Water Management Act 1999

Water Management Act 1999

An Act to provide for the management of Tasmania's water resources and for other purposes

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART 1 - Preliminary

1.   Short title

This Act may be cited as the Water Management Act 1999 .

2.   Commencement

The provisions of this Act commence on a day or days to be proclaimed.

3.   Interpretation

(1)  In this Act, unless the contrary intention appears –

Advisory Committee means the Advisory Committee established under section 114 ;

[Section 3 Subsection (1) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] Agency has the same meaning as in the State Service Act 2000 ;

Appeal Tribunal means the Resource Management and Planning Appeal Tribunal;

applicant means –

(a) a person who applies for a licence, a variation of a licence or the grant or transfer of a water allocation of a licence; or

(b) [Section 3 Subsection (1) amended by No. 12 of 2004, s. 4, Applied:09 Jun 2004] a water entity or a group of landowners who lodge an application under Part 9 ; or

(c) a person who makes an application for a permit under Division 4 of Part 8 ; or

(d) a body corporate or proposed licensee who makes an application under section 115 ; or

(e) [Section 3 Subsection (1) amended by No. 12 of 2004, s. 4, Applied:09 Jun 2004] a group of licensees or a group of landowners who lodge an application under section 205 ; or

(f) a person who makes an application under section 264 ; or

(g) a person who makes an application for a review of a decision under section 272 ;

approved form means a form approved under section 300 ;

Assessment Committee means the Assessment Committee for Dam Construction constituted under section 138 ;

authorisation means –

(a) a licence, permit or transfer; or

(b) an approval for a water entity to administer a water management plan under Division 4 of Part 4 or a water district under Part 9 ; or

(c) any other authority granted under this Act permitting a person to undertake an activity;

authorised officer means an authorised officer appointed under section 237 ;

best practice environmental management has the same meaning as in the EMPC Act;

Board means the Board of Environmental Management and Pollution Control;

channel includes –

(a) a drain, gutter or pipe; and

(b) a part of a drain, gutter or pipe;

commencement day means –

(a) in section 303 and Schedule 4 , the day on which section 307 commences; or

(b) in Schedule 5 , the day on which section 308 commences;

[Section 3 Subsection (1) amended by No. 12 of 2004, s. 4, Applied:09 Jun 2004] Commission means the Resource Planning and Development Commission;

contravene includes fail to comply with;

[Section 3 Subsection (1) amended by No. 49 of 2002, s. 4, Applied:01 Mar 2003] [Section 3 Subsection (1) amended by No. 12 of 2004, s. 4, Applied:09 Jun 2004] dam means a permanent or temporary barrier or structure that stores, holds back or impedes the flow of water and includes –

(a) any spillway or similar works for passing water around or over the barrier or structure; and

(b) a pipe or other works for passing water through or over the barrier or structure; and

(c) water stored or held back by the barrier or structure and the area covered by that water; and

(d) [Section 3 Subsection (1) amended by No. 12 of 2004, s. 4, Applied:09 Jun 2004] an artificial depression or hole excavated in a watercourse that holds water or impedes the flow of water; and

(e) [Section 3 Subsection (1) amended by No. 12 of 2004, s. 4, Applied:09 Jun 2004] an artificial levee or bank that holds back or diverts water in a watercourse –

but does not include –

(f) associated works and canals used in, or in relation to, the generation of electricity; or

(g) a tank or reservoir unless –

(i) the storage of water involves flooding natural ground; or

(ii) the tank or reservoir is on a watercourse; or

(h) roads, buildings and other ancillary works that are not part of the dam;

[Section 3 Subsection (1) amended by No. 49 of 2002, s. 4, Applied:01 Mar 2003]

[Section 3 Subsection (1) amended by No. 49 of 2002, s. 4, Applied:01 Mar 2003] [Section 3 Subsection (1) amended by No. 30 of 2005, s. 4, Applied:11 Jul 2005] dam works means any works for the construction, erection, enlargement, modification, repair or removal of a dam to which Part 8 or Part 8A applies or any work on any such dam which may significantly increase the dam's safety risk;

dedicated Crown land means Crown land that by virtue of an enactment is under the exclusive or primary control or management of a State Authority or an Agency that is not the responsible Department in relation to the Crown Lands Act 1976 ;

Director means the Director of Environmental Management;

[Section 3 Subsection (1) amended by No. 49 of 2002, s. 4, Applied:01 Mar 2003] dispersed surface water means –

(a) water flowing over land otherwise than in a watercourse –

(i) after having fallen as rain or hail or having precipitated in any other manner; or

(ii) after rising to the surface naturally from underground; or

(b) water as mentioned in paragraph (a) that has been collected in a dam or reservoir;

domestic purpose means personal use for drinking, cooking and washing but does not include taking water to be used in carrying on a business unless it is for the personal use of persons employed in the business;

drilling, in the case of a well, means drilling the well or excavating the well in any other manner and includes deepening or widening an existing well;

elector means an elector of a trust as provided by clause 1 of Schedule 3 ;

electricity entity means a body corporate which uses, or intends to use, water for the generation of electricity as mentioned in section 115 ;

EMPC Act means the Environmental Management and Pollution Control Act 1994 ;

environmental agreement has the same meaning as in the EMPC Act;

environmental harm has the same meaning as in the EMPC Act;

environmental improvement programme has the same meaning as in the EMPC Act;

environmental nuisance has the same meaning as in the EMPC Act;

[Section 3 Subsection (1) amended by No. 12 of 2004, s. 4, Applied:09 Jun 2004] environmental objectives means the objectives of a water management plan proposed to further the provisions of section 6(1)(c) ;

equipment means a pump or meter or valves, pipes or any other device used to take water and includes a part of any such equipment;

[Section 3 Subsection (1) amended by No. 49 of 2002, s. 4, Applied:01 Mar 2003] functions includes powers, authorities and duties;

general newspaper means a newspaper circulating generally throughout Tasmania;

groundwater means –

(a) water occurring naturally below ground level; or

(b) water pumped, diverted or released into a well for storage underground;

[Section 3 Subsection (1) amended by No. 12 of 2004, s. 4, Applied:09 Jun 2004]

[Section 3 Subsection (1) amended by No. 12 of 2004, s. 4, Applied:09 Jun 2004] groundwater area means an area of land that is appointed as a groundwater area by an order made by the Minister under section 124A ;

[Section 3 Subsection (1) amended by No. 49 of 2002, s. 4, Applied:01 Mar 2003] highway means –

(a) a State highway or subsidiary road within the meaning of the Roads and Jetties Act 1935 ; or

(b) a local highway within the meaning of the Local Government (Highways) Act 1982 ;

hydro-electric district means a hydro-electric district created under Part 9 ;

[Section 3 Subsection (1) amended by No. 49 of 2002, s. 4, Applied:01 Mar 2003] incident, in the case of a dam, means any incident or event relating to the structural integrity or safety of the dam which causes, or has the potential to cause –

(a) death or injury to a person; or

(b) damage to, or loss of, property or services; or

(c) material environmental harm or serious environmental harm;

infrastructure means –

(a) artificial lakes; or

(b) dams, weirs or reservoirs; or

(c) embankments, walls, channels or other works; or

(d) buildings or structures; or

(e) pipes, machinery or other equipment;

intensive farming means a method of keeping animals in the course of carrying on the business of primary production in which the animals are confined to a small space or area and are usually fed by hand or by mechanical means;

interested person has a meaning given by section 270 or 274 ;

lake means a natural lake, pond, lagoon, wetland or spring (whether modified or not) and includes –

(a) part of a lake; and

(b) a body of water declared by the regulations to be a lake;

land includes –

(a) buildings and other structures permanently fixed to land; and

(b) land covered with water; and

(c) water covering land; and

(d) any estate, interest, easement, privilege or right in or over land;

licence means a licence granted and in force under Part 6 ;

local newspaper means a newspaper circulating in the area in which a relevant water resource or well is situated;

material environmental harm has the same meaning as in section 5(2) of the EMPC Act;

meter means a device that is constructed for, or that may be adapted for, measuring the flow or level of water;

occupier of land means a person who has, or is entitled to, possession or control of the land and includes –

(a) a person who occupies the land or part of the land jointly or in common with any other person; and

(b) a person who occupies part of the land;

[Section 3 Subsection (1) amended by No. 49 of 2002, s. 4, Applied:01 Mar 2003] owner means –

(a) in the case of land alienated from the Crown by grant in fee simple, the holder of an estate in fee simple; or

(b) in the case of dedicated Crown land that has not been granted in fee simple but which is under the care, control and management of a Minister, body or other person, that Minister, body or other person; or

(c) in the case of land held under Crown lease or licence, the lessee or licensee of the land; or

(d) in the case of land held under an agreement to purchase it from the Crown, the person entitled to the benefit of the agreement; or

(e) in the case of any other land, the Minister who is responsible for the care, control and management of the land or, if no Minister is so responsible, the Minister having the administration of the EMPC Act; or

(f) in the case of a dam, any person or statutory authority who, whether solely or with another person or statutory authority, owns, controls, operates, manages or maintains a dam, and includes any person or statutory authority who, whether solely or with another person or statutory authority, proposes to build a dam;

permit means a permit granted and in force under Division 4 of Part 8 ;

person includes an Agency, a statutory authority and any emanation of the Crown in right of the Commonwealth;

[Section 3 Subsection (1) amended by No. 57 of 2002, s. 13, Applied:05 Dec 2002] pipeline licensee has the same meaning as in Division 4 of Part 3 of the Gas Pipelines Act 2000 ;

[Section 3 Subsection (1) amended by No. 57 of 2002, s. 13, Applied:05 Dec 2002] pipeline planning corridor has the same meaning as in Division 4 of Part 3 of the Gas Pipelines Act 2000 ;

planning scheme means a planning scheme in force under section 29 of the Land Use Planning and Approvals Act 1993 ;

prior right means a right to take water under this Act which was in force immediately before the publication of a notice under section 18 ;

record means –

(a) a documentary record; or

(b) a record made by an electronic, electromagnetic, photographic or optical process; or

(c) any other kind of record;

register means the register of licences and permits kept under section 12 ;

regulations means regulations made and in force under this Act;

relevant water management plan means a water management plan for a water resource which may be affected by the exercise of any powers under this Act;

repealed Act means the Water Act 1957 ;

responsible water entity means a water entity responsible for the administration of a water management plan under section 38(1) or the administration of a water district under Part 9 ;

riparian tenement means land that adjoins a watercourse or through which a watercourse runs, or that adjoins a lake or on which a lake is situated;

Secretary means the Secretary of the Department;

serious environmental harm has the same meaning as in section 5(2) of the EMPC Act;

small claim means a small claim within the meaning of the Magistrates Court (Small Claims Division) Act 1989 ;

special licence means a licence granted and in force under Division 6 of Part 6 ;

State policy means a Tasmanian Sustainable Development Policy made under section 11 of the State Policies and Projects Act 1993 ;

[Section 3 Subsection (1) amended by No. 49 of 2002, s. 4, Applied:01 Mar 2003] statutory authority means a person, body or authority, whether incorporated or unincorporated, constituted by or under an Act, or appointed by the Governor under the authority of an Act, to administer or control a department, office, business or undertaking on behalf of the State;

stock watering means the provision of water for drinking by livestock and for normal husbandry practices associated with the keeping of livestock, but does not include the provision of water for livestock or animals subject to intensive farming;

surety means the actual or relative probability with which a water allocation is expected to be available in any year having regard to the natural variability of the supply of water;

[Section 3 Subsection (1) amended by No. 49 of 2002, s. 4, Applied:01 Mar 2003]

taking, in the case of water from a water resource, includes –

(a) taking water by pumping or syphoning the water; and

(b) stopping, impeding or diverting the flow of water over land (whether in a watercourse or not) for the purpose of collecting or storing the water; and

(c) diverting the flow of water in a watercourse from the watercourse; and

(d) releasing water from a lake; and

(e) permitting water to flow under natural pressure from a well, unless the water is flowing from a natural opening in the ground that gives access to groundwater; and

(f) permitting stock to drink from a watercourse, a natural or artificial lake, a dam or reservoir;

tidal area means any part of a watercourse that is subject to the regular ebb and flow of the highest spring tides;

[Section 3 Subsection (1) amended by No. 12 of 2004, s. 4, Applied:09 Jun 2004] tributary means any watercourse that contributes its flow to a larger watercourse;

trust means a board of trustees holding office under Division 1 of Part 10 ;

trustee means one of the persons constituting a trust under Division 1 of Part 10 ;

waste means residue, by-product, surplus or reject material which is to be, or is required to be, disposed of in a manner of which utilisation to commercial or other advantage is not a primary purpose;

water allocation means a quantity of water that a licensee is entitled to take and use under a licence;

water district means a water supply district, irrigation district, riverworks district, hydro-electric district or drainage district created under Part 9 ;

water entity means –

(a) a Government Business Enterprise; or

(b) a council; or

(c) an authority under Division 4 of Part 3 of the Local Government Act 1993 or any other statutory authority; or

(d) [Section 3 Subsection (1) amended by No. 49 of 2002, s. 4, Applied:01 Mar 2003] a body corporate under the Corporations Act; or

(e) [Section 3 Subsection (1) amended by No. 12 of 2004, s. 4, Applied:09 Jun 2004] a trust established under Part 10 ; or

(f) an electricity entity; or

(g) [Section 3 Subsection (1) amended by No. 49 of 2002, s. 4, Applied:01 Mar 2003] [Section 3 Subsection (1) amended by No. 12 of 2004, s. 4, Applied:09 Jun 2004] a body registered under the Cooperatives Act 1999  –

and, if the Minister is administering a water management plan under a notice referred to in section 47(3) , includes the Minister;

water infringement notice means a water infringement notice issued under Division 1 of Part 13 ;

water management plan means a water management plan in force under Part 4 and includes an interim water management plan under section 31 ;

[Section 3 Subsection (1) amended by No. 12 of 2004, s. 4, Applied:09 Jun 2004] water regime means –

(a) in respect of a watercourse, the pattern of flow in the watercourse, which is to be described in terms of the major features of its volumetric and temporal variation and which, in the case of a lake, is to include the fluctuation in the water level of the lake; or

(b) in respect of groundwater, the pattern of flow or fluctuation in the level of groundwater or pressure which is to be described in terms of the major features of its temporal variation;

[Section 3 Subsection (1) amended by No. 49 of 2002, s. 4, Applied:01 Mar 2003] water resource means a watercourse, lake or any dispersed surface water or groundwater;

watercourse means a river, creek or other natural stream of water (whether modified or not) flowing in a defined channel, or between banks, notwithstanding that the flow may be intermittent or seasonal or the banks not clearly or sharply defined, and includes –

(a) a dam that collects water flowing in any such stream; and

(b) a lake through which water flows; and

(c) a channel into which the water of any such stream has been diverted; and

(d) [Section 3 Subsection (1) amended by No. 49 of 2002, s. 4, Applied:01 Mar 2003] part of any such stream; and

(da) [Section 3 Subsection (1) amended by No. 49 of 2002, s. 4, Applied:01 Mar 2003] the floodplain of any such stream –

but does not include –

(e) a channel declared by the regulations to be excluded from this definition; or

(f) a drain or drainage depression in the contours on the land which only serves to relieve upper land of excess water in times of major precipitation;

well means –

(a) an opening in the ground deeper than 3 metres below the surface of the earth excavated or used for the taking of groundwater; or

(b) a natural opening in the ground that gives access to groundwater; or

(c) any other excavation as may be provided by the regulations;

[Section 3 Subsection (1) amended by No. 12 of 2004, s. 4, Applied:09 Jun 2004] well works means an excavation undertaken to give access to groundwater, any other works undertaken to repair or modify the structure of a well or any works undertaken to plug, backfill, seal or decommission a well;

[Section 3 Subsection (1) amended by No. 49 of 2002, s. 4, Applied:01 Mar 2003] working day means a day that is not –

(a) a Saturday or Sunday; or

(b) a statutory holiday within the meaning of the Statutory Holidays Act 2000 ;

works means a drain, outfall, bridge, culvert, channel, dam (including associated infrastructure), defence or other work of a water entity responsible for administering a water district or a water management plan and includes all machinery and appliances used, or intended to be used, for the purposes of any such district or plan but does not include a bridge over a natural watercourse if the bridge is on, or forms part of, a highway.

(2)  In this Act –

(a) a reference to a watercourse is taken as a reference to either –

(i) the bed and banks of the watercourse; or

(ii) the water for the time being within the bed and banks of the watercourse –

or both, depending on the context; and

(b) a reference to a lake is taken as a reference to either –

(i) the bed, banks and shores of the lake; or

(ii) the water for the time being held by the bed, banks and shores of the lake –

or both, depending on the context; and

(c) a reference to varying a licence is taken to include a reference to varying a water allocation of the licence or the conditions attached to the licence; and

(d) a reference to a water allocation is taken to include a reference to a part of the water allocation; and

(e) a reference to a condition of a licence is taken to include a reference to a water allocation of the licence.

4.   Act binds Crown

(1)  This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.

(2)  No criminal liability attaches to the Crown itself (as distinct from its agents, instrumentalities, officers and employees) under this Act.

5.   Application of Act

(1)  This Act prevails over any other Act which confers a right to take water unless the other Act is expressed to apply notwithstanding this Act.

(2)  Nothing in this Act affects the taking of water from a tidal area.

(3)  Nothing in this Act is taken to imply that any water taken or used under an authorisation or as permitted by this Act is fit or sufficient for the purposes for which it is taken or used.

PART 2 - Objectives of Act

6.   Objectives of Act

(1)  The objectives of this Act are to further the objectives of the resource management and planning system of Tasmania as specified in Schedule 1 and in particular to provide for the use and management of the freshwater resources of Tasmania having regard to the need to –

(a) promote sustainable use and facilitate economic development of water resources; and

(b) recognise and foster the significant social and economic benefits resulting from the sustainable use and development of water resources for the generation of hydro-electricity and for the supply of water for human consumption and commercial activities dependent on water; and

(c) maintain ecological processes and genetic diversity for aquatic ecosystems; and

(d) provide for the fair, orderly and efficient allocation of water resources to meet the community's needs; and

(e) increase the community's understanding of aquatic ecosystems and the need to use and manage water in a sustainable and cost-efficient manner; and

(f) encourage community involvement in water resource management.

(2)  It is the obligation of the Minister, the Secretary, a water entity and any other person on whom a function is imposed or a power is conferred under this Act to perform the function or exercise the power in such a manner as to further the objectives specified in subsection (1) and in Schedule 1 .

PART 3 - Administration

7.   Abolition and vesting of rights to water

(1)  All rights existing at common law immediately before the commencement of this section to the flow of, or for the taking of, naturally occurring water are abolished.

(2)  Except as provided by this Act, all rights to the taking of water from the water resources of Tasmania are vested in the Crown to be administered in accordance with this Act.

(3)  This section does not derogate from any rights conferred under Part 5 .

8.   Functions and duties of the Minister

(1)  The functions and duties of the Minister under this Act are –

(a) to manage the water resources of Tasmania in accordance with the objectives of this Act; and

(b) to develop and coordinate policies relating to the sustainable use and development of those water resources; and

(c) [Section 8 Subsection (1) amended by No. 49 of 2002, s. 5, Applied:01 Mar 2003] to allocate the water available from watercourses, lakes and wells and dispersed surface water in a manner consistent with the objectives of this Act; and

(d) to compile, maintain and update information in respect of the water resources of Tasmania; and

(e) to promote public awareness of the importance of Tasmania's water resources and to encourage the conservation of those resources; and

(f) to encourage community involvement in water resource management.

(2)  When making a decision under this Act that is based wholly or partly on an assessment of the quantity of water available or the period or periods during which water is available from a water resource, the Minister must take into account –

(a) [Section 8 Subsection (2) amended by No. 12 of 2004, s. 5, Applied:09 Jun 2004] the needs of the major ecosystems that depend on that water resource for water; and

(b) any effect that the decision may have on the commercial operations of major users of water from that water resource.

9.   Minister may establish committees

(1)  The Minister may establish committees to provide information and advice to the Minister on matters related to the administration of this Act.

(2)  The Minister may appoint any person who has expertise, knowledge or skills relevant to the functions of a committee as a member of that committee on any terms and conditions that the Minister determines.

10.   Delegation

(1)  Subject to subsection (5) , the Minister may delegate any of his or her functions or powers under this Act (except this power of delegation) to any other person.

(2)  A delegation under this section –

(a) is to be by instrument in writing; and

(b) may be absolute or conditional; and

(c) does not derogate from the power of the Minister to act in any matter; and

(d) is revocable by the Minister.

(3)  Where a function or power is delegated under subsection (1) to a water entity, the Minister may make an agreement with that water entity for the reimbursement of the costs incurred by it in performing that function or exercising that power.

(4)  Where the performance of a function or the exercise of a power is dependent on the opinion or belief of the Minister, a delegate may act on his own opinion or belief in performing that function or exercising that power.

(5)  The Minister may not delegate –

(a) the function of making recommendations to the Governor in respect of the making of proclamations; or

(b) [Section 10 Subsection (5) amended by No. 49 of 2002, s. 6, Applied:01 Mar 2003] any power conferred under section 11 , 28 , 34(4)(c) or 47 , Division 6 of Part 6 , section 137(2) , 165L(5) , 176(2) , 178(1) , 183(1) , 186(1) , 188(1) , 192 , 206 , 225 or 259(6) ; or

(c) [Section 10 Subsection (5) amended by No. 49 of 2002, s. 6, Applied:01 Mar 2003] the power to authorise a person to enter on land under section 46 , 94(3) , 127(1) , 147(5) , 165J(3) , 165L(7) , 165M(1) , 165N(4) , 185(4) , 229(1) or 282(4) ; or

(d) the power to appoint members to the Assessment Committee under section 139 .

(6)  The Minister may not delegate the power to hold a review under Division 1 of Part 14 to a person who has made the decision which is the subject of the review.

11.   Exemption from Act

(1)  Subject to subsection (5) , the Minister may, by order published in the Gazette and in a general newspaper, exempt a person from any provision of this Act subject to any conditions that the Minister determines.

(2)  The Minister may not grant an exemption if –

(a) there would be a likely material adverse effect on any licensee or the holder of a permit or prior right; or

(b) it would be inconsistent with the objectives of this Act to do so; or

(c) the effect of the exemption would, or be likely to, cause material environmental harm or serious environmental harm; or

(d) the Minister having the administration of the Public Health Act 1997 has advised that the exemption would be inconsistent with that Act or any guidelines in force under that Act.

(3)  An exemption may have effect notwithstanding a provision of a water management plan.

(4)  An exemption remains in force until –

(a) it is revoked; or

(b) the date specified in the order as the date on which the exemption ceases to be in force –

whichever first occurs, but the exemption may be renewed in accordance with this section.

(5)  The Minister may not exempt a person from any requirement not to cause material environmental harm or serious environmental harm under this Act.

12.   Minister to keep register of licences and permits

(1)  The Minister must keep a register of all licences and permits granted under this Act in such form and containing such information as the Minister may direct.

(2)  Where a licence is transferred, or a water allocation of a licence is transferred, the Minister must record in the register such particulars as he or she thinks fit relating to the transfer.

(3)  A person may inspect the register, excluding any information as to demerit points allocated to the licence of any other person, during normal business hours at such places as the Minister may direct.

(4)  Where any demerit points are allocated to a licence under Division 2 of Part 13 , the register is to include a notation to that effect.

(5)  A person may, on payment of the prescribed fee, obtain a copy of, or an extract from, an entry in the register but is not entitled to any information as to demerit points allocated to the licence of any other person.

(6)  A person may, on payment of the prescribed fee, inspect any notation in the register of demerit points allocated to his or her licence or, with the authority in writing of another licensee, to the licence held by that licensee.

(7)  The Minister may –

(a) of his or her own motion; or

(b) on application by a person in respect of whom an entry has been made in the register –

amend the entry if satisfied that the entry is incorrect owing to an accidental or inadvertent error, omission or misstatement or a change of address or change of name by a licensee.

PART 4 - Water Management Plans

Division 1 - Nature of water management plans

13.   Water management plans

[Section 13 Substituted by No. 12 of 2004, s. 6, Applied:09 Jun 2004]

(1)  The Minister may determine that a water management plan is to be prepared in respect of a water resource or water resources in Tasmania.

(2)  A water management plan may, in whole or in part, rescind, replace or alter any water management plan previously approved under this Act.

14.   Scope of water management plans

(1)  [Section 14 Subsection (1) amended by No. 49 of 2002, s. 7, Applied:01 Mar 2003] A water management plan may be prepared for –

(a) [Section 14 Subsection (1) amended by No. 30 of 2005, s. 5, Applied:11 Jul 2005] a watercourse, several joined watercourses or part of a watercourse, including a water supply channel declared under section 192(1) ; or

(b) a lake; or

(c) [Section 14 Subsection (1) amended by No. 12 of 2004, s. 7, Applied:09 Jun 2004] one or more groundwater resources; or

(d) any combination of paragraphs (a) , (b) and (c) , whether the water resources are joined naturally or artificially –

and may include dispersed surface water that normally flows into or replenishes the water resource or water resources in the plan.

(2)  [Section 14 Subsection (2) substituted by No. 12 of 2004, s. 7, Applied:09 Jun 2004] A water management plan is to include –

(a) a statement of the objectives of the plan, including the environmental objectives; and

(b) a description of the water regime that best gives effect to the environmental objectives and other relevant objectives of the plan; and

(c) an assessment of the ability of that water regime to achieve the environmental objectives and other relevant objectives of the plan; and

(d) an assessment of likely detrimental effects of the plan on the quality of water.

(3)  A water management plan may –

(a) [Section 14 Subsection (3) amended by No. 12 of 2004, s. 7, Applied:09 Jun 2004] provide for the allocation and use of water having regard to the objectives stated under subsection (2)(a) ; and

(b) provide for the licensing of all or specified classes of persons taking water from the relevant water resource, including persons who under Part 5 would otherwise have a right to take water without a licence; and

(c) provide for the transfer of, and other dealings with, water allocations, including the imposition of conditions under which those transfers or dealings may take place; and

(d) specify requirements to be considered in the granting of permits under Division 4 of Part 8 ; and

(e) specify a date on which the plan will take effect; and

(f) provide for the administration of the plan by a responsible water entity in accordance with section 38(1) ; and

(g) include such other information or material as may be required for the administration of this Act.

15.   Effect of plan on water allocation

Where a water management plan provides for the allocation and use of water under section 14(3)(a) , the plan must  –

(a) include an assessment of the capacity of the relevant resource to meet the likely demands for water by existing and future users; and

(b) take into account the needs of existing and future users and state the likely effect of the plan on those users, including any effect on businesses carried on by those users.

16.   Changes to allocations

(1)  A water management plan may, in order to improve the management of a water resource, change the basis on which water is allocated from the resource notwithstanding that a consequential variation of a licence to maintain consistency with the plan results in a reduction or increase in a water allocation of the licence.

(2)  Where a change to the basis of allocating water from a water resource requires a reduction in the water allocations of licences to take water from the resource –

(a) the water management plan must provide an equitable procedure for effecting the reduction; and

(b) the procedure must give effect to the various sureties attaching to the licences or to the components of water allocations of the licences.

17.   Links with other water resources

(1)  Where the taking, or the taking and use, of water from a water resource has, or is likely to have, a detrimental effect on the quantity or quality of water that is available from another water resource, the water management plan for the first-mentioned resource –

(a) must take into account the needs of persons and ecosystems using water from the other resource as well as the needs of persons and ecosystems using water from its own resource; and

(b) may, to achieve an equitable balance between competing interests, include provisions designed to prevent or reduce any such detrimental effect.

(2)  Where the taking or use of water from a water resource affects, or is likely to affect, the management of water in another water resource, the water management plan for the second-mentioned water resource may include provisions relating to the taking or use of water from the first-mentioned water resource.

Division 2 - Preparation of water management plans

18.   Notice of plan

As soon as practicable after the Minister determines that a water management plan is to be prepared, the Secretary must –

(a) by notice in a local newspaper, notify the public that a water management plan is to be prepared; and

(b) prepare a draft water management plan.

19.   

[Section 19 Repealed by No. 12 of 2004, s. 8, Applied:09 Jun 2004] .  .  .  .  .  .  .  .  

20.   Consistency with other statutory requirements and consultation

[Section 20 Substituted by No. 12 of 2004, s. 9, Applied:09 Jun 2004]

(1)  When preparing a draft water management plan, the Secretary must have regard to the consistency of the plan with –

(a) any relevant State policy; and

(b) relevant environmental agreements and environmental improvement programmes; and

(c) relevant planning schemes; and

(d) Part 6 of the Public Health Act 1997 and guidelines issued under Part 8 of that Act; and

(e) such other plans, policies or guidelines as are prescribed by the regulations; and

(f) the objectives of this Act –

and for that purpose must consult with –

(g) the Director of Environmental Management; and

(h) the Director of Public Health; and

(i) any council within the municipal area of which a relevant water resource is situated; and

(j) such other persons as the Minister may direct.

(2)  The Secretary must also consult with –

(a) any Agency that has a direct interest in the draft water management plan; and

(b) any relevant water entity or relevant licensee –

so far as may be practicable and may also consult generally with such other persons as he or she thinks fit.

21.   Effect of plan on prior rights

(1)  In preparing a draft water management plan, the Secretary must ensure that any user of water with a prior right to take water from a water resource to which the plan relates continues to enjoy that right unless it is abrogated as provided by subsection (2) .

(2)  Where –

(a) [Section 21 Subsection (2) amended by No. 12 of 2004, s. 10, Applied:09 Jun 2004] the total allocations of water available to the holders of prior rights to take water from a water resource to which the plan relates prevent the achievement of the water regime that best gives effect to the environmental objectives referred to in section 14(2)(a) ; or

(b) the total allocations of water available to the holders of those rights or the conditions of use attached to those rights may not enable the relevant water resource to be managed consistently with the objectives of this Act –

the draft water management plan may provide for the abrogation of any such prior right but only to the extent necessary to ensure that requirements can be met as to –

(c) [Section 21 Subsection (2) amended by No. 12 of 2004, s. 10, Applied:09 Jun 2004] providing the water regime that best gives effect to the environmental objectives referred to in section 14(2)(a) ; and

(d) management of the resource consistently with the objectives of this Act.

(3)  Where a draft water management plan abrogates rights under this section, the Secretary must in accordance with section 24 give notice of the plan to persons holding those rights.

22.   Compensation for abrogation of prior right

(1)  The holder of a prior right that is abrogated under section 21 is entitled to compensation for any liability incurred or loss sustained unless –

(a) [Section 22 Subsection (1) amended by No. 12 of 2004, s. 11, Applied:09 Jun 2004] the abrogation is necessary to ensure that the total quantity of water permitted to be taken from the relevant water resource does not prevent the achievement of the water regime that best gives effect to the environmental objectives referred to in section 14(2)(a) ; or

(b) the holder consents to the abrogation or reduction.

(2)  In default of an agreement between the Minister and the holder of the prior right, the amount of compensation is to be determined in accordance with the Commercial Arbitration Act 1986 .

(3)  For the purposes of this section, any compensation is to be paid out of the Consolidated Fund without further or other appropriation than this section.

(4)  In determining the amount of compensation under subsection (1) , any benefit to the holder of the prior right arising from the abrogation is to be taken into account.

23.   Requirement to report particulars of wells

A notice under section 18 may require that the owner or occupier of land on which a well is situated in a specified area must, within such time as is specified in the notice –

(a) notify the Secretary, in the approved form, of the existence of the well; and

(b) describe the location of the well on that land and provide such other information as may be specified in the notice.

Penalty:  Fine not exceeding 10 penalty units.

24.   Consultation on draft plan

(1)  When the draft water management plan is completed, the Secretary must serve written notice of it stating the particulars required by section 25 on –

(a) [Section 24 Subsection (1) amended by No. 12 of 2004, s. 12, Applied:09 Jun 2004] the persons and bodies referred to in section 20(1) ; and

(b) [Section 24 Subsection (1) amended by No. 12 of 2004, s. 12, Applied:09 Jun 2004] .  .  .  .  .  .  .  .  

(c) any licensees who may take water from a water resource to which the draft plan relates; and

(d) any holders of prior rights abrogated under section 21 ; and

(e) any licensee who may take water from a water resource that may be affected under section 17 by the draft plan; and

(f) such other persons as the Secretary considers appropriate.

(2)  The notice must contain the same particulars as a notice under section 25(1) .

25.   Public exhibition of draft plan

(1)  As soon as possible after a draft water management plan has been prepared, the Secretary must, by notice in the Gazette and in a local newspaper, state –

(a) that a draft plan has been prepared; and

(b) the water resource or water resources to which the draft plan relates; and

(c) that a person may submit written representations relating to the draft plan; and

(d) the period during which representations may be made; and

(e) the address to which representations may be sent; and

(f) the place at which a copy of the draft plan may be obtained; and

(g) the cost, if any, of obtaining a copy of the draft plan; and

(h) the place at which the draft plan is exhibited; and

(i) the period during which the draft plan is to be exhibited; and

(j) the time and place at which a public meeting will be held to discuss the draft plan.

(2)  The period during which representations may be made and the period during which the draft water management plan is to be exhibited are to be each at least 60 days after the date on which the notice is first published.

(3)  Unless the Minister determines otherwise, the public meeting referred to in subsection (1)(j) must be held within 30 days after the date on which the notice is first published.

26.   Consideration of representations

[Section 26 Substituted by No. 12 of 2004, s. 13, Applied:09 Jun 2004] After considering the written representations referred to in section 25(1)(c) relating to a draft water management plan, the Secretary is to forward to the Commission –

(a) a copy of those representations; and

(b) a report containing –

(i) a summary of the representations; and

(ii) the Secretary's opinion on the merits of the representations, including a statement as to whether he or she believes that the representations are of sufficient merit to warrant modification of the draft water management plan; and

(iii) a summary of any proposed modification to the draft water management plan; and

(iv) any additional information that the Secretary considers relevant.

27.   Review by Commission

[Section 27 Substituted by No. 12 of 2004, s. 13, Applied:09 Jun 2004]

(1)  The Commission, on the direction of the Minister, is to review the representations and the report of the Secretary forwarded under section 26 relating to the draft water management plan.

(2)  Within 21 days after receipt of the copies of the representations and the report of the Secretary, or within any further period that the Minister allows, the Commission is to decide whether or not to hold a hearing to assist in its review of the representations and the report.

(3)  If the Commission decides to hold a hearing, the Commission is to notify the Minister of that decision.

(4)  If the Commission decides not to hold a hearing, the Commission, within 14 days after making that decision, is to give written notice of that decision to –

(a) the Minister; and

(b) the Secretary; and

(c) any person who has submitted a representation under section 25(1)(c) .

(5)  A hearing is to be conducted in accordance with Part 3 of the Resource Planning and Development Commission Act 1997 .

(6)  The Commission, as soon as practicable after receipt of the copies of the representations and the report of the Secretary forwarded under section 26 , is to notify by public notification –

(a) the places at which copies of the representations and report are to be exhibited; and

(b) the period during which they are to be exhibited; and

(c) any other information that the Commission considers relevant.

(7)  At least one of the places referred to in subsection (6)(a) is to be near the area where the relevant water resource is located.

27A.   Report of Commission

[Section 27A Inserted by No. 12 of 2004, s. 13, Applied:09 Jun 2004]

(1)  The Commission, within a period determined by the Minister, is to provide the Minister with –

(a) a report of its review under section 27 ; and

(b) copies of the representations and the report of the Secretary forwarded under section 26 .

(2)  As soon as practicable after the period referred to in subsection (1) , the Commission is to publish in the Gazette notice of –

(a) the making of its report; and

(b) the place where copies of its report are available for inspection by the public.

27B.   Consideration of Commission's report

[Section 27B Inserted by No. 12 of 2004, s. 13, Applied:09 Jun 2004]

(1)  In considering the matters referred to in section 27A(1)(a) and (b) , the Minister is to have regard to the objectives of this Act.

(2)  The Minister may request the Secretary to submit for final approval –

(a) an unaltered draft water management plan; or

(b) a draft water management plan containing any alterations that the Minister thinks appropriate having regard to the matters specified in section 27A(1)(a) and (b) .

Division 3 - Adoption and amendment of water management plans

28.   Adoption of plan by Minister

[Section 28 Substituted by No. 12 of 2004, s. 14, Applied:09 Jun 2004] The Minister adopts a draft water management plan or amended draft water management plan by signing a certificate endorsed on the plan that he or she has adopted that plan and, on adoption, the draft water management plan or amended draft water management plan becomes a water management plan.

29.   Operation of water management plans

A water management plan takes effect on the publication of a notice in the Gazette that the Minister has adopted the plan.

30.   Notice of adoption of water management plan

(1)  [Section 30 Subsection (1) amended by No. 12 of 2004, s. 15, Applied:09 Jun 2004] Within 14 days after the adoption of a water management plan under section 29 , the Minister must give written notice of that fact to –

(a) any council in the municipal area of which a relevant water resource is situated; and

(b) if representations have been made relating to the draft plan, to all persons who made them.

(2)  [Section 30 Subsection (2) amended by No. 12 of 2004, s. 15, Applied:09 Jun 2004] The notice is to include details of any alteration made under section 27B(2)(b) .

31.   Interim water management plan

(1)  The Minister, by notice published in the Gazette, may declare that a draft water management plan referred to in a notice under section 25(1) is to have effect as an interim water management plan.

(2)  A notice under subsection (1) is to state the date on which the interim plan is to take effect.

(3)  An interim plan has the same effect as a plan adopted under section 28 .

(4)  An interim plan ceases to have effect on –

(a) a date specified in a notice under subsection (1) for that purpose or, if no such date is specified, 12 months after the date on which it took effect; or

(b) the date on which a water management plan in respect of the relevant water resource takes effect –

whichever first occurs.

32.   

[Section 32 Repealed by No. 12 of 2004, s. 16, Applied:09 Jun 2004] .  .  .  .  .  .  .  .  

33.   Availability of water management plans

The Secretary must make a water management plan prepared under this Division available for inspection and purchase.

34.   Review and amendment of water management plans

(1)  [Section 34 Subsection (1) amended by No. 12 of 2004, s. 17, Applied:09 Jun 2004] After adoption by the Minister of a water management plan, the Secretary must review the plan, in accordance with the requirements specified in the plan, if any, or a direction under subsection (1A) or where it is necessary to do so to ensure the consistency of the plan with any relevant State policy.

(1A)  [Section 34 Subsection (1A) inserted by No. 12 of 2004, s. 17, Applied:09 Jun 2004] The Minister may direct the Secretary to review a water management plan if satisfied that it is necessary or desirable to do so owing to environmental, economic or other reasons relating to the water resource to which the water management plan relates.

(2)  In reviewing the plan, the Secretary –

(a) [Section 34 Subsection (2) amended by No. 12 of 2004, s. 17, Applied:09 Jun 2004] must propose amendments (if any) that are required for the consistency of the plan with any relevant State policy; and

(b) may propose such other amendments to the plan that the Secretary considers to be necessary or desirable to give effect to the objectives of this Act.

(3)  Subject to subsections (4) and (5) , the procedures provided by Division 2 for the preparation and adoption of a water management plan are to be followed when the plan is amended.

(4)  Where the only amendments to the plan are those referred to in subsection (2)(a) , it is not necessary to follow the procedures referred to in subsection (3) if –

(a) the Secretary publishes a copy of the proposed amendments in a local newspaper together with a notice inviting members of the public to provide written representations in respect of the proposed amendments within one month after publication of the notice; and

(b) the Secretary considers all written representations received in accordance with the notice and makes a recommendation to the Minister on the proposed amendments; and

(c) the Minister has regard to that recommendation before adopting the amendments.

(5)  The Minister may amend a water management plan in order to –

(a) correct an error in the plan; or

(b) [Section 34 Subsection (5) amended by No. 12 of 2004, s. 17, Applied:09 Jun 2004] make a change of form, not involving a change of substance, in the plan; or

(c) [Section 34 Subsection (5) amended by No. 12 of 2004, s. 17, Applied:09 Jun 2004] [Section 34 Subsection (5) amended by No. 3 of 2005, s. 9, Applied:12 Apr 2005] give effect to amendments to the plan for the purposes of the consistency of the plan with a State policy or an order under section 26(6) or (8) , 26A or 26B of the State Policies and Projects Act 1993  –

without following the procedures for amendment required by this Part.

35.   Notice of amendment of plan

Within 14 days after the adoption of an amended water management plan under section 34(4)(c) , the Minister must give written notice of that fact and of any rights of review or appeal under Part 14 to –

(a) any council in the municipal area of which a relevant water resource is situated; and

(b) if representations have been made relating to the proposed amendment, to all persons who made them.

Division 4 - Implementation of water management plans

36.   Implementation of plans

(1)  A water management plan has no effect unless it has been adopted by the Minister.

(2)  On the adoption of a water management plan by the Minister, the Minister must act consistently with the plan in undertaking duties under Parts 6 and 7 .

(3)  An Agency or council must, in performing functions or exercising powers under this Act, the Local Government Act 1993 or any other Act which may have an effect on a water resource to which a water management plan relates, act consistently with the plan.

37.   Application by water entity or landowners

(1)  [Section 37 Subsection (1) amended by No. 12 of 2004, s. 18, Applied:09 Jun 2004] Where a water management plan has been adopted under section 28 or an interim water management plan is in force, a water entity or a group of landowners may apply to the Minister for an order that the water entity or a proposed water entity is to be responsible for the administration of the whole or a part of the plan.

(2)  [Section 37 Subsection (2) amended by No. 12 of 2004, s. 18, Applied:09 Jun 2004] An application by landowners under subsection (1)  –

(a) is to be made jointly by persons who hold the majority of licences granted to take water from the water resource or water resources to which the plan relates; and

(b) is to recite an agreement by those persons to create a water entity.

(3)  An application under subsection (1) is to be in an approved form, is to be accompanied by the prescribed fee, if any, and is to include –

(a) full particulars of the water entity or proposed water entity; and

(b) details of the functions for which the water entity would be responsible; and

(c) proposed arrangements for the funding of the water entity’s administration; and

(d) such other information as the Minister may require for the purposes of this Act.

(4)  The Minister must give notice of an application under subsection (1)  –

(a) in the Gazette and at least once in a local newspaper; and

(b) to all licensees who may take water from the water resource or water resources to which the relevant water management plan relates.

(5)  The notice is to –

(a) include full details of the application; and

(b) invite written representations from any persons who may be affected by the application; and

(c) state a period of at least 28 days from the publication of the notice in the Gazette, during which the representations may be made and the address to which they are to be sent.

38.   Approval of application

(1)  Where, on an application under section 37 , the Minister is satisfied that approval of the application will assist in giving effect to the water management plan or in furthering the objectives of this Act, the Minister may, by order published in the Gazette, declare that the water entity or the proposed water entity is to be responsible for the administration of the whole or a part of the relevant water management plan.

(2)  [Section 38 Subsection (2) amended by No. 12 of 2004, s. 19, Applied:09 Jun 2004] The declaration may be subject to conditions consistent with the plan or may be without conditions and, where the application is made by landowners, the declaration is to be conditional on the creation of the proposed water entity.

(3)  Approval of an application under section 37(1) that relates to a water resource in a hydro-electric district may be given only with the agreement of the relevant electricity entity and that agreement –

(a) may not be unreasonably withheld; and

(b) may be subject to reasonable conditions imposed by the electricity entity.

(4)  If the agreement is subject to any such conditions, the Minister must include those conditions in any declaration that he or she makes under this section.

39.   Withdrawal of representation

(1)  A representation made under section 24 , 25 or 34 may be withdrawn, by notice in writing to the Secretary by the person who made it, at any time before the Secretary makes a recommendation to the Minister under section 26(d) or 34(4)(b) .

(2)  A representation made under section 37 may be withdrawn by notice in writing to the Secretary by the person who made it at any time before the Minister makes a declaration under section 38(1) .

(3)  A person who withdraws a representation under this section is taken, for the purposes of this Act, as having not made the representation.

40.   Notice of declaration

Within 14 days after making a declaration under section 38 , the Minister must give written notice of the declaration and of any rights of review or appeal under Part 14 to –

(a) the applicant; and

(b) the council or councils in the municipal area or areas of which a relevant water resource is situated; and

(c) if representations have been made in relation to the draft plan, any person who made them; and

(d) any relevant electricity entity referred to in section 38(3) .

41.   Notice of refusal of application

Within 14 days after refusing an application under section 37 , the Minister must give written notice of the refusal and of any rights of review or appeal under Part 14 to the applicant.

42.   Notice not required in certain circumstances

Where –

(a) a water management plan includes arrangements for a water entity to be responsible for the administration of the whole or a part of the plan; and

(b) the arrangements proposed in an application under section 37(1) are consistent with the plan –

a notice under section 37(4) is not required.

43.   Approval of application by Minister

Before making a decision on an application under section 37(1) , the Minister –

(a) must consider any written representations made under section 37(5) ; and

(b) may consult with any persons on the application.

44.   Powers of water entities

(1)  For the purpose of the administration of a water management plan by a responsible water entity –

(a) the entity may exercise any powers delegated under section 10 in accordance with any conditions imposed under section 38(2) ; and

(b) the entity may, with the approval of the Minister, impose fees on the licensees affected by the plan so as to recover the cost of its administration of the plan.

(2)  The fees may include separate components for the various activities arising from the administration of the plan and the water entity may differentiate between licensees in charging for the different components.

45.   Annual reports to Minister

(1)  During August in each year and at any other time when so required by the Minister, a responsible water entity must provide the Minister with a written report on its administration of a water management plan during the preceding period of 12 months.

(2)  The report is to include –

(a) a full financial statement of all matters relating to the water entity's administration; and

(b) details of all activities undertaken in discharging its responsibilities; and

(c) such other information as the Minister may require for the purpose of ensuring the due administration of the water management plan.

(3)  The Minister may require that a prescribed fee is to be paid by a responsible water entity on providing the report.

46.   Powers of Minister

For the purpose of ensuring the due administration of a water management plan, the Minister may –

(a) authorise the undertaking of surveys; and

(b) authorise the taking of measurements and samples of water and any other material which may affect the quality of water; and

(c) authorise the entry on land by persons approved by the Minister for any such purpose; and

(d) require the responsible water entity to provide the Minister with information relating to any activity arising from, or for the purpose of, the plan.

47.   Revocation of approval

(1)  In this section,

transfer day means the day on which a notice under subsection (2) takes effect.

(2)  Where a responsible water entity –

(a) fails to comply with a requirement to provide the Minister with the information relating to any activity arising from, or for the purpose of, a water management plan; or

(b) contravenes a condition to which its administration of the plan is subject; or

(c) otherwise fails to discharge its obligations under the plan –

the Minister may, by notice published in the Gazette, revoke the approval for the water entity to administer the plan.

(3)  The notice may provide for the substitution of the Minister or any suitable water entity as the authority to administer the relevant water management plan, but without otherwise affecting the plan.

(4)  On the revocation, the Minister may recover from the responsible water entity as a debt due to the Crown any expense actually and reasonably incurred by the Minister in –

(a) administering the plan as a result of the failure or contravention; or

(b) making good any damage done by the water entity.

(5)  A notice under subsection (2) may provide that –

(a) the property of the responsible water entity used in the administration of the water management plan vests in any other substituted water entity; and

(b) the functions, powers and obligations of the responsible water entity relating to that administration are transferred to the other water entity; and

(c) any legal proceedings relating to that administration pending immediately before the transfer day and which were instituted by, or against, the responsible water entity may be continued by or against the other water entity; and

(d) any legal proceedings relating to that administration by, or against, the responsible water entity to enforce a right that had accrued, and was in existence, immediately before the transfer day may be commenced by or against the other water entity; and

(e) a judgment or order of a court relating to that administration obtained before the transfer day by or against the responsible water entity may be enforced by or against the other water entity; and

(f) a document relating to that administration addressed to the responsible water entity may be served on the other water entity; and

(g) a contract relating to that administration made or entered into by the responsible water entity before the transfer day but not performed or discharged before that day is taken to have been made or entered into by the other water entity.

PART 5 - Rights in respect of Water

48.   Rights to take water

(1)  In this section –

casual use of land means lawful use by persons or stock not normally resident on land which adjoins a watercourse or lake from which water is taken and includes camping, recreational use and use by travelling livestock;

specified purpose means –

(a) a domestic purpose; or

(b) irrigation of a household garden; or

(c) stock watering; or

(d) firefighting; or

(e) drilling under section 168 of the Mineral Resources Development Act 1995 ;

tenement to which this section applies means –

(a) a riparian tenement; and

(b) land that would be a riparian tenement but for the existence of a Crown reserve not exceeding 20 metres in width between it and a watercourse or lake; and

(c) land that would be a riparian tenement but for the existence of a Crown reserve exceeding 20 metres in width between it and a watercourse or lake where the Secretary of the responsible department in relation to the Crown Lands Act 1976 has, in writing, permitted the occupier of the land to take water across the reserve.

(2)  Subject to this Act –

(a) a person who is an occupier of a tenement to which this section applies may take water from a watercourse or lake on, or adjoining, that tenement for a specified purpose; and

(b) a person may, in casual use of land, take water from a watercourse or lake on, or adjoining, that land for a specified purpose.

(3)  Subsection (2) does not confer any rights over a riparian Crown reserve but the Secretary of the responsible department in relation to the Crown Lands Act 1976 may grant an easement or licence over the reserve for taking water to the land to which a right conferred under this Part attaches.

(4)  [Section 48 Subsection (4) amended by No. 12 of 2004, s. 20, Applied:09 Jun 2004] [Section 48 Subsection (4) amended by No. 49 of 2002, s. 8, Applied:01 Mar 2003] An owner or occupier of land may take dispersed surface water from the land for any purpose.

(4A)  [Section 48 Subsection (4A) inserted by No. 12 of 2004, s. 20, Applied:09 Jun 2004] An owner or occupier of land may take groundwater from the land for any purpose unless –

(a) the land is situated in a groundwater area appointed under section 124A and the taking is contrary to an order made under that section; or

(b) the taking is contrary to a water management plan.

(5)  [Section 48 Subsection (5) amended by No. 12 of 2004, s. 20, Applied:09 Jun 2004] The amount of water which can be taken under subsection (2) or from a well under subsection (4A) and the methods of taking any such water may be prescribed by the regulations.

(6)  Nothing in this section is taken to affect any interest in land held by any person or any rights or obligations of an owner or occupier of land which exist otherwise than under this Part.

49.   Hydro-electric generation

Subject to this Act, a person who has lawful access to a watercourse or lake may use water from the watercourse or lake for the purpose of generating electricity if the use does not –

(a) [Section 49 Amended by No. 49 of 2002, s. 9, Applied:01 Mar 2003] cause material environmental harm or serious environmental harm or significant detrimental effects to other users; and

(b) contravene any other Act.

50.   Water management plan may require licence

A licence may be required to take water in accordance with this Part if a water management plan provides that a licence is required.

51.   Taking not to cause environmental harm

Nothing in this Part entitles a person to take water from a watercourse, lake or well if the taking would cause, either directly or indirectly, material environmental harm or serious environmental harm.

52.   Taking not to affect owner or occupier

A person who is not an owner or occupier of a tenement to which section 48 applies must not take water from a watercourse or lake if to do so would detrimentally affect the ability of any other such owner or occupier to exercise a right under subsection (2) of that section to take water from the watercourse or lake.

Penalty:  Fine not exceeding 20 penalty units and, in the case of a continuing offence, a further fine not exceeding 2 penalty units for each day during which the offence continues.

53.   Exceptions to general rights

Nothing in this Part entitles a person to take water –

(a) contrary to a water management plan, a licence, permission granted under section 90 or a notice under section 92(1) ; or

(b) in excess of the person's reasonable requirements.

PART 6 - Licensing and Allocation of Water

Division 1 - Licensing

54.   Licences

(1)  A person must not, without a licence, take –

(a) water from a watercourse, lake or well; or

(b) [Section 54 Subsection (1) amended by No. 49 of 2002, s. 10, Applied:01 Mar 2003] dispersed surface water.

(2)  This section does not apply to a person taking water –

(a) [Section 54 Subsection (2) amended by No. 12 of 2004, s. 21, Applied:09 Jun 2004] .  .  .  .  .  .  .  .  

(b) having been granted an exemption under section 11 ; or

(ba) [Section 54 Subsection (2) amended by No. 12 of 2004, s. 21, Applied:09 Jun 2004] under Part 5 where the taking is not contrary to a relevant water management plan or to an order appointing a groundwater area under section 124A ; or

(c) with permission granted under section 90 ; or

(d) [Section 54 Subsection (2) amended by No. 30 of 2005, s. 6, Applied:11 Jul 2005] directly from a dam or other works if the water in the dam or works has previously been taken in accordance with this Act; or

(e) [Section 54 Subsection (2) amended by No. 30 of 2005, s. 6, Applied:11 Jul 2005] under an irrigation right granted under the Irrigation Clauses Act 1973 from a watercourse which has been declared to be a water supply channel under section 192(1) .

(3)  A person may apply for a licence in accordance with section 62 or for a special licence under Division 6 .

(4)  A person who contravenes subsection (1) is guilty of an offence and is liable on summary conviction to a fine not exceeding 500 penalty units and, in the case of a continuing offence, a further fine not exceeding 50 penalty units for each day during which the offence continues.

55.   Authority of licence

A licence authorises the holder of the licence to take water in accordance with the licence and is subject to –

(a) any relevant water management plan; and

(b) any condition specified in the licence.

56.   Details of licence

(1)  A licence –

(a) is to specify the water resource from which the water is to be taken; and

(b) [Section 56 Subsection (1) amended by No. 49 of 2002, s. 11, Applied:01 Mar 2003] may be endorsed with a water allocation or water allocations expressed as provided by section 83 notwithstanding that all or part of the water allocation or water allocations may be temporarily transferred to another licensee under Division 4 ; and

(c) may, where the Minister considers it to be appropriate, specify the surety with which a water allocation can be expected to be available for taking; and

(d) may specify conditions under which the licensee may take water or the licence or a water allocation of the licence may be transferred under Division 4 ; and

(da) [Section 56 Subsection (1) amended by No. 12 of 2004, s. 22, Applied:09 Jun 2004] may specify conditions under which the licensee may undertake well works; and

(e) may specify periods after which the Minister may vary the conditions of the licence; and

(f) is to specify such other terms and conditions as may be prescribed.

(2)  Where a licence is endorsed with more than one water allocation, subsection (1) applies in respect of each allocation separately.

57.   Duration of licence

(1)  Unless revoked earlier, a licence remains in force for such period as the Minister determines and is endorsed on the licence.

(2)  A water allocation of a licence ceases to have effect on the expiration of the licence or on any earlier date specified in the licence.

58.   Restriction on use of allocation

[Section 58 Substituted by No. 49 of 2002, s. 12, Applied:01 Mar 2003]

(1)  Without limiting section 56 , the Minister may determine that a water allocation of a licence may be –

(a) taken from, or used on, only a specified area of land; or

(b) used only for a specified purpose; or

(c) used only to allow the taking of water into a specified dam or proposed dam.

(2)  Where a water allocation is determined under subsection (1)(c) to be used for the taking of water into a proposed dam or to increase the quantity of water to be taken into an existing dam, the allocation may be made conditional on the completion of –

(a) the construction of the proposed dam; or

(b) the dam works increasing the existing dam's capacity.

59.   Surety attaching to allocation of licence

For the purposes of section 56(1)(c) , the surety or sureties may be specified as a class or classes of surety common to all allocations of similar surety.

60.   Licence to be personal property

A licence, including the right to a water allocation endorsed on it, is the personal property of the licensee and is alienable in accordance with Division 4 or 6 and any other law relating to the passing of property.

61.   Notification of financial interest

(1)  A licensee must, within 10 days after becoming aware of any financial interest of another person in the licence or in a water allocation endorsed on the licence or in land to which the licence or water allocation relates, provide the Minister in writing with details of the interest.

(2)  A person is not taken to have a financial interest for the purposes of subsection (1) by reason only of the fact that he or she is a shareholder in, or a member of, a body corporate that holds the licence or owns the relevant land.

(3)  On receipt of notification under subsection (1) , the Minister must make a notation in the register to that effect.

(4)  If the Minister is satisfied, on notification in writing by a person, that he or she has a financial interest in a licence or water allocation or land to which a licence relates, the Minister must make a notation in the register to that effect.

(5)  Where the register includes a notation made under subsection (3) that a specified person has a financial interest in a licence or a water allocation of a licence, the Minister must, on written notification by that person that that interest no longer exists, remove that notation from the register.

(6)  Where the register includes a notation made under subsection (3) that a specified person has a financial interest in a licence or a water allocation of a licence, the Minister must, on written notification by that person that that interest has been varied, amend that notation in the register accordingly.

(7)  The requirement under subsection (1) to provide details relating to a financial interest in land to which a licence relates ceases to have effect on 30 June 2003.

(8)  A licensee who fails to provide the Minister with details of a financial interest as required by subsection (1) is guilty of an offence and is liable on summary conviction to a fine not exceeding 10 penalty units.

62.   Application for licence

An application for a licence is to be –

(a) in an approved form; and

(b) is to be accompanied by –

(i) the prescribed fee; and

(ii) where a water allocation of the licence is to be comprised wholly or partly of an allocation purchased from the Minister under section 85 , the amount agreed to be paid for the allocation; and

(iii) such other information as the Minister may require for the purposes of this Part.

63.   Approval of application

Except as provided by section 64 , the Minister must approve an application for a licence that –

(a) is in accordance with section 62 ; and

(b) is consistent with the objectives of this Act and any relevant water management plan; and

(c) could not reasonably be expected to lead to material environmental harm or serious environmental harm; and

(d) [Section 63 Amended by No. 49 of 2002, s. 13, Applied:01 Mar 2003] will not have a significant adverse impact on other persons taking water from the relevant water resource or on the commercial operations of a major user of water from that water resource.

64.   Refusal of application for a licence

The Minister may refuse to grant a licence if –

(a) it is not possible to endorse a water allocation on the licence consistently with any relevant water management plan or the objectives of this Act; or

(b) the Minister is satisfied –

(i) [Section 64 Amended by No. 49 of 2002, s. 14, Applied:01 Mar 2003] that the grant would have a significant adverse impact on any existing licensee or a person taking water under Part 5 or on the commercial operations of a major user of water from the relevant water resource; or

(ii) after consultation with the Director of Public Health, that the water to be taken under the licence is so contaminated that its use would create a risk to the health of people or that the taking or use of the water would contravene the Public Health Act 1997 or any guidelines in force under that Act; or

(iii) that the water to be taken under the licence is so contaminated that its use would create a risk to the health of animals; or

(iv) after consultation with the Director of Environmental Management, that the proposed taking or use of the water would contravene the EMPC Act; or

(c) the applicant –

(i) has been convicted of an offence under this Act; or

(ii) has accepted a water infringement notice.

65.   Notice of application for licence

(1)  This section applies to an application for a licence –

(a) where there is no water management plan for the water resource from which a water allocation of the licence is proposed to be taken; or

(b) where a relevant water management plan does not provide for the allocation of water under section 14(3)(a) ; or

(c) where the relevant water management plan requires that the application be advertised –

but does not apply to an application where the proposed water allocation is a water allocation of another licence.

(2)  The Minister must give notice of the application in a local newspaper and the notice is to –

(a) include details of the application, the relevant water resource, each proposed allocation, the purpose for which each proposed allocation will be used and such other information as the Minister may determine; and

(b) invite written representations from any person who may be affected by the application; and

(c) state a period of at least 14 days from the publication of the notice during which representations may be made and the address to which they are to be sent.

66.   Withdrawal of representation

(1)  A representation made under section 65(2) may, by notice in writing to the Minister, be withdrawn at any time before the Minister approves an application under section 63 or refuses an application under section 64 .

(2)  A person who withdraws a representation under subsection (1) is taken, for the purposes of this Act, as having not made the representation.

67.   Consideration of application

Before making a decision on an application to which section 65 applies, the Minister must have regard to any representations made in accordance with a notice under section 65(2) .

68.   Notification of decision

Within 7 days after approving an application under section 63 or refusing an application under section 64 , the Minister must give written notice of the approval or refusal and of any rights of review or appeal under Part 14 to –

(a) the applicant; and

(b) any person who has made a representation under section 65(2) .

69.   Variation of licences

(1)  The Minister may vary a licence as provided by this section.

(2)  The licence may be varied –

(a) with the written consent of the licensee and of any other person as required by subsection (3) ; or

(b) subject to subsection (3) , on application by the licensee in an approved form; or

(c) where the licence provides for times at which the conditions of the licence may be varied, at those times if the Minister determines that the variation is necessary or desirable to further the objectives of this Act; or

(d) if so provided by a water management plan; or

(e) if the Minister is authorised to do so under section 106 ; or

(f) in order to give effect to a reduction in a water allocation of the licence by the Minister under section 88 ; or

(g) on a transfer under Division 4 .

(3)  If, in the case of a variation under subsection (2)(a) or (b) , the register includes a notation that a person has a financial interest in the licence or a water allocation of the licence, the written consent of that person to the variation is required unless the effect of the variation is to increase the water allocation.

70.   Requirements for application to vary licence

An application under section 69(2)(b) is to be accompanied by –

(a) the prescribed fee; and

(b) where the variation consists of a variation of a water allocation of the licence, the amount required to be paid for the water allocation or the amount agreed to be paid for it under section 85 ; and

(c) such information as the Minister may require for the purposes of this Part.

71.   Notice of application to vary licence

(1)  This section applies to an application for the variation of a licence if the effect of the variation would be to increase the amount of water that may be taken from a water resource under a licence and if –

(a) the relevant water management plan requires that the application be advertised; or

(b) the Minister is of the opinion that the variation may have a significant effect on other users of water or the environment.

(2)  When considering an application to which this section applies, the Minister must, by notice published in a local newspaper, invite affected persons to make written representations to the Minister in respect of the application.

(3)  A notice under subsection (2) is to state –

(a) details of the application, the relevant water resource, each water allocation, the purpose for which each proposed allocation will be used and such other information relating to the application as the Minister may require for the purposes of this Part; and

(b) the name and address of the person to whom representations may be sent and the time by which they are to be received.

(4)  [Section 71 Subsection (4) inserted by No. 30 of 2005, s. 7, Applied:11 Jul 2005] A notice under subsection (2) is not required where –

(a) notification is given in a local newspaper of a public meeting to be held of persons holding licences for irrigation to discuss their requirements for water for irrigation and the Minister's intention to conduct a survey of the usage of water for irrigation; and

(b) the Minister is satisfied from evidence produced by those persons and the survey that the variation of a licence is necessary or desirable having regard to –

(i) the survey referred to in paragraph (a) ; and

(ii) the amount of water required to maintain any existing commercial enterprise at a specific time.

72.   Consideration of application to vary licence

Before making a decision on an application to which section 70 applies, the Minister must have regard to any representations made in accordance with a notice under section 71 .

73.   Approval of application to vary licence

Except as provided in section 74 , the Minister must approve an application for variation of a licence that –

(a) is in accordance with section 70 ; and

(b) is consistent with the objectives of this Act and any relevant water management plan; and

(c) could not reasonably be expected to lead to material environmental harm or serious environmental harm; and

(d) [Section 73 Amended by No. 49 of 2002, s. 15, Applied:01 Mar 2003] will not have a significant adverse impact on other persons taking water from the relevant water resource or on the commercial operations of a major user of water from that water resource.

74.   Refusal of application to vary licence

The Minister may refuse to approve the variation of a licence –

(a) on any ground specified in section 64 ; or

(b) [Section 74 Amended by No. 12 of 2004, s. 23, Applied:09 Jun 2004] .  .  .  .  .  .  .  .  

(c) if the licensee has not paid any fees payable under this Act.

75.   Notification of decision

Within 7 days after approving an application under section 73 or refusing it under section 74 , the Minister must give written notice of the approval or refusal and of any rights of review or appeal under Part 14 to –

(a) the applicant; and

(b) any person who has made a representation under section 71(2) .

76.   Withdrawal of representation

(1)  A representation made under section 71(2) may be withdrawn by notice in writing to the Minister at any time before the Minister approves the application under section 73 or refuses it under section 74 .

(2)  A person who withdraws a representation under subsection (1) is taken, for the purposes of this Act, as having not made the representation.

77.   Surrender of licences

(1)  Subject to subsection (2) , a licensee may apply to surrender his or her licence at any time by giving written notice to that effect to the Minister.

(2)  Where the register includes a notation that a person has a financial interest in the licence or a water allocation of the licence, the licence may not be surrendered without the written consent of that person.

(3)  The Minister must give written notice to the licensee and any person referred to in subsection (2) of his or her approval of the application.

(4)  On surrender, a water allocation of the licence vests in the Minister.

78.   Availability of copies of licences, &c.

The Minister must make copies of licences granted by the Minister available for inspection without charge and for purchase.

79.   Fees for licences

(1)  The Minister may charge a fee for the granting and holding of licences by a lump sum or periodical payments as may be prescribed by the regulations, which may differentiate between licensees in respect of –

(a) the place from which the water is taken; and

(b) the purpose for which the water is taken; and

(c) the time of the year at which the water is taken; and

(d) the surety of the licence; and

(e) the method by which the water is taken; and

(f) a water allocation of a licence; and

(g) such other matters as may be provided by the regulations.

(2)  The fees may include separate components for the various activities arising from the administration of the licence and the Minister may differentiate between licensees in charging for the different components.

80.   Renewal of licences

(1)  The holder of a licence may apply to the Minister for renewal of the licence.

(2)  The Minister must renew a licence if satisfied that –

(a) the applicant has paid the prescribed fee and all previous fees and charges payable in respect of the licence; and

(b) the applicant has complied with the conditions of the licence in the previous term of the licence; and

(c) the applicant is not disqualified from holding the licence; and

(d) renewal of the licence is consistent with the objectives of this Act and any relevant water management plan.

(3)  The Minister may refuse to renew a licence if satisfied that the applicant has been convicted of an offence under this Act.

(4)  If the Minister is not satisfied as mentioned in subsection (2) , the Minister may –

(a) renew the licence subject to any condition that the Minister considers appropriate; or

(b) refuse to renew the licence.

81.   Granting of licences on adoption of water management plan

(1)  This section applies to a person who before the adoption of a water management plan held a right to take water under Part 5 if the plan requires him or her to hold a licence for the taking of that water.

(2)  A person to whom this section applies –

(a) may, subject to a restriction or prohibition under section 92 , continue to take water without a licence –

(i) for a period of 3 months after the date of adoption of the relevant water management plan; or

(ii) if he or she applies for a licence within that period, until the application is granted or refused; and

(b) is entitled to have endorsed on the licence, without payment of a fee, a water allocation determined by the Minister in accordance with the relevant water management plan.

82.   Offence for breach of licence, &c.

(1)  A licensee must not –

(a) take water in excess of a relevant allocation endorsed on the licence; or

(b) contravene a condition of the licence; or

(c) use water taken under the licence for a purpose that is not specified in the licence.

(2)  A licensee who contravenes subsection (1) is guilty of an offence and is liable on summary conviction to a fine not exceeding 500 penalty units and, in the case of a continuing offence, a further fine not exceeding 50 penalty units for each day during which the offence continues.

Division 2 - Allocation of water

83.   Method of fixing water allocation

For the purposes of this Act –

(a) a water allocation may be fixed by specifying the volume of water that may be taken and used or by reference to the purpose for which the water may be taken and used or in any other manner; and

(b) a water allocation may be specified as being a water allocation of another licence.

84.   Allocation of water

(1)  A water allocation, or a component of a water allocation, of a licence may be granted by the Minister in accordance with subsection (2) .

(2)  The Minister must allocate water in accordance with any relevant water management plan or, where there is no relevant water management plan, so as to give effect to the objectives of this Act.

(3)  The Minister may allocate water subject to conditions and those conditions, or such of them as the Minister specifies, are taken to be conditions of the licence to which a water allocation is for the time being attached.

(3A)  [Section 84 Subsection (3A) inserted by No. 49 of 2002, s. 16, Applied:01 Mar 2003] Without limiting subsection (3) , a condition may provide that, where a water allocation is granted for the taking of water into a dam in respect of which a permit for the relevant dam works is granted under section 157 , the allocation expires if the permit lapses under section 159(8) .

(4)  A water allocation, or a component of a water allocation, of a licence may be transferred, if the licence so provides and the Minister approves –

(a) in the case of a special licence, under Division 6 ; or

(b) in any other case, under Division 4 .

85.   Payment for allocation

(1)  The Minister may charge a fee for the granting of a water allocation.

(2)  The Minister may sell a water allocation by public auction or tender to any person who holds a licence.

(3)  The purchaser of a water allocation under subsection (2) must hold a licence before he or she is entitled to the allocation.

(4)  The Minister may refuse to accept a bid or tender for a water allocation under subsection (2) from a person who has been convicted of an offence against this Act.

86.   Requirement for additional information

(1)  [Section 86 Subsection (1) amended by No. 12 of 2004, s. 24, Applied:09 Jun 2004] Before allocating water, the Minister may, by notice in writing served on the applicant, direct that an assessment of the effect of allocating the water be made by a person approved by the Minister.

(1A)  [Section 86 Subsection (1A) inserted by No. 12 of 2004, s. 24, Applied:09 Jun 2004] A notice under subsection (1) may require that –

(a) the assessment is to be verified by a person approved by the Minister or by a person or class of persons holding specified qualifications; or

(b) the assessment is to be provided in a specified form; or

(c) the assessment includes a statement as to how the water is intended to be used so as to meet the relevant objectives of this Act.

(2)  The Minister may require that all or part of the cost of providing the assessment is to be included in the fee charged for the granting of a water allocation under section 85(1) .

87.   Re-allocation of water

(1)  The Minister may re-allocate all or part of a water allocation that –

(a) has been forfeited to the Minister on cancellation of the licence on which it was endorsed; or

(b) is an allocation of a licence which has been suspended, in which case the re-allocation may not be for a period longer than the period of suspension.

(2)  Any money received by the Minister following the re-allocation is to be applied as follows:

(a) firstly, in paying the costs of the re-allocation and any other costs incurred in any cancellation or suspension referred to in subsection (1) ;

(b) secondly, in discharging any liability of the former licensee under this Act to the Minister or a water entity;

(c) thirdly, in discharging any liability of the former licensee that is secured by a charge over the allocation;

(d) fourthly, in payment to the former licensee.

(3)  If the former licensee cannot be found after reasonable enquiries as to his or her whereabouts, any amount payable to him or her is to be dealt with as unclaimed money under the Unclaimed Moneys Act 1918 .

88.   Reduction of water allocations

(1)  Where necessary to give effect to a water management plan, the Minister may reduce a water allocation of a licence, by notice in writing given to the licensee and, where the register includes a notation that a person has a financial interest in the licence or a water allocation of that licence, to that person.

(2)  A reduction under subsection (1) is to be made in accordance with a relevant water management plan.

(3)  A notice under subsection (1) must include notification of any rights of review or appeal under Part 14 .

(4)  The reduction is to take effect on the day specified in the notice under subsection (1) .

89.   Compensation for reduction of water allocation

(1)  A licensee whose water allocation is reduced under section 88(1) is entitled to compensation for any liability incurred or loss sustained unless –

(a) [Section 89 Subsection (1) amended by No. 12 of 2004, s. 25, Applied:09 Jun 2004] the reduction is necessary to ensure that the total quantity of water permitted to be taken from the relevant water resource does not prevent the achievement of the water regime that best gives effect to the environmental objectives referred to in section 14(2)(a) ; or

(b) the licensee consents to the reduction.

(2)  In default of an agreement between the Minister and the licensee, the amount of compensation is to be determined in accordance with the Commercial Arbitration Act 1986 .

(3)  For the purposes of this section, any compensation is to be paid out of the Consolidated Fund without further or other appropriation than this section.

(4)  In determining the amount of compensation under subsection (1) , any benefit to the licensee arising from the abrogation or reduction is to be taken into account.

90.   Temporary water allocations

(1)  A person may, with the written permission of an authorised officer and on payment of the prescribed fee, take water from a water resource for a period not exceeding 3 months if the taking of water –

(a) is consistent with any relevant water management plan; and

(b) does not adversely affect the taking of water by other persons with a right to take water from the water resource; and

(c) does not cause material environmental harm or serious environmental harm.

(2)  The Minister may give directions to an authorised officer as to the exercise of powers under subsection (1) .

(3)  Permission under subsection (1) may be given by way of a notice published in a local newspaper or by any other method that the authorised officer considers appropriate –

(a) to a class of persons; or

(b) for the taking of water in a particular manner.

(4)  An authorised officer may not give permission under subsection (1) for the taking of water from a water resource within a hydro-electric district without the agreement of the relevant electricity entity.

(5)  The agreement –

(a) may not be unreasonably withheld; and

(b) may be subject to reasonable conditions imposed by the electricity entity –

and, if the agreement is subject to conditions, the authorised officer must include those conditions in any permission given under this section.

Division 3 - Restrictions in case of inadequate water

91.   Inadequate supply or overuse of water

(1)  This Division applies in the following circumstances:

(a) if the rate at which water is taken from a watercourse, lake, groundwater area or well –

(i) is such that the quantity of water available can no longer meet the demand or there is a risk that the available water will not be sufficient to meet future demand; or

(ii) is adversely affecting, or is likely to adversely affect, the quality of the water in the watercourse, lake, groundwater area or well; or

(iii) is having a serious effect on another watercourse, lake or groundwater area that depends on water from the first-mentioned watercourse, lake or groundwater area for replenishment;

(b) if the rate at which water is taken from a well or groundwater area is such that an underground aquifer is likely to collapse or suffer any other damage;

(c) [Section 91 Subsection (1) amended by No. 49 of 2002, s. 17, Applied:01 Mar 2003] if the rate at which dispersed surface water is taken –

(i) [Section 91 Subsection (1) amended by No. 49 of 2002, s. 17, Applied:01 Mar 2003] is such that the dispersed surface water available can no longer meet the demand; or

(ii) [Section 91 Subsection (1) amended by No. 49 of 2002, s. 17, Applied:01 Mar 2003] is having a serious effect on a watercourse or lake, or the level of water in an underground aquifer, that depends on the dispersed surface water for replenishment;

(d) if the rate at which, or the manner in which, water is taken from a water resource is causing, or is likely to cause, damage to ecosystems that depend on water from the water resource.

(2)  In determining the demands on available water for the purposes of subsection (1) , the need for water on the part of the ecosystems that depend on water from the water resource concerned must be taken into account.

92.   Notice of water restrictions

(1)  Where a circumstance mentioned in section 91 occurs, the Minister may, by notice published in a local newspaper or by notice served personally or by post on a person, prohibit or restrict the taking of water from a water resource.

(2)  The notice –

(a) takes effect at a time that is specified in the notice for that purpose; and

(b) remains in force for such period not exceeding 12 months as is specified in the notice unless it is revoked under section 94(4) .

(3)  If a case of urgent necessity arises from a circumstance mentioned in section 91 , a notice under subsection (1) may be given by radio, television or telephone but a further notice must then be given in accordance with that subsection as soon as practicable.

(4)  A person who contravenes a notice under this section is guilty of an offence.

Penalty:  For breach of this subsection, fine not exceeding 500 penalty units and, in the case of a continuing offence, a further fine not exceeding 50 penalty units for each day during which the offence continues.

93.   Form of water restrictions

A notice under section 92(1) may, without limitation –

(a) require the removal or modification of the means by which water can be taken from a watercourse, lake or well; or

(b) specify conditions subject to which water may be taken from a watercourse, lake or well; or

(c) specify any action to be taken to remove or reduce the damage or the risk of damage mentioned in section 91(1)(d) .

94.   Restrictions on taking of water

(1)  Where a notice under section 92(1) reduces or restricts the quantity of water that may be taken by a person, the Minister must reduce or restrict that taking –

(a) in accordance with any relevant water management plan; and

(b) in the case of water being taken under a special licence, only after –

(i) consulting with the special licensee; and

(ii) taking into account any submissions made by the special licensee; and

(iii) first reducing the taking of water by persons having rights of lesser surety than that of the special licence.

(2)  Where there is no relevant water management plan, the Minister must, in reducing or restricting the taking of water –

(a) give first preference to –

(i) rights under Part 5 for the taking of water for domestic purposes, consumption by livestock or firefighting; and

(ii) rights of licensees for the taking of water for domestic purposes or for consumption by livestock where the licence is endorsed with a condition that this subsection applies to the licence; and

(iii) the rights of councils to take water as mentioned in clause 12(4)(a) of Schedule 4 ; and

(b) give second preference to the needs of ecosystems dependent on the water resource; and

(c) give third preference to rights of licensees granted a licence by way of replacement under clause 10 of Schedule 4 ; and

(d) give fourth preference to rights of special licensees; and

(e) give fifth preference to rights under Part 5 for the taking of water otherwise than for domestic purposes, consumption by livestock or firefighting; and

(f) reduce or restrict the taking of water under authorisations that are not referred to in paragraph (a) , (b) , (c) , (d) or (e) , having regard to the relative sureties of the water allocations of any relevant licences and the purposes for which the water is taken.

(3)  If the owner or occupier of land contravenes a requirement of a notice under section 92  –

(a) the Minister may authorise a person to enter on the land and take the action specified in the notice and such other action as the Minister may require for the purposes of this Act; and

(b) the Minister's costs actually and reasonably incurred in so doing are a debt due by the owner or occupier to the Minister.

(4)  Where a notice has been published under section 92 , the Minister may vary or revoke the notice by another notice published in a local newspaper.

(5)  Where the Minister has served notice on a person under section 92 , the Minister may vary or revoke the notice by a subsequent notice served on that person.

Division 4 - Transfer of licences and water allocations

95.   Transfer of licences and water allocations

(1)  [Section 95 Subsection (1) amended by No. 48 of 2002, s. 4, Applied:01 Jan 2000] Subject to this Division and the conditions to which a licence is subject under section 56 or 116 , a licensee may transfer –

(a) the licence (including any water allocation) to another person with the approval of the Minister; or

(b) a water allocation of the licence to the Minister or, with the approval of the Minister, to another person.

(2)  A transfer of a licence or water allocation may be made only under this section, section 103 , 120 or 121 .

(3)  [Section 95 Subsection (3) amended by No. 12 of 2004, s. 26, Applied:09 Jun 2004] The transfer of a licence or water allocation under subsection (1) may be conditional and may also be absolute or for a limited period.

(4)  A person who does not hold a licence and who proposes to receive a water allocation by a transfer under subsection (1)(b) must, on applying for the transfer, also apply to the Minister for a licence and, on approval by the Minister, the transferred allocation becomes an allocation specified on that licence.

(5)  Where a transfer under this section is for a limited period, the transfer of a water allocation of a licence between licensees is to be effected by –

(a) an endorsement on the transferring and receiving licences by the Minister, including a licence granted under subsection (4) ; or

(b) the grant of a fresh licence to the transferee.

(6)  [Section 95 Subsection (6) amended by No. 49 of 2002, s. 18, Applied:01 Mar 2003] [Section 95 Subsection (6) amended by No. 48 of 2002, s. 4, Applied:01 Jan 2000] Subject to section 121(3) , where a transfer of a licence under this section is absolute, the relevant licences are to be cancelled and fresh licences issued as the Minister may direct.

(7)  Where a transfer under this section is for a limited period –

(a) a licence that has been transferred is taken to revert to the transferor when the period expires; and

(b) a water allocation that has been transferred is taken to revert to the transferor's licence when the period expires.

96.   

[Section 96 Repealed by No. 12 of 2004, s. 27, Applied:09 Jun 2004] .  .  .  .  .  .  .  .  

97.   Application for transfer of licence or water allocation

(1)  An application to the Minister for approval of the transfer of a licence or for the variation of a licence on the transfer of a water allocation –

(a) is to be in an approved form; and

(b) is to be accompanied by the prescribed fee.

(2)  [Section 97 Subsection (2) amended by No. 12 of 2004, s. 28, Applied:09 Jun 2004] Except as provided in section 98 , the Minister must approve an application for transfer that –

(a) is in accordance with subsection (1) ; and

(b) is consistent with the objectives of this Act and any relevant water management plan; and

(c) could not reasonably be expected to lead to material environmental harm or serious environmental harm; and

(d) will not have a significant adverse impact on other persons taking water from the relevant water resource; and

(e) if so required, is accompanied by the evidence referred to in section 104 .

97A.   Transfers from dams or from or into tributaries

[Section 97A Inserted by No. 12 of 2004, s. 29, Applied:09 Jun 2004] The Minister may approve the transfer of a licence or a variation of a licence on the transfer of a water allocation in any of the following cases:

(a) where water is released from a dam into, and is conveyed by, a watercourse;

(b) if the water resource specified in the licence is a watercourse –

(i) where the proposed transfer is from the watercourse to a tributary of that watercourse; or

(ii) where the proposed transfer is from a tributary to the larger watercourse into which it flows.

98.   Refusal of application for transfer

(1)  The Minister may refuse to grant approval for the transfer of a licence or water allocation of a licence –

(a) if the proposed transfer is not consistent with a relevant water management plan or the objectives of this Act; or

(b) if the Minister is satisfied that the transfer would have a significant adverse impact on any licensee or a person taking water under Part 5 ; or

(c) if the proposed taking or use of water may contravene the EMPC Act; or

(d) if either the proposed transferor or transferee has been convicted of an offence against this Act or has accepted a water infringement notice; or

(e) [Section 98 Subsection (1) amended by No. 12 of 2004, s. 30, Applied:09 Jun 2004] .  .  .  .  .  .  .  .  

(f) if either the proposed transferor or transferee has not paid any fee or other amount payable under this Act.

(2)  [Section 98 Subsection (2) omitted by No. 12 of 2004, s. 30, Applied:09 Jun 2004] .  .  .  .  .  .  .  .  

99.   Notification of decision

(1)  Within 7 days after approving an application under section 97(2) or refusing an application under section 98 , the Minister must give written notice of the decision and of any rights of review or appeal under Part 14 to the applicant.

(2)  Where an application is approved subject to conditions under section 101 , the notice is to state those conditions.

100.   Withdrawal of application

(1)  In addition to the rights to withdraw an application under this Division, an applicant for a transfer may, on giving 7 days' notice in writing to the Minister, withdraw the application at any time before it is approved.

(2)  On receipt of the notice, the Minister must repay any fee received from the applicant under section 97(1)(b) , less any expenses incurred by the Minister in dealing with the application until receipt of the notice.

101.   Power to impose conditions on transfer

(1)  The Minister may approve a transfer subject to conditions if satisfied that they are required to give effect to section 97(2) .

(2)  Without limitation, the conditions may include –

(a) a reduction in a water allocation of the transferred licensee; and

(b) in the case of an application for the transfer of part of a water allocation of a licence to another licensee, a requirement that a water allocation of the receiving licence be a quantity fixed by the Minister that is less than the allocation of the transferring licensee; and

(c) a variation of any condition of either or both of the licences.

(3)  Where, following the transfer of a licence or part of the water allocation of a licence, it is intended that the water will be taken from a different part of the water resource, the Minister may exercise his or her powers under this section –

(a) to ensure that the demand for water from the part of the water resource from which the water is to be taken does not prejudice other licensees by exceeding the availability of water in that part of the water resource; or

(b) to reflect the loss to the water resource of part of the water to which the transferred licence or water allocation relates by reason of evaporation or any other cause as the water flows to the part of the resource from which it is to be taken.

(4)  Where the Minister has notified the applicant in writing that he or she intends to vary a water allocation or the conditions of a licence under this section, the applicant may withdraw the application within 7 days by giving a notice in writing to the Minister to that effect.

102.   Requirement for additional information before approving transfer

(1)  Before granting an application, the Minister may serve a notice in writing on the applicant requiring him or her to provide additional information relating to the effect of allocating the water as proposed by the application.

(2)  A notice under subsection (1) may require that –

(a) [Section 102 Subsection (2) amended by No. 12 of 2004, s. 31, Applied:09 Jun 2004] the information is to be verified by a person approved by the Minister or by a person or class of persons holding specified qualifications; and

(b) [Section 102 Subsection (2) amended by No. 12 of 2004, s. 31, Applied:09 Jun 2004] the information is to be provided in a specified form; and

(c) [Section 102 Subsection (2) amended by No. 12 of 2004, s. 31, Applied:09 Jun 2004] the information includes a statement as to how it is intended that the water will be used so as to meet the relevant objectives of this Act.

(3)  The Minister may require that all or part of the cost of providing the additional information is to be included in the fee charged under section 97(1)(b) .

103.   Temporary transfers

(1)  A person who is not a licensee may apply to the Minister in an approved form for a temporary transfer of a water allocation of a licence.

(2)  The application –

(a) is to be accompanied by the prescribed fee; and

(b) is not subject to section 95(4) .

(3)  Where the Minister is satisfied that a temporary transfer of a water allocation is necessary to relieve a significant water shortage, the Minister may, in writing, approve the transfer for a period not exceeding 21 days.

(4)  The approval may be granted subject to such conditions as the Minister thinks fit having regard to the objectives of this Act and any relevant water management plan and, without limitation, a condition may limit the period before which a second or subsequent temporary transfer may be made to the applicant.

(5)  A transfer under this section may be refused for the same reasons that a transfer may be refused under section 98 .

(6)  A temporary transfer of a water allocation is taken to revert to the transferor's licence on the expiration of the period of the transfer.

104.   Consent of parties with financial interest

(1)  Where the register includes a notation that a person has a financial interest in a licence or a water allocation of a licence, the holder of the licence must provide written evidence to the Minister that that person consents to the transfer of the licence or all or part of a water allocation of that licence under this Division.

(2)  Subsection (1) does not apply to a temporary transfer under section 103 .

105.   Endorsement and record of dealings

On a transfer under this Division, the Minister must –

(a) endorse on a licence the name and address of a person to whom the licence has been transferred; and

(b) in the case of the transfer of a water allocation of a licence, endorse on both relevant licences such particulars as he or she thinks fit relating to the transfer.

Division 5 - Breach of licence

106.   Cancellation, &c., of licence on conviction for offence

(1)  On conviction of a licensee for an offence against section 82 or section 92(4) which has resulted in a significant adverse impact on any other person or material environmental harm or serious environmental harm, a court may cancel the licence or suspend it for such period as it thinks fit.

(2)  If the demerit points allocated to a licence under Division 2 of Part 13 exceed the prescribed number, the Minister may, on giving 7 days' written notice to the licensee of his or her intention to do so, cancel or suspend the licence in accordance with the regulations.

(3)  If –

(a) a licensee has been convicted of an offence under the EMPC Act; and

(b) the Minister is satisfied that the environment of the water resource to which the licence relates has been detrimentally affected by the offence –

the Minister may cancel, suspend or vary the licence on giving 7 days' written notice to the licensee of his or her intention to do so.

(4)  The Minister may –

(a) suspend a licence where the licence fee payable under section 79 is not paid within 60 days after the due date; or

(b) cancel a licence where the licence fee payable under section 79 is not paid within 120 days after the due date –

on giving 7 days' written notice to the licensee of his or her intention to do so.

(5)  Where the register includes a notation that a person has a financial interest in a licence that has been cancelled, suspended or varied, the Minister must, in writing, notify that person of the cancellation, variation or suspension at least 7 days before it takes effect.

(6)  Where a suspension or cancellation is proposed under subsection (4) , the notice is to specify a period of 30 days during which a person having a financial interest in the licence may pay the outstanding licence fee, in which case the proposed suspension or cancellation will have no effect.

(7)  Where a cancellation or suspension for a period exceeding 30 days –

(a) has been imposed under subsection (1) ; or

(b) is proposed under subsection (2) or (3)  –

the notice is to specify a period of 30 days during which a person having a financial interest in the licence or a water allocation of the licence may apply to the Minister for a transfer of the licence or the relevant water allocation under Division 4 on such conditions as the Minister may require for the purposes of this Part.

(8)  Where the Minister approves an absolute transfer under subsection (7) , the licence is cancelled on completion of the transfer.

107.   Effect of cancellation of licence on water allocation

Except as provided by section 106(7) , a water allocation of a licence that has been cancelled under this Division or any other provision of this Act is forfeited to the Minister.

Division 6 - Special licences

108.   Application of Division

If a provision of this Division is inconsistent with any other provision of this Act, the provision of this Division prevails.

109.   Special licences

(1)  A special licence may be granted in accordance with this Division with an endorsement that this Division applies to the licence.

(2)  Except as provided by this Division, a special licensee is subject to this Act.

110.   Effect of special licences

A special licence is to specify the water allocation applicable to it and –

(a) the licence is to be used for the purposes referred to in section 115 ; and

(b) the licence is for a specified term not exceeding 99 years; and

(c) except in accordance with section 116(3) , the licence may not be varied and the water allocation of the licence may not be reduced; and

(d) the licence may not be suspended or cancelled except in accordance with section 117 ; and

(e) an application for renewal of the licence may be made at any time within 10 years before the expiry of that licence.

111.   Surety of special licences

(1)  A special licence confers a paramount surety against all persons except for –

(a) rights under Part 5 for the taking of water for domestic purposes, consumption by livestock or firefighting; and

(b) rights of licensees for the taking of water for domestic purposes or for the consumption by livestock where the licence is endorsed with a condition that section 94(2)(a)(ii) applies to the licence; and

(c) the rights of councils to take water as mentioned in clause 12(4)(a) of Schedule 4 ; and

(d) the essential needs of ecosystems dependent on the relevant water resource; and

(e) the rights of licensees granted a replacement licence under clause 10 of Schedule 4 .

(2)  Where more than one special licence confers a right to take water from a particular water resource, the licences may contain conditions relating to the relative sureties of the water allocations of the licences.

(3)  For the purposes of sections 88(1) and 94(2) , the Minister must consult with the special licensees and take account of the relative sureties of the water allocations of the special licences.

(4)  Where –

(a) the relative sureties of the water allocations of the special licences are not specified in the licences; and

(b) the exercise of powers under section 88 or 94 may have an adverse effect on one or more of the special licensees –

the Minister must consult with the licensees and obtain the approval of the Advisory Committee before exercising any of those powers.

112.   Effect of water management plan on special licence

Where –

(a) a water management plan relates to, affects or purports to relate to or affect any of the rights of a special licensee; and

(b) the implementation of any provision of the plan would require a variation of the special licence –

the special licensee is not bound by that provision unless the licence is specifically varied under section 116 .

113.   Fees for special licences

The Minister may charge a fee for the granting and holding of a special licence by a lump sum or periodical payment but, except as may be agreed between the special licensee and the Minister, the fee is to be limited to the recouping of the costs actually and reasonably incurred by the Minister in administering the special licence.

114.   Advisory Committee

For the purposes of this Division, an Advisory Committee is established comprising –

(a) the Minister having the administration of this Act; and

(b) the Treasurer; and

(c) the Minister administering the Electricity Supply Industry Act 1995 ; and

(d) the Minister administering the EMPC Act; and

(e) the Minister administering the Hydro-Electric Corporation Act 1995 ; and

(f) the Minister administering the Inland Fisheries Act 1995 ; and

(g) the Minister administering the Tasmanian Development Act 1983 .

115.   Grant of special licences

(1)  Where a body corporate –

(a) intends to use water for the purpose of the generation of an annual average of at least 400 gigawatt hours of electricity or for purposes reasonably incidental to that purpose; and

(b) has demonstrated its capacity to do so –

the body corporate may apply to the Minister for the grant of a special licence under this Division.

(2)  A special licence must be granted on an application under subsection (1) if the Advisory Committee is satisfied that it would be consistent with the objectives of this Act to do so.

(3)  For the purposes of this section, the Advisory Committee must determine any conditions to be imposed –

(a) in order to protect the rights of existing users of water from the relevant water resource; and

(b) in order to meet the needs for water of ecosystems that depend on the relevant water resource, having particular regard to the quantity of water needed and the times at which, or the periods during which, those ecosystems will need that water.

(4)  A special licence may also be granted for a specified purpose on application in writing by a proposed licensee where the Advisory Committee is satisfied that it would be consistent with the objectives of this Act to do so and the licence is to be subject to such conditions as the Committee may determine.

116.   Conditions of special licences

(1)  Except as provided by this Division and without derogating from a condition imposed under section 115 , a special licence is subject to such conditions as may be agreed by the Minister and the special licensee.

(2)  The conditions of a special licence may be varied only in accordance with this Division.

(3)  Subject to subsection (4) , the Minister may, by notice in writing given to a special licensee, vary a condition to which the licence is subject –

(a) with the agreement of the special licensee; or

(b) without that agreement, if the Advisory Committee so recommends –

but the variation is not to take effect until there is an agreement as to any compensation payable or the amount of compensation is referred to arbitration in accordance with the Commercial Arbitration Act 1986 .

(4)  Where a variation proposed under subsection (3) may have an adverse effect on another special licence, the Minister must consult with the other special licensee before making the variation.

(5)  If the Minister varies a condition of a special licence that requires a consequential variation to another special licence or results in a variation of a condition of that other licence, the resultant variation is taken to be a variation under subsection (3) .

117.   Suspension or cancellation of special licences

(1)  The Minister may not suspend or cancel a special licence except with the approval of a resolution passed by both Houses of Parliament.

(2)  For the purpose of subsection (1) , a House of Parliament is taken to have approved the resolution if a copy of it has been laid on the table of that House and –

(a) the resolution is approved by that House; or

(b) at the expiration of 10 sitting days of that House after the copy was laid on the table of that House, no motion to disallow the resolution has been passed.

(3)  For the purposes of this section, where a motion to disallow a provision of a resolution is passed by a House of Parliament –

(a) the motion has the effect of annulling only that provision; and

(b) the remainder of the resolution is taken to be approved by that House.

118.   Compensation for liability incurred by special licensee

(1)  If –

(a) a special licensee suffers damage, is required to pay compensation or otherwise incurs a liability by reason of –

(i) a variation under section 116(3)(b) ; or

(ii) a cancellation or suspension under section 117 where the licensee is not in material default of a condition of the licence; or

(b) the water allocation of a special licence is reduced without the consent of the special licensee –

the special licensee is entitled to compensation to be paid by the Minister and, in default of agreement, the amount of compensation is to be determined in accordance with the Commercial Arbitration Act 1986 .

(2)  For the purposes of subsection (1)  –

(a) compensation is to be paid from the Consolidated Fund without further or other appropriation than this section; and

(b) in default of agreement by the Minister and the special licensee, the arbitrator is to be nominated by the president for the time being of the Australian Centre for International Commercial Arbitration.

119.   Renewal of special licences

(1)  The Minister must renew a special licence granted under section 115(2) within one year after receiving an application for renewal and in any event not later than the expiry of the special licence.

(2)  The Minister may, with the approval of the Advisory Committee and in accordance with section 116 , impose conditions on a renewal under subsection (1) in addition to any conditions to which the special licence is subject.

(3)  On receiving an application for renewal of a special licence granted under section 115(4) , the Minister may –

(a) with the approval of the Advisory Committee, renew the special licence; and

(b) after consulting with the Committee, vary or impose conditions on the licence in addition to any conditions to which it is subject.

(4)  A variation or imposition of conditions under subsection (3) is not a variation under section 116 .

120.   Transfer of special licences

(1)  The holder of a special licence may apply to the Minister for the transfer of the licence to another person to whom a special licence may be granted under section 115 .

(2)  The Minister must consult with the Advisory Committee before considering the application.

(3)  The Minister must approve the transfer unless it would be contrary to the objectives of this Act to do so.

121.   Transfer of water allocations

[Section 121 Substituted by No. 48 of 2002, s. 5, Applied:01 Jan 2000]

(1)  A special licensee may transfer the water allocation of the special licence to any person without any approval being required if –

(a) the licence is endorsed with a statement that this section applies to the licence; and

(b) the water allocation is to be taken from a water resource specified in the licence for the purposes of this section or from a water resource situated in an area so specified.

(2)  [Section 121 Subsection (2) amended by No. 12 of 2004, s. 32, Applied:09 Jun 2004] Except as provided in subsection (1) , Division 4 , other than section 95(6) , applies to the transfer of a water allocation of a special licence.

(3)  Where a transfer of a water allocation of a special licence is absolute, the relevant licences are taken to be varied accordingly.

(4)  A person who does not hold a licence and who receives a water allocation by a transfer under subsection (1) must, before using the allocation, obtain a licence in which the water allocation is specified.

(5)  The Minister may issue a licence in which a water allocation transferred under subsection (1) is the only water allocation specified.

(6)  On a transfer under subsection (1) , a special licensee must provide the Minister, within 14 days and in writing, with full particulars of the transfer.

Penalty:  Fine not exceeding 10 penalty units.

(7)  This section does not apply to the transfer of a water allocation by the Hydro-Electric Corporation where the transferred water is to be taken for irrigation unless the Advisory Committee, by notice published in the Gazette, determines otherwise.

(8)  The Advisory Committee may make a determination in respect of a particular water allocation or water allocations of a particular type.

(9)  A notice under subsection (7) is not a statutory rule for the purposes of the Rules Publication Act 1953 .

122.   Existing rights of water users to be considered

For the purposes of determining whether section 121 is to apply to a special licence or of the exercise of any other powers under this Division, the Minister and the Advisory Committee must have regard to any right or rights of a person to take or use water as conferred by this Act in respect of any relevant water resource.

123.   Breach of licence

A special licensee must not –

(a) take water in excess of the water allocation endorsed on the special licence; or

(b) fail to comply with any condition of that licence.

Penalty:  Fine not exceeding 2 500 penalty units and, in the case of a continuing offence, a further fine not exceeding 50 penalty units for each day during which the offence continues.

PART 7 - Wells

[Part 7 Heading amended by No. 12 of 2004, s. 33, Applied:09 Jun 2004]

Division 1 - Wells

124.   Application of Division to certain wells

A provision of this Division does not apply to, or in respect of, a well of a class which the Minister declares by order published in the Gazette to be excluded from the operation of that provision.

124A.   Appointment of groundwater area

[Section 124A Inserted by No. 12 of 2004, s. 34, Applied:09 Jun 2004]

(1)  The Minister may, by order published in the Gazette, appoint, name and define a groundwater area.

(2)  The order may provide that groundwater may not be taken from that groundwater area without the authority of a licence and the order may have effect either generally or by reference to –

(a) a class of persons seeking to take groundwater; or

(b) the amount of groundwater taken; or

(c) the purpose for which it is taken; or

(d) such other matters as the Minister considers expedient to give effect to the objectives of this Act.

(3)  The order may provide that the whole or specified provisions of the order will not come into operation until a date specified in the order.

124B.   Notice of appointment of groundwater area

[Section 124B Inserted by No. 12 of 2004, s. 34, Applied:09 Jun 2004]

(1)  Before appointing a groundwater area, the Minister must, by notice published in a local newspaper, invite written representations from any person who may be affected by the appointment.

(2)  The notice is to state –

(a) details of the appointment, the relevant water resource and such other information as the Minister considers desirable for the purposes of this Act; and

(b) the name and address of a person to whom representations may be sent and the time before which they are to be received.

(3)  Before making an appointment under this section, the Minister must have regard to any representations received.

125.   Work relating to wells

(1)  [Section 125 Subsection (1) amended by No. 12 of 2004, s. 35, Applied:09 Jun 2004] The Minister may, by order published in the Gazette, issue a code of practice to be followed in respect of work relating to wells.

(2)  [Section 125 Subsection (2) amended by No. 12 of 2004, s. 35, Applied:09 Jun 2004] The regulations may provide for the accreditation of, and standards of competency for, persons undertaking work relating to wells which may differentiate between different types of work and different locations.

126.   Well orders

(1)  Notwithstanding any other provision of this Division, where the Minister is satisfied that any act or omission by a person in respect of a well may result, directly or indirectly, in the pollution or deterioration, inequitable distribution, loss, wastage or undue depletion of any waters, the Minister may, by order served on the owner or occupier of the land on which the well is situated, direct that owner or occupier to do any one or more of the following:

(a) to close and shut off the supply of groundwater from the well in the manner specified in the order;

(b) to restrict or limit the amount of water taken from the well to the extent specified in the order;

(c) to install and maintain a suitable meter to record the amount of water taken from the well;

(d) to discontinue the use of the well, either permanently or for a period specified in the order;

(e) to take any action specified in the order to prevent any waste from gaining access to the well or to prevent any pollution of the water in it;

(f) to close, or partly or entirely to block or backfill, the well in the manner specified in the order;

(g) to use the water withdrawn from the well for such purposes as are specified in the order;

(h) to carry out such repairs or modifications to the well as are specified in the order.

(2)  Unless the Minister otherwise directs in the order, a permit under the Land Use Planning and Approvals Act 1993 is not required to undertake any action specified in the order.

(3)  An order under subsection (1)  –

(a) is to include notification of any rights of review or appeal under Part 14 ; and

(b) is not a statutory rule within the meaning of the Rules Publication Act 1953 .

(4)  A person must not contravene a provision of an order in force under this section.

Penalty:  Fine not exceeding 20 penalty units and, in the case of a continuing offence, a further fine not exceeding 5 penalty units for each day during which the offence continues.

127.   Power to carry out works

(1)  Where an order under section 126 has been contravened in whole or in part within the period specified in the order, the Minister may authorise a person to enter any land on which the well to which the order relates is situated and cause such works as are necessary to be carried out to ensure compliance with the order.

(2)  The Minister may recover in any court of competent jurisdiction as a debt due to the Crown from the person on whom the order was served any expense actually and reasonably incurred in carrying out the works to which the order relates.

128.   Obligations in relation to wells

(1)  An occupier of land on which a well is situated must ensure that the well, including the casing, lining and screen of the well and the mechanism (if any) used to cap the well, is properly maintained.

Penalty:  Fine not exceeding 50 penalty units and, in the case of a continuing offence, a further fine not exceeding 5 penalty units for each day during which the offence continues.

(2)  A person must not drill, plug, backfill or seal a well in contravention of a water management plan.

Penalty:  Fine not exceeding 100 penalty units.

129.   Deleterious matter affecting groundwater

(1)  A person must not, by any act or omission, introduce, or suffer or permit any person to introduce, into a well any waste or other matter that, on being so introduced, causes, or is likely to cause, the pollution of groundwater.

Penalty:  Fine not exceeding 50 penalty units and, in the case of a continuing offence, a further fine not exceeding 5 penalty units for each day during which the offence continues.

(2)  Subsection (1) does not apply to, or in respect of, the carrying out of any work or operation that is carried out –

(a) in order to comply with this Act; or

(b) with the approval in writing of the Minister.

(3)  Before giving approval under subsection (2)(b) , the Minister must consult with the Director.

Division 2 - Information relating to wells

130.   Application of this Division

This Division does not apply to an opening or excavation in the ground, whether naturally occurring or not, that is used only for the sampling or testing of water.

131.   Provision of information relating to construction of wells

(1)  Where water is struck in the construction of a well, the person constructing the well must, as soon as practicable after the water is struck, inform the Minister in writing in an approved form of the fact and of the location of the well and of the depth of the well at which the water was so struck.

(2)  A person who constructs a well must, as soon as practicable after completion of that construction, inform the Minister in writing in an approved form of the level of the water, if any, in the well and provide the Minister with such particulars relating to the well and water, cuttings and other materials obtained during the construction of the well as the Minister may require.

(3)  Where a person who constructs a well receives a report of an analysis of any water obtained from the well, he or she must, as soon as practicable after receipt of the report, provide the Minister with a copy.

132.   Provision of materials relating to construction of wells

(1)  The Minister may give directions to a person constructing a well to provide such information as the Minister may reasonably require to assist in assessing the groundwater resources of Tasmania or require that any water, cuttings or other materials obtained in the construction of a well be preserved for such period, in such place and in such manner as may be specified in the directions, and the person constructing that well must ensure that those directions are complied with.

(2)  The directions must be given in writing and may be given to any person who is constructing the well or to any person who has provided information to the Minister under section 131 .

(3)  Nothing in subsection (1) requires the preservation of any material that is required for assay or, subject to subsection (4) , the preservation of any water, cuttings or other materials for a period longer than 3 months.

(4)  It is sufficient compliance with any directions given under subsection (1) requiring any water, cuttings or other materials to be preserved if the water, cuttings or other materials are delivered to the Minister.

133.   Failure to provide information or material as to wells

A person who fails to provide information to the Minister as required by section 131 or who contravenes a direction under section 132 is guilty of an offence and is liable on summary conviction to a fine not exceeding 10 penalty units.

134.   Examination of materials

Where any water, cuttings or other materials are required to be preserved under section 132 , the Minister may examine that water or those cuttings or other materials and take specimens of it or them for the purposes of assay or treatment.

Division 3 - .  .  .  .  .  .  .  .  

[Division 3 of Part 7 Repealed by No. 49 of 2002, s. 19, Applied:01 Mar 2003]

135.   

[Section 135 Repealed by No. 49 of 2002, s. 19, Applied:01 Mar 2003] .  .  .  .  .  .  .  .  

136.   

[Section 136 Repealed by No. 49 of 2002, s. 19, Applied:01 Mar 2003] .  .  .  .  .  .  .  .  

PART 8 - Construction of dams

Division 1 - Application of this Part

137.   Application of this Part

[Section 137 Substituted by No. 49 of 2002, s. 20, Applied:01 Mar 2003]

(1)  This Part applies to all dams except –

(a) [Section 137 Subsection (1) amended by No. 12 of 2004, s. 36, Applied:09 Jun 2004] a dam which is not on a watercourse and which prevents, controls or mitigates the effect of a flood; and

(b) a dam which is not on a watercourse and holds less than one megalitre of water; and

(c) a dam constructed for the primary purpose of storing waste; and

(d) a levee or bank that is constructed during a flood and removed entirely within 4 weeks after the day on which it was constructed.

(2)  The Minister may, by order published in the Gazette, determine that a permit under this Part is not required in respect of dam works of a specified type, location or purpose.

Division 2 - Constitution of the Assessment Committee

138.   Assessment Committee for Dam Construction

(1)  A committee is constituted and named the Assessment Committee for Dam Construction.

(2)  In the performance of its functions the Assessment Committee is subject to the control and direction of the Minister in all respects, except in the case of –

(a) the contents of a report or recommendation made by it to the Minister or any other person; or

(b) the approval or refusal of an application for a permit.

139.   Members of Assessment Committee

(1)  The Assessment Committee consists of 6 members appointed by the Minister.

(2)  The members are to be –

(a) two persons nominated by the Minister, one of whom is to be appointed as chairperson of the Assessment Committee; and

(b) a person nominated by the Minister having the administration of the EMPC Act; and

(c) a person nominated by the Tasmanian Farmers and Graziers Association; and

(d) a person nominated by the Tasmanian Chamber of Commerce and Industry; and

(e) a person nominated by the Local Government Association of Tasmania.

(3)  The Minister, by notice in writing to a body or person referred to in subsection (2) , may specify the time and manner in which a nomination under that subsection is to be made.

(4)  Where a nomination of a person as a member is not made within the time or in the manner specified by the Minister, the Minister may appoint any person who, in his or her opinion, has skills, knowledge and experience appropriate to the functions of the Assessment Committee to be a member instead of the person required to be appointed on that nomination.

(5)  A person must not be nominated as a member unless the person has, in the opinion of the person making the nomination, skills, knowledge and experience appropriate to the functions of the Assessment Committee.

(6)  The members of the Assessment Committee must collectively have expertise in the following categories:

(a) the management of water resources;

(b) the use and economic development of water resources;

(c) engineering and safety matters relating to dams;

(d) integrated natural resource management;

(e) best practice environmental management.

(7)  If a body referred to in subsection (2) changes its name, the Minister may, by notice published in the Gazette, amend that subsection by substituting the new name of the body.

140.   Constitution and procedure of Assessment Committee

Schedule 2 has effect for the purposes of the constitution and procedure of the Assessment Committee.

141.   Facilities and employees of Crown, &c., available to Assessment Committee

[Section 141 Amended by No. 49 of 2002, s. 21, Applied:01 Mar 2003] For the purpose of exercising its functions, the Assessment Committee may make use of the facilities, or the services of any officers, employees or servants, of any Agency or statutory authority, with the approval of the Minister and of the Agency or statutory authority and on such terms as may be agreed.

142.   Subcommittees

(1)  The Assessment Committee may establish subcommittees for the purpose of advising the Committee in the exercise of its functions under this Act.

(2)  The Assessment Committee may appoint as a member of any such subcommittee any person who, in its opinion, appears to be qualified to be a member of that subcommittee, whether or not the person is a member of the Committee.

(3)  The Assessment Committee must appoint one of the members of a subcommittee to be chairperson of the subcommittee and any such subcommittee may, subject to any directions of the Committee, regulate its procedure in any manner it thinks fit.

Division 3 - Functions of the Assessment Committee

143.   Functions of Assessment Committee

The functions of the Assessment Committee are as follows:

(a) to consider applications for permits, grant or refuse permits under Division 4 and determine any conditions to which the permits should be subject;

(b) to determine the size, type, location or purpose of dams in respect of which the grant or refusal of an application for a permit may be delegated;

(c) to determine what type of additional information is to be provided under section 155 by an applicant for a permit;

(d) [Section 143 Amended by No. 49 of 2002, s. 22, Applied:01 Mar 2003] to make recommendations, where the Committee considers it appropriate, to the Minister on the sharing of costs between applicants and agencies for any additional information provided under section 155 ;

(e) to provide for the conciliation of any matter arising from an application for a permit;

(f) to report or make recommendations to the Minister or any other person in respect of applications for permits;

(g) to perform such other functions as are conferred or imposed on the Committee by or under this or any other Act;

(h) to do such supplemental, incidental and consequential acts as may be necessary or expedient for the performance of its functions.

143A.   Assessment Committee to have regard to standards

[Section 143A Inserted by No. 49 of 2002, s. 23, Applied:01 Mar 2003] In performing its functions under section 143 , the Assessment Committee must have regard to prescribed standards for the design, construction, maintenance, surveillance and decommissioning of dams.

144.   Delegation of grant of permit

(1)  The Assessment Committee may delegate the consideration of an application for a permit and its grant or refusal under section 143(a) .

(2)  The Assessment Committee may determine –

(a) that a person or position to whom such a delegation is made may grant a permit in respect of a dam to which this Part applies only if it is of a specified size, type, location or purpose; and

(b) any terms and conditions under which a permit may be granted or terms and conditions which may attach to such a permit.

(3)  [Section 144 Subsection (3) substituted by No. 57 of 2002, s. 14, Applied:05 Dec 2002] Subsection (1) does not apply in respect of –

(a) a dam that may have a significant adverse impact on another person; or

(b) a dam that may cause material or serious environmental harm; or

(c) unless the Assessment Committee has the written consent of the pipeline licensee to the delegation, a dam that is wholly or partly within a pipeline planning corridor.

(4)  A delegation, including any matters specified in subsection (2) , is to be notified in the Gazette within 21 days after the delegation or determination.

(5)  Subject to subsection (6) and section 151 , a person with delegated authority may grant a permit without further reference to the Assessment Committee.

(6)  A person granting a permit acting under the Assessment Committee’s delegated authority must notify the Committee in writing of that grant within 28 days.

145.   Notice of application not required for certain dams

(1)  The Assessment Committee may determine that a notice under section 149 is not required in respect of a dam to which this Part applies which is of a specified size, type, location or purpose.

(2)  [Section 145 Subsection (2) substituted by No. 57 of 2002, s. 15, Applied:05 Dec 2002] Subsection (1) does not apply to –

(a) any such dam that may have a significant adverse impact on another person; or

(b) any such dam that may cause material or serious environmental harm; or

(c) unless the Assessment Committee has the written consent of the pipeline licensee to the making of the determination, any such dam that is wholly or partly within a pipeline planning corridor.

(3)  The Assessment Committee must notify the matters specified in subsection (1) and any amendments to them in the Gazette within 21 days after their determination or amendment.

Division 4 - Permits for dam works

146.   Permit to undertake dam works

(1)  A person may apply to the Assessment Committee for the granting of a permit to undertake dam works.

(2)  An application for a permit –

(a) is to be in an approved form; and

(b) is to be accompanied by the prescribed fee, if any; and

(c) [Section 146 Subsection (2) amended by No. 49 of 2002, s. 24, Applied:01 Mar 2003] is to be accompanied by such information as the Assessment Committee may require for the purposes of this Part or Part 8A .

(3)  [Section 146 Subsection (3) substituted by No. 49 of 2002, s. 24, Applied:01 Mar 2003] A person must not undertake, or cause or permit to be undertaken, any dam works unless –

(a) the person who undertakes those works, or the person who causes or permits them to be undertaken, as the case may be, holds a permit authorising those works; and

(b) the works are carried out in accordance with that permit.

Penalty:  Fine not exceeding 200 penalty units and, in the case of a continuing offence, a further fine not exceeding 20 penalty units for each day during which the offence continues.

(4)  [Section 146 Subsection (4) inserted by No. 49 of 2002, s. 24, Applied:01 Mar 2003] In a prosecution for an offence under this section, it is a defence if the person who undertook the dam works, or caused or permitted them to be undertaken –

(a) shows that it was necessary to do so in order to maintain the structural integrity of the dam; and

(b) shows that the dam works were limited to works necessary for that purpose; and

(c) within 2 working days after commencing the works, gave written notice of the works to the Minister or an authorised officer; and

(d) as soon as practicable after completing the dam works, applied to the Assessment Committee for its approval of the works.

(5)  [Section 146 Subsection (5) inserted by No. 49 of 2002, s. 24, Applied:01 Mar 2003] An application for approval referred to in subsection (4)(d) is to be treated by the Assessment Committee as an application for a permit under this section.

147.   Minister may require action to be taken

(1)  In addition to any action taken for an offence under section 146 , the Minister may, by notice served on –

(a) the owner of the dam; or

(b) the owner or occupier of the land on which the dam is located; or

(c) the person who constructed the dam –

direct him or her to take such action as is specified in the notice.

(2)  The notice is to include notification of the person's rights of review or appeal under Part 14 .

(3)  Without limiting subsection (1) , the notice may require the emptying, breaching, modification or removal of the dam or the undertaking of work to repair damage to the site of the dam.

(4)  A person must not contravene the notice.

Penalty:  Fine not exceeding 50 penalty units and, in the case of a continuing offence, a further fine not exceeding 5 penalty units for each day during which the offence continues.

(5)  If the owner or occupier contravenes the notice –

(a) [Section 147 Subsection (5) amended by No. 49 of 2002, s. 25, Applied:01 Mar 2003] the Minister may authorise a person to enter on the land and take any action specified in the notice and such other action as may be necessary or desirable to make good any damage caused by the contravention; and

(b) any expense actually and reasonably incurred by the Minister in so doing is a debt due by the owner or occupier to the Minister and recoverable as such in any court of competent jurisdiction.

(6)  A person undertaking action specified by a notice under subsection (1) does not require a permit unless the Minister so directs in the notice.

148.   Application by person other than owner

(1)  If an applicant for a permit is not the owner of the land in respect of which the permit is required, the application –

(a) is to be signed by the owner of the land; or

(b) is to be accompanied by the written permission of the owner to the making of the application.

(2)  If the Assessment Committee is satisfied that the applicant is a lawful occupier of the relevant land and as such is entitled to carry out the proposed dam works, the Committee may waive a requirement under subsection (1) .

(3)  A person must not obtain a permit by making or causing to be made any false representation or declaration either orally or in writing.

Penalty:  Fine not exceeding 20 penalty units.

149.   Notice of application for permit

(1)  Subject to section 145 and subsection (3) , the Assessment Committee must, within 14 days after receipt of an application under section 146  –

(a) publish notice of the application in a local newspaper; and

(b) [Section 149 Subsection (1) amended by No. 57 of 2002, s. 16, Applied:05 Dec 2002] notify the council in the municipal area of which the proposed dam is situated; and

(c) [Section 149 Subsection (1) amended by No. 57 of 2002, s. 16, Applied:05 Dec 2002] if the proposed dam works are wholly or partly within a pipeline planning corridor, notify the person licensed under the Gas Pipelines Act 2000 to operate the pipeline in the pipeline planning corridor.

(2)  A notice under subsection (1)  –

(a) is to specify the name of the applicant, details of the application and such other information as the Assessment Committee may require for the purposes of this Part; and

(b) is to specify a place where a copy of the application, and of all plans and other documents submitted with the application, will be open to inspection by the public at all reasonable hours during the period for which representations may be made; and

(c) is to invite written representations from any person who may be affected by the application; and

(d) is to specify a period of at least 14 days from the publication of the notice during which representations may be made and the address to which they are to be sent.

(3)  A notice to a council under subsection (1) is not required if the application is made by the relevant council.

150.   Withdrawal of representation

(1)  A representation made under section 149 may, by notice in writing to the Assessment Committee, be withdrawn at any time before the Committee grants or refuses to grant a permit.

(2)  A person who withdraws a representation under subsection (1) is taken, for the purposes of this Act, as having not made the representation.

151.   Grant of permit by delegated person

A person to whom the Assessment Committee has delegated approval for the granting of permits under section 144 must not exercise that delegation if a representation has been made under section 149 .

152.   Referral to Director

(1)  [Section 152 Subsection (1) amended by No. 30 of 2005, s. 8, Applied:11 Jul 2005] [Section 152 Subsection (1) amended by No. 49 of 2002, s. 26, Applied:01 Mar 2003] Unless an application for a permit is refused within 6 weeks after receipt of the application or a permit is granted by a delegate under section 144(5) , the Assessment Committee must, within 6 weeks after receipt of the application, notify the Director in writing of details of the application.

(2)  Within 14 days after the notification, the Director must determine whether the application should be referred to the Board under section 27(2) of the EMPC Act unless the Assessment Committee requires the applicant to provide additional information under section 154 .

(3)  Where any such additional information is provided to the satisfaction of the Director, he or she must, within 14 days, make the required determination.

(4)  If the Director informs the Assessment Committee that the application is not to be so referred, or if the Director does not inform the Committee of his or her decision within a period of 14 days after the Director is notified of the application, the application is not to be so referred at any time.

(5)  [Section 152 Subsection (5) amended by No. 12 of 2004, s. 37, Applied:09 Jun 2004] [Section 152 Subsection (5) amended by No. 49 of 2002, s. 26, Applied:01 Mar 2003] The Director may determine that an application for a permit for dam works in respect of a dam of a specified size, type, location or purpose is not required to be referred under subsection (2) .

153.   Determination of Board

(1)  Where an application is referred to the Board under section 152(2) , the Assessment Committee is bound by any determination on that application by the Board.

(2)  The determination may include a refusal to grant the permit or the imposition of terms and conditions relating to the approval of the permit.

154.   Requirement for additional information

(1)  [Section 154 Subsection (1) amended by No. 49 of 2002, s. 27, Applied:01 Mar 2003] The Assessment Committee may, by notice in writing served on an applicant for a permit, require the applicant to provide additional information before the Committee considers the application.

(2)  The notice must include a statement of the applicant's rights of appeal under Part 14 .

(3)  The notice must be served within the period of 12 weeks after the day on which the Assessment Committee receives the application.

(4)  Subject to subsection (5) , failure of the Assessment Committee to serve a notice within the period referred to in subsection (3) is taken to be a decision of the Committee that additional information is not required.

(5)  The period referred to in subsection (3) may be extended by –

(a) any further period as determined by a written agreement between the Assessment Committee and applicant at any time before the expiration of the period to be extended; or

(b) a period not exceeding 6 weeks as determined by the Minister on application by the Committee.

(6)  An extension under subsection (5)(b) may be made only –

(a) before the expiration of the period specified in subsection (3) ; and

(b) where the Minister determines that there are special circumstances preventing the Assessment Committee from complying with subsection (3) .

(7)  The Assessment Committee must give written notice of an extension under subsection (5)(b) to the applicant within 7 days after receiving notification of the Minister’s determination.

155.   Information to be provided

(1)  A notice under section 154(1) may require the information to be verified by a person or class of persons of specified competency or in a specified format.

(2)  The information required under section 154(1) may relate to –

(a) water resources or hydrology; or

(b) [Section 155 Subsection (2) amended by No. 49 of 2002, s. 28, Applied:01 Mar 2003] engineering or dam safety matters, including a plan for the safe operation and maintenance of a proposed dam; or

(c) matters relating to best practice environmental management; or

(d) conservation or protection of flora or fauna; or

(e) conservation or protection of cultural heritage; or

(f) matters relating to tenure of the site of the proposed dam; or

(g) [Section 155 Subsection (2) amended by No. 57 of 2002, s. 17, Applied:05 Dec 2002] a pipeline planning corridor; or

(ga) [Section 155 Subsection (2) amended by No. 12 of 2004, s. 38, Applied:09 Jun 2004] any social or economic matter relating to the construction of the proposed dam, including without limitation opportunities for employment and other matters relating to irrigation and agricultural production; or

(h) [Section 155 Subsection (2) amended by No. 57 of 2002, s. 17, Applied:05 Dec 2002] likely effects on other persons –

to the extent that it is relevant to the application being considered.

(3)  Where information has been supplied by the applicant to the Board as a result of a referral under section 152 on a matter on which the Assessment Committee has required additional information under section 154(1) , that information is taken to be adequate.

(4)  The Assessment Committee may make a recommendation to the Minister in regard to the sharing of the cost of obtaining the information required under section 154(1) between the applicant and an Agency where the Committee considers the acquisition of the information to be in the public interest and, on the recommendation, the Minister may determine that the Agency is to pay a share of the cost of obtaining the information.

(5)  A share of the cost may be paid by another Agency only with the approval of the Minister responsible for its administration.

(6)  [Section 155 Subsection (6) amended by No. 12 of 2004, s. 38, Applied:09 Jun 2004] Subject to subsections (7) and (8) , if the applicant does not provide the required information to the Assessment Committee’s satisfaction within 2 years after the date of the notice under section 154(1) , the application for the permit is taken to have been withdrawn by the applicant and no further action on the application by the Committee is required.

(7)  [Section 155 Subsection (7) inserted by No. 12 of 2004, s. 38, Applied:09 Jun 2004] The Assessment Committee may extend the time for providing the information required under section 154(1) for a period not exceeding one year if it is satisfied that –

(a) the extension does not change the effect of any determination that has been imposed by the Appeal Tribunal; and

(b) the circumstances under which the notice was issued have not significantly changed, in particular relating to –

(i) any adverse impact on the land or property of any person other than the applicant or on the environment, having regard to the conservation or protection of flora, fauna and cultural heritage; or

(ii) matters of dam safety.

(8)  [Section 155 Subsection (8) inserted by No. 12 of 2004, s. 38, Applied:09 Jun 2004] If the Assessment Committee is of the opinion that any circumstances referred to in subsection (7)(b) have changed significantly, the Committee may amend the notice under section 154(1) to the extent necessary to take account of those changed circumstances.

156.   Consideration of application

In determining an application for a permit, the Assessment Committee or its delegate must –

(a) seek to further the objectives of the Act; and

(b) act consistently with any relevant water management plan; and

(c) take into consideration any prescribed matters relevant to the application; and

(d) take into consideration any additional information provided under section 154 ; and

(da) [Section 156 Amended by No. 49 of 2002, s. 29, Applied:01 Mar 2003] take into consideration –

(i) the effect of the water or other stored material on the impoundment area of the dam; and

(ii) the chemical nature and stability of the material contained by the dam; and

(iii) the advice of the relevant authority referred to in section 165F(1) ; and

(e) take into consideration the matters set out in representations relating to the application that were made during the period referred to in section 149(2) .

157.   Granting of permit

[Section 157 Substituted by No. 49 of 2002, s. 30, Applied:01 Mar 2003]

(1)  On receipt of an application for a permit, the Assessment Committee may –

(a) grant the permit; or

(b) refuse to grant the permit in accordance with section 158 .

(2)  A permit –

(a) is to be consistent with any relevant State policy or water management plan; and

(b) is subject to such conditions as may be specified in the permit or prescribed; and

(c) is binding on, and has effect for the benefit of, the applicant and the owner and occupier of the land to which it relates and all subsequent owners and occupiers of the land; and

(d) is subject to any determination of the Board under section 153 .

(3)  Without limiting subsection (2)(b)  –

(a) a condition may relate to the time before which the permitted activity must be commenced, the time before which the activity must be completed or the period during which the permit remains in force; and

(b) a condition may relate to –

(i) the investigation, design, construction, operation, maintenance, surveillance or decommissioning of the dam; or

(ii) reporting to the Minister any information relating to the dam; or

(iii) any matter prescribed in the regulations; or

(iv) the objectives of this Act; and

(c) it may be a condition of a permit that specified work is to be undertaken by a specified person or class of persons; and

(d) a condition may provide that the permit does not take effect until –

(i) permission has been obtained for the taking of water under section 90 ; or

(ii) a relevant water allocation has been obtained by transfer under Division 4 of Part 6 .

(4)  The Assessment Committee may vary a condition under subsection (2)(b) if of the opinion that the variation is necessary –

(a) to comply with a relevant water management plan; or

(b) to avoid material environmental harm or serious environmental harm; or

(c) to ensure that the dam is safe; or

(d) for any other purpose that is not contrary to the objectives of this Act, a relevant water management plan or any prescribed matter relating to dam safety.

(5)  The Assessment Committee must not make a variation under subsection (4) if the variation is contrary to –

(a) a determination or terms and conditions made by the Board under section 153 ; or

(b) an order under section 264 ; or

(c) a determination of the Appeal Tribunal under section 279 .

(6)  The Assessment Committee must not make a variation under subsection (4)(d) without the written consent of the dam owner.

(7)  Unless a variation is made under subsection (4)(d) , the owner of a dam for which a variation of a permit is made has the same rights of appeal as if the variation were an original condition of the permit.

(8)  A condition remains in force after the activity authorised by the permit has been completed, unless otherwise expressed in the permit.

157A.   Permit may enure for benefit of owner

[Section 157A Inserted by No. 49 of 2002, s. 30, Applied:01 Mar 2003] A permit to undertake dam works may be assigned so as to enure for the benefit of the owner of the relevant land from time to time.

158.   Refusal of application for permit

(1)  The Assessment Committee or its delegate may refuse to grant a permit where the proposed dam works –

(a) are inconsistent with the objectives of this Act or a relevant water management plan; or

(b) may result in material environmental harm, serious environmental harm or environmental nuisance; or

(c) [Section 158 Subsection (1) amended by No. 49 of 2002, s. 31, Applied:01 Mar 2003] may adversely affect persons with a right under Part 5 or a licence to take water from a relevant water resource; or

(ca) [Section 158 Subsection (1) amended by No. 49 of 2002, s. 31, Applied:01 Mar 2003] may damage or adversely impact on property owned by a third party; or

(cb) [Section 158 Subsection (1) amended by No. 49 of 2002, s. 31, Applied:01 Mar 2003] may adversely impact on public safety –

and may also refuse to grant a permit –

(d) if the applicant does not have a right or licence to take water into the relevant dam; or

(da) [Section 158 Subsection (1) amended by No. 57 of 2002, s. 18, Applied:05 Dec 2002] if the proposed dam works are wholly or partly within a pipeline planning corridor and are likely to compromise the safety or safe operation of the pipeline in the pipeline planning corridor; or

(e) if the Board so determines under section 153 .

(2)  The Assessment Committee may refuse to grant a permit if the applicant has been convicted of an offence under this Part.

(3)  If the refusal is made within 14 days after receipt of the application under section 146 , the Assessment Committee is not required to comply with section 149 .

159.   Time when permit takes effect

(1)  Where the Assessment Committee grants a permit, the permit takes effect, subject to subsections (2) , (3) and (4)  –

(a) on the day on which it is granted by the Committee; or

(b) where there is a right of appeal against the granting of the permit, at the expiration of 14 days after the day on which the notice of the granting of the permit was served on the person entitled to appeal.

(2)  If the applicant is the only person with a right of appeal under Part 14 relating to a permit and does not intend to exercise that right, the dam works in respect of which the permit is granted may, subject to subsections (3) and (4) , be commenced before the expiration of the period of 14 days.

(3)  If the applicant proposes to commence the dam works before the expiration of the period of 14 days, the applicant must notify the Assessment Committee in writing of his or her intention to commence those works.

(4)  If the applicant notifies the Assessment Committee under subsection (3) , the applicant may not appeal against the permit.

(5)  A day that is later than the day on which a permit would otherwise have taken effect under subsection (1) may be specified in the permit as the day on which it takes effect.

(6)  Where an appeal has been instituted against the Assessment Committee’s decision to grant a permit, the permit does not take effect until the determination or abandonment of the appeal.

(7)  [Section 159 Subsection (7) substituted by No. 49 of 2002, s. 32, Applied:01 Mar 2003] Where –

(a) any other approvals under this or any other Act are required for the proposed dam works to which the permit relates; or

(b) a new licence or a variation to an existing licence is required to take water for the purposes of the dam works –

the permit does not take effect until all those approvals and the licence or the variation to the licence, as the case may require, have been granted.

(7A)  [Section 159 Subsection (7A) inserted by No. 49 of 2002, s. 32, Applied:01 Mar 2003] The Assessment Committee may, with the approval of the Minister and by endorsement on the permit, declare that subsection (7) does not apply to the permit.

(8)  [Section 159 Subsection (8) amended by No. 12 of 2004, s. 39, Applied:09 Jun 2004] A permit lapses after a period of 2 years from the date on which it took effect if the dam works in respect of which it was granted are not substantially commenced within that period but may continue in force as provided by subsection (9) .

(9)  [Section 159 Subsection (9) inserted by No. 12 of 2004, s. 39, Applied:09 Jun 2004] The Assessment Committee may extend the time for which a permit is in force for a period not exceeding one year if it is satisfied that the extension –

(a) does not change the effect of any condition that has been imposed by the Board or the Appeal Tribunal; and

(b) will not significantly increase any adverse impact on –

(i) the land or property of any person other than the applicant; or

(ii) the environment –

having regard to the conservation or protection of flora, fauna and cultural heritage; and

(c) will not increase the risk of an incident arising from the dam works in respect of which the permit was granted.

160.   Notification of decision

(1)  The Assessment Committee must, within 14 days after making a decision under section 157 or 158 , provide written notice of the decision and of any rights of review or appeal under Part 14 to –

(a) the applicant; and

(b) any person or council who made a representation under section 149 .

(2)  Where the relevant application is approved subject to conditions or is refused, the notice must state the reasons for the decision.

161.   Correction of mistakes

The Assessment Committee may correct a mistake in a permit if the mistake is –

(a) a clerical mistake or an error arising from any accidental slip or omission; or

(b) an evident material miscalculation of figures or an evident material mistake in the description of any person, land or other property referred to in the permit.

162.   Amendments of permits

(1)  The applicant, the owner of land affected by a permit or a person acting with the consent of the owner may request the Assessment Committee in writing to amend the permit.

(2)  The Assessment Committee may amend the permit if it is satisfied that the amendment –

(a) does not change the effect of any condition required by the Board or the Appeal Tribunal; and

(b) [Section 162 Subsection (2) amended by No. 12 of 2004, s. 40, Applied:09 Jun 2004] will not cause any adverse impact on any person authorised to take water under this Act; and

(c) [Section 162 Subsection (2) amended by No. 12 of 2004, s. 40, Applied:09 Jun 2004] will not significantly increase any adverse impact on –

(i) the land or property of any person other than a person mentioned in subsection (1) ; or

(ii) the environment –

having regard to the conservation or protection of flora, fauna and cultural heritage; and

(d) [Section 162 Subsection (2) amended by No. 12 of 2004, s. 40, Applied:09 Jun 2004] will not increase the risk of an incident arising from the dam works in respect of which the permit was granted.

163.   Time when amendments to permits take effect

(1)  If the Assessment Committee amends a permit, the amendment, subject to subsection (2) , takes effect on the day on which it is made by the Committee.

(2)  The day on which an amendment to a permit takes effect may be specified in the permit as being a day later than the day on which the permit would otherwise have taken effect under subsection (1) .

164.   Time limits for decision

(1)  Subject to subsections (3) and (6) , the Assessment Committee or its delegate must grant or refuse to grant a permit not later than –

(a) where the application for the permit has been referred to the Board, 8 weeks after the day on which the Committee receives notification of the Board’s decision; or

(b) where the Committee has required the applicant to provide additional information under section 154 , 6 weeks after that information is provided to the Committee’s satisfaction; or

(c) [Section 164 Subsection (1) amended by No. 49 of 2002, s. 33, Applied:01 Mar 2003] where the Committee has required additional information under section 152(2) , 6 weeks after the Committee is notified of the Director's determination under that subsection or 8 weeks after the information is provided to the satisfaction of the Director, whichever first occurs; or

(d) [Section 164 Subsection (1) amended by No. 49 of 2002, s. 33, Applied:01 Mar 2003] in any other case, 12 weeks after the date on which the Assessment Committee becomes satisfied that an application in accordance with section 146(2) has been lodged.

(2)  In a case where more than one paragraph of subsection (1) applies, the Assessment Committee or its delegate must grant or refuse to grant a permit before the expiration of the latest of all the relevant periods.

(3)  The periods referred to in subsection (1) may be extended by –

(a) any period as determined by a written agreement between the Assessment Committee and the applicant at any time before the expiration of the period to be extended; or

(b) a period not exceeding half of the relevant period under subsection (1) as the Minister may determine on application by the Assessment Committee.

(4)  An extension under subsection (3)(b) may be made only –

(a) before the expiration of the relevant period specified in subsection (1) ; and

(b) where the Minister determines that there are special circumstances preventing the Assessment Committee from complying with subsection (1) .

(5)  The Assessment Committee must give written notice of an extension under subsection (3)(b) to the applicant within 7 days after the Minister’s determination.

(6)  Where an appeal is lodged against a requirement for additional information under section 154(1) , time does not run under this section until the Assessment Committee receives notice of the result of the appeal.

165.   Failure to determine application for permit

(1)  If the Assessment Committee fails to determine an application for a permit before the expiration of the relevant period specified in section 164 , the applicant is entitled to a permit on conditions to be determined by the Appeal Tribunal.

(2)  Where the Assessment Committee fails to determine an application as mentioned in subsection (1) , the Committee must, within 7 days after the expiration of the relevant period specified in section 164 , serve notice –

(a) on the applicant; and

(b) on any person who made representations under section 149  –

that the permit is taken to have been granted on conditions to be determined by the Appeal Tribunal.

(3)  If the Assessment Committee fails to determine an application before the expiration of the relevant period, the applicant may apply to the Appeal Tribunal for an order determining the conditions on which the permit is granted.

(4)  After hearing an application under subsection (3) , the Appeal Tribunal may, in addition to its powers under the Resource Management and Planning Appeal Tribunal Act 1993  –

(a) grant the permit unconditionally; or

(b) grant the permit subject to specified conditions; or

(c) direct that a permit is not to be granted.

(5)  After hearing an application under subsection (3) the Appeal Tribunal must direct the Department to pay –

(a) to the Tribunal an amount determined by the Tribunal as being the cost of the appeal; and

(b) to each other party to the appeal an amount determined by the Tribunal as being the cost of the appeal incurred by that party.

(6)  For the purposes of the Resource Management and Planning Appeal Tribunal Act 1993 , an application under this section is taken to be an appeal.

(7)  Notwithstanding this Division, the Assessment Committee may make a decision on an application for a permit at any time before the lodging of an application under subsection (3) and, on making the decision, the Assessment Committee must, within 7 days, serve notice of the decision on the applicant and, where representations have been made relating to the application under section 149 , on any person who made a representation.

PART 8A - Safety of dams

Division 1 - Interpretation

[Division 1 Inserted by No. 49 of 2002, s. 34, Applied:01 Mar 2003]

165A.   Application of Part

This Part applies to all dams except a dam that holds less than one megalitre of water or waste and is not on a watercourse.

165B.   Interpretation of Part 8A

In this Part –

appurtenant works means all ancillary structures of a dam that may affect a dam’s safety including, but not limited to, spillways, inlet and outlet works, tunnels, pipelines, penstocks, power stations and watercourse diversions;

[Section 165B Amended by No. 12 of 2004, s. 41, Applied:09 Jun 2004]

[Section 165B Amended by No. 12 of 2004, s. 41, Applied:09 Jun 2004] dam means a permanent or temporary barrier or structure that stores water or other liquids, silt, debris, mine tailings or other liquid-borne material or holds back or impedes the flow of water or other material and includes –

(a) water or other material stored or held back by the barrier or structure and the area covered by that water or other material; and

(b) an artificial depression or hole excavated in a watercourse that holds water or impedes the flow of water; and

(c) an artificial levee or bank that holds back or diverts water in a watercourse; and

(d) any appurtenant works;

dam works includes any appurtenant works;

inquirer means the Minister or other person conducting an inquiry or examination under section 165D .

Division 2 - Functions of Minister

[Division 2 Inserted by No. 49 of 2002, s. 34, Applied:01 Mar 2003]

165C.   Functions of Minister

For the purposes of this Part, the Minister has the following functions:

(a) to develop specifications for the purposes of the regulations relating to dams;

(b) to establish and maintain a register of dams;

(c) to develop prescribed standards required for the design, construction, maintenance, surveillance and decommissioning of dams or classes of dams;

(d) to ensure compliance with those standards;

(e) to develop prescribed standards for the competency of persons undertaking design, construction, maintenance, surveillance and decommissioning of dams or classes of dams;

(f) to formulate measures to ensure the safety of dams and, in particular, plans to remove or minimise risks to persons or property or the natural environment arising from an incident;

(g) to obtain information and keep records on matters relating to the safety of dams.

165D.   Inquiries as to dam safety

(1)  The Minister may conduct an inquiry into any matter relating to the safety of a dam.

(2)  The Minister may, by order in writing, authorise, on such terms and conditions as are specified in the order, any other person to conduct an inquiry or to examine, and report on, any matter in connection with an inquiry.

(3)  Nothing in this section is to be construed as limiting the power of the Minister to conduct an examination in connection with an inquiry under this section and the Minister may conduct such an examination notwithstanding that he or she has authorised another body or person to do so.

165E.   Evidence at inquiry

(1)  An inquirer may require a person, by notice in writing –

(a) within such reasonable time as may be specified in the notice, to provide the inquirer with such information and to produce to the inquirer such books, plans, documents or other papers and such films, tape recordings or other records in the person’s possession or under the person’s control as may be required for the purpose of the inquiry or examination, as the case may be, and as may be specified in the notice, whether generally or otherwise; or

(b) to attend, at a time and place specified in the notice, before the inquirer and then, from time to time as required by the inquirer, to give evidence concerning any matter the subject of the inquiry or examination, as the case may be, and to produce to the inquirer any of the articles referred to in paragraph (a) .

(2)  An inquirer may require any evidence referred to in subsection (1)(b) to be given on oath, either in writing or orally, and, for that purpose, the inquirer may administer the oath.

(3)  A person must not neglect or refuse to comply with the requirements of a notice served on the person under this section.

Penalty:  Fine not exceeding 100 penalty units.

(4)  A person must not –

(a) furnish any information referred to in subsection (1)(a) required of him or her by a notice served on him or her under subsection (1) that is false or misleading in a material particular; or

(b) give any evidence referred to in subsection (1)(b) that is false or misleading in a material particular.

Penalty:  Fine not exceeding 100 penalty units.

(5)  It is a defence to a prosecution under subsection (4) if the defendant proves that he or she believed the truth of the information or evidence given by him or her and that it was given in good faith.

(6)  A person who is required to attend an inquiry under this section is entitled to be paid an allowance specified in the regulations in respect of that attendance.

Division 3 - Control of dams

[Division 3 Inserted by No. 49 of 2002, s. 34, Applied:01 Mar 2003]

165F.   Referral of applications under another enactment

(1)  Where a person who proposes to undertake dam works is required under any other enactment to apply for any approval or permit before those works are undertaken, the relevant authority must refer the application to the Assessment Committee before granting the approval or issuing the permit.

(2)  Where an application is referred to the Assessment Committee –

(a) the Committee may require the imposition on the approval or permit of such terms and conditions as the Committee considers necessary or desirable to ensure the safety of the dam works; and

(b) the relevant authority must include those terms and conditions on the approval or permit.

(3)  An application referred to the Assessment Committee under subsection (1) is taken to be an application for a permit under section 146 except that –

(a) it is exempt from the provisions of sections 149 and 152 ; and

(b) the provisions of sections 157 and 158 relating to the granting or refusal of a permit do not apply; and

(c) the Committee may impose terms and conditions as mentioned in subsection (2) of this section.

(4)  Division 2 of Part 14 does not apply to any terms or conditions imposed by the Assessment Committee under subsection (2) but this subsection does not affect any right of appeal against those terms and conditions which may lie under any enactment under which the relevant application is made.

(5)  Where a referral is made under subsection (1) and the referral would result in the relevant authority not being able to meet any statutory restrictions as to time on the period within which the relevant authority must consider the application, those restrictions are suspended until such time as the Assessment Committee makes a final decision on the referral.

165G.   Duty for safe operation of dam

An owner of a dam must, so far as is reasonably practicable, maintain and operate the dam so as not to cause, or be likely to cause, material environmental harm or serious environmental harm or danger to any person or property.

Penalty:  In the case of –

(a) a body corporate, a fine not exceeding 500 penalty units and a daily fine not exceeding 50 penalty units for each day during which the offence continues; and

(b) a natural person, a fine not exceeding 200 penalty units and a daily fine not exceeding 20 penalty units for each day during which the offence continues.

165H.   Obtaining and providing information

(1)  [Section 165H Subsection (1) amended by No. 12 of 2004, s. 42, Applied:09 Jun 2004] In order to satisfy himself or herself that a dam is in a safe condition, the Minister may, by notice in writing, require the owner of a dam specified in the notice to do or arrange for either or both of the following actions:

(a) [Section 165H Subsection (1) amended by No. 12 of 2004, s. 42, Applied:09 Jun 2004] to make such observations, take such measurements, undertake such engineering studies and keep such records of or in respect of the dam, the environs over, under and surrounding the dam and the water or other material impounded by the dam as may be specified in the notice;

(b) [Section 165H Subsection (1) amended by No. 12 of 2004, s. 42, Applied:09 Jun 2004] to provide the Minister with such information in respect of the dam, and with such books, plans, documents or other papers and such films, tape recordings or other records as may be specified or described in the notice.

(1A)  [Section 165H Subsection (1A) inserted by No. 12 of 2004, s. 42, Applied:09 Jun 2004] A notice under subsection (1)(a) may require that the actions are to be undertaken by a person or persons with prescribed competencies.

(2)  An owner must comply with a requirement under subsection (1) .

Penalty:  Fine not exceeding 100 penalty units.

(3)  Where an owner of a dam fails to comply with a requirement under subsection (1) , the Minister may –

(a) undertake the activities referred to in subsection (1)(a) in respect of the dam; and

(b) recover the costs and expenses arising from, or incidental to, undertaking those activities from the owner as a debt due to the Crown in any court of competent jurisdiction.

165I.   Reporting of incidents

An owner of a dam must, as soon as practicable after an incident occurs in respect of the dam, report that incident to the Secretary in writing.

Penalty:  Fine not exceeding 100 penalty units.

165J.   Entry, surveillance, testing, &c.

(1)  In this section, a reference to land comprising a dam includes a reference to the water or other material impounded by the dam.

(2)  The Minister may, in writing, authorise a person to carry out a surveillance of any dam for the purposes of this Part.

(3)  A person authorised under subsection (2) may enter on any land or any place on any land comprising any dam or the environs over, under or surrounding any dam and may –

(a) carry out such surveillance, tests, investigations, surveys, experiments, boring, drilling and exploration; and

(b) take such samples and such photographs –

as the person considers necessary in connection with the administration of this Part.

(4)  A person authorised under subsection (2) must not exercise any of the powers conferred by subsection (3) in respect of any land or any place on any land unless –

(a) reasonable notice has been given to the owner or occupier of the land or place of the intention to exercise those powers; or

(b) the person believes, on reasonable grounds, that the circumstances require immediate action to be taken.

(5)  In the exercise of a power conferred by subsection (3)  –

(a) the person must ensure that no more damage than is necessary in the circumstances is done; and

(b) the Minister must fully compensate any person who sustains damage in the course of the exercise of that power.

(6)  A person authorised under subsection (2) , in exercising a power conferred by subsection (3) in the case of any land or any place on any land, must, if so required by a person apparently in charge of that land or place, produce the instrument of his or her authority to that person.

(7)  A person who contravenes subsection (6) is guilty of an offence and is liable on summary conviction to a fine not exceeding 3 penalty units.

165K.   Operation and maintenance manuals

(1)  An owner of a dam may demonstrate the safe operation and maintenance of the dam by demonstrating compliance with an operation and maintenance manual submitted by the owner to –

(a) the Minister; or

(b) if the manual was submitted in support of an application for a permit under section 146 or a referral under section 165F , the Assessment Committee.

(2)  An operation and maintenance manual –

(a) is to be in writing; and

(b) is to be in accordance with the regulations.

(3)  The Minister or Assessment Committee must accept an operation and maintenance manual if satisfied that it has been prepared in accordance with the regulations.

165L.   Directions for maintenance, &c., of dams

(1)  In order to satisfy himself or herself that a dam is in a safe condition, the Minister may give an owner of a dam a written direction –

(a) relating to the undertaking of works and carrying out investigations, in accordance with the regulations, for the maintenance, surveillance or decommissioning of a dam; and

(b) requiring the owner to keep such records relating to the maintenance, surveillance or decommissioning of the dam as the Minister may reasonably require in order to ensure its safety; and

(c) requiring the owner to prepare and submit to the Minister when so directed a plan of action proposed to be taken in case the dam is, or is likely to become, a danger to any person or property or to the environment.

(2)  Where an operation and maintenance manual has been accepted under section 165K(3) , the Minister may only give a direction under subsection (1) of this section if the Minister is satisfied that the owner of the dam has not complied with the manual.

(3)  An owner of a dam must comply with a direction under subsection (1) .

Penalty:  In the case of –

(a) a body corporate, a fine not exceeding 500 penalty units and a daily fine not exceeding 50 penalty units for each day during which the offence continues; and

(b) a natural person, a fine not exceeding 200 penalty units and a daily fine not exceeding 20 penalty units for each day during which the offence continues.

(4)  The Minister must not give a written direction under subsection (1)(a) that is inconsistent with –

(a) a condition specified in a relevant permit for dam works under section 157 ; or

(b) a relevant determination of an appeal under section 279 .

(5)  If an owner fails to comply with a direction under subsection (1)(a) or (c) , the Minister may undertake or carry out any work or investigation required to be undertaken or carried out or may prepare any plan required to be prepared and may, in any court of competent jurisdiction, recover from the owner, as a debt due to the Crown, any cost reasonably incurred in so doing.

(6)  If an owner fails to comply with a direction under subsection (1)(b) , the Minister may, in any court of competent jurisdiction, recover from him or her, as a debt due to the Crown, any cost reasonably incurred in obtaining the required information.

(7)  If an owner fails to comply with a direction under subsection (1) , the Minister may authorise any person to enter on the owner’s land for the purpose of performing any work or investigation required, preparing the required plan or obtaining the required information.

(8)  If works that are needed to make a dam permanently safe have the effect of rendering it unsuitable for its intended purpose, any permit granted in respect of the dam under this or any other Act is of no effect.

165M.   Surveillance and testing

(1)  If an owner of a dam fails to carry out such testing and surveillance as required by a direction of the Minister under this Part, the Minister may authorise a person –

(a) to enter on the owner’s land; and

(b) carry out surveillance of the dam and any other land or works as may be necessary to ensure the safety of the dam.

(2)  For the purposes of subsection (1) , the authorised person may carry out boring and drilling operations, make surveys and take measurements.

(3)  Unless the Minister is satisfied that there is imminent danger to any person or property or to the environment, the authorised person must give the owner at least 14 days’ notice in writing of any action proposed under this section.

(4)  In the exercise of powers under this section –

(a) the authorised person must ensure that no more damage than is necessary is done to the land; and

(b) the Minister must compensate the owner for any damage done to the land.

165N.   Notices to ensure safety of dam following provision of information

(1)  Where as a result of information provided under section 165H , 165J , 165L or 165M the Minister determines that, in order to ensure the safety of a dam, it is necessary to modify the dam –

(a) as a result of the review of the spillway and its design flood; or

(b) as a result of a change to the hazard category of the dam subsequent to its construction; or

(c) to meet prescribed safety requirements –

the Minister may, by notice in writing, require the owner of the dam to carry out modifications specified or described in the notice as may be reasonably necessary to ensure the ongoing safety of the dam.

(2)  The Minister may specify in the notice a period, not exceeding 10 years, within which the owner must comply with the notice.

(3)  An owner must comply with a notice under subsection (1) within the time specified in the notice.

Penalty:  In the case of –

(a) a body corporate, a fine not exceeding 500 penalty units and a daily fine not exceeding 50 penalty units for each day during which the offence continues; and

(b) a natural person, a fine not exceeding 200 penalty units and a daily fine not exceeding 20 penalty units for each day during which the offence continues.

(4)  If an owner of a dam fails to comply with a notice under this section –

(a) the Minister may authorise a person to enter on the owner’s land and take the action specified in the notice and such other action as may be necessary or desirable to make good any damage caused; and

(b) any expense actually and reasonably incurred by the Minister in so doing is a debt due by the owner to the Minister and recoverable as such in any court of competent jurisdiction.

(5)  Nothing in this section prevents the Minister from issuing a notice under section 165P .

165P.   Notices to ensure safety of dams in case of imminent danger, &c.

(1)  Where it appears to the Minister that a dam is unsafe or is in imminent danger of becoming unsafe or there is a high risk of an incident, the Minister may, by notice in writing, require the owner of the dam or the person in control of the dam at the relevant time to do such things as are specified or described in the notice as may be reasonably necessary to ensure the safety of the dam.

(2)  A person must comply with a notice under subsection (1) .

Penalty:  In the case of –

(a) a body corporate, a fine not exceeding 500 penalty units and a daily fine not exceeding 50 penalty units for each day during which the offence continues; and

(b) a natural person, a fine not exceeding 200 penalty units and a daily fine not exceeding 20 penalty units for each day during which the offence continues.

(3)  Where it appears to the Minister that anything done or proposed to be done to, or in respect of, a dam or in the vicinity of a dam by its owner or any other person may increase the dam's safety risk, the Minister may, by notice in writing, require the owner or other person, as the case may be, to do such things as are specified or described in the notice as may be reasonably necessary to ensure the safety of the dam.

(4)  The owner or other person must comply with a notice under subsection (3) .

Penalty:  In the case of –

(a) a body corporate, a fine not exceeding 500 penalty units and a daily fine not exceeding 50 penalty units for each day during which the offence continues; and

(b) a natural person, a fine not exceeding 200 penalty units and a daily fine not exceeding 20 penalty units for each day during which the offence continues.

(5)  If an owner of a dam fails to comply with a notice under this section –

(a) the Minister may authorise a person to enter on the owner’s land and take the action specified in the notice and such other action as may be necessary or desirable to make good any damage caused; and

(b) any expense actually and reasonably incurred by the Minister in so doing is a debt due by the owner to the Minister and recoverable as such in any court of competent jurisdiction.

(6)  If, as a result of taking any action specified or described in a notice under this section, a dam becomes unsuitable for its intended purpose and is rendered permanently safe, any permit or licence granted in respect of the dam under this or any other Act is of no effect.

Division 4 - Miscellaneous and supplemental

[Division 4 Inserted by No. 49 of 2002, s. 34, Applied:01 Mar 2003]

165Q.   Obstruction of authorised person

A person must not obstruct, hinder or interfere with –

(a) a person authorised under subsection (2) of section 165J in the exercise of his or her powers under that section; or

(b) a person authorised under subsection (7) of section 165L in the exercise of his or her powers under that subsection; or

(c) a person authorised under subsection (1) of section 165M in the exercise of his or her powers under that section; or

(d) a person authorised under subsection (4) of section 165N in the exercise of his or her powers under that subsection; or

(e) a person authorised under subsection (5) of section 165P in the exercise of his or her powers under that subsection.

Penalty:  Fine not exceeding 100 penalty units.

165R.   Determination of compensation

(1)  The amount of compensation payable under section 165J(5)(b) or section 165M(4)(b) is to be determined –

(a) if the amount is a small claim for the purposes of the Magistrates Court (Small Claims Division) Act 1989 , by the small claims division of the Magistrates Court; or

(b) in any other case, as if it were a disputed claim for compensation under the Land Acquisition Act 1993 .

(2)  In determining the amount of compensation payable under section 165J(5)(b) or section 165M(4)(b) , the court must have regard to any benefits accruing to a relevant person from the action which is the subject of the determination and reduce the amount of the compensation payable accordingly.

165S.   Contracts

The Minister may make a contract with any person for the carrying out of works, the performance of services or the supply of goods or materials in connection with the exercise by the Minister of his or her functions under this Part.

165T.   Arrangements with statutory authorities

(1)  The Minister may enter into an arrangement with any statutory authority that –

(a) the statutory authority will act as agent of the Minister for the purposes of this Part; or

(b) the Minister will act as agent of the statutory authority for the purposes of this Part –

on such terms and conditions as may be agreed between the Minister and the statutory authority.

(2)  Notwithstanding anything in any other Act, a statutory authority is empowered to enter into arrangements referred to in subsection (1) and may do or suffer anything necessary or expedient for carrying out any such arrangements.

165U.   Form of information provided under this Part

Any information or report submitted in fulfilment of an obligation under this Part is to be submitted in a form approved by the Minister.

165V.   Requirement for permit where dam works required by direction or notice

(1)  A person required by direction or notice under section 165L or 165N to undertake dam works must apply for an appropriate permit under Part 8 for those works unless the direction or notice otherwise provides.

(2)  If the Assessment Committee or the Appeal Tribunal decides to refuse an application for a permit or the permit, if granted, would be inconsistent with a direction or notice under section 165L or 165N , the Minister may vary the direction or notice to take that decision into account.

(3)  A person required by notice under section 165P to undertake dam works is not required to obtain a permit under Part 8 for those works.

PART 9 - Water Districts

Division 1 - Establishment of water districts

[Division 1 of Part 9 Heading amended by No. 12 of 2004, s. 43, Applied:09 Jun 2004]

166.   Application of Division to water entities

(1)  This Division applies to –

(a) a council if it is proposed to appoint the whole or a part of its municipal area as a water district other than a water supply district; and

(b) a water entity that owns or occupies land in a proposed water district; and

(c) [Section 166 Subsection (1) amended by No. 49 of 2002, s. 35, Applied:01 Mar 2003] a body corporate that is incorporated under the Corporations Act if at least one-third of the members of the body corporate own or occupy land in a proposed water district; and

(ca) [Section 166 Subsection (1) amended by No. 49 of 2002, s. 35, Applied:01 Mar 2003] [Section 166 Subsection (1) amended by No. 12 of 2004, s. 44, Applied:09 Jun 2004] a trust established under Part 10 or a body that is registered under the Cooperatives Act 1999 if at least one-third of the members of the trust or body own or occupy land in a proposed water district; and

(d) an electricity entity; and

(e) a water entity that is declared by the Minister, by notice published in the Gazette, to be a water entity to which this Division applies.

(2)  A council which proposes to appoint the whole or a part of its municipal area as a water supply district must proceed as provided for a water district by Division 1 of Part 6 of the Local Government (Building and Miscellaneous Provisions) Act 1993 .

167.   Establishment of water districts

(1)  [Section 167 Subsection (1) amended by No. 12 of 2004, s. 45, Applied:09 Jun 2004] On the application of a water entity to which this Division applies or a group of landowners in accordance with this Division, the Minister may, by notice published in the Gazette, appoint, name and define –

(a) a water supply district; or

(b) an irrigation district; or

(c) a riverworks district; or

(d) a drainage district –

so as to give a water entity administrative control of, and responsibility for, that water district.

(2)  A water district referred to in subsection (1) may be defined as –

(a) the whole or part of a catchment area of a certain watercourse or lake; or

(b) a specified area of land.

(3)  A riverworks district may not include –

(a) a State forest; or

(b) Crown land subject to a forest permit under the Forestry Act 1920 ; or

(c) land acquired by the Crown for the purposes of forestry –

unless the notice is expressed to be made with the agreement of the Minister having the administration of the Forestry Act 1920 .

(4)  If a proposed water district is wholly or partly within an existing water district, the Minister –

(a) [Section 167 Subsection (4) amended by No. 12 of 2004, s. 45, Applied:09 Jun 2004] must consult with the water entity administering the existing district on the application for the establishment of the water district; and

(b) [Section 167 Subsection (4) amended by No. 12 of 2004, s. 45, Applied:09 Jun 2004] must not establish the water district if it would have a material adverse effect on the administration of the existing district.

168.   Application for water supply district or irrigation district

An application may be made to the Minister under this Division –

(a) by the owners of at least two-thirds of the land comprised in any area specified in the application which can be irrigated or watered from a common source of supply, requesting that that area be constituted a water supply district or an irrigation district; or

(b) by a water entity to which this Division applies where an area specified in the application can be irrigated or watered from a common source of supply, requesting that that area be constituted a water supply district or an irrigation district.

169.   Application for riverworks district or drainage district

(1)  Where it is considered that the undertaking of works mentioned in section 193 is desirable for the benefit of persons residing in a particular area, an application may be made to the Minister under subsection (3) requesting the establishment of a riverworks district.

(2)  Where any considerable area of land is so situated that, owing to any permanent or recurrent cause, water accumulates and lies on the land to the detriment of the land by reason of insufficient drainage, an application may be made to the Minister under subsection (3) requesting the establishment of a drainage district.

(3)  An application under this section may be made –

(a) by the owners of at least two-thirds of the land comprised in an area specified in the application; or

(b) by a water entity to which this Division applies in respect of an area specified in the application.

170.   Application for hydro-electric district

(1)  An application may be made to the Minister by an electricity entity which holds a special licence under section 115(2) requesting the establishment of a hydro-electric district.

(2)  The hydro-electric district may be defined as –

(a) the whole or part of a catchment area of a certain watercourse or lake; or

(b) a specified area of land.

171.   Requirements for application

An application under section 168 , 169 or 170  –

(a) is to be in an approved form; and

(b) where the application is made by a water entity, is to provide full details of the water entity and specify the proposed arrangements for the administration of the proposed district by the water entity; and

(c) [Section 171 Amended by No. 12 of 2004, s. 46, Applied:09 Jun 2004] where the application is made by a group of landowners, is to recite an agreement by those persons to create a water entity; and

(d) [Section 171 Amended by No. 12 of 2004, s. 46, Applied:09 Jun 2004] unless the application is made by a council, is to specify the names and addresses of all landowners in the area concerned; and

(e) is to state the purpose for which the appointment of the district is required; and

(f) is to be accompanied by the prescribed fee; and

(g) is to provide details of any works proposed to be undertaken following the establishment of the district; and

(h) [Section 171 Amended by No. 12 of 2004, s. 46, Applied:09 Jun 2004] is to provide a plan to the satisfaction of the Minister stating full details of the operation of the proposed water entity, relating to its financial structure and the proposed administration of the district; and

(i) is to provide such other information as the Minister may require to consider the application.

172.   Operation of agreement

An agreement mentioned in section 171(c) takes effect on the appointment of the proposed water district.

173.   Joint water districts

On receipt of an application under section 168 or 169 , the Minister may –

(a) if the application is made by a council, require the council to join with other councils whose municipalities are part of, or adjacent to, the area of land specified in the application, in proposing the establishment of the district; or

(b) [Section 173 Amended by No. 12 of 2004, s. 47, Applied:09 Jun 2004] if the application is made by any other water entity or by landowners, require the water entity or those landowners to prepare a joint application with other relevant water entities or landowners.

174.   Procedure on receipt of application

(1)  On receipt of an application under section 168 , 169 or 170 , the Minister must give notice of the application in the Gazette and at least once in a local newspaper.

(2)  The notice –

(a) is to include full details of the application; and

(b) is to state the place and times at which the proposal application, including a map of the proposed district and information relating to any proposed works, may be inspected by members of the public; and

(c) is to invite written representations from any persons who may be affected by the application; and

(d) is to state a period of at least 28 days from the publication of the notice in the Gazette during which the representations may be made and the address to which they are to be sent.

(3)  For the purposes of subsection (2)(b)  –

(a) the specified place is to be readily accessible to persons residing in the area which is the subject of the application; and

(b) the specified times are to allow the proposal to be inspected during normal business hours during the period for which submissions are invited under subsection (2)(d) .

(4)  If the application affects Crown land, the Minister must give notice in writing of the application to the Minister having the administration of the Crown Lands Act 1976 and, where the application is not made by a council, to councils owning land in the proposed district.

(5)  The Minister must not appoint a riverworks district or a drainage district unless he or she first consults with the Director.

175.   Requirement for additional information before appointing district

(1)  Before appointing a water district, the Minister may serve a notice in writing on the applicant requiring the applicant to provide additional information relating to the effect of the proposed appointment.

(2)  The notice may require that the information be provided by a person appointed or approved by the Minister or a class of persons holding specified qualifications and that the information is to be in a specified format.

(3)  The Minister may require that all or part of the cost of providing the additional information is to be included in the fee charged for the application under section 171 .

176.   Approval of application

(1)  The Minister must, in considering the application, take account of any representations or advice received under section 174 .

(2)  Where the Minister is satisfied that approval of the application will assist in furthering the objectives of this Act, the Minister may approve the application and, by notice published in the Gazette, appoint, name and define a water district.

(3)  The Minister may amend a proposal in an application before approval if considered desirable after taking into account any representations or advice received under section 174 .

(4)  If the amendment is substantial –

(a) the Minister must notify the applicant, give an explanation of the amendment and consult with the applicant with respect to the amendment; and

(b) the applicant must amend the application; and

(c) the amended application is to be treated as a new application under section 168 , 169 or 170 .

(5)  [Section 176 Subsection (5) amended by No. 12 of 2004, s. 48, Applied:09 Jun 2004] An approval under subsection (2) may be subject to conditions or without conditions and, where the application is made by landowners, the approval is to be conditional on the establishment of the proposed water entity.

(6)  An approval under this section is to be consistent with any relevant water management plan.

(7)  The Minister must, within 14 days after publication of the notice in the Gazette, give notice of the appointment of a water district under subsection (2) in a local newspaper.

177.   Withdrawal of application

[Section 177 Amended by No. 12 of 2004, s. 49, Applied:09 Jun 2004] A group of landowners or a water entity to which this Division applies may withdraw an application at any time after the Minister receives it and before he or she approves it.

Division 2 - Administration of water districts

178.   Amendment of approval

(1)  Subject to subsection (5) , the Minister may, on the application of a responsible water entity or where the Minister considers it necessary to ensure the due administration of a water district, impose conditions on, or vary the conditions of, an approval under section 176 .

(2)  Where, in the case of a responsible water entity that is not an electricity entity, the Minister has exercised his or her powers under subsection (1) without the agreement of the water entity, the Minister must give written notice of the conditions or variation of conditions and of any rights of review or appeal under Part 14 to the water entity.

(3)  Where, in the case of a responsible water entity that is an electricity entity –

(a) the Minister has exercised his or her powers under subsection (1) without the agreement of the electricity entity; and

(b) the electricity entity suffers damage, is required to pay compensation or otherwise incurs a liability arising from the exercise of those powers –

the electricity entity is entitled to compensation to be paid by the Minister.

(4)  For the purposes of subsection (3)  –

(a) compensation is to be paid from the Consolidated Fund without further or other appropriation than this section; and

(b) in default of agreement between the Minister and the electricity entity, the arbitrator is to be nominated by the president for the time being of the Australian Centre for International Commercial Arbitration; and

(c) the amount of compensation is to be determined in accordance with the Commercial Arbitration Act 1986 .

(5)  If any condition or variation proposed would have a significant effect on the administration of a water district that is not a hydro-electric district or a material adverse impact on an owner or occupier of land in the district, the Minister must give notice of the proposed condition or variation and invite written representations in accordance with section 174(2) .

(6)  The Minister must take into account any representations received following the notice in considering the proposal to impose or vary a condition.

179.   Effect of water management plan on hydro-electric district

Where –

(a) a water management plan relates to, affects or purports to relate to or affect the administration of a hydro-electric district by an electricity entity; and

(b) any provision of the plan would require the imposition of conditions on, or a variation of the conditions of, the approval of the hydro-electric district under section 176  –

the electricity entity is not bound by that provision unless the approval is amended under section 178 .

180.   Alteration of boundaries

(1)  The Minister may, on the application of a responsible water entity and by order published in the Gazette, alter the boundaries of its water district so as to extend or reduce the district.

(2)  Where an extension of a water district under subsection (1) would result in an increase in the area of land included in the district by more than 10 per cent, the Minister must treat the application as an application under section 168 , 169 or 170 .

(3)  An alteration of the boundaries of a water district is to be consistent with any relevant water management plan.

(4)  An extension of a water district under this section may not include any part of another water district without the agreement of the responsible water entity for that other district which agreement –

(a) may not be unreasonably withheld; and

(b) may be subject to reasonable conditions imposed by that other water entity.

(5)  If the extension of the water district is subject to any such conditions, the Minister must include those conditions in the order made under subsection (1) .

181.   Substitution of water entities

(1)  [Section 181 Subsection (1) amended by No. 12 of 2004, s. 50, Applied:09 Jun 2004] On a joint application by 2 water entities or by the owners of at least two-thirds of the land in a water district, the Minister may approve the substitution of a responsible water entity by another water entity.

(2)  [Section 181 Subsection (2) amended by No. 12 of 2004, s. 50, Applied:09 Jun 2004] The application may be on the ground of an agreement to establish a water entity.

(3)  The Minister may approve the application if there is no significant change to the administration of the relevant water district, except for changes arising from the substitution of water entities.

(4)  [Section 181 Subsection (4) amended by No. 12 of 2004, s. 50, Applied:09 Jun 2004] An approval under subsection (3) may be subject to conditions or without conditions and, where the application includes a recited agreement under subsection (2) , the approval is to be conditional on the establishment of the proposed water entity.

(5)  Conditions imposed under subsection (4) may, without limitation, relate to arrangements for dealing with part or all of the assets of the water entity being replaced as the responsible water entity and for dealing with maintenance or management of works in the district.

(6)  If the Minister is of the opinion that the proposed substitution would result in significant changes to the administration of the relevant water district, he or she may require the application to be treated as an application under section 168 , 169 or 170 .

(6A)  [Section 181 Subsection (6A) inserted by No. 30 of 2005, s. 9, Applied:11 Jul 2005] On the substitution of a responsible water entity by another water entity under this section, any by-laws made by the former water entity and in force immediately before the substitution are, subject to subsection (6B) , to continue in force until they are rescinded or amended by the substituted water entity.

(6B)  [Section 181 Subsection (6B) inserted by No. 30 of 2005, s. 9, Applied:11 Jul 2005] The Minister may, by notice published in the Gazette, direct that the by-laws are to cease to have effect or are to continue in force subject to any amendments specified in the notice.

(7)  Nothing in this section permits the administration of a hydro-electric district by a water entity that is not an electricity entity.

182.   Annual reports to Minister

(1)  During September in each year and at any other time when so required by the Minister, a responsible water entity must provide the Minister with a written report on its administration of a water district during the preceding period of 12 months.

(2)  The report is to include –

(a) a full financial statement of all matters relating to the water entity’s administration of its water district; and

(b) details of all activities undertaken in discharging its responsibilities as a responsible water entity; and

(c) such other information as the Minister may require for the purpose of ensuring the due administration of the water district.

(3)  [Section 182 Subsection (3) inserted by No. 49 of 2002, s. 36, Applied:01 Mar 2003] Where a responsible water entity is required to provide an annual report under any other Act, the Minister may direct that the provision of that report is sufficient compliance with this section.

183.   Power to acquire land

(1)  Subject to subsection (3) , a responsible water entity may, with the approval of the Minister, acquire land for the purposes of this Part in accordance with the Land Acquisition Act 1993 .

(2)  Subject to subsection (3) , a responsible water entity may, with the approval of the Minister, sell or otherwise dispose of any land belonging to it that is no longer required for the purposes of this Part.

(3)  This section does not derogate from the application of any other Act relating to the acquisition, sale or disposal of land by a water entity.

184.   Powers of Minister

For the purpose of ensuring the due administration of a water district, the Minister may –

(a) undertake surveys and inspections; and

(b) take measurements and samples of water and any other material which may affect the quality of water; and

(c) enter on land for any such purpose; and

(d) require the responsible water entity to provide the Minister with information relating to any activity arising from, or for the purpose of, the administration of the district or the construction or operation of any related works.

185.   Requirements for permits

(1)  Subject to subsection (2) , nothing in this Division operates to exempt a water entity responsible for the administration of a district from any requirement to hold a permit in respect of dam works under Division 4 of Part 8 or a relevant permit under the Land Use Planning and Approvals Act 1993 .

(2)  A water entity administering a water management plan or a water district is not required to hold a permit under Division 4 of Part 8 for any activities which are –

(a) necessary for the operation, maintenance, repair, minor modification, upgrading or replacement of existing works managed or owned by that water entity and will not cause environmental nuisance, material environmental harm, serious environmental harm or result in an increased risk to human life; or

(b) required urgently to protect persons from injury or those works from damage so long as the activities will not cause serious environmental harm.

(3)  Where a water entity has undertaken an activity referred to in subsection (2) , and that activity has resulted in material environmental harm or serious environmental harm, the Minister may serve notice on the water entity directing it to take –

(a) such action as is specified in the notice to rectify the effects of the activity; and

(b) such other action as may be necessary or desirable to make good any damage caused.

(4)  If the water entity contravenes a notice under subsection (3)  –

(a) the Minister may authorise a person to enter on the land and take the action specified in the notice and such other action as the Minister may require for the purposes of this Act; and

(b) any expense actually and reasonably incurred by the Minister in so doing is a debt due by the water entity to the Minister and recoverable as such in any court of competent jurisdiction.

186.   Revocation of approval for water entity to administer a water district

(1)  Where a water entity –

(a) fails to comply with a requirement to provide the Minister with any information relating to any activity arising from, or for the purpose of, the administration of a water district; or

(b) does or omits to do any act that is a material contravention of a condition to which its administration of the district is subject; or

(c) has contravened this Act and in the Minister's opinion the contravention is so serious as to warrant action under this section –

the Minister may, by notice published in the Gazette and in accordance with this section, revoke the approval for the water entity to administer the district.

(2)  The Minister may serve on the water entity a notice in writing affording the entity an opportunity to show cause within 60 days why the Minister should not take action under this section for revocation of approval.

(3)  The water entity, within the period allowed by the notice, may arrange with the Minister for the making of submissions to the Minister as to why any such action should not be taken and the Minister must consider any submissions so made.

(4)  The Minister may, after that period, take action against the water entity as the Minister sees fit by giving written notice to the entity –

(a) of the revocation of approval for the entity to administer the relevant water district or the variation of the terms on which the approval was granted; or

(b) in the form of a letter of censure.

(5)  A revocation of approval under this section takes effect when the notice is given or on a later date specified in the notice.

(6)  A letter of censure may censure the water entity in respect of any matter arising from the administration of the water district and may include a direction to the entity to rectify within a specified time any matter giving rise to the letter of censure.

(7)  If the direction is not complied with in the specified time, the Minister may, by notice published in the Gazette, revoke the approval of the water entity to administer the water district without affording it a further opportunity to be heard.

187.   Effect of revocation of approval

(1)  On a revocation of approval under section 186  –

(a) the notice published in the Gazette may provide for the substitution of the Minister or any suitable water entity as the authority to administer the water district but without otherwise affecting the administration of the district; and

(b) the notice may authorise the new water entity to maintain and manage the works of the former water entity relating to the administration of the water district.

(2)  For the purposes of subsection (1) , the application of section 47(4) and (5) extends to the water entity in respect of its property, functions, powers and obligations arising from its administration of the relevant water district and any legal proceedings, documents and contracts relating to that administration.

188.   Revocation of appointment of district

(1)  On application by a responsible water entity or where the Minister is satisfied that the continuation of a water district is not appropriate for the purpose for which the district was appointed, the Minister may, by notice published in the Gazette, revoke the appointment of the district.

(2)  Where a responsible water entity is an electricity entity, the Minister may not exercise his or her powers under subsection (1) except with the consent of the electricity entity or on payment of compensation as provided by section 178 .

(3)  On the revocation, the responsible water entity must, as may be agreed with the Minister, sell or otherwise dispose of its works used in the administration of the district or, failing agreement, within 90 days after the revocation, sell or otherwise dispose of those works as the Minister may direct.

(4)  For the purposes of subsection (3) , the Minister must have regard to the objectives of this Act, the purpose for which the district was appointed, the source of all funds contributed to the water entity and any representations from the water entity or from owners or occupiers of land in the water district.

(5)  On the revocation, the Minister may recover from the water entity in any court of competent jurisdiction as a debt due to the Crown any expense actually and reasonably incurred by the Minister in making the revocation.

Division 3 - Water supply districts and irrigation districts

189.   Application of Waterworks Clauses Act 1952

For the purposes of the application of this Act to water supply districts –

(a) the Waterworks Clauses Act 1952 is incorporated with this Act; and

(b) this Act is taken to be the special Act.

190.   Application of Irrigation Clauses Act 1973

For the purposes of the application of this Act to irrigation districts –

(a) the Irrigation Clauses Act 1973 is incorporated with this Act; and

(b) this Act is taken to be the special Act.

191.   Meaning of undertakers in incorporated Acts

A responsible water entity in respect of a water supply district or an irrigation district is taken to be the undertakers for the purposes of the Waterworks Clauses Act 1952 and the Irrigation Clauses Act 1973 , as the case may be.

192.   Watercourses as water supply channels

(1)  The Minister may, by order published in the Gazette, declare a specified part of a watercourse to be a water supply channel for a specified water supply district or irrigation district.

(1A)  [Section 192 Subsection (1A) inserted by No. 30 of 2005, s. 10, Applied:11 Jul 2005] The declaration of a water supply channel may be made subject to any conditions that the Minister thinks fit to further the objectives of this Act.

(2)  [Section 192 Subsection (2) amended by No. 30 of 2005, s. 10, Applied:11 Jul 2005] On the making of the order, the specified part of a watercourse is taken to be a water supply district or irrigation district, as the case may be.

(3)  If the declaration relates to a watercourse in a hydro-electric district, it may be made only with the agreement of the relevant electricity entity which agreement –

(a) may not be unreasonably withheld; and

(b) may be subject to reasonable conditions imposed by the electricity entity.

(4)  If the agreement is subject to any such conditions, the Minister must include those conditions in the order made under subsection (1) .

(5)  The order may provide that any authorisation under which water may be taken out of the relevant part of the watercourse –

(a) ceases to have effect and, if the Minister so directs, is to be replaced by arrangements for the supply of water by a water entity; or

(b) continues to have effect but subject to such conditions as the Minister may specify –

but, if it is proposed to make such an order, the Minister must publish notification of his or her intention to do so in the Gazette and in a local newspaper, inviting any persons who would be affected by the order to make representations, within a period of 14 days, as to why the order should not be made.

(6)  A right to take water which ceases to have effect under subsection (5) is to be converted into a claim for compensation to be paid by the relevant water entity and to be determined as if it were a disputed claim for compensation under the Land Acquisition Act 1993 .

(7)  The Minister must not make an order under this section if it would be inconsistent with any relevant water management plan.

(8)  Where part of a watercourse has become a water supply channel –

(a) the water entity responsible for the channel must –

(i) receive into it all water flowing into it from the upper part of the watercourse or from side watercourses; or

(ii) divert that water into the lower part of the watercourse or another watercourse by appropriate works; and

(b) the flow of water out of the channel into the lower part of the watercourse, so far as it does not exceed the flow into the channel from the upper part of the watercourse and side watercourses, if any, is taken to be the natural flow of the watercourse.

(9)  The Minister may grant licences in place of rights affected by subsection (6) and the value of those licences is to be taken into account in assessing any compensation to be paid under that subsection.

Division 4 - Riverworks, hydro-electric and drainage districts

193.   Purpose of riverworks district

[Section 193 Amended by No. 49 of 2002, s. 37, Applied:01 Mar 2003] [Section 193 Substituted by No. 12 of 2004, s. 51, Applied:09 Jun 2004] A riverworks district may be established so as to enable a water entity to undertake and manage works or do any act, matter or thing for any or all of the following purposes:

(a) removing, cutting and trimming vegetation and other matter in or on the bed and banks of watercourses and lakes, overhanging them or likely to fall into them and cause environmental harm or pose a risk to public safety or property;

(b) undertaking works in channels so as to stabilise streambeds and streambanks and mitigating against the adverse effects of flooding;

(c) protecting the banks of watercourses and lakes by the use of vegetation, riparian fencing and appropriate river engineering techniques;

(d) removing obstructions where appropriate technical advice has identified that those obstructions are contributing to flooding or streambank damage;

(e) changing the course of watercourses;

(f) controlling or regulating the flow of water in watercourses;

(g) raising or lowering the level of lakes;

(h) planting trees and other vegetation for the purpose of slowing down water running into watercourses and lakes and of protecting banks of watercourses and lakes;

(i) protecting areas of important natural values, such as native vegetation, threatened species, sites of geo-conservation significance, significant habitat and sites of historic, cultural or Aboriginal significance;

(j) the maintenance, repair, control and management of watercourses and lakes, or of any works specified in this section or of the places where they are, or have been, carried out;

(k) any other similar activity which may assist in giving effect to the objectives of this Act or in carrying out a water management plan.

194.   Purpose of hydro-electric district

[Section 194 Amended by No. 49 of 2002, s. 38, Applied:01 Mar 2003] A hydro-electric district may be established so as to enable a water entity to undertake and manage works for a purpose referred to in section 193 or do any act, matter or thing for any such purpose or for any or all of the following purposes:

(a) measuring the flow or levels of water in, or the quantity of water taken by any person from, any watercourse or lake in the district;

(b) conserving and regulating water in watercourses and lakes and purifying and protecting that water from pollution;

(c) any purpose referred to in, or incidental to, a special licence relating to the hydro-electric district –

but only to the extent that that Act, matter or thing is consistent with the objectives of this Act.

195.   Purposes of drainage district

[Section 195 Amended by No. 49 of 2002, s. 39, Applied:01 Mar 2003] A drainage district may be established so as to enable a water entity to undertake and manage works or do any act, matter or thing for all or any of the following purposes:

(a) [Section 195 Amended by No. 49 of 2002, s. 39, Applied:01 Mar 2003] deepening, widening, straightening, diverting or otherwise improving any existing drain or outfall for water, within the drainage district, and removing obstructions to drains or outfalls for water, and raising, widening or otherwise altering any existing defence against water;

(b) making any new drain or new outfall for water, erecting any new defence against water, erecting any machinery and doing any other act required for the drainage of the drainage district;

(c) making, maintaining, altering or discontinuing all such works of any kind or description and erecting such buildings and machinery within the drainage district as may be necessary to carry out its responsibilities;

(d) erecting and maintaining fences on the boundaries of any drain and providing, constructing and maintaining bridges over any drain;

(e) erecting, constructing and maintaining dams, tanks and other means of storing and conserving water as may be necessary to carry out its responsibilities.

196.   Powers to enter land and undertake works

(1)  Where necessary to carry out its responsibilities in the administration of a riverworks district, hydro-electric district or drainage district, a responsible water entity may, in addition to its powers under any other Act –

(a) on giving notice in accordance with section 242(1) to an occupier of land, enter and pass over the land with persons, vehicles and machinery; and

(b) on giving 14 days' notice by post to –

(i) an occupier of land; or

(ii) if the land appears to be unoccupied, to the person shown in the valuation list or assessment roll of the relevant council as the owner at his or her address shown in the list or roll –

undertake any activities required to maintain any of its works.

(2)  If the entry on land is required urgently by reason of imminent danger to human or animal life or to protect any works of the water entity or the environment, notice under subsection (1) is not required.

197.   Powers to undertake works near or through highways

(1)  In this section,

[Section 197 Subsection (1) amended by No. 49 of 2002, s. 40, Applied:01 Mar 2003] Secretary means the Secretary of the responsible department in relation to the Roads and Jetties Act 1935 .

(2)  A responsible water entity may make, break and open such ditches, gutters, tunnels, drains and watercourses in, through or along any highway as it thinks advisable for, or in connection with, its works and may scour, cleanse and keep open all such ditches, gutters, tunnels, drains and watercourses.

(3)  If the exercise of a power under subsection (2) is required urgently by reason of imminent danger to human or animal life or to protect any works of the water entity or the environment, notice under subsection (4) is not required.

(4)  [Section 197 Subsection (4) amended by No. 49 of 2002, s. 40, Applied:01 Mar 2003] A responsible water entity, before exercising its power to break or open up a highway, must give to the council controlling the highway or to the Secretary at least 21 days' notice in writing of its intention so to do.

(5)  On receipt of notice under subsection (4) , the Secretary or council may, by written notice to the water entity, require that the work be carried out under the supervision of an inspector or other officer appointed by the Secretary or council for that purpose.

(6)  If the person so appointed fails to attend for the purpose at the agreed time, the responsible water entity may proceed notwithstanding subsection (5) .

(7)  On receipt of a notice under subsection (4)  –

(a) the Secretary or council may require the observance and provision of such conditions and safeguards as may be necessary for ensuring public safety or for the protection of the highway; and

(b) the responsible water entity must comply with any such requirement to the satisfaction of the Secretary or council.

(8)  [Section 197 Subsection (8) amended by No. 49 of 2002, s. 40, Applied:01 Mar 2003] A responsible water entity must pay compensation to the council or to the Secretary for any damage suffered by the council or Secretary by reason of any work executed by the water entity under this section.

(9)  If a dispute arises as to the amount of any damage so suffered, it may be determined by a magistrate, on complaint by the Secretary or council, under the Justices Act 1959 .

(10)  [Section 197 Subsection (10) amended by No. 49 of 2002, s. 40, Applied:01 Mar 2003] If a dispute arises between a council and a responsible water entity over –

(a) the construction or maintenance of bridges or culverts under a highway repairable by the council; or

(b) the responsibility for the maintenance of works of, or used by, a trust along or under any such highway –

either party to the dispute may refer it to the Minister having the administration of the Roads and Jetties Act 1935 whose decision is to be final and binding on the parties.

198.   Compensation

(1)  In carrying out its responsibilities for the administration of a riverworks district, hydro-electric district or drainage district, a responsible water entity must do as little damage as possible and must pay compensation for the damage.

(2)  If a claimant and the responsible water entity do not agree on the amount of compensation payable under subsection (1) , the claim for compensation is to be determined –

(a) if it is a small claim, by the small claims division of the Magistrates Court; or

(b) in any other case, as if it were a disputed claim under the Land Acquisition Act 1993 .

199.   Offences in connection with water districts

A person must not –

(a) destroy, damage or interfere with any structure, appliance or other work or installation constructed, managed or maintained by a responsible water entity in order to meet its responsibility for administering a riverworks district, hydro-electric district or drainage district; or

(b) without the consent of the responsible water entity, make any drain which empties, either directly or indirectly, into any watercourse or drain where it is part of a riverworks district, hydro-electric district or drainage district; or

(c) without the consent of the responsible water entity, water animals at a drain or watercourse which forms part of a riverworks district, hydro-electric district or drainage district, except at a watering-place provided for that purpose; or

(d) destroy, damage or tamper with any work of a responsible water entity; or

(e) permit an animal to cause damage to a drain or watercourse of a responsible water entity; or

(f) draw any log, tree or timber, or drive any vehicle, across a drain of a responsible water entity, except over a bridge provided for the purpose; or

(g) remove soil, sand, gravel or shingle from land owned or occupied by a responsible water entity.

Penalty:  Fine not exceeding 50 penalty units.

200.   Compensation payable to water entity

(1)  A court by which a person is convicted of an offence against section 199 may, where the complaint contains a claim for damages arising from the commission of the offence, order the defendant to pay to the responsible water entity damages representing the actual or expected cost of restoring its works or repairing damage.

(2)  For the purposes of subsection (1)  –

(a) the responsible water entity is taken to be the complainant in the proceedings; and

(b) an amount of damages ordered to be paid is recoverable in a court of competent jurisdiction as if it were a debt owing to the responsible water entity.

Division 5 - Rates for riverworks and drainage districts

201.   Power to levy rates

(1)  A responsible water entity may, with the approval of the Minister, determine and levy rates in order to provide for the costs necessarily incurred –

(a) in the administration of a riverworks district or drainage district; and

(b) [Section 201 Subsection (1) amended by No. 49 of 2002, s. 41, Applied:01 Mar 2003] in constructing, maintaining and operating works necessary for the purpose for which the district was appointed.

(2)  In determining and levying rates for the purposes of a riverworks district or drainage district, a responsible water entity may impose different rates in different areas according to different benefits for owners or occupiers of land in those areas.

202.   Rates on Crown land

All rates made in respect of unoccupied Crown land subject to the district are to be paid to the responsible water entity by the Treasurer out of the Consolidated Fund without further appropriation than this section.

203.   Procedure for rating

(1)  The amount of rates is to be determined by the responsible water entity and is to be levied annually.

(2)  The rates are to be levied on, and are payable by, the owners of properties within the area, and are to be levied by the responsible water entity in the same manner as service rates in respect of those properties under the Local Government Act 1993 .

(3)  Rates levied under this Division are not subject to a remission under the Local Government (Rates and Charges Remissions) Act 1991 .

(4)  The responsible water entity may, with the Minister's approval, remit any rate, wholly or in part, where it is of opinion that to levy it would cause serious financial hardship to the person liable to pay.

PART 10 - Trusts

Division 1 - Establishment of trusts

204.   Administration of district or water management plan

This Part has effect where an application presented to the Minister under section 37 , 168 or 169 proposes that a responsible water entity is to be a trust.

205.   Application to establish trust

(1)  An application for the establishment of a trust may be made to the Minister by –

(a) the holders of licences to take water from a water resource or part of a water resource to which a water management plan relates; or

(b) the owners of at least two-thirds of the land in a water district.

(2)  [Section 205 Subsection (2) substituted by No. 12 of 2004, s. 52, Applied:09 Jun 2004] An application under subsection (1) is to be in an approved form and –

(a) is to include the rules of the proposed trust in accordance with clause 6A of Schedule 3 ; and

(b) is to provide such other information as the Minister may require for the purposes of this Part; and

(c) is to be accompanied by the prescribed fee.

206.   Approval of application

[Section 206 Substituted by No. 12 of 2004, s. 53, Applied:09 Jun 2004]

(1)  The Minister must, in considering an application under section 205 , ensure that the rules of the trust submitted with the application comply with the requirements of clause 6A of Schedule 3 .

(2)  The Minister may, in approving the application, impose any condition that he or she considers necessary to give effect to the objectives of this Act or to give effect to any relevant water management plan.

206A.   Establishment of trust

[Section 206A Inserted by No. 12 of 2004, s. 53, Applied:09 Jun 2004]

(1)  On approval of an application under section 205 , the Minister must also approve the rules of the trust and, by notice published in the Gazette, establish and name the trust and state the water district in respect of which it is established.

(2)  The Minister must, within 14 days after publication of the notice in the Gazette, give notice of the establishment of the trust in a newspaper circulating generally in Tasmania.

(3)  The Minister, on application by a trust, may alter the rules of the trust if the alteration is consistent with this Act and complies with the requirements of clause 6A of Schedule 3 .

207.   Membership and proceedings of trusts

Schedule 3 has effect in respect of the membership and proceedings of trusts.

208.   Minister may give directions to trust

(1)  The Minister may give directions to a trust with respect to the performance of its functions and, in performing its functions, the trust must comply with any directions so given.

(2)  The power conferred on the Minister by subsection (1) is not to be exercised so as –

(a) to require a trust to do anything that it is not empowered to do by this Act; or

(b) to prevent a trust from performing any function that it is required by this Act to perform, whether conditionally or unconditionally; or

(c) to interfere with the formation by a trust of any opinion or belief relating to any matter that has to be determined as a prerequisite to the performance or exercise by the trust of any of its functions or powers under this Act.

209.   Protection from liability

(1)  A member of a trust does not incur any personal liability in respect of any act done or omitted to be done by the member in good faith in the performance or exercise, or purported performance or exercise, of any function or power of the trust or in the administration or execution, or purported administration or execution, of this Act.

(2)  Subsection (1) does not preclude a trust from incurring liability that a member of the trust would, but for that subsection, incur.

210.   Incorporation of boards

A trust is a body corporate under a name assigned by the Minister, with perpetual succession and a common seal.

211.   Constitution of trust

(1)  A trust is to consist of a board of 3, 5, 7 or 9 trustees.

(2)  In approving the establishment of a trust to be the responsible water entity for a water district in which there is Crown land or in which the trust is to manage works owned by the Crown, the Minister may, with the agreement of the Minister administering that land or those works, require that one or more of the trustees will be appointed by that Minister.

(3)  Where the Minister is satisfied that –

(a) the number of persons resident in a water district for which a trust is the responsible water entity is insufficient to provide the full number of trustees for the time being constituting the trust; or

(b) the number of licensees who may take water from a water resource to which a water management plan administered by a trust under Division 2 of Part 4 relates is insufficient to provide the full number of trustees for the time being constituting the trust –

the Minister may approve a reduction of that number to any lesser odd number exceeding 1.

(4)  The Minister may, by order published in the Gazette, give such directions as are necessary to reconstitute the trust following a change to the number of trustees under subsection (3) and, in particular, may provide for the retirement, election and term of office of the trustees and the dates on which provisions of the order are to take effect.

Division 2 - Powers and duties of trusts

212.   Power to borrow

(1)  A trust may borrow money not exceeding the estimated revenue of the trust for 10 years, on the security of all the rates, funds, revenues and property of, or at the disposal of, the trust, for such purposes as the Minister may authorise.

(2)  Any such money is to be borrowed by the trust under Part III of the Statutory Authorities Act 1962 .

213.   Poll to be taken

(1)  Before proceeding to borrow money, a trust must take a poll of its electors.

(2)  Before taking the poll, the trust must give public notification of the proposed borrowing twice in a local newspaper and the later notice is to be published not more than one week before the taking of the poll.

(3)  The notification is to contain the following particulars:

(a) the hours during which, and the place at which, the poll will be taken;

(b) the amount proposed to be borrowed;

(c) the purposes for which the proposed loan is to be applied.

(4)  The proceedings for the taking of the poll are to be as prescribed by the regulations.

214.   Effect of poll

The trust must not proceed to borrow the money in respect of which a poll is taken unless the votes cast at the poll in favour of the proposal comprise two-thirds of the total number of valid votes recorded at the poll, but, where the votes cast comprise less than that proportion, the trust may take another poll after the expiration of 12 months from the date of the previous poll on the proposal.

215.   Borrowing on overdraft

(1)  A trust may, with the approval of the Minister and for the purposes of temporary financial accommodation, obtain advances from any bank, building society or credit union by overdraft on the current account of the trust.

(2)  An advance obtained by a trust under this section –

(a) is not at any time to exceed one-half of the revenue of the trust for the financial year preceding that in which the trust obtains the advance; and

(b) is not subject to the requirements of this Division.

216.   Appointment of employees, &c.

(1)  [Section 216 Subsection (1) amended by No. 12 of 2004, s. 54, Applied:09 Jun 2004] A trust may appoint such employees or contractors as it may think necessary for carrying out its responsibilities under this Division, on such terms as it may think fit.

(2)  A trust, with the approval of the Minister, may pay to the chairperson such remuneration as it may think desirable and such a payment is taken as not constituting his or her office as an office of profit.

217.   Duties of trustees

(1)  A trust must keep proper accounts and records in respect of all its operations and must do all things necessary to ensure that –

(a) all payments made by it are correctly made and properly authorised; and

(b) adequate control is maintained over the property of, or in the custody of, the trust and over the incurring of liabilities by the trust.

(2)  The accounts and records kept under subsection (1) are at all reasonable times to be open to inspection by the Minister or any trustee, who may take extracts from them.

218.   Application of money

Any money received by a trust is to be applied in the payment or discharge of the expenses, charges and obligations incurred or undertaken by the trust in the performance of its functions and the exercise of its powers.

219.   Trust accounts

(1)  [Section 219 Subsection (1) amended by No. 12 of 2004, s. 55, Applied:09 Jun 2004] A trust must open and maintain at least one account in an authorised deposit-taking institution in Tasmania.

(2)  A trust must pay any money received by it into an account referred to in subsection (1) .

220.   Temporary investment of funds

A trust may invest any money that it is holding and for which it has no immediate use in any manner in which the investment of trust funds is authorised under the Trustee Act 1898 .

221.   Audit of accounts

[Section 221 Amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] The accounts of a trust are subject to Part 3 of the Financial Management and Audit Act 1990 and a trustee and an employee of a trust must at all times comply with the requirements of that Act as if he or she were a State Service officer or State Service employee.

222.   Inspection of accounts

A person having the custody of any accounts of the trust must, on demand by the Minister or an elector, permit him or her to inspect them and to make copies of them or take extracts from them.

Penalty:  Fine not exceeding 5 penalty units.

Division 3 - Dissolution of trusts

223.   Dissolution on revocation of approval

Where the Minister revokes approval for a trust to be the responsible water entity for administering –

(a) a water management plan under section 47 ; or

(b) a water district under section 186  –

the Minister may, by order published in the Gazette, dissolve the trust.

224.   Voluntary dissolution

(1)  A trust may apply to the Minister in writing to be dissolved.

(2)  The Minister must give notice of the application in the Gazette and in a local newspaper and the notice –

(a) is to invite written representations from any persons who may be affected by the proposed dissolution; and

(b) is to state a period of at least 28 days after the publication of the notice in the Gazette during which the representations as to the proposed dissolution may be made and the address to which they are to be sent.

(3)  After considering any submissions received under subsection (2) , the Minister may, by order published in the Gazette, dissolve the trust.

225.   Dissolution of trust

The Minister may, by order published in the Gazette, dissolve a trust if satisfied that –

(a) the trust has contravened a condition to which its administration of a water management plan or water district is subject; or

(b) the trust's administration of a water management plan or water district does not further the objectives of this Act.

226.   Effect of dissolution

(1)  In this section,

transfer day means the day on which a notice published in the Gazette under this Division takes effect.

(2)  The Minister may, by order published in the Gazette, appoint another water entity to administer a water management plan under section 47 or a water district under section 176 in place of a trust that is dissolved under this Division.

(3)  The order may provide that –

(a) the property of the trust vests in the other water entity; and

(b) the functions, powers and obligations of the trust are transferred to the other water entity; and

(c) any legal proceedings pending immediately before the transfer day and which were instituted by, or against, the trust may be continued by or against the other water entity; and

(d) any legal proceedings by, or against, the trust to enforce a right that had accrued, and was in existence, immediately before the transfer day may be commenced by or against the other water entity; and

(e) a judgment or order of a court obtained before the transfer day by or against the trust may be enforced by or against the other water entity; and

(f) a document addressed to the trust may be served on the other water entity; and

(g) a contract made or entered into by the trust before the transfer day but not performed or discharged before that day is taken to have been made or entered into by the other water entity.

PART 11 - Meters

227.   Power of Minister to attach meters

(1)  The Minister may affix a meter in or on a pipe or in a channel which supplies water to any person taking water from a water resource for the purpose of measuring water flows or water levels in the water resource from which the water is taken.

(2)  The Minister may, by notice in writing, direct a person taking water from a water resource to affix a meter in or on the pipe or in the channel supplying water to his or her land.

(3)  The Minister may, in the notice, specify the type of meter or a standard for the meter to be affixed under subsection (2) .

(4)  If a person on whose supply a meter has been so fixed, or who has been required to affix a meter, draws supply otherwise than through that meter and is not authorised in writing by the Minister to do so, he or she is guilty of an offence and is liable on summary conviction to a fine not exceeding 50 penalty units and, in the case of a continuing offence, a further fine not exceeding 5 penalty units for each day during which the offence continues.

(5)  A person who is directed to affix a meter under this section, or the person taking the water through the meter or a person holding the licence or taking water from the water resource to which the meter relates, as the case may be, must maintain the meter in an accurate working condition.

Penalty:  Fine not exceeding 50 penalty units and, in the case of a continuing offence, a further fine not exceeding 5 penalty units for each day during which the offence continues.

228.   Interference with meters

(1)  A person must not, without the permission of the Minister, interfere with or injure a meter affixed under section 227 .

Penalty:  Fine not exceeding 50 penalty units and, in the case of a continuing offence, a further fine not exceeding 5 penalty units for each day during which the offence continues.

(2)  The Minister may recover any cost incurred in repairing or replacing a meter as a result of interference or injury to that meter from the person responsible for that interference or injury and that cost is a debt due to the Minister payable by that person and recoverable as such in a court of competent jurisdiction.

229.   Power to undertake works

(1)  If a person contravenes a direction by the Minister under section 227(2) , the Minister may authorise a person to enter on the relevant land and carry out any work necessary to install the meter or to ensure the accurate operation of the meter.

(2)  The cost of work undertaken under subsection (1) is a debt due to the Minister payable by the first-mentioned person and recoverable as such in a court of competent jurisdiction.

230.   Meters may be condition of licence

A requirement to affix and use a meter under section 227 may be a condition of a licence under section 56 .

231.   Power of Minister to charge for meters

(1)  The Minister may charge a person for the use of a meter affixed under section 227(1) .

(2)  Any such charge is payable by the person and is recoverable as a debt due to the Crown by the person in a court of competent jurisdiction.

232.   Notice of removal, &c., of meters

(1)  A person may request the Minister to remove or alter the position of any meter by giving at least 7 days’ notice in writing to that effect to the Minister.

(2)  The Minister may cause a reading of the meter to be taken, and the required removal or alteration to be made, and no alteration may be made except by or under the direction of an authorised officer or until the permission of the Minister has been obtained.

(3)  Any expense actually and reasonably incurred by the Minister under subsection (2) is a debt due to the Minister payable by the person requiring the work and recoverable as such in a court of competent jurisdiction.

(4)  A person who removes or alters the position of a meter otherwise than in accordance with this section is guilty of an offence and is liable on summary conviction to a fine not exceeding 50 penalty units and, in the case of a continuing offence, a further fine not exceeding 5 penalty units for each day during which the offence continues.

(5)  In a prosecution for an offence against subsection (4) , it is a defence if the person charged can show that the removal or alteration of the position of the meter did not significantly affect the collection or use of information from the meter for the purpose for which it was installed.

233.   Reading of meters

(1)  The Minister may cause meters affixed or installed under this Part to be read by an authorised officer or other person approved by the Minister at such periods and under such conditions as he or she may require.

(2)  The reading of a meter is taken to be evidence of the quantity of water taken by a person unless varied in accordance with this section.

(3)  If a person taking water through a meter is dissatisfied with the accuracy of the reading of the meter –

(a) he or she may apply, in writing, to the Minister to have the meter tested; and

(b) the reading of the meter is to be adjusted to account for any significant error as determined by the test.

(4)  The application is to be accompanied by such fee as the Minister may determine as the cost of making the test.

(5)  If, on being tested as provided by this section, the reading of a meter is found to be significantly in error, the Minister must repay the fee paid under subsection (4) to the person who made the application.

(6)  [Section 233 Subsection (6) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] A person on whose supply a meter has been fixed or who has been required to affix a meter under section 227 may apply to the Minister for a direction that the information obtained from that meter, unless otherwise agreed with the applicant, is to be available only to a State Service officer or State Service employee who is employed in the Department.

234.   False reading of meters

A person taking a reading of a meter under section 233(1) must not take the reading otherwise than in accordance with any condition required by the Minister and must not provide a false reading.

Penalty:  Fine not exceeding 10 penalty units.

235.   Inspection and removal of meters

(1)  [Section 235 Subsection (1) amended by No. 49 of 2002, s. 42, Applied:01 Mar 2003] Where a meter is installed under this Part, an authorised officer may, at any reasonable times, enter any building or land to, through or into which water is taken for the purpose of inspecting or reading the meter or of removing any meter or associated apparatus belonging to the Minister.

(2)  A person who hinders any such person from entering or making any such inspection or reading or effecting any such removal, as the case may be, is guilty of an offence and is liable on summary conviction to a penalty not exceeding 5 penalty units.

236.   Protection of meters

The occupier of land on which a meter belonging to the Minister is installed must at all times take all reasonable measures to protect it from damage or interference and is responsible for its safekeeping.

Penalty:  Fine not exceeding 10 penalty units and, in the case of a continuing offence, a further fine not exceeding one penalty unit for each day during which the offence continues.

PART 12 - Authorised officers

Division 1 - Appointment of authorised officers

237.   Appointment of authorised officers

(1)  The Minister may, in writing, appoint persons to be authorised officers for the purposes of this Act but, if the person appointed is an officer or employee of a council, the appointment is to be made only with the agreement of the council.

(2)  An appointment –

(a) is to be for a period, not exceeding 3 years, stated in the instrument of appointment; and

(b) may be made subject to conditions limiting the area within which, or the purposes for which, the appointee may exercise the powers of an authorised officer.

(3)  The Minister must provide an authorised officer with an identity card in an approved form.

(4)  The Minister may, by notice in writing served on an authorised officer –

(a) vary or revoke a condition of the appointment; or

(b) revoke the appointment.

238.   Production of identity card

(1)  An authorised officer, if so required by a person who may be affected by the exercise of the officer's powers under this Act, must produce his or her identity card for inspection by that person.

(2)  If an authorised officer fails to produce his or her identity card when required by a person referred to in subsection (1) , the person is not obliged to comply with a requirement of the officer.

239.   Return of identity card

An authorised officer must, on ceasing to be so authorised, return his or her identity card to the Minister.

Penalty:  Fine not exceeding 5 penalty units.

Division 2 - Powers of authorised officers

240.   General powers of authorised officers

Subject to any conditions imposed under section 237(2)(b) , an authorised officer may, at any reasonable time and for the purposes of this Act –

(a) measure the flow or levels of water in any watercourse, dam or lake or the flow of water under or over any land; or

(b) measure the quantity of water taken by any person from a water resource or dam; or

(c) ascertain the quality of water in a watercourse, lake or dam or of any groundwater; or

(d) take samples of water on, or under, any land; or

(e) take samples of any material of a kind that, in the officer’s opinion, has entered, or may enter, water on or under any land; or

(f) make such measurements or undertake such activities as are necessary to ascertain the state of the environment of a watercourse, dam or lake or of groundwater; or

(g) ascertain the location of or inspect a works used for, or in connection with, the taking of water; or

(h) inspect any machinery or equipment or structure which may be used for taking, storing, pumping, transporting or supplying water; or

(i) inspect and examine meters and ascertain the quantity of water taken by a person; or

(j) inspect, repair or maintain in working order any property owned by the Crown or under its control or management or inspect any property owned by a water entity or under its control or management; or

(k) carry out a survey or investigation for, or in connection with, a works for the supply of water under this Act; or

(l) maintain a works for the supply of water or carry out a modification to any such works; or

(m) inspect any waterworks, use of water, or the level or flow of a watercourse or lake; or

(n) examine any water, cuttings or other materials required to be preserved under section 132(1) ; or

(o) carry out such operations on a well, to determine the condition of the well or of the soil, rock or other water-bearing material in which the well is situated or of waters, as the Minister may authorise and specify in a notice for the purposes of this subsection; or

(p) take photographs, films or video or audio recordings or make a record in any other manner or by any other means; or

(q) require a person who the officer reasonably believes has committed, is committing or is about to commit an offence against this Act to state the person’s full name and usual place of residence; or

(r) require a person holding or required to hold an authorisation to produce evidence of the authorisation for inspection; or

(s) take any action or execute any work required by this Act to be taken or executed in connection with the performance of the functions or the exercise of the powers of a water entity under this Act if the water entity is in default after being requested for a reasonable time to take that action or execute that work; or

(t) exercise any other powers prescribed by regulations.

241.   Powers of authorised officers to enter premises

(1)  Subject to section 242  –

(a) an authorised officer who has a reasonable belief that there is or has been on, or in connection with, any premises any contravention of this Act may enter those premises at any reasonable time without notice for the purpose of ascertaining whether in fact there is, or was, any such contravention; and

(b) an authorised officer may enter premises at any reasonable time for the purpose of exercising his or her powers under section 240 .

(2)  On entering and on leaving the premises, an authorised officer must ensure that they are as effectively secured against trespassers as he or she found them.

242.   Notice of entry to premises

(1)  Where entry to premises is required for the purposes of –

(a) maintaining a works for the supply of water under this Act; or

(b) constructing or maintaining a works for the management of water under this Act; or

(c) carrying out any addition or modification to any such works –

an authorised officer must give notice in accordance with this section.

(2)  For the purposes of subsection (1)  –

(a) not less than 7 days' notice is to be given to the owner or occupier; and

(b) the notice may authorise entry at such times and on such occasions as are specified in the notice during the period that is so specified as the period required for the construction, maintenance, addition or modification; and

(c) the period specified in a notice under paragraph (b) may be extended by giving a further such notice to the owner or occupier not less than 2 days before the expiration of that period.

(3)  Except as provided in this Act, where the entry is required for the purpose of carrying out a survey or investigation for, or in connection with, a works for the management or supply of water under this Act or for a purpose not mentioned in this section –

(a) not less than 3 days' notice must be given to the owner or occupier; and

(b) the notice may authorise entry at such times and on such occasions as may be specified in the notice.

(4)  An authorised officer may use reasonable force to enter on land or enter a building or structure on land –

(a) with the authority of a warrant issued by a justice of the peace; or

(b) if the officer believes, on reasonable grounds, that the circumstances require immediate action to be taken.

(5)  A justice of the peace must not issue a warrant under subsection (4) unless satisfied, on information given on oath –

(a) that there are reasonable grounds to suspect that an offence against this Act has been, is being, or is about to be, committed; or

(b) that the warrant is reasonably required in the circumstances.

243.   General powers of authorised officers to enter watercourses, lakes, &c.

(1)  An authorised officer may –

(a) enter on the bed and banks of any watercourse or lake; or

(b) enter any premises as provided by section 241 after giving such notice, if any, as is provided by that section –

for the purpose of, or in connection with, exercise by the water entity concerned of any power conferred by this Part to carry out works on or in that watercourse or lake and may take with him or her such vehicles, machinery and other things as may be required for the purpose of the works.

(2)  In the exercise of the powers conferred by this section, an authorised officer must do as little damage as possible and, in case of any damage, the water entity concerned must pay compensation in accordance with the Land Acquisition Act 1993 .

(3)  If the claimant and the water entity do not agree as to the amount of compensation payable under subsection (2) , the claim for compensation is to be determined –

(a) if it is a small claim, by the small claims division of the Magistrates Court; or

(b) in any other case, as if it were a disputed claim under the Land Acquisition Act 1993 .

244.   Entry on land for taking measurements

(1)  In this section,

authorised person means –

(a) [Section 244 Subsection (1) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] a State Service officer or State Service employee who is employed in the Department and authorised in writing by the Secretary; and

(b) a person who is employed by, or for the purposes of, a responsible water entity and authorised in writing by the entity; and

(c) any other person authorised in writing by the Minister for the purposes of this section.

(2)  An authority may be granted by reference to an office or position held in an Agency or the water entity.

(3)  An authorised person may enter on and survey any land and take any action required for the exercise of his or her powers under section 240(a) , (b) , (c) , (d) , (e) , (f) , (g) , (i) , (j) , (k) , (m) , (n) , (o) or (p) .

(4)  The Minister may require that a copy of any information obtained in the exercise of powers under subsection (3) be supplied to the Minister free of charge unless the Minister agrees otherwise.

245.   Other persons may accompany authorised officer

(1)  An authorised officer may take with him or her such other persons as may be necessary for the purpose of the entry on the land or premises.

(2)  A person who, under subsection (1) , accompanies an authorised officer when entering land or premises has the same power to enter the land or premises as is conferred on the authorised officer under this Division.

Division 3 - Powers to prevent unlawful taking of water

246.   Circumstances in which Division applies

(1)  If –

(a) water is taken from a watercourse, lake or well in contravention of a licence or right under this Act, having regard to any order or direction in force for the time being under this Act; or

(b) in any other circumstances water is taken from a watercourse, lake or well without lawful authority –

an authorised officer may, without any previous notice, enter on any land and direct the owner or occupier of the land –

(c) to cease forthwith the taking of part or all of that water; or

(d) to modify forthwith the equipment used for the taking of that water or carry out such other works as may be directed to ensure that any water taken will be restricted to such amount as may be lawfully taken.

(2)  A person must not contravene a direction of an authorised officer under subsection (1) .

Penalty:  Fine not exceeding 50 penalty units and, in the case of a continuing offence, a further fine not exceeding 5 penalty units for each day during which the offence continues.

247.   Action on contravention of direction

(1)  Where an owner or occupier of land who has been given a direction under section 246 contravenes the direction, an authorised officer may, without any previous notice –

(a) enter on any land for the purposes of taking such action as necessary to carry out the direction or to prevent continuing contravention of the direction; and

(b) seize any equipment used for the unlawful taking of water.

(2)  Where equipment has been seized under this section, the owner or occupier is not entitled to the return of that equipment until he or she has complied with the relevant direction.

248.   Authorised officer may affix seals

Where an owner or occupier of land has been given a direction under section 246 , an authorised officer may affix a seal to any equipment used for the taking of water or, as the case may be, any works carried out under section 246(1)(d) .

249.   Recovery of costs

(1)  On the conviction of a person for an offence under this Division, the court by which he or she is convicted may, in addition to any other penalty that may be imposed, order that that person must pay to the Minister the amount of any expense reasonably incurred by an authorised officer in taking action under section 247(1) .

(2)  An amount ordered to be paid to the Minister under subsection (1) is recoverable in any court of competent jurisdiction as a debt due to the Minister by the person against whom the order is made.

250.   Liability for offence not limited

Nothing in this Division is taken as affecting any liability for an offence under any other provision of this Act.

Division 4 - Supplemental

251.   Manner of giving notices

(1)  A notice under section 242 may be given to an owner or occupier –

(a) by delivering it personally to the owner or occupier; or

(b) by leaving it at his or her usual or last place of residence known to the relevant water entity; or

(c) by sending it by post as certified mail; or

(d) in the case of an owner or occupier having an office or shop, by leaving it there in a receptacle apparently provided for the purpose of receiving mail or with any person apparently a manager, accountant, cashier or clerk in the office or shop; or

(e) by delivering it, or a true copy of the notice, to some person on the land and apparently an agent of the owner or occupier; or

(f) if no such agent can be found on the land, by fixing it on some conspicuous part of the land.

(2)  Where a notice is required to be given to a person whose address is unknown to the relevant water entity and who has no agent in Tasmania known to the water entity or authorised officer, it may instead of delivery be advertised 3 times, at intervals of not less than one week between any 2 publications, in a newspaper regularly circulating in the district where the land is situated.

(3)  If the name of the owner or occupier is not known to the relevant water entity or authorised officer, the notice may be addressed to him or her by the description of the "owner" or "occupier" of the land (naming or describing it) in respect of which the notice is given, without further name or description.

(4)  If a notice has been given to an owner or occupier under this section, the notice is binding on a person who claims by, from or under that owner or occupier.

PART 13 - Enforcement

Division 1 - Water infringement notices

252.   Service and acceptance of water infringement notices

(1)  Where an authorised officer is satisfied that a person has committed an offence against this Act, he or she may serve on that person a notice in respect of that offence by delivering it to that person or by sending it to that person by post.

(2)  A water infringement notice is to clearly indicate –

(a) the offence in respect of which it is served; and

(b) the prescribed penalty for that offence; and

(c) the total amount payable; and

(d) the number of demerit points for that offence; and

(e) that payment of the prescribed penalty is to be made to a clerk of petty sessions; and

(f) the time before which the prescribed penalty is to be paid; and

(g) that the person may disregard the notice, but that if he or she does so, he or she may be prosecuted before a court for the offence to which it relates.

(3)  Unless it has been withdrawn, a water infringement notice may, subject to subsection (4) , be accepted by the person on whom it was served –

(a) by the payment, within 21 days after the service of the notice, of the prescribed penalty to a clerk of petty sessions; or

(b) by lodging with the clerk, within 21 days after the service of the notice, a written undertaking by that person to pay the penalty by such instalments or within such time as the clerk may direct.

(4)  Where a water infringement notice has been accepted as mentioned in subsection (3) by the person, a clerk of petty sessions may, at the expiration of the relevant period specified in that subsection and by written notification to that person, allow that person an additional period of 14 days commencing on the expiration of that period in which to accept the notice.

(5)  Notwithstanding subsections (3) and (4) , a clerk of petty sessions may, at any time before a complaint and summons is issued for the relevant offence, accept payment of the prescribed penalty or a written undertaking to pay the penalty either wholly or by instalments within such time as the clerk may direct.

(6)  Notification of an extension of time by a clerk of petty sessions is to be served on a person by sending it by post addressed to the person at the place shown as his or her address in the relevant water infringement notice.

253.   Stay of proceedings

(1)  Where a water infringement notice has been served on a person, proceedings may not be brought against that person for the offence to which the notice relates if the notice has been accepted and has not been withdrawn.

(2)  Whether or not a water infringement notice is accepted, proceedings may not, unless the notice has been withdrawn, be brought within the period of –

(a) 28 days following the service of the notice, if the person on whom it was served has not been allowed an additional period under section 252(4) ; or

(b) 42 days following the service of the notice, if the person has been allowed such an additional period.

254.   Effect of acceptance of water infringement notices

Where a water infringement notice in respect of an offence has been accepted by a person and has not been withdrawn –

(a) acceptance is, for the purpose of proceedings for any other offence, taken as a conviction for the offence to which the notice relates unless the court before which those proceedings are taken is satisfied that it is unjust that it should be so treated; and

(b) acceptance is not taken as an admission of liability for the purpose of, nor in any way to affect or prejudice, any civil claim, action or proceeding.

255.   Withdrawal of water infringement notices

(1)  A water infringement notice that has been served on a person may, whether or not it has been accepted, be withdrawn as provided in subsection (2) at any time within the period of –

(a) 28 days following the service of the notice, if the person has not been allowed an additional period under section 252(4) ; or

(b) 6 weeks following the service of the notice, if the person has been allowed such an additional period.

(2)  For the purposes of subsection (1) , a water infringement notice served on a person may be withdrawn by the service on that person of a notice in writing signed by an authorised officer stating that the water infringement notice has been withdrawn.

(3)  Where a notice is withdrawn under this section and an amount has been paid to a clerk of petty sessions by way of penalty under that notice, the clerk must repay the amount so paid to the person on whom the notice was served.

(4)  Where a water infringement notice has been served and has been withdrawn, evidence of the service, acceptance or withdrawal of the notice is not admissible in any proceedings for the offence to which the notice relates.

(5)  References in this Act to the withdrawal of a water infringement notice are taken to be references to the withdrawal of that notice under this section.

256.   Effect of undertaking to pay prescribed penalty

(1)  Where an undertaking as mentioned in section 252(3)(b) is lodged with a clerk of petty sessions, the clerk must give directions to the person by whom the undertaking is given requiring the person to pay the penalty to which the undertaking relates in such instalments or within such time as may be specified in the directions.

(2)  Directions may not be given under subsection (1) if they would have the effect of allowing any part of the penalty to which they relate to be paid after the expiration of 63 days from the date on which the relevant water infringement notice was served.

(3)  Before giving directions under subsection (1) , the clerk must –

(a) consider any representations made to the clerk by or on behalf of the person to whom the notice relates, whether at the time the undertaking is lodged or otherwise, with respect to the person's financial circumstances; and

(b) give such directions as, having regard to those representations and all the circumstances of the case, the clerk considers just and reasonable.

(4)  Where a person contravenes any directions given under subsection (1) , proceedings may be brought against the person in respect of so much of the penalty to which the directions relate as remains unpaid as if the penalty were a penalty imposed on the person on summary conviction for the offence to which the relevant water infringement notice relates.

Division 2 - Demerit points

257.   Allocation of demerit points

Where a licensee or a person acting on behalf of a licensee is convicted of an offence against this Act or accepts a water infringement notice, demerit points are to be allocated to his or her licence in accordance with the regulations.

258.   Effective period of demerit points

(1)  Demerit points remain in force for a period prescribed by the regulations and take effect on the date of commission of the offence in respect of which they are allocated.

(2)  For the purposes of this Part, an offence is taken to have been committed on the date on which the act or conduct constituting the offence occurred.

259.   Suspension or cancellation of licence

(1)  Where demerit points are allocated to a licence, the regulations may provide for a licence to be suspended or cancelled during a period prescribed by the regulations.

(2)  The regulations may also provide that, if a licence is suspended on a specified number of occasions, the licence is taken to be cancelled.

(3)  The Secretary must, by notice in writing served on the holder of a licence, notify the holder of the date on which the licence is suspended or cancelled and of any application made under subsection (4) .

(4)  A person may make written application to the Minister for an alteration of the date on which a licence is suspended or cancelled under subsection (3) .

(5)  An application under subsection (4)  –

(a) is to be in an approved form; and

(b) is to contain such information as the Minister may require to consider the application.

(6)  The Minister may approve an application made under subsection (4) where he or she is of the opinion that the approval –

(a) is necessary to avoid a serious adverse effect on the applicant; and

(b) is not likely to cause a significant adverse effect on other persons holding a right to take water under this Act.

(7)  An approval under subsection (6)  –

(a) is to be for no longer than 6 months after the date specified in subsection (3) ; and

(b) may be subject to such conditions as the Minister determines.

(8)  Where the date of suspension or cancellation of a licence is extended by an approval under subsection (6) , the licence or a water allocation of the licence may not be transferred under Division 4 of Part 6 during the extended period.

260.   Disqualification from obtaining licence

The regulations may provide that the following persons are disqualified from obtaining or holding a licence:

(a) a person who has been the holder of a licence which has been suspended on a prescribed number of occasions or has been cancelled following the allocation of demerit points;

(b) a person who is or has been a member of a partnership or a substantial shareholder in a body corporate that has held a licence which has been suspended on a specified number of occasions or cancelled following the allocation of demerit points;

(c) a partnership or body corporate of which a member or substantial shareholder has been the holder of a licence that has been suspended on a prescribed number of occasions or cancelled following the allocation of demerit points.

261.   Notification of cancellation or suspension

The Secretary must, by notice in writing, notify a person of –

(a) any cancellation or suspension of his or her licence under this Part; and

(b) the date on which it takes effect.

262.   Transfer of demerit points

(1)  Any demerit points allocated to a licence that is transferred to another person under Division 4 of Part 6 continue to be in force in respect of that licence as provided by the regulations.

(2)  Where part of a water allocation of a licence to which demerit points are allocated is transferred to another licensee under Division 4 of Part 6 , the demerit points are allocated to the licence of the transferor and the licence of the transferee in proportion to the part of the water allocation which is transferred.

263.   Correction of notation of demerit points

(1)  A person may apply to a magistrate for an order to correct the register in respect of any demerit points allocated to his or her licence.

(2)  The magistrate, if satisfied that the notation of demerit points in the register is incorrect, may order the Minister to correct the notation as specified in the order or, if not so satisfied, may dismiss the application.

(3)  The magistrate may make any order that he or she considers appropriate in respect of costs of the application.

Division 3 - Civil enforcement proceedings

264.   Application to Appeal Tribunal for order

(1)  Where –

(a) a person has engaged, is engaging or is proposing to engage in conduct in contravention of this Act; or

(b) a person has refused or failed, is refusing or failing, or is proposing to refuse or fail to take any action required by this Act –

the Secretary, a water entity or any other person with the leave of the Appeal Tribunal may apply to the Tribunal for an order under this section.

(2)  The Appeal Tribunal may not grant leave for the purposes of subsection (1) , unless it is satisfied that –

(a) the proceedings on the application would not be an abuse of the process of the Tribunal; and

(b) it is likely that the requirements for the making of a determination under subsection (6) on the application would be satisfied; and

(c) it is in the public interest that the proceedings should be brought.

(3)  The application may be made ex parte and, if the Appeal Tribunal is satisfied that there are sufficient grounds, it must issue a summons requiring the respondent to appear before the Tribunal to show cause why an order should not be made under this section.

(4)  After hearing –

(a) the applicant and the respondent; and

(b) any other person who has, in the opinion of the Appeal Tribunal, a proper interest in the subject matter of the proceedings and desires to be heard in the proceedings –

the Tribunal may, if it considers it appropriate to do so, make an order as mentioned in subsection (6) .

(5)  If the respondent fails to appear in response to the summons or, having appeared, does not avail himself or herself of an opportunity to be heard, the Appeal Tribunal may, if it considers it appropriate to do so, by order do any of the things specified in subsection (6) .

(6)  The Appeal Tribunal may make any order on the application that it thinks fit and in particular may –

(a) require the respondent to refrain, either temporarily or permanently, from the act or course of action that constitutes a contravention or potential contravention of this Act; and

(b) preclude, for a period specified by the Tribunal, the respondent from carrying out any use or development in relation to the land or water to which the contravention relates; and

(c) require the respondent to make good the contravention or default in a manner, and within a period, specified by the Tribunal; and

(d) require the payment of compensation for the injury, loss or damage, or the payment of the reasonable costs and expenses incurred to a person who has suffered injury, loss or damage, to property as a result of a contravention of this Act, including costs and expenses incurred in taking action to prevent or mitigate any such injury, loss or damage.

265.   Application taken to be appeal

For the purposes of the Resource Management and Planning Appeal Tribunal Act 1993 , an application under section 264 is taken to be an appeal.

266.   Power of Appeal Tribunal to make temporary order

(1)  If, in proceedings under section 264 , the Appeal Tribunal is satisfied that, in order to preserve the rights or interests of parties to the proceedings or for any other reason, it is desirable to make a temporary order, the Tribunal may at any time during those proceedings make any such order.

(2)  A temporary order –

(a) may be made on an ex parte application before a summons has been issued under section 264(3) ; and

(b) may be made subject to such conditions as the Appeal Tribunal thinks fit; and

(c) is not to operate after the proceedings in which it is made are finally determined.

267.   Offence to contravene order

A person must not contravene an order under section 264 or a temporary order under section 266 .

Penalty:  Fine not exceeding 500 penalty units or imprisonment for a period not exceeding 2 years, or both.

268.   Power of Secretary to carry out work

Where the Appeal Tribunal makes an order under section 264(6)(c) and the respondent contravenes the order within the period specified by the Tribunal, the Secretary may, by leave of the Tribunal, cause any work required by the order to be carried out, and may recover the costs of that work from the respondent as a debt due to the Crown in any court of competent jurisdiction.

269.   Time limit for commencement of proceedings

Proceedings under this Division may be commenced at any time within 3 years after the date of the relevant event referred to in section 264(1) .

PART 14 - Review of decisions and appeals

Division 1 - Review of decisions

270.   Interpretation of Division

For the purposes of this Division, each of the following is taken to be an interested person:

(a) in respect of a declaration under section 38(1)  –

(i) the applicant; and

(ii) a licensee or other person with a right to take water from the relevant water resource;

(b) in respect of an approval under section 63 or 73 or a refusal under section 64 or 74  –

(i) the applicant; and

(ii) a person who made a representation under section 65 or 71 ;

(c) in respect of a determination under section 69(2)(c)  –

(i) the relevant licensee; and

(ii) a person with a financial interest in the licence or a water allocation of the licence;

(d) in respect of the imposition of conditions under section 80(4)(a)  –

(i) the licensee; and

(ii) a person with a financial interest in the licence or a water allocation of the licence;

(e) in respect of a refusal under section 80(4)(b)  –

(i) the licensee; and

(ii) a person with a financial interest in the licence or a water allocation of the licence;

(f) in respect of a direction given under section 86(1) , the person to whom the water allocation is to be granted;

(g) in respect of a reduction under section 88(1)  –

(i) the licensee; and

(ii) a person with a financial interest in the licence or the relevant water allocation of the licence;

(h) in respect of an approval under section 97(2) or 101(1) or a refusal under section 98 , the applicant;

(i) in respect of a requirement under section 102 , the applicant;

(j) in respect of a cancellation, suspension or variation under section 106(3) or a suspension or cancellation under section 106(4)  –

(i) the licensee; and

(ii) a person with a financial interest in the licence or a relevant water allocation of the licence;

(k) in respect of a direction under section 126 , the owner or occupier of the relevant land;

(l) in respect of a direction given under section 135 , 147(1) or 282(3)  –

(i) the person on whom the notice is served; and

(ii) where the notice is served on a person other than the owner or occupier of the relevant land, the owner or occupier of that land;

(m) in respect of a requirement under section 175 , the applicant;

(n) in respect of an alteration of boundaries made under section 180(1)  –

(i) the relevant water entity; and

(ii) where the application is for an extension of the water district, an owner of land proposed to be included in the extended district;

(o) in respect of an approval under section 183(1)  –

(i) the responsible water entity; and

(ii) the owner or occupier of the land to be acquired; and

(iii) a person with a financial interest in the land to be acquired;

(p) in respect of a direction under section 208(1) , the trust;

(q) in respect of a dissolution of a Trust under Division 3 of Part 10 , the trust.

271.   Reviewable decisions

(1)  This Division applies to a decision made by virtue of delegated authority under section 10 relating to the following:

(a) a declaration under section 38(1) ;

(b) an approval under section 63 , 73 , 97(2) , 101(1) or 183(1) ;

(c) a refusal under section 64 , 74 or 98 ;

(d) a determination under section 70(c) ;

(e) a renewal of a licence or a refusal to renew a licence under section 80 ;

(f) a direction under section 86(1) , 126 , 135 , 145 , 208(1) or 280 ;

(g) a reduction of a water allocation under section 88(1) ;

(h) a requirement under section 102 or 175 ;

(i) a cancellation, suspension or variation under section 106(3) ;

(j) a suspension or cancellation under section 106(4) ;

(k) an alteration of boundaries under section 180(1) ;

(l) a direction made under section 208(1) ;

(m) a dissolution of a trust under Division 3 of Part 10 .

(1A)  [Section 271 Subsection (1A) inserted by No. 49 of 2002, s. 43, Applied:01 Mar 2003] Where a notice under section 165H(1) or section 165N(1) , or a direction under section 165L(1) , is given, this Division applies to the notice or direction as if it were a decision and for that purpose –

(a) the notice or direction is taken to be a decision to which this Division applies; and

(b) the person to whom the notice or direction is given is taken to be an interested person.

(1B)  [Section 271 Subsection (1B) inserted by No. 49 of 2002, s. 43, Applied:01 Mar 2003] Subsection (1A) does not apply in a case where the Minister determines that urgent action is necessary to avoid or mitigate the effects of an incident.

(2)  A person who makes a decision to which this Division applies must, by notice served on the interested person, notify the interested person –

(a) of the decision and, if so requested, the reasons for it; and

(b) that the interested person may apply for a review of the decision under section 272 .

272.   Application for review of decision

(1)  An interested person may apply to the Minister to review a decision to which this Division applies.

(2)  The application –

(a) is to be made in writing within 14 days after the date of service of a notice under section 271(2) ; and

(b) is to be accompanied by any fee imposed under section 285(3) ; and

(c) is to specify the reasons for the application.

(3)  The Minister may extend the period referred to in subsection (2) for making an application.

273.   Review of decisions

(1)  The Minister must, within 45 days after receiving an application under section 272 for a review of a decision to which this Division applies, make a determination –

(a) substituting the decision with another decision; or

(b) confirming the decision; or

(c) revoking the decision.

(2)  The Minister must, by notice served on the applicant, notify the applicant of –

(a) the determination made; and

(b) the findings on material questions of fact; and

(c) the evidence or other material on which the findings are based; and

(d) the reasons for the determination; and

(e) if the decision is one to which Division 2 applies, the right to appeal to the Appeal Tribunal against the determination.

(3)  Where the determination is to substitute the decision with another decision or to revoke the decision, any fee paid under section 272(2)(b) is to be refunded to the applicant.

Division 2 - Appeals to Appeal Tribunal

274.   Interpretation of Division

(1)  For the purposes of this Division, each of the following is taken to be an interested person:

(a) in respect of a decision to which Division 1 applies, an interested person within the meaning of that Division;

(b) [Section 274 Subsection (1) amended by No. 12 of 2004, s. 56, Applied:09 Jun 2004] .  .  .  .  .  .  .  .  

(c) in respect of the granting of a special licence under section 115 , a person with a right to take water under this Act whose interests may be significantly affected by the grant;

(d) in respect of a requirement under section 154 , the applicant;

(e) in respect of the grant or refusal to grant a permit under Part 8  –

(i) the applicant; or

(ii) a person who made a representation under section 149(2)(c) ;

(f) in respect of a decision under section 176(2) or a condition imposed under section 176(5)  –

(i) the applicant; or

(ii) a person who made a representation under section 174 ;

(g) a person who is granted leave to appeal by the Appeal Tribunal.

(2)  The Appeal Tribunal may not grant leave for the purposes of subsection (1)(g) if it appears to the Tribunal that –

(a) the proceedings proposed by the relevant application would be an abuse of the process of the Tribunal; or

(b) it is likely that the requirements for the making of a determination under section 279 on the application would not be satisfied; or

(c) it is not in the public interest that the proceedings should be brought.

275.   Appealable decisions

This Division applies to the following:

(a) [Section 275 Amended by No. 12 of 2004, s. 57, Applied:09 Jun 2004] .  .  .  .  .  .  .  .  

(b) an approval under section 63 , 73 , 97(2) or 101(1) ;

(c) a refusal under section 64 , 74 or 98 ;

(d) a determination under section 69(2)(c) ;

(e) a renewal of a licence or a refusal to renew a licence made under section 80 ;

(f) a reduction under section 88(1) ;

(g) a cancellation, suspension or variation under section 106(3) ;

(h) the granting of a special licence under section 115 ;

(i) a direction under section 126 , 135 , 147 or 282(3) ;

(j) a requirement under section 154 ;

(k) a decision under section 176(2) or a condition imposed under section 176(5) ;

(l) the grant or refusal to grant a permit under Part 8 .

276.   Appeal to Appeal Tribunal

(1)  An interested person may appeal to the Appeal Tribunal against a decision to which this Division applies within 14 days after service of the relevant notice in respect of the decision.

(2)  An interested person who has made an application under Division 1 for a review of a decision may, if this Division also applies to the decision, appeal to the Appeal Tribunal against a determination under section 273(1) within 14 days after the date of service of the notice under section 273(2) .

(3)  The Appeal Tribunal must hear and determine the appeal under the Resource Management and Planning Appeal Tribunal Act 1993 .

277.   Constitution of Appeal Tribunal

(1)  For the purpose of an appeal under this Act, the Appeal Tribunal is to include a member whose appointment was on the ground that he or she has, in the opinion of the Governor, wide practical knowledge of, and experience in, the use or management of water resources.

(2)  The member referred to in subsection (1) is to be designated as such by the Governor, by instrument in writing, for the purposes of the Tribunal’s jurisdiction under this Act.

278.   Form of appeal to Appeal Tribunal

(1)  An appeal to the Appeal Tribunal is to be instituted in the manner and form determined by the Tribunal.

(2)  The appeal is to be referred in the first instance to a conference under section 17 of the Resource Management and Planning Appeal Tribunal Act 1993 and the provisions of that Act extend in respect of the appeal accordingly.

279.   Determination of appeal

(1)  On an appeal, the Appeal Tribunal may –

(a) affirm or vary the decision appealed against, or substitute any decision that should have been made in the first instance; or

(b) remit the subject matter of the appeal to the Minister, Assessment Committee or other authority and direct that the matter is to be further considered by the Minister, Committee or that authority; or

(c) make or give any consequential or ancillary order or direction.

(2)  Where the Appeal Tribunal has determined an appeal in respect of the grant or refusal of a permit under Part 8 , an application for a permit in respect of dam works which are substantially the same as the dam works to which the appeal related may not, without the leave of the Tribunal, be made within a period of 2 years from the date on which the Tribunal made its decision.

279A.   Compensatory orders for gas pipeline safety detriments

[Section 279A Inserted by No. 57 of 2002, s. 19, Applied:05 Dec 2002]

(1)  In this section –

appeal means an appeal to the Appeal Tribunal –

(a) by a pipeline licensee against the grant of a permit; or

(b) by an applicant against the refusal to grant a permit;

permit means a permit under Part 8 to undertake dam works;

representations, in relation to a permit, means representations made to the Assessment Committee on the application for the permit.

(2)  If the Appeal Tribunal's determination on an appeal will result in a permit being granted subject to conditions designed to ensure the safety or safe operation of a pipeline in a pipeline planning corridor and the Appeal Tribunal is satisfied that –

(a) the conditions are the same or substantially the same as conditions that were recommended by the pipeline licensee in representations; and

(b) the conditions will add to the cost of the dam works; and

(c) the pipeline licensee knew or reasonably ought to have known of the applicant's need or intention to undertake the dam works before the pipeline was constructed –

the Appeal Tribunal may, in addition to any other power it may exercise on the appeal, order that the pipeline licensee reimburse the applicant for the additional cost or such part of the additional cost as the Appeal Tribunal determines is fair in the circumstances.

(3)  If the Appeal Tribunal's determination on an appeal will result in an applicant not being granted a permit and the Appeal Tribunal is satisfied that –

(a) the sole or principal reason why the permit is not being granted is the acceptance of representations made by a pipeline licensee that the proposed dam works would or may compromise the safety or safe operation of a pipeline in a pipeline planning corridor; and

(b) the applicant will suffer a loss or detriment as a consequence of not being granted the permit; and

(c) the pipeline licensee knew or reasonably ought to have known of the applicant's need or intention to undertake the dam works before the pipeline was constructed –

the Appeal Tribunal may, in addition to any other power that it may exercise on the appeal, order that the pipeline licensee pay the applicant such amount by way of compensation for the loss or detriment as the Appeal Tribunal determines is fair in the circumstances.

(4)  In determining whether to make an order under subsection (2) or (3) , and in making any such order, the Appeal Tribunal is to have regard to whether any compensation has been paid or awarded under the Land Acquisition Act 1993 or Major Infrastructure Development Approvals Act 1999 to the applicant and, if so, the amount paid or awarded.

(5)  An order of the Appeal Tribunal under subsection (2) or (3) is enforceable in the same manner as a judgment of a court of competent jurisdiction.

280.   Suspension of decision pending appeal

(1)  Where –

(a) a decision to which this Division or Division 1 applies has been made, given or imposed by the Minister or a water entity; and

(b) the Minister, water entity or Appeal Tribunal is satisfied that an appeal against the decision has been instituted or is intended –

the Minister, water entity or Tribunal may suspend the operation of the decision until the determination of the appeal.

(2)  The suspension may be terminated by the Minister, water entity or Tribunal at any time.

PART 15 - Miscellaneous and supplemental

Division 1 - Offences

281.   Interference with works or other property

(1)  A person must not interfere with any property of the Minister or a water entity used in, or in connection with, the administration of this Act unless the Minister or water entity (as applicable) has given permission to do so.

Penalty:  Fine not exceeding 50 penalty units.

(2)  A person must not interfere with any infrastructure or other property that is vested in or is under the care, control and management of a water entity or a person acting on behalf of a water entity without the permission of the water entity.

Penalty:  Fine not exceeding 50 penalty units.

(3)  The permission of the Minister or water entity under this section may be conditional or unconditional and, if conditional, the person to whom the permission is given must not contravene the condition.

Penalty:  Fine not exceeding 50 penalty units.

282.   Duty not to damage watercourse or lake

(1)  This section does not apply to any damage caused in the normal course of an activity authorised by, or under, this Act.

(2)  In taking water as provided by this Act, it is the duty of the owner and occupier of land on which a watercourse or lake is situated or that adjoins a watercourse or lake, and any other person permitted to take water on or from that land, to take reasonable steps to prevent damage to the bed and banks of the watercourse or the bed, banks or shores of the lake and to the ecosystems that depend on the watercourse or lake.

(3)  Where a person has failed to carry out his or her duty under subsection (2) , the Minister may serve notice on that person directing him or her to take such action as is specified in the notice –

(a) to prevent damage of the kind referred to in subsection (2) ; and

(b) to rectify the failure; and

(c) as may be necessary or desirable in order to make good any damage caused.

(4)  If an owner, occupier or other person contravenes a notice under subsection (3)  –

(a) the Minister may authorise a person to enter on the land and take the action specified in the notice and such other action as may be appropriate in the circumstances; and

(b) the Minister's expenses actually and reasonably incurred in doing so are a debt due by the owner, occupier or other person to the Minister and recoverable as such in any court of competent jurisdiction.

(5)  An owner, occupier or other person must not contravene a notice under subsection (3) .

Penalty:  Fine not exceeding 50 penalty units.

283.   False or misleading information

A person must not furnish information to the Minister, a water entity or an authorised officer that is false or misleading in a material particular.

Penalty:  Fine not exceeding 50 penalty units.

284.   Hindering, &c., persons engaged in administration of Act

A person must not –

(a) without reasonable excuse hinder or obstruct an authorised officer or other person engaged in the administration of this Act; or

(b) produce a written statement of the contents of a record that he or she knows, or ought to know, is false or misleading in a material particular; or

(c) fail without reasonable excuse to comply with a requirement or direction of an authorised officer under this Act; or

(d) use abusive, threatening or insulting language to an authorised officer or a person assisting an authorised officer; or

(e) falsely represent, by words or conduct, that he or she is an authorised officer.

Penalty:  Fine not exceeding 50 penalty units.

Division 2 - Fees and charges

285.   Imposition of fees and charges

(1)  The Minister may impose a fee in respect of the grant or issue of an authorisation, except for a special licence, or for an application for the grant or issue of any such authorisation at an amount or rate that the Minister determines.

(2)  The Minister, by notice in writing to the holder of an authorisation, may vary any fee imposed under subsection (1) .

(3)  The Minister may impose a fee in respect of an application for the review of a decision under Division 1 of Part 14 of such amount as he or she may determine.

(4)  A fee imposed under this section may be determined so as to apply differently according to any matter that the Minister considers appropriate.

286.   Variation of fees and charges

(1)  The Minister, if of the opinion that it is necessary or desirable to do so, may –

(a) extend the time for payment of any fee or charge; or

(b) waive the whole or part of any fee or charge; or

(c) refund the whole or part of any fee or charge; or

(d) accept a lesser amount in place of the full fee or charge.

(2)  A licensee may apply to the Minister to extend the time for payment of any fee or charge payable in respect of a licence held by that person.

(3)  The application –

(a) is to be in writing; and

(b) is to state the reasons for the application.

(4)  The Minister may –

(a) grant the application; or

(b) refuse to grant the application.

287.   Recovery of unpaid fees and charges

(1)  A fee, charge or penalty referred to in subsection (2) that is not paid by the due date is recoverable from the person liable to pay it as a debt due to the Crown.

(2)  The Minister, by notice in the Gazette, may impose a penalty as determined by the Minister for the failure to pay any fee or charge.

288.   Payments into Consolidated Fund

The following amounts are to be paid into the Consolidated Fund unless the Minister determines otherwise under section 289 :

(a) any fees or charges paid under this Act;

(b) any penalties paid under this Act;

(c) any other money received under this Act.

289.   Special Deposits and Trust Fund

The Minister may establish an account in the Special Deposits and Trust Fund into which any specified money received under this Act is to be paid.

Division 3 - Miscellaneous

289A.   Confidentiality

[Section 289A Inserted by No. 49 of 2002, s. 44, Applied:01 Mar 2003]

(1)  A person who is, or has been, employed in carrying out duties related to the administration of this Act must not disclose confidential information acquired in the course, or as a result, of carrying out those duties except –

(a) as may be required for the purposes of this Act; or

(b) as authorised by the person to whom the duty of confidentiality is owed; or

(c) as authorised by the regulations; or

(d) as required by a court or other lawfully constituted authority; or

(e) as authorised by the Secretary after consultation with the person to whom the duty of confidentiality is owed.

Penalty:  Fine not exceeding 50 penalty units.

(2)  No civil liability attaches to any person for a disclosure of confidential information made as authorised under subsection (1) .

290.   Liability of employers and principals

(1)  If an employee or agent commits an offence under this Act –

(a) the employer or the principal is taken to have committed that offence; and

(b) proceedings for that offence may be brought against the principal or employer whether or not proceedings are brought against the employee or agent.

(2)  It is a defence in proceedings for an offence under subsection (1) if the employer or principal can show that he or she –

(a) did not know the offence had been committed; and

(b) could not reasonably have prevented the commission of the offence; and

(c) if practicable to do so, took reasonable action to minimise the impact of the offence on other users of the relevant water resource and the aquatic environment.

291.   Liability of officers of body corporate

(1)  In this section,

[Section 291 Subsection (1) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] officer has the same meaning as in the Corporations Act.

(2)  An officer of a body corporate which commits an offence is taken to have committed that offence if it is proved that –

(a) the offence was committed with the consent or connivance of the officer; or

(b) the officer failed to exercise reasonable care to prevent the commission of the offence having regard to the nature of the officer's functions and the circumstances of the offence.

(3)  This section does not apply to an employee of a body corporate who is not concerned in the management of the body corporate.

292.   Liability of licence holder

(1)  If an agent of the holder of an authorisation commits an offence under this Act –

(a) the holder is taken to have committed the offence; and

(b) proceedings for the offence may be brought against the holder whether or not proceedings are brought against the agent.

(2)  It is a defence in proceedings for an offence under subsection (1) if the holder of the authorisation can show that he or she –

(a) issued written instructions and took reasonable precautions to ensure compliance with this Act; and

(b) did not know the offence had been committed; and

(c) could not reasonably have prevented the commission of the offence; and

(d) if practicable to do so, took reasonable action to minimise the impact of the offence on other users of any relevant water resource and the aquatic environment.

293.   Evidentiary provision for documents

(1)  A document that purports to have been certified by the Minister, a water entity or an authorised officer to be an accurate copy of a licence or permit is, in the absence of proof to the contrary, to be accepted in any proceedings under this Act as an accurate copy of that licence or permit.

(2)  In proceedings before the Appeal Tribunal, a document purporting to be a water management plan prepared and adopted under this Act is to be presumed, in the absence of proof to the contrary, to be a water management plan in force under this Act.

294.   Evidentiary provision for meters

(1)  Where in any proceedings under this Act it is proved that –

(a) a meter used to measure the quantity of water taken from a water resource has been adjusted or modified in a manner that affects the accuracy of the meter; or

(b) a pipe has been installed to bypass a meter referred to in paragraph (a) ; or

(c) any other pipe or fitting has been interfered with –

it is to be presumed (in the absence of proof to the contrary) that the occupier of the land on which the meter, pipe or other fitting is situated, or a person acting on his or her behalf, was the person who –

(d) adjusted or modified the meter; or

(e) installed the pipe bypassing the meter; or

(f) interfered with the pipe or other fitting.

(2)  Where, for the purposes of a water infringement notice or any proceedings under this Act, a reading from a meter is used as evidence that a person took water without authority, took water in excess of an authorised quantity of water or took water contrary to a condition endorsed on a licence, a meter reading obtained in accordance with section 233 is evidence of the amount of water taken.

295.   Proceedings for offences

(1)  Proceedings for an offence against this Act –

(a) may be commenced by an authorised officer; and

(b) must be commenced within 3 years after the date on which the offence is alleged to have been committed.

(2)  An apparently genuine document purporting to be under the hand of the Minister and to authorise the commencement of proceedings under this Act is to be accepted in any proceedings under this Act, in the absence of proof to the contrary, as proof of the authority.

296.   Compensation not payable for stopping, &c., flow of water

Where the exercise of rights under a licence or a permit has the effect of stopping, reducing or diverting the flow of water in a watercourse, compensation is not payable by the Minister to any person injuriously affected.

297.   Immunity from liability

(1)  Except as otherwise provided by this Act, an authorised officer incurs no civil liability for an honest act or omission in the performance or discharge, or purported performance or discharge, of functions or powers under this Act.

(2)  A liability that would, but for subsection (1) , lie against an authorised officer lies instead –

(a) if the officer is an officer or agent of the Crown, against the Crown; or

(b) if the officer is an officer, employee or agent of a water entity, against the water entity.

298.   Determination of cost and expenses

(1)  A reference in this Act to the cost of an authority under this Act in taking action or performing work includes a reference to expenses incurred in taking the action or performing the work.

(2)  The cost and expenses of an authority under this Act in taking action or performing work must be determined by reference to the costs and expenses that would have been incurred if an independent contractor had been engaged to take the action or perform the work.

299.   Duties of police officers

When required to do so by a water entity or an authorised officer, a police officer must –

(a) obtain and furnish any information required for the purposes of this Act; and

(b) serve any notices or documents; and

(c) accompany an authorised officer or other person entering any premises under this Act.

300.   Power of Minister to approve forms

The Minister may approve forms to be used for the purposes of this Act.

301.   Review of Act

(1)  On the expiration of 5 years after the date on which this Act commences, the Minister must prepare a report on the operation of this Act.

(2)  The report is to state in particular whether –

(a) the objectives of this Act remain valid; and

(b) the provisions of this Act remain appropriate for securing those objectives.

(3)  The Minister must cause a copy of the report to be laid before each House of Parliament within 15 sitting days of that House after the period of 5 years referred to in subsection (1) .

Division 4 - Regulations

302.   Regulations in general

(1)  The Governor may make regulations for the purposes of this Act, but any regulations relating to the powers or duties of an electricity entity must be made on the recommendation of the Advisory Committee.

(2)  The regulations may be made so as to apply differently according to any matter, condition, limitation, restriction, exception or circumstance specified in the regulations.

(3)  The regulations may –

(a) provide that a contravention of, or a failure to comply with, any of the regulations is an offence; and

(b) in respect of such an offence, provide for the imposition of a fine not exceeding 1 000 penalty units and, in the case of a continuing offence, a further fine not exceeding 10 penalty units for each day during which the offence continues.

(4)  The regulations may authorise any matter to be determined, applied or regulated by any person or body.

(5)  The regulations may confer a power, including a discretionary power, and impose a duty on a specified person or a specified class of persons.

(6)  The Governor's powers under this section are not limited by the following provisions of this Division.

303.   Information, assessment of quantity of water, &c.

The regulations may –

(a) require persons referred to in the regulations to provide the Minister with any information relating to the administration of this Act that is in their possession; and

(b) make provision for, or relating to, the assessment of the quantity of water taken by a licensee or any other person authorised to take water; and

(c) make provision for, or in respect of, the keeping of records and the provision of information by licensees and other persons to the Minister; and

(d) require that the information to be provided under section 154(1) be provided or verified by a person or class of persons holding specified qualifications; and

(e) amend the letters patent relating to a trust established under the repealed Act, immediately before the commencement day, or any other regulations relating to that trust that are continued in force under this Act.

304.   Fees and charges

(1)  The Governor may make regulations prescribing fees and charges in respect of –

(a) any services provided under this Act; and

(b) any agreement between the Minister and any person for the right to take water; and

(c) [Section 304 Subsection (1) amended by No. 12 of 2004, s. 58, Applied:09 Jun 2004] any agreement between the Minister and a water entity to administer a water district or a water management plan; and

(d) [Section 304 Subsection (1) amended by No. 12 of 2004, s. 58, Applied:09 Jun 2004] any verification of compliance with any conditions or requirements of an authorisation; and

(e) [Section 304 Subsection (1) amended by No. 12 of 2004, s. 58, Applied:09 Jun 2004] any other action taken by the Minister, the Secretary or an authorised officer in the performance or exercise of any function or power under this Act.

(2)  The regulations may prescribe a fee or charge by –

(a) specifying an amount; or

(b) specifying a rate or proportion by which the fee or charge is to be calculated; or

(c) any other method of calculating the fee or charge.

(3)  The regulations may provide for –

(a) any fee or charge to be paid by instalments; and

(b) any fee or charge to be paid in advance or in arrears; and

(c) any additional charge if a fee or charge is paid by instalments; and

(d) any matter relating to the payment, collection and recovery of fees or charges.

304A.   Regulations relating to dams safety

[Section 304A Inserted by No. 49 of 2002, s. 45, Applied:01 Mar 2003] The Governor may make regulations prescribing –

(a) standards for design, construction, maintenance, surveillance or decommissioning of dams or classes of dams; and

(b) fees payable by the owner of a dam or proposed dam for assessing design, construction, maintenance, surveillance or decommissioning reports required to be submitted by the owner of the dam; and

(c) competency standards for persons undertaking activities associated with dams; and

(d) travelling allowances and compensation to be paid to persons attending or giving evidence at an inquiry or examination referred to in Part 8A .

304B.   Adoption of code relating to dams safety

[Section 304B Inserted by No. 49 of 2002, s. 45, Applied:01 Mar 2003]

(1)  For the purposes of Parts 8 and 8A , the regulations may adopt, wholly or partially and with or without modification, a code relating to matters in respect of which regulations may be made for the purposes of those Parts.

(2)  The code may be adopted either as in force at the time the regulations are made or as in force from time to time.

(3)  Any regulations adopting a code, or an amendment to a code, may contain such incidental, supplementary and transitional provisions as appear to the Governor to be necessary or desirable.

(4)  The regulations or a code adopted by the regulations –

(a) may refer to or incorporate, wholly or partially and with or without modification, a standard or other document prepared or published by a body specified in the regulations, either as in force at the time the regulations are made or as in force from time to time; and

(b) may be of general or limited application.

(5)  Where a code, standard or other document is adopted under subsection (1) or (4) as it is in force from time to time, an alteration to the code, standard or other document does not take effect for the purposes of this Act –

(a) before the day on which notice of the alteration is published by the Minister in the Gazette; or

(b) if the Minister so provides in the notice, until a day specified by the Minister in the notice.

(6)  Where the regulations or a code adopted by the regulations refer to a standard or other document prepared or published by a body specified in the regulations –

(a) a copy of the code, standard or other document must be kept available for inspection by members of the public, without charge and during normal office hours, at an office or offices specified in the regulations; and

(b) in any legal proceedings, evidence of the contents of the code, standard or other document may be given by production of a document purporting to be certified by the Minister as a true copy of the code, standard or other document; and

(c) the code, standard or other document has effect as if it were a regulation made under this Act.

305.   Miscellaneous matters

The Governor may make regulations in respect of –

(a) the use of water in a watercourse, dam, reservoir or lake; or

(b) activities on or in the water of a watercourse, dam, reservoir or lake; or

(c) the transfer of licences and water allocations; or

(d) the rounding up or rounding down of demerit points to the nearest whole number; or

(e) the transfer of demerit points by reference to the time when they were imposed.

306.   Adoption of code

(1)  The regulations may adopt, wholly or partially and with or without modification, a code relating to matters in respect of which regulations may be made under this Act.

(2)  The code may be adopted either as in force at the time the regulations are made or as in force from time to time.

(3)  Any regulations adopting a code, or an amendment to a code, may contain such incidental, supplementary and transitional provisions as appear to the Governor to be necessary or desirable.

(4)  The regulations or a code adopted by the regulations may –

(a) refer to or incorporate, wholly or partially and with or without modification, a standard or other document prepared or published by a body prescribed by the regulations, either as in force at the time the regulations are made or as in force from time to time; and

(b) be of general or limited application; and

(c) make different provision according to the persons, things or circumstances to which they are expressed to apply.

(5)  Where a code, standard or other document is adopted under subsection (1) or (4) as it is in force from time to time, an alteration to the code, standard or other document does not take effect for the purposes of this Act –

(a) before the day on which notice of the alteration is published by the Minister in the Gazette; or

(b) if the Minister so provides in the notice, until a day specified by the Minister in the notice.

(6)  Where the regulations or a code adopted by the regulations refers to a standard or other document prepared or published by a body prescribed by the regulations –

(a) a copy of the code, standard or other document must be kept available for inspection by members of the public, without charge and during normal office hours, at an office or offices specified in the regulations; and

(b) in any legal proceedings, evidence of the contents of the code, standard or other document may be given by production of a document purporting to be certified by the Minister as a true copy of the code, standard or other document; and

(c) the code, standard or other document has effect as if it were a regulation made under this Act.

Division 5 - Savings and transitional provisions

307.   Savings and transitional provisions

Schedule 4 has effect with respect to savings and transitional matters.

308.   River Clyde Irrigation District

(1)  Notwithstanding the repeal of the Clyde Water Act 1898 effected by Schedule 8, the trustees of the River Clyde as established under that Act are reconstituted as trustees of a trust under this Act for the purposes of –

(a) [Section 308 Subsection (1) amended by No. 30 of 2005, s. 11, Applied:11 Jul 2005] administering the River Clyde Irrigation District; and

(b) supplying the inhabitants of Bothwell and Hamilton and owners or occupiers of land within the irrigation district with water.

(2)  [Section 308 Subsection (2) substituted by No. 30 of 2005, s. 11, Applied:11 Jul 2005] Schedule 5 has effect with respect to the membership of the River Clyde Trust and the administration of the River Clyde Irrigation District.

309.   Transitional water districts

For the purposes of this Division, the Minister may, by notice published in the Gazette, appoint, name and define a water district so as to give a water entity administrative control of, and responsibility for, that water district.

Division 6 - Administration

310.   Administration of Act

Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990  –

(a) the administration of this Act is assigned to the Minister for Primary Industries, Water and Environment; and

(b) the department responsible to the Minister for Primary Industries, Water and Environment in relation to the administration of this Act is the Department of Primary Industries, Water and Environment.

PART 16 - Miscellaneous Amendments and Repeals

311.   

See Schedule 6 .

312.   

See Schedule 7 .

313.   Acts repealed

The Acts specified in Schedule 8 are repealed.

SCHEDULE 1 - Objectives of the Resource Management and Planning System of Tasmania

Section 6(1)

1.   The objectives of the resource management and planning system of Tasmania are –

(a) to promote the sustainable development of natural and physical resources and the maintenance of ecological processes and genetic diversity; and

(b) to provide for the fair, orderly and sustainable use and development of air, land and water; and

(c) to encourage public involvement in resource management and planning; and

(d) to facilitate economic development in accordance with the objectives specified in paragraphs (a) , (b) and (c) ; and

(e) to promote the sharing of responsibility for resource management and planning between the different spheres of Government, the community and industry in Tasmania.

2.   In item 1(a) ,

sustainable development means managing the use, development and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic and cultural wellbeing and for their health and safety while –

(a) sustaining the potential of natural and physical resources to meet the reasonably foreseeable needs of future generations; and

(b) safeguarding the life-supporting capacity of air, water, soil and ecosystems; and

(c) avoiding, remedying or mitigating any adverse effects of activities on the environment.

SCHEDULE 2 - Constitution and procedure of the Assessment Committee for Dam Construction

Section 140

1.   Term of office of member

(1) A member is, subject to this Act, to be appointed for such term, not exceeding 4 years, as is specified in the instrument of the member’s appointment.

(2) A member is, if otherwise qualified, to be eligible for re-appointment from time to time for such term, not exceeding 4 years, as is specified in the instrument of the member’s re-appointment.

2.   Member holding office under other Acts

(1) Where, by or under any Act, provision is made requiring the holder of an office specified in that Act to devote the whole of the person’s time to the duties of the person’s office, that provision does not operate to disqualify the person from holding that office and also the office of a member or from accepting and retaining any remuneration or travelling or subsistence allowance payable to a member under clause 3 .

(2) The office of a member is not, for the purposes of any Act, taken to be an office or place of profit under the Crown.

3.   Remuneration of and allowances for members

A member is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the member.

4.   Appointment of substitutes to act during period of absence of member

(1) The Minister may appoint any person to act in the office of a member while the member is absent from his or her office through illness or any other cause, and that person while so acting –

(a) has and may perform the functions of the member in whose office the person is appointed to act; and

(b) is taken to be the member.

(2) A member is, for the purposes of subclause (1) , taken to be absent from office if there is a vacancy in that office which has not been filled in accordance with clause 7 .

(3) It is not necessary to show that an occasion has arisen requiring or authorising a person to act in the office of a member, and all things done or omitted to be done by that person while so acting are as valid and effectual and have the same consequences as if they had been done or omitted to be done by that member.

5.   Deputy chairperson

(1) A deputy chairperson of the Assessment Committee is to be appointed by the Minister.

(2) Where a member who is deputy chairperson is absent from office by reason of illness or any other cause, the Minister may appoint another member to act as deputy chairperson during that absence.

6.   Vacation of office

(1) A member is taken to have vacated the office of member when he or she dies or if –

(a) the member becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with the member’s creditors or makes an assignment of the member’s remuneration, allowances or estate for their benefit; or

(b) the member is absent from 4 consecutive ordinary meetings of the Assessment Committee of which reasonable notice has been given to him or her, either personally or in the ordinary course of post, unless on leave granted by the Minister or, unless before the expiration of 4 weeks after the last of those meetings, the member is excused by the Minister for his or her absence from those meetings; or

(c) the member becomes unable to perform competently the duties of his or her office; or

(d) the member is convicted in Tasmania of an offence which is punishable by imprisonment for a period of 12 months or more, or if the member is convicted elsewhere than in Tasmania of an offence which, if committed in Tasmania, would be so punishable; or

(e) the member resigns his or her office by writing under his or her hand addressed to the Minister; or

(f) the member declines office; or

(g) the member is removed from office by the Minister.

(2) The Minister may, for any cause which to him or her seems sufficient, remove any member from office.

7.   Filling of casual vacancies

(1) On the occurrence of a vacancy in the office of a member, the Minister may appoint a person to the vacant office for the balance of the term of office of the member.

(2) The person appointed is to be a person who holds the same qualifications, and is nominated in the same manner, if any, as the member whose office has become vacant.

8.   Quorum

The number of members who may constitute a quorum at any meeting of the Assessment Committee is 4, of whom one must be the chairperson or the deputy chairperson.

9.   Meetings

(1) Any duly convened meeting of the Assessment Committee at which a quorum is present is competent to transact any business of the Assessment Committee.

(2) Questions arising at a meeting of the Assessment Committee are to be determined by a majority of votes of the members present and voting.

(3) The chairperson must preside at all meetings of the Assessment Committee at which he or she is present.

(4) If the chairperson is not present at a meeting of the Assessment Committee, the deputy chairperson must preside.

(5) The person presiding at a meeting of the Assessment Committee has a deliberative vote and, in the event of an equality of votes, also has a casting vote.

10.   Minutes

The Assessment Committee must cause full and accurate minutes to be kept of its proceedings at meetings and make a copy of the minutes available to the Minister or Secretary at his or her request.

11.   General procedure

(1) The procedure for the calling of, and for the conduct of business at, meetings of the Assessment Committee is, subject to any procedure that is specified in this Schedule or prescribed by the regulations, to be as determined by the Committee.

(2) The Assessment Committee may permit members to participate in a particular meeting or all meetings by –

(a) telephone; or

(b) television conference; or

(c) any other means of communication approved by the Committee.

(3) A member who participates in a meeting by permission granted under subclause (2) is taken to be present at the meeting.

(4) The Assessment Committee may permit any person to attend a meeting for the purpose of advising or informing it on any matter.

12.   Resolutions without meetings

(1) If at least 4 members sign a document containing a statement that they are in favour of a resolution in the terms set out in the document, a resolution in those terms is taken to have been passed at a meeting of the Assessment Committee held on the day on which the document is signed or, if the members do not sign it on the same day, on the day on which the last of the members signs the document.

(2) For the purposes of subclause (1) , 2 or more separate documents containing a statement in identical terms, each of which is signed by one or more members, are taken to constitute one document.

13.   Protection from liability

A member of the Assessment Committee is not personally liable for an honest act or omission in the performance or the purported performance of functions, or the exercise or purported exercise of powers, under this Act.

14.   Validity of proceedings

(1) An act or proceeding of the Assessment Committee is not invalidated or prejudiced by reason only of the fact that, at the time when the act or proceeding was done, taken or commenced, there was a vacancy in the membership of the Committee.

(2) All acts and proceedings of the Assessment Committee are, notwithstanding the subsequent discovery of any defect in the appointment of any member of the Committee or that any person was disqualified from acting as, or incapable of being, a member of the Committee, as valid as if the member had been duly appointed and was qualified to act as, or capable of being, a member and as if the Committee had been fully constituted.

15.   Presumptions

In proceedings by or against the Assessment Committee, proof is not required (until evidence is given to the contrary) of –

(a) the constitution of the Committee; or

(b) any resolution of the Committee; or

(c) the appointment of any member; or

(d) the presence of a quorum at any meeting of the Committee.

16.   Disclosure of interests

(1) If –

(a) a member of the Assessment Committee has a direct or indirect pecuniary interest in a matter being considered, or about to be considered, by the Committee; and

(b) the interest could conflict with the proper performance of the member’s duties relating to consideration of the matter –

the member must, as soon as practicable after the relevant facts come to his or her knowledge, disclose the nature of the interest to the Committee.

Penalty:  Fine not exceeding 5 penalty units.

(2) Unless the Assessment Committee otherwise determines, a member who has made a disclosure under subclause (1) in respect of a matter must not –

(a) be present during any deliberation of the Committee in relation to the matter; or

(b) take part in any decision of the Committee relating to the matter.

(3) For the purpose of making a determination under subclause (2) , the member to whom the determination relates must not –

(a) be present during any deliberation of the Assessment Committee for the purpose of making the determination; or

(b) take part in making the determination.

(4) Subclause (1) does not apply in respect of –

(a) a matter in which the interest arises only because the member is a ratepayer in any council or a shareholder in a company in which there are at that time more than 20 members and of which the member is not at that time a director or officer; or

(b) [Schedule 2 Amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] an interest that arises only because the member also is a State Service officer or State Service employee.

SCHEDULE 3 - Membership and Proceedings of Trusts

Section 207

1.   Electors

(1) In this clause,

irrigation rights means irrigation rights in force under section 23(1)(a) of the Irrigation Clauses Act 1973 .

(2) Subject to subclauses (3) , (4) and (5) , a person who owns or occupies land in a water district and who is entitled to vote at a municipal election in a council of which that water district forms part is entitled to vote at elections and polls under this Schedule in respect of a trust appointed to administer that water district.

(3) In respect of an irrigation district where irrigation rights have been granted before the first election of the trust, only a person who holds an irrigation right is entitled to vote at an election, including a first election, for a trust appointed to administer that irrigation district.

(4) In respect of an irrigation district where irrigation rights have not been granted before the first election of the trust, a person eligible under subclause (2) is entitled to vote at an election, including the first election, for a trust appointed to administer that irrigation district.

(5) [Schedule 3 Amended by No. 12 of 2004, s. 59, Applied:09 Jun 2004] If the trust has granted irrigation rights, only a person who holds an irrigation right is entitled to vote at an election for the trust and, if a person holds more than one irrigation right, he or she may exercise a vote for each of those irrigation rights.

(6) A person who –

(a) holds a licence to take water from a water resource to which a water management plan relates; or

(b) has, as an occupier of a tenement to which Part 5 applies, a right to take water from a water resource to which a water management plan relates –

is entitled to vote at elections under this Schedule in respect of a trust appointed to administer that water management plan.

(7) Where a water management plan referred to in subclause (6) applies to a groundwater resource, a person who takes water from that resource by virtue of a right under Part 5 is entitled to vote at elections under this Schedule for a trust established to administer that water management plan.

(8) A person who is entitled to vote at an election under this Schedule is eligible to be a trustee.

2.   Initial election of trustees

(1) Where a trust is appointed under this Act, the Minister must appoint a time and a place for holding the first election of trustees and a person to conduct it.

(2) The Minister must cause a notice of the appointments in subclause (1) to be published –

(a) in a local newspaper on the twenty-first and seventh days before the day appointed for the election; and

(b) in the Gazette.

(3) Where a trust is appointed to administer a water management plan, the Minister must also cause a notice of the appointments under subclause (1) to be sent to all holders of licences to take water from a water resource to which the plan relates at least 15 days before the day appointed for the election.

(4) For the purposes of a first election, the electoral index of a council or the register kept under section 12 is to be used in preparing the list of voters.

(5) The expenses of, and incidental to, the holding of a first election and any preliminary expenses in connection with the appointment of a trust not exceeding an amount determined by the Minister –

(a) are to be paid in the first place by the Minister; and

(b) are to be repaid by the trust to the Minister within 6 months after the date of the election.

3.   Conduct of elections

(1) All elections for trustees, other than a first election, are to be held in the month of July in each year, unless otherwise approved in writing by the Minister.

(2) An election for trustees is to be conducted in accordance with the regulations.

(3) The expenses of, and incidental to, the holding of elections after the first election are to be paid by the trust out of its revenues.

4.   Retirement of trustees

(1) A trustee appointed by a Minister under section 211(2) is to hold office during the Minister's pleasure.

(2) An elected trustee is to hold office for 3 years except in the case of a first election, where the Minister must, in the notice for the election under clause 2 , determine the procedure for retirement of the trustees so that there will be at least one trustee retiring every year.

(3) In any case where from any cause an election is delayed, the retiring trustees are to hold office until the election of their successors.

(4) A trustee elected to fill a casual vacancy is to retire at the same time as the trustee whose place he or she fills would have retired if he or she had not vacated office.

5.   Vacation of office

(1) The office of a trustee becomes vacant if he or she –

(a) dies; or

(b) becomes bankrupt; or

(c) resigns his or her office in writing addressed to the trust and the resignation is accepted by the trust; or

(d) accepts an office of profit under the trust; or

(e) [Schedule 3 Amended by No. 12 of 2004, s. 59, Applied:09 Jun 2004] is absent without leave of the trust from 3 consecutive meetings of the trust of which he or she had due notice and the trust passes a resolution declaring the office vacant; or

(f) [Schedule 3 Amended by No. 12 of 2004, s. 59, Applied:09 Jun 2004] is convicted in Tasmania of an offence which is punishable by imprisonment for a term of 12 months or more, or if the trustee is convicted elsewhere than in Tasmania of an offence which, if committed in Tasmania, would be so punishable –

and the vacancy so caused is a casual vacancy.

(2) A casual vacancy is to be filled by a special election held for that purpose, unless the vacancy occurs within 6 months before the day appointed for the next annual election, when that vacancy may be filled at that election.

6.   Proceedings of trusts

(1) A trust, at its first meeting after a first or annual election, must appoint one of its members as chairperson for the ensuing year.

(2) The chairperson, if present, must preside at all meetings of the trust and, if the chairperson is absent from any meeting, the members present must appoint a chairperson for that meeting.

(3) If the office of chairperson becomes vacant, the trust must elect one of their number to fill his or her office for the remainder of the current year of office.

(4) The quorum of a trust is to be one more than half the number of trustees, or if that number is not a whole number, the next highest whole number.

(5) The trust may function, notwithstanding any vacancy in the membership of the trust, if a quorum remains.

(6) [Schedule 3 Amended by No. 12 of 2004, s. 59, Applied:09 Jun 2004] At meetings of the trust all members have one vote and, if on any question the votes are even, the question is taken to be decided in the negative.

(7) Meetings of the trust are to be open to electors, unless otherwise approved by the Minister.

(8) [Schedule 3 Amended by No. 12 of 2004, s. 59, Applied:09 Jun 2004] .  .  .  .  .  .  .  .  

6A.   Requirements for rules of trust

[Schedule 3 Amended by No. 12 of 2004, s. 59, Applied:09 Jun 2004]

(1) The rules of a trust are to provide for the following:

(a) the membership of the trust;

(b) the proceedings of the trust;

(c) the manner in which the powers and functions of the trust are to be exercised or performed;

(d) the rules for the conduct of the business of the trust;

(e) the management of the water district or water districts for which the trust is established and of any other of its functions authorised under this Act;

(f) the keeping and use of the common seal;

(g) the attestation of execution of documents;

(h) any other prescribed matter.

(2) The Minister may, by order published in the Gazette, determine model rules for a trust.

7.   Trustee with pecuniary interest not to vote

A trustee must not vote on any question arising before the trust in which he or she, directly or indirectly, has any pecuniary interest otherwise than as an owner or occupier of land in the area or as the holder of a licence to take water from a relevant water resource.

Penalty:  Fine not exceeding 5 penalty units.

8.   Proceedings of trusts to be recorded

(1) All orders and proceedings of a trust, together with the names of the trustees present at every meeting, are to be entered in a minute book to be kept by the trust for that purpose and be signed by the chairperson of the meeting at which those orders or proceedings are from time to time confirmed.

(2) The orders and proceedings so entered and signed by the chairperson of that meeting are taken to be original orders and proceedings.

(3) An elector may, at any reasonable time, inspect the minute book of the trust but is not entitled to inspect the minutes of any meeting that, under clause 6(7) , is not open to electors.

SCHEDULE 4 - Savings and transitional provisions

Section 307

1.   Interpretation

In this Schedule, unless the contrary intention appears –

Commission means the Rivers and Water Supply Commission;

Corporation means the Hydro-Electric Corporation;

financial year means a period of 12 months ending on 30 June.

2.   Saving for water districts

(1) A council, authority, body corporate or trust responsible for the administration of a water district immediately before the commencement day is taken to have been appointed under this Act as a water entity for that purpose.

(2) An irrigation water district in force under the repealed Act immediately before the commencement day is taken to be an irrigation district under this Act.

(3) A river improvement district or sealed river improvement scheme in force under the repealed Act immediately before the commencement day is taken to be a riverworks district under this Act.

(4) [Schedule 4 Amended by No. 49 of 2002, s. 46, Applied:01 Mar 2003] A water district in force under the repealed Act and administered by a council immediately before the commencement day is taken to be a water district under Division 1 of Part 6 of the Local Government (Building and Miscellaneous Provisions) Act 1993 .

(5) [Schedule 4 Amended by No. 49 of 2002, s. 46, Applied:01 Mar 2003] A water district in force under the repealed Act and administered otherwise than by a council immediately before the commencement day is taken to be a water supply district under this Act.

(6) A hydro-electric water district in force under the repealed Act immediately before the commencement day is taken to be a hydro-electric district under this Act and the Corporation is taken to have been appointed as the water entity responsible for the administration of that district.

(7) A drainage area proclaimed under Part VI of the repealed Act is taken to be a drainage district under this Act and the Commission or the relevant trust is taken to have been appointed as a water entity under this Act for the purposes of the administration of that district.

3.   Saving for existing trusts

(1) [Schedule 4 Amended by No. 49 of 2002, s. 46, Applied:01 Mar 2003] A trust that, immediately before the commencement day, was established under, or subject to, the repealed Act continues as if it had been established under Part 10 of this Act and the provisions of this Act extend to the trust accordingly.

(2) If the letters patent establishing any such trust or the regulations relating to it are inconsistent with this Act, the letters patent or the regulations prevail.

(3) [Schedule 4 Amended by No. 49 of 2002, s. 46, Applied:01 Mar 2003] The amendment to this clause made by the Water Management Amendment Act 2002 is taken to have taken effect on the commencement day.

4.   Saving for orders, licences, &c., under repealed Act

(1) An order in force under section 75A or section 116A of the repealed Act immediately before the commencement day is taken to be an order in force on the same terms and conditions made under this Act.

(2) A licence in force under section 114A of the repealed Act immediately before the commencement day is taken to be a licence in force on the same terms and conditions under this Act.

(3) A permission granted, or requirement imposed, under section 116 of the repealed Act and in force immediately before the commencement day is taken to have been granted or imposed on the same terms and conditions under this Act.

5.   Saving for proposals and petitions under repealed Act

(1) Where –

(a) a proposal has been made under Division 5 of Part 3 of the repealed Act; or

(b) a petition has been made under Division 4 of Part 3 or Division 1 of Part 4 of the repealed Act –

and the Commission has not set its seal to the proposed scheme or the Governor has not appointed the proposed irrigation water district or proclaimed the proposed drainage area, the proposal or petition is taken to be an application under Part 8 of this Act and is to be dealt with accordingly.

(2) For the purposes of this clause, the Minister may exempt the applicant from complying with a provision of this Act if satisfied that the applicant has provided sufficient information or complied with a relevant requirement under the repealed Act.

6.   Saving for orders under Groundwater Act 1985

An order in force under section 16 or 26 of the Groundwater Act 1985 immediately before the commencement day is taken to be an order in force on the same terms and conditions under Division 1 of Part 7 of this Act.

7.   Saving for certain rights of Corporation under repealed Act

(1) A right of the Corporation, as in force under the repealed Act immediately before the commencement day, continues in full force and effect, notwithstanding any other provision of this Act, on the same terms and conditions as were applicable at that time.

(2) The Corporation is taken to hold a special licence under section 115(2) with an endorsement that Division 6 of Part 6 applies to the licence, conferring on the Corporation the rights mentioned in subclause (1) with the conditions applicable to those rights under that subclause and also confers such other rights and is subject to such other conditions as the Minister may agree with the Corporation.

8.   Saving for commissional water rights under repealed Act

(1) A commissional water right in force under the repealed Act immediately before the commencement day continues in force until it is replaced by a licence issued under Part 6 in accordance with this clause.

(2) The rights conferred by a commissional water right as so continued in force are subject to the following provisions of this Act as if they were conferred by a licence issued under Part 6 :

(a) section 55 ;

(b) section 79 ;

(c) section 82 ;

(d) Division 3 of Part 6 ;

(e) section 106(1) , (3) and (4) ;

(f) Division 3 of Part 12 .

(3) A commissional water right may be extended in identical terms from time to time for a period not exceeding 5 years at any one time by notice in writing signed by a person authorised by the Minister to do so.

(4) A commissional water right may be replaced by a licence under Part 6 at any time on application by the person holding the commissional water right or on a direction given by the Minister and on that replacement –

(a) the commissional water right ceases to have any force or effect; and

(b) the licence is to be issued for a period not less than the unexpired term of the commissional water right and with not less than the same water allocation; and

(c) the licence is to confer a surety that is not less favourable than that applicable under the commissional water right; and

(d) any fee paid by the holder of the commissional water right for the unexpired term of the right is to be credited towards the fee payable for the licence; and

(e) a fee is not payable under section 85 in respect of a water allocation transferred from the commissional water right to the licence.

(5) A permission to take water in force under section 100N of the repealed Act immediately before the commencement day continues in force on the same terms and conditions until –

(a) it is replaced by a water allocation conferred by a licence under this Act; or

(b) the date on which it would have expired under the repealed Act –

whichever occurs first.

(6) Where a commissional water right in force under the repealed Act immediately before the commencement day was granted in fee –

(a) the right is converted to a licence under this Act for a term of 50 years with no annual fee; and

(b) the right remains annexed to the land to which it was annexed under the repealed Act.

9.   Effect of replacement licence

(1) Where a commissional water right is replaced by a licence, as mentioned in clause 8  –

(a) that right may not be abrogated under section 21 ; and

(b) the water allocation referred to in clause 8(4)(b) may not be reduced under section 88(1) .

(2) Subclause (1) does not apply in a case where the effect of an absolute transfer of a licence or of any such water allocation is that the relevant water is no longer used on any land that was at the time of the replacement subject to a determination under section 58 .

9A.   Savings for Hobart Regional Water Authority

[Schedule 4 Amended by No. 12 of 2004, s. 60, Applied:09 Jun 2004]

(1) In this clause –

Authority means the Hobart Regional Water Authority;

former Board means the Hobart Regional Water Board as established under section 4 of the repealed Act;

relevant council means a council that was at the relevant time a constituent municipality under the repealed Act;

repealed Act means the Hobart Regional Water Act 1984 .

(2) On and from 1 January 2000, the Authority is taken to hold, and to have held, a licence under Part 6 to take water from the following water resources:

(a) the waters of –

(i) the Bower Creek; and

(ii) all streams flowing between the Bower Creek and the North West Bay River (excepting the streams known as Millhouse's or Falls Creek and Long Creek) –

that flow from Mount Wellington towards the Huon Road and rise or flow above, or at, the intakes or pipelines of the Hobart City Council constructed or laid before 16 December 1925;

(b) the North West Bay River and any additional waters which are diverted into that river;

(c) the River Derwent and its tributaries above the boundary of the town of New Norfolk as established on the commencement of the repealed Act, subject to such conditions, if any, as the Minister may determine, and subject, in respect of the place of taking, to the approval of the Corporation;

(d) Lady Barron Creek, having its source in Lake Fenton, or any other river, rivulet or lake in Mount Field National Park, except the rivulet known as Falls Creek having its source in Lake Nicholls;

(e) all streams arising in or flowing through the areas of land delineated and marked as catchment areas in the maps numbered LD814 and LD827 deposited in the Central Plan Register held in the department;

(f) any other place, except Illabrook Creek and the creek used for the supply of water to the Colebrook township, that immediately before the commencement of the repealed Act was a source of supply of the former Board or a relevant council, but subject to any limitation that was at the time applicable to that Board or council;

(g) any other place that the Minister, by order under subclause (3) , determines to be a source of supply for the Authority.

(3) The Minister may, by order published in the Gazette, determine that a place specified in the order is to be, for the purposes of this clause, a source of supply for the Authority.

(4) On and from the commencement of the Water Legislation Amendment Act 2004 , the Authority's licence under subclause (2) is taken to be subject to any terms and conditions determined by the Minister to give effect to the objectives of this Act.

(5) Without limiting the generality of subclause (4) , the Minister is to determine the water allocations of the licence.

(6) Any fees or charges paid by the Authority for water taken from the water resources referred to in subclause (2) since the commencement of this clause are taken to have been properly imposed under section 79 .

10.   Saving for rights under section 100D or 100H of repealed Act

(1) A right registered under section 100D or 100H of the repealed Act that was in force immediately before the commencement day continues in force until it is replaced by a licence issued under Part 6 in accordance with this clause.

(2) A right that is so continued in force is subject to the following provisions of this Act as if it were conferred by a licence issued under Part 6 :

(a) section 55 ;

(b) section 82 ;

(c) Division 3 of Part 6 ;

(d) section 106(1) and (3) ;

(e) Division 3 of Part 12 .

(3) A right that is so continued in force may be replaced by a licence under Part 6 at any time on application by the owner of the land to which the right attaches or on a direction given by the Minister and, on that replacement –

(a) the owner of the land to which the replaced right was attached before its replacement is taken to be the holder of the licence; and

(b) the licence is to be issued for a period of not less than 99 years with a water allocation of not less than the water allocation formerly conferred by the replaced right; and

(c) in respect of that water allocation, the licence is to confer a paramount surety against all persons except for –

(i) rights under Part 5 for the taking of water for domestic purposes, consumption by livestock or firefighting; and

(ii) rights of licensees for the taking of water for domestic purposes or for consumption by livestock where the licence is endorsed with a condition that section 94(2) applies to the licence; and

(iii) the rights of councils to take water as mentioned in clause 12(1) ; and

(iv) the essential needs of ecosystems dependent on the water resource; and

(d) a fee is not payable under section 85 in respect of a water allocation conferred by paragraph (b) ; and

(e) in respect of any such water allocation –

(i) the fee payable for the licence under section 79 is to be $50 for the first year when the licence is in force; and

(ii) any increase in that fee in any subsequent year is not to exceed an increase in the Consumer Price Index which relates to that year; and

(f) paragraph (e) does not apply to a licence or a water allocation which is transferred under Division 4 of Part 6 unless the transfer is to the successor in title of a person who held the land to which the replaced right was attached immediately before its replacement; and

(g) the water allocation conferred under paragraph (b) may be used only on the land to which the replaced right was attached immediately before its replacement unless the water allocation is transferred under Division 4 of Part 6 .

(4) For the purposes of subclause (3)(e)(ii) , the Consumer Price Index is taken to be the cumulative effect of each Consumer Price Index (All Groups) - Hobart published by the Australian Bureau of Statistics in respect of the preceding 4 quarters.

(5) If a licence under this clause or a water allocation of the licence is transferred under Division 4 of Part 6 , the surety attaching to the water allocation under subclause (3)(b) continues in force.

(6) A water allocation under subclause (3)(b) may not be reduced under section 21 or 88 until all water allocations of lesser surety have been abrogated.

10A.   Saving for practice of Commission

[Schedule 4 Amended by No. 12 of 2004, s. 62, Applied:29 Jun 2005]

(1) The Commission is taken to hold a licence under Part 6 to continue to take water from the Cascade River, Coal River, Galeford Creek and Prosser River for the purposes of town water supply, stock and domestic use and irrigation in accordance with its practice since 1 January 1995.

(2) For the purposes of subclause (1) , the Commission's licence is taken to be subject to any conditions determined by the Minister to give effect to the objectives of this Act.

11.   Saving for applications for registration of rights under section 100D or 100H of repealed Act

(1) Where, immediately before the commencement day, an application for the registration of a right under section 100D or 100H of the repealed Act was pending before the Rivers and Water Supply Commission, the Minister must consider the application and any evidence provided in support of it.

(2) For the purposes of subclause (1)  –

(a) Part 4 of the repealed Act continues to apply, notwithstanding the repeal, to an application referred to in that subclause as if references to the Commission were read as references to the Minister; and

(b) in particular, if the Minister is satisfied that the applicant is entitled to the right claimed, the Minister must register it.

(3) This clause expires 6 months after the commencement day.

12.   Saving for rights of councils

(1) This clause applies to a right under Division 1 of Part 6 of the Local Government (Building and Miscellaneous Provisions) Act 1993 to take water for a water district.

(2) Where a council held a right to which this clause applies immediately before the commencement day, that right may, on application by the council at any time or on a direction given by the Minister, be replaced by a licence under Part 6 for a term of not less than 50 years.

(3) The water allocation which may be taken daily under the licence is to be at least 105 per cent of the water allocation taken daily under the right to which this clause applies during the period of 5 years ended on the commencement day.

(4) The surety attaching to the water allocation of the licence is to be determined as follows:

(a) as to two-thirds of the water which may be taken, the surety is to be of the highest class which may be granted under section 59 ;

(b) as to the remaining one-third, the surety is to be the same as that applicable to an allocation of water of a replacement licence under clause 8(4) .

(5) On the replacement of a right to which this clause applies, the Minister may, with the agreement of the Minister having the administration of the Local Government Act 1993 , vary the water allocation referred to in subclause (3) .

(6) A right to which this clause applies continues in force under the same conditions until the right is replaced by a licence in accordance with this clause.

13.   Saving for subsidies

(1) A subsidy payable to a council under section 40 of the repealed Act immediately before the commencement day continues to be payable subject to any terms and conditions to which it was subject at that time.

(2) Subclause (1) does not prevent the Minister from varying any terms or conditions of a subsidy at any time.

14.   Financial interests

(1) Where a person is granted a licence under this Act by way of replacement of a right in force under the repealed Act –

(a) the licensee must, within 2 months, provide the Minister in writing with details of any financial interest of another person in the licence or in land to which the licence relates; and

(b) section 61(3) , (4) , (5) , (7) and (8) applies to, and in respect of, the licensee.

(2) A licensee is not entitled to vary or transfer a licence referred to in subclause (1) until he or she has complied with that subclause.

15.   Compensation not payable

Where any right to take water is replaced under this Act, the holder of the right is not entitled to compensation in respect of that replacement.

16.   Exclusion of appeals to Appeal Tribunal

An appeal to the Appeal Tribunal does not lie in respect of a licence taking effect by way of replacement of a right under this Schedule.

17.   Licences to be non-justiciable

A licence that is conferred or continued in force under this Schedule may not be called in question in any legal proceedings by any person other than the person to whom, or for whose benefit, the licence is conferred or continued in force.

SCHEDULE 5 - River Clyde Trust and River Clyde Irrigation District

[Schedule 5 Amended by No. 30 of 2005, s. 12, Applied:11 Jul 2005]

Section 308(2)

1.   Interpretation

In this Schedule –

eligible person means an owner or occupier of land within the irrigation district referred to in section 308(1)(a) ;

[Schedule 5 Amended by No. 30 of 2005, s. 12, Applied:11 Jul 2005] responsible water entity means the water entity responsible for the River Clyde Irrigation District;

trust means the River Clyde Trust as reconstituted under section 308(1) ;

[Schedule 5 Amended by No. 30 of 2005, s. 12, Applied:11 Jul 2005]

[Schedule 5 Amended by No. 30 of 2005, s. 12, Applied:11 Jul 2005] trustees means the persons acting as trustees of the River Clyde immediately before the commencement of the Water Legislation Amendment Act 2005 .

2.   Membership of trustees of River Clyde

[Schedule 5 Amended by No. 30 of 2005, s. 12, Applied:11 Jul 2005] The trust is to consist of 3 members until a date to be determined by the Minister, but on and after that date is to consist of 5 members.

3.   Powers of responsible water entity

(1) [Schedule 5 Amended by No. 30 of 2005, s. 12, Applied:11 Jul 2005] The responsible water entity may, in addition to the powers conferred under the Irrigation Clauses Act 1973  –

(a) [Schedule 5 Amended by No. 30 of 2005, s. 12, Applied:11 Jul 2005] construct, repair, alter and remove any works as may be required to convey water directly from Lake Sorell to the River Clyde as the responsible water entity considers necessary; and

(b) [Schedule 5 Amended by No. 30 of 2005, s. 12, Applied:11 Jul 2005] enter, or cause its servants or workmen to enter, on any land on either side of the River Clyde or the River Interlaken or of Lake Sorell or Lake Crescent for the purpose of constructing, repairing, altering or removing any works authorised by this Act to be constructed, repaired, altered or removed.

(2) [Schedule 5 Amended by No. 30 of 2005, s. 12, Applied:11 Jul 2005] If the works or land referred to in subclause (1) are outside the River Clyde Irrigation District, the responsible water entity must obtain the Minister's permission in writing before exercising its powers under that subclause.

(3) [Schedule 5 Amended by No. 30 of 2005, s. 12, Applied:11 Jul 2005] If the works referred to in subclause (1) will or might have any adverse effect on any fish in inland waters, within the meaning of the Inland Fisheries Act 1995 , the responsible water entity must obtain the permission of the Minister having the administration of that Act before exercising its powers under that subclause.

4.   Saving provision

(1) On and from the commencement day –

(a) the property and rights of the trustees are transferred to the trust and the liabilities of the trustees become liabilities of the trust; and

(b) legal proceedings instituted by or against the trustees before the commencement day and pending on that day may be continued by or against the trust; and

(c) legal proceedings by or against the trustees to enforce a right that accrued before the commencement day and in existence on that day may be instituted by or against the trust; and

(d) a judgment or order of a court obtained by or against the trustees may be enforced by or against the trust; and

(e) a document addressed to, and purporting to have been served on, the trustees is taken to have been served on the trust; and

(f) a contract made or entered into by the trustees before the commencement day but not performed or discharged before that day is taken to have been made or entered into by the trust.

(2) Nothing in this Schedule affects a liability to pay any rates that were outstanding immediately before the commencement day.

5.   Construction of instruments

Where, in an instrument that was in force immediately before the commencement day, there is a reference to the trustees, the instrument has effect on and from that day, except in so far as the context or subject matter otherwise indicates or requires, as if the reference were a reference to the trust or included a reference to the trust.

6.   Trust entitled to licence

(1) The Minister must grant a licence to the trust with effect from the commencement day.

(2) The conditions and water allocation of the licence are to be such as the Minister determines as appropriate for the purposes of the trust, taking into account –

(a) the quantity of water needed by the ecosystems that depend on the relevant water resources and the times at which, or the periods during which, those ecosystems will need that water; and

(b) the reasonable requirements of the trust.

SCHEDULE 6 - Miscellaneous Amendments to Acts

The amendments effected by Section 311 and this Schedule have been incorporated into authorised versions of the following Acts:

(a) Electricity Supply Industry Restructuring (Savings and Transitional Provisions) Act 1995 ;

(b) Florentine Valley Paper Industry Act 1935 ;

(c) Fluoridation Act 1968 ;

(d) Irrigation Clauses Act 1973 ;

(e) Land Use Planning and Approvals Act 1993 ;

(f) Local Government (Building and Miscellaneous Provisions) Act 1993 ;

(g) Sewers and Drains Act 1954 ;

(h) Water Act 1957 ;

(i) Water Management Act 1999 ;

(j) Waterworks Clauses Act 1952 ;

(k) Wesley Vale Pulp and Paper Industry Act 1961 .

SCHEDULE 7 - Miscellaneous Amendments to Statutory Rules

The amendments effected by Section 312 and this Schedule have been incorporated into the authorised version of the Inland Fisheries Regulations 1996 .

SCHEDULE 8 - Acts repealed

Section 313