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Contents (2000 - 92)
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Water Management Act 2000 No 92
Current version for 1 November 2019 to date (accessed 10 December 2019 at 10:52)
Chapter 3 Part 2 Division 4
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 on 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) and Part 5 of Chapter 3 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 and extraction points
(1)  On the application of the holder of an access licence made in accordance with the regulations, the Minister may consent to the amendment of the licence so as—
(a)  to nominate a specified water supply work or extraction point in the water management area or water source nominated by the licence as a work or point by means of or from which water credited to the licence may be taken, or
(b)  to nominate a specified water supply work or extraction point in another water management area or another water source as a work or point by means of or from which water credited to the licence may be taken, or
(c)  to nominate a specified water supply work or extraction point in a NSW water tagging zone as a work or point by means of or from which water credited to the licence may be taken, or
(d)  to nominate a specified extraction point in an interstate water tagging zone as an extraction point from which water credited to the licence may be taken,
or so as to withdraw such a nomination.
(2)  For the avoidance of doubt, a water supply work may be nominated under subsection (1) even though no approval is required to be held in relation to the work.
(3)  The relevant notifier for a water supply work must notify the Minister, in accordance with the regulations, of any of the following—
(a)  that the work has been nominated (whether by reference to the work itself or by reference to an extraction point at which it is located) as a work from which water credited to the interstate equivalent of an access licence may be taken,
(b)  that such a nomination has been withdrawn.
Tier 3 penalty.
(4)  The regulations may make provision for or with respect to—
(a)  the making of nominations referred to in subsection (1), including—
(i)  the identification of water supply works or extraction points for the purposes of nominations, and
(ii)  the circumstances in which particular nominations are, or are not, permitted under that subsection, and
(b)  the giving of notifications to the Minister under subsection (3), including the form and timing of such notifications.
(5)  In this section—
relevant notifier for a water supply work means—
(a)  if an approval is in force for the work—the holder of the approval, or
(b)  if there is no approval in force for the work—the owner of the work.
water supply work includes a reference to a group of such works.
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 or 49B.
(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,
(b)  the establishment of NSW water tagging zones,
(c)  the criteria to be considered for the granting of an application with respect to a nomination referred to in section 71W (1) (b), (c) or (d).
(3)  The access licence dealing principles prevail over the access licence dealing rules to the extent of any inconsistency.
71ZA   (Repealed)