

98   Notice of decision

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 an approval that has been advertised pursuant to section 92, to each person who has made an objection to the Minister in connection with the application.

99   Procedures in relation to integrated development

(1)  In this section, consent authority, development consent and integrated development have the same meanings as they have in the Environmental Planning and Assessment Act 1979.

(2)  The provisions of this Act with respect to the advertising of an application for an approval do not apply if the application relates to integrated development.

(3)  If a consent authority grants development consent to integrated development, either as a consequence of having obtained the general terms of any approval proposed to be issued by the Minister or as a consequence of the Minister having failed to inform the consent authority as to whether or not an approval will be granted:

(a)  no person has any right to lodge an objection under this Act to the granting of the approval, and

(b)  no person has any right under this Act to appeal to the Land and Environment Court against the granting of the approval.

(4)  Subsection (3) (b) does not affect any right of appeal to which an objector may be entitled under section 98 of the Environmental Planning and Assessment Act 1979.

Division 3 Conditions and duration of approvals

100   Conditions of approval generally

(1)  An approval is subject to 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 approval 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 93 (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 approval unless they are included in the terms of the approval.

(2)  A mandatory condition prevails over a discretionary condition to the extent of any inconsistency between them.

(3)  Without limiting the types of conditions relating to the protection of the environment that the Minister may impose under this section on a water management work approval, those conditions may include conditions relating to any or all of the following matters:

(a)  the undertaking of an investigation of the environmental impact of cold water releases and the options for mitigation of that impact,

(b)  the preparation of a program to mitigate the impact of cold water releases and the obtaining of approval to the program from the Minister,

(c)  the implementation of the program,

(d)  the monitoring and reporting on actions taken to implement the program and the impact of those actions on the environment,

(e)  the carrying out of new works or the making of alterations to existing works, or both,

(f)  the method of operation of water management works.

Note. If a management plan or Minister’s plan is replaced or amended during the term of an approval, the mandatory conditions applying to the approval may vary.

101   Conditions of approval for joint schemes

(1)  This section applies to a water management work approval granted in relation to a joint scheme, that is, a scheme under which landholders of different parcels of land hold a single water management work approval for a water management work located on, passing through or otherwise benefiting or affecting those parcels.

(2)  A water management work approval for a water management work the subject of a joint scheme is subject to such conditions as the regulations require and to such other conditions as the landholders concerned agree.

(3)  A regulation referred to in subsection (2) may impose conditions, in relation to the rights and duties of the landholders concerned in the joint scheme, with respect to the following matters:

(a)  the granting of access to the work,

(b)  the operation of the work,

(c)  the apportionment of water supplied by means of the work,

(d)  the apportionment of the cost of constructing and maintaining the work,

(e)  the apportionment of such other costs with respect to work as are prescribed by the regulations,

(f)  the exclusion of land from the joint scheme.

102   Imposition or change of conditions after approval is granted

(1)  The Minister may impose discretionary conditions on an approval after it has been granted, or may amend a discretionary condition, but only if the Minister:

(a)  has given written notice to the holder of the approval that the Minister proposes to impose such conditions or make such an amendment, and

(b)  has given the holder of the approval a reasonable opportunity to make submissions to the Minister with respect to the proposed conditions or amendment, and

(c)  has taken any such submissions into consideration.

(2)  Subsection (1) does not apply to conditions imposed on an approval, or an amendment made, at the request of or with the consent of the holder of the approval.

(3)  Mandatory conditions of an approval 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.

(4)  The Minister must cause written notice of any conditions imposed, amended, revoked or suspended under this section to be served on the holder of the approval concerned.

(5)  A condition imposed or a change referred to in subsection (4) takes effect on the day on which the notice referred to in that subsection is served on the holder of the approval or on such later day as may be specified in the notice in that regard.

103   Revocation of conditions

The Minister may at any time revoke any discretionary conditions to which an approval is subject, whether or not on the application of the holder of the approval.

104   Duration of approval

(1)  Subject to this section, an approval has effect for such period as is specified in the approval (being a period not exceeding 10 years) or, if the period of the approval is extended under section 105, that extended period.

(2)  An approval granted to a major utility or a local water utility has effect for a period of 20 years or, if that 20-year period is extended under section 105, that extended period.

(3)  A water supply work approval for a water bore that is used solely for accessing water to which the holder is entitled as a basic landholder right (other than water from the Great Artesian Basin) has effect until it is cancelled.

(4)  If an application for extension of an approval is lodged before the approval expires, the term of the expiring approval is extended until:

(a)  the date of the final decision on the application, or

(b)  a date fixed by the Minister for the approval,

      whichever is the later date.

(5)  If:

(a)  an approval expires without an application for its extension being made, and

(b)  an application for its extension is subsequently made by the former holder of an approval and is accompanied by a statutory declaration of the reasons for the delay in making the application, and

(c)  the reasons are accepted by the Minister,

      the term of the approval is taken to have been extended, and the application may be dealt with, as if the application had been made before the approval expired.

105   Extension of approvals

(1)  The holder of an approval may, in accordance with the regulations, apply for an extension of the period for which the approval has effect.

(2)  A period for which an approval has effect may be extended more than once under this section, but each extension may not exceed the period for which an approval of that type could have originally been granted.

(3)  An application for an extension must be granted unless:

(a)  the relevant management plan provides, or the regulations provide, that an extension of such an approval must be assessed as if it were an application for a new approval, or

(b)  the application is required to be refused under subsection (4).

(4)  An application for an extension must be refused if:

(a)  in the case of a water use approval, the applicant has not certified that the extension is necessary because the particular purpose for which the approval was granted still exists, or

(b)  in the case of a water management work approval, the Minister is not satisfied that the applicant complies with section 97 (5), or

(c)  the applicant has not certified that the terms and conditions of the approval have been complied with.

(5)  If assessment of an application for extension of an approval (the original approval) is required, the provisions of section 92 (2)–(6) apply to the application and the application is to be assessed as if the application were an application for the granting of a new approval to authorise:

(a)  in the case of a water use approval, the continuing use of the water for the particular purpose and at the particular location specified in the original approval, or

(b)  in the case of a water management work approval, the continuing maintenance and use of the work to which the original approval relates, or

(c)  in the case of an activity approval, the continuing carrying out of the activity to which the original approval relates in the same location or area specified in the original approval.

106   Land benefited by approval

(1)  An approval is taken to be held by, and for the benefit of, each successive landholder for the time being of the land specified in the approval as the land benefited by the approval.

(2)  While the approval is in force, each such landholder:

(a)  is under a duty to comply with the conditions to which the approval is subject, and

(b)  is entitled to commence and maintain legal proceedings against any co-holder of the approval with respect to that co-holder’s failure to comply with those conditions.

(3)  For the purposes of this section, a major utility, local water utility, irrigation corporation, private irrigation board, private drainage board or private water trust is taken to be a landholder of land in respect of which a water use approval or water management work approval held by it is in force.

(4)  This section does not apply in such circumstances, or to such types or kinds of approvals, as may be prescribed by the regulations.

Division 4 Amendment, surrender, suspension and cancellation of approvals

107   Amendment of approvals

(1)  On the application of the holder of an approval, the Minister may amend the approval.

(2)  Without limiting subsection (1), an approval may be amended to alter, add to or reduce any of the uses, works, activities or land to which the approval relates.

(3)  An amendment of an approval must not result in the approval relating to any additional land, or authorising the extension, construction or use of a water management work on any additional land, unless the additional land adjoins the land to which the unamended approval relates and is lawfully occupied by the holder of the approval.

(4)  Subsection (3) does not apply to an amendment to an approval in respect of a joint scheme (referred to in section 101 (1)) that results in the approval applying to additional land.

(5)  If the granting of an application under this section would result in the approval concerned relating to additional uses, works, activities or land, the application is to be advertised, assessed and determined in accordance with this Part in the same way as an application for a new approval, but only in relation to the additional uses, works, activities or land.

(6)  In considering any application under this section, the Minister is to have regard to any order of the Supreme Court under section 74 that affects the matters covered by the application.

108   Surrender of approvals

(1)  The holder of an approval may surrender the approval at any time by notice in writing sent to the Minister.

(2)  The surrender takes effect on the date on which the notice is received by the Minister or such later date as is specified in the notice.

109   Suspension and cancellation of approvals

(1)  The Minister may suspend or cancel an approval on any one or more of the following grounds:

(a)  that the holder of the approval has failed to comply with any term or condition to which the approval is subject,

(b)  that the holder of the approval has been convicted of an offence against:

(i)  this Act or the regulations, or

(ii)  the Plumbing and Drainage Act 2011 or the regulations under that Act,

(c)  that the holder of the approval has failed to make due payment with respect to any fee or charge that is payable under this Act in relation to the approval,

(c1)  in the case of an approval granted in relation to a water supply work, if:

(i)  the holder of the approval is also the holder of an access licence for which the water supply work has been nominated under section 71W (Access licence may nominate water supply works), and

(ii)  the holder of the access licence has failed to make due payment with respect to any fees, charges or civil penalties that are payable in respect of the licence (whether or not those fees, charges or civil penalties were incurred by the current holder of the approval),

(c2)  in the case of an approval granted in relation to a water supply work referred to in section 104 (3), if:

(i)  the holder of the approval cannot, on the written request of the Minister, demonstrate that the water bore the subject of the approval is being maintained in accordance with the conditions of the approval, or

(ii)  the water bore has been decommissioned,

(d)  in the case of an approval granted in relation to a water management work, the holder of the approval has failed to comply with any direction given to the holder under this Act in connection with the work,

(e)  that the approval 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 approval, the Minister may order a major utility to pay to the Minister a civil penalty not exceeding $500,000 and, in the case of a continuing offence, a further penalty not exceeding $20,000 for each day for which the offence continues.

(3)  Action under this section may not be taken in relation to an approval unless the Minister:

(a)  has given written notice to the holder of the approval that the Minister proposes to take such action, and

(b)  has given the holder of the approval a reasonable opportunity to make submissions to the Minister with respect to the proposed action, and

(c)  has taken any such submissions into consideration.

Division 5 Embargoes on applications for approvals

110   Temporary embargo

(1)  The Minister may, by order published in the Gazette, declare an embargo on the making of applications for approvals with respect to any water management area.

(1A)  Such an order may apply to the whole of a water management area or to any specified part of a water management area, and to approvals generally or to any specified type or kind of approvals.

(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)  As soon as practicable after an order under this section is published in the Gazette, notice of the order must be published in an appropriate newspaper.

(4)  An order under this section takes effect at the beginning of the date on which it is published in the Gazette and, unless sooner revoked, expires at the end of 2 years after that date.

111   Permanent embargo

(1)  The Governor may, by proclamation published in the Gazette, declare an embargo on the making of applications for approvals with respect to any water management area.

(1A)  Such a proclamation may apply to the whole of a water management area or to any specified part of a water management area, and to approvals generally or to any specified type or kind of approvals.

(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)  As soon as practicable after a proclamation under this section is published in the Gazette, notice of the proclamation must be published in an appropriate newspaper.

(4)  A proclamation under this section takes effect at the beginning of the date on which it is published in the Gazette and continues in force until it is revoked by a further proclamation so published.

112   Operation of embargo

(1)  An embargo applies to any application for an approval made on or after the date on which the embargo took effect, other than:

(a)  an application to amend an application made before that date, or

(b)  an application for the extension of the period for which an approval has effect, or

(c)  any other application of a kind prescribed by the regulations.

(2)  An application to which an embargo applies is a nullity and is not revived merely because the embargo is subsequently revoked.

Division 6 Registers

113   Register of approvals

(1)  The Minister is to cause a register to be kept of:

(a)  every application for an approval that is duly made under this Act, and

(b)  every approval that is granted, extended, amended, surrendered, suspended or cancelled under this Act, and

(c)  every agreement entered into by landholders under section 101 (2).

(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.

Part 4 Finance

114   Minister may impose fees and charges

(1)  The Minister may impose fees and charges for the purposes of this Act.

Note. Under the Independent Pricing and Regulatory Tribunal Act 1992, any fees and charges imposed by the Minister under this section cannot exceed any relevant determination made by the Independent Pricing and Regulatory Tribunal.

(2)  The Minister may waive or reduce any such fee or charge in a particular case or class of cases if the Minister is of the opinion that the circumstances warrant it.

115   (Repealed)

Chapter 4 Joint private works

Part 1 Irrigation corporations

Division 1 Preliminary

116   Application of Part

This Part applies to all irrigation corporations under the former Irrigation Corporations Act 1994 that were in existence immediately before the repeal of that Act, but does not authorise the establishment of any new irrigation corporations.

117   Definitions

In this Part:

area of operations of an irrigation corporation means the area of land comprising the areas and districts specified in Schedule 1 in relation to the corporation, being areas and districts constituted under the former Irrigation Act 1912 and Part 6 of the former Water Act 1912, including any land included in its area of operations under Division 4 but excluding any land excluded from its area of operations under Division 5 of this Part.

irrigation corporation means a corporation named in Schedule 1.

operating licence means an operating licence referred to in section 122.

118   Requirements for access licences and approvals

Nothing in this Part authorises an irrigation corporation or landholder to do anything for which this Act requires an access licence or approval unless the irrigation corporation or landholder holds an appropriate access licence or approval.

Division 2 Irrigation corporations

119   Assets of irrigation corporations

(1)  An irrigation corporation is the owner of all water management works installed in or on land by the corporation (whether or not the land is owned by the corporation).

(2)  The provisions of Part 5 and section 88 of the Irrigation Corporations Act 1994, as in force immediately before their repeal, continue to apply for the purpose of enabling the Ministerial Corporation to transfer to an irrigation corporation any of its assets, rights and liabilities with respect to an irrigation scheme area with which the irrigation corporation was formerly connected.

120   Entry on to land

(1)  An irrigation corporation may, by its employees and agents, enter land within its area of operations for any one or more of the following purposes:

(a)  to install, operate, repair, replace, maintain, remove, extend, expand, connect, disconnect, improve or do any other things that the corporation considers are necessary or appropriate to any of its water management works or to construct new water management works and, for these purposes, to carry out any work on, below or above the surface of the land,

(b)  to read a meter that:

(i)  measures water supplied by the corporation, or

(ii)  monitors drainage for quantity or quality or both,

(c)  to find the source of pollution of water within the area of operations of the corporation,

(d)  to ascertain whether a water supply contract or other contract for the provision of services by the corporation is being breached,

(e)  to rectify defective or improper work that has not been rectified by a customer in accordance with a notice served by the corporation on the customer under a water supply contract or other contract,

(f)  to ascertain the character and condition of the land or any building on the land, or the condition and location of any pipe, sewer, drain, channel or fitting or other work used in connection with the land or building, so as to enable the corporation:

(i)  to install, operate, repair, replace, maintain, remove, extend, expand, connect, disconnect or improve its systems and services, or

(ii)  to construct new water management works,

      in accordance with the obligations imposed on it by its operating licence,

(g)  to carry out any investigation or inspection, take levels, drill test bore-holes, make surveys and marks, and fix pegs and stakes, for the purpose of determining the site of any proposed water management work.

(2)  An irrigation corporation must ensure that as little damage as possible is caused by the exercise of powers under this section and must repair any damage caused or pay compensation for the damage.

(3)  The powers of entry conferred by this section are not to be exercised for a purpose referred to in subsection (1) (a), (f) or (g) without prior notice to the occupier of the land.

(4)  A person must not threaten, hinder, obstruct or delay any person in the exercise of an irrigation corporation’s functions under this section.

Tier 2 penalty.

121   Ceasing to be an irrigation corporation

(1)  A corporation ceases to be an irrigation corporation if its particulars are removed from Schedule 1.

(2)  The Governor may remove an irrigation corporation’s particulars from Schedule 1 by proclamation published on the NSW legislation website, but only:

(a)  on application made by the irrigation corporation to the Minister, or

(b)  if the irrigation corporation ceases to exist.

(3)  The Governor may by proclamation published on the NSW legislation website amend Schedule 1 so as to reflect a change in an irrigation corporation’s name.

(4)  The regulations may make provision, not inconsistent with the Corporations Act 2001 of the Commonwealth, for or with respect to any matters that are consequential on a corporation ceasing to be an irrigation corporation.

Division 3 Operating licences

122   Authority conferred by operating licence

The operating licence for an irrigation corporation authorises the corporation to carry on the business of supplying water provided to it by the Ministerial Corporation and to exercise its functions under this Part.

123   Terms and conditions of operating licence

(1)  An operating licence is subject to the terms and conditions determined by the Governor.

(2)  Examples of terms and conditions that may be included are as follows:

(a)  a requirement that the irrigation corporation will (in accordance with any applicable management program and the corporation’s business plan) provide, construct, maintain, manage and operate:

(i)  efficient, co-ordinated and commercially viable systems and services for supplying water from both surface and subsurface sources, and

(ii)  surface and subsurface drainage networks that have sufficient capacity having regard to specified factors, including the amount of water supplied by the corporation to users,

(b)  a requirement that the irrigation corporation must be the holder of all relevant licences or other authorities,

(c)  a requirement that the irrigation corporation is to comply with the provisions of any applicable management program, either in all respects or in certain respects,

(d)  a requirement that, in supplying water to its members, the irrigation corporation is to give priority to certain councils or other local water utilities for domestic water supply,

(e)  a requirement as to how the irrigation corporation is to spend and otherwise deal with any money provided to it out of money appropriated from the Consolidated Fund or other public money.

(3)  An operating licence may be amended only in the manner specified in the operating licence.

(4)  Despite subsection (3), the Minister may amend an irrigation corporation’s operating licence so as to give effect to matters agreed to by or on behalf of the State pursuant to, or in connection with, the National Water Initiative.

(5)  In determining the terms of the amendment, the Minister must have regard to any submissions made by the irrigation corporation.

(6)  In this section, National Water Initiative means the Intergovernmental Agreement on a National Water Initiative between the Commonwealth of Australia and the Governments of New South Wales, Victoria, Queensland, South Australia, Western Australia, Tasmania, the Australian Capital Territory and the Northern Territory (as amended from time to time).

124   Term of operating licence

(1)  An operating licence has effect for the period specified in the licence in that regard, but may be renewed at the end of that period.

(2)  An operating licence may be renewed even if its term has expired.

(3)  The Governor may refuse an application for the renewal of an operating licence on such grounds as the Governor considers appropriate.

125   Contravention of operating licence

(1)  If, in the opinion of the Minister, an irrigation corporation contravenes an operating licence, the Governor may direct that one of the following is to apply:

(a)  a letter of reprimand by the Minister is to be served on the irrigation corporation,

(b)  the Minister is to cause a notice to be served on the irrigation corporation requiring it to rectify the contravention within a specified period.

(2)  If, in the opinion of the Minister, an irrigation corporation continues to contravene an operating licence after the issue of a letter under subsection (1) (a) or fails to rectify a contravention as required by a notice under subsection (1) (b), the Governor may do either or both of the following:

(a)  the Governor may direct that the irrigation corporation is to pay a monetary penalty of an amount (not exceeding $150,000) to be determined by the Governor,

(b)  the Governor may cancel the operating licence.

(3)  The fact that the Governor has directed that action be taken under this section does not prevent the Governor directing that the same or other action under this section be taken if the contravention continues or a fresh contravention occurs.

(4)  An operating licence may make provision for advice to be furnished to the Minister in connection with the exercise of the Minister’s functions under this section.

(5)  A penalty imposed under this section may be recovered in any court of competent jurisdiction as if it were a debt due to the Crown.

126   Cancellation of operating licence

(1)  An operating licence may be cancelled by the Governor, but only:

(a)  if the irrigation corporation fails or ceases to hold a relevant licence or other authority, or

(b)  if the irrigation corporation is, in the opinion of the Minister, in material default in compliance with the operating licence, viewed in terms of the operation of the operating licence as a whole, or

(c)  if the irrigation corporation is an externally-administered corporation within the meaning of the Corporations Act 2001 of the Commonwealth, or

(d)  if the irrigation corporation has been convicted of a criminal offence that is punishable by a fine of at least $10,000 or, if the corporation were a natural person, imprisonment for 12 months or more, or

(e)  in the circumstances set out in section 125 (2).

(2)  An operating licence may not be cancelled on the ground referred to in subsection (1) (a) if an appeal against a decision not to renew or to cancel the relevant licence or other authority has been made but not determined or withdrawn.

(3)  Subsection (1) (d) does not apply where the offence is unconnected with the functions of the irrigation corporation relating to the supply or drainage of water.

127   Irrigation corporation may make arrangements with subsidiaries

(1)  An irrigation corporation may arrange, whether by an agency agreement or in any other way (except by assignment), for a subsidiary of the irrigation corporation to exercise any or all of the irrigation corporation’s functions under this Part or under an operating licence.

(2)  The Minister may treat any act or omission of the subsidiary of an irrigation corporation as an act or omission of the irrigation corporation for the purpose of determining:

(a)  whether the irrigation corporation has contravened its operating licence, or

(b)  whether the licence should be suspended or cancelled,

      but only if the irrigation corporation has made arrangements for the exercise of functions by the subsidiary.

(3)  In this section, subsidiary means a corporation that is a subsidiary of a corporation as determined in accordance with the Corporations Act 2001 of the Commonwealth or any other applicable law.

Division 4 Inclusion of land within irrigation corporation’s area of operations

128   Applications to include land within area of operations

(1)  An application for the inclusion of land within an irrigation corporation’s area of operations may be made to the Minister by means of a joint application made by the corporation and by the owner or owners of the land concerned.

(2)  The application must identify the land proposed to be included in the corporation’s area of operations.

(3)  The procedures for making and advertising an application are to be as prescribed by the regulations.

129   Objections to inclusion of land within area of operations

(1)  Any person may object to the inclusion of land within the proposed extension of an irrigation corporation’s area of operations.

(2)  The procedures for making an objection are to be as prescribed by the regulations.

130   Inclusion of land in area of operations

(1)  The Minister may determine an application for the inclusion of land within an irrigation corporation’s area of operations by granting or refusing the application.

(2)  If the Minister grants the application, the Minister must, by order published in the Gazette, include the land within the irrigation corporation’s area of operations.

131   (Repealed)

Division 5 Exclusion of land from irrigation corporation’s area of operations

132   Applications to exclude land from area of operations

(1)  An application for the exclusion of land from an irrigation corporation’s area of operations may be made to the Minister by means of a joint application made by the corporation and by the owner or owners of the land concerned.

(2)  The application must identify the land proposed to be excluded from the corporation’s area of operations.

(3)  The procedures for making and advertising an application are to be as prescribed by the regulations.

133   Objections to exclusion of land from area of operations

(1)  Any person may object to the proposed exclusion of land from an irrigation corporation’s area of operations.

(2)  The procedures for making an objection are to be as prescribed by the regulations.

134   Exclusion of land from area of operations

(1)  The Minister may determine an application for the exclusion of land from an irrigation corporation’s area of operations by granting or refusing the application.

(2)  If the Minister grants the application, the Minister must, by order published in the Gazette, exclude the land from the irrigation corporation’s area of operations.

135   (Repealed)

Division 6 Miscellaneous

136   Successor in title liable for unpaid contract charges

On a change of ownership of land, the new landholder of the land is liable to an irrigation corporation for the amount of any charges levied by the irrigation corporation in relation to the land and unpaid by the previous landholder as if the new landholder had entered into a contract with the irrigation corporation for the supply of the service or services to which the unpaid charges relate.

137   Indemnities

(1)  A person does not have any right or claim to relief of any kind whatever in any legal or other proceeding against an irrigation corporation or officer or employee of an irrigation corporation in respect of any nuisance connected with or in any way arising out of:

(a)  the design, construction, alteration, maintenance, non-maintenance, operation, repair, disrepair or non-repair of a water management work owned or controlled by the irrigation corporation, or

(b)  the destruction or damage, or partial destruction or partial damage, by flood, storm, tempest or otherwise of a water management work owned or controlled by the irrigation corporation, or

(c)  the exercise, in respect of a water management work owned or controlled by the irrigation corporation, by the irrigation corporation of any function conferred or imposed on the irrigation corporation under this or any other Act.

(2)  Section 733 of the Local Government Act 1993 applies to and in respect of an irrigation corporation in the same way as it applies to and in respect of a council.

138   Register of licences, audits and management programs

(1)  The Ministerial Corporation must maintain at its head office a register containing copies of the following:

(a)  operating licences,

(b)  audit reports,

(c)  applicable management programs,

(d)  recommendations of the Minister to the Governor under this Part.

(2)  The register must be made available for public inspection during normal business hours.

(3)  Any person may obtain a copy of any information on the register on payment of the reasonable cost of providing the copy.

Part 2 Private irrigation districts

Division 1 Preliminary

139   Application of Part

This Part applies to all private districts under the former Private Irrigation Districts Act 1973 that were in existence immediately before the repeal of that Act, and also authorises the establishment of further private irrigation districts.

140   Definitions

In this Part:

irrigated holding means a holding in respect of which water is supplied by a private irrigation board for irrigation.

landholder’s water entitlement means the part of the share component of a private irrigation board’s access licence that is available to a landholder of an irrigated holding within the private irrigation district.

new holding means each part of an original holding that, after subdivision, is separately owned.

non-irrigated holding means a holding in respect of which water is supplied by a private irrigation board for domestic and stock use only.

original holding means a holding in a private irrigation district, being a holding:

(a)  in existence at the date of constitution of that district, or

(b)  comprising lands added to that district under Division 2,

but does not include any holding, or any part of a holding, that has become a new holding or that has been excised from the private irrigation district under Division 2.

private irrigation board, in relation to a private irrigation district, means the board of management for that district elected under Division 3.

private irrigation district means a private water supply district or a private water supply and irrigation district constituted under Division 2.

141   Requirements for access licences and approvals

Nothing in this Part authorises a private irrigation board or landholder to do anything for which this Act requires an access licence or approval unless the private irrigation board or landholder holds an appropriate access licence or approval.

Division 2 Private irrigation districts

142   Petition

(1)  Any persons who are landholders of lands that are being worked as 3 or more holdings may lodge with the Minister a petition for the constitution of those lands:

(a)  as a private water supply district, or

(b)  as a private water supply and irrigation district.

(2)  The petition:

(a)  must contain the names, addresses and occupations of all of the petitioners and be signed by all of the petitioners, and

(b)  must be accompanied by plans showing:

(i)  the location of the lands proposed to be supplied with water, in relation to the river, estuary or lake from which water is proposed to be obtained, and

(ii)  the lands on which a water supply work is proposed to be constructed or located in connection with the proposed water supply, and the site on those lands of that proposed water supply work, and

(c)  must be accompanied by:

(i)  particulars of the title of the lands within the proposed private irrigation district, and

(ii)  particulars of the area of land within the proposed private irrigation district owned by each petitioner, and

(iii)  an estimate of the quantity of water proposed to be taken annually for the purposes of the proposed private irrigation district, and

(iv)  particulars of any water use approval under which any lands within the proposed private irrigation district are, at the date of lodgment of the petition, authorised to be irrigated, and

(d)  must contain the names, addresses and occupations of the landholders of the lands referred to in paragraph (b) (ii) and be accompanied by separate particulars of the title of those lands.

(3)  The Minister may cause a notice containing particulars of the petition to be published in the Gazette and in an appropriate newspaper.

(4)  Such a notice may not be published unless:

(a)  the Minister is satisfied that the establishment of a private irrigation district in accordance with the petition would be of benefit to the landholders of land within the proposed private irrigation district, and

(b)  the Minister has had regard to the Competition Principles Agreement, and

(c)  the Premier has concurred in the publication of the notice.

(5)  In this section, Competition Principles Agreement means the agreement of that name between the Commonwealth, the States and the Territories that was entered into, for and on behalf of New South Wales, on 11 April 1995.

143   Constitution of private irrigation districts

(1)  If a supplementary petition in relation to, or an objection to, a petition under section 142 is not duly lodged, the Governor may, by proclamation in the Gazette, constitute the lands described in the petition:

(a)  as a private water supply district, or

(b)  as a private water supply and irrigation district,

      whichever was requested in the petition.

(2)  If a supplementary petition in relation to, or an objection to, a petition under section 142 is so lodged but the Minister recommends the granting of the petition (whether with respect to all of the lands described in the petition or some only of them), the Governor may, by proclamation in the Gazette, constitute the lands to which the recommendation relates:

(a)  as a private water supply district, or

(b)  as a private water supply and irrigation district,

      whichever was requested in the petition.

(3)  A proclamation under this section:

(a)  must assign a name to the private irrigation district and a corporate name to the private irrigation board, and

(b)  must define the boundaries of the private irrigation district, and

(c)  must specify at which office of the Ministerial Corporation a plan of the private irrigation district is exhibited, and

(d)  must fix a time and place for the first election of the members of the private irrigation board.

144   Addition of lands to private irrigation districts

(1)  A landholder of lands adjacent to or near a private irrigation district may lodge with the Minister a petition for the addition of those lands to the private irrigation district.

(2)  The petition:

(a)  must specify the name, address and occupation of the petitioner and must be signed by the petitioner, and

(b)  must be accompanied by plans showing:

(i)  the location of the additional lands proposed to be supplied with water, in relation to the river, estuary or lake from which water is proposed to be obtained, and

(ii)  the lands on which any additional water supply work is proposed to be constructed or located in connection with the proposed water supply, and the site on those lands of that proposed additional water supply work, and

(c)  must be accompanied by:

(i)  particulars of the title and the area of the additional lands, and

(ii)  an estimate of the quantity of water proposed to be taken annually by the petitioner for the purposes of those lands, and

(iii)  particulars of any water use approval under which those lands are, at the date of lodgment of the petition, authorised to be irrigated, and

(d)  if:

(i)  the private irrigation district has been constituted as a private water supply and irrigation district, and

(ii)  the petitioner seeks a supply of water for irrigation,

      must be accompanied by a statement by the private irrigation board as to whether, and to what extent, the landholders within the private irrigation district have agreed to reduced allocations of water so as to permit an allocation of water being made to the additional lands, and

(e)  must contain the names, addresses and occupations of the landholders of the lands referred to in paragraph (b) (ii) and be accompanied by separate particulars of the title of those lands.

(3)  The Minister must consider any petition lodged under this section and may cause a notice containing particulars of the petition to be published in the Gazette and an appropriate newspaper.

145   Alteration of private irrigation district

(1)  If an objection to a petition under section 144 is not duly lodged or an objection is duly lodged but the Minister recommends the granting of the petition, the Governor may, by proclamation in the Gazette, redefine the boundaries of the private irrigation district to which the petition relates by adding to that district the lands referred to in the petition.

(2)  If additional lands have been added to a private irrigation board’s district under this section, the board:

(a)  must, if an appropriate agreement has been made, redetermine the quantity of water to be allocated for domestic and stock use and for irrigation to each holding (including any holding in the additional lands) that is supplied or to be supplied with water for irrigation, and

(b)  must, in respect of the holding in the additional lands, assess the rates and charges for water for the period or year, as the case may be, current at the date of the addition of those additional lands to the private irrigation district.

(3)  The assessment of rates and charges referred to in subsection (2) (b) must be made on the basis of the rates and charges fixed in respect of that period or year, the rates and charges so assessed being proportionate to the portion of the period or year during which those additional lands are added to the private irrigation district.

146   Excision of lands from private irrigation districts

(1)  A landholder of lands within a private irrigation district may make application to the Land and Environment Court, as prescribed by rules of court, for an order that the landholder’s lands be excised from that district.

(2)  Notice, in the prescribed form, of the application must be given by the landholder to the private irrigation board on the lodging of the application in the Land and Environment Court.

(3)  A private irrigation board and all persons whose interests appear to the Land and Environment Court to be affected by the application may attend the hearing of, and be heard in support of, or in opposition to, the application.

(4)  The Land and Environment Court must hear and determine the application but must not grant the application unless it is satisfied that there are exceptional circumstances that warrant the granting of the application.

(5)  The decision of the Land and Environment Court is final and may:

(a)  if the decision is in favour of the applicant, include an order that any water supply works that are situated on the excised lands are to be works of which the private irrigation board has the control, use and maintenance, and

(b)  embody such terms and conditions as to the Court seem just.

(6)  If the decision of the Land and Environment Court is that the application be granted, the private irrigation district is, subject to this Part, taken to have been altered by excising therefrom the lands referred to in the application.

(7)  The excision of any lands from a private irrigation district under this section does not affect the liability of any person for any rates or charges levied or leviable in respect of those lands while they were in the private irrigation district.

147   Supplementary petitions and objections

(1)  Within a period of 28 days after the publication of the notice of a petition for the constitution of a private irrigation district:

(a)  a person who is the landholder of lands that the person desires to be included in the district to which that notice relates may lodge with the Minister a supplementary petition for the inclusion in that district of lands owned by the person that are being worked as a separate property, or

(b)  any person may lodge with the Minister an objection in writing to the petition referred to in the notice on the ground that the granting of that petition would adversely affect the person’s interests.

(2)  Within a period of 28 days after the publication of the notice of a petition for the addition of lands to a private irrigation district:

(a)  the private irrigation board for the district to which that notice relates may lodge with the Minister an objection in writing to the petition referred to in the notice, or

(b)  any person may lodge with the Minister an objection in writing to the granting of that petition on the ground that the granting of that petition would adversely affect the person’s interests.

(3)  A person may not lodge an objection on the ground that the person’s interests would, if the petition were granted, be adversely affected for reasons relating to the quantity of water available from the river, estuary or lake from which it is proposed to take water for the purposes of the proposed private irrigation district, and any objection lodged on that ground is not to be entertained.

(4)  A supplementary petition:

(a)  must contain the name, address and occupation of the supplementary petitioner, and

(b)  must be accompanied by plans showing:

(i)  the location of the lands that the supplementary petitioner desires to be included in the proposed district, and

(ii)  the lands on which any additional water supply work to be used for the taking of water for the use of the lands that the petitioner desires to be included in the proposed district is proposed to be constructed or is located and the site on those lands of that water supply work, and

(c)  must be accompanied by particulars of the title and area of the lands referred to in paragraph (b) (i) and of any water use approval under which those lands are, at the date of lodgment of the supplementary petition, authorised to be irrigated, and

(d)  must contain the names, addresses and occupations of the landholders of the lands referred to in paragraph (b) (ii) and be accompanied by separate particulars of the title of those lands.

(5)  An objection must be in writing and must state particulars of the grounds of objection.

(6)  If a supplementary petition or an objection has been lodged with the Minister, the Minister must, after consultation with the petitioner or objector, make a recommendation with respect to the petition or objection.

Division 3 Private irrigation boards

148   Private irrigation boards

(1)  For each private irrigation district there is to be a board of management.

(2)  Each board is a corporation under the corporate name assigned to it by the proclamation by which its private irrigation district is constituted.

(3)  A board is to consist of such number of members, being not less than 3 nor more than 10:

(a)  in the case of the first board elected for a private irrigation district, as may be determined by the Minister, and

(b)  in the case of any subsequent board elected for a private irrigation district, as may be determined before the election by the board for that private irrigation district.

(4)  The regulations may make provision for or with respect to:

(a)  the conduct of elections for the members of a board, and

(b)  other matters concerning the constitution and procedure of a board.

149   Election of members of private irrigation boards

(1)  An election of the members of a private irrigation board must be held on the day and at the time fixed by the proclamation by which it is constituted and thereafter:

(a)  if the third anniversary of the declaration of the poll for the previous election of members of that board is a Saturday, on that Saturday, or

(b)  in any other case, on the Saturday preceding or following the third anniversary of the declaration of the poll for the previous election of members of that board.

(2)  A corporation that is a member of a private irrigation board must authorise an individual to represent it as a member of the board.

(3)  Subject to this Division, the members of a private irrigation board hold office until the date of the declaration of the poll for the next election.

149A   Filling of casual vacancies

The Governor may, by proclamation in the Gazette, appoint a person (being eligible for election) to fill any casual vacancy in the membership of a private irrigation board and to hold office until the date of declaration of the poll for the next election to be held for the board under section 149.

150   Removal of members of private irrigation board from office and appointment of administrator

(1)  The Governor may, by proclamation in the Gazette, remove all the members of a private irrigation board from office:

(a)  if there are not sufficient members of the board to form a quorum, or

(b)  if, in the opinion of the Governor, the board has failed or neglected to make or levy rates or charges required by this Part, or otherwise to exercise its functions under this Part.

(2)  (Repealed)

(3)  If the Governor has removed the members of a private irrigation board from office, the Governor may, in the proclamation removing the members from office or in a subsequent proclamation in the Gazette, appoint an administrator for the board.

(4)  An administrator so appointed has and may exercise all of the functions of a private irrigation board and is entitled to be paid, out of the funds of the board, such remuneration as the Governor may determine.

(5)  If the members of a private irrigation board have been removed from office, the Minister may, and if the board’s term of office has more than 12 months to run, must, by notice in the Gazette, order that an election of members be held on a day specified in the order.

(6)  The day so specified must be a day not more than 6 months after the date of removal of the members from office and not less than 4 weeks after the date on which the notification is published in the Gazette.

(7)  Any member elected at an election held under this section is to hold office until the time when the terms of office of the members of a private irrigation board who have been removed from office would but for their removal have expired and no longer, but is eligible for re-election if otherwise qualified.

(8)  On sufficient members of a private irrigation board, by election or appointment under this section, taking office to form a quorum, the functions of the administrator cease.

(9)  If the members of a private irrigation board have been removed from office because of the board’s failure or neglect as referred to in subsection (1) (b), each of those members is ineligible for election at an election ordered under this section or, if no such election is ordered, at the next election of members of the board, unless the Minister is satisfied that the failure or neglect took place without the member’s knowledge or consent and, by instrument in writing, declares that the member is eligible for election at any such election.

151   Abolition of private irrigation districts

The Governor may, by proclamation published in the Gazette, abolish any private irrigation district for which a private irrigation board has not been elected.

152   Winding-up of private irrigation boards

(1)  If the Governor:

(a)  is of the opinion that a private irrigation board has ceased to function satisfactorily, or

(b)  is satisfied that a private irrigation board has made a request to the Minister that it be wound up,

      the Governor may order that the board be wound up.

(2)  An order under subsection (1) must be published in the Gazette and must appoint a liquidator for the private irrigation board.

(3)  A winding up of a private irrigation board under this section commences on the publication of the order in the Gazette.

(4)  The regulations may make provision for or with respect to the winding up of a private irrigation board and for the disposal of any residual assets of the board.

(5)  If the Governor is satisfied that the winding up of a private irrigation board has been completed under this section, the Governor may, by proclamation published in the Gazette, abolish the board.

153   Employees

(1)  Each private irrigation board may from time to time employ such persons as may be necessary to assist it in the exercise of its functions.

(2)  A person who has ceased to be a member of a private irrigation board is not eligible to be employed by the board until 6 months have elapsed after the person’s so ceasing to be a member.

(3)  All employees of a private irrigation board are subject to the control and governance of the board and to the provisions of any by-laws made by the board in that behalf.

(4)  A private irrigation board may fix wages and conditions of employment of its employees if they are not fixed in accordance with the provisions of any other Act.

Division 4 Construction and taking over of works

154   Authorised sites

For the purposes of this Division, a site is an authorised site for a water supply work if:

(a)  it is the site shown on the plans that accompanied:

(i)  the petition for the constitution of the district, or

(ii)  any subsequent petition for the addition of lands to the district,

      as the site of any work proposed to be constructed as a water supply work, or is that site as varied by the Minister as a consequence of any objection to the petition, or

(b)  it is the site on which the Governor has authorised the construction or taking over of a water supply work, or

(c)  it is the site of any works of which a private irrigation board has the control, use and maintenance under this Division.

155   Construction, maintenance and operation of water supply works

(1)  A private irrigation board may construct, maintain and operate any water supply work that is located on an authorised site for that work.

(2)  A private irrigation board must not exercise its powers under this section in respect of any authorised site on which are situated any existing works unless it has taken over the control, use and maintenance of those works under this Division.

(3)  For the purpose of exercising its powers under this section, a private irrigation board may enter any authorised site (not being an authorised site situated on lands that belong to, or are under the care, control or management of a public authority) and take or remove, and use, any extractive material.

156   Private irrigation board may apply to take over water supply works

(1)  A private irrigation board may apply to the Minister for authority to take over any water supply work that is located on an authorised site for that work.

(2)  The application:

(a)  must contain the names, addresses and occupations of the landholders of the lands on which the water supply work referred to in the application is or are proposed to be constructed or is or are located, and

(b)  must be accompanied by:

(i)  a plan showing those lands and the site on those lands of that water supply work, and

(ii)  particulars of the title of those lands.

(3)  The Minister must consider any such application, and may cause a notice containing particulars of the application to be published in the Gazette and in an appropriate newspaper.

157   Objections to applications

(1)  Within 28 days after the publication of the relevant notice, any person may lodge with the Minister an objection in writing to the granting of the application referred to in the notice on the ground that the granting of the application would adversely affect the person’s interests.

(2)  A person may not make an objection on the ground that the person’s interests would, if the petition were granted, be adversely affected for reasons relating to the quantity of water available from the river, estuary or lake from which it is proposed to take water by means of the proposed water supply work, and any objection made on that ground is not to be entertained.

(3)  An objection must state particulars of the grounds of objection.

(4)  If an objection is lodged with the Minister, the Minister must, after consultation with the objector, make a recommendation with respect to the objection.

158   Governor may authorise construction or taking over of water supply work

If an objection to an application is not duly lodged, or is duly lodged but the Minister recommends that the application be granted, the Governor may, by proclamation in the Gazette, authorise the construction or taking over of the water supply work on the site concerned.

159   Taking over works

(1)  A private irrigation board may serve a notice in writing on the landholder of any lands on which is situated any water supply work on an authorised site informing the landholder that the board proposes to take over the work.

(2)  The control and management of the work specified in the notice vests in the private irrigation board on and from the day specified in the notice.

(3)  A private irrigation board must not serve such a notice after the expiration of 12 months after the constitution of the private irrigation district.

(4)  A private irrigation board must not serve such a notice on any person in respect of a work that belongs to, or is under the control or management of, a public authority.

160   Transfer of lands

(1)  A private irrigation board, by notice in writing served, within 12 months after the constitution of the private irrigation district, on the landholder of any lands:

(a)  that, immediately before the constitution of the private irrigation district, were vested in the landholder as a trustee of lands supplied with water under a single water supply work approval, and

(b)  that on the constitution of the private irrigation district formed the whole or part of the private irrigation district,

      may require the landholder to transfer the lands so vested to the board within such period as may be specified in the notice.

(2)  If a notice is served on a landholder under this section in respect of any land, the land is taken to be held by the landholder as a trustee for the private irrigation board by which the notice was served.

161   Power of entry

(1)  A private irrigation board may, by its employees or agents, at any reasonable time enter any lands and thereon carry out any investigation or inspection, take levels, drill test bore-holes, make surveys and marks and fix pegs or stakes for the purpose of determining the site of any proposed water supply work.

(2)  A private irrigation board may, by its employees or agents, enter any lands on which is situated an authorised site for the purpose of constructing or maintaining water supply works.

Division 5 Compensation

162   No compensation for surveys on land within private irrigation district

(1)  A person is not entitled to compensation by reason of:

(a)  any water supply works becoming works of which a private irrigation board has the control, use or maintenance, or

(b)  the exercise by a private irrigation board of any of the powers of entry conferred on it by this Part on any lands within the private irrigation district of that board.

(2)  Subsection (1) (a) has effect subject to any terms and conditions embodied in a decision of the Land and Environment Court.

163   Compensation for surveys on lands outside private irrigation district

Compensation is payable by a private irrigation board for all damage sustained by any person as a result of a board’s exercise of its power to carry out surveys on lands outside its private irrigation district.

164   Compensation where private irrigation board constructs or takes over works

(1)  Compensation assessed in accordance with this Division is payable if a private irrigation board exercises its powers to construct or take over any water supply works.

(2)  Compensation is not payable by a private irrigation board in respect of the repair, operation or maintenance of any water supply work except in relation to damage caused by negligence and except where, in repairing, operating or maintaining any such work or works, the board causes damage to any lands outside its private irrigation district.

(3)  If immediately before the control and management of any water supply work becomes vested in a private irrigation board under this Part there was in force a legally binding agreement or arrangement between the person who then had the control and management of the work and some other landholder of land in the board’s private irrigation district (being an agreement or arrangement under which that other person was entitled to exercise any powers in relation to that work):

(a)  that agreement or arrangement is taken to be an agreement or arrangement between that board and that other person, and

(b)  any compensation to which that other person may be entitled under this Division must be assessed, having regard to his or her obligations under that agreement or arrangement.

165   Determination of amount of compensation

If compensation is payable under this Division, the amount of compensation must be determined:

(a)  by agreement between the private irrigation board and the person entitled to claim compensation, or

(b)  if such an agreement has not been reached, by the Land and Environment Court in accordance with the provisions of this Division.

166   Recovery of compensation

Any amount payable to a claimant as compensation in accordance with this Division may be recovered from the private irrigation board as a debt in any court of competent jurisdiction.

Division 6 Rates and charges for water

167   Fixing of rates and charges

(1)  As soon as practicable after 1 July in each year, a private irrigation board:

(a)  must fix a rate per hectare, for all holdings within its private irrigation district, so as to produce a total amount sufficient to meet the estimated liabilities of that board during that year and any outstanding liabilities of that board, and

(b)  must fix a rate per hectare for water, or a charge for the quantity of water, to be supplied during that year for domestic and stock purposes to all holdings within the private irrigation district, and

(c)  in the case of a board constituted for a private water supply and irrigation district:

(i)  must determine the total quantity of water that it proposes to supply to all holdings for the purpose of irrigation during that year, and

(ii)  must fix the charges in respect of the quantities of water allocated under Division 7 for that purpose in respect of all holdings within the district.

(2)  The rates and charges referred to in subsection (1) (b) and (c) must be fixed so as to produce in the year for which they are fixed the amount estimated by the private irrigation board as being required in that year:

(a)  to defray the cost of constructing, maintaining and operating its water supply works, and

(b)  to pay the interest on and repay the capital of any loans raised by the board, and

(c)  to meet any outstanding liabilities of the board and the costs and expenses of administering the private irrigation district and of doing all such things as the board may lawfully do.

168   Special rates and charges and termination charges

(1)  For the purpose of raising money:

(a)  for the fulfilment of any contract, or

(b)  for the payment of any debt that may be due or become due by the board, or

(c)  for any other purpose for which the board is authorised to exercise its functions,

      a private irrigation board may from time to time fix a special rate per hectare to be paid in respect of all holdings in its private irrigation district.

(2)  A private irrigation board may also fix special charges in respect of:

(a)  the quantities of water allocated for the purpose of irrigation, or

(b)  the quantities of water determined for domestic and stock purposes,

      in respect of all holdings in its private irrigation district.

(3)  In addition to any other charge that it may fix under this Part, a private irrigation board may fix termination charges payable by a landholder or former landholder in connection with the board ceasing to supply water to the landholder or former landholder (whether because of the transformation of the landholder’s water entitlement to an access licence or otherwise).

169   Assessment and levying of rates and charges

(1)  Rates fixed by a private irrigation board must be assessed, and must be levied as prescribed, in respect of the area of each holding within its private irrigation district.

(2)  Charges fixed by a private irrigation board for a private water supply and irrigation district must be assessed, and must be levied as prescribed, in respect of:

(a)  the quantity of water allocated for irrigation by the board under Division 7, or

(b)  the quantity of water determined by the board for domestic and stock purposes,

      in respect of each holding within the district.

170   Assessment of rates and charges

(1)  As soon as practicable after fixing any rates and charges, a private irrigation board must assess and levy the rates and charges.

(2)  If a private irrigation board at any time finds it has made an error in the assessment of any rates or charges for water in respect of any holding or landholder, the board may re-assess the rates or charges in respect of the holding or landholder affected and if it does so:

(a)  must refund any amounts overpaid, and

(b)  may levy any additional amount found to be due.

171   Provision for determining areas of holdings

For the purposes of fixing, assessing and levying rates under this Division, a holding that has an area equal to a number of hectares and a remaining fraction of a hectare is taken to have an area in hectares equal to one more than that number.

172   Liability for rates and charges for water

(1)  All amounts due and payable under this Division in respect of rates or charges are be payable to the private irrigation board by the landholder of the holding in respect of which they were levied, and must be paid whether water is or is not taken by the landholder.

(2)  Rates and charges are due and payable to and recoverable by a private irrigation board on the expiration of one month after service of notice of the rates or charges.

(3)  If more than one person is an owner of the land, the rates or charges may be levied on any one or more of those persons, and a private irrigation board may recover the rates or charges from any person on whom they are so levied, but nothing in this subsection entitles the board to recover more than the full amount of the rates or charges.

(4)  If the land is owned jointly by two or more landholders, they are jointly and severally liable to the private irrigation board for the rates or charges, but as between themselves they are each liable only for such part of the rates or charges as is proportionate to their interests in the land.

(5)  If any such landholder pays to the private irrigation board more than his or her proportionate part, the landholder may recover the excess from the other or others.

(6)  If any land in a holding reverts to the Crown during any year for which rates or charges are or are to be assessed, the person who immediately before the reversion was the landholder of the land is liable for payment of only that part of the rates or charges proportionate to the part of the year for which the land was held by the person, and any excess payment by the person must be refunded to the person.

173   Charge on land

(1)  Rates and charges under this Division, and any costs awarded to a private irrigation board by any court in proceedings for the recovery of any such rates and charges, are a charge on the land in respect of which the rates and charges have been levied.

(2)  A charge created by subsection (1) has no effect as against a purchaser in good faith for value who at the time of purchase made due inquiry but had no notice of the liability.

(3)  For the purposes of subsection (2), a purchaser is not taken to have made due inquiry unless the purchaser obtained a certificate from the private irrigation board as to the amount, if any, due in respect of rates, charges or costs.

(4)  The provisions of this section have effect despite anything contained in section 42 of the Real Property Act 1900.

174   Abandonment of rates

Rates and charges may be abandoned or written off in accordance with the by-laws made by the private irrigation board but only on the certificate of the auditor of the board that the abandonment or writing off is in accordance with the by-laws and on the unanimous resolution of the board.

175   Assessment book

(1)  Each private irrigation board must cause to be kept a book or record (in this Part referred to as the assessment book) in which must be recorded the following:

(a)  the name, address and occupation of each landholder of land within the private irrigation district,

(b)  particulars of the area of each parcel of land owned by each such landholder,

(c)  particulars identifying the separate holdings within the private irrigation district,

(d)  particulars of the total area of land owned by all landholders,

(e)  in the case of a board for a private water supply and irrigation district:

(i)  particulars of the quantity of water last allocated by the board to each irrigated holding within the district, and

(ii)  particulars of the quantity of water last determined by the board for domestic and stock purposes in respect of each such holding,

(f)  such particulars relating to the fixing, assessing and levying of rates and charges as may be prescribed.

(2)  A private irrigation board may from time to time rectify any errors or omissions in the assessment book.

Division 7 Supply of water

176   Determination of allocation

As soon as practicable after it is elected, the first board for a private water supply and irrigation district must determine the quantity of water, if any, to be allocated for irrigation to each holding within the private irrigation district.

177   Supply of water

At the times fixed by it, a private irrigation board:

(a)  must supply water for domestic and stock purposes (in such quantities as it may determine):

(i)  to the boundary of each holding within its private irrigation district, and

(ii)  to such other points as may be agreed on by the board and the landholder of the holding, and

(b)  in the case of a board for a private water supply and irrigation district, must supply water for irrigation (in the quantities allocated by it under this Division):

(i)  to the boundary of each holding within its private irrigation district for which an allocation of water for irrigation has been made by the board, and

(ii)  to such other points as may be agreed on by the board and the landholder of the holding.

178   Discontinuance or reduction of supply of water

A private irrigation board may at any time refuse to deliver water to any holding or may discontinue any delivery of water to a holding:

(a)  in the case of a holding for which it has made an allocation of water for irrigation:

(i)  if the land to be irrigated is not in its opinion properly prepared for irrigation or on which the ditches or channels to be used for the distribution of water within the holding are in the opinion of the board inadequate or in a bad state of repair, or

(ii)  if the water is for the irrigation of grasses or pastures that are not sown grasses or improved pastures, or

(b)  if any rates or charges for water in respect of the holding are, and have been for a period of 2 months or more after the due date of payment, unpaid, or

(c)  if the landholder of the holding does not comply with any requirement specified in a notice given to the landholder under this Division, or

(d)  if the water is being used for a purpose that is not authorised by a water use approval.

179   Circumstances in which private irrigation board not obliged to supply water

(1)  Nothing in this Part requires a private irrigation board to supply water to any land or landholder if, by reason of drought, accident or otherwise, the board is of the opinion that it is impracticable to do so.

(2)  Unless the private irrigation board otherwise determines, any failure to deliver water to a holding does not relieve the landholder of the holding of any liability for payment of rates and charges, and rates and charges continue to be leviable in respect of the holding despite any such failure.

180   Landholders may be required to provide distribution works

A private irrigation board may, by notice in writing given to the landholder of any holding, require the landholder:

(a)  to provide on his or her holding:

(i)  water delivery systems of such a size and capacity as will enable water to be delivered to his or her land at not less than such rate of delivery as the board may stipulate in the notice, and

(ii)  water storage works, in such locations and of such nature and extent as the board may stipulate in the notice, for the water to be supplied by it for domestic and stock purposes, and

(b)  to maintain, continuously and effectively, any water delivery systems referred to in paragraph (a) (i) so that water may be carried or passed at not less than the rate so stipulated.

181   Sale of surplus water

If the full quantity of water to be supplied under this Division has been supplied or, despite any sales made under this section, will be supplied, a private irrigation board may, subject to the conditions of any water supply work approval held by it, agree to sell by measure to the landholder of any holding water from the works of the private irrigation district subject to such terms and conditions as may be agreed to by the board and that landholder.

Division 8 Effect of new subdivisions

182   Supply of water for domestic and stock purposes to new holdings resulting from subdivisions

(1)  If a holding, whether an irrigated or non-irrigated holding, is subdivided, a new holding resulting from the subdivision is not entitled to a supply of water for domestic and stock purposes from a private irrigation board’s water supply works until a date determined by the board (not being a date earlier than the date on which the board became aware of the disposition of that new holding).

(2)  If rates for a period or year ending on 30 June, being the period or year during which the date specified by a private irrigation board under subsection (1) occurred, have not, before the date so specified, been levied in respect of the holding that was subdivided, the board must levy the rates for the whole of that period or year in respect of each of the new holdings that resulted from the subdivision, and that was disposed of.

183   Supply of water for irrigation purposes to a new holding resulting from a subdivision

(1)  If an irrigated holding is subdivided and any new holdings are thereby created, the private irrigation board must, subject to subsection (2), allocate to such of the new holdings as the landholder of the subdivided holding nominates the whole of the quantity of water last allocated to the holding that was subdivided.

(2)  If the landholder nominates more than one new holding to which the quantity of water is to be allocated, the private irrigation board may allocate the water to those holdings in such proportions as it determines.

(3)  A private irrigation board may allocate to such of the new holdings as the board determines the quantity of water last allocated to the subdivided holding if:

(a)  the landholder of the subdivided holding fails to make a nomination within the time specified by the board in a notice sent by post to the landholder at the landholder’s last known address, or

(b)  a holding nominated by the landholder does not contain land capable of being irrigated from the works of the private irrigation district or to which, in the opinion of the board, it is impracticable to convey water for irrigation from those works, or

(c)  a holding nominated by the landholder is too small to justify an allocation of water, or

(d)  the allocation of water in the manner nominated is otherwise detrimental to the administration of the private irrigation district concerned.

(4)  If a private irrigation board makes an allocation under subsection (3), it is to notify the landholder of the subdivided holding and the landholder of each new holding of the allocation.

(5)  An allocation of water to a new holding made under this section has effect on and from a date to be specified in the instrument by which the allocation is made (not being a date earlier than the date on which the private irrigation board became aware of the first disposition of any of the new holdings resulting from the subdivision).

(6)  The landholder of a new holding resulting from a subdivision referred to in subsection (1) is not entitled to an allocation of water by the private irrigation board for irrigation purposes otherwise than in accordance with this section.

(7)  If the charges for water have not been levied for the current year for the subdivided holding, the private irrigation board must levy the charges for the whole of that year in respect of the new holding to which the water previously allocated to the subdivided holding has been allocated in accordance with this section.

184   Additional works required as a result of subdivision

(1)  The person who, immediately before the disposition of a new holding resulting from a subdivision, was the landholder of the holding (the previous landholder) must construct at his or her own cost such works as are necessary to provide:

(a)  means of conveying water to the new holding from the private irrigation board’s water supply works and, if an allocation of water is made to the new holding for irrigation, means of measuring the water so supplied, and

(b)  means of access from roads to any works of the private irrigation district or any works provided for the purposes of paragraph (a) if that access would not be available except by crossing a channel of the private irrigation district, and

(c)  means of access across a channel of the private irrigation district to the new holding if that means of access is required by reason of the subdivision.

(2)  All works to be constructed under subsection (1):

(a)  in respect of the supply of water to a new non-irrigated holding, must be constructed before the new holding is disposed of or within such period after the disposition of the new holding as the private irrigation board may in any particular case allow, and

(b)  in respect of the supply of water to a new irrigated holding, must be constructed within such period as the private irrigation board may, by notice in writing, have notified to the landholder of the holding that was subdivided.

(3)  All works constructed or to be constructed under subsection (1) must be constructed in accordance with the approval in writing of the private irrigation board in respect of location, design, form, dimensions and construction.

(4)  At the request of the previous landholder, a private irrigation board may undertake, at the landholder’s cost, the construction of any works required by this section.

(5)  A private irrigation board may construct such works as have not been constructed by the previous landholder, and any costs and expenses (including any compensation paid or payable by the board under Division 5 by reason of the construction of the works) are payable to the board either by the previous landholder or by the new landholder, as the board may determine.

(6)  If any part of the costs and expenses referred to in subsection (5) is recovered by the private irrigation board from the new landholder, the new landholder may recover from the previous landholder the whole or that part of those costs or expenses, as the case may be.

(7)  On their completion, the control and management of any works constructed under this section is vested in the private irrigation board.

Division 9 Meetings of landholders

185   General meeting

(1)  The chairperson of a private irrigation board may, at any time, convene a general meeting of landholders of land within the board’s private irrigation district.

(2)  A private irrigation board must, within 21 days after the receipt of a requisition signed by not less than one-fifth in number of the landholders of the holdings in the private irrigation district, convene a general meeting of those landholders.

(3)  Seven days’ notice of every general meeting must be sent to every landholder at the address shown in the private irrigation board’s assessment book informing the landholder of the time and place of the general meeting.

186   Voting rights

(1)  A corporation may, by any person authorised by it in writing, attend general meetings and vote.

(2)  If there is more than one landholder of any holding, each landholder may attend general meetings but only one of them may vote.

Division 10 Finance

187   Books of account

Each private irrigation board must cause to be kept, in relation to its funds, proper books of account that must be audited as often as the board considers it advisable so to do, but at least once in every year, by a registered company auditor (within the meaning of the Corporations Act 2001 of the Commonwealth).

188   Accounts to be rendered

Each private irrigation board must as soon as practicable, and in any case before 31 October in each year, forward to the Minister a copy of the income and expenditure account, balance sheet and rate account as last audited, together with a copy of the certificate of audit relating to them.

189   Banking of money

(1)  All money received by or on account of a private irrigation board must be paid into a bank or authorised deposit-taking institution chosen by the board.

(2)  Every payment of $2.00 or more by or on behalf of a private irrigation board must be by cheque on the bank or authorised deposit-taking institution drawn and countersigned as prescribed by the regulations.

(3)  Payments of less than $2.00 may be made out of a petty cash fund, replenished from time to time by cheque drawn and countersigned as prescribed by the regulations.

190   Temporary accommodation

(1)  For the temporary accommodation of a private irrigation board it may obtain advances by way of overdraft of current account in any one or more banks or authorised deposit-taking institutions on the security of the income of the board.

(2)  The amount of any such overdraft must be limited to:

(a)  one-half of the income of the private irrigation board as shown by the last audited accounts, or

(b)  if there are no audited accounts, one-half of the income of the private irrigation board estimated by the board in respect of the year commencing on 1 July immediately preceding the date on which the overdraft is proposed to be obtained.

(3)  No greater amount may be borrowed under this section than the amount stated in a certificate of the auditor of the private irrigation board as being the sum that may be borrowed within the limits imposed by this section.

Division 10A Transformation of water entitlements

190A   Water entitlements of landholders

(1)  A private irrigation board must, if requested to do so in writing by a landholder of an irrigated holding to which water is supplied by the board, determine the landholder’s water entitlement.

(2)  A board must have regard to the following matters when determining the landholder’s water entitlement:

(a)  the nature of agricultural activities on the land,

(b)  the amount of water currently supplied to the landholder,

(c)  any present or past water sharing arrangements applicable to the landholder,

(d)  any other matter it considers relevant,

(e)  any other matter prescribed by the regulations.

(3)  A determination may specify the different parts of the landholder’s water entitlement that are available to the landholder for different purposes.

(4)  A determination must be in writing and comply with the requirements prescribed by the regulations. Notice of a determination must be given in writing by the board to the landholder.

(5)  A determination may be varied or redetermined only on a further application made by the landholder within 3 months of the determination or in the circumstances prescribed by the regulations.

(6)  A person must not participate in a determination of a landholder’s water entitlement if the person or a member of the person’s immediate family (within the meaning of the regulations) has an interest in the entitlement.

190B   Transformation of landholder’s water entitlement

(1)  A private irrigation board may make an application under Division 4 of Part 2 of Chapter 3 for the purpose of wholly or partly transforming a landholder’s water entitlement into an access licence under this Act.

(2)  On transformation of the whole or part of a landholder’s water entitlement to an access licence:

(a)  the landholder is not entitled to vote (as a member of the private irrigation board or as a landholder within the private irrigation district) on any matter relating to the transformation of one or more other landholders’ water entitlements or the supply of water to landholders who have not transformed their water entitlements, and

(b)  the board may continue to exercise functions in relation to any works that are located on the landholding for which it exercised functions immediately before the transformation (whether or not the board is to deliver the landholders’ water entitlement under the access licence or the landholding remains in the private irrigation district).

(3)  If the whole of a landholder’s water entitlement is transformed and the landholder does not have a right to the delivery of that water by the board:

(a)  the landholder is not entitled to vote as a landholder within the private irrigation district, and

(b)  the board must not fix rates and charges in respect of the landholder’s landholding for that water (other than termination charges).

(4)  The regulations may make provision for or with respect to:

(a)  other circumstances in which a landholder whose landholder’s water entitlement has been transformed ceases to be a voting member, and

(b)  the voting rights of landholders who have partially transformed their landholders’ water entitlements.

(5)  A board may require a landholder to provide security as a condition of consent to transformation of the whole or part of the landholder’s water entitlement, subject to the regulations.

(6)  Without limiting subsection (5), the following kinds of security may be required by a board:

(a)  a charge over a part of an irrigation right that is not transformed,

(b)  a charge over an access licence or other entitlement to water acquired by the person and resulting from the transformation,

(c)  a guarantee by an authorised deposit-taking institution,

(d)  a deposit lodged with the board.

(7)  In addition to any other charges it may fix under this Part, a board may fix the following charges:

(a)  (Repealed)

(b)  charges payable by a landholder for the delivery of water after transformation of the whole or part of the landholder’s water entitlement.

Division 11 Miscellaneous

191   Delegation

A private irrigation board may by instrument in writing delegate:

(a)  to any member of the board, or

(b)  to any employee of the board,

any of its functions, other than this power of delegation.

192   Assessment book admissible as evidence

In any legal proceedings for the recovery of rates or charges:

(a)  a private irrigation board’s assessment book, or

(b)  any document purporting to contain a copy of any part of a private irrigation board’s assessment book that is certified as a true copy by the chairperson of the private irrigation board, or by a person authorised by the chairperson in that regard,

is admissible in evidence.

193   Service of notice of proceedings on a private irrigation board

Any document required to be served on a private irrigation board may be served:

(a)  by leaving it with some person apparently employed by the board at the office of the board, or

(b)  by posting it to the board at its office.

194   Recovery of rates

Any rates, charges or money due to a private irrigation board under this Part may be recovered as a debt in a court of competent jurisdiction.

195   Amendment of proclamations

Any proclamation under this Part may be amended by a further proclamation for the purpose of correcting any error in the earlier proclamation.

196   By-laws

(1)  A private irrigation board may, with the approval of the Governor, make by-laws not inconsistent with this Act or the regulations for or with respect to the following:

(a)  the convening and holding of general meetings of landholders,

(b)  the appointment by a landholder of a proxy for voting purposes,

(c)  the supply of water for domestic and stock purposes or for irrigation,

(d)  the provision of storages on holdings for water supplied from the water supply works of the board for domestic and stock purposes,

(e)  the methods of measuring water supplied,

(f)  the sale of water to landholders,

(g)  regulating the use of the water supply works of the board,

(h)  the prevention of waste of water,

(i)  the fixing, assessing and levying of rates and charges for water,

(j)  the class of case in which, and the circumstances in which, rates and charges may be abandoned or written off,

(k)  the accounts of the board,

(l)  the collection and banking of money, and the signing and countersigning of cheques,

(m)  the books and records of the board,

(n)  the access of members of the board to documents and books of the board,

(o)  fees for any service provided by the board,

(p)  the form of any notice or other document to be prepared, issued or received in accordance with this Part or any regulations of the board,

(q)  any matter that is necessary or convenient to be prescribed for carrying out or giving effect to this Part.

(2)  A by-law may create an offence punishable by a penalty not exceeding 0.5 penalty units.

Part 3 Private drainage boards

Division 1 Preliminary

197   Application of Part

This Part applies to all drainage unions under the former Drainage Act 1939 that were in existence immediately before the repeal of that Act, but does not authorise the establishment of any new drainage unions.

198   Definitions

In this Part:

director means director of a private drainage board.

drain includes a natural watercourse.

drainage district means the area in respect of which a drainage union is constituted, having boundaries as varied from time to time in accordance with this Part.

private drainage board means board of directors of a drainage union.

199   Requirements for access licences and approvals

Nothing in this Part authorises a private drainage board or landholder to do anything for which this Act requires an access licence or approval unless the private drainage board or landholder holds an appropriate access licence or approval.

Division 2 Private drainage boards

200   Private drainage boards

Each private drainage board is a corporation under the corporate name by which it was constituted.

201   Appointment and election of directors

(1)  A private drainage board is to have not less than 3, and not more than 7, directors.

(2)  If any Crown lands are included in the private drainage board’s district, one of the directors is to be appointed by the Minister (the appointed director).

(3)  The remaining directors (the elected directors) are to be elected by landholders within the drainage district.

(4)  The regulations may make provision for or with respect to:

(a)  the conduct of elections for the elected directors of a private drainage board, and

(b)  other matters concerning the constitution and procedure of a private drainage board.

202   Functions of private drainage boards

(1)  A private drainage board has the following functions:

(a)  to prepare, review and implement a management program for its drainage district,

(b)  to maintain in a state of efficiency the drainage works under its charge, and renew such drainage works if necessary,

(c)  to construct, alter, or extend any drainage works in accordance with any authority and consent given under this Part,

(d)  to make, levy and collect rates,

(e)  to appoint such officers and employees as may be required,

(f)  to institute legal proceedings for the recovery of outstanding rates or other amounts,

(g)  to keep the prescribed books and accounts,

(h)  to manage the affairs of the drainage union,

(i)  to do such acts as may be necessary or desirable for carrying out the purposes of this Part.

(2)  No drainage works affecting navigable waters (within the meaning of the Protection of the Environment Operations Act 1997) are to be commenced without the approval of the Governor.

203   Entry on lands

(1)  A private drainage board or any person authorised by it may enter any land within or outside its drainage district:

(a)  for the purpose of making inspections or surveys, and

(b)  for the purpose of constructing, maintaining and effecting extensions and alterations to the drainage works, and

(c)  for any other purpose in the exercise of its powers and duties.

(2)  The private drainage board must make full compensation for damage occasioned to any land in the exercise of its powers and duties under this Part.

204   Extension of drainage works

A private drainage board is to carry out such extensions of drainage works as are authorised by a majority of votes cast at a general meeting at which a quorum is present.

205   Amendment of boundaries

(1)  The boundaries of a drainage district may from time to time, on application by the private drainage board, be amended by the Governor.

(2)  Any such application must contain particulars of the lands proposed to be added to or excised from the drainage district, and that have or are capable of being increased in value or that have decreased in value respectively by reason of the operations of the private drainage board.

(3)  The Minister must cause notice of any such application to be published in an appropriate newspaper.

(4)  The notice must:

(a)  give particulars of the lands proposed to be added to or excised from the drainage district, and

(b)  appoint a time (not being earlier than 8 weeks after the date of publication of the notice) and place at which objections may be lodged.

(5)  After expiration of the appointed time and on consideration of any objection lodged the Minister may recommend and the Governor may approve an application with such modification, if any, as the Minister, on investigation, may recommend.

(6)  The approval of the Governor, and particulars of the alterations made in the boundaries of the drainage district, must be notified by the Minister in the Gazette.

(7)  As from the date of publication of such notification, the boundaries of the drainage district are taken to be altered accordingly.

Division 3 Finance

206   Rates

(1)  A private drainage board may, in respect of each landholding within its area of operations, fix, assess and levy rates in order to provide funds to enable it to exercise its functions.

(2)  Rates levied by a private drainage board are payable by the persons, and at the times, prescribed by the regulations.

(3)  A private drainage board may impose a charge for a service provided by it otherwise than by means of a drainage management work.

(4)  A private drainage board is to keep the records prescribed by the regulations in connection with the rates fixed, assessed and levied by it.

207   Annual estimates

For each year commencing 1 January, the private drainage board must cause an estimate to be made of the amount required for that year for the following purposes:

(a)  construction, maintenance, extension and alteration of drainage works,

(b)  payment to the Treasurer of any amounts due or becoming due,

(c)  repayment of loans, and payment of interest thereon,

(d)  defraying costs of administration,

(e)  meeting all other expenditure whatsoever in carrying out its powers, authorities, duties and functions,

(f)  the preparation and implementation of management programs.

208   Irregularities

If for any reason any rate is not made within or by the time prescribed by or under this Part, or if any irregularity in making or levying any rate affects or may be considered to affect the validity of any rate, the Governor may extend the time for the making of the rate, and may authorise the doing by the private drainage board of such acts as may be necessary to cure the irregularity and to validate the rate.

209   Rate book

(1)  Every rate must be entered in a rate book which must be in the prescribed form.

(2)  An alteration or amendment in the rate book may be made in respect of any rate by altering such of the particulars entered therein as may be prescribed.

(3)  An alteration or amendment in the rate-book has effect on adoption by the private drainage board as though made when the rate was made.

(4)  An alteration or amendment in the rate-book made in conformity with a resolution of the private drainage board must be made in the prescribed manner.

210   Due date

Every rate becomes due and payable to and recoverable by the private drainage board on the expiration of one month after service of the rate notice.

211   Liability of owner

Except where this Part otherwise expressly provides, every rate is to be paid to the private drainage board by the owner of the land in respect of which the rate is levied.

212   Liability of current owner

(1)  If a private drainage board is for any reason unable to recover any amount owing by way of rates from the owner of any land, the private drainage board may serve on any tenant of that land a notice requiring that any rent then due or thereafter to become due by the tenant in respect of the land be paid by the tenant as it falls due to the board in liquidation of the amount owing.

(2)  In default of payment of rent, the private drainage board may recover from the tenant of the land the amount owing as a debt in any court of competent jurisdiction.

(3)  Any payment to the private drainage board under this section constitutes a valid discharge to the payer for such rent as against all other persons.

(4)  Nothing in this section applies to a person who is a tenant for or on behalf the Crown, as an officer or employee of the Crown or as an employee of a local council.

213   Lessees of land owned by the Crown

(1)  If the land is owned by the Crown and is held by any person under a lease from the Crown, the rate must be paid to the private drainage board by the holder of the lease.

(2)  If the land is held under a lease from the Crown by two or more persons successively in the same year, the private drainage board may do any of the following:

(a)  it may make such adjustment (if any) of the rate, whether paid or unpaid, as it thinks proper between such persons,

(b)  it may recover from each of such persons that person’s proportion of the rate as fixed by the adjustment,

(c)  it may make any refund in accordance with the adjustment,

(d)  it may write off any amount in respect of the interval between those persons’ holdings.

Division 4 Effect of new subdivisions

214   Connections to new holdings resulting from subdivisions

(1)  If a holding is subdivided, a new holding resulting from the subdivision is not entitled to be connected to a private drainage board’s drainage works until a date determined by the board (not being a date earlier than the date on which the board became aware of the disposition of that new holding).

(2)  If rates for a period or year ending on 30 June, being the period or year during which the date determined by the board under subsection (1) occurred, have not, before the date so determined, been levied in respect of the holding that was subdivided, the board must levy the rates for the whole of that period or year in respect of each of the new holdings that resulted from the subdivision, and that was disposed of.

215   Additional works required as a result of subdivision

(1)  The person who, immediately before the disposition of a new holding resulting from a subdivision of land within a private drainage board’s drainage district, was the landholder of the holding (the previous landholder) must construct at his or her own cost such works as are necessary to provide:

(a)  means of conveying water to the board’s drainage works from the new holding, and

(b)  means of access from roads to any works of the board or any works provided for the purposes of paragraph (a) if that access would not be available except by crossing a channel of the drainage district, and

(c)  means of access across a channel of the drainage district to the new holding if that means of access is required by reason of the subdivision.

(2)  All works to be constructed under subsection (1) must be constructed before the new holding is disposed of or within such period after the disposition of the new holding as the board may in any particular case allow.

(3)  All works constructed or to be constructed under subsection (1) must be constructed in accordance with the approval in writing of the board in respect of location, design, form, dimensions and construction.

(4)  At the request of the previous landholder, the board may undertake, at the landholder’s cost, the construction of any works required by this section.

(5)  The board may construct such works as have not been constructed by the previous landholder, and any costs and expenses are payable to the board either by the previous landholder or by the new landholder, as the board may determine.

(6)  If any part of the costs and expenses referred to in subsection (5) is recovered by the board from the new landholder, the new landholder may recover from the previous landholder the whole or that part of those costs or expenses, as the case may be.

(7)  On their completion, the control and management of any works constructed under this section is vested in the board.

Division 5 Miscellaneous

216   Dissolution

(1)  When all amounts due by the private drainage board of any drainage union have been repaid, the landholders (being not less than one-third in number of those within the drainage district) may present a petition to the Governor for the dissolution of the union.

(2)  The Governor may notify such petition in an appropriate newspaper, and if no sufficient cause to the contrary is shown by other landholders within the drainage district, may proclaim that the union is dissolved.

(3)  (Repealed)

(4)  The regulations may make provision for or with respect to the winding up of a private drainage board and for the disposal of any residual assets of the board.

(5)  If the Governor is satisfied that the winding up of a private drainage board has been completed under this section, the Governor may, by proclamation published in the Gazette, abolish the board.

217   Debts

Any rate, charge, fee, or money due to a private drainage board under the provisions of this Part or of any regulation under this Part may be recovered as a debt or liquidated demand in any court of competent jurisdiction.

218   Accounts

(1)  The accounts of a private drainage board must be audited once every year.

(2)  A private drainage board must each year publish in an appropriate newspaper a statement of the receipts and payments or alternatively of the income and expenditure for the next preceding year, certified under the hands of the chairperson of the board or manager and the auditor, or forward a copy of such statement to each landholder of land within the drainage district.

(3)  The private drainage board must forward a copy of the statement to the Minister.

219   Regulations

The regulations may make provisions for or with respect to the following matters:

(a)  the appointment, payment and dismissal of officers and employees of a drainage board,

(b)  the making and levying of rates and the time within which rates must be made,

(c)  the keeping of accounts of private drainage boards,

(d)  the qualifications to be held by auditors appointed by a private drainage board.

Part 4 Private water trusts

Division 1 Preliminary

220   Application of Part

This Part applies to all private water trusts under Part 3 of the former Water Act 1912 that were in existence immediately before the repeal of that Part, but does not authorise the establishment of any new private water trusts.

221   Definitions

In this Part:

landholder’s water entitlement means the part of the share component of an access licence held by or on behalf of a private water trust that is available to a landholder for irrigation.

member, in relation to a private water trust, means a member appointed or elected under section 223.

private water trust means a trust constituted under Part 3 of the former Water Act 1912.

ratepayer means person paying rates in respect of land within a water supply district.

water supply district means the district in respect of which a private water trust is constituted.

222   Requirements for access licences and approvals

Nothing in this Part authorises a private water trust or landholder to do anything for which this Act requires an access licence or approval unless the private water trust or landholder holds an appropriate access licence or approval.

Division 2 Private water trusts

223   Appointment and election of members

(1)  For private water trusts with 3 members, 1 is to be appointed by the Minister, and 2 are to be elected.

(2)  For private trusts with 5 members, 2 are to be appointed by the Minister, and 3 are to be elected.

(3)  One of the members appointed by the Minister is to be appointed as chairperson.

(4)  The regulations may make provision for or with respect to:

(a)  the conduct of elections for the elected members of a private water trust, and

(b)  other matters concerning the constitution and procedure of a trust.

224   Alteration of water supply districts

(1)  If two-thirds of the landholders of lands within any area sign and forward to the Minister a petition that such area be included in a water supply district, the Minister must, unless of the opinion that the petition should be refused, refer the petition to the members of the private water trust for the district.

(2)  On receipt from the members of notice that the proposed alteration has been approved by a special general meeting of the voters of the trust, of which at least 14 days’ notice has been given in the prescribed manner, the Minister may, by notification in the Gazette, alter the boundaries of the district accordingly.

225   Removal of land from water supply district

(1)  If any lands within a water supply district have not benefited from the water management works of the private water trust for a continuous period of 3 years or more and the landholder of such lands applies to the Minister for the lands to be excised from the water supply district, the Minister must refer the application to the members of the private water trust for the district.

(2)  The members must refer the question of the proposed excision of the lands from the water supply district to a special general meeting of the voters of the trust (of which at least 14 days’ notice has been given in the prescribed manner) and must convey to the Minister the decision of the voters.

(3)  The members must also advise the Minister as to:

(a)  the reasons why such lands have not so benefited or have ceased so to benefit, and

(b)  the practicability or otherwise of extending or improving the water management works of the trust so as to benefit the said lands, and

(c)  the effect that the granting of the request would have on the general administration and finances of the trust.

(4)  The Minister is then to decide whether or not the whole or any part of the lands referred to in the request are to be excised from the water supply district.

(5)  The Minister may, by notification in the Gazette, excise such lands from the water supply district and on the publication of such notification the water supply district is taken to be altered accordingly.

226   Union of trusts

On the joint application of members of any two adjoining water supply districts, duly approved by a majority of the voters of each district at separate special general meetings (of which at least 14 days’ notice has been given in the prescribed manner), the Minister may, by notification in the Gazette, transfer any part of one water supply district to the other water supply district.

Division 3 Functions of members

227   Duties of members

The members of a private water trust have the function of maintaining and administering the trust’s works.

228   Powers and duties of members

(1)  The members of a private water trust have and may exercise the following functions:

(a)  to establish and maintain a management program for the water supply district,

(b)  to maintain in a state of efficiency the water management works under their charge and renew such works if necessary,

(c)  to fix and levy rates to provide for the maintenance, renewal and management of such water management works, and for interest, charges, and a sinking fund,

(d)  to keep proper accounts of all money received and paid,

(e)  to pay to the Treasury, at such times as may be fixed by the Minister, the interest and charges payable by them, and if necessary make due provision for a sinking fund,

(f)  to appoint, with the approval of the Minister, such officers or employees as may be required,

(g)  to borrow money, but only as provided in this section.

(2)  A loan by way of limited overdraft may be obtained for the purpose of meeting necessary legitimate expenditure prior to the collection of rates or for the purpose of carrying out urgent works of renewal, or replacement, or other emergency, for which sufficient funds are not immediately available.

(3)  On application by the members of a private water trust the Minister may issue a certificate of limit of overdraft, in which must be named the purpose in respect of which the loan may be obtained and the limit of amount to be borrowed.

(4)  The sum to be stated in the certificate as the limit of the overdraft is in the discretion of the Minister, but must not exceed the estimated amount required for the purpose mentioned therein plus 10% of such amount.

(5)  The loan is subject to any conditions inserted by the Minister in the certificate, and the money borrowed is taken to be secured on the income of the trust and must be repaid within the time fixed in the certificate.

(6)  All sums received on account of a trust’s sinking fund must be carried by the Treasurer to a special account, to be called “The Water Supply Loan Redemption Fund”, and all other sums to the Consolidated Fund.

(7)  The members of a private water trust may on application by any ratepayer defer or suspend payment of rates by the ratepayer for such period or periods and on such terms and conditions as the Minister may approve.

229   Supply of water

(1)  The members of a private water trust may for the more beneficial use or efficient distribution of the water supplied by the trust’s water supply works:

(a)  cease to supply water through any portion of the works in the water supply district or to any lands within such district, or

(b)  deviate the course of a water supply work or otherwise alter in any way the works in the water supply district.

(2)  Before taking any such action, the members must obtain the written consent of any ratepayer:

(a)  whose benefit from those works will be diminished by the action of the members, or

(b)  the supply of water or means of supply of water to whose lands will be affected,

      and must also obtain the written approval of the Minister of the members’ proposed action.

(3)  The members of a private water trust may cut off or withhold the supply of water to any land:

(a)  if any meter used to measure such supply or any outlet is out of repair or, in the opinion of the members, unsatisfactory for the expeditious or effective supply of water to such land, or

(b)  if, in the opinion of the members, such course is necessary owing to drought or any accident or other unavoidable cause, or

(c)  if the landholder or person requiring a supply of water neglects to comply with the lawful requirements of the members as to the installation of outlets or meters or instruments for measuring the quantity of water, or

(d)  if the landholder or person requiring a supply of water neglects to comply with any lawful requirements of the members to repair or alter water connections, outlets, channels, ditches, pipes, fittings or appliances connected to the water management works under the control of the members, or

(e)  if the landholder of the land fails to take such steps as may be necessary to ensure compliance with any order or public notice of the members requiring consumers of water to economise its use in time of drought or scarcity of supply, or

(f)  if any rates fixed and levied in respect of the land are, after the due date of payment, unpaid and approval to the supply of water to the land being cut off or withheld is given:

(i)  if the trust was constituted by 3 members, by the chairperson of the trust and all the elected members, or

(ii)  if the trust was constituted by 5 members, by the chairperson of the trust and a majority of the elected members.

(4)  If the Minister:

(a)  reduces or discontinues the supply of water to the members of a private water trust, or

(b)  directs the members of a private water trust:

(i)  to reduce the quantity of water being taken or diverted by them from any water source, or

(ii)  to discontinue the taking or diverting of water from a water source,

      the members may reduce or cut off or withhold the supply of water to any land.

(5)  The cutting off or withholding or reduction of the supply of water by the members of a private water trust under this section does not affect the liability of the ratepayer in respect of the rates on the land the supply of water to which has been cut off, withheld or reduced.

230   Power of members to enter and inspect

In the exercise of their functions, by themselves or their officers, the members of a private water trust may enter any land within the water supply district and make any inspection or survey they consider necessary, and effect repairs or alterations to any water management works, but in so doing must avoid, as far as practicable, causing any loss, injury or damage.

231   No compensation

No compensation is payable in connection with a private water trust’s exercise of its functions under this Part.

Division 4 Rating

232   Rates

(1)  For the purpose of providing money in connection with the exercise of their functions under this Part, the members of a private water trust may fix and levy rates on the lands within the water supply district as follows:

(a)  in connection with the supply of water for stock purposes:

(i)  a rate per hectare of the land benefited by the water management works must be fixed, or

(ii)  if water is supplied down a natural channel, a rate per kilometre of the lands so benefited, measured according to the frontage to the channel, may be fixed,

      which rate may vary in proportion to the benefit received,

(b)  in connection with the supply of water for domestic purposes, a rate for each separate holding in the water supply district must be fixed, which rate may vary in proportion to the benefit received,

(c)  in connection with the construction and maintenance of flood works, a rate per hectare of the land benefited by the works must be fixed, which rate may vary:

(i)  according to the distance of the land from works for the prevention of floods or the control of flood waters, and

(ii)  in proportion to the benefit received,

(d)  in connection with irrigation, a rate must be levied on the land within the water supply district:

(i)  that is suitable for production under irrigation, and

(ii)  that is accessible to the works of the trust by means of recognised methods of irrigation.

(2)  If land is liable for rates under subsection (1) (d), the members of a private water trust may, in fixing the rate, fix different amounts for different parts of the land, having regard to:

(a)  the fact that any such part is or is not actually used for production under irrigation, or

(b)  the type of production under irrigation for which any such part is used.

(3)  In any case for which this section does not provide, a rate per hectare of the land benefited, directly or indirectly, by the works must be fixed yearly, and must, as far as practicable, be in proportion to the benefit received.

(4)  In the case of a supply for more than one purpose, separate rates may be fixed, calculated on the basis set out for each such purpose.

(5)  All rates are a charge on the land in respect of which they are levied and are payable by the landholder.

(6)  Any landholder aggrieved by the amount of a rate may appeal to the Local Court, which must hear and determine the matter, and may confirm or vary such amount.

(7)  If in any such appeal the Local Court reduces the amount at which the appellant is rated, it must increase the other ratings of the trust in such amounts as it thinks just, if it considers such course necessary, in order to secure that the total amount to be received by the trust for rates is not to be diminished by the reduction.

(8)  The provisions of this section have effect despite anything contained in section 42 of the Real Property Act 1900.

233   Supplementary rating powers

(1)  If the members of a private water trust are unable to meet the cost of administration or of an extension or improvement of the works under their control or other liability, they may in writing petition the Minister to approve an increase in the maximum rate that may be assessed by them, and must set out in such petition the reasons for their request.

(2)  The Minister must inform the members whether or not the Minister is prepared to grant their petition and, if so, must inform them of the maximum rate that the Minister is prepared to approve.

(3)  The members must submit the proposed increase in maximum rate that the Minister is prepared to approve to a special general meeting of the voters of the trust (of which at least 14 days’ notice has been given in the prescribed manner).

(4)  The members must report to the Minister whether an affirmative or negative vote has been carried at the meeting.

(5)  If an affirmative vote has been cast the Minister must grant the petition of the members by notification sent to them and published in the Gazette, and thereafter the members may assess rates to the maximum approved by the Minister.

234   Surplus water

When a private water trust has any surplus water that is not required for the purpose for which the trust was constituted, the trust may sell the water, by measure or otherwise:

(a)  to any ratepayer for any other purpose, or

(b)  if no ratepayer requires it, to any other person.

235   Accounts

(1)  The members of a private water trust must submit to the Minister once every year, and at such other times as the Minister may direct, an audited statement of the accounts of the trust.

(2)  The Minister may, if of opinion that the audited statement is defective or unsatisfactory, appoint an auditor to prepare a proper statement of accounts, at the cost of the trust.

Division 5 Effect of new subdivisions

236   Supply of water to new holdings resulting from subdivisions

(1)  If a holding is subdivided, a new holding resulting from the subdivision is not entitled to a supply of water from a private water trust’s water supply works until a date determined by the trust (not being a date earlier than the date on which the board became aware of the disposition of that new holding).

(2)  If rates for a period or year ending on 30 June, being the period or year during which the date determined by the trust under subsection (1) occurred, have not, before the date so determined, been levied in respect of the holding that was subdivided, the trust must levy the rates for the whole of that period or year in respect of each of the new holdings that resulted from the subdivision, and that was disposed of.

237   Additional works required as a result of subdivision

(1)  The person who, immediately before the disposition of a new holding resulting from a subdivision of land within a private water trust’s water supply district, was the landholder of the holding (the previous landholder) must construct at his or her own cost such works as are necessary to provide:

(a)  means of conveying water to the new holding from the trust’s water supply works, and

(b)  means of access from roads to any works of the trust or any works provided for the purposes of paragraph (a) if that access would not be available except by crossing a channel of the water supply district, and

(c)  means of access across a channel of the water supply district to the new holding if that means of access is required by reason of the subdivision.

(2)  All works to be constructed under subsection (1) must be constructed before the new holding is disposed of or within such period after the disposition of the new holding as the trust may in any particular case allow.

(3)  All works constructed or to be constructed under subsection (1) must be constructed in accordance with the approval in writing of the trust in respect of location, design, form, dimensions and construction.

(4)  At the request of the previous landholder, the trust may undertake, at the landholder’s cost, the construction of any works required by this section.

(5)  The trust may construct such works as have not been constructed by the previous landholder, and any costs and expenses are payable to the trust either by the previous landholder or by the new landholder, as the trust may determine.

(6)  If any part of the costs and expenses referred to in subsection (5) is recovered by the trust from the new landholder, the new landholder may recover from the previous landholder the whole or that part of those costs or expenses, as the case may be.

(7)  On their completion, the control and management of any works constructed under this section is vested in the trust.

Division 5A Water entitlements

237A   Water entitlements of landholders

(1)  The members of a private water trust must, if requested to do so in writing by a landholder of a landholding within the water supply district of the trust to which water is supplied by the trust for irrigation, determine the landholder’s water entitlement.

(2)  The members of the trust must have regard to the following matters when determining the landholder’s water entitlement:

(a)  the nature of agricultural activities on the land,

(b)  the amount of water currently supplied to the landholder,

(c)  any present or past water sharing arrangements applicable to the landholder,

(d)  any other matter they consider relevant,

(e)  any other matter prescribed by the regulations.

(3)  A determination may specify the different parts of the landholder’s water entitlement that are available to the landholder for different purposes.

(4)  A determination must be in writing and comply with the requirements prescribed by the regulations. Notice of a determination must be given in writing by the members of the trust to the landholder.

(5)  A determination may be varied or redetermined only on a further application made by the landholder within 3 months of the determination or in the circumstances prescribed by the regulations.

(6)  A person must not participate in a determination of a landholder’s water entitlement if the person or a member of the person’s immediate family (within the meaning of the regulations) has an interest in the entitlement.

237B   Transformation of landholder’s water entitlement

(1)  The holders of an access licence for the water supply district of a private water trust may make an application under Division 4 of Part 2 of Chapter 3 for the purpose of wholly or partly transforming a landholder’s water entitlement into an access licence under this Act.

(2)  On transformation of the whole or part of a landholder’s water entitlement to an access licence:

(a)  the landholder is not entitled to vote (as a member of the trust or as a voting member in the water supply district) on any matter relating to the transformation of one or more other landholders’ water entitlements or the supply of water to landholders who have not transformed their water entitlements, and

(b)  the members of the trust and the trust may continue to exercise functions in relation to any works that are located on the landholding for which they exercised functions immediately before the transformation (whether or not the trust is to deliver the landholders’ water entitlement under the access licence or the landholding remains in the water supply district of the trust).

(3)  If the whole of a landholder’s water entitlement is transformed and the landholder does not have a right to the delivery of that water by the trust:

(a)  the landholder is not entitled to vote as a landholder within the water supply district of the trust, and

(b)  the trust must not fix rates and charges in respect of the landholder’s landholding for that water (other than termination charges).

(4)  The regulations may make provision for or with respect to:

(a)  other circumstances in which a landholder whose landholder’s water entitlement has been transformed ceases to be a voting member in the water supply district of the trust, and

(b)  the voting rights of landholders who have partially transformed their landholders’ water entitlements.

(5)  The members of a trust may require a landholder to provide security as a condition of consent to transformation of the whole or part of the landholder’s water entitlement, subject to the regulations.

(6)  Without limiting subsection (5), the following kinds of security may be required by the members of a trust:

(a)  a charge over a part of an irrigation right that is not transformed,

(b)  a charge over an access licence or other entitlement to water acquired by the person and resulting from the transformation,

(c)  a guarantee by an authorised deposit-taking institution,

(d)  a deposit lodged with the trust.

(7)  In addition to any other charges it may fix under this Part, the members of a trust may fix the following charges:

(a)  (Repealed)

(b)  charges payable by a landholder for the delivery of water after transformation of the whole or part of the landholder’s water entitlement.

Division 6 Miscellaneous

238   Minister may remove members and Governor may dissolve trust

(1)  In the event of any delay in the election of members of a private water trust or in the event of any default by members of a private water trust in the discharge of their duties under this Part or of the ratepayers failing to elect members, or the required number of members, the Minister may, by notification in the Gazette:

(a)  remove a member or members from office, and direct the election of another member or other members, or

(b)  remove a member or members (if any) and assume all of the functions of the members, and may appoint a manager of the affairs of the trust.

(2)  The Minister may at any time direct the election of members of a private water trust, and on such election all of the functions of the members are revested in the members.

(3)  (Repealed)

(4)  The regulations may make provision for or with respect to the winding up of a private water trust and for the disposal of any residual assets of the trust.

(5)  If the Governor is satisfied that the winding up of a private water trust has been completed under this section, the Governor may, by proclamation published in the Gazette, abolish the trust.

238A   Termination charges

In addition to any other charge that they may fix under this Part, the members of a private irrigation trust may fix termination charges payable by a landholder or former landholder in connection with the trust ceasing to supply water to the landholder or former landholder (whether because of the transformation of the landholder’s water entitlement to an access licence or otherwise).

239   Regulations

The regulations may make provision for or with respect to the following matters:

(a)  the election of members of a private water trust and the making and revision of the rolls of voters, and the mode of voting,

(b)  the intervals within which meetings of members of a private water trust must be held,

(c)  the procedure at such meetings,

(d)  the appointment, payment, and dismissal of officers and employees of a private water trust,

(e)  the fixing and notifying of rates,

(f)  the hearing of appeals,

(g)  prescribing the method or methods to be adopted to determine the quantity of water for which payment is to be made by the trust,

(h)  the keeping of the accounts of private water trusts,

(i)  regulating the payment to the Crown of interest and charges by private water trusts,

(j)  regulating special meetings of voters of a private water trust in pursuance of this Part.

Chapter 5 Public works

Part 1

240–252(Repealed)

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-Central Rivers Catchment Management Authority means the Hunter-Central Rivers Catchment Management Authority established under the Catchment Management Authorities Act 2003.

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 the Hunter-Central Rivers Catchment Management Authority 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 the Hunter-Central Rivers Catchment Management Authority is liable to make contribution under some other provision of this Division.

(2)  The Hunter-Central Rivers Catchment Management Authority 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)  the Hunter-Central Rivers Catchment Management Authority 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)  the Hunter-Central Rivers Catchment Management Authority 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)  The Hunter-Central Rivers Catchment Management Authority 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 Hunter-Central Rivers Catchment Management Authority

(1)  The Hunter-Central Rivers Catchment Management Authority 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 the Hunter-Central Rivers Catchment Management Authority’s 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 the Authority 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 Hunter-Central Rivers Catchment Management Authority as to works program

(1)  Before the beginning of each financial year or as soon as practicable thereafter, the Minister must submit to the Hunter-Central Rivers Catchment Management Authority 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 the Hunter-Central Rivers Catchment Management Authority 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 the Hunter-Central Rivers Catchment Management Authority 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 the Hunter-Central Rivers Catchment Management Authority, 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.

Part 3

274–280(Repealed)

Chapter 6 Public utilities

Part 1 Major utilities

281   Major utilities

(1)  This Part applies to each body referred to in Schedule 2 (referred to as a major utility).

(2)  The Governor may by proclamation published on the NSW legislation website amend Schedule 2 so as:

(a)  to add the corporate name of any body that is to become a major utility for the purposes of this Part, or

(b)  to vary the name of any major utility as a consequence of any change in its corporate name, or

(c)  to omit the corporate name of any body.

282   Review of activities of major utilities

(1)  The activities of a major utility under this Act:

(a)  may be reviewed at any time, and

(b)  must be reviewed:

(i)  before the end of the 6 month period following the date on which its first approval was granted under section 95, and

(ii)  before the end of each 5 year period following the date on which its current approval was granted.

(2)  For the purpose of conducting such a review, the Minister must cause notice to be published:

(a)  in the Gazette, and

(b)  in an appropriate newspaper,

      inviting written submissions from interested persons in relation to the activities of the major utility during the period under review.

Part 2 Water supply authorities

Division 1 Preliminary

283   Definitions

In this Part:

area of operations of a water supply authority means the area of operations prescribed by the regulations in relation to that authority.

charging year, in relation to a water supply authority, means:

(a)  the period of 12 months declared by an order in force under Division 6 to be the charging year for the water supply authority, or

(b)  if the charging year is changed under that Division by a further order, the period between the end of one charging year and the beginning of the next.

development area means an area of land declared by an order in force under Division 6 to be a development area.

drainage area means an area of land declared by an order in force under Division 6 to be a drainage area.

drainage service means that part of drainage pipework up to its point of connection to a water supply authority’s drainage system.

drainage service pipe means a pipe connecting a drainage service to a water supply authority’s drainage system, and includes the plumbing fittings connected to the pipe.

floodplain means an area of land declared by an order in force under Division 6 to be a floodplain.

meter includes any measuring device.

plumbing fitting includes any pipe, apparatus or fixture used for plumbing work.

plumbing work means work comprising or affecting:

(a)  a water supply service pipe or its connection (whether directly or indirectly) with a water supply authority’s water supply system, or

(b)  a sewerage service pipe or its connection (whether directly or indirectly) with a water supply authority’s sewerage system, or

(c)  a drainage service pipe or its connection (whether directly or indirectly) with a water supply authority’s drainage system.

river management area means an area of land declared by an order in force under Division 6 to be a river management area.

service charge means any of the following:

(a)  a water service charge,

(b)  a sewerage service charge,

(c)  a drainage service charge,

(d)  a loan service charge,

(e)  a developmental works service charge,

(f)  a flood mitigation service charge,

(g)  a river management service charge, or

(h)  a special industry service charge,

that may be levied under Division 6.

sewage work means a work (such as a pump, pipe or channel) that is constructed or used for the purpose of removing sewage or other waste matter from land, including a reticulated system of such works, and includes:

(a)  all associated pipes, valves, pumps and other equipment, and

(b)  all sewage treatment or sewage processing plants and their outfalls and drainage beds,

but does not include any work declared by the regulations not to be a sewage work.

sewerage service means that part of sewerage pipework, including all sanitary fixtures, up to its point of connection to a water supply authority’s sewerage system.

sewerage service pipe means a pipe connecting a sewerage service to a water supply authority’s sewerage system, and includes the plumbing fittings connected to the pipe.

special area means an area of land declared under Division 4 to be a special area.

special industry means an industry declared by an order in force under Division 6 to be a special industry.

water management work means a water supply work, drainage work, sewage work or flood work, and includes a work in the nature of a water supply work (being a work that receives water from a water supply work under the control or management of a water supply authority).

water supply service means that part of water supply pipework from its point of connection to a water supply authority’s water supply system up to and including its outlet valves.

water supply service pipe means a pipe connecting a water supply service to a water supply authority’s water supply system, and includes the plumbing fittings connected to the pipe.

water supply work includes any work that receives water from a water supply work under the control or management of a water supply authority.

284   Requirements for access licences and approvals

Nothing in this Part authorises a water supply authority to do anything for which this Act requires an access licence or approval unless the water supply authority holds an appropriate access licence or approval.

Division 2 Water supply authorities

285   Water supply authorities

(1)  The corporations listed in Schedule 3 are water supply authorities.

(2)  A corporation listed in Part 1 of Schedule 3 is, for the purposes of any Act, a statutory body representing the Crown.

(3)  A corporation listed in Part 1 of Schedule 3 cannot employ any staff.

Note. Staff may be employed under Chapter 1A of the Public Sector Employment and Management Act 2002 in the Government Service to enable such a corporation to exercise its functions.

286   Constitution of water supply authorities

(1)  The Governor may, by proclamation published on the NSW legislation website:

(a)  name a water supply authority proposed to be constituted under this section, and

(b)  specify the number of members, the qualification for each member and whether or not the member is a full-time member or a part-time member, and

(c)  amend Schedule 3 by adding the name of the water supply authority to Part 1 of that Schedule.

(2)  The members are to be appointed by the Governor and, on their appointment, the water supply authority is constituted as a corporation.

(3)  The corporate name for the water supply authority is the name of the water supply authority stated in the proclamation.

(4)  On a change of area of operations or functions for a water supply authority listed in Part 1 of Schedule 3, the Governor may, by proclamation published in the Gazette, do either or both of the following:

(a)  change the number of part-time members of the water supply authority,

(b)  change the qualifications for part-time members of the water supply authority.

(5)  A change referred to in subsection (4) does not affect the identity of the water supply authority.

287   Statutory body may be water supply authority

(1)  The Governor may, by proclamation published on the NSW legislation website with the consent of the Minister administering the Act by or under which a statutory body is constituted, amend Schedule 3 by adding the name of the statutory body to Part 2 of that Schedule.

(2)  On the addition of the name of a statutory body to Part 2 of Schedule 3, it becomes a water supply authority but still has its other functions.

288   Provisions relating to constitution and procedure of water supply authorities

(1)  Part 1 of Schedule 5 has effect with respect to the members of the water supply authorities listed in Part 1 of Schedule 3.

(2)  Part 2 of Schedule 5 has effect with respect to the Australian Inland Energy Water Infrastructure.

(3)  Part 3 of Schedule 5 has effect with respect to the Cobar Water Board.

(4)  Parts 2 and 3 of Schedule 5 do not affect the operation of the other provisions of this Part in relation to the water supply authorities to which those Parts relate.

289   Area of operations

(1)  The area of operations of a water supply authority is such as may be prescribed by the regulations for the water supply authority.

(2)  If a regulation so provides, a water supply authority has, and may exercise, in its area of operations or a specified part of its area of operations:

(a)  only such of the functions of a water supply authority as are specified in the regulation, or

(b)  all functions of a water supply authority other than functions specified in the regulation.

(3)  A regulation made for the purposes of subsection (2) may make provision for or with respect to:

(a)  matters affecting revenue, assets, rights, liabilities and employees of a water supply authority, and

(b)  procedures to be adopted for the purposes of paragraph (a).

(4)  Within the area of operations of a water supply authority, a function under this Part may be exercised only by the water supply authority unless:

(a)  the function is exercisable by the Minister, or

(b)  the function is exercised by a catchment management authority under the Catchment Management Authorities Act 2003, or

(c)  with the consent of the Minister, the function is exercised by another Minister, by the delegate of another Minister or by a statutory body, or

(d)  this Part provides otherwise.

(5)  With the consent of the Minister, a water supply authority may exercise a function outside its area of operations.

(6)  Until a regulation is made for the purposes of subsection (1), the area of operations of a water supply authority is the same as it was immediately before the commencement of this Part.

290   (Repealed)

291   Delegation

A water supply authority may delegate to a person the exercise of any of its functions, other than this power of delegation.

Division 3 Functions of water supply authorities

292   Functions of water supply authority

(1)  A water supply authority has the following functions:

(a)  subject to the Minister’s approval, to construct, maintain and operate water management works and other associated works,

(b)  to conduct research, collect information and develop technology in relation to water management,

(c)  to do anything for the purpose of enabling the objects of this Act to be attained.

(2)  A water supply authority may exercise its functions within and beyond its area of operations.

(2A)  A water supply authority must not exercise any function beyond its area of operations in such a way as to limit its capacity to exercise that function within that area.

(3)  It is the duty of a water supply authority to exercise its functions consistently with the principles of ecologically sustainable development.

293   Exercise of functions by a water supply authority

(1)  A water supply authority:

(a)  has and may exercise the functions conferred or imposed on it by or under this or any other Act, and

(b)  in the exercise of its functions (except in relation to the contents of a report or recommendation made by it) is subject to the control and direction of the Minister.

(1A)  Subsection (1) (b) does not apply to a water supply authority listed in Part 3 of Schedule 3.

(2)  If a function conferred or imposed on a water supply authority by this Part is inconsistent with a function conferred or imposed on the water supply authority by or under another Act, this Part prevails.

294   Commercial operations

(1)  With the approval of the Governor, a water supply authority may enter into commercial operations with respect to:

(a)  any services developed in connection with the exercise of its functions, or

(b)  any products or by-products (including intellectual property) resulting from the exercise of its functions, or

(c)  such other matters as may be prescribed by the regulations.

(2)  With the approval of the Governor, a water supply authority may form, or join in forming, a company, partnership or trust for the purpose of exercising its functions under this Part.

295   Assistance to statutory body

A water supply authority may, at the request of a statutory body and with the consent of the Minister, exercise any of the functions of the statutory body in a part of its area of operations in respect of which the statutory body may exercise different functions, even if, but for the request, the water supply authority would not have exercised the function.

296   Entry on land to read meters or carry out works

(1)  A water supply authority may, by its employees and agents:

(a)  enter and occupy land and there exercise any of its functions, including the carrying out of any work on, below or above the surface of the land, and

(b)  divert water from, or alter the course of, a stream, and

(c)  impound or take water on, in or under the surface of any land.

(2)  The power conferred by this section is sufficient authority for an employee or agent to enter and occupy land or any part of a building (except an enclosed part occupied as a separate dwelling) in the exercise of a water supply authority’s functions during daylight for the purpose of:

(a)  reading a meter, or

(b)  ascertaining whether trade waste is present or is being (or has recently been) discharged to a work of the authority, or

(c)  making a valuation,

      unless the employee or agent is refused access by the lawful occupier of the land.

(3)  A water supply authority may, in accordance with the regulations, attach a ventilating shaft, pipe or tube for a sewer to the wall of a building.

(4)  A water supply authority may remove or use anything dug up or obtained in the exercise of its powers under this section.

(5)  A water supply authority:

(a)  must do as little damage as practicable in exercising its powers under this section, and

(b)  must compensate all persons who suffer damage by the exercise of the powers,

      in relation to the land entered.

(6)  Compensation may be made by reinstatement or repair, by construction of works or by payment.

(7)  If a water supply authority provides a sewer, compensation is required only if:

(a)  the sewer causes injury to, or interference with, a building or other structure, or

(b)  a manhole or main ventilator is constructed on the land.

(8)  A claim for compensation:

(a)  is ineffective unless made in writing not later than 6 months after the damage was suffered, and

(b)  in the absence of agreement on the compensation, must be dealt with as if it were a claim for compensation for the acquisition of land for public purposes under the Public Works Act 1912.

297   Entry on land for inspections

(1)  A water supply authority may at any time, by its employees or agents, enter any land (except an enclosed part occupied as a separate dwelling) for the purpose of finding out:

(a)  the character and condition of the land or building, or

(b)  the condition or location of any water management work used in connection with the land or building, or

(c)  whether any use, consumption, waste, misuse or undue consumption of water supplied by a water supply authority is occurring, or

(d)  whether any offence against this Act has been, or is being, committed.

(2)  A water supply authority must not exercise the powers conferred by subsection (1) unless:

(a)  reasonable written notice of its intention to do so has first been given to the landholder of the land, building or dwelling-house, or

(b)  it authorises the entry after forming the opinion that the giving of the notice would cause undue delay.

(3)  Reasonable force may be used to enter land, or a building other than a dwelling-house, under this section.

(4)  If the powers of entry under this section are exercised:

(a)  without notice being given, or

(b)  by force,

      the water supply authority must, without delay, notify such persons as it considers appropriate of the action taken.

(5)  The water supply authority may, by notice in writing given to the landholder of the land or building, require all defective or improper work discovered on an inspection to be repaired, altered or removed within 24 hours or such longer period as is stated in the notice.

(6)  If a notice under subsection (5) is not complied with, the water supply authority may, by its employees and agents, enter the land, building or dwelling-house and repair, alter or remove the defective or improper work.

(7)  If a notice is given under subsection (5):

(a)  the costs and expenses of the entry and inspection by the water supply authority, and

(b)  if the notice is not complied with, the costs and expenses of the water supply authority in acting under subsection (6),

      are recoverable from the landholder as a service charge.

(8)  If, on an inspection under this section:

(a)  no defective or improper work is discovered, and

(b)  no waste, misuse or undue consumption of water supplied by the water supply authority is occurring, and

(c)  no offence against this Act is discovered,

      the water supply authority must make good any damage or disturbance caused by it for the purposes of the inspection.

(9)  In exercising its powers under this section, a water supply authority must do as little damage as practicable.

298   Power to break up roads

(1)  A water supply authority may, on giving reasonable notice to persons likely to be affected, open and break up:

(a)  the soil and pavement of a public road or public reserve, and

(b)  any sewer, drain or tunnel in or under a public road or public reserve,

      for the purpose of exercising its functions.

(2)  The statutory body having the control and management of a public road or public reserve may, as prescribed by the regulations, require a water supply authority to comply with conditions in exercising its powers under subsection (1), including conditions for restoration of the surface and removal of rubbish.

(3)  If a public road or public reserve is damaged by a leakage from, or a bursting of, a water supply authority’s water main or sewer main, the statutory body having the control and management of the public road or public reserve may require the water supply authority to make good the damage without delay.

(4)  If a water supply authority fails:

(a)  to comply with a condition in force under subsection (2), or

(b)  to comply with a requirement under subsection (3),

      the statutory body affected by the failure may remedy it and recover the cost of doing so as a debt owed to the statutory body by the water supply authority.

299   Altering position of conduits

(1)  If:

(a)  a water supply authority, in order to exercise its functions, needs an alteration to be made in the position of a conduit owned by another person, and

(b)  the alteration would not permanently damage the conduit or adversely affect its operation,

      the water supply authority may serve on the person a written notice that complies with subsection (2).

(2)  A notice must:

(a)  specify the alteration needed, and

(b)  require the alteration to be made within a reasonable time stated in the notice, and

(c)  include an undertaking by the water supply authority to pay the reasonable cost of the alteration.

(3)  If the alteration is not made as required by the notice, the water supply authority may make the alteration in such a manner as not to damage the conduit permanently or adversely affect its operation on completion of the alteration.

(4)  In this section, conduit means anything that is in or under a public road (or any other land on which no building or other structure is located) and is used for the conveyance of a substance, energy or signals.

300   Obstruction of works

(1)  If a person places a structure or other thing in or near a water supply authority’s water management work in such a manner as to interfere with the work, the water supply authority may:

(a)  demolish and remove the structure or other thing, and

(b)  repair the work, and

(c)  recover the cost of doing so as a debt owing to the water supply authority by the person who placed the structure or other thing there.

(2)  A water supply authority may apply for and obtain an injunction to prevent a structure or other thing being placed as referred to in subsection (1).

301   Finding source of pollution of water supply

(1)  If water supplied by a water supply authority is being polluted, the water supply authority may, after giving reasonable notice to persons likely to be affected by its action, dig up the ground and try to find the source of the pollution.

(2)  If it is found that a person given notice under this section is not responsible for the pollution, the water supply authority must bear the expenses of:

(a)  the digging, examination, repair and reinstatement of the broken ground, and

(b)  the repair of any damage caused by the water supply authority to the property of the person.

(3)  A water supply authority may recover the expenses incurred by it as a debt due to the water supply authority by any person responsible for the pollution.

301A   Power to give directions

(1)  Without limiting Part 1 of Chapter 7, the Minister’s power to give directions under that Part may be exercised in relation to a water supply authority’s sewage work as if it were a water management work within the meaning of that Part.

(2)  An appeal lies to the Land and Environment Court against the Minister’s decision to give such a direction in the same way as it lies against the Minister’s decision to give a direction under Part 1 of Chapter 7.

Division 4 Special areas

302   Special areas

(1)  The Governor may, on the recommendation of the Minister, by order published in the Gazette, declare an area of land described in the order to be a special area for a water supply authority.

(2)  The Minister may recommend an order only if of the opinion that the exercise of the State’s water rights could be adversely affected unless the order is made.

303   Crown land in special areas

(1)  Action may not be taken under the Crown Lands Act 1989 in respect of land within a special area for a water supply authority unless:

(a)  a water supply authority has given its approval in writing, and

(b)  any conditions to which the approval is subject are complied with.

(2)  A water supply authority may, in a special area, exercise the functions of a trustee appointed under Part 5 of the Crown Lands Act 1989 without being appointed as such.

304   Exercise of certain functions in special areas

(1)  A public agency may not, in relation to land within a special area for a water supply authority, exercise functions other than functions under this Part unless notice is first given, as prescribed by the regulations, to the water supply authority.

(2)  On receipt of such a notice, the water supply authority may make such representations to the public agency as it thinks fit.

(3)  A public agency may not exercise functions contrary to any such representations made by a water supply authority unless:

(a)  at least 14 days’ notice has been given to the water supply authority of the functions intended to be exercised, and

(b)  that period has expired without the matter being referred to the Minister as a dispute for determination.

(4)  In this section, public agency means:

(a)  the Governor, or

(b)  a Minister of the Crown, or

(c)  a statutory body.

Division 5 Developer contributions to the construction of works

305   Application for certificate of compliance

(1)  A person may apply to a water supply authority for a certificate of compliance for development carried out, or proposed to be carried out, within the water supply authority’s area.

(2)  An application must be accompanied by such information as the regulations may prescribe.

306   Authority may impose certain requirements before granting certificate of compliance

(1)  This section applies to such kinds of development as are prescribed by the regulations for the purposes of this section.

(2)  As a precondition to granting a certificate of compliance for development, a water supply authority may, by notice in writing served on the applicant, require the applicant to do either or both of the following:

(a)  to pay a specified amount to the water supply authority by way of contribution towards the cost of such water management works as are specified in the notice, being existing works or projected works, or both,

(b)  to construct water management works to serve the development.

(3)  In calculating an amount for the purposes of subsection (2) (a):

(a)  the value of existing water management works and the estimated cost of projected water management works may be taken into consideration, and

(b)  the amount of any government subsidy or similar payment is not to be deducted from the relevant value or cost of the water management works, and

(c)  consideration is to be given to any guidelines issued for the time being for the purposes of this section by the Minister.

(4)  If a water supply authority imposes a requirement under this section on the Crown, the Crown may request the Minister for Urban Affairs and Planning to determine whether such a requirement should be imposed and, if so, in what terms.

(5)  The determination made by the Minister for Urban Affairs and Planning in response to such a request is final and is taken to be the determination of the water supply authority.

(6)  Any water management works constructed in compliance with a requirement under this section are the property of the water supply authority.

307   Granting of certificates of compliance

(1)  A water supply authority must grant a certificate of compliance for development:

(a)  within 60 days after an application for the granting of such a certificate is made, or

(b)  if, within that period, the water supply authority imposes a requirement on the applicant under this Division, as soon as it is satisfied that the requirement has been complied with.

(2)  A water supply authority may be satisfied that a requirement under this Division has been complied with if the applicant lodges with the water supply authority such security for compliance with the requirement as the water supply authority may approve.

(3)  If a water supply authority fails or refuses to give a compliance certificate within the period of 60 days after an application is duly made in that regard, the applicant may appeal to the Land and Environment Court, within 12 months after the expiration of that period, against the failure or refusal.

Division 6 Finance

308   Orders for purpose of service charges

(1)  The Governor may, by order published in the Gazette, declare any land described in the order to be a development area for the purposes of this Part.

(2)  The Minister may, by order published in the Gazette, declare any land described in the order to be a drainage area, floodplain or river management area for the purposes of this Part.

(3)  The Minister may, by order published in the Gazette, declare any industry specified in the order to be a special industry for the purposes of this Part.

(4)  The Minister may, by order published in the Gazette, declare a period of 12 months to be the charging year for a water supply authority.

309   Connections

(1)  On a water supply authority’s water main or a sewer main becoming available for connection, the water supply authority may:

(a)  publish in the Gazette notice of its availability, and

(b)  give such other notices as may be prescribed.

(2)  A landholder of land to which a notice under subsection (1) (a) relates becomes liable:

(a)  in the case of a water main, to payment of water service charges after the expiration of 21 days from publication of the notice, or

(b)  in the case of a sewer main, to payment of sewerage service charges after the expiration of 21 days from publication of the notice.

(3)  If a landholder does not make a connection to the water supply authority’s water main or sewer main before becoming liable under subsection (2), the water supply authority may make the connection at the expense of the landholder.

(4)  Any amount due to a water supply authority for a connection made under subsection (3) is a charge on the land connected and may be recovered as a debt owed to the water supply authority by the landholder of the land.

(5)  If a landholder of land fails:

(a)  to connect the land to a water supply authority’s water main or sewer main before becoming liable under subsection (2), or

(b)  to do any work that by this Part is required to be done by the landholder,

      the occupier of the land may make the connection or do the work and, in accordance with subsection (6), recover the cost from the landholder.

(6)  An amount (including interest) recoverable under subsection (5) by an occupier from a landholder may be recovered:

(a)  by deducting it from any rent from time to time payable to the landholder by the occupier, or

(b)  as a debt owed to the occupier by the landholder.

(7)  Any person desiring to connect premises with a water supply authority’s water main or sewer main may (subject to such conditions as may be imposed by law) open up the surface and soil of any road or way, public or private, or any footpath or public reserve to the extent required to make the connection.

(8)  Nothing in this section requires a water supply authority to allow a person to connect premises with the water supply authority’s water main or sewer main.

310   Authority may levy service charges and impose fees and other charges

(1)  A water supply authority may, in accordance with this Part, levy the following service charges on land within its area of operations:

(a)  water service charges,

(b)  sewerage service charges,

(c)  drainage service charges,

(d)  loan service charges,

(e)  developmental works service charges,

(f)  flood mitigation service charges,

(g)  river management service charges,

(h)  special industry service charges.

(2)  A water supply authority may, in accordance with the regulations, impose fees and charges for any service or thing supplied or provided by it in the exercise of its functions under this Part.

(3)  Without limiting subsection (2), a water supply authority may impose fees and charges with respect to discharges into its sewerage system.

311   Land in respect of which a water supply authority may levy service charges

(1)  A water supply authority may only levy water service charges on land:

(a)  to which water is supplied, or

(b)  to which, in the opinion of the water supply authority, it is reasonably practicable for water to be supplied,

      from one of the water supply authority’s water mains.

(2)  A water supply authority may only levy sewerage service charges on land:

(a)  from which sewage is discharged, or

(b)  from which, in the opinion of the water supply authority, it is reasonably practicable for sewage to be discharged,

      into one of the water supply authority’s sewer mains.

(3)  A water supply authority may only levy drainage service charges on land that is within a drainage area.

(4)  A water supply authority may only levy developmental works service charges on land within a development area.

(5)  A water supply authority may only levy flood mitigation service charges on land within a floodplain.

(6)  A water supply authority may only levy river management service charges on land within a river management area.

(7)  A water supply authority may only levy special industry service charges on land on which a special industry is conducted.

312   Certain land exempt from service charges

(1)  A water supply authority may not levy service charges in respect of the lands described in Schedule 4.

(2)  Subsection (1) does not apply to the following land:

(a)  land that is within a public reserve or park that is the subject of a lease, licence or other authority under which a person carries on a trade or business,

(b)  land that is vested in the Crown or a public body leased to any person for private purposes,

(c)  land that is used or occupied by the Crown in connection with an undertaking declared by the Governor by proclamation published in the Gazette to be an industrial undertaking for the purposes of this section.

313   Classification of lands

(1)  The regulations must specify the factor or factors according to which a water supply authority may classify land for the purpose of levying service charges.

(2)  Without limiting the generality of subsection (1), the regulations may specify that a water supply authority may classify land according to any one or more of the following factors:

(a)  the purpose for which the land is actually being used,

(b)  the intensity with which the land is being used for that purpose,

(c)  the purposes for which the land is capable of being used,

(d)  the nature and extent of the water or sewerage services connected to the land.

(3)  For the purposes of subsection (2) (c), land is not capable of being used for a purpose if the use of the land for that purpose would be in contravention of:

(a)  the Environmental Planning and Assessment Act 1979, or

(b)  any environmental planning instrument in force under that Act, or

(c)  any other Act or law relating to the use of land.

314   Basis of levying service charges

The regulations must specify the basis or bases according to which a water supply authority may levy service charges.

315   Determinations by water supply authority

(1)  Not later than 1 month before the beginning of each charging year a water supply authority must, in accordance with the regulations, determine the following matters for that charging year:

(a)  the amount of money that it proposes to raise by way of service charges levied on land within its area of operations,

(b)  the factor or factors according to which land within its area of operations is to be classified for the purposes of levying service charges,

(c)  the basis or bases according to which service charges are to be levied,

(d)  the rate at which service charges are to be levied on, or the maximum or minimum service charges that are to be applicable to, land within its area of operations.

(2)  In making a determination under this section, a water supply authority may have regard to the following:

(a)  its estimation of the degree of benefit that accrues to land in respect of each service for which a charge is to be levied,

(b)  its estimation of the degree to which each service is or may be used in relation to land in respect of which a charge is to be levied,

(c)  its estimation of the cost involved in the construction, maintenance and operation of each service for which a charge is to be levied,

(d)  such other matters as it considers relevant to the levying of charges for each such service.

(3)  A determination under this section:

(a)  is required to be approved by the Minister and does not have effect unless it is so approved, and

(b)  must be published in the Gazette before the commencement of the charging year to which it relates, and

(c)  takes effect on the commencement of the charging year to which it relates.

(4)  A determination does not fail merely because it is not published in the Gazette before the commencement of the charging year to which it relates but, in that event, no person is liable for payment of the service charges to which the determination relates until the determination is published in the Gazette.

(5)  A service charge determined under this section is levied on publication of the determination in the Gazette.

(6)  If, for any reason:

(a)  a determination under this section is not made before the charging year to which it relates, or

(b)  there is any irregularity or alleged irregularity in the making of any such determination,

      the Governor may extend the time for making the determination (whether or not that time has expired) and may authorise the water supply authority concerned to do anything necessary to cure any irregularity and to make a valid determination.

316   Assessment of service charges

(1)  A water supply authority:

(a)  must classify each parcel of land within its area of operations in respect of which a service charge is to be levied, and

(b)  must assess the service charges payable for each such parcel of land,

      in accordance with its determination under this Division.

(2)  After it makes an assessment under this section, a water supply authority must, in accordance with the regulations, cause a notice to be served on the landholder of each parcel of land in respect of which a service charge has been levied.

(3)  Such a notice must include information as to the following:

(a)  the factor or factors according to which the parcel of land has been classified for the purposes of the levying of service charges,

(b)  the basis or bases according to which service charges have been levied in respect of the parcel of land,

(c)  if service charges have been levied on the basis of the value of the parcel of land, the value of the parcel on which those service charges have been levied,

(d)  the rate at which service charges have been levied on, or the maximum or minimum service charges that are applicable to, the parcel of land,

(e)  the amounts payable in respect of each service charge that has been levied in respect of the parcel of land.

(4)  On service of such a notice, the landholder of the land to which the notice relates becomes liable for payment of the service charges specified in the notice.

317   Re-assessment of service charges

(1)  This section applies to any land in respect of which a service charge has been levied on the basis of the value of the land.

(2)  If a water supply authority becomes aware that the value (as calculated in accordance with this Division) of any parcel of land in respect of which it has levied a service charge for any charging year differs from the value (as so calculated) as at the date on which the service charge was originally assessed, the water supply authority may re-assess the service charge on the basis of the different value.

(3)  A service charge may only be re-assessed as from the date from which the revised calculation of the value of the land has effect.

(4)  After it makes a re-assessment under this section, a water supply authority must, in accordance with the regulations, cause a notice to be served on the landholder of the parcel of land in respect of which the re-assessment has been made.

(5)  Such a notice must specify:

(a)  the revised calculation of the value of the land, and

(b)  the date from which the revised calculation of the value of the land has effect, and

(c)  the revised assessment of the amounts payable in respect of each service charge that has been levied on that land.

(6)  On service of such a notice, the service charges for which the landholder of the land to which the notice relates is liable are varied in accordance with the terms of the notice.

Division 7 Miscellaneous

318   Acquisition and divesting of land

(1)  A water supply authority may acquire land (or an interest in land) for the purposes of this Part by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991.

(2)  For the purposes of the Public Works Act 1912, any such acquisition of land is taken to be for an authorised work and the water supply authority is, in relation to that authorised work, taken to be the Constructing Authority.

(3)  Part 3 of the Public Works Act 1912 does not apply in respect of works constructed under this Part.

(4)  With the consent of the local council concerned, the Governor may, by proclamation published in the Gazette, vest in a local council the estate or interest of a water supply authority in any land on which is situated a work of the water supply authority (whether wholly or partly completed).

318A   Exposure of underground pipes

A person must not, except in an emergency or with lawful excuse, open any ground so as to expose a water supply authority’s pipe or other work unless the person has given the water supply authority at least 2 days’ written notice of his or her intention to do so.

Tier 2 penalty.

318B   Unlicensed plumbing work

A person must not do any kind of plumbing work unless the person:

(a)  holds an endorsed contractor licence or a supervisor certificate under the Home Building Act 1989 that authorises the holder to do that kind of work, or

(b)  does the work under the immediate supervision of the holder of such a licence or certificate, or

(c)  holds a tradesperson certificate under the Home Building Act 1989 that authorises the holder to do that kind of work under supervision, and does the work under the general supervision of the holder of a licence or certificate referred to in paragraph (a).

Tier 3 penalty.

319   Compensation for interference or damage

(1)  If:

(a)  a person does, or causes to be done, any work that interferes with, or damages, any property of a water supply authority, and

(b)  there was reasonable cause to believe that the interference or damage would result from the doing of the work,

      the person is liable to compensate the water supply authority for the interference or damage.

(2)  A water supply authority is not entitled to compensation both under this section and another provision of this Part for the same interference or damage.

320   Efficiency review

(1)  The Minister may appoint a person to investigate and review the efficiency of a water supply authority in exercising its functions.

(2)  A water supply authority must bear the costs of an investigation and review under this section that is requested by it.

(3)  This section does not apply to a water supply authority listed in Part 3 of Schedule 3.

321   Appointment of administrator

(1)  If a water supply authority refuses or fails to comply with a direction or requirement given or made by the Minister in relation to this Part, the Minister may, by order published in the Gazette:

(a)  in the case of a water supply authority listed in Part 1 of Schedule 3, appoint an administrator to exercise all the functions, or specified functions, of the water supply authority, or

(b)  in the case of a statutory body listed in Part 2 of Schedule 3, with the consent of the Minister administering the Act by which the statutory body is constituted, appoint an administrator to exercise all the functions, or specified functions, of the water supply authority under this Part.

(2)  An administrator has, during his or her term of office and to the exclusion of the water supply authority, the functions the administrator was appointed to exercise.

(3)  Regulations may be made for or with respect to:

(a)  the accommodation (if any) to be provided at the offices of a water supply authority for the administrator and his or her assistants, and

(b)  requiring the employees of a water supply authority to assist, and to refrain from obstructing, the administrator in the exercise of his or her functions.

(4)  This section does not apply to a water supply authority listed in Part 3 of Schedule 3.

322   Regulations

(1)  The regulations may make provision for or with respect to the following matters:

(a)  fees and charges, including charges for the supply of water,

(b)  the imposition of water use restrictions,

(c)  (Repealed)

(d)  the carrying out of plumbing work,

(e)  the planning and management of water supply, sewerage and drainage systems,

(f)  the design and construction of water supply, sewerage and drainage systems,

(g)  the establishment and enforcement of customer service standards,

(h)  the regulation and prohibition of discharges into sewerage and drainage systems,

(i)  the waiver, reduction, deferral and refund of fees, service charges and other charges,

(j)  the control and management of special areas.

(2)  A regulation made for or with respect to a special area prevails to the extent of any inconsistency with a statutory instrument made under another Act, other than a SEPP made under the Environmental Planning and Assessment Act 1979.

(3)  If any requirement with respect to plumbing work imposed by the regulations is inconsistent with the requirements imposed by the Plumbing and Drainage Act 2011 or the regulations under that Act with respect to the same work, that Act and any regulations under that Act prevail to the extent of the inconsistency.

Chapter 7 Enforcement

Part 1 Directions to landholder and other persons

Division 1 Preliminary

323   Definitions

(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.

Division 7 General

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.

336B   Mandatory guidelines

(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.

Part 2 Other enforcement powers

Division 1 Preliminary

337   Purposes for which powers under Part may be exercised

(1)  Powers may be exercised under this Part for any of the following purposes:

(a)  for determining whether there has been compliance with or a contravention of this Act or the regulations or any access licence, approval, notice or requirement issued or made under this Act,

(b)  for obtaining information or records for purposes connected with the administration of this Act,

(c)  generally for administering this Act and protecting the environment.

(2)  In this Part, 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.

337A   Effect on other functions

Nothing in this Part affects any function under any other provision of this Act or under any other Act.

337B   Extended meaning of “occupier”

In this Part, occupier, in relation to land, includes any person having the care, control or management of the land.

Division 2 Powers to require information or records

338   Application of Division

This Division applies whether or not a power of entry under Division 3 is being or has been exercised.

338A   Powers of authorised officers to require information and records

(1)  The Minister may, by notice in writing given to a person, require the person to furnish to the Minister such information or records (or both) as he or she may require for the purposes of this Act.

(2)  An authorised officer may, by notice in writing given to a person, require the person to furnish to the officer such information or records (or both) as he or she may require for the purposes of this Act.

(3)  A notice under this Division must specify the manner in which information or records are required to be furnished and a reasonable time by which the information or records are required to be furnished.

(4)  A notice under this Division may only require a person to furnish existing records that are in the person’s possession or that are within the person’s power to obtain lawfully.

(5)  The person to whom any record is furnished under this Division may take copies of it.

(6)  If any record required to be furnished under this Division is in electronic, mechanical or other form, the notice requires the record to be furnished in written form, unless the notice otherwise provides.

338B   Power of authorised officers to require answers

(1)  An authorised officer may require a person whom the authorised officer suspects on reasonable grounds to have knowledge of matters in respect of which information is reasonably required for the purposes of this Act to answer questions in relation to those matters.

(2)  The Minister may, by notice in writing, require a corporation to nominate, in writing within the time specified in the notice, a director or officer of the corporation to be the corporation’s representative for the purpose of answering questions under this section.

(3)  Answers given by a person nominated under subsection (2) bind the corporation.

(4)  An authorised officer may, by notice in writing, require a person to attend at a specified place and time to answer questions under this section if attendance at that place is reasonably required in order that the questions can be properly put and answered.

(5)  The place and time at which a person may be required to attend under subsection (4) is to be:

(a)  a place or time nominated by the person, or

(b)  if the place and time nominated is not reasonable in the circumstances or a place and time is not nominated by the person, a place and time nominated by the authorised officer that is reasonable in the circumstances.

338C   Recording of evidence

(1)  An authorised officer may cause any questions and answers to questions given under this Division to be recorded if the officer has informed the person who is to be questioned that the record is to be made.

(2)  A record may be made using sound recording apparatus or audio visual apparatus, or any other method determined by the authorised officer.

(3)  A copy of any such record must be provided by the authorised officer to the person who is questioned as soon as practicable after it is made.

(4)  A record may be made under this section despite the provisions of any other law.

338D   Power of authorised officers to demand name and address

(1)  An authorised officer may require a person whom the authorised officer suspects on reasonable grounds to have committed, or to be committing, an offence against this Act or the regulations to state his or her full name and residential address.

(2)  An authorised officer may request a person who is required under this section to state his or her full name and residential address to provide proof of the name and address. It is not an offence to fail to comply with any such request.

(3)  A person who, being required to do so under this section:

(a)  refuses to state his or her name or residential address, or

(b)  states a name or residential address that in the opinion of the authorised officer is false,

      may without any other warrant than this Act be apprehended by the authorised officer and taken before a Magistrate or authorised officer within the meaning of the Criminal Procedure Act 1986 to be dealt with according to law.

(4)  A Magistrate or authorised officer before whom a person is taken under subsection (3) may grant the person bail in accordance with the Bail Act 1978 as if the person were accused of an offence.

Division 3 Powers of entry and search of premises

339   Powers of authorised officers to enter premises

(1)  An authorised officer may enter any premises at any reasonable time.

(2)  A power to enter premises conferred by this Act authorises entry by foot, by vehicle, vessel or aircraft or by any other means.

(3)  Entry may be effected under this Act by an authorised officer with the aid of such police officers as the authorised officer considers necessary and with the use of reasonable force.

(4)  Entry may be effected to any premises with the authority of a search warrant under section 339C.

339A   Entry into residential premises only with permission or warrant

This Division does not empower an authorised officer to enter any part of premises used only for residential purposes without the permission of the occupier or the authority of a search warrant under section 339C.

339B   Powers of authorised officers to do things at premises

(1)  An authorised officer may, at any premises lawfully entered, do anything that in the opinion of the authorised officer is necessary to be done for the purposes of this Part, including (but not limited to) the things specified in subsection (2).

(2)  An authorised officer may do any or all of the following:

(a)  examine and inspect any works,

(b)  take and remove samples,

(c)  make such examinations, inquiries and tests as the authorised officer considers necessary,

(d)  take such photographs, films, audio, video and other recordings as the authorised officer considers necessary,

(e)  require records to be produced for inspection,

(f)  examine and inspect any records,

(g)  copy any records,

(h)  seize anything that the authorised officer has reasonable grounds for believing is connected with an offence against this Act or the regulations,

(i)  for the purposes of paragraph (h), direct the occupier of the premises where the thing is seized to retain it at those premises or at another place under the control of the occupier,

(j)  do any other thing the authorised officer is empowered to do under this Part.

(3)  The power to seize anything connected with an offence includes a power to seize:

(a)  a thing with respect to which the offence has been committed, and

(b)  a thing that will afford evidence of the commission of the offence, and

(c)  a thing that was used for the purpose of committing the offence.

(4)  In this section, a reference to an offence includes a reference to an offence that there are reasonable grounds for believing has been committed.

339C   Search warrants

(1)  An authorised officer under this Act may apply to an authorised officer within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002 for the issue of a search warrant if the authorised officer under this Act believes on reasonable grounds that:

(a)  a provision of this Act or the regulations is being or has been contravened at any premises, or

(b)  there is in or on any premises matter or a thing that is connected with an offence under this Act or the regulations.

(2)  An authorised officer within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002 to whom such an application is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising an authorised officer under this Act named in the warrant:

(a)  to enter the premises, and

(b)  to exercise any function of an authorised officer under this Division.

(3)  Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section.

(4)  In this section:

matter or a thing connected with an offence means:

(a)  a matter or a thing with respect to which the offence has been committed, or

(b)  a matter or a thing that will afford evidence of the commission of an offence, or

(c)  a matter or a thing that was used, or is intended to be used, for the purpose of committing the offence.

offence includes an offence that there are reasonable grounds for believing has been, or is to be, committed.

339D   Authorised officers may request assistance

A person may accompany an authorised officer and take all reasonable steps to assist an authorised officer in the exercise of the authorised officer’s functions under this Division if the authorised officer is of the opinion that the person is capable of providing assistance to the authorised officer in the exercise of those functions.

339E   Assistance to be given to authorised officers

(1)  This section applies for the purpose of enabling an authorised officer to exercise any of the powers of an authorised officer under this Division in connection with any premises.

(2)  The Minister may, by notice in writing given to the owner or occupier of the premises, require the owner or occupier to provide such reasonable assistance and facilities as are specified in the notice within a specified time and in a specified manner.

(3)  Assistance and facilities can be required under this section, whether they are of the same kind as, or a different kind from, any prescribed by the regulations.

339F   Care to be taken

In the exercise of a power of entering or searching premises under this Division, the authorised officer must do as little damage as possible.

339G   Compensation

The Minister must compensate all interested parties for any damage caused by the authorised officer in exercising a power of entering premises (but not any damage caused by the exercise of any other power), unless the occupier obstructed or hindered the authorised officer in the exercise of the power of entry.

Division 4 General

340   Identification

(1)  Every authorised officer is to be provided with evidence of his or her authority as an authorised officer.

(2)  In the course of exercising the functions of an authorised officer, the officer must, if requested to do so by any person affected by the exercise of any such function, produce to the person the officer’s evidence of authority.

340A   Offences

(1)  A person must not, without lawful excuse, neglect or fail to comply with a requirement made of the person under this Part.

Tier 2 penalty.

(2)  A person must not furnish any information or do any other thing in purported compliance with a requirement made under this Part, knowing that it is false or misleading in a material respect.

Tier 2 penalty.

(3)  A person must not threaten, hinder, obstruct or delay an authorised officer in the exercise of the authorised officer’s powers under this Part.

Tier 2 penalty.

(4)  A person must not impersonate an authorised officer.

Tier 2 penalty.

340B   Provisions relating to requirements to furnish records, information or answer questions

(1)  A person is not guilty of an offence of failing to comply with a requirement under this Part to furnish records or information or to answer a question unless the person was warned on that occasion that a failure to comply is an offence.

(2)  A person is not excused from a requirement under this Part to furnish records or information or to answer a question on the ground that the record, information or answer might incriminate the person or make the person liable to a penalty.

(3)  However, any information furnished or answer given by a natural person in compliance with a requirement under this Part is not admissible in evidence against the person in criminal proceedings (except proceedings for an offence under this Part) if:

(a)  the person objected at the time to doing so on the ground that it might incriminate the person, or

(b)  the person was not warned on that occasion that the person may object to furnishing the information or giving the answer on the ground that it might incriminate the person.

(4)  Any record furnished by a person in compliance with a requirement under this Part is not inadmissible in evidence against the person in criminal proceedings on the ground that the record might incriminate the person.

(5)  Further information obtained as a result of a record or information furnished or of an answer given in compliance with a requirement under this Part is not inadmissible on the ground:

(a)  that the record or information had to be furnished or the answer had to be given, or

(b)  that the record or information furnished or answer given might incriminate the person.

(6)  This section extends to a requirement under this Part to state a person’s name and address.

340C   Revocation or variation

(1)  A notice given under this Part may be revoked or varied by a subsequent notice or notices.

(2)  A notice may be varied by modification of, or addition to, its terms and specifications.

(3)  Without limiting the above, a notice may be varied by extending the time for complying with the notice.

(4)  A notice may only be revoked or varied by the Minister or by the person who gave it.

340D   Extraterritorial application

An order, direction or notice may be given under this Chapter to a person in respect of a matter even though the person is outside the State or the matter occurs or is located outside the State, so long as the matter affects a matter to which this Act relates.

Part 3 Offences

341   (Repealed)

342   Destruction, damage and interference with certain works

(1)  A person must not destroy, damage or interfere with:

(a)  any work that is owned by, or is under the control and management of, the Minister, the Ministerial Corporation, a water supply authority, an irrigation corporation, a private irrigation board, a private drainage board or a private water trust, or

(b)  any mark, peg, stake or level fixed for the purposes of this Act.

Tier 2 penalty.

(2)  A person must not deposit anything in any work that is owned by, or is under the control and management of, the Minister, the Ministerial Corporation, a water supply authority, an irrigation corporation, a private irrigation board, a private drainage board or a private water trust.

Tier 2 penalty.

(3)  A person is not guilty of an offence against this section if the person establishes that the act giving rise to the alleged offence was done with lawful authority.