Water Management Act 2000 No 92
Current version for 14 May 2020 to date (accessed 5 June 2020 at 23:55)
Status information

Status information

Currency of version
Current version for 14 May 2020 to date (accessed 5 June 2020 at 23:55)
Legislation on this site is usually updated within 3 working days after a change to the legislation.

Provisions in force
Some, but not all, of the provisions displayed in this version of the legislation have commenced. See Historical Notes

Does not include amendments by—
Sec 338B(9) of this Act (sec 338B(9) repeals sec 338B(6)–(9) on 13.11.2020)
Sch 8.30 [2] to this Act (not commenced)
Parliamentary Electorates and Elections Amendment Act 2006 No 68 (not commenced)
Central Coast Water Corporation Act 2006 No 105 (amended by Statute Law (Miscellaneous Provisions) Act 2009 No 56 and Central Coast Water Corporation Amendment Act 2010 No 89), Sch 7.2 [1] [2] and [4] (not commenced)
Water Management Amendment Act 2010 No 133 (amended by Statute Law (Miscellaneous Provisions) Act (No 2) 2011 No 62, Statute Law (Miscellaneous Provisions) Act (No 2) 2015 No 58 and Government Sector Finance Legislation (Repeal and Amendment) Act 2018 No 70), Sch 2 [46]–[48] [51]–[59] [62]–[64] [67] [68] [71]–[74] [76] [77] [79] (except to the extent that it inserts the Part heading and the cll entitled “Definitions”, “References to adaptive environmental water conditions” and “Application of new defences”) [82] and [86] (not commenced)
Water Management Amendment Act 2014 No 48, Schs 1.5, 1.7, 1.8 [4], 1.10 [5] [26] and 1.14 [2] (not commenced)
Water Industry Competition Amendment (Review) Act 2014 No 57 (not commenced)
Water Management Amendment Act 2018 No 31, Sch 1 [26] [27] [29] [32] [33] [37] [55] [71] [72] [77] [81]–[84] [86] [91] and [92] (to the extent that it inserts the definition of individual daily extraction component into the Dictionary) (not commenced)
Government Sector Finance Legislation (Repeal and Amendment) Act 2018 No 70, Sch 4.117 (not commenced)
See also—
Water Management Amendment (Water Rights Transparency) Bill 2020 [Non-government Bill— Mrs H J Dalton, MP]
Water Management Amendment (Transparency of Water Rights) Bill 2020 [Non-government Bill— the Hon M J Banasiak, MLC]
Water Management Amendment (Water Allocations—Drought Information) Bill 2020 [Non-government Bill— the Hon M S Veitch, MLC]
Editorial note
The Parliamentary Counsel’s Office is progressively updating certain formatting styles in versions of NSW in force legislation published from 29 July 2019. For example, colons are being replaced by em-rules (em-dashes). Text of the legislation is not affected.
This version has been updated.

Responsible Minister
Minister for Water, Property and Housing

Authorisation
This version of the legislation is compiled and maintained in a database of legislation by the Parliamentary Counsel's Office and published on the NSW legislation website, and is certified as the form of that legislation that is correct under section 45C of the Interpretation Act 1987.

File last modified 3 June 2020.

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.
4A   Meaning of “overland flow water”
(1)  In this Act, overland flow water means water (including floodwater, rainfall run-off and urban stormwater) that is flowing over or lying on the ground as a result of—
(a)  rain or any other kinds of precipitation, or
(b)  rising to the surface from underground, or
(c)  any other process or action of a kind prescribed by the regulations.
(2)  Water is flowing over the ground for the purposes of subsection (1) even if it flows over the ground by means of artificial structures such as roads, canals or road gutters.
(3)  However, subsection (1) does not include—
(a)  water that is collected from a roof (including water collected from a roof using a rainwater tank), or
(b)  water that is flowing over or lying on the bed of a river, lake or estuary, or
(c)  water flowing over or lying on the ground in such circumstances as may be prescribed by the regulations.
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 Aboriginal 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 set out in Schedule 1 to the Water Act 2007 of the Commonwealth, 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 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 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, Local Land Services or another 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 Local Land Services or another 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 nominated by Local Land Services, 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 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 Water NSW Act 2014 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,
(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 local strategic plan under the Local Land Services Act 2013.
(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,
(e1)  measures, not inconsistent with this Act, that are necessary because of requirements arising under the Water Act 2007 of the Commonwealth,
(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)  Local Land Services,
(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 the authorised manner.
(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 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 the Environment and the Natural Resources Commission.
(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 of, or the failure to achieve, environmental, social and economic outcomes,
(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 second 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, within the first 5 years of the plan, 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 the Natural Resources Commission.
(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, or
(d)  if satisfied that it is necessary to do so because of requirements arising under the Water Act 2007 of the Commonwealth.
(2)    (Repealed)
(3)  Before amending a management plan, the Minister must obtain the concurrence of the Minister for 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).
(5A)  The Minister may at any time, by order published on the NSW legislation website, repeal a management plan that deals with water sharing if satisfied that it is necessary to do so because of requirements arising under the Water Act 2007 of the Commonwealth.
(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).
45A   Consolidation of management plans
(1)  The Minister may, by order published on NSW legislation website, consolidate 2 or more management plans by—
(a)  repealing one or more management plans and amending another management plan to make provision with respect to the matters dealt with by the repealed plan or plans, or
(b)  amending a management plan to make provision with respect to the matters dealt with by one or more other plans that have expired (or are to expire) by operation of section 43.
(2)  A consolidated management plan may contain provisions of a savings or transitional nature consequent on the consolidation.
(3)  The provisions of Division 9 (Compensation relating to access licences) of Part 2 of Chapter 3 in relation to the consolidation of management plans under this section have effect subject to the following—
(a)  subject to paragraph (b), the consolidation of the management plans does not affect any right to compensation that the holder of an access licence would have had under section 87 or 87AA had the consolidation not occurred,
(b)  the commencement of the 10-year period referred to in section 87AA (6) (b) in its application to an expired or repealed plan is to be calculated by reference to the 10-year period commencing on the date on which the expired or repealed plan was due to expire rather than the date on which the plan into which the provisions were consolidated ceases to be in force.
(4)  Section 45 does not limit the circumstances in which the Minister may repeal or amend a management plan under this section (including a management plan that deals with water sharing).
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 Secretary 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 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 the authorised manner.
(4)  An order under this section expires (unless sooner revoked) 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 or section 49B 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 or section 49B 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.
49B   Suspension of Basin management plans during extreme events
(1)  If satisfied that there is an extreme event in relation to a particular Basin management area or part of the Basin water resources, the Minister may, by order published in the Gazette, suspend the operation of any Basin management plan, either in whole or in part, in relation to that or any other Basin management area or water source or part of a water source that is part of the Basin water resources.
(2)  Before suspending the operation of a Basin management plan in relation to a Basin management area or part of the Basin water resources, the Minister must obtain the concurrence of the Minister for 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—
(a)  in the authorised manner, or
(b)  on a publicly accessible website that, in the opinion of the Minister, is appropriate for the publication of orders of that kind.
(4)  An order under this section expires (unless sooner revoked) 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 Basin management plan that has, at any time during the previous 12 months, been subject to an order under this section or section 49A 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.
(6)  Except as provided by subsection (5), this section does not prevent a Basin management area or part of the Basin water resources from being the subject of an order under section 49A.
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 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 the authorised manner 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, to do each of the following in accordance with the harvestable rights order by which the area is constituted—
(a)  to construct and use one or more water supply works for the purpose of capturing and storing water of a kind specified by the harvestable rights order,
(b)  to take and use that water.
(2)  One or more water supply works may be constructed and used under subsection (1) (a) for the storage of both water that has been captured in exercise of a harvestable right and other water that has been lawfully taken from a water source if the capacity of the work or works does not exceed the maximum harvestable right volume specified by the harvestable rights order.
(3)  The following provisions apply where the capacity of the water supply work or works by means of which water is to be captured or stored in exercise of a harvestable right exceeds the maximum harvestable right volume specified by the harvestable rights order for works constructed under the authority of this section—
(a)  an access licence or water use approval is not required for water that is captured or stored by the work or works in exercise of a harvestable right,
(b)  if water (other than water captured or stored in exercise of a harvestable right) is also captured or stored by the work or works—an access licence and water use approval is required to authorise the taking and use of water from that source for any volume taken and stored in excess of the maximum harvestable right volume unless the water is taken under the authority of a domestic and stock right or native title right,
(c)  a water supply work approval for the water supply work or works is required despite subsection (1).
(4)  Without limiting subsection (1), a single water supply work may be used by 2 or more landholders regardless of who constructed it if the shared use is permitted by the harvestable rights order.
(5)  This section does not allow a landholder—
(a)  to supply any other land with water that has been captured and stored in exercise of a harvestable right, or
(b)  to construct or use a water supply work in a river unless the river is declared by the relevant harvestable rights order to be a minor stream for the purposes of this Division.
(6)  In this section—
capture, in relation to a water supply work, includes pumping water for the purposes of storage in another water supply work.
54   Harvestable rights orders
(1)  The Minister, by order published on the NSW legislation website, may—
(a)  constitute any land as a harvestable rights area, and
(b)  name the area that is constituted, and
(c)  fix the boundaries of the area that is constituted.
Note.
 An order under this section may be amended or repealed by a subsequent order (see section 43 of the Interpretation Act 1987).
Editorial note.
 For harvestable rights orders see Gazette No 110 of 1.7.2004, pp 5515, 5517 and Gazette No 40 of 31.3.2006, p 1628.
(2)  The order by which a harvestable rights area is constituted must specify—
(a)  the kinds of water (such as overland flow water) that may be captured and stored in the area in exercise of harvestable rights, and
(b)  the method for calculating the maximum harvestable right volume for works constructed or used in exercise of harvestable rights on landholdings in the area by reference to a proportion (not being less than 10%) of the average regional overland flow waters for that area.
(3)  Without limiting subsection (2) (b), the kinds of ways in which a maximum harvestable right volume for landholdings in a harvestable rights area may be expressed include by reference to the capacity of water supply works or volumetric limits.
(4)  The order may also deal with the following matters—
(a)  the types and locations of water supply works that may be used by a landholder to capture and store water,
(b)  the means by which the maximum capacity of a water supply work that may be constructed or used by a landholder to capture and store water is to be calculated,
(c)  the arrangements that may be made by landholders for the shared use of a water supply work that straddles their landholdings,
(d)  the method for accounting for water that is captured or stored in the circumstances referred to in section 53 (3),
(e)  the procedures to be followed for calculating the average overland flow water for a landholding in the area,
(f)  rules about the purposes for which water may be captured, taken, stored or used,
(g)  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 a landholding, a reference to the area of the landholding.
(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 referred to as provided by subsection (6) is to be available for public inspection, free of charge, by either or both of the following means—
(a)  at the appropriate regional office of the Department for the area to which the relevant order relates, during normal office hours,
(b)  on the website of the Department or any other website that the Minister considers to be readily accessible by members of the public.
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; 2012 (496) LW 4.10.2012; 2016 (350) LW 24.6.2016; 2016 (600) LW 30.9.2016 and 2019 (318) LW 5.7.2019.
(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.
(3)  To avoid doubt, the revocation of a management plan or amendment of a management plan so as to remove, or change the description of, a water source described in a proclamation made under this section does not affect the application of this Part to the water source as effected by a proclamation previously made under this Part.
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,
(k1)  floodplain harvesting (regulated river) access licences,
(k2)  floodplain harvesting (unregulated river) 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.
57A   Special provisions relating to floodplain harvesting access licences
(1)  The regulations may make provision for or with respect to the conversion of actual or proposed floodplain water usage by landholders into any of the following categories or subcategories of floodplain harvesting access licences (replacement floodplain harvesting access licences)—
(a)  floodplain harvesting (regulated river) access licences,
(b)  floodplain harvesting (unregulated river) access licences,
(c)  any other categories or subcategories of floodplain harvesting access licences prescribed for the purposes of section 57 (1) (l) or (2).
(2)  Without limiting subsection (1), the regulations may make provision for or with respect to the following—
(a)  the circumstances in which actual or proposed floodplain water usage by landholders will give rise to replacement floodplain harvesting access licences,
(b)  the terms and conditions of replacement floodplain harvesting access licences,
(c)  the share components of replacement floodplain harvesting access licences (including the process for the determination of such share components),
(d)  the determination of applications for approvals for flood works or other works (whether made under this Act or the Water Act 1912) in connection with floodplains in respect of which replacement floodplain harvesting access licences will arise,
(e)  the establishment, functions and procedure of advisory committees to provide advice to the Minister on matters in connection with any scheme prescribed by the regulations for the creation of replacement floodplain harvesting access licences (including providing for the application of section 397 to the acts or omissions of such committees or their members).
(3)  Regulations made for the purposes of this section have effect despite any provisions of this Act (including Schedule 10) that are specified by the regulations.
(4)  A floodplain harvesting (regulated river) access licence, or other category or subcategory of floodplain harvesting access licence, that nominates a regulated river water source is taken to authorise the taking of water from the floodplain for the river and, accordingly, any water taken under that licence from that floodplain is to be treated as having been taken from the regulated river water source for the purposes of this Act or any management plan that applies to the river.
Note.
 For example, the taking of water from a floodplain under a floodplain harvesting (regulated river) access licence otherwise than in accordance with the water allocation for the licence will be an offence under section 60C even though it was not directly taken from the regulated river to which the licence relates.
(5)  In this section—
floodplain water usage by landholders means the taking or use of water by landholders (whether or not under an approval, licence or other authority) from land that is, or is to become, a floodplain.
Note.
 
The Dictionary defines floodplain to mean land declared by the regulations to be a floodplain.
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) or 49B (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 or 49B 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.
(3A)  While an order under section 49B 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 meeting critical human water needs,
(b)  second, third, fourth and fifth priorities are to be given to the matters set out in subsection (3) (a), (b), (c) and (d), respectively, to the extent that those matters are not critical human water needs.
(3B)  In a case where orders under both sections 49A and 49B are in force in relation to the same water management area or water source, the rules set out in subsection (3A) prevail.
(3C)  In this section—
critical human water needs means the needs for a minimum amount of water, that can only reasonably be provided from the Basin water resources, required to meet—
(a)  core human consumption requirements in urban and rural areas, and
(b)  those non-human consumption requirements that a failure to meet would cause prohibitively high social, economic or national security costs.
(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 such circumstances as may be authorised by provisions of the relevant management plan that are made for the purposes of 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) Offences involving allocations under a single access licence 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.
(5) Offences involving allocations under 2 or more access licences A holder of 2 or more access licences that nominate the same water supply work to take water from one or more water sources under this Part—
(a)  who intentionally takes water by means of that work from the source or sources concerned in excess of the combined water allocations for the access licences, or
(b)  who knows or has reasonable cause to believe that the taking of the water from the source or sources concerned is in excess of the combined water allocations for the access licences,
is guilty of an offence.
Tier 1 penalty.
(6)  A holder of 2 or more access licences that nominate the same water supply work to take water from one or more water sources under this Part is guilty of an offence if the holder takes water by means of that work from the source or sources concerned in excess of the combined water allocations for the access licences.
Tier 2 penalty.
(7)  A holder of 2 or more access licences that authorise the holder to take water from the same water source under this Part—
(a)  who intentionally takes water from that water source in excess of the combined water allocations for the access licences, or
(b)  who knows or has reasonable cause to believe that the taking of the water from that source is in excess of the combined water allocations for the access licences,
is guilty of an offence.
Tier 1 penalty.
(8)  A holder of 2 or more access licences that authorise the holder to take water from the same water source under this Part is guilty of an offence if the holder takes water from that source in excess of the combined water allocations for the access licences in relation to that source.
Tier 2 penalty.
(9)  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 (6), 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.
(10)  Either person referred to in subsection (9) may be proceeded against and convicted for an offence under subsection (6), 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 by or from water supply work or extraction point nominated in access licence
A person who takes water from a water source to which this Part applies otherwise than by means of a water supply work, or from an extraction point, that is nominated in an access licence 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.
(3)  For the purposes of taking action under this section, the Minister may determine the quantity of water taken by estimating the quantity in accordance with a methodology prescribed by the regulations for the purposes of this section.
Note.
 See also section 11 (1) (e) of the Natural Resources Access Regulator Act 2017 and Schedule 2 to that Act.
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.
(7)  An applicant for an access licence may, by notice in writing to the Minister, amend or withdraw the application for the access licence at any time before the application is determined.
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.
(1A)  An access licence may be granted unconditionally or subject to such conditions as are required or permitted to be imposed under Division 3.
(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 (or part of such an area or source), and
(b)  may specify a limited period for which such an access licence is to have effect, and
(c)  may set a minimum price for the acquisition of the right to apply for the access licence or licences concerned, and
(d)  may set a fee for participation in the auction, tender or other means specified by the order with respect to the access licence or licences concerned.
(3)  For the avoidance of doubt, the Independent Pricing and Regulatory Tribunal does not have jurisdiction under the Independent Pricing and Regulatory Tribunal Act 1992 to investigate or determine minimum prices for the purposes of this section.
(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, 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).
(1AA)  An access licence is subject to any mandatory conditions imposed by this Act or the regulations.
(1A)  Mandatory conditions (other than conditions imposed by the regulations) 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.
(5)  In this section, mandatory condition means a condition referred to in subsection (1) (a) or (1AA) or imposed under section 8E.
66A   Imposition of conditions on granting of access licence
A condition that is imposed when an access licence is granted takes effect on the day on which the licence takes effect.
67   Imposition of conditions after access licence is granted
(1)  The Minister may impose discretionary conditions on an access licence after it has been granted, but only if 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.
(3)  Mandatory conditions referred to in section 66 (1) (a) 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.
(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 access licence 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 access licence or on such later day as may be specified in the notice in that regard.
(6)  The regulations may make provision for or with respect to the manner in which written notices may be given for the purposes of this section.
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 and other actions 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.
(1C)  The Minister may amend the share component of a specific purpose access licence. The Minister may, in such a case, grant a new access licence specifying the share component to which the specific purpose access licence no longer applies.
(1D)  An amendment may only be made under subsection (1C) if that part of the share component that is the subject of the amendment is no longer necessary for the purpose for which the specific purpose access licence was granted.
(1E)  The Minister may amend an access licence by withdrawing the nomination of a specified water supply work as a work by means of or from which water may be taken under the licence, if the work is the subject of an approval that has expired or has been cancelled or surrendered.
(1F)  The Minister may amend an access licence or approval under subsection (1C) or (1E) at the Minister’s discretion or at the request of the holder of the licence or approval.
(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
A management plan may make provision for or with respect to the circumstances in which the taking of water pursuant to supplementary water access licences is authorised within the whole or any part of a water management area or specified water sources.
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 or surrender of access licence certificate before recording matters in Access Register
(1)  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.
(2)  The Minister may require the access licence certificate for an access licence to be surrendered to the Minister before the Minister records the surrender of the access licence to which that certificate relates 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 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)
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 the Environment.
76   Water allocations may be credited
(1)  Water allocations that have been used by the holder of a prescribed access licence may be regained in accordance with this section.
(2)  The holder of a prescribed 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.
(4)  In this section—
prescribed access licence means an access licence of a category or subcategory prescribed by the regulations for the purposes of this section.
Division 6 Surrender, suspension, cancellation and compulsory acquisition of access licences
77   Surrender of access licences
(1)  Subject to subsection (2B), 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.
(2B)  The Minister may, by written notice served on the holder of the access licence, refuse to accept the surrender of the access licence if the Minister considers it appropriate to do so or in such other circumstances as may be prescribed by the regulations.
(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)  Without limiting section 77A or 78, the Minister may—
(a)  cancel a surrendered access licence, or
(b)  record in the Access Register that the Minister is the holder of the surrendered access licence.
(5)  Subsection (4) (b) 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 unless the access licence is a regulated river supplementary water 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)
Note.
 See also section 11 (1) (e) of the Natural Resources Access Regulator Act 2017 and Schedule 2 to that Act.
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.
(1A)  If the Minister fails to give notice to the holder of an access licence or a security holder before taking action under section 77A or 78, the Minister is taken to have complied with subsection (1) (a)–(c) in relation to that holder if the Minister took all reasonable steps to give notice under subsection (1) to the holder within the period of 28 days before taking the action.
(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.
Note.
 See also section 11 (1) (e) of the Natural Resources Access Regulator Act 2017 and Schedule 2 to that Act.
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 management plan may make provision for or with respect to the circumstances in which the holders of one or more of the following licences that relate to a water source to which this section applies are authorised to take water from the water source that has not been credited to the water allocation accounts of those licences—
(a)  regulated river (high security) access licences,
(b)  regulated river (general security) access licences,
(c)  floodplain harvesting access licences,
(d)  any other access licences prescribed by the regulations.
(3)  The management plan may make provision for or with respect to subsequent adjustments to the water allocation accounts for the licences.
(4)–(7)    (Repealed)
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 that is not a regulated river supplementary water access licence) whose water allocations are reduced as a consequence of the variation of a bulk access regime may claim compensation for loss suffered by the holder as a consequence of that reduction.
(2)  Despite subsection (1), compensation may not be claimed if the variation of the bulk access regime results from—
(a)    (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)).
(10)  Despite subsection (9), if the first management plan that is established for a bulk access regime is repealed under section 45 (5A) and replaced, compensation under this section may be claimed in respect of a reduction in water allocations occurring during the period of the replacement plan that ends on the day on which the first management plan would have ended if it had not been repealed.
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,
(f1)  floodplain harvesting (regulated river) access licences,
(f2)  floodplain harvesting (unregulated river) access licences,
(f3)  regulated river supplementary water access licences,
(g)  any other category or subcategory of access licence that is prescribed by the regulations (other than excluded 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 during the period during which compensation is payable under section 87 (10), 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.
(11)  In this section—
excluded supplementary water access licence means a supplementary water access licence other than a regulated river supplementary water access licence.
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.
87AC   No compensation payable for reductions in water allocations under certain replacement management plans
The holder of an access licence is not entitled to any compensation in respect of reductions in water allocations for the access licence resulting from provisions included in a management plan that replaces another management plan if the replaced management plan authorised the inclusion of amendments containing provisions of that kind in the replaced 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 and objects 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; 2012 (496) LW 4.10.2012; 2015 (558) LW 18.9.2015; 2016 (350) LW 24.6.2016; 2016 (600) LW 30.9.2016 and 2019 (318) LW 5.7.2019.
(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.
(2A)  To avoid doubt, the revocation of a management plan or amendment of a management plan so as to remove, or change the description of, a water source described in a proclamation made under this section does not affect the application of this Part to the water source as effected by a proclamation previously made under this Part.
(3)  Without limiting section 3, the objects of this Part include ensuring that matters relating to safety are taken into consideration in granting water management work approvals for certain dams and flood retarding basins.
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.
91AA   Consultation with Dams Safety NSW in relation to approvals for dams and flood retarding basins
(1)  This section applies in relation to the following kinds of water management work approvals—
(a)  a water supply work approval for the construction or use of a water supply work comprising—
(i)  a declared dam within the meaning of the Dams Safety Act 2015, or
(ii)  a dam or proposed dam that is of a class prescribed by the regulations,
(b)  a flood work approval for the construction or use of a flood retarding basin that is of a class prescribed by the regulations.
(2)  Without limiting any other provision of this Part, the Minister must, before granting a water management work approval to which this section applies or before amending any such approval—
(a)  refer the application for the approval or amendment to Dams Safety NSW, and
(b)  take into consideration any matters that are raised by Dams Safety NSW in relation to the application within 28 days (or such other period as is agreed between the Minister and Dams Safety NSW) after the application is referred to Dams Safety NSW.
(3)  In this section—
(a)  a reference to a water management work of any kind includes a reference to a corresponding kind of work to which Part 2 or 8 of the Water Act 1912 extends, and
(b)  a reference to a water management work approval 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 the Minister includes, in the case of any such entitlement that confers a corresponding authority, a reference to the Ministerial Corporation.
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, use or maintain metering equipment
(1)  A person is guilty of an offence if the person fails to install or use any metering equipment that, pursuant to—
(a)  the conditions of an access licence or approval, or
(b)  a direction under section 326, or
(c)  a regulation made under Part 6 of Chapter 3,
the person is required to install or use in connection with a water management 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 has been installed in connection with a water management work.
Tier 2 penalty.
(3)  A person is guilty of an offence if the person fails to comply with any regulation setting out a standard or requirement for the installation or location of metering equipment, or setting out any other standard or requirement relating to metering equipment, used in connection with a water management work.
Tier 2 penalty.
(4)  It is a defence to an offence under subsection (3) if the accused person establishes that the failure to comply with the regulation was caused by work done to the metering equipment by a duly qualified person.
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)  Subsections (1) (b) and (2) do not apply if the person who takes the water complies with any requirements set out in 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.
Note.
 See also section 11 (1) (e) of the Natural Resources Access Regulator Act 2017 and Schedule 2 to that Act.
91IA   Failure to report metering equipment not working
A person is guilty of an offence if—
(a)  the person is the holder of an approval for a work in connection with which any metering equipment has been installed, and
(b)  the person fails to give notice, in accordance with regulations made for the purposes of this section, that the metering equipment is not operating properly, or is not operating, within 24 hours of becoming aware of that fact.
Tier 2 penalty.
91J   Metering records
(1)  A person is guilty of an offence if the person fails to keep metering records that the person is required under this Act to keep with respect to any metering equipment that has been installed in connection with a water management work.
Tier 2 penalty.
(2)  A person must not in or in connection with a metering record required to be kept under this Act, or a requirement of a regulation in connection with metering equipment, make a statement or furnish any information that the person knows to be false or misleading in a material particular.
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 management 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 management 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 Water NSW) 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 Water NSW or the Water NSW Act 2014, 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)    (Repealed)
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 Water NSW to obtain an approval for the construction or use of metering equipment.
Division 2 Applications for and granting of 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)  An applicant for an approval may, by notice in writing to the Minister, amend or withdraw the application for the approval at any time before the application is determined.
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.
Note.
 Section 99A enables the Minister to grant combined approvals at the time an application is granted for one or more of the approvals concerned or subsequently.
(1A)  An approval may be granted unconditionally or subject to such conditions as are required or permitted to be imposed under Division 3.
(2)    (Repealed)
(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 on the day on which notice of the decision to grant the approval has been given to the applicant.
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.
99A   Granting of combined approvals
(1)  The Minister may, on application or on the Minister’s own motion, grant 2 or more approvals by means of a single approval document (a combined approval).
(2)  A combined approval may be granted—
(a)  at the time an application for one or more of the approvals is granted, or
(b)  by amending an existing approval (whether or not a combined approval) to include additional approvals.
Note.
 Section 92 (4) provides that 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.
(3)  A combined approval that is granted by amending an existing approval must provide for a common expiry date for all of the approvals.
(4)  A combined approval may—
(a)  deal with approvals with respect to the same or different kinds of approvals or the same or different kinds of uses, works or activities, and
(b)  provide for common terms and conditions, or different terms and conditions, for some or all of the approvals granted.
(5)  A combined approval is taken to have effect for the purposes of this Act as if it were—
(a)  to the extent it contains an approval for water use—a water use approval, or
(b)  to the extent it contains an approval for the construction and use of a water supply work—a water supply work approval, or
(c)  to the extent that it contains an approval for the construction and use of a drainage work—a drainage work approval, or
(d)  to the extent that it contains an approval for the construction and use of a flood work—a flood work approval, or
(e)  to the extent that it contains approval for the carrying out of a controlled activity—a controlled activity approval, or
(f)  to the extent that it contains approval for the carrying out of an aquifer interference activity—an aquifer interference approval.
(6)  Each approval granted by means of a combined approval takes effect as provided by section 95 (5).
(7)  Section 98 (Notice of decision) does not apply with respect to a determination to grant a combined approval that is made on the Minister’s own motion.
(8)  Nothing in this section—
(a)  permits the Minister to grant an approval, or to impose or alter terms or conditions of an approval, by means of a combined approval otherwise than in accordance with the requirements of this Act for that kind of approval, or
(b)  limits any right of appeal against a decision made with respect to each kind of approval granted.
Division 3 Conditions and duration of approvals
100   Conditions of approvals 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, 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).
(1AA)  An approval is subject to any mandatory conditions imposed by this Act or the regulations.
(1A)  Mandatory conditions (other than conditions imposed by the regulations) 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.
(4)  In this section, mandatory condition means a condition referred to in subsection (1) (a) or (1AA) or imposed under section 101A.
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.
100A   Imposition of conditions on granting of approval
A condition that is imposed when an approval is granted takes effect on the day on which the approval takes effect.
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.
101A   Metering equipment condition
(1)  It is a mandatory condition of a water supply work approval that metering equipment is installed, used and properly maintained in connection with the work.
(2)  The holder of a water supply work approval is taken to have complied with a particular aspect of the condition imposed by this section if the holder has complied with the applicable requirements (if any) prescribed by the regulations.
(3)  The regulations may provide that the condition does not apply to holders of approvals, or works, specified by the regulations, or in circumstances specified by the regulations.
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 referred to in section 100 (1) (a) 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.
(6)  The regulations may make provision for or with respect to the manner in which written notices may be given for the purposes of this section.
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 written statement 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)  Without limiting any other power conferred by another provision of this Act, the Minister may amend an approval—
(a)  on the application of the holder of the approval, or
(b)  to create 2 or more approvals from a single approval in such circumstances as may be prescribed by the regulations, or
(c)  in such other circumstances as may be prescribed by the regulations.
Note.
 Section 109 (2A) also enables the Minister to amend an approval to give effect to the suspension or cancellation of part of the approval.
(1A)  Action under subsection (1) (b) or (c) 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.
(2)  Without limiting subsection (1), an approval may be amended to alter, remove, 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)  Subject to subsection (1A), the holder of an approval may surrender the approval at any time by notice in writing sent to the Minister.
(1A)  The Minister may, by written notice served on the holder of the approval, refuse to accept the surrender of the approval if the Minister considers it appropriate to do so or in such other circumstances as may be prescribed by the regulations.
(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.
(3)  Without limiting section 109, the Minister may—
(a)  cancel a surrendered approval, or
(b)  transfer the surrendered approval to the Minister or to another person.
109   Suspension and cancellation of approvals
(1)  The Minister may suspend or cancel an approval (or any part of 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.
(2A)  If the Minister suspends or cancels a part of an approval, the Minister may amend the approval so as to give effect to that suspension or cancellation.
(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.
(4)  If the Minister fails to give notice to the holder of an approval before taking action under this section, the Minister is taken to have complied with subsection (3) (a)–(c) in relation to that holder if the Minister took all reasonable steps to give notice under subsection (3) to the holder within the period of 28 days before taking the action.
Note.
 See also section 11 (1) (e) of the Natural Resources Access Regulator Act 2017 and Schedule 2 to that Act.
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 the authorised manner.
(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 the authorised manner.
(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, transferred, 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.
Part 5 Conditions imposed by regulations
115   Regulations may impose mandatory conditions
(1)  The regulations may impose mandatory conditions on access licences and approvals relating to the following—
(a)  metering equipment or any other means of measuring water flows,
(b)  requiring notice to be given of a change to or the replacement of a water supply work, or any part of it, that results in an increase in the capacity of the work to take water,
(c)  reporting by holders of access licences or approvals as to water taken,
(d)  measures recommended by the Natural Resources Access Regulator to improve compliance with and enforcement of this Act.
(2)  A mandatory condition may be imposed on particular access licences or approvals or classes of access licences or approvals.
(3)  A mandatory condition may be imposed on all access licences or approvals for a specified water source or access licences or approvals within a specified part of the State.
(4)  A mandatory condition, other than a condition that is of a machinery nature or is minor in its effect, must not be prescribed unless the proposed condition has been publicly exhibited for not less than 28 days in accordance with any requirements of the regulations.
115A   Regulations relating to mandatory and other licence conditions
The regulations may provide for the following—
(a)  notification to holders of approvals or access licences of mandatory conditions imposed under this Part,
(b)  the imposition of a mandatory condition under this Part on a licence or other entitlement in force under the Water Act 1912 and deeming any such condition to be imposed under that Act,
(c)  that a mandatory condition imposed under this Part has effect despite any other approval or licence or condition of an approval or licence under this Act or the Water Act 1912 or any other instrument made under this Act or that Act,
(d)  the amendment of management plans or licences or approvals to remove or vary conditions that are covered by, or are inconsistent with, mandatory conditions imposed by the regulations under this Part.
Part 6 Regulations relating to water management works
115B   Metering equipment
(1)  This section applies to a water management work, whether or not an approval is required to install or use the work.
(2)  Regulations may be made for or with respect to metering equipment in connection with works to which this section applies.
(3)  In particular, and without limiting subsection (2), regulations may be made for or with respect to the following—
(a)  requiring persons who have control and management of works to install, use and maintain metering equipment,
(b)  setting out standards and other requirements for metering equipment to be used in connection with works,
(c)  setting out standards and other requirements for the location and installation of metering equipment,
(d)  the keeping of metering records relating to maintenance of metering equipment and taking of water during periods when metering equipment is not able to be used and relating to any other matters specified by the regulations,
(e)  the taking of water by means of a metered work while its metering equipment is not operating properly or is not operating,
(f)  requiring the owners of metering equipment, holders of approvals or other persons to provide information obtained from or about the equipment,
(g)  the provision of information derived from or about metering equipment to the holders of approvals for works in connection with which the equipment is installed.
(4)  The regulations are to provide for a review of the operation of regulations made under this section as soon as practicable after 5 years after the first regulations are made under this section.
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 rega