Rights in Water and Irrigation Act 1914
Western Australia
Rights in Water and Irrigation Act 1914
Contents
Part I — Preliminary
1.Short title2
2.Terms used2
3.Term used: watercourse4
Part III — Control of water resources
Division 1 — Objects and application of this Part
4.Objects of this Part6
4A.Term used: watercourse7
5.Waters to which this Part does not apply7
Division 1A — Ownership and control of waters
5A.Natural waters vest in Crown8
5B.Landowner etc. may carry out certain drainage and storage work8
5C.Taking of certain water without right or licence, offence9
5D.Rights cannot be acquired by length of use10
5E.Breach of s. 5C or degradation of water resource, civil remedy for10
Division 1B — Certain surface waters
6.Watercourses etc. to which Division applies11
7.Saving for certain proclamations in force at 15 Feb 198513
9.Riparian owner etc., rights of13
10.Rights to water to which there is access by public road etc.14
11.Obstruction etc. of watercourse, road etc. not authorised by s. 1015
15.Bed of watercourse etc. on land boundary remains Crown property16
16.Riparian owner etc., rights of access etc. to watercourse etc. despite s. 1517
17.Obstruction etc. of watercourse etc. without authority, offence and Minister’s powers as to18
17A.Dams built etc. before 10 Jan 2001, saving for as to s. 17 permits20
17B.Permits for s. 17, regulations for20
18.Discharge etc. of sludge etc. into watercourse, offence21
Division 2 — Other surface waters
19.Watercourses etc. to which this Division applies21
20.Riparian owners etc., rights of21
21.Rights to water to which there is access by public road etc.23
21A.Obstruction etc. of watercourse, road etc. not authorised by s. 2124
22.Unauthorised diversion etc. of water, Minister’s powers as to24
24.Saving of civil remedy26
25.Obstruction etc. of watercourse etc. on Crown land, offence and Minister’s powers as to26
Division 3 — Underground waters
25A.Non‑artesian wells in prescribed areas, rights to take water from27
26.Local by‑laws for s. 25A(2)28
26A.Artesian well constructed or altered without licence, offence28
26B. Non‑artesian well in certain areas etc. constructed or altered without licence etc., offence29
26C.Exemptions to s. 5C and 26B(3)-(6), declaring31
26D.Licence for construction etc. of well, application for and issue of32
26E.Non‑artesian well completed after 15 Feb 1985, Minister to be informed about33
26F.Altering licensed well or contravening licence, offence34
26G.Water from s. 26B(3) well, Minister’s powers to control waste etc. and rate of use of34
Division 3A — Limitations on rights conferred by and under Divisions 1B, 2 and 3
Subdivision 1 — Limitations where water is augmented
26GA.Rights under s. 9, 10, 20 and 21 to augmented volume of water, limits on36
Subdivision 2 — Limitations imposed by direction
26GB.Term used: water resource37
26GC.Taking and use of certain water, Minister’s powers to restrict etc.37
26GD.When s. 26GC applies39
26GE.Powers in s. 26GD, limits on Minister’s exercise of39
26GF.Directions under s. 26GC override rights and s. 22 and 26G directions40
Division 3B — Review
26GG.Review by SAT of Sch. 1 decisions on s. 5C licences41
26GH.Review by SAT of s. 22, 26G and 26GC directions and Sch. 1 cl. 39 decision42
26GI.Review by SAT of decisions on s. 26D licences42
26GJ.Notice to relevant water resources management committee42
Division 3C — Local water resources management committees
26GK.Establishing committees and subcommittees43
26GL.Orders under s. 26GK, content of44
26GM.Functions of committees45
26GN.Committee members to act honestly etc.46
26GO.Procedure of committees47
26GP.Delegation by Minister to committee48
26GQ.Minister to provide support to committee48
26GR.Remuneration of committee members48
26GS.Protection from personal liability for wrongdoing48
26GT.Execution of documents by committee49
Division 3D — Plans for management of water resources
Subdivision 1 — Plans and their contents
26GU.Preparation of plans; when plan has effect49
26GV.Classification of plans50
26GW.Regional management plans, purposes of50
26GX.Sub‑regional management plans, purposes of51
26GY.Local area management plans, purposes of52
26GZ.Consultation required before plan prepared etc.53
Subdivision 2 — Public consultation and making of plans
26GZA.Proposed plan to be publicly notified54
26GZB.Public submissions on proposed plan54
26GZC.Referral of proposed plan to other bodies55
26GZD.Modification of proposed plan55
26GZE.Proposed plan to be given to Water Resources Council; making a proposed plan56
26GZF.Approval of plan, public notice of; when plan has effect56
26GZG.Review, revocation, amendment and correction of plan57
Division 3E — Register of instruments
26GZH.Terms used58
26GZI.Register, keeping and inspection of etc.59
26GZJ.Content of register59
26GZK.Transfer of licence etc. under Sch. 1 cl. 31 to be recorded60
26GZL.Security interest in licence, application for note of60
26GZM. Security interest, notation of61
26GZN.Notation of security interest, CEO’s functions as to and effect of61
26GZO.Holder of notated security interest to be notified of certain events62
26GZP.Economic Regulation Authority to be notified of certain events62
26GZQ. Security interest notation, removal and variation of63
26GZR.Register, CEO may amend etc.64
26GZS.No compensation for acts done etc. under this Division64
26GZT.Regulations relating to register64
Division 4 — Miscellaneous
26H. Right of entry of Minister64
26J.Court proceedings, Minister may institute and evidence in65
26K. This Part binds Crown and statutory undertakers66
26L.Local by‑laws, Minister’s powers to make etc.67
26M.Licensing schemes, local by‑laws as to68
26N.Prerequisites for making local by‑laws69
26O.Drainage etc., local by‑laws as to70
26P.Flood protection works, local by‑laws as to71
26Q.Minister’s powers exercisable on behalf of people with water entitlement71
27.Regulations72
27A.Regulations may require certain work etc. to be licensed73
27B.Regulations as to licences and permits75
27C.Review of this Part75
Part IV — Irrigation Districts
28.Constitution of districts etc.77
29.Boundaries of districts, alteration of etc.; sub‑areas, creation of etc.77
Part VI — The construction and maintenance of works
35.Actions against Crown etc. for injury etc. to rights etc. and from floods etc. prohibited79
36.Compensation for injury etc. to rights etc. and from floods etc., claims for etc.79
37.Compensation claims, disputes as to80
38.Compensation claims, principles to be applied to80
Part XI — General provisions
64.Railways, water for83
66.Service of notices and demands, manner of83
67.Notices bind persons claiming under owner or occupier84
69.Civil remedy not affected by criminal proceedings84
70.Obstructing official, offence84
71.Refusing to give up possession of works, offence85
72.General penalty85
73.Arrest powers85
74.Prosecutions to be dealt with summarily86
79.Ownership or occupancy, proof of86
79A.Works, proof of facts as to87
Schedule 1 — Licensing and related provisions
Division 1 — Preliminary
1.Terms used88
2.Licences for different purposes88
3.Persons who are eligible to hold licences88
Division 2 — Applications and licensing decisions
4.Application for licence89
5.Advertising application for licence, regulations for90
6.Applicant may make submissions to Minister in some cases90
7.Minister’s discretion when deciding applications, exercise of91
8.When Minister must refuse licence92
9.If applicant not eligible to hold licence, procedure92
10.Decision on application, Minister to notify applicant etc.93
11.Licences may relate to more than one place, well etc.93
12.Duration of licence93
13.Licence terminates if licensee becomes ineligible to hold licence94
14.Licensee ceasing to be owner etc. of land, effect of cl. 13(1) in case of95
Division 3 — Terms, conditions and restrictions
15.Terms etc. of licence96
16.Term etc. that continues after licensed act completed96
17.Licence reducing another’s entitlement may include condition requiring payment of compensation96
18.Breach of term etc., Minister’s powers as to etc.97
Division 4 — Notation on licence of interest of third party
19.When cl. 20 applies98
20.Amending etc. licence requires third party’s consent99
21.Notation under cl. 19(b), content and effect of99
Division 5 — Renewal of licences
22.Renewal99
Division 6 — Amendment, suspension, cancellation and surrender of licences
23.Amendment, application by licensee for101
24.Amending licence, Minister’s powers as to101
25.Suspending or cancelling licence, Minister’s powers as to103
26.Licensee may make submissions in some cases before licence amended, suspended or cancelled104
27.Surrender of licence105
Division 7 — Transfers of licences and water entitlements and agreements with licensees to take water
28.Term used: water entitlement106
29.Transfer of licence or entitlement under licence106
29A.Death of licence holder, consequences of106
30.Agreement by licensee allowing third party to take water, of no effect in some cases107
31.Minister’s approval of transfer required108
32.Application for Minister’s approval109
33.Minister may require assessment before deciding cl. 32 application109
34.Security interest holder’s consent to transfer required110
35.Some cl. 32 applications to be notified to others who can make submissions110
36.Minister’s duties to endorse transferred etc. licences etc.111
Division 8 — Transfer of licences and water entitlements to the Minister
37.Term used: water entitlement112
38.When Minister may agree to transfer of licence etc. to Minister112
Division 9 — Compensation
39.Damage due to exercise of various of Minister’s powers, compensation for113
Division 10 — Issue of licences and transfer of licences and water entitlements by the Minister for a premium
40.Minister’s power to agree to issue licence at premium115
41.Minister’s power to agree to transfer licence etc. for premium116
Division 11 — Miscellaneous
42.Minister to notify Registrar of Titles etc. in some cases117
43.Licensee etc. to maintain works etc. referred to in licence118
44.Licensee to notify Minister of change of circumstances118
45.Duplicate licences, issue of in some cases118
46.Meters on wells etc.118
47.Meter reading to be presumed correct119
Appendix to Schedule 1
Matters to which licence terms, conditions or restrictions may relate
Notes
Compilation table122
Other notes127
Defined terms
Western Australia
Rights in Water and Irrigation Act 1914
An Act relating to rights in water resources, to make provision for the regulation, management, use and protection of water resources, and for related purposes.
[Long title inserted: No. 49 of 2000 s. 4; amended: No. 25 of 2012 s. 57.]
[Heading inserted: No. 119 of 1984 s. 3.]
This Act may be cited as the Rights in Water and Irrigation Act 1914.
[Section 1 inserted: No. 119 of 1984 s. 3.]
(1)In this Act, unless the contrary intention appears —
artesian well means a well, including all associated works, from which water flows, or has flowed, naturally to the surface;
bed, with reference to any watercourse or wetland, means the land over which normally flows, or which is normally covered by, the water thereof, whether permanently or intermittently, but does not include land from time to time temporarily covered by the flood waters of such watercourse or wetland and abutting on or adjacent to such bed;
CEO means the chief executive officer of the Department;
Crown land means land vested in Her Majesty which is not for the time being dedicated to any public purpose, or subject to any grant, lease, licence, contract, or engagement made by or on behalf of Her Majesty;
degradation, in respect of water, includes the sensible diminishing of the quality or quantity of that water;
Department means the department of the Public Service principally assisting in the administration of this Act;
district means an Irrigation District or “irrigation district” constituted under this Act;
former Authority means the Water Authority of Western Australia under the Water Authority Act 1984 2 before the commencement of Part 2 of the Water Agencies Restructure (Transitional and Consequential Provisions) Act 1995 3;
former Minister means a Minister administering this Act before, pursuant to the Water Authority Act 1984 2, the former Authority became charged with the administration of functions under this Act, whether in his capacity as a Minister of the Crown or as (pursuant to section 2 of the Water Supply, Sewerage, and Drainage Act 1912 4 as read with this Act) a body corporate;
local by‑laws means local by‑laws made under section 26L;
non‑artesian well means a well, including all associated works, from which water does not flow, and has not flowed, naturally to the surface, but has to be raised, or has been raised, by pumping or other artificial means;
prescribed means prescribed under the Water Agencies (Powers) Act 1984 for the purposes of this Act or that Act, as the case requires;
regulations means regulations made as mentioned in section 27;
spring means a spring of water naturally rising to and flowing over the surface of land, but does not include the discharge of underground water directly into a watercourse, wetland, reservoir or other body of water;
take, in relation to water, means to remove water from, or reduce the flow of water in, a watercourse, wetland or underground water source, including by —
(a)pumping or siphoning water; or
(b)stopping, impeding or diverting the flow of water; or
(c)releasing water from a wetland; or
(d)permitting water to flow under natural pressure from a well; or
(e)permitting stock to drink from a watercourse or wetland,
and includes storing water during, or ancillary to, any of those processes or activities;
underground water or underground water source includes water that percolates from the ground into a well or other works;
watercourse has the meaning given by section 3;
water resources includes —
(a)watercourses and wetlands together with their beds and banks; and
(b)other surface waters; and
(c)aquifers and underground water;
Water Resources Council means the Water Resources Council established by section 16 of the Water Agencies (Powers) Act 1984;
well means an opening in the ground made or used to obtain access to underground water;
wetland means a natural collection of water, whether permanent or temporary, on the surface of any land and includes —
(a)any lake, lagoon, swamp or marsh; and
(b)a natural collection of water that has been artificially altered,
but does not include a watercourse.
(2)Terms not otherwise assigned a meaning under subsection (1) but referred to in section 3 of the Water Agencies (Powers) Act 1984 as having a meaning assigned for the purposes of a relevant Act have that meaning in and for the purposes of this Act.
[Section 2 inserted: No. 119 of 1984 s. 3; amended: No. 25 of 1985 s. 275; No. 24 of 1987 s. 140; No. 73 of 1995 s. 113 and 140; No. 49 of 2000 s. 5 and 15; No. 38 of 2007 s. 52; No. 25 of 2012 s. 58.]
(1)In this Act, unless the contrary intention appears —
watercourse means —
(a)any river, creek, stream or brook in which water flows;
(b)any collection of water (including a reservoir) into, through or out of which any thing coming within paragraph (a) flows;
(c)any place where water flows that is prescribed by local by‑laws to be a watercourse,
and includes the bed and banks of any thing referred to in paragraph (a), (b) or (c).
(2)For the purposes of the definition in subsection (1) —
(a)a flow or collection of water comes within that definition even though it is only intermittent or occasional; and
(b)a river, creek, stream or brook includes a conduit that wholly or partially diverts it from its natural course and forms part of the river, creek, stream or brook; and
(c)it is immaterial that a river, creek, stream or brook or a natural collection of water may have been artificially improved or altered.
[Section 3 inserted: No. 49 of 2000 s. 6.]
[Part II deleted: No. 73 of 1995 s. 114.]
Part III — Control of water resources
[Heading inserted: No. 119 of 1984 s. 3; amended: No. 49 of 2000 s. 17.]
Division 1 — Objects and application of this Part
[Heading inserted: No. 49 of 2000 s. 7.]
(1)The objects of this Part are —
(a)to provide for the management of water resources, and in particular —
(i)for their sustainable use and development to meet the needs of current and future users; and
(ii)for the protection of their ecosystems and the environment in which water resources are situated, including by the regulation of activities detrimental to them;
and
(b)to promote the orderly, equitable and efficient use of water resources; and
(c)to foster consultation with members of local communities in the local administration of this Part, and to enable them to participate in that administration; and
(d)to assist the integration of the management of water resources with the management of other natural resources.
(2)The reference to use and development in subsection (1)(a)(i) includes use and development for domestic, commercial, recreational, cultural and navigational purposes.
(3)The Minister is to seek to ensure that the objects stated in subsection (1) are achieved, and other persons are to do so to the extent that they have relevant functions under this Part.
[Section 4 inserted: No. 49 of 2000 s. 7; amended: No. 38 of 2007 s. 101(1).]
In this Part —
watercourse includes waters flowing from a spring to which this Part applies.
[Section 4A inserted: No. 49 of 2000 s. 7.]
5.Waters to which this Part does not apply
(1)This Part does not apply to or in relation to —
(a)the water flowing from any spring the water of which rises to the surface on land that has been granted or demised by the Crown until it has passed beyond the boundaries of the land belonging to the owner or occupier of the land on which the water so rises; or
(b)the water in any wetland the bed of which is on land that has been granted or demised by the Crown and is wholly within the boundaries of the land belonging to the owner or occupier of the land on which it is situated,
unless the spring or wetland is prescribed by local by‑laws as being a spring or wetland to which this Part applies.
(2)A spring or wetland may not be prescribed as a spring or wetland to which this Part applies unless —
(a)taking water from the spring or wetland will, in the opinion of the water resources management committee established under Division 3C for the locality or localities in which the by‑law is intended to apply, have a significant impact on the flow or level of a watercourse or wetland; and
(b)that committee recommends to the Minister that this Part applies to or in relation to the spring or wetland.
[Section 5 inserted: No. 49 of 2000 s. 7; amended: No. 38 of 2007 s. 53.]
Division 1A — Ownership and control of waters
[Heading inserted: No. 49 of 2000 s. 18.]
5A.Natural waters vest in Crown
The right to the use and flow, and to the control, of the water at any time in any —
(a)watercourse; or
(b)wetland; or
(c)underground water source,
vests in the Crown except as allocated under this Act or another written law.
[Section 5A inserted: No. 49 of 2000 s. 18; amended: No. 38 of 2007 s. 54.]
5B.Landowner etc. may carry out certain drainage and storage work
(1)The operation of section 5A does not prevent the owner or occupier of land —
(a)subject to any relevant local by‑laws, from —
(i)draining the land; or
(ii)making any dam or tank on the land, not on a watercourse or wetland,
if as a result of doing so —
(iii)the flow of water in a watercourse, or the amount of water in a wetland, is not diminished; or
(iv)there is no significant adverse effect on the quality of water, or any ecosystem, in a watercourse, or a wetland; or
(b)from making any dam or tank on the land, not on a watercourse or wetland, for watering cattle or other stock, other than those being raised under intensive conditions as defined in section 21(4).
(2)In subsection (1) —
diminished means —
(a)sensibly diminished; or
(b)if local by‑laws prescribe a greater diminution of the flow or amount of water for the purposes of this section, diminished to a greater extent than is so prescribed.
[Section 5B inserted: No. 49 of 2000 s. 18.]
5C.Taking of certain water without right or licence, offence
(1)A person must not —
(a)take water from any watercourse, wetland or underground water source to which this section applies; or
(b)cause or permit any of those things to be done,
except under and in accordance with —
(c)a right conferred by —
(i)section 9, 10, 20, 21, 22 or 25A; or
(ii)a local by‑law of the kind referred to in section 26L(3)(d); or
(iii)another written law;
or
(d)a licence under this section granted by the Minister in accordance with Schedule 1.
Penalty: $10 000 and a daily penalty of $1 000.
(2)This section applies to —
(a)a watercourse or wetland to which Division 1B applies; and
(b)a watercourse or wetland to which Division 2 applies if it is —
(i)prescribed by the regulations to be subject to the operation of this section; or
(ii)situated within an area that is so prescribed;
and
(c)any artesian underground water; and
(d)any other underground water if it is —
(i)in a proclaimed area under section 26B; or
(ii)in an area that is prescribed by the regulations for the purposes of section 26B(3a).
(3)Schedule 1 has effect to make provision for and in relation to the licences referred to in subsection (1)(d).
[Section 5C inserted: No. 49 of 2000 s. 18; amended: No. 38 of 2007 s. 101(1).]
5D.Rights cannot be acquired by length of use
A right —
(a)to take and divert water; or
(b)to the diversion of water; or
(c)to the exclusive use of water,
cannot be acquired by any person, by length of time of use or otherwise, except under this Act or any other written law.
[Section 5D inserted: No. 49 of 2000 s. 18.]
5E.Breach of s. 5C or degradation of water resource, civil remedy for
(1)Subsection (2) applies if —
(a)a person contravenes section 5C and the contravention affects —
(i)the exercise by a person of a right referred to in section 5C(1)(c); or
(ii)the taking of water by a person under a licence under section 5C;
or
(b)a person taking or using water from a water resource does not take all reasonable steps to minimise the degradation of the water resource.
(2)The contravention is a breach of statutory duty that is actionable at the suit of —
(a)in respect of subsection (1)(a), a person referred to in subsection (1)(a)(i) or (ii); or
(b)in respect of subsection (1)(b), a person directly affected by the degradation of the water resource referred to in that subsection.
(3)Subsection (2) has effect subject to the defences and other incidents applying to actions for breach of statutory duty.
[Section 5E inserted: No. 49 of 2000 s. 18.]
Division 1B — Certain surface waters
[Heading inserted: No. 119 of 1984 s. 3; amended: No. 49 of 2000 s. 19.]
6.Watercourses etc. to which Division applies
[(1)deleted]
(2)Subject to section 5 and any proclamation under subsection (3), this Division applies to and in relation to every watercourse or wetland that is for the time being situated within the boundaries of a district but not otherwise.
(3)Subject to subsection (4), the Governor may, on the recommendation of the Minister, at any time and from time to time by proclamation declare that this Division —
(a)shall; or
(b)shall not,
apply to and have effect in relation to any watercourse or wetland specified in the proclamation or situated in a portion of the State so specified and any such proclamation shall have effect according to its tenor.
(4)A proclamation under subsection (3) shall not be made unless —
(a)the Minister has given notice of the proposed proclamation —
(i)to each interested local government, within the meaning of subsection (5); and
(ii)to each water resources management committee established under Division 3C for the locality or localities to which the proclamation is intended to apply;
and
(b)the local governments and water resources management committees have been given the opportunity to make submissions on the proposal to the Minister; and
(c)the Minister has called for public comment on the proposal in accordance with subsection (6); and
(d)the Minister has considered any submissions made under this section.
(5)For the purposes of subsection (4), where a watercourse or wetland runs through, is contiguous to, or is situated wholly or partly in, a local government district, the local government of that district is, in relation to a proposed proclamation under that subsection affecting that watercourse or wetland an interested local government.
(6)The Minister is taken to comply with subsection (4)(c) by —
(a)publishing in 2 issues of a daily newspaper circulating in the locality concerned a notice stating the proposal to make the proclamation; and
(b)including in the notice a statement —
(i)specifying the places at which a copy of the proposed proclamation may be inspected or obtained; and
(ii)indicating that written submissions on the proposed proclamation may be made by any person within a specified period; and
(iii)indicating how submissions may be provided.
(7)The period specified under subsection (6)(b)(ii) is to be not less than 30 days after both of the notices referred to in paragraph (a) of that subsection have been published.
[Section 6 inserted: No. 119 of 1984 s. 3; amended: No. 14 of 1996 s. 4; No. 49 of 2000 s. 14(2) and (3), 15 and 20; No. 38 of 2007 s. 55 and 101(1); No. 34 of 2020 s. 67.]
7.Saving for certain proclamations in force at 15 Feb 1985
A proclamation made under section 27(5) as enacted before the coming into operation of section 3 of the Rights in Water and Irrigation Amendment Act 1984 and in force immediately before the coming into operation of that section shall —
(a)in the case of a proclamation under paragraph (a) or (b) thereof, be deemed to have been made under section 6(3)(a);
(b)in the case of a proclamation under paragraph (c) thereof, be deemed to have been made under section 6(3)(b),
and a reference in any such proclamation to this Part shall be read as a reference to this Division.
[Section 7 inserted: No. 119 of 1984 s. 3.]
[8.Deleted: No. 49 of 2000 s. 21.]
9.Riparian owner etc., rights of
(1)Subject to this section, the owner or occupier of any land alienated from the Crown through or contiguous to which runs any watercourse, or contiguous to which, or partly within which, is situate any wetland, has the right, as such owner or occupier, to take water in that watercourse or wetland free of charge —
(a)for the domestic and ordinary use of himself and of his family and servants; and
(b)for watering cattle or other stock, other than those being raised under intensive conditions as defined in section 21(4),
and every owner of land alienated from the Crown before the relevant day has a further right to take such water for the irrigation of a garden not exceeding 2 ha in extent and from which no produce is sold, being part of that land and used in connection with a dwelling.
(2)For the purposes of this section —
(a)the relevant day, in relation to land through or contiguous to which runs a watercourse, or contiguous to which or partly within which is situate a wetland, means —
(i)where this Division applies to and has effect in relation to the watercourse or wetland by reason of a proclamation under section 6(3), the day on which that proclamation was published;
(ii)in any other case, the day when this Act came into operation;
and
(b)land that, on the relevant day, was or is in process of alienation shall be deemed to have been alienated before that day.
(3)This section has effect subject to Division 3A.
[Section 9 inserted: No. 119 of 1984 s. 3; amended: No. 49 of 2000 s. 8, 15 and 22.]
10.Rights to water to which there is access by public road etc.
(1)Any person may take water for domestic and ordinary use, and for watering cattle or other stock, other than those being raised under intensive conditions as defined in section 21(4), from any watercourse or wetland vested in the Crown and to which there is access by a public road or reserve at the point at which the water is taken.
(2)This section has effect subject to Division 3A.
[Section 10 inserted: No. 119 of 1984 s. 3; amended: No. 49 of 2000 s. 14(2), 15 and 23.]
11.Obstruction etc. of watercourse, road etc. not authorised by s. 10
(1)Section 10 does not authorise a person for the purpose of taking water under that section —
(a)to do anything, or install any works or object, that causes obstruction of or interference to a watercourse or wetland or its bed or banks, unless the person holds a permit granted by the Minister authorising the person to do so; or
(b)to do anything, or install any works or object, that causes obstruction or disturbance of or interference with a road or reserve, unless the person is authorised to do so by the body in which the control and management of the road or reserve is vested.
(2)The regulations may make provision for the permits referred to in subsection (1)(a), including provision for the matters set out in section 27B.
[Section 11 inserted: No. 49 of 2000 s. 24; amended: No. 38 of 2007 s. 101(1).]
[12.Deleted: No. 49 of 2000 s. 25.]
[13.Deleted: No. 49 of 2000 s. 26.]
[14.Deleted: No. 49 of 2000 s. 56.]
15.Bed of watercourse etc. on land boundary remains Crown property
(1)Subject to subsection (4), where a watercourse or wetland forms the boundary or part of the boundary of a parcel of land that has at any time been alienated by the Crown, the bed thereof shall, for the purposes of this Act, be deemed to have remained the property of the Crown, and not to have passed with the land so alienated.
(2)Subject to subsection (4), where a watercourse or wetland forms the boundary, or part of the boundary of a parcel of land that is alienated by the Crown, the bed thereof shall, notwithstanding such alienation, remain the property of the Crown, and shall not pass with the land so alienated.
(3)Subsections (1) and (2) apply notwithstanding that one and the same person has been or is the owner of the lands adjacent to both banks.
(4)This section does not apply to —
(a)the bed of a natural collection of water into and out of which flows a river, stream, or creek to the extent that it exceeds in width the width of the river, stream, or creek at its inlet to or outlet from that natural collection of water; or
(b)the bed of a natural collection of water, whether or not it is part of a watercourse, to the extent that it is cultivated, either wholly or in part, at any time during the year, or is capable of being drained and cultivated.
[Section 15 inserted: No. 119 of 1984 s. 3; amended: No. 49 of 2000 s. 14(1) and 15.]
16.Riparian owner etc., rights of access etc. to watercourse etc. despite s. 15
(1)Notwithstanding anything in section 15 —
(a)the owner or occupier for the time being of any land adjacent to any watercourse or wetland the bed whereof is by this Act declared to have remained the property of the Crown, shall have the like access to the portion of the bed to which that land is adjacent, and the like use of that portion as if this Act had not been passed unless such portion has been actually appropriated by or is under the sanction of the Crown for any of the purposes of this Act; and
(b)such owner or occupier may have and pursue against any person trespassing upon that portion of the land any remedy for trespass which he might have had and pursued if this Act had not been passed, and as if that person were a trespasser upon land in the possession of such owner or occupier.
(2)The Minister may grant to the owner or occupier of any land adjacent to any watercourse or wetland the bed whereof is by this Act declared to have remained the property of the Crown, permission subject to such conditions as the Minister may think fit to carry out works at the expense of that owner or occupier for the protection of that land from damage by erosion or flooding, if in the opinion of the Minister such works will not injuriously affect the bed or unduly obstruct the watercourse or wetland.
(3)This section shall not be taken to restrict the right of the Crown to pursue any remedy against any person trespassing upon such bed nor shall this section entitle an owner or occupier to have or pursue any remedy for trespass against the Crown or a former Minister, or any person acting under the authority of the Crown or a former Minister.
(4)A person exercising in respect of a bed a right of access or use conferred by subsection (1) does not by reason thereof trespass upon such bed.
[Section 16 inserted: No. 119 of 1984 s. 3; amended: No. 25 of 1985 s. 279 and 281; No. 110 of 1985 s. 121; No. 73 of 1995 s. 138; No. 49 of 2000 s. 9, 14(1) and (3) and 15; No. 38 of 2007 s. 56.]
17.Obstruction etc. of watercourse etc. without authority, offence and Minister’s powers as to
(1)Where, whether before or after the coming into operation of this Act, land was or is granted, transferred in fee simple, or demised by the Crown, a person shall not, except as authorised by a permit or by any other Act, obstruct, destroy, or interfere with any watercourse, race, or drain flowing through or over the land, or any dam or reservoir, or the bed of any disused watercourse, race, or drain, that is on the land.
(2)Subsection (1) applies notwithstanding that although the watercourse, race, or drain flowed through or over the land, or the dam or reservoir, or the bed of a disused watercourse, race, or drain, was on the land at the time of the grant, transfer, or demise of the land, an appropriate reservation or exception was not included in the Crown grant, transfer of Crown land in fee simple, or lease.
(3)A person shall not, except as authorised by a permit or by any other Act, obstruct, destroy or interfere with the waters, bed or banks of any watercourse flowing through or over, or wetland situate wholly or partly on, land that has not been granted or demised by the Crown.
(3a)Without limiting subsection (1) or (3) —
(a)the construction or alteration of a dam is to be taken to be prohibited by that subsection; and
(b)the reference in that subsection to a permit is a reference to the grant of a permit by the Minister under regulations referred to in section 17B.
(4)Any person who obstructs, destroys, or interferes with anything contrary to subsection (1) or (3) is guilty of an offence against this section; and any person who, being the occupier of any land granted or demised as mentioned in subsection (1), continues or fails to remove any such obstruction or interference is guilty of an offence against this section on every day during which such obstruction or interference is continued or not removed after notice in writing to discontinue or to remove the same has been given by or on behalf of the Minister to such occupier.
(4a)Despite subsections (1) and (3), this section does not apply to the construction or alteration of a dam in an area, or of a size or type, excluded from the operation of this section by local by‑laws if the dam is constructed or altered in accordance with such by‑laws.
(4b)Despite section 19, this section applies to a watercourse to which Division 2 applies that is —
(a)prescribed for the purposes of this section by local by‑laws; or
(b)situated within an area that is so prescribed.
(5)A prosecution for an offence against this section may be commenced at any time within 2 years after the offence was committed and not afterwards.
(6)The Minister may, by notice in writing, direct any person who has been convicted of an offence against this section to carry out such works and take such other measures as the Minister specifies in the notice for the purpose of restoring the bed or banks of the watercourse, race, drain or wetland or minimising the effect of the obstruction or destruction thereof or interference therewith.
(7)Where a direction contained in a notice given under subsection (6) has not been complied with and the time allowed by the notice for compliance has expired the Minister may cause such works to be carried out and measures to be taken as the Minister considers appropriate for achieving the purposes of the notice, and the Minister may recover the expenses thereby reasonably incurred as a debt due from the person to whom the notice was given.
(8)In this section and in section 17A —
dam includes any artificial barrier or levee, whether temporary or permanent, which does or could impound, divert or control water, silt, debris or liquid borne materials, together with its appurtenant works.
[Section 17 inserted: No. 119 of 1984 s. 3; amended: No. 25 of 1985 s. 279; No. 110 of 1985 s. 122; No. 73 of 1995 s. 138; No. 31 of 1997 s. 79(1) and (2); No. 49 of 2000 s. 14(1) and (4), 15 and 53; No. 38 of 2007 s. 101(1).]
17A.Dams built etc. before 10 Jan 2001, saving for as to s. 17 permits
(1)Nothing in section 17 is to be taken to require a permit as mentioned in subsection (3a)(b) of that section for the construction or alteration of a dam if that construction or alteration was commenced before the coming into operation of section 53 of the Rights in Water and Irrigation Amendment Act 2000 (the commencement day).
(2)Subsection (1) does not affect —
(a)the application of section 17 to the alteration, after the commencement day, of a dam the construction of which is exempted from that section by subsection (1); or
(b)any breach of that section that occurred before that day.
[Section 17A inserted: No. 49 of 2000 s. 54.]
17B.Permits for s. 17, regulations for
The regulations may make provision for the permits that are required under section 17(1) and (3), including provision for the matters set out in section 27B.
[Section 17B inserted: No. 49 of 2000 s. 54.]
18.Discharge etc. of sludge etc. into watercourse, offence
Any person who conveys or discharges, or causes or permits to be conveyed or discharged any sludge, mud, earth, gravel, or other matter likely to obstruct the flow of the current, into any watercourse, is guilty of an offence against this Act.
[Section 18 inserted: No. 119 of 1984 s. 3; amended: No. 49 of 2000 s. 15.]
Division 2 — Other surface waters
[Heading inserted: No. 119 of 1984 s. 3.]
19.Watercourses etc. to which this Division applies
(1)Subject to section 5, this Division applies to and has effect in relation to every watercourse or wetland to and in relation to which Division 1B does not apply.
[(2)deleted]
[Section 19 amended: No. 49 of 2000 s. 14(3), 15 and 27.]
20.Riparian owners etc., rights of
(1)The owner or occupier of any land (riparian land) alienated from the Crown through or contiguous to which runs any watercourse, or contiguous to which, or partly within which, is situate any wetland, has the right, as such owner or occupier, to take water in that watercourse or wetland free of charge —
(a)for the domestic and ordinary use of himself and of his family and servants; and
(b)for watering cattle or other stock, other than those being raised under intensive conditions as defined in section 21(4); and
(c)to the extent that the flow of water in the watercourse or the amount of water in the wetland, as the case may be, is not thereby sensibly diminished, for any other purpose,
but the right described in paragraph (c) may be made inapplicable to, or be restricted in relation to, any riparian land by the provisions of local by‑laws that apply to the land, and that paragraph is to be read subject to any such provisions.
(2)Every owner of riparian land that was —
(a)alienated from the Crown before the commencement of this Act; or
(b)in the process of alienation at that commencement,
has the right, in addition to the rights conferred by subsection (1), to take water described in that subsection for the irrigation of a garden not exceeding 2 ha if no produce is sold from the garden and the garden —
(c)is part of that land; and
(d)is used in connection with a dwelling.
(3)The owner of riparian land also has the right conferred by subsection (2) in relation to a watercourse or wetland where, although paragraph (a) or (b) of that subsection does not apply —
(a)Division 1B has ceased to apply to the watercourse or wetland; and
(b)immediately before that cessation a right of the kind described in subsection (2), in relation to that watercourse or wetland, was appurtenant to the land by virtue of section 9(1).
(4)The operation of this section does not prevent the owner or occupier of land from making any dam or tank on the land as long as the owner or occupier is taking water in accordance with this section.
(5)This section has effect subject to Division 3A.
[Section 20 inserted: No. 119 of 1984 s. 3; amended: No. 49 of 2000 s. 10, 15 and 28.]
21.Rights to water to which there is access by public road etc.
(1)Any person may take water —
(a)for domestic and ordinary use; and
(aa)for firefighting; and
(b)for watering cattle or other stock other than those being raised under intensive conditions; and
(c)subject to subsection (2), to the extent that the flow of water in the watercourse or the amount of water in the wetland, as the case may be, is not thereby sensibly diminished, for any other purpose,
from any watercourse or wetland that is vested in the Crown and to which there is access by a public road or by a reserve for public access at the point where the water is taken.
(2)The right described in subsection (1)(c) may be made inapplicable to, or be restricted in relation to, any watercourse or wetland by the provisions of local by‑laws that apply to that watercourse or wetland, and that paragraph is to be read subject to any such provisions.
(3)Subsection (1) has effect subject to Division 3A.
(4)In subsection (1)(b) —
intensive conditions means conditions in which the cattle or stock —
(a)are confined to an area smaller than that required for grazing under normal conditions; and
(b)are usually fed by hand or by mechanical means.
[Section 21 inserted: No. 119 of 1984 s. 3; amended: No. 49 of 2000 s. 11, 15 and 29.]
21A.Obstruction etc. of watercourse, road etc. not authorised by s. 21
(1)Section 21 does not authorise a person for the purpose of taking water under that section —
(a)to do anything, or install any works or object, that causes obstruction of or interference to a watercourse or wetland or its bed or banks, unless the person holds a permit granted by the Minister authorising the person to do so; or
(b)to do anything, or install any works or object, that causes obstruction or disturbance of or interference with a road or reserve, unless the person is authorised to do so by the body in which the control and management of the road or reserve is vested.
(2)The regulations may make provision for the permits referred to in subsection (1)(a), including provision for the matters set out in section 27B.
[Section 21A inserted: No. 49 of 2000 s. 30; amended: No. 38 of 2007 s. 101(1).]
22.Unauthorised diversion etc. of water, Minister’s powers as to
(1)The Minister may, where the Minister is of the opinion that —
(a)any person —
(i)having a right under section 20 or 21 to take water in a watercourse or wetland, has diverted, taken, or used such water for a purpose or to an extent not authorised by this Division or is not taking all reasonable steps to minimise the degradation of the watercourse or wetland; or
(ii)not having a right under section 20 or 21 to take water in a watercourse or wetland, has diverted, taken, or used such water;
and
(b)the unauthorised diversion, taking, or use —
(i)resulted in or contributed to the interference with the enjoyment by any other person of a right conferred by this Division, or any damage or injury to the land of any other person; or
(ii)should not, in the public interest, be permitted to continue,
by notice in writing give directions to the person who has so diverted, taken, or used the water defining, where applicable, the purposes for which, or the extent to which, water may be diverted, taken, or used by that person in the exercise of those rights and specifying the extent, if any, to which, the manner in which, and the conditions upon which, that person may divert, take, or use such water otherwise than in the exercise of those rights.
(2)A direction given by the Minister under subsection (1) —
(a)is to contain reasons for the direction; and
(b)may be varied or cancelled by the Minister by subsequent notice in writing.
(2a)Clause 7(2) of Schedule 1 applies, with all necessary changes, when the Minister is considering whether to give or make, or is determining the contents of —
(a)any direction under subsection (1) as to the diversion, taking or use of water otherwise than in the exercise of a right referred to in that subsection; or
(b)any variation of such a direction,
or is considering whether to cancel any such direction.
(3)A direction given under subsection (1) shall not permit the diversion, taking, or use of water otherwise than in the exercise of a right under section 20 or 21 unless the Minister is satisfied that such diversion, taking, or use will not result in or contribute to any interference, damage, or injury of the kind referred to in subsection (1)(b)(i).
(4)Where by notice under subsection (1) or (2) the Minister gives to a person a direction or varies a direction previously given and, after the expiry of 30 days from the giving of the notice or such shorter time as is specified in the notice, the person to whom the notice was given diverts, takes, or uses water contrary to the direction so given or the direction as so varied that person commits an offence and is liable to a fine not exceeding $4 000 and a daily penalty of $400.
[Section 22 inserted: No. 119 of 1984 s. 3; amended: No. 25 of 1985 s. 279 and 282; No. 73 of 1995 s. 138; No. 49 of 2000 s. 14(3), 15, 31 and 57; No. 38 of 2007 s. 101(1).]
[23.Deleted: No. 49 of 2000 s. 58.]
Nothing contained in, or done under, this Division affects any remedy to which a person would otherwise be entitled in civil proceedings except that a person shall not be liable to be proceeded against in respect of any diversion, taking, or use of water that is permitted by a direction under section 22 or authorised by a licence under section 5C or by a local by‑law.
[Section 24 inserted: No. 119 of 1984 s. 3; amended: No. 49 of 2000 s. 32.]
25.Obstruction etc. of watercourse etc. on Crown land, offence and Minister’s powers as to
(1)A person shall not, except as authorised by or under this or any other Act, obstruct, destroy, or interfere with the waters, bed, or banks of any watercourse flowing through or over, or wetland situate wholly or partly on, land that has not been granted or demised by the Crown.
(2)Any person who obstructs, destroys, or interferes with anything contrary to subsection (1) is guilty of an offence against this section.
(3)A prosecution for an offence against this section may be commenced at any time within 2 years after the offence was committed and not afterwards.
(4)The Minister may, by notice in writing, direct any person who has been convicted of an offence against this section to carry out such works and take such other measures as the Minister specifies in the notice for the purpose of restoring the bed or banks of the watercourse or wetland or minimising the effect of the obstruction or destruction thereof or interference therewith.
(5)Where a direction contained in a notice given under subsection (4) has not been complied with and the time allowed by the notice for compliance has expired the Minister may cause such works to be carried out and measures to be taken as the Minister considers appropriate for achieving the purposes of the notice, and the Minister may recover the expenses thereby reasonably incurred as a debt due from the person to whom the notice was given.
[Section 25 inserted: No. 119 of 1984 s. 3; amended: No. 25 of 1985 s. 279 and 283; No. 73 of 1995 s. 138; No. 49 of 2000 s. 14(1) and (4) and 15; No. 38 of 2007 s. 101(1).]
Division 3 — Underground waters
[Heading inserted: No. 119 of 1984 s. 3.]
25A.Non‑artesian wells in prescribed areas, rights to take water from
(1)This section applies to any non‑artesian well in an area that is prescribed as mentioned in section 26B(3a), but subject to the provisions of —
(a)any local by‑law referred to in section 26; and
(b)any other written law,
that are applicable to that well.
(2)A person may take water from a non‑artesian well to which this section applies and to which the person has lawful access —
(a)for domestic and ordinary use; and
(b)for firefighting; and
(c)for watering cattle or other stock, other than those being raised under intensive conditions as defined in section 21(4); and
(d)for any other purpose that is prescribed by a local by‑law referred to in subsection (1).
(3)The right conferred by subsection (2) does not include authority to install any works or object on the land concerned.
[Section 25A inserted: No. 49 of 2000 s. 33.]
26.Local by‑laws for s. 25A(2)
Local by‑laws may be made for the regulation and control of the taking of water under subsection (2) of section 25A, and may include a prohibition in particular circumstances on the taking of water for a purpose mentioned in that subsection.
[Section 26 inserted: No. 49 of 2000 s. 33.]
26A.Artesian well constructed or altered without licence, offence
(1)A person shall not, except pursuant to a licence issued for that purpose under section 26D, commence, construct, enlarge, deepen or alter any artesian well or cause, suffer, or permit any of those things to be done.
(2)A person who —
(a)being an owner or occupier of land, contravenes or fails to comply with subsection (1); or
(b)being a person engaged for the purpose of carrying out any work mentioned in subsection (1), commences or carries out any such work that is not authorised by a licence issued under section 26D,
commits an offence and is liable to a fine not exceeding $10 000 and a daily penalty of $1 000.
[Section 26A inserted: No. 119 of 1984 s. 3; amended: No. 49 of 2000 s. 34 and 59.]
26B. Non‑artesian well in certain areas etc. constructed or altered without licence etc., offence
(1)The Governor may by proclamation declare any part of the State named or defined in the proclamation, to be a proclaimed area for the purposes of this section; and may, by subsequent proclamation, vary or cancel any such proclamation.
(2)Section 42 of the Interpretation Act 1984, applies to any proclamation made under subsection (1) as though the proclamation were a regulation.
(3)A person must not —
(a)commence, construct, enlarge, deepen or alter any non‑artesian well that is situate in a proclaimed area; or
(b)cause, suffer or permit any of those things to be done,
unless one of the following applies —
(c)the person does so under and in accordance with a licence under section 26D; or
(d)the well is in an area specified in an order under section 26C(2) and is used, or to be used, for a purpose allowed by that order; or
(e)an exemption or exclusion contained in local by‑laws referred to in section 26L(3)(c) applies; or
(f)the work is allowed by subsection (4)(d).
(3a)Subsection (3) also applies to —
(a)all wells; or
(b)all wells of a class prescribed by the regulations,
that are not situated in a proclaimed area but are situated in an area that is prescribed by the regulations to be subject to the operation of that subsection.
(4)Where any work required by this section to be the subject of a licence has been commenced and is not completed at the time when —
(a)a proclamation made under subsection (1); or
(b)regulations referred to in subsection (3a),
come into operation, the occupier of the land on which the work was commenced —
(c)must, within 2 months after that coming into operation, apply for a licence under section 26D for that work; and
(d)may continue the work during that period and until the application is finally determined whether by the Minister or on an application under section 26GI for review.
(5)Subject to section 26C and any local by‑laws, where an existing non‑artesian well is, by operation of —
(a)a proclamation made under subsection (1) brought into a proclaimed area; or
(b)regulations referred to in subsection (3a) brought under the operation of subsection (3),
the occupier of the land on which the well is situated —
(c)must, within 2 months after the proclamation or regulations come into operation, apply for a licence under section 5C to take water from that well; and
(d)may continue to take water from the well without a licence during that period and until the application is finally determined whether by the Minister or on an application under section 26GI for review.
(6)A person who —
(a)being an owner or occupier of land, contravenes or fails to comply with this section; or
(b)being a person engaged for the purpose of carrying out any work mentioned in subsection (3), commences or carries out any such work that is prohibited by that subsection,
commits an offence and is liable to a fine not exceeding $10 000 and a daily penalty of $1 000.
[Section 26B inserted: No. 119 of 1984 s. 3; amended: No. 49 of 2000 s. 35 and 60; No. 55 of 2004 s. 1046; No. 38 of 2007 s. 57 and 101(1).]
26C.Exemptions to s. 5C and 26B(3)-(6), declaring
(1)In this section proclaimed area has the same meaning as it has in section 26B.
(2)The Governor may, by Order in Council published in the Gazette, declare that sections 5C and 26B(3) to 26B(6) do not apply in relation to a non‑artesian well, or a type or types of non‑artesian wells, situated, or to be situated, in a proclaimed area or part thereof specified in the Order if that well is used or to be used for the taking of water and an Order published under this subsection shall have effect according to its tenor.
(3)The Governor may, by a subsequent Order in Council published in the Gazette, vary or cancel an Order under subsection (2).
(3a)Clause 7(2) of Schedule 1 applies, with all necessary changes, when the Governor is considering whether to make, or is determining the contents of —
(a)any order under subsection (2); or
(b)any variation of such an order,
or is considering whether to cancel any such order.
(4)Where an Order published under subsection (3) varies or cancels a previous Order so published —
(a)a person does not contravene section 5C or 26B(3) or (6) by reason of the doing, within 2 months after the publication of the Order effecting the variation or cancellation, of anything that would not have contravened that provision had the previous Order not been so varied or cancelled; and
(b)in relation to work that, but for the variation or cancellation of the previous Order, would, by reason of that Order, not have been required under section 26B to be the subject of a licence, section 26B(4) applies as if the day on which the Order effecting the variation or cancellation was published were the day on which a proclamation were made under section 26B(1) declaring the part of the State concerned to be a proclaimed area; and
(c)in relation to a non‑artesian well from which, but for the variation or cancellation of the previous Order, a person would, by reason of that Order, not have been prevented from taking water, section 26B(5) applies as if the day on which the Order effecting the variation or cancellation was published were the day on which a proclamation was made under section 26B(1) bringing the well into a proclaimed area.
[Section 26C inserted: No. 119 of 1984 s. 3; amended: No. 57 of 1997 s. 105(1); No. 49 of 2000 s. 36; No. 46 of 2009 s. 14(2).]
26D.Licence for construction etc. of well, application for and issue of
(1)Every application for a licence for the commencement or construction of an artesian well or a non‑artesian well or for the enlargement, deepening or altering of an existing well shall be made to the Minister in the prescribed form and shall be accompanied by the prescribed plans and specifications, together with a statement of the purposes for which it is proposed to use the water.
(2)The Minister may —
(a)issue a licence to the applicant subject to such terms, limitations and conditions as the Minister thinks fit; or
(b)before granting a licence, require such alterations to be made in, or in connection with, the work or the plans and specifications as the Minister thinks fit; or
(c)refuse a licence.
(3)A licence shall be deemed to be held by, and shall operate for the benefit of, the lawful owner and the occupier, for the time being, of the land whereon the well is sunk or is proposed to be sunk.
[Section 26D inserted: No. 119 of 1984 s. 3; amended: No. 25 of 1985 s. 284; No. 73 of 1995 s. 138; No. 49 of 2000 s. 37 and 61; No. 38 of 2007 s. 101(1).]
26E.Non‑artesian well completed after 15 Feb 1985, Minister to be informed about
(1)Where after the coming into operation of section 3 of the Rights in Water and Irrigation Amendment Act 1984 a non‑artesian well is constructed or deepened, the person who carries out the work shall, within 1 month after completing the construction of or deepening of the well, furnish, in the prescribed form, to the Minister or to such other person as the Minister may direct such information in respect of the well as is prescribed.
Penalty: $1 000.
(2)The Minister may, by notice published in the Gazette, exempt persons from the requirement of complying with subsection (1) in respect of wells in any part of the State and may, by subsequent notice so published, vary or cancel any such notice.
[Section 26E inserted: No. 119 of 1984 s. 3; amended: No. 25 of 1985 s. 279; No. 73 of 1995 s. 138; No. 49 of 2000 s. 62; No. 38 of 2007 s. 101(1).]
26F.Altering licensed well or contravening licence, offence
(1)During the currency of a licence issued under section 26D no alterations shall be made in or in connection with the well, but works necessary for the maintenance of the well in good order or occasioned by any unforeseen emergency may be carried out if written notice of all such works is given to the Minister within 7 days after the same are commenced.
(2)Any person who contravenes this section, or contravenes or fails to carry out any condition of the licence, shall be liable to a penalty not exceeding $10 000 and a daily penalty of $1 000; and, in addition to the imposition of the said penalty, the Minister may cancel the licence given in respect of the well in regard to which the offence was committed; and a person shall not thereafter do, or cause, suffer or permit to be done, any thing that was authorised by the licence to be done.
(3)The holder of any such licence may, during the currency thereof, apply for an amended licence allowing alterations in the well; and every such application shall be dealt with as is herein provided in respect of applications for a licence in the first instance.
[Section 26F inserted: No. 119 of 1984 s. 3; amended: No. 25 of 1985 s. 279; No. 73 of 1995 s. 138; No. 49 of 2000 s. 38 and 63; No. 38 of 2007 s. 101(1).]
26G.Water from s. 26B(3) well, Minister’s powers to control waste etc. and rate of use of
(1)If the Minister is of the opinion that water taken from any artesian well or from a non‑artesian well in relation to which section 26B(3) applies, whenever constructed —
(a)is being improperly used; or
(b)is being wasted, whether by reason of neglect, failure to effect repairs or alterations reasonably necessary for the proper maintenance of the well or any other cause; or
(ba)is being taken or used without all reasonable steps being taken to minimise the degradation of the water resource; or
(c)is having harmful effect; or
(d)is not being used to the best advantage,
the Minister may, after giving 30 days’ notice of the intention in that regard, direct the closing or partial closing of the well or direct such other steps (including any reasonable repairs and alterations) to be taken as the Minister thinks necessary to prevent the continuance of any of the things mentioned in paragraph (a), (b), (ba), (c) or (d).
(2)The Minister may, for the purpose of regulating the quantity of water to be taken from any artesian or non‑artesian underground water source, from time to time give directions as to the amount of water that may be taken, and the rate at which it may be taken, from any artesian well or non‑artesian well that relates to that underground source.
(2a)A notice served on a person under this section —
(a)is to contain reasons for the direction; and
(b)takes effect —
(i)when it is served; or
(ii)at the later time provided for in the notice.
(2b)The Minister may at any time revoke or vary a notice by further notice served on the person concerned.
(3)A person who fails to comply with a direction given pursuant to this section commits an offence.
Penalty: $5 000 and a daily penalty of $500.
(4)Where a person is convicted of an offence against this section, the Minister may cancel any licence given in respect of the well in regard to which the offence was committed; and a person shall not thereafter do, or cause, suffer or permit to be done anything that was authorised by a licence so cancelled to be done.
[Section 26G inserted: No. 119 of 1984 s. 3; amended: No. 25 of 1985 s. 279 and 285; No. 73 of 1995 s. 138; No. 49 of 2000 s. 39 and 64; No. 38 of 2007 s. 101(1).]
Division 3A — Limitations on rights conferred by and under Divisions 1B, 2 and 3
[Heading inserted: No. 49 of 2000 s. 40.]
Subdivision 1 — Limitations where water is augmented
[Heading inserted: No. 49 of 2000 s. 40.]
26GA.Rights under s. 9, 10, 20 and 21 to augmented volume of water, limits on
(1)Where the volume of water in any watercourse or wetland is augmented by the introduction of water by works constructed for that purpose, the rights conferred by sections 9, 10, 20 and 21 to take water in that watercourse or wetland —
(a)are subject to the limitations set out in subsection (2); and
(b)may be exercised only in accordance with that subsection and the regulations.
(2)A person is not entitled by section 9, 10, 20 or 21 to take any more of the water of the watercourse or wetland concerned than —
(a)the amount prescribed by local by‑laws; or
(b)if paragraph (a) does not apply, the amount calculated in accordance with subsection (3).
(3)The amount for the purposes of subsection (2)(b) is —
(a)the aggregate of —
(i)14 kL per day for —
(I)domestic and ordinary use; and
(II)watering cattle or other stock,
in respect of every kilometre of frontage measured by the general course to the watercourse or wetland; and
(ii)where section 9 or 20 applies, 8 500 m3 per annum for the irrigation of a garden as mentioned in those sections;
or
(b)the amount of water that would be available to the person and to which the person would be so entitled but for the augmentation referred to in subsection (1),
whichever is the lesser.
(4)Local by‑laws may, for particular cases or classes of cases, specify the amount of water to which subsection (3)(b) refers, and any such specification is conclusive as to that amount.
[Section 26GA inserted: No. 49 of 2000 s. 40.]
Subdivision 2 — Limitations imposed by direction
[Heading inserted: No. 49 of 2000 s. 40.]
26GB.Term used: water resource
In this Subdivision —
water resource means a watercourse, wetland or underground water source to which section 26GC applies.
[Section 26GB inserted: No. 49 of 2000 s. 40.]
26GC.Taking and use of certain water, Minister’s powers to restrict etc.
(1)Where this section applies to a water resource, the Minister may by notice in writing served on a person give directions to the person —
(a)restricting —
(i)the amount of water that the person may take from the water resource; or
(ii)the rate at which the water may be taken by the person from the water resource; or
(iii)the purpose for which the water taken from the water resource may be used by the person;
or
(b)prohibiting —
(i)the taking of water by the person from the water resource; or
(ii)the purpose for which water taken from the water resource by the person may be used;
or
(c)imposing on the person obligations in terms of any combination of the matters in paragraphs (a) and (b).
(2)A person on whom a notice is served under subsection (1) must not —
(a)take or use water; or
(b)cause or permit water to be taken or used,
in contravention of the directions given to the person in the notice.
Penalty: $4 000 and a daily penalty of $400.
(3)A notice served on a person under subsection (1) —
(a)is to contain reasons for the direction; and
(b)takes effect —
(i)when it is served; or
(ii)at the later time provided for in the notice.
(4)The Minister may at any time revoke or vary a notice by further notice served on the person concerned.
[Section 26GC inserted: No. 49 of 2000 s. 40; amended: No. 38 of 2007 s. 101(1).]
(1)Section 26GC applies to a watercourse, wetland or underground water source if the Minister —
(a)has made a determination that the quantity of water in the water resource is, or is likely to be, insufficient to meet demand, including any demand made by the needs of the environment; or
(b)has made, and published in the Gazette, an order declaring that a water shortage exists in the area in which the water resource is situated,
and so long as any such determination or order has not been revoked.
(2)Section 26GC also applies so as to enable the Minister to give directions to a person who is taking water from a water resource if in the opinion of the Minister the taking of the water is having a harmful effect on the water resource or the water being taken —
(a)is being improperly used; or
(b)is being wasted; or
(c)is having a harmful effect; or
(d)is not being used to the best advantage.
[Section 26GD inserted: No. 49 of 2000 s. 40; amended: No. 38 of 2007 s. 101(1).]
26GE.Powers in s. 26GD, limits on Minister’s exercise of
(1)An order may only be made under section 26GD(1)(b) in respect of an area if the Minister considers that the water available in the area is, or is likely to be, insufficient to meet the demands for which it is managed as described in section 4(1)(a).
(2)The Minister must —
(a)revoke a determination under section 26GD(1)(a); and
(b)by order published in the Gazette, revoke an order under section 26GD(1)(b),
as soon as the Minister is satisfied that an insufficiency of the kind referred to in subsection (1)(a) of that section or in subsection (1) of this section, as the case may be, no longer exists in relation to the water resource or area concerned.
(3)On the revocation of a determination or order under section 26GD(1) in relation to a water resource or area, any notice served on a person under section 26GC that applies to that water resource, or a water resource in that area, ceases to have effect.
[Section 26GE inserted: No. 49 of 2000 s. 40; amended: No. 38 of 2007 s. 58, 101(1) and (2).]
26GF.Directions under s. 26GC override rights and s. 22 and 26G directions
(1)Where a notice is served on a person under section 26GC, any right that the person has —
(a)under section 9, 10, 20, 21 or 22; or
(b)under the regulations or a local by‑law; or
(c)by virtue of a licence under section 5C,
is displaced by, or has effect subject to, the provisions of the notice so long as it continues in force.
(2)If a direction given under section 26GC is inconsistent with a direction given under section 22 or 26G —
(a)the direction under section 26GC prevails to the extent of the inconsistency; and
(b)to that extent the other direction does not have effect.
[Section 26GF inserted: No. 49 of 2000 s. 40.]
[Heading inserted: No. 49 of 2000 s. 65; amended: No. 55 of 2004 s. 1047.]
26GG.Review by SAT of Sch. 1 decisions on s. 5C licences
(1)A person referred to in subsection (2) may apply to the State Administrative Tribunal for a review of the decision if the person is aggrieved by a decision of the Minister under Schedule 1 —
(a)to refuse an application for the grant or renewal of a licence under section 5C (a licence); or
(b)as to the period for which a licence is granted or renewed; or
(c)as to any term, condition or restriction included in a licence; or
(d)to undertake to grant a licence, including as to any term, condition, or restriction undertaken to be included in the licence; or
(e)to amend, suspend or cancel a licence; or
(f)to refuse to approve the transfer of a licence or of a water entitlement under a licence, or an agreement referred to in clause 30 of Schedule 1.
(2)A person may apply under subsection (1) for a review only if the person is an applicant for the licence, the licensee or, if the application is made under subsection (1)(f), a person to whom the licence or water entitlement would be transferred or a person who is a party to the agreement.
[Section 26GG inserted: No. 49 of 2000 s. 65; amended: No. 55 of 2004 s. 1048; No. 38 of 2007 s. 101(1).]
26GH.Review by SAT of s. 22, 26G and 26GC directions and Sch. 1 cl. 39 decision
(1)A person given a direction, or variation of a direction, under section 22, 26G or 26GC may apply to the State Administrative Tribunal for a review of the decision to give the direction or variation if the person is aggrieved by the decision.
(2)A person who requested compensation under clause 39 of Schedule 1 may apply to the State Administrative Tribunal for a review of the decision if the person is aggrieved by a decision of the Minister to refuse compensation under clause 39(5)(b) or (6)(b) or (c) of Schedule 1.
[Section 26GH inserted: No. 49 of 2000 s. 65; amended: No. 55 of 2004 s. 1049; No. 38 of 2007 s. 59 and 101(1).]
26GI.Review by SAT of decisions on s. 26D licences
An applicant for a licence under section 26D may apply to the State Administrative Tribunal for a review of the decision if the person is aggrieved by a decision of the Minister —
(a)to refuse a licence under section 26D(2)(c); or
(b)as to any term, limitation or condition included in a licence under that section; or
(c)to require alterations to be made as mentioned in section 26D(2)(b).
[Section 26GI inserted: No. 49 of 2000 s. 65; amended: No. 55 of 2004 s. 1050; No. 38 of 2007 s. 101(1).]
26GJ.Notice to relevant water resources management committee
(1)The State Administrative Tribunal is to give notice of its final order in a proceeding commenced by an application under this Part, and of the reasons for its final order, to any relevant water resources management committee.
(2)In subsection (1) —
relevant water resources management committee means a water resources management committee established under Part III Division 3C for a locality to which the subject matter of the application relates.
(3)A notice under subsection (1) has to be given in writing or in any other manner prescribed.
(4)The obligation imposed by subsection (1) is in addition to any obligation under the State Administrative Tribunal Act 2004.
[Section 26GJ inserted: No. 55 of 2004 s. 1051.]
Division 3C — Local water resources management committees
[Heading inserted: No. 49 of 2000 s. 44.]
26GK.Establishing committees and subcommittees
(1)The Minister may determine that a water resources management committee (a committee) is to be established for any locality or area of the State.
(2)Subject to an order made under subsection (4), a committee may from time to time appoint, discharge or alter, subcommittees of members of the committee, or members and other persons, as it thinks fit to advise it on any matter within the functions of the committee, particularly a matter of localised interest.
(3)A subcommittee is to be presided over by a member of the committee and sections 26GL(3), 26GN, 26GO, 26GR and 26GS apply in respect of a subcommittee as if a reference in those sections to “committee” were a reference to “subcommittee”.
(4)Where subsection (1) applies, the Minister must, subject to section 26GL, by order prescribe —
(a)the locality or area for which the committee is established; and
(b)the name of the committee; and
(c)the manner in which the committee is to be appointed; and
(d)any other provisions the Minister thinks fit relating to subcommittees or the committee’s membership, constitution and procedures, including providing that the terms of members’ appointments are to vary, so that the terms of all members do not expire simultaneously.
(5)The Minister may at any time by further order amend or revoke an order made under this section.
(6)An order made under this section is to be published in the Gazette for public information.
[Section 26GK inserted: No. 49 of 2000 s. 44.]
26GL.Orders under s. 26GK, content of
(1)An order made under section 26GK must make provision for the members of a committee, so far as is practicable, to be drawn —
(a)substantially from persons who —
(i)are residents of; or
(ii)employed in, or operate, a business in,
the locality or area for which the committee is established; and
(b)from persons who —
(i)are representatives of a local government; or
(ii)are officers of public authorities having functions in the locality or area; or
(iii)have knowledge and experience relating to the water needs and practices of local communities, including Aboriginal communities; or
(iv)are officers of the Department.
(2)An order made under section 26GK must also make provision for the members of a committee, so far as is practicable and, with respect to the functions of the committee, relevant, to be collectively persons who have knowledge of and experience in the following —
(a)the management or development of water resources or other natural resources;
(b)the use of water resources;
(c)conservation of ecosystems;
(d)local government.
(3)If the functions of a committee relate mainly to the use of water resources, persons who are users of those resources are, as far as is practicable, to form a majority of committee members.
(4)An order made under section 26GK must make provision for notice of appointments to a committee to be published in the Gazette for public information.
[Section 26GL inserted: No. 49 of 2000 s. 44; amended: No. 38 of 2007 s. 60.]
(1)The functions of a committee are, in respect of the locality or area for which it is established —
(a)to provide the Minister with —
(i)assistance; and
(ii)advice,
on matters relating to the functions of the Minister to the extent that the Minister asks the committee to do so; and
(b)to perform the functions given to it —
(i)by section 26N(2), in respect of local by‑laws; and
(ii)by section 26GZ, in respect of a plan under Division 3D;
and
(c)to perform any function of the Minister that may be delegated to it by the Minister under section 26GP; and
(d)to ensure that the Minister is informed of, and has access to, community views on matters relating to water resources; and
(e)to assist the Minister in the resolution of disputes about the use of water resources involving persons having rights under this Act or persons affected by the exercise of those rights.
(2)A committee in performing its functions is subject to the direction and control of the Minister.
[Section 26GM inserted: No. 49 of 2000 s. 44; amended: No. 38 of 2007 s. 101(1).]
26GN.Committee members to act honestly etc.
(1)A member of a committee must at all times act honestly and diligently in performing the member’s functions under this Act.
(2)If a matter is before a meeting of a committee for consideration and a member present at the meeting has a direct or indirect pecuniary interest in the matter, the member must disclose to the other members present at the meeting, as soon as possible after the relevant facts have come to the member’s knowledge, that he or she has an interest, and —
(a)the disclosure is to be recorded in the minutes of the meeting; and
(b)the member must not subsequently be present during any consideration or discussion of, and is not to vote on any determination of, the matter.
(3)An interest need not be disclosed under subsection (2) if it is an interest common to a significant number of residents of the locality or area for which the committee is established.
(4)Subsection (2)(b) does not apply if the committee has, without the presence of the member who has disclosed the interest, at any time passed a resolution that —
(a)specifies the member, the interest and the matter; and
(b)states that the members voting for the resolution are satisfied that the interest should not disqualify the member from considering or voting on the matter.
(5)A member of a committee must not disclose any information acquired by virtue of the performance of any function under this Act unless the disclosure is made in connection with the carrying out of this Act or under a legal duty.
(6)A member of a committee must not make use of any information acquired by virtue of the performance of the member’s functions to gain, directly or indirectly, an improper advantage for the member or to cause detriment to any person.
(7)A member of a committee who commits a breach of any provision of this section —
(a)is liable to the Crown for any profit made by the member as a result of the breach of that provision; and
(b)commits an offence and is liable to a fine of $10 000.
(8)This section is in addition to and not in derogation of any other law relating to the duty or liability of the holder of a public office.
[Section 26GN inserted: No. 49 of 2000 s. 44.]
Subject to this Division, a committee is to determine its own procedure.
[Section 26GO inserted: No. 49 of 2000 s. 44.]
26GP.Delegation by Minister to committee
(1)The Minister may, by instrument in writing, delegate to a committee the performance of any function conferred on the Minister by this Act, other than this power of delegation.
(2)A function performed by a committee as delegate of the Minister is to be taken to be performed by the Minister.
(3)A committee performing a function under this section is to be taken to do so in accordance with the terms of the delegation unless the contrary is shown.
[Section 26GP inserted: No. 49 of 2000 s. 44; amended: No. 38 of 2007 s. 101(1).]
26GQ.Minister to provide support to committee
The Minister is to provide a committee with such —
(a)administrative support; and
(b)facilities,
as it reasonably requires for the performance of its functions.
[Section 26GQ inserted: No. 49 of 2000 s. 44; amended: No. 38 of 2007 s. 101(1).]
26GR.Remuneration of committee members
Members of a committee are entitled to such remuneration and allowances as the Minister determines on the recommendation of the Public Sector Commissioner.
[Section 26GR inserted: No. 49 of 2000 s. 44; amended: No. 39 of 2010 s. 89.]
26GS.Protection from personal liability for wrongdoing
(1)An action in tort does not lie against a member of a committee for anything that the member has, in good faith, done in the performance or purported performance of a function under this Act.
(2)The protection given by this section applies even though the thing done in the performance or purported performance of a function of a committee may have been capable of being done whether or not this Act had been enacted.
(3)Despite subsection (1), the Crown is not relieved of any liability that it might have for a member of a committee having done anything as described in that subsection.
(4)In this section, a reference to the doing of anything includes a reference to the omission to do anything.
[Section 26GS inserted: No. 49 of 2000 s. 44; amended: No. 38 of 2007 s. 61.]
26GT.Execution of documents by committee
(1)A committee may, by resolution in writing, authorise a member or members of the committee to sign documents on behalf of the committee, either generally or subject to such conditions or restrictions as are specified in the resolution.
(2)A document is duly executed by a committee if it is signed on behalf of the committee by a person or persons authorised to do so under subsection (1).
(3)A document purporting to be executed on behalf of a committee is to be presumed to be duly executed until the contrary is shown.
[Section 26GT inserted: No. 49 of 2000 s. 44.]
Division 3D — Plans for management of water resources
[Heading inserted: No. 49 of 2000 s. 44.]
Subdivision 1 — Plans and their contents
[Heading inserted: No. 49 of 2000 s. 44.]
26GU.Preparation of plans; when plan has effect
(1)A plan for the purposes of this Act may be prepared by the Minister.
(2)A plan does not have effect unless it is approved under section 26GZE after the requirements of Subdivision 2 have been complied with.
[Section 26GU inserted: No. 49 of 2000 s. 44; amended: No. 38 of 2007 s. 62.]
(1)A plan may be —
(a)a regional management plan; or
(b)a sub‑regional management plan; or
(c)a local area management plan.
(2)A regional management plan, a sub‑regional management plan and a local area management plan may relate to more than one region, sub‑region and local area respectively.
(3)A regional management plan, sub‑regional management plans for that region and local area management plans for the areas in that region may be combined in one document.
[Section 26GV inserted: No. 49 of 2000 s. 44.]
26GW.Regional management plans, purposes of
(1)A regional management plan must indicate the region to which it applies.
(2)The purpose of a regional management plan is to set out the matters that are to guide the general management by the Minister of water resources in the region to which it applies, in relation to —
(a)the definition of water resource values, including environmental values, and the protection of those values; and
(b)the use of water resources; and
(c)the integration of water resources planning and management with land use planning and management.
(3)A regional management plan is to specify the monitoring and reporting (which is to occur at least once in every 7 years) to be carried out by the Minister to ensure, as far as is practicable, that the objects of this Part are achieved in the implementation of the plan.
[Section 26GW inserted: No. 49 of 2000 s. 44; amended: No. 38 of 2007 s. 101(1).]
26GX.Sub‑regional management plans, purposes of
(1)A sub‑regional management plan must indicate the part of a region to which it applies.
(2)The purpose of a sub‑regional management plan is to set out particular matters that are to guide the management by the Minister of water resources in the sub‑region to which it applies, including —
(a)how the investigation and development of water resources are to be facilitated by the Minister; and
(b)how rights in respect of water are to be allocated to meet various needs, including the needs of the environment; and
(c)the matters of sub‑regional significance that, consistently with this Act, will be taken into account by the Minister in considering —
(i)applications for licences made under Division 2 of Schedule 1; and
(ii)the exercise of powers to renew, amend, suspend and cancel licences under Divisions 5 and 6 of that Schedule; and
(iii)applications for the Minister’s approval of transfers of licences and water entitlements, and of agreements, made under Division 7 of that Schedule;
and
(d)the Minister’s assessment of —
(i)the capacity of water sources to provide water at sustainable levels of use; and
(ii)the environmental impact of developing those sources;
and
(e)the strategies that will be adopted or developed to implement the plan.
(3)A sub‑regional management plan is to specify the monitoring and reporting (which is to occur at least once in every 7 years) to be carried out by the Minister to ensure, as far as is practicable, that the objects of this Part are achieved in the implementation of the plan.
(4)A sub‑regional management plan must not be inconsistent with the relevant regional management plan.
[Section 26GX inserted: No. 49 of 2000 s. 44; amended: No. 38 of 2007 s. 63 and 101(1).]
26GY.Local area management plans, purposes of
(1)A local area management plan must indicate the area or areas in the relevant sub‑region to which it applies.
(2)The purpose of a local area management plan is to set out particular matters that are to guide the management by the Minister of water resources in the area or areas to which it applies, including —
(a)how rights in respect of water are to be allocated, and water may be taken and used, to meet various needs including the needs of the environment; and
(b)the matters that, consistently with this Act, will be taken into account by the Minister in considering —
(i)applications for licences made under Division 2 of Schedule 1; and
(ii)the exercise of powers to renew, amend, suspend and cancel licences under Divisions 5 and 6 of that Schedule; and
(iii)applications for the Minister’s approval of transfers of licences and water entitlements, and of agreements, made under Division 7 of that Schedule;
and
(c)the nature and extent of the delegated authority that will be conferred on a relevant water resources management committee under section 26GP, and the conditions and restrictions that will apply to the exercise of that authority.
(3)A local area management plan is to specify the monitoring and reporting (which is to occur at least once in every 7 years) to be carried out by the Minister to ensure, as far as is practicable, that the objects of this Part are achieved in the implementation of the plan.
(4)A local area management plan must not be inconsistent with the relevant regional management plan and sub‑regional management plan.
[Section 26GY inserted: No. 49 of 2000 s. 44; No. 38 of 2007 s. 63 and 101(1).]
26GZ.Consultation required before plan prepared etc.
A plan, or an amendment to a plan, may only be —
(a)prepared; or
(b)modified under section 26GZC(3)(a) or 26GZD; or
(c)revoked and a new plan substituted for it under section 26GZG,
after consultation with any water resources management committee under Division 3C that is in existence for the region, sub‑region or area to which the plan relates.
[Section 26GZ inserted: No. 49 of 2000 s. 44.]
Subdivision 2 — Public consultation and making of plans
[Heading inserted: No. 49 of 2000 s. 44; amended: No. 38 of 2007 s. 64.]
26GZA.Proposed plan to be publicly notified
(1)Public notification that a proposed plan has been prepared must be given in accordance with subsections (2) and (3).
(2)A notice complying with subsection (3) must be published —
(a)in the Gazette; and
(b)in 2 issues of a daily newspaper circulating throughout the State.
(3)The notice must —
(a)specify the region, sub‑region or area to which the plan relates; and
(b)describe in general terms the purpose for which the plan is to be made; and
(c)specify the places at which —
(i)a copy of the plan may be inspected; and
(ii)copies of the plan may be obtained;
and
(d)state the effect of section 26GZB and specify the period and the address or addresses referred to in that section.
[Section 26GZA inserted: No. 49 of 2000 s. 44.]
26GZB.Public submissions on proposed plan
Written submissions on the proposed plan may be made by any body or person —
(a)within a period determined by the Minister, which period must be not less than 2 months after the day on which the notice under section 26GZA is published in the Gazette; and
(b)by giving them to the Minister, in a manner designated by the Minister, and so that they are received within that period.
[Section 26GZB inserted: No. 49 of 2000 s. 44; amended: No. 38 of 2007 s. 101(1); No. 34 of 2020 s. 68.]
26GZC.Referral of proposed plan to other bodies
(1)If in the opinion of the Minister the proposed plan may affect the functions of a body that is responsible for the planning for, or management of, a natural resource, the Minister must give the proposed plan to that body.
(2)The Minister may give the proposed plan to any other body or person the Minister thinks appropriate.
(3)A plan given under subsection (1) or (2) —
(a)is to be as it may be modified by the Minister after considering submissions made under section 26GZB; and
(b)in any case is to be accompanied by a summary of those submissions.
(4)If any such body or person considers that the Minister should amend the plan, it may within one month after receipt of the proposed plan under subsection (1) or (2), in writing, request the Minister to make the amendment.
[Section 26GZC inserted: No. 49 of 2000 s. 44; amended: No. 38 of 2007 s. 65, 101(1) and (2).]
26GZD.Modification of proposed plan
The Minister may modify the proposed plan as the Minister thinks fit to give effect to —
(a)submissions made under section 26GZB; and
(b)any request under section 26GZC(4).
[Section 26GZD inserted: No. 49 of 2000 s. 44; amended: No. 38 of 2007 s. 101(1) and (2).]
26GZE.Proposed plan to be given to Water Resources Council; making a proposed plan
(1)The Minister must give the proposed plan, modified as the Minister thinks fit under section 26GZD, to the Water Resources Council and indicate the time within which the Water Resources Council may submit its report under subsection (3).
(2)The plan must be accompanied by —
(a)a summary of all submissions made under section 26GZB and requests made under section 26GZC(4); and
(b)a report of the Minister indicating the Minister’s opinion of the merits of those submissions and requests.
(3)The Water Resources Council may submit to the Minister a report indicating its opinion of the plan and making recommendations about modification and approval of the plan.
(4)The Minister may make the proposed plan with or without modifications.
(5)The Minister must not make the plan before the time referred to in subsection (1) has elapsed.
[Section 26GZE inserted: No. 38 of 2007 s. 66.]
26GZF.Approval of plan, public notice of; when plan has effect
(1)Notice that a plan has been approved must be published in the Gazette, together with a note showing —
(a)whether any modifications were made under section 26GZE(3); and
(b)where a copy of the plan may be inspected or obtained.
(2)A plan has effect from —
(a)the day of publication in the Gazette of a notice under subsection (1); or
(b)such later day as is specified in the plan.
[Section 26GZF inserted: No. 49 of 2000 s. 44.]
26GZG.Review, revocation, amendment and correction of plan
(1)A plan may be amended, or revoked and a new plan substituted for it, subject to compliance with sections 26GZA to 26GZF which are to apply with all necessary changes.
(2)Without limiting when action may be taken under subsection (1), the Minister, within 7 years from the day —
(a)on which a plan had effect; or
(b)the Minister last considered whether action under subsection (1) needed to be carried out in respect of a plan,
is to consider whether action needs to be taken in respect of the plan under subsection (1) after taking into account any relevant report or information under section 26GW, 26GX or 26GY regarding the extent to which the objects of this Part have been adhered to in the implementation of the plan.
(3)Notice that the Minister is to consider whether action needs to be taken in respect of a regional management plan under subsection (1) must be published in a newspaper circulating throughout the State, and is to specify —
(a)the places at which —
(i)a copy of the plan may be inspected; and
(ii)copies of the plan may be obtained;
and
(b)the effect of subsection (4) and the period and the address or addresses referred to in that subsection.
(4)Written submissions on the need for action to be taken under subsection (1) may be made by any body or person —
(a)within the period determined by the Minister, which must be not less than 2 months after the day on which the notice under subsection (3) is published in the newspaper; and
(b)by giving them to the Minister, in a manner designated by the Minister, and so that they are received within that period.
(4a)The Minister must advise the Water Resources Council of the Minister’s decision, and reasons, as to whether action needs to be taken in respect of a plan under subsection (1).
(5)The Minister may —
(a)correct any clerical mistake, error or inaccuracy in, or accidental omission from, a plan; or
(b)replace any factual information set out in a plan if the information has become out of date.
(6)Notice of any such correction or replacement must be published in the Gazette for public information.
[Section 26GZG inserted: No. 49 of 2000 s. 44; amended: No. 38 of 2007 s. 67 and 101(1); No. 34 of 2020 s. 69.]
Division 3E — Register of instruments
[Heading inserted: No. 49 of 2000 s. 49.]
In this Division —
instrument means —
(a)a licence under section 5C; and
(b)an exemption under section 26C; and
(c)a direction under section 22, 26G or 26GC;
security interest means an interest in a licence (however arising) that secures payment of a debt or other pecuniary obligation or the performance of any other obligation.
[Section 26GZH inserted: No. 49 of 2000 s. 49.]
26GZI.Register, keeping and inspection of etc.
(1)The CEO is to keep a register of instruments.
(2)The register may be kept in such form as the CEO thinks fit.
(3)The register must be available for public inspection, subject to payment of the prescribed fee (if any), during normal office hours at the office or offices of the Department designated by the CEO for the purposes of this subsection.
(4)A person may, upon application to the CEO and payment of the prescribed fee, if any, obtain a copy of an entry in, or an extract from, the register.
(5)The CEO may, subject to payment of the prescribed fee, if any, allow a person access to the register in electronic form.
[Section 26GZI inserted: No. 49 of 2000 s. 49; amended: No. 38 of 2007 s. 68 and 102.]
(1)The register must set out the following details in respect of each instrument —
(a)the nature of the instrument and the provision or provisions of this Act under which it has effect; and
(b)the period for which it is in force; and
(c)the name and business address —
(i)in the case of a licence under section 5C, of the person who for the time being holds the licence; or
(ii)in the case of a direction under section 22, 26G or 26GC, of the person who is bound by the direction;
and
(d)a description of the water resource to which the instrument relates, including the locality in which, and a legal description of the land on which, it is situated; and
(e)in the case of a licence, details relating to any security interest in the licence that the CEO is required to note on the register under section 26GZM; and
(f)details of any conviction of a person referred to in paragraph (c) for an offence against this Act; and
(g)any other details that are prescribed by the regulations.
(2)In the case of a licence under section 5C held by the holder of a water services licence, the details referred to in subsection (1) are to be set out in a separate part of the register.
(3)In subsection (2) —
water services licence means a licence under the Water Services Act 2012 that authorises the provision of a water supply service or an irrigation service.
[Section 26GZJ inserted: No. 49 of 2000 s. 49; amended: No. 67 of 2003 Sch. 2 cl. 66; No. 38 of 2007 s. 102; No. 25 of 2012 s. 59.]
26GZK.Transfer of licence etc. under Sch. 1 cl. 31 to be recorded
Where a transfer of a licence or a water entitlement under a licence is approved by the Minister under clause 31 of Schedule 1, the CEO is to amend the register to accurately reflect the transfer as soon as practicable.
[Section 26GZK inserted: No. 49 of 2000 s. 49; amended: No. 38 of 2007 s. 69.]
26GZL.Security interest in licence, application for note of
A licensee may apply to the CEO in a form approved by the CEO to have noted on the register that a specified person has a security interest in the licence.
[Section 26GZL inserted: No. 49 of 2000 s. 49; amended: No. 38 of 2007 s. 102.]
26GZM. Security interest, notation of
(1)The CEO must —
(a)on application being made under section 26GZL; and
(b)payment of the prescribed fee, if any,
make a notation on the register that the person specified in the application has a security interest in the relevant licence.
(2)The notation must set out the following details in respect of the security interest —
(a)a general description of the nature of the security interest; and
(b)the name and business address of the person who has the security interest; and
(c)such other details, if any, as are prescribed.
[Section 26GZM inserted: No. 49 of 2000 s. 49; amended: No. 38 of 2007 s. 102.]
26GZN.Notation of security interest, CEO’s functions as to and effect of
(1)The CEO is not to be concerned with —
(a)the nature of any security interest that is the subject of an application under section 26GZL; or
(b)whether or not the person specified in the application as having the security interest actually has that interest.
(2)A notation on the register that a person has a security interest in a licence does not give the interest any force that it would not have had if this Division had not been enacted.
[Section 26GZN inserted: No. 49 of 2000 s. 49; amended: No. 38 of 2007 s. 102.]
26GZO.Holder of notated security interest to be notified of certain events
If the register contains a notation made under section 26GZM that a person has a security interest in a licence and —
(a)the licensee is convicted of an offence against this Act; or
(b)application is made to the Minister —
(i)under clause 23 of Schedule 1 to amend the licence; or
(ii)under clause 32 of that Schedule for approval of the transfer of the licence or a water entitlement under the licence;
or
(c)the Minister proposes —
(i)not to renew the licence under clause 22 of Schedule 1; or
(ii)to amend the licence under clause 24 of that Schedule; or
(iii)to cancel or suspend the licence under clause 25 of that Schedule;
or
(d)the Minister is notified that the licensee wishes to surrender the licence under clause 27 of Schedule 1,
the CEO must as soon as practicable give or cause to be given to the person specified in the notation written details of that fact.
[Section 26GZO inserted: No. 49 of 2000 s. 49; amended: No. 38 of 2007 s. 70.]
26GZP.Economic Regulation Authority to be notified of certain events
(1)If —
(a)a licence is recorded in the part of the register mentioned in section 26GZJ(2); and
(b)any of the events described in section 26GZO occurs in relation to the licence,
the CEO must as soon as practicable give or cause to be given to the Authority written details of that fact.
(2)In subsection (1) —
Authority means the Economic Regulation Authority established by the Economic Regulation Authority Act 2003.
[Section 26GZP inserted: No. 49 of 2000 s. 49; amended: No. 67 of 2003 Sch. 2 cl. 67; No. 38 of 2007 s. 102.]
26GZQ. Security interest notation, removal and variation of
(1)If the register contains a notation that a person has a security interest in a licence, the licensee may apply to the CEO in a form approved by the CEO to —
(a)remove the notation from the register; or
(b)vary any details relating to the security interest.
(2)Where an application is made under subsection (1), the CEO —
(a)is to give notice of the application to a person noted on the register as having a security interest in the licence; and
(b)must not remove the notation of the security interest from the register or vary the details in the register (as the case requires) unless —
(i)each person noted on the register as having a security interest in the licence consents in writing to the CEO doing so; or
(ii)a court authorises or directs the CEO to do so, at the suit of the licensee, a person referred to in subparagraph (i) or some other interested person.
[Section 26GZQ inserted: No. 49 of 2000 s. 49; amended: No. 38 of 2007 s. 71 and 102.]
26GZR.Register, CEO may amend etc.
The CEO may amend, add to and correct the register in such manner as is necessary to make the register an accurate record of the details it contains.
[Section 26GZR inserted: No. 49 of 2000 s. 49; amended: No. 38 of 2007 s. 102.]
26GZS.No compensation for acts done etc. under this Division
No compensation is payable in respect of anything done or omitted to be done in good faith by the CEO in the performance or purported performance of any duty, or the exercise or purported exercise of any power, under this Division.
[Section 26GZS inserted: No. 49 of 2000 s. 49; amended: No. 38 of 2007 s. 102.]
26GZT.Regulations relating to register
The regulations may —
(a)prescribe fees and charges payable in respect of anything done under this Division; and
(b)provide for any other matter relating to the register.
[Section 26GZT inserted: No. 49 of 2000 s. 49.]
[Heading inserted: No. 119 of 1984 s. 3.]
26H. Right of entry of Minister
(1)Subject to subsection (1a), the Minister may, in the exercise of the right of the Crown, to the control of the waters in watercourses, wetlands or underground water sources or for any other purpose required by this Act, enter upon any land and inspect that land and any dam, well, or other works thereon or therein and take such measures as may be necessary or convenient, whether in general or to meet particular cases, to carry out the objects and purposes of this Act and the Minister’s duties thereunder including measures for the conservation and regulation of such water and for the protection of the bed over or within which it flows or is contained, and for removing any obstruction from such bed, and for clearing and deepening and straightening and otherwise altering the channel of any such watercourse, and may intervene summarily to prevent the undue, excessive, or illegal diversion, taking or use of such water or interference with such bed.
(1a)The provisions of Part VI of the Water Agencies (Powers) Act 1984 that regulate entry onto land apply in relation to any entry under subsection (1).
(2)Any person who obstructs, impedes or interferes with the Minister or any other person exercising powers under subsection (1) in entering upon any land or in taking any measures under subsection (1), is guilty of an offence against this Act.
[Section 26H inserted: No. 119 of 1984 s. 3; amended: No. 25 of 1985 s. 286; No. 73 of 1995 s. 138 and 140; No. 49 of 2000 s. 12, 15 and 41; No. 74 of 2003 s. 103(2); No. 38 of 2007 s. 72.]
26J.Court proceedings, Minister may institute and evidence in
(1)The Minister, or an officer of the Department authorised by the Minister for the purpose, may institute and maintain any proceeding in any court whether such proceeding be for any civil remedy or for the recovery or enforcement of any penalty against any person for illegally diverting or taking or for polluting the water of any watercourse, wetland or underground water source, or for unlawfully interfering with the bed thereof.
(2)In such proceedings it shall not be necessary for the Minister to show that the Crown or any other person has sustained damage by such illegal diversion or taking of water or unlawful interference with such bed; nor that the Crown is a riparian owner or otherwise entitled to the use or to the protection of the watercourse, wetland or underground water source from which water is illegally diverted or taken, or the water of which is polluted, or the bed of which is unlawfully interfered with; but the Minister shall be entitled to judgment in the Crown’s favour if it be proved that the water has been illegally diverted or taken or polluted, or that the bed has been unlawfully interfered with; and the Minister shall, in the discretion of the court, be entitled to the costs and expenses of the proceedings against the person by whom the court in its discretion shall order such costs and expenses to be paid.
[Section 26J inserted: No. 119 of 1984 s. 3; amended: No. 25 of 1985 s. 279 and 287; No. 73 of 1995 s. 117 and 138; No. 49 of 2000 s. 14(5) and 15; No. 74 of 2003 s. 103(3); No. 38 of 2007 s. 73.]
26K. This Part binds Crown and statutory undertakers
(1)Except so far as a provision of this Part may be inconsistent with a Government agreement, this Part binds the Crown and a statutory undertaker.
(2)The Governor may by order published in the Gazette provide for exemptions for the Crown or a statutory undertaker from any provision of this Part.
(3)Section 43(4) and (7) to (9) of the Interpretation Act 1984 applies to an order under subsection (2) as though the order were subsidiary legislation and section 42 of that Act applies to such an order as if the order were a regulation.
(4)In this section —
Government agreement has the same meaning as it has in the Government Agreements Act 1979;
statutory undertaker means a person performing a function that is authorised or provided for by or under a written law.
[Section 26K inserted: No. 73 of 1995 s. 118; amended: No. 49 of 2000 s. 45.]
26L.Local by‑laws, Minister’s powers to make etc.
(1)The Minister may make by‑laws for the purposes of this Act (local by‑laws) that are applicable in a locality or localities in the State specified in the by‑laws.
(2)Local by‑laws may be made under subsection (1) prescribing or providing for any matter —
(a)that is required or permitted by this Act to be prescribed or provided for by local by‑laws; or
(b)that is necessary or convenient to be prescribed for the purpose of achieving the objects of this Act.
(3)Without limiting subsection (2), local by‑laws may make provision for and in relation to —
(a)the construction, provision, maintenance, repair and removal of works relating to water resources; and
(b)the manner in which water may be taken; and
(c)the exemption or exclusion of —
(i)acts, persons or things; or
(ii)acts, persons or things in a specified area,
from the application of particular provisions of this Act, the regulations or the by‑laws; and
(d)the authorisation of persons to take water from a watercourse, wetland or underground source —
(i)for particular purposes; or
(ii)under particular circumstances,
or both of those kinds of cases; and
(e)the duties of licensees, persons whose names are endorsed on a licence as being a person with whom the holder of a licence has an agreement referred to in clause 30 of Schedule 1 and other persons on whom rights are conferred by or under this Act, including duties in respect of —
(i)monitoring and reporting on water resources; and
(ii)the recording and supply of information; and
(iii)the taking and analysis of samples of water.
(4)If a provision of local by‑laws is inconsistent with a provision of the regulations, the latter provision prevails to the extent of the inconsistency.
(5)If a provision of local by‑laws is inconsistent with a provision of by‑laws made under section 34 of the Water Agencies (Powers) Act 1984, the former provision prevails to the extent of the inconsistency.
(6)Section 34(3)(a) of the Water Agencies (Powers) Act 1984 does not apply to any local by‑law.
[Section 26L inserted: No. 49 of 2000 s. 46.]
26M.Licensing schemes, local by‑laws as to
Local by‑laws that provide for the licensing of persons to do anything that is otherwise prohibited may make provision for —
(a)the matters that are to be, or may be, taken into account in considering applications for licences; and
(b)fees that are to be paid in connection with licences; and
(c)different licences to authorise the doing of different things under the by‑laws; and
(d)the conditions and restrictions that may be attached to licences, whether at the time of grant or later, and the cancellation, variation and enforcement of conditions and restrictions; and
(e)the duration of licences and their renewal; and
(f)the cancellation, suspension, amendment and transfer of licences; and
(g)applications to the State Administrative Tribunal for review of decisions relating to applications made and licences granted under the by‑laws.
[Section 26M inserted: No. 49 of 2000 s. 46; amended: No. 55 of 2004 s. 1052.]
26N.Prerequisites for making local by‑laws
(1)Before the Minister makes, amends or repeals any local by‑laws under section 26L, the Minister is to be satisfied that the requirements of this section, and where relevant, section 5, have been complied with.
(2)The requirements are that —
(a)a draft of a proposed legislative scheme for the by‑laws, or the amendment or the repeal, must have been referred by the Minister to any water resources committee established under Division 3C for the locality or localities in which the by‑laws are intended to apply; and
(b)any such committee must have been given the opportunity to make submissions on the proposal to the Minister; and
(c)if the Minister is of the opinion that the proposal may affect the functions of a body that is responsible for the planning for, or management of, a natural resource, the Minister is to submit the proposal to that body; and
(d)the Minister must have called for public comment on the proposal in accordance with subsection (3); and
(e)the Minister must have considered any submissions made under this section and given a report on them to the Water Resources Council.
(3)The Minister is taken to comply with subsection (2)(d) by —
(a)publishing in 2 issues of a daily newspaper circulating in the locality concerned a notice stating the proposal to make, amend or repeal the by‑laws; and
(b)including in the notice a statement —
(i)specifying the places at which a copy of the proposed legislative scheme for the by‑laws, or the amendment or repeal, may be inspected or obtained; and
(ii)indicating that written submissions on the proposed scheme or amendment or repeal may be made by any person within a specified period; and
(iii)indicating how submissions may be provided.
(4)The period specified under subsection (3)(b)(ii) is not to be less than 30 days after both of the notices referred to in paragraph (a) of that subsection have been published.
[Section 26N inserted: No. 49 of 2000 s. 46; amended: No. 38 of 2007 s. 74 and 101(1); No. 34 of 2020 s. 70.]
26O.Drainage etc., local by‑laws as to
(1)Local by‑laws may be made to provide for the regulation and control of drainage and dewatering so far as they affect or are likely to affect the use or management of water resources under this Act.
(2)By‑laws referred to in subsection (1) may —
(a)prohibit the construction, use, alteration or removal of drainage and dewatering works except under and in accordance with a licence; and
(b)impose penalties —
(i)not exceeding $5 000 and a daily penalty of $500 for a breach of any such prohibition; and
(ii)not exceeding $2 000 and a daily penalty of $200 for any other breach of by‑laws made under this section.
(3)In this section —
dewatering means removing underground water to facilitate construction or other activity.
[Section 26O inserted: No. 49 of 2000 s. 55.]
26P.Flood protection works, local by‑laws as to
Local by‑laws may be made —
(a)providing for the regulation and control of flood protection levees so far as they obstruct or interfere with the flow of a watercourse, including the flow of its flood waters; and
(b)imposing penalties —
(i)not exceeding $5 000 and a daily penalty of $500 for a breach of any prohibition on the construction, alteration, use or removal of a flood protection levee; and
(ii)not exceeding $2 000 and a daily penalty of $200 for any other breach of by‑laws made under this section;
and
(c)conferring on the Minister powers —
(i)to direct that works that contravene the by‑laws be removed at the expense of the owner or occupier of the land on which the works are situate; and
(ii)if a direction is not complied with to —
(I)effect the removal; and
(II)recover the cost of doing so from that owner or occupier,
and making provision incidental and supplementary to those powers.
[Section 26P inserted: No. 49 of 2000 s. 55; amended: No. 38 of 2007 s. 101(1).]
26Q.Minister’s powers exercisable on behalf of people with water entitlement
(1)The Minister may, by agreement with a person or group of persons holding any water entitlement, perform work or supply services relating to the inspection or monitoring of a water resource for the benefit of the person or group of persons.
(2)An agreement made by the Minister under subsection (1) may provide for the payment to the Minister by the person or persons of an agreed amount for the work performed or the services supplied.
(3)In this section —
water entitlement means a right to take water under this Act or under a licence granted under this Act.
[Section 26Q inserted: No. 49 of 2000 s. 50; amended: No. 38 of 2007 s. 75 and 101(1).]
(1)Without prejudice to the generality of that power, the power conferred by section 37 of the Water Agencies (Powers) Act 1984 to make regulations may be exercised to make regulations prescribing all matters that are required or permitted by this Part to be prescribed, or are necessary or convenient to be prescribed, for giving effect to the purposes of this Part and, in particular as to —
[(a)‑(d)deleted]
(e)well licences, and artesian and non‑artesian wells subject to licensing; and
(f)the furnishing of information as to wells; and
(fa)giving, sending or serving by electronic communication (as defined in the Electronic Transactions Act 2011 section 5(1)) notices or other documents to be given, sent or served under this Act and how that giving, sending or service may be proven; and
(g)the forms to be used and the fees payable in respect of applications and the grant, variation and renewal of licences under section 26D; and
(ga)charges that are to be paid by the holder of a water services licence (as defined in section 26GZJ(3)) in respect of water taken under a licence issued under this Act; and
(h)the fees or charges payable in respect of licences under section 5C; and
(i)generally, the implementation of the licensing schemes provided for in this Part.
(2)Without limiting the generality of paragraph (ga) of subsection (1) —
(a)the charges referred to in that paragraph may be in the form of a royalty for water taken under a licence; and
(b)the volume of water so taken may be measured —
(i)at the point where it is taken; or
(ii)at a point that is as close as is practicable to the point at which it is diverted from its source and where measuring facilities can practicably be located.
(3)Without limiting the generality of paragraph (h) of subsection (1) the fees or charges referred to in that paragraph may be set by reference to the volume of water allocated under a licence.
[Section 27 inserted: No. 119 of 1984 s. 3; amended: No. 25 of 1985 s. 279 and 288; No. 73 of 1995 s. 119, 138 and 140; No. 10 of 1998 s. 63; No. 49 of 2000 s. 42 and 66; No. 67 of 2003 Sch. 2 cl. 68; No. 38 of 2007 s. 76; No. 25 of 2012 s. 60; No. 34 of 2020 s. 71.]
27A.Regulations may require certain work etc. to be licensed
(1)The regulations may —
(a)prohibit a person from engaging in any work or activity to which this section applies unless the person is authorised to do so by a licence granted by the Minister under the regulations; and
(b)impose penalties —
(i)not exceeding $10 000 and a daily penalty of $1 000 for engaging in any work or activity to which this section applies otherwise than under such a licence; and
(ii)not exceeding $2 000 and a daily penalty of $200 for any other breach of regulations made under this section;
and
(c)confer on the Minister powers —
(i)to direct that works that contravene regulations so made be removed at the expense of the owner or occupier of the land on which the works are situate; and
(ii)if a direction is not complied with to —
(I)effect the removal; and
(II)recover the cost of doing so from that owner or occupier,
and making provision incidental and supplementary to those powers.
(2)This section applies to work or activity that —
(a)involves the discharge of water that results in a significant increase in the flow or level of water in a watercourse, wetland or underground water source; or
(b)is likely to cause or result in damage to an aquifer; or
(c)consists of the construction or operation of drainage or dewatering works that are likely to affect the water in a watercourse, wetland or underground water source.
[Section 27A inserted: No. 49 of 2000 s. 51; amended: No. 38 of 2007 s. 101(1).]
27B.Regulations as to licences and permits
Where this Act authorises or requires the regulations to provide for the grant of a licence or permit by the Minister, the regulations may make provision for —
(a)the matters that are to be, or may be, taken into account by the Minister in considering applications for licences or permits; and
(b)fees that are to be paid in connection with licences or permits; and
(c)different licences or permits to authorise the doing of different things under the regulations; and
(d)the conditions and restrictions that may be attached to licences or permits, whether at the time of grant or later, and the cancellation, variation and enforcement of conditions and restrictions; and
(e)the duration of licences or permits and their renewal; and
(f)the cancellation, suspension, amendment and transfer of licences or permits; and
(g)the combination of a licence or permit under the regulations and a licence under section 5C in a single instrument; and
(h)applications to the State Administrative Tribunal for review of decisions relating to applications made and licences or permits granted under the regulations.
[Section 27B inserted: No. 49 of 2000 s. 51; amended: No. 55 of 2004 s. 1053; No. 38 of 2007 s. 101(1).]
(1)The Minister is to carry out a review of the operation and effectiveness of this Part as soon as is practicable after the expiry of 5 years from the commencement of the Rights in Water and Irrigation Amendment Act 2000.
(2)In the course of that review, the Minister is to consider and have regard to —
(a)the effectiveness of operations under this Part; and
(b)the attainment of the objects of this Part and the need for the continuation of this Part; and
(c)any other matters that appear to the Minister to be relevant to the operation and effectiveness of this Part.
(3)The Minister is to prepare a report based on the review and, as soon as is practicable after the report is prepared, is to cause the report to be laid before each House of Parliament.
[Section 27C inserted: No. 49 of 2000 s. 51; amended: No. 38 of 2007 s. 77.]
[Part IIIA deleted: No. 77 of 1986 s. 32.]
Part IV — Irrigation Districts
28.Constitution of districts etc.
(1)The Governor may, on the recommendation of the Minister by Order in Council —
(a)constitute any defined part of the State an Irrigation District for the purposes of this Act;
(b)specify the boundaries of such District;
(c)assign a name to such District;
(d)state the particulars of the scheme of local works for the service of such District;
(e)state the estimated cost of such scheme.
(2)Any such Order in Council may contain such provisions not inconsistent with this Act as according to the facts and circumstances of each case the Governor may think fit.
[Section 28 amended: No. 119 of 1984 s. 9; No. 49 of 2000 s. 43.]
29.Boundaries of districts, alteration of etc.; sub‑areas, creation of etc.
The Governor may, at any time, on the recommendation of the Minister by Order in Council, do any of the following things —
(a)unite any 2 or more districts so as to form one district;
(b)subdivide any district and constitute thereout 2 or more districts;
(c)excise any portion of a district;
(d)add any portion excised from a district to any other district;
(e)extend any district by the addition thereto of any land that has not theretofore formed part of a district;
(f)apportion, settle, adjust, and determine the extent of the respective interests and obligations of the several parties in regard to any property, income, assets, rights, or liabilities in any case of the union or subdivision of districts or of excision from or addition to any district;
(g)repeal, vary, or amend any of the provisions of any previous order relating to any district;
(h)divide any district into sub‑areas;
(i)define the boundaries of any sub‑area;
(j)alter the boundaries of any sub‑area;
(k)abolish a sub‑area.
[Section 29 amended: No. 9 of 1949 s. 3; No. 119 of 1984 s. 10.]
[Part V (s. 30) deleted: No. 73 of 1995 s. 120.]
[31, 32.Deleted: No. 25 of 1985 s. 294.]
Part VI — The construction and maintenance of works
[33.Deleted: No. 25 of 2012 s. 61.]
[34.Deleted: No. 25 of 1985 s. 296.]
35.Actions against Crown etc. for injury etc. to rights etc. and from floods etc. prohibited
Notwithstanding anything in this Act or the Water Agencies (Powers) Act 1984 contained, from and after the passing of this Act no action, suit, claim, or proceeding whatsoever shall be maintainable against the Crown or against any contractor under the Crown, except as hereinafter provided, for or in respect of any of the following matters —
(a)any injury, loss, or damage caused by any violation or infringement of any right to or easements over any water constantly or intermittently flowing in or through any place whatsoever;
(b)any injury, loss, or damage to property caused by flooding or by water in any way sent on to such property.
[Section 35 amended: No. 25 of 1985 s. 297; No. 73 of 1995 s. 121 and 140; No. 38 of 2007 s. 78; No. 25 of 2012 s. 62.]
36.Compensation for injury etc. to rights etc. and from floods etc., claims for etc.
(1)Subject to the provisions of this Act and of the Water Agencies (Powers) Act 1984 compensation shall be made in respect of any injury to any rights to or easements over any water constantly or intermittently flowing or by flooding as aforesaid if notice in writing stating the nature and extent of the injury complained of has been furnished to the Minister within one year after the alleged injury has occurred of which such notice is given, and after giving such notice the person claiming compensation proceeds without unreasonable delay to obtain such compensation in the manner hereinafter provided.
[(2)deleted]
[Section 36 amended: No. 25 of 1985 s. 298; No. 73 of 1995 s. 122 and 140; No. 38 of 2007 s. 79 and 101(1); No. 25 of 2012 s. 63.]
37.Compensation claims, disputes as to
Where any claim is made by any person in respect of any such injury and such person and the Minister do not agree on the questions raised by such claim, the questions whether any, and, if so, what compensation shall be made to such person shall be determined by arbitration under the provisions of the Commercial Arbitration Act 2012.
[Section 37 amended: No. 25 of 1985 s. 299; No. 109 of 1985 s. 3; No. 73 of 1995 s. 123; No. 38 of 2007 s. 101(1); No. 23 of 2012 s. 45; No. 25 of 2012 s. 64.]
38.Compensation claims, principles to be applied to
In determining whether any and what compensation is to be made under this Part, the arbitrator shall in each case have regard to and is hereby empowered and directed to apply the following principles —
(a)no compensation shall be awarded save in respect of some item set forth in the notice in writing stating the nature and extent of the injury complained of furnished to the Minister as hereinbefore provided;
(b)no compensation shall be awarded for any diminution or deterioration of the supply of water to which any person may be entitled unless in the opinion of the arbitrator such diminution or deterioration is such as to deprive the claimant of a supply of water previously legally enjoyed by him and which supply was sufficient for domestic purposes, or for watering cattle or other stock, and the irrigation of a garden not exceeding 2 ha in extent; and unless in the opinion of the arbitrator such diminution or deterioration is the direct and will be the permanent result of the completed works;
(c)no compensation shall be made for the taking or diverting of any water which the Minister is empowered by or under this Act to take or divert, either permanently or temporarily, from any river, creek, stream, watercourse or wetland;
(d)there shall be considered, in reduction of all claims for compensation for injury, whether (by reason of the execution of any works by the Minister against which any claim is made) any and, if so, what enhancement in value of any property of the claimant wherever situate has been directly or indirectly caused, and whether any and, if so, what immediate or proximate benefit has been gained by or become available to such claimant by reason of the construction or use of such works or of any other works by the Minister under this Act or the Water Agencies (Powers) Act 1984; and a deduction shall be made accordingly from the amount which but for this provision would have been paid or payable as compensation;
(e)the measure of damages shall in all cases be the direct pecuniary injury to the claimant by the loss of something of substantial benefit accrued or accruing, and shall not include remote, indirect, or speculative damages;
(f)in any case where the injury complained of may appear to be of a permanent or continuing character or likely to be repeated, a sum may be awarded which the Court may declare to be a compensation for all injury, loss, or damage sustained in respect of the matter complained of to the date of the making of the award, and also for all future injury, loss, or damage in respect of the same matter; and after such award no further compensation shall be made in respect of any such future injury, loss, or damage.
[Section 38 amended: No. 94 of 1972 (as amended: No. 19 of 1973 s. 4(1)); No. 25 of 1985 s. 300; No. 73 of 1995 s. 124 and 140; No. 49 of 2000 s. 13; No. 38 of 2007 s. 101(1); No. 25 of 2012 s. 65.]
[Part VII: s. 39D deleted: No. 24 of 1987 s. 142;
s. 40, 40A, 40B deleted: No. 24 of 1987 s. 148;
s. 42AA, 42AB, 42B deleted: No. 24 of 1987 s. 152;
s. 45 deleted: No. 73 of 1995 s. 128;
balance deleted: No. 25 of 2012 s. 66.]
[Part VIII (s. 46‑53) deleted: No. 25 of 1985 s. 312.]
[Part IX (s. 54‑58) deleted: No. 25 of 1985 s. 313.]
[Part X: s. 60 deleted: No. 25 of 1985 s. 315;
s. 61 deleted: No. 18 of 1951 s. 8
balance deleted: No. 25 of 2012 s. 66;.]
[62.Deleted: No. 73 of 1995 s. 129.]
[63.Deleted: No. 25 of 2012 s. 67.]
Nothing in this Act shall take away or prejudicially affect any rights in water lawfully acquired or enjoyed before or after the commencement of this Act for the purposes of supplying water to or in connection with any railway constructed under the authority of a special Act; and, subject only to riparian rights under this Act, water may be lawfully taken for such purposes.
[65.Deleted: No. 25 of 1985 s. 319.]
66.Service of notices and demands, manner of
(1)Any notice or demand required by this Act to be given to or made upon any person may be served —
(a)by delivering the same to such person;
(b)by leaving the same at his usual or last known place of abode;
(c)by forwarding the same by post in a prepaid letter addressed to such person at his usual or last known place of abode;
(d)by sending the same by electronic communication (as defined in the Electronic Transactions Act 2011 section 5(1)) in the manner provided for in the regulations.
(2)A notice or demand forwarded by post shall be deemed to have been given or made, and to have been received at the time when, by ordinary course of post, the letter would be delivered.
(3)When a notice of demand under this Act is required to be given or made to any owner or occupier whose name or address is unknown to the Minister it shall not be necessary to name such owner or occupier, and such notice or demand may be served by placing it on some conspicuous part of the land of such owner or occupier, and by publishing it 3 times, at intervals of not less than a week between any 2 publications in a newspaper usually circulating in the district.
(4)A notice or demand may be served on a corporation, or incorporated company, or the members of a partnership by —
(a)being delivered to, left at, or posted in a prepaid letter to the registered office or principal place of business in the State of the corporation, company, or partnership; or
(b)being sent by electronic communication (as defined in the Electronic Transactions Act 2011 section 5(1)) in the manner provided for in the regulations.
[Section 66 amended: No. 119 of 1984 s. 17; No. 25 of 1985 s. 316 and 320; No. 73 of 1995 s. 130; No. 38 of 2007 s. 101(1); No. 25 of 2012 s. 68; No. 34 of 2020 s. 72.]
67.Notices bind persons claiming under owner or occupier
All notices and demands duly given to or made upon any owner or occupier shall be binding upon all persons claiming by, from, or under such owner or occupier.
[68.Deleted: No. 25 of 1985 s. 321.]
69.Civil remedy not affected by criminal proceedings
The institution of any proceedings, or the conviction of any person for any offence against this Act, shall not affect any remedy which the Crown or any person aggrieved may be entitled to in any civil proceedings.
[Section 69 amended: No. 25 of 1985 s. 316; No. 73 of 1995 s. 131; No. 38 of 2007 s. 81; No. 25 of 2012 s. 69.]
70.Obstructing official, offence
Every person who obstructs the Minister, any officer of the Department or any person authorised by the Minister in the performance of any act or thing which the Minister, that officer or that person is authorised or required to do in the execution of this Act or any by‑law made for the purposes of this Act, shall be guilty of an offence and shall be liable to a penalty not exceeding $5 000.
[Section 70 amended: No. 113 of 1965 s. 8; No. 98 of 1978 s. 37; No. 119 of 1984 s. 19; No. 25 of 1985 s. 322; No. 73 of 1995 s. 132; No. 49 of 2000 s. 16 and 67; No. 38 of 2007 s. 82; No. 25 of 2012 s. 70.]
71.Refusing to give up possession of works, offence
Any person having charge of any works vested in or under the control of the Crown who refuses, on lawful demand, to give up peaceable and quiet possession of the same to any person entitled to possession under the provisions of this Act, shall be guilty of an offence.
Penalty: $10 000.
[Section 71 amended: No. 113 of 1965 s. 8; No. 119 of 1984 s. 19; No. 25 of 1985 s. 316; No. 73 of 1995 s. 133; No. 49 of 2000 s. 68; No. 50 of 2003 s. 91(2); No. 38 of 2007 s. 83; No. 25 of 2012 s. 71.]
Any person committing an offence against this Act shall, if no other penalty is imposed, be liable to a penalty not exceeding $10 000.
[Section 72 amended: No. 113 of 1965 s. 8; No. 119 of 1984 s. 19; No. 49 of 2000 s. 69.]
Any officer of the Department authorised by the Minister for the purposes of this section may, without warrant, arrest any person found committing an offence against this Act or any by‑law made for the purposes of this Act, if the offender refuses to give his name and address.
[Section 73 amended: No. 25 of 1985 s. 316 and 323; No. 73 of 1995 s. 134; No. 25 of 2005 s. 55; No. 38 of 2007 s. 84.]
74.Prosecutions to be dealt with summarily
Proceedings for an offence against this Act shall be dealt with summarily in a court of summary jurisdiction.
[Section 74 inserted: No. 78 of 1995 s. 112.]
[75.Deleted: No. 25 of 2012 s. 72.]
[76‑78.Deleted: No. 25 of 1985 s. 326.]
79.Ownership or occupancy, proof of
In any legal proceedings under the Water Agencies (Powers) Act 1984 or this Act, in addition to any other method of proof available —
(a)evidence that the person proceeded against has been charged as owner or occupier of any land; or
(b)evidence by the certificate, in writing, of —
(i)the Registrar of Deeds and Transfers, that any person appears from any memorial of registration of any deed, conveyance or other instrument to be the owner of any land; or
(ii)the Registrar of Titles, or any assistant registrar, that any person’s name appears in the Register under the Transfer of Land Act 1893, or the Transfer of Land Act Amendment Act 1909, as proprietor of any land; or
(iii)the chief executive officer of the department principally assisting in the administration of the Land Administration Act 1997 or of the department principally assisting in the administration of the Mining Act 1978, that any person is registered in the department as the occupier or lessee of any land,
shall, until the contrary is proved, be evidence that such person is the owner or occupier, as the case may be, of such land.
[Section 79 amended: No. 25 of 1985 s. 327; No. 24 of 1987 s. 155; No. 73 of 1995 s. 140; No. 81 of 1996 s. 153(1); No. 57 of 1997 s. 105(2); No. 60 of 2006 s. 151; No. 19 of 2010 s. 51; No. 47 of 2011 s. 16.]
79A.Works, proof of facts as to
A certificate under the hand of the CEO that any specified dam, drain, channel, pipe or other work is included as portion thereof, in any works within the meaning of this Act (whether such works were constructed prior or subsequent to the commencement of this section) shall, for all purposes and in all courts be sufficient evidence of the fact as stated in such certificate.
[Section 79A inserted: No. 3 of 1945 s. 4; amended: No. 25 of 1985 s. 328; No. 73 of 1995 s. 136; No. 38 of 2007 s. 86; No. 25 of 2012 s. 73.]
[80.Deleted: No. 73 of 1995 s. 137.]
Schedule 1 — Licensing and related provisions
[s. 5C(1)(d) and (3)]
[Heading inserted: No. 49 of 2000 s. 52.]
[Heading inserted: No. 49 of 2000 s. 52.]
In this Schedule, unless the contrary intention appears —
licence means a licence under section 5C;
public interest means public interest having regard to any economic, social or recreational benefits to the public, or to a section of the public.
[Clause 1 inserted: No. 49 of 2000 s. 52.]
2.Licences for different purposes
(1)Licences of different descriptions may be granted under section 5C to authorise the doing of different things that come within that section.
(2)Licences to authorise the doing of different things that come within section 5C may be contained in a single instrument.
(3)Where a person is granted —
(a)a licence under section 5C; and
(b)a licence under section 26D,
in respect of a well the licences may be combined in a single instrument.
[Clause 2 inserted: No. 49 of 2000 s. 52.]
3.Persons who are eligible to hold licences
A person is eligible to hold a licence if —
(a)the person is an owner or occupier of the land to which the licence relates; or
(b)the person does not come within paragraph (a) but satisfies the Minister —
(i)that the owner and any occupier of the land to which the licence relates have agreed in writing to the person —
(I)being on the land; and
(II)doing there the things that may be done under the licence;
and
(ii)that the agreement is likely to have effect for a sufficient period to enable the licence concerned to operate;
or
(c)the person is a public utility that has powers under a written law in relation to water on or under any land, but those powers are exercisable in accordance with a licence; or
(d)the person —
(i)is authorised by or under a written law to engage in an activity in relation to land or water; and
(ii)satisfies the Minister that the doing of the things that may be done under the licence is recognised by that written law as being related or incidental to that activity;
or
(e)the person is within a class or description of persons that is prescribed by local by‑laws for the purposes of this clause.
[Clause 3 inserted: No. 49 of 2000 s. 52; amended: No. 38 of 2007 s. 87 and 101(3).]
Division 2 — Applications and licensing decisions
[Heading inserted: No. 49 of 2000 s. 52.]
(1)An application for a licence —
(a)may only be made by a person who is eligible to hold the licence, or who satisfies the Minister that he or she is interested in being such a person and is likely to do so; and
(b)must be made in the form specified for the purpose by the Minister; and
(c)must include, or be accompanied by, any plans or other information that are stated in the form to be required; and
(d)must be accompanied by the prescribed fee.
(2)An applicant for a licence must provide the Minister with any further information that the Minister may require.
(3)Paragraph (a) of subclause (1) does not prevent an agent from signing an application made by a person referred to in that paragraph.
[Clause 4 inserted: No. 49 of 2000 s. 52; amended: No. 38 of 2007 s. 101(3).]
5.Advertising application for licence, regulations for
The regulations may provide for and in relation to —
(a)the public notification of —
(i)applications, or specified kinds of applications, for the grant or renewal of a licence; or
(ii)applications that the Minister determines are to be publicly notified;
and
(b)a right to make submissions to the Minister on applications mentioned in paragraph (a); and
(c)the persons who are to have that right.
[Clause 5 inserted: No. 49 of 2000 s. 52; amended: No. 38 of 2007 s. 101(3).]
6.Applicant may make submissions to Minister in some cases
(1)This clause applies where the Minister proposes —
(a)to refuse an application for a licence; or
(b)to grant, or undertake to grant, a licence subject to the inclusion of a term, condition or restriction that the Minister considers is inconsistent with the terms of the application.
(2)The Minister is to notify the applicant —
(a)of the Minister’s proposal; and
(b)that the applicant has a right to make written submissions to the Minister, or be heard by a person designated by the Minister for that purpose, before the Minister makes a decision on the application.
(3)Written submissions may be made by the applicant, as mentioned in subclause (2)(b), within 30 days after the applicant is given notice under that subclause.
(4)The Minister is to have regard to any submissions made by the applicant under subclause (3) before the Minister makes a final decision.
[Clause 6 inserted: No. 49 of 2000 s. 52; amended: No. 38 of 2007 s. 88, 101(2) and (3).]
7.Minister’s discretion when deciding applications, exercise of
(1)The grant or refusal of an application for a licence and the terms, conditions and restrictions to be included in the licence are, subject to clause 8, at the discretion of the Minister.
(2)In exercising that discretion, the Minister is to have regard to all matters that the Minister considers relevant, including whether the proposed taking and use of water —
(a)are in the public interest; or
(b)are ecologically sustainable; or
(c)are environmentally acceptable; or
(d)may prejudice other current and future needs for water; or
(e)would, in the opinion of the Minister, have a detrimental effect on another person; or
(f)could be provided for by another source; or
(g)are in keeping with —
(i)local practices; or
(ii)a relevant local by‑law; or
(iii)a plan approved under Part III Division 3D Subdivision 2; or
(iv)relevant previous decisions of the Minister;
or
(h)are consistent with —
(i)land use planning instruments; or
(ii)the requirements and policies of other government agencies; or
(iii)any intergovernmental agreement or arrangement.
(3)The Minister may refuse to grant a licence to a person on the ground that the person has been convicted of an offence against this Act.
(4)The Minister may refuse to grant a licence to a person if the Minister is not satisfied that the person has the resources, including the financial resources, to carry out the activities to which the licence relates.
(5)Without limiting subclause (1), terms, conditions and restrictions prescribed or imposed for the purposes of that subclause may relate to any matter provided for by the Appendix to this Schedule.
[Clause 7 inserted: No. 49 of 2000 s. 52; amended: No. 38 of 2007 s. 101(2) and (3).]
8.When Minister must refuse licence
The Minister must refuse to grant a licence to a person if the Minister considers that the person would not be willing or able to comply with the terms, conditions and restrictions that would be included in the licence.
[Clause 8 inserted: No. 49 of 2000 s. 52; amended: No. 38 of 2007 s. 101(2) and (3).]
9.If applicant not eligible to hold licence, procedure
(1)The Minister may only grant a licence to a person who is eligible in terms of clause 3 to hold the licence.
(2)If the Minister would grant a licence to an applicant but for the fact that the applicant is not a person who is eligible in terms of clause 3 to hold the licence, the Minister may undertake to grant the licence to the person if the person becomes eligible to hold the licence within the period of time specified in the undertaking.
[Clause 9 inserted: No. 49 of 2000 s. 52; amended: No. 38 of 2007 s. 101(3).]
10.Decision on application, Minister to notify applicant etc.
(1)The Minister is to notify the outcome of the application, including details of any undertaking given under clause 9 and the terms, conditions and restrictions to be included in the licence —
(a)to the applicant for a licence; and
(b)if the application was required to be publicly notified under regulations referred to in clause 5, to any person who made a submission under those regulations.
(2)If the Minister —
(a)refuses the application; or
(b)grants, or undertakes to grant, the application subject to the inclusion of a term, condition or restriction that the Minister considers is inconsistent with the terms of the application,
the Minister is to notify the applicant of the reasons for the decision.
[Clause 10 inserted: No. 49 of 2000 s. 52; amended: No. 38 of 2007 s. 101(3).]
11.Licences may relate to more than one place, well etc.
A licence may relate to more than one place, facility or well at or from which water may be taken.
[Clause 11 inserted: No. 49 of 2000 s. 52.]
(1)A licence may be granted or renewed for —
(a)a fixed period; or
(b)an indefinite duration,
as stated in the licence or the renewal.
(2)A licence for an indefinite duration continues in force until it is —
(a)terminated under clause 13(1); or
(b)suspended or cancelled under clause 25; or
(c)surrendered under clause 27.
(3)If a licence is granted to an owner or occupier of land —
(a)authorising the continued taking of water —
(i)from a water resource which is below the land, or runs through, is contiguous to or partly situated within the land; and
(ii)which, before, and at the time of, the application of section 5C to that water resource, was taken periodically or continually from the water resource;
and
(b)the application for the licence is made within 12 months after the day on which section 5C became applicable to the water resource,
the licence is to be granted for a period of 10 years from the day on which section 5C became applicable to the water resource.
(4)In subclause (3) —
water resource means a watercourse, wetland or underground water source to which section 5C applies.
(5)Sufficient details to identify a licence granted for a period exceeding —
(a)a period specified in a relevant plan approved under Part III Division 3D Subdivision 2 in respect of that type of licence; or
(b)if a period is not specified in such a plan in respect of that type of licence, 10 years or such period as is prescribed in respect of that type of licence,
are to be included in the annual report submitted by the accountable authority of the Department under Part 5 of the Financial Management Act 2006.
[Clause 12 inserted: No. 49 of 2000 s. 52; amended: No. 77 of 2006 Sch. 1 cl. 150; No. 38 of 2007 s. 89.]
13.Licence terminates if licensee becomes ineligible to hold licence
(1)Subject to subclause (2) and clause 14, a licence is terminated if the licensee ceases to be eligible in terms of clause 3 to hold the licence.
(2)The regulations may make provision applicable to cases other than those referred to in clause 14 —
(a)for the time at which termination under subclause (1) has effect; and
(b)in relation to the transfer of the licence, or a water entitlement under the licence, under Division 7 where the licensee ceases to be eligible in terms of clause 3 to hold the licence.
[Clause 13 inserted: No. 49 of 2000 s. 52.]
14.Licensee ceasing to be owner etc. of land, effect of cl. 13(1) in case of
(1)Where —
(a)the licensee is the owner or occupier of all of the land to which the licence relates; and
(b)another person becomes the owner or occupier of that land in place of the licensee,
clause 13(1) applies subject to the following provisions —
(c)the licensee and the new owner or occupier are allowed a period of 30 days from the day of change of ownership or occupancy to make an application under Division 7 for approval of the transfer of the licence to the new owner or occupier; and
(d)the new owner or occupier is taken to be the licensee —
(i)during that period; and
(ii)if an application referred to in paragraph (c) is made within that period, until the Minister has determined the application;
and
(e)the Minister must approve the application for the transfer of the licence to the new owner or occupier if all of the terms, conditions and restrictions included in the licence have been complied with.
(2)Clause 14(1)(d) does not apply if the new owner or occupier has informed the Minister in writing that an application will not be made under clause 14(1)(c) to transfer the licence to him or her.
[Clause 14 inserted: No. 49 of 2000 s. 52; amended: No. 38 of 2007 s. 101(3).]
Division 3 — Terms, conditions and restrictions
[Heading inserted: No. 49 of 2000 s. 52.]
(1)The regulations may prescribe terms, conditions and restrictions that are to be taken to be included in —
(a)all licences; or
(b)licences of a particular kind; or
(c)licences relating to a particular area; or
(d)licences of a particular kind relating to a particular area.
(2)The Minister may, at the Minister’s discretion, include in a licence any term, condition or restriction additional to those referred to in subclause (1), but clause 7(2) applies to the exercise of that discretion.
(3)Without limiting subclause (1) or (2), terms, conditions and restrictions prescribed or imposed for the purposes of those subclauses may relate to any matter provided for by the Appendix to this Schedule.
[Clause 15 inserted: No. 49 of 2000 s. 52; amended: No. 38 of 2007 s. 90 and 101(3).]
16.Term etc. that continues after licensed act completed
A licence may require that a term, condition or restriction included in the licence must be complied with, or must continue to be complied with, even though the acts or series of acts authorised to be done under the licence have been completed.
[Clause 16 inserted: No. 49 of 2000 s. 52.]
17.Licence reducing another’s entitlement may include condition requiring payment of compensation
(1)This clause applies if —
(a)the grant of a licence to a person; or
(b)the amendment of a licence held by a person,
will, in the opinion of the Minister, result in the quantity of water that any other licensee or person (an affected person) will be able to take being reduced to less than the water entitlement of that person.
(2)Where this clause applies, the Minister may, if the Minister considers that equity so requires, include in the licence referred to in paragraph (a) or (b) of subclause (1) a condition that the person referred to in that paragraph (the benefiting licensee) pay an amount of money, or periodical amounts of money, to an affected person for or towards —
(a)direct pecuniary loss; or
(b)loss of profits,
or both (if any), suffered by that person as a result of the reduction.
(3)A condition may be in terms that an amount is to be —
(a)as agreed between an affected person and the benefiting licensee; or
(b)failing agreement within a specified period, as determined —
(i)by the Minister; or
(ii)by arbitration under the Commercial Arbitration Act 2012.
(4)In this clause —
water entitlement means the quantity of water that a person is entitled to take under this Act or under a licence.
[Clause 17 inserted: No. 49 of 2000 s. 52; amended: No. 38 of 2007 s. 101(2) and (3); No. 23 of 2012 s. 45.]
18.Breach of term etc., Minister’s powers as to etc.
(1)If a licensee fails to comply with any term, condition or restriction included in a licence, the Minister may direct the licensee to comply with that term, condition or restriction.
(2)A direction under subclause (1) must —
(a)be given by notice in writing served on the licensee; and
(b)specify the time within which the direction is to be complied with.
(3)If a licensee to whom a direction has been given does not comply with the direction within the specified time, or any additional time allowed by the Minister —
(a)the licensee commits an offence and is liable to a fine of $2 500 and a daily penalty of $250; and
(b)the Minister may —
(i)do all or part of whatever the direction requires to be done; and
(ii)recover the costs and expenses incurred by the Minister as a debt due by the licensee.
(4)In this clause —
licensee, in relation to a licence, includes a person whose name is endorsed on the licence as a person with whom the holder of the licence has an agreement referred to in clause 30 relating to the taking of water under the licence by that person.
(5)The Minister may give a direction to a person included as a licensee due to subclause (4) only if the Minister —
(a)is of the opinion that it is the responsibility, and within the power, of that person to comply with the term, condition or restriction included in the licence; and
(b)gave that person sufficient written notice of that term, condition or restriction for the person to comply with it.
[Clause 18 inserted: No. 49 of 2000 s. 52; amended: No. 38 of 2007 s. 101(2) and (3).]
Division 4 — Notation on licence of interest of third party
[Heading inserted: No. 49 of 2000 s. 52.]
Clause 20 applies where —
(a)the Minister is satisfied that —
(i)a licensee is obliged by an agreement with any person (the third party) in relation to the whole or a part of the water taken under the licence or in relation to the taking of water under the licence by that person; and
(ii)it is appropriate for the Minister to recognise that obligation;
and
(b)the licence has been endorsed by the Minister with a notation showing that the licence is subject to clause 20.
[Clause 19 inserted: No. 49 of 2000 s. 52; amended: No. 38 of 2007 s. 101(3).]
20.Amending etc. licence requires third party’s consent
If this clause applies, the following things cannot be done without the consent in writing of the third party —
(a)an application which, if granted, will affect matters to which the agreement relates cannot be made under —
(i)clause 23 to amend the licence; or
(ii)clause 32 for approval of the transfer of the licence;
and
(b)the licence cannot be surrendered under clause 27.
[Clause 20 inserted: No. 49 of 2000 s. 52.]
21.Notation under cl. 19(b), content and effect of
A notation referred to in clause 19(b) —
(a)must identify the agreement and the third party concerned; and
(b)does not give the agreement to which it relates any force it would not otherwise have had.
[Clause 21 inserted: No. 49 of 2000 s. 52.]
Division 5 — Renewal of licences
[Heading inserted: No. 49 of 2000 s. 52.]
(1)An application for the renewal of a licence that is in force for a fixed period —
(a)must be made in the form specified for the purpose by the Minister; and
(b)must be accompanied by the prescribed fee.
(2)On an application for renewal of a licence, the licence is to be renewed unless —
(a)the renewal would be inconsistent with —
(i)a relevant local by‑law; or
(ii)a plan approved under Part III Division 3D Subdivision 2;
or
(b)the Minister is of the opinion that, if the application for renewal was an application for the grant of a licence, the Minister would exercise the discretion under clause 7(2) to refuse to grant the licence; or
(c)it is a term of the licence that it is not renewable; or
(d)a term, condition or restriction included in the licence has not been complied with; or
(e)in the opinion of the Minister there are sufficient grounds for the exercise of the power to cancel the licence under clause 25.
(3)Clause 6(2), (3) and (4) apply where the Minister proposes —
(a)to refuse an application for renewal of a licence; or
(b)to renew a licence subject to the inclusion of a term, restriction or condition that the Minister considers is inconsistent with the terms of the application for renewal,
in the same way as they apply to an application for a licence.
(4)Clauses 8 and 10(2) apply to an application for renewal in the same way as they apply to an application for a licence.
(5)A licence which would otherwise expire after application has been made for its renewal but before the Minister has made a decision as to that renewal remains in force until that decision is made.
[Clause 22 inserted: No. 49 of 2000 s. 52; amended: No. 38 of 2007 s. 91, 101(2) and (3).]
Division 6 — Amendment, suspension, cancellation and surrender of licences
[Heading inserted: No. 49 of 2000 s. 52.]
23.Amendment, application by licensee for
(1)A licensee may apply to the Minister at any time for amendment of the licence.
(2)Clauses 4, 6, 7, 10 and 12 and Division 3 apply, with all necessary modifications, to an application under subclause (1) as if it were an application for the grant of a licence.
(3)Despite subclause (2), a fee may be prescribed for an application under subclause (1) that is different from that prescribed for the purposes of clause 4(1)(d).
[Clause 23 inserted: No. 49 of 2000 s. 52; amended: No. 38 of 2007 s. 101(3).]
24.Amending licence, Minister’s powers as to
(1)The Minister may, subject to this clause and clause 26, by notice in writing given to the licensee —
(a)vary the duration of a licence; or
(b)vary, add to or remove any term, condition or restriction included in the licence; or
(c)include any new term, condition or restriction in the licence.
(2)The Minister may only exercise a power described in subclause (1) in relation to a licence if —
(a)the licensee consents to the Minister doing so; or
(b)in the opinion of the Minister, the exercise of the power is necessary or desirable —
(i)due to the detrimental effect of actions authorised by the licence on another person; or
(ii)to protect the water resource to which the licence relates from unacceptable damage; or
(iii)to protect the associated environment from unacceptable damage;
or
(c)in the opinion of the Minister, the exercise of the power is necessary to prevent serious damage to life or property; or
(d)in the opinion of the Minister, the quantity of water that may be taken under the licence has consistently not been taken; or
(e)in the opinion of the Minister, the exercise of the power is necessary or desirable —
(i)in the public interest; or
(ii)because the water resource to which the licence relates is insufficient to meet demand or expected demand; or
(iii)otherwise to more effectively regulate the use of that water resource;
or
(f)in the opinion of the Minister, the exercise of the power is necessary to prevent a serious inconsistency arising as a result of —
(i)the approval of a plan, or the alteration, revocation or substitution of a plan, under Part III Division 3D Subdivision 2; or
(ii)the making, amendment or repeal of relevant local by‑laws;
or
(g)the licensee, or a person whose name is endorsed on the licence as a person with whom the licensee has an agreement referred to in clause 30, is convicted of an offence against this Act; or
(h)in the opinion of the Minister, the exercise of the power is necessary to comply with another written law of the State or a law of the Commonwealth; or
(i)the licensee has applied under clause 32 for approval of the transfer of the licence or a water entitlement under the licence or of an agreement referred to in clause 30, and the exercise of the power is necessary or desirable to give effect to the transfer or agreement; or
(j)the licence confers authority for the Minister to do so.
[Clause 24 inserted: No. 49 of 2000 s. 52; amended: No. 38 of 2007 s. 101(3).]
25.Suspending or cancelling licence, Minister’s powers as to
(1)The Minister may, subject to this clause and clause 26, by notice in writing given to the licensee —
(a)suspend a licence —
(i)for a fixed period specified in the notice; or
(ii)until such time as the licensee is notified by the Minister that the suspension no longer applies;
or
(b)cancel a licence.
(2)The Minister may only exercise a power described in subclause (1) in relation to a licence if —
(a)in the opinion of the Minister, the exercise of the power is necessary or desirable —
(i)due to the detrimental effect of actions authorised by the licence on another person; or
(ii)to protect the water resource to which the licence relates from unacceptable damage; or
(iii)to protect the associated environment from unacceptable damage;
or
(b)in the opinion of the Minister, the exercise of the power is necessary due to a serious inconsistency, which cannot be resolved by an amendment under clause 24, arising as a result of —
(i)the approval of a plan, or the alteration, revocation or substitution of a plan, under Part III Division 3D Subdivision 2; or
(ii)the making, amendment or repeal of relevant local by‑laws;
or
(c)the licensee or a person whose name is endorsed on the licence as a person with whom the licensee has an agreement referred to in clause 30 —
(i)is convicted of an offence against this Act; or
(ii)has contravened or failed to comply with any term, condition or restriction included in the licence;
or
(d)in the opinion of the Minister, the exercise of the power is necessary to comply with another written law of the State or a law of the Commonwealth; or
(e)in the opinion of the Minister, the exercise of the power is necessary or desirable in the public interest; or
(f)the licence confers authority for the Minister to do so; or
(g)prescribed circumstances apply.
(3)The suspension or cancellation of a licence has effect to suspend or cancel the rights and privileges conferred by the licence but does not affect the duties imposed by the licence.
[Clause 25 inserted: No. 49 of 2000 s. 52; amended: No. 38 of 2007 s. 101(3).]
26.Licensee may make submissions in some cases before licence amended, suspended or cancelled
(1)Except as provided by subclauses (2) and (3), this clause applies where the Minister proposes to exercise a power conferred by clause 24 or 25.
(2)This clause does not apply to the proposed exercise of a power conferred by clause 24 or 25 —
(a)if the Minister is of the opinion that the exercise of the power is necessary to prevent loss of life or property or serious injury to persons or property; or
(b)if the power is to be exercised in circumstances prescribed by the regulations.
(3)This clause does not apply to the proposed exercise of a power conferred by —
(a)clause 24 in the circumstances mentioned in subclause (2)(a) of that clause; or
(b)clause 25 in the circumstances mentioned in subclause (2)(c)(i) of that clause.
(4)Where this clause applies, the Minister is to notify the licensee —
(a)of the Minister’s proposal; and
(b)that the licensee has a right to make written submissions to the Minister, or be heard by a person designated by the Minister for that purpose, before the Minister makes a decision to exercise the power.
(5)Written submissions may be made by the licensee, as mentioned in subclause (4)(b), within such period after the licensee is given notice under that subclause as is specified in the notice.
(6)The Minister is to have regard to any submissions made by the licensee under subclause (5) before the Minister makes a final decision.
[Clause 26 inserted: No. 49 of 2000 s. 52; amended: No. 38 of 2007 s. 92 and 101(3).]
A licence may be surrendered at any time to the Minister if the licensee has complied with any terms, conditions or restrictions included in the licence relating to its surrender.
[Clause 27 inserted: No. 49 of 2000 s. 52; amended: No. 38 of 2007 s. 101(3).]
Division 7 — Transfers of licences and water entitlements and agreements with licensees to take water
[Heading inserted: No. 49 of 2000 s. 52.]
28.Term used: water entitlement
In this Division —
water entitlement, in relation to a licence, means the quantity of water that the licensee is entitled to take under the licence, and includes part of a water entitlement.
[Clause 28 inserted: No. 49 of 2000 s. 52.]
29.Transfer of licence or entitlement under licence
(1)Subject to this Division, the holder of a licence may transfer —
(a)the licence; or
(b)the licensee’s water entitlement under the licence
to a person who holds, or is eligible in terms of clause 3 to hold, a licence of the same kind.
(2)Subclause (1) does not apply to a licence of a particular kind to the extent that a relevant local by‑law prohibits the transfer of licences, or water entitlements under licences, of that kind.
(3)A transfer of a water entitlement under a licence between licensees may be made by the Minister amending the transferring and receiving licences.
[Clause 29 inserted: No. 49 of 2000 s. 52; amended: No. 38 of 2007 s. 101(3).]
29A.Death of licence holder, consequences of
(1)If —
(a)a holder of a licence (the deceased holder) dies; and
(b)probate of the will, or letters of administration of the estate, of the deceased holder is granted before the end of the 12 months immediately following the death of the deceased holder or that period as extended under subclause (5) in relation to the deceased holder,
the executor or administrator becomes, on the grant of probate or letters of administration, the holder of the deceased holder’s interest in the licence to deal with as executor or administrator.
(2)If the death of a holder of a licence (the deceased holder) means that no person holds the licence, the licence does not cease but continues, under this subclause, until the earlier of —
(a)the end of the 12 months immediately following the death of the deceased holder or that period as extended under subclause (5) in relation to the deceased holder; or
(b)the time at which probate of the will, or letters of administration of the estate, of the deceased holder, or any other person who was a holder of the licence at the time of his or her death, is granted.
(3)Any thing done or omitted to be done under the licence, while it continues under subclause (2), on behalf of the deceased holder, or any other person who was a holder of the licence at the time of his or her death, is as valid and as lawful as it would have been if done, or omitted to be done, by the deceased holder or that other person.
(4)This clause does not apply so as to extend the term of a licence that is for a fixed term.
(5)The Minister may, on application, extend the period referred to in subclause (1)(b) or (2)(a) in relation to a particular deceased holder if the circumstances of the case warrant it.
[Clause 29A inserted: No. 38 of 2007 s. 93.]
30.Agreement by licensee allowing third party to take water, of no effect in some cases
(1)Subject to this Division, the holder of a licence may enter into an agreement with another person (the third party) relating to the taking of water under the licence by the third party for a limited period of time.
(2)An agreement referred to in subclause (1) is of no effect to the extent that a relevant local by‑law prohibits such agreements in relation to licences, licences of a particular kind or in particular circumstances.
(3)An agreement referred to in subclause (1) is of no effect unless —
(a)it is entered into with a person who holds, or is eligible in terms of clause 3 to hold, a licence of the same kind; and
(b)it has been approved by the Minister; and
(c)the licence is endorsed in accordance with clause 36(d).
(4)Subject to subclauses (2) and (3)(a), the grant or undertaking to grant approval under subclause (3)(b) is at the discretion of the Minister.
(5)In exercising that discretion, the Minister is to have regard to all matters the Minister considers relevant, including those set out in clause 7(2).
(6)If the Minister would approve an agreement referred to in subclause (1) but for the fact that the third party is not a person who is eligible in terms of clause 3 to hold such a licence, the Minister may undertake to approve the agreement if the third party becomes a person who is eligible to hold the licence within the period of time specified in the undertaking.
(7)Without limiting subclause (4), the Minister may refuse to approve an agreement, or to undertake to approve an agreement, if the third party is a person who has committed an offence against this Act.
[Clause 30 inserted: No. 49 of 2000 s. 52; amended: No. 38 of 2007 s. 94, 101(2) and (3).]
31.Minister’s approval of transfer required
(1)A transfer of a licence or a water entitlement cannot be made without the approval of the Minister.
(2)The Minister must refuse to approve the transfer of a licence to a person who is not eligible under clause 3 to hold the licence.
(3)If the Minister would approve the transfer of a licence to a person but for the fact that the person is not a person who is eligible in terms of clause 3 to hold the licence, the Minister may undertake to approve the transfer of the licence to the person if the person becomes eligible to hold the licence within the period of time specified in the undertaking.
(4)Subject to subclause (2), the grant, or undertaking to grant, approval to the transfer of a licence or water entitlement or the refusal to do so is at the discretion of the Minister.
(5)In exercising that discretion, the Minister is to have regard to all matters that the Minister considers relevant, including those set out in clause 7(2).
(6)Without limiting subclause (4), the Minister may refuse to approve the transfer of a water licence or a water entitlement, or to undertake to approve any such transfer, to a person who has committed an offence against this Act.
[Clause 31 inserted: No. 49 of 2000 s. 52; amended: No. 38 of 2007 s. 101(2) and (3).]
32.Application for Minister’s approval
(1)An application for approval of the transfer of a licence or a water entitlement or of an agreement referred to in clause 30 —
(a)must be made in the form specified for the purpose by the Minister; and
(b)must include information that is stated in the form to be required; and
(c)must be accompanied by the prescribed fee.
(2)An applicant must provide the Minister with any further information that the Minister may require.
[Clause 32 inserted: No. 49 of 2000 s. 52; amended: No. 38 of 2007 s. 101(3).]
33.Minister may require assessment before deciding cl. 32 application
Before determining an application made under clause 32, the Minister may direct that an assessment of the effect of granting the application be made, at the expense of the applicant, by an expert appointed or approved by the Minister.
[Clause 33 inserted: No. 49 of 2000 s. 52; amended: No. 38 of 2007 s. 101(3).]
34.Security interest holder’s consent to transfer required
Where a person is noted on the register referred to in section 26GZI as having a security interest (as defined in Part III Division 3E) in a licence, the Minister must not approve the transfer of the licence or the water entitlement under the licence, or of an agreement referred to in clause 30, without the written consent of that person.
[Clause 34 inserted: No. 49 of 2000 s. 52; amended: No. 38 of 2007 s. 101(3).]
35.Some cl. 32 applications to be notified to others who can make submissions
(1)This clause applies to applications under clause 32 of a kind prescribed by local by‑laws for the purposes of this clause.
(2)Notice of the application must be given by the Minister to any person required by local by‑laws to be notified.
(3)A person to whom notice has been given may, in accordance with the regulations, make submissions in writing to the Minister in relation to the grant or refusal of the application.
(4)The Minister must give the applicant a copy of any submissions made and allow the applicant an opportunity to respond in writing to the submissions.
(5)The response referred to in subclause (4) must be made within the number of days prescribed by the regulations after the relevant material is given to the applicant.
(6)The Minister may allow a person, who, in submissions made, requested that the person be heard, a reasonable opportunity to appear personally or by representative before and make submissions to —
(a)a person designated by the Minister for that purpose; or
(b)a water resources management committee established for the area under Part III Division 3C.
(7)If a person so appears, the Minister must also allow the applicant a reasonable opportunity, on request, to appear personally or by representative in order to respond to any relevant matter.
(8)The Minister must give to each person who made submissions notice of —
(a)the Minister’s decision on the application; and
(b)the date of the decision.
(9)A notice under subclause (8) must be given not later than 7 days after the date of the decision.
[Clause 35 inserted: No. 49 of 2000 s. 52; amended: No. 38 of 2007 s. 95 and 101(3).]
36.Minister’s duties to endorse transferred etc. licences etc.
The Minister must —
(a)in the case of the transfer of a licence, endorse on the licence as licensee the name of the person to whom the licence has been transferred; and
(b)in the case of the transfer of a water entitlement under a licence to a person who does not hold a licence of the same kind, issue a licence to the person to whom a water entitlement has been transferred endorsed with such particulars as the Minister thinks fit relating to the transfer; and
(c)in the case of the transfer of a water entitlement under a licence to a person who holds a licence of the same kind, endorse on the licences affected such particulars as the Minister thinks fit relating to the transfer; and
(d)in the case of an agreement referred to in clause 30 between the holder of a licence and a third party relating to the taking of water under the licence by the third party, endorse on the licence the name of the third party, the period of the agreement and any other particulars the Minister thinks fit relating to the agreement.
[Clause 36 inserted: No. 49 of 2000 s. 52; amended: No. 38 of 2007 s. 101(2) and (3).]
Division 8 — Transfer of licences and water entitlements to the Minister
[Heading inserted: No. 49 of 2000 s. 52; amended: No. 38 of 2007 s. 96.]
37.Term used: water entitlement
In this Division —
water entitlement, in relation to a licence, means the quantity of water that the licensee is entitled to take under the licence, and includes part of a water entitlement.
[Clause 37 inserted: No. 49 of 2000 s. 52.]
38.When Minister may agree to transfer of licence etc. to Minister
(1)This clause applies in relation to a licence if —
(a)the regulations authorise the Minister to enter into an agreement under this clause in relation to licences of the class to which the licence belongs; or
(b)the Minister considers that the water entitlement under the licence is not being used in whole or in part; or
(c)the purpose for which water taken under the licence is being used is no longer a purpose for which a licence would be granted by the Minister; or
(d)the Minister considers that it would be in the public interest for the Minister to enter into an agreement under this clause in relation to the licence.
(2)Where this clause applies in relation to a licence, the Minister may enter into and give effect to an agreement with the licensee under which —
(a)the licensee is to transfer —
(i)the licence; or
(ii)a water entitlement,
to the Minister; and
(b)the Minister is to pay an agreed amount to the licensee as consideration for the transfer.
(3)An agreement under subclause (2) may also contain provisions incidental and supplementary to the matters mentioned in that subclause.
(4)Where a person is noted on the register referred to in section 26GZI as having a security interest (as defined in Part III Division 3E) in a licence, the Minister must not enter into an agreement under subclause (2) in respect of the licence without the written consent of that person.
[Clause 38 inserted: No. 49 of 2000 s. 52; amended: No. 38 of 2007 s. 97 and 101(3).]
[Heading inserted: No. 49 of 2000 s. 52.]
39.Damage due to exercise of various of Minister’s powers, compensation for
(1)If a person suffers damage, including loss of profit —
(a)due to the exercise of a power under clause 24(2)(e)(i) in relation to a licence held by the person; or
(b)due to the exercise of a power under clause 25(2)(e) in relation to a licence held by the person; or
(c)due to the exercise of a power —
(i)under clause 24(2)(b), (e)(ii) or (iii), (f) or (h); or
(ii)under clause 25(2)(a), (b) or (d); or
(iii)if so prescribed for the purposes of this paragraph, in particular circumstances prescribed under clause 25(2)(g) in relation to a licence held by the person;
or
(d)due to the exercise of a power under clause 7(1) to refuse an application for a licence, as a result of which the continued taking of water from a water resource to which section 5C applies is not authorised, where, before, and at the time of, the application of section 5C to that water resource, water was taken periodically or continually from the water resource; or
(e)in circumstances prescribed by a local by‑law,
the Minister is, in accordance with this clause, to compensate that person for the damage, to the extent that it was due solely to the exercise of a power referred to in paragraph (a), (b), (c) or (d) or is in a circumstance prescribed under paragraph (e), if the person requests compensation.
(2)Damage may be compensated for only if —
(a)it is due to the loss of a use which was —
(i)reasonable; and
(ii)authorised by the relevant licence, or not inconsistent with this Act; and
(iii)consistent with the objects of Part III;
and
(b)the person requesting compensation is not responsible for the damage and has attempted to offset or mitigate the damage as far as is practicable.
(3)Local by‑laws may prescribe —
(a)the time within which compensation may be claimed and the procedures for making claims; and
(b)the types of damage for which compensation is to be made; and
(c)how compensation is to be assessed.
(4)The Minister may require the person requesting compensation to provide information to the Minister to enable the Minister to make a decision with respect to compensation, and may require that person to verify that information by statutory declaration.
(5)Compensation is not payable in respect of an exercise of power referred to in subclause (1)(c) to a person who has requested compensation, unless —
(a)the effect of the exercise of the power on the person is permanent; and
(b)the Minister is of the opinion that the effect of the exercise of the power on the person is not fair and reasonable having regard to the exercise of the power in respect of other licence holders in the surrounding area.
(6)Compensation is not payable in respect of an exercise of power referred to in subclause (1)(d) to a person who has requested compensation, unless —
(a)the effect of the exercise of the power on the person is permanent; and
(b)the Minister is of the opinion that the effect of the exercise of the power on the person is not fair and reasonable having regard to the exercise of the power in respect of other applications for a licence in the surrounding area; and
(c)the Minister is of the opinion that the damage suffered by the person is in respect of the lawful taking and use of water by that person since 1 July 1999 or before.
(7)The Minister is to notify the person who made the request for compensation of the outcome of the request and, if the request is refused, the Minister is to notify that person of the reasons for that decision.
(8)A dispute about the amount of compensation is to be determined by arbitration under the provisions of the Commercial Arbitration Act 2012, unless the parties agree on some other method of determination.
(9)Compensation under this clause, and any costs incurred by the Minister under subclause (8), are to be charged to the Consolidated Account, which this section appropriates to the necessary extent.
[Clause 39 inserted: No. 49 of 2000 s. 52; amended: No. 77 of 2006 s. 4; No. 38 of 2007 s. 101(2) and (3); No. 46 of 2009 s. 14(3); No. 23 of 2012 s. 45.]
Division 10 — Issue of licences and transfer of licences and water entitlements by the Minister for a premium
[Heading inserted: No. 49 of 2000 s. 52; amended: No. 38 of 2007 s. 98.]
40.Minister’s power to agree to issue licence at premium
(1)This clause applies in relation to the grant of a licence if —
(a)the regulations authorise the Minister to enter into an agreement under this clause in relation to the grant of licences of the class to which the licence belongs; or
(b)the Crown has established the facilities by the use of which water may be taken under the licence.
(2)Where this clause applies in relation to the grant of a licence, the Minister may enter into and give effect to an agreement with a person under which —
(a)the Minister is to grant a licence to the person; and
(b)the person is to pay an agreed amount to the Minister as a premium for the grant of the licence.
(3)An agreement under subclause (2) may also contain provisions incidental and supplementary to the matters mentioned in that subclause.
[Clause 40 inserted: No. 49 of 2000 s. 52; amended: No. 38 of 2007 s. 99 and 101(3).]
41.Minister’s power to agree to transfer licence etc. for premium
(1)This clause applies in relation to a licence or a water entitlement if —
(a)the regulations authorise the Minister to enter into an agreement under this clause in relation to licences or water entitlements of the class to which the licence belongs; or
(b)the licence or water entitlement has been transferred to the Minister by an agreement made under clause 38.
(2)Where this clause applies in relation to a licence or a water entitlement, the Minister may enter into and give effect to an agreement with a person who is eligible to hold a licence under which —
(a)the Minister is to transfer —
(i)the licence; or
(ii)the water entitlement,
to the person; and
(b)the person is to pay an agreed amount to the Minister as consideration for the transfer.
(3)The amount to be paid as consideration may be established by public auction or tender or by private treaty.
(4)An agreement under subclause (2) may also contain provisions incidental and supplementary to the matters mentioned in that subclause.
[Clause 41 inserted: No. 49 of 2000 s. 52; amended: No. 38 of 2007 s. 101(3).]
[Heading inserted: No. 49 of 2000 s. 52.]
42.Minister to notify Registrar of Titles etc. in some cases
(1)If —
(a)a licence under section 5C is —
(i)granted; or
(ii)renewed under clause 22; or
(iii)amended under clause 24; or
(iv)suspended or cancelled under clause 25; or
(v)surrendered under clause 27; or
(vi)transferred under clause 29, 38 or 41;
or
(b)a security interest (as defined in Part III Division 3E) in a licence is noted on the register referred to in section 26GZI; or
(c)the notation referring to such a security interest is removed from the register or any details of the notation in the register are varied, under section 26GZQ,
the Minister is to give notice of the event to the Registrar in the form approved by the Registrar.
(2)The Registrar is to record the notification, or remove a record relating to the notification, as is appropriate, in the relevant documents relating to the land in the appropriate manner.
(3)In this clause —
Registrar means the Registrar of Titles under the Transfer of Land Act 1893 or the Registrar of Deeds and Transfers under the Registration of Deeds Act 1856, as the case requires.
[Clause 42 inserted: No. 49 of 2000 s. 52; amended: No. 38 of 2007 s. 101(3); No. 46 of 2009 s. 14(4).]
43.Licensee etc. to maintain works etc. referred to in licence
A licensee and a person whose name is endorsed on a licence as a person with whom the licensee has an agreement referred to in clause 30 must, to the extent that it is under his or her power to do so, maintain works, facilities and equipment to which the licence refers in good order and condition.
Penalty: $2 000.
[Clause 43 inserted: No. 49 of 2000 s. 52.]
44.Licensee to notify Minister of change of circumstances
A licensee must without delay inform the Minister in writing of any material change to the facts or circumstances stated by the licensee in an application for the grant or renewal of the licence.
Penalty: $2 000.
[Clause 44 inserted: No. 49 of 2000 s. 52; amended: No. 38 of 2007 s. 101(3).]
45.Duplicate licences, issue of in some cases
If the CEO is satisfied that a licence has been lost or destroyed the CEO may issue a duplicate licence on payment of the prescribed fee.
[Clause 45 inserted: No. 49 of 2000 s. 52; amended: No. 38 of 2007 s. 100.]
(1)The Minister may —
(a)cause a meter or meters to be placed or otherwise installed; or
(b)require a licensee, or a person whose name is endorsed on a licence as a person with whom a licensee has an agreement referred to in clause 30, to provide and place or otherwise install a meter or meters,
on any well or other facility that is the subject of a licence for taking water.
(2)A person who is required to provide a meter under subclause (1) must —
(a)maintain the meter in good condition; and
(b)use every reasonable endeavour to ensure that the meter is operating accurately.
Penalty: $2 000.
(3)The Minister may at any time —
(a)cause a meter placed or installed by a person under subclause (1) to be tested; or
(b)require the testing of such a meter by a person approved by the Minister.
(4)The regulations may prescribe fees —
(a)for the cost and installation of a meter by the Minister; or
(b)for the maintenance, testing and replacement of a meter provided by the Minister; or
(c)for the reading of a meter,
and may combine a fee authorised under this subclause with the fee under clause 4(1)(d).
(5)In this clause —
meter means any device for measuring or estimating the volume or flow of water that is approved, or is of a description that is approved, by the Minister by order published in the Gazette.
[Clause 46 inserted: No. 49 of 2000 s. 52; amended: No. 38 of 2007 s. 101(3).]
47.Meter reading to be presumed correct
The quantity of water shown by a meter placed or installed under clause 46 as having passed through the meter is to be presumed, in the absence of evidence to the contrary, to be the amount of water that has actually been taken by the licensee.
[Clause 47 inserted by No. 49 of 2000 s. 52.]
Matters to which licence terms, conditions or restrictions may relate
[cl. 7(5) and 15(3) of Sch. 1]
[Heading inserted: No. 49 of 2000 s. 52.]
1.The taking, use or disposal of water, including —
(a)arrangements for water, whether from one source or different sources, to be shared by a licensee with, or supplied by a licensee to, other persons; and
(b)requirements to be met in relation to the taking, use or disposal of water by a licensee who is the holder of a licence under the Water Services Act 2012.
2.The use, management, protection and enhancement of —
(a)any water resource and its ecosystem; or
(b)the environment in which the water resource is situated.
3.The amendment, renewal or surrender of a licence.
4.The transfer of a licence or water entitlement (as defined in Division 7) by the licensee to another person, including a prohibition or restriction on any such transfer of a licence or water entitlement.
5.The transfer of a licence or water entitlement (as defined in Division 7) that relates to any place so that it relates to another place of the same kind, including a prohibition or restriction on any such transfer of a licence or water entitlement.
6.An agreement referred to in clause 30, including a prohibition or restriction on any such agreement.
7.The construction, alteration, maintenance or operation of works, structures and equipment, including the qualifications of persons who are responsible for any of those things.
8.The removal of works, structures and equipment, the making good of land or premises, or the condition in which works, structures, equipment, land or premises are to be left.
9.The monitoring of —
(a)any water resource and its ecosystem; or
(b)the environment in which the water resource is situated.
10.The provision of information to the Minister or the CEO, including information by way of periodical returns at specified times.
[Appendix to Schedule 1 inserted: No. 49 of 2000 s. 52; amended: No. 67 of 2003 Sch. 2 cl. 69; No. 25 of 2012 s. 74.]
[Schedule 2 deleted: No. 55 of 2004 s. 1060.]
This is a compilation of the Rights in Water and Irrigation Act 1914 and includes amendments made by other written laws. For provisions that have come into operation, and for information about any reprints, see the compilation table.
|
Short title |
Number and year |
Assent |
Commencement |
|
Rights in Water and Irrigation Act 1914 |
19 of 1914 (5 Geo. V No. 19) |
22 Sep 1914 |
22 Sep 1914 |
|
Ministers’ Titles Act 1925 s. 2 |
8 of 1925 (16 Geo. V No. 8) |
24 Sep 1925 |
24 Sep 1925 |
|
Rights in Water and Irrigation Act Amendment Act 1939 |
16 of 1939 (3 Geo. VI No. 16) |
22 Nov 1939 |
22 Nov 1939 |
|
Rights in Water and Irrigation Act Amendment Act 1941 |
32 of 1941 (5 and 6 Geo. VI No. 32) |
16 Dec 1941 |
16 Dec 1941 |
|
Reprint of the Rights in Water and Irrigation Act 1914 in Volume 2 of Reprinted Acts (includes amendments listed above) |
|||
|
Rights in Water and Irrigation Act Amendment Act 1945 |
3 of 1945 (9 Geo. VI No. 3) |
18 Oct 1945 |
18 Oct 1945 |
|
Rights in Water and Irrigation Act Amendment Act 1949 |
9 of 1949 (13 Geo. VI No. 95) |
14 Sep 1949 |
14 Sep 1949 |
|
Rights in Water and Irrigation Act Amendment Act 1951 |
18 of 1951 (15 Geo. VI No. 18) |
26 Nov 1951 |
26 Nov 1951 |
|
Limitation Act 1935 s. 48A(1) |
35 of 1935 (26 Geo. V No. 35) (as amended by No. 73 of 1954 s. 8) |
14 Jan 1955 |
Relevant amendments (see s. 48A and Second Sch. 7) took effect on 1 Mar 1955 (see No. 73 of 1954 s. 2 and Gazette 18 Feb 1955 p. 343) |
|
Reprint of the Rights in Water and Irrigation Act 1914 approved 6 Sep 1960 in Volume 15 of Reprinted Acts (includes amendments listed above) |
|||
|
Rights in Water and Irrigation Act Amendment Act 1962 |
70 of 1962 (11 Eliz. II No. 70) |
30 Nov 1962 |
1 Mar 1963 (see s. 2 and Gazette 1 Mar 1963 p. 748) |
|
Rights in Water and Irrigation Act Amendment Act 1964 |
31 of 1964 (13 Eliz. II No. 31) |
4 Nov 1964 |
4 Nov 1964 |
|
Decimal Currency Act 1965 |
113 of 1965 |
21 Dec 1965 |
Act other than s. 4‑9: 21 Dec 1965 (see s. 2(1)); |
|
Rights in Water and Irrigation Act Amendment Act 1971 |
46 of 1971 |
10 Dec 1971 |
10 Dec 1971 |
|
Metric Conversion Act 1972 |
94 of 1972 |
4 Dec 1972 |
The relevant amendments as set out in the Second Sch. 8 took effect on 1 May 1974 (see s. 4(2) and Gazette 26 Apr 1974 p. 1393) |
|
Reprint of the Rights in Water and Irrigation Act 1914 approved 12 Aug 1974 (includes amendments listed above) |
|||
|
Rights in Water and Irrigation Act Amendment Act 1974 |
48 of 1974 (as amended by No. 100 of 1976) |
26 Nov 1974 |
18 Feb 1977 (see s. 2 and Gazette 18 Feb 1977 p. 468) |
|
Acts Amendment and Repeal (Valuation of Land) Act 1978 Pt. XII |
76 of 1978 |
20 Oct 1978 |
1 Jul 1979 (see s. 2 and Gazette 11 May 1979 p. 1211) |
|
Rights in Water and Irrigation Act Amendment Act 1978 |
98 of 1978 (as amended by No. 119 of 1984 s. 20‑22; No. 74 of 2003 s. 104) |
17 Nov 1978 |
s. 1, 2, 8, 9, 14, 36 and 37: 19 Jan 1979 (see s. 2 and Gazette 19 Jan 1979 p. 114); s. 3 and 15‑35 repealed by No. 74 of 2003 s. 104 |
|
Acts Amendment (Statutory Designations) and Validation Act 1981 s. 4 |
63 of 1981 |
13 Oct 1981 |
13 Oct 1981 |
|
Rights in Water and Irrigation Amendment Act 1984 |
119 of 1984 |
27 Dec 1984 |
s. 1 and 2: 27 Dec 1984; |
|
Acts Amendment and Repeal (Water Authorities) Act 1985 Pt. IX |
25 of 1985 |
6 May 1985 |
1 Jul 1985 (see s. 2 and Gazette 7 Jun 1985 p. 1931) |
|
Acts Amendment (Water Authorities) Act 1985 Pt. VIII (s. 119‑134) |
110 of 1985 |
17 Dec 1985 |
s. 119‑129, 131‑132, 133(b), and 134: 14 Mar 1986 (see s. 2 and Gazette 14 Mar 1986 p. 726); |
|
Commercial Arbitration Act 1985 s. 3 |
109 of 1985 |
7 Jan 1986 |
1 Apr 1986 (see s. 2 and Gazette 28 Feb 1986 p. 605) |
|
Reprint of the Rights in Water and Irrigation Act 1914 as at 23 Oct 1986 (includes amendments listed above except those in the Rights in Water and Irrigation Act Amendment Act 1978 s. 3 and 15‑35) |
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|
Acts Amendment and Repeal (Environmental Protection) Act 1986 Pt. VI |
77 of 1986 |
4 Dec 1986 |
20 Feb 1987 (see s. 2 and Gazette 20 Feb 1987 p. 440) |
|
Acts Amendment (Water Authority Rates and Charges) Act 1987 Pt. VI |
24 of 1987 |
25 Jun 1987 |
14 Jul 1987 (see s. 2 and Gazette 14 Jul 1987 p. 2647) |
|
Financial Administration Legislation Amendment Act 1993 s. 11 |
6 of 1993 |
27 Aug 1993 |
1 Jul 1993 (see s. 2(1)) |
|
Water Agencies Restructure (Transitional and Consequential Provisions) Act 1995 Pt. 8 |
73 of 1995 |
27 Dec 1995 |
1 Jan 1996 (see s. 2(2) and Gazette 29 Dec 1995 p. 6291) |
|
Sentencing (Consequential Provisions) Act 1995 Pt. 70 |
78 of 1995 |
16 Jan 1996 |
4 Nov 1996 (see s. 2 and Gazette 25 Oct 1996 p. 5632) |
|
Reprint of the Rights in Water and Irrigation Act 1914 as at 2 Apr 1996 (includes amendments listed above except those in the Rights in Water and Irrigation Act Amendment Act 1978 s. 3 and 15‑35 and the Sentencing (Consequential Provisions) Act 1995) |
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|
Local Government (Consequential Amendments) Act 1996 s. 4 |
14 of 1996 |
28 Jun 1996 |
1 Jul 1996 (see s. 2) |
|
Financial Legislation Amendment Act 1996 s. 64 |
49 of 1996 |
25 Oct 1996 |
25 Oct 1996 (see s. 2(1)) |
|
Transfer of Land Amendment Act 1996 s. 153(1) |
81 of 1996 |
14 Nov 1996 |
14 Nov 1996 (see s. 2(1)) |
|
Acts Amendment (Land Administration) Act 1997 Pt. 52 |
31 of 1997 |
3 Oct 1997 |
30 Mar 1998 (see s. 2 and Gazette 27 Mar 1998 p. 1765) |
|
Water Legislation Amendment Act 1997 Pt. 4 |
32 of 1997 |
3 Oct 1997 |
15 Apr 1998 (see s. 2 and Gazette 15 Apr 1998 p. 2041) |
|
Statutes (Repeals and Minor Amendments) Act 1997 s. 105 |
57 of 1997 |
15 Dec 1997 |
15 Dec 1997 (see s. 2(1)) |
|
Statutes (Repeals and Minor Amendments) Act (No. 2) 1998 s. 63 |
10 of 1998 |
30 Apr 1998 |
30 Apr 1998 (see s. 2(1)) |
|
Rights in Water and Irrigation Amendment Act 2000 9 |
49 of 2000 |
28 Nov 2000 |
s. 1 and 2: 8 Nov 2000; |
|
Reprint of the Rights in Water and Irrigation Act 1914 as at 10 Jan 2001 (includes amendments listed above except those in the Rights in Water and Irrigation Act Amendment Act 1978 s. 3 and 15‑35) |
|||
|
Sentencing Legislation Amendment and Repeal Act 2003 s. 91 |
50 of 2003 |
9 Jul 2003 |
15 May 2004 (see s. 2 and Gazette 14 May 2004 p. 1445) |
|
Economic Regulation Authority Act 2003 Sch. 2 Div. 13 |
67 of 2003 |
5 Dec 2003 |
1 Jan 2004 (see s. 2 and Gazette 30 Dec 2003 p. 5723) |
|
Statutes (Repeals and Minor Amendments) Act 2003 s. 103 |
74 of 2003 |
15 Dec 2003 |
15 Dec 2003 (see s. 2) |
|
State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 Pt. 2 Div. 114 10, 11 |
55 of 2004 |
24 Nov 2004 |
1 Jan 2005 (see s. 2 and Gazette 31 Dec 2004 p. 7130) |
|
Water Legislation Amendment (Competition Policy) Act 2005 Pt. 6 |
25 of 2005 |
12 Dec 2005 |
3 Jun 2006 (see s. 2 and Gazette 2 Jun 2006 p. 1985) |
|
Reprint 7: The Rights in Water and Irrigation Act 1914 as at 4 Jul 2006 (includes amendments listed above) |
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|
Land Information Authority Act 2006 s. 151 |
60 of 2006 |
16 Nov 2006 |
1 Jan 2007 (see s. 2(1) and Gazette 8 Dec 2006 p. 5369) |
|
Financial Legislation Amendment and Repeal Act 2006 s. 4 and Sch. 1 cl. 150 |
77 of 2006 |
21 Dec 2006 |
1 Feb 2007 (see s. 2(1) and Gazette 19 Jan 2007 p. 137) |
|
Water Resources Legislation Amendment Act 2007 Pt. 5 |
38 of 2007 |
21 Dec 2007 |
1 Feb 2008 (see s. 2(2) and Gazette 31 Jan 2008 p. 251) |
|
Reprint 8: The Rights in Water and Irrigation Act 1914 as at 6 Jun 2008 (includes amendments listed above) |
|||
|
Statutes (Repeals and Minor Amendments) Act 2009 s. 14 |
46 of 2009 |
3 Dec 2009 |
4 Dec 2009 (see s. 2(b)) |
|
Standardisation of Formatting Act 2010 s. 51 |
19 of 2010 |
28 Jun 2010 |
11 Sep 2010 (see s. 2(b) and Gazette 10 Sep 2010 p. 4341) |
|
Public Sector Reform Act 2010 s. 89 |
39 of 2010 |
1 Oct 2010 |
1 Dec 2010 (see s. 2(b) and Gazette 5 Nov 2010 p. 5563) |
|
Statutes (Repeals and Minor Amendments) Act 2011 s. 16 |
47 of 2011 |
25 Oct 2011 |
26 Oct 2011 (see s. 2(b)) |
|
Commercial Arbitration Act 2012 s. 45 it. 18 |
23 of 2012 |
29 Aug 2012 |
7 Aug 2013 (see s. 1B(1) and Gazette 6 Aug 2013 p. 3677) |
|
Reprint 9: The Rights in Water and Irrigation Act 1914 as at 9 Nov 2012 (includes amendments listed above except those in the Commercial Arbitration Act 2012) |
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|
Water Services Legislation Amendment and Repeal Act 2012 Pt. 5 |
25 of 2012 |
3 Sep 2012 |
18 Nov 2013 (see s. 2(b) and Gazette 14 Nov 2013 p. 5028) |
|
COVID‑19 Response and Economic Recovery Omnibus Act 2020 Pt. 5 Div. 2 Subdiv. 3 |
34 of 2020 |
11 Sep 2020 |
12 Sep 2020 (see s. 2(b)) |
1Footnote no longer applicable.
2The short title of the Water Authority Act 1984 was changed to the Water Agencies (Powers) Act 1984 by the Water Agencies Restructure (Transitional and Consequential Provisions) Act 1995 s. 7.
3The Water Agencies Restructure (Transitional and Consequential Provisions) Act 1995 Pt. 2 commenced 1 January 1996.
4Repealed by the Water Resources Legislation Amendment Act 2007.
5Marginal notes in the Rights in Water and Irrigation Act 1914 referring to earlier Western Australian legislation and to legislation of other jurisdictions have been omitted from this compilation.
6The Water Resources Legislation Amendment Act 2007 Pt. 11 deals with certain transitional issues some of which may be relevant for this Act.
7Section 48A and the Second Schedule were inserted by the Limitation Act Amendment Act 1954 s. 8.
8The Second Schedule was inserted by the Metric Conversion Act Amendment Act 1973 s. 4.
9The Rights in Water and Irrigation Amendment Act 2000 Pt. 8 contains transitional provisions.
10The State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 Pt. 5, the State Administrative Tribunal Act 2004 s. 167 and 169, and the State Administrative Tribunal Regulations 2004 r. 28 and 42 deal with certain transitional issues some of which may be relevant for this Act.
11The State Administrative Tribunal Regulations 2004 r. 38 and 61 contain transitional provisions some of which may be relevant to this Act.
[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]
Defined termProvision(s)
an affected personSch. 1 cl. 17(1)
artesian well2(1)
Authority26GZP(2)
bed2(1)
benefiting licenseeSch. 1 cl. 17(2)
CEO2(1)
commencement day17A(1)
committee26GK(1)
Crown land2(1)
dam17(8)
deceased holderSch. 1 cl. 29A(1), Sch. 1 cl. 29A(2)
degradation2(1)
Department2(1)
dewatering26O(3)
diminished5B(2)
district2(1)
former Authority2(1)
former Minister2(1)
Government agreement26K(4)
instrument26GZH
intensive conditions21(4)
licence26GG(1), Sch. 1 cl. 1
licenseeSch. 1 cl. 18(4)
local by‑laws2(1), 26L(1)
meterSch. 1 cl. 46(5)
non‑artesian well2(1)
prescribed2(1)
proclaimed area26C(1)
public interestSch. 1 cl. 1
RegistrarSch. 1 cl. 42(3)
regulations2(1)
relevant day9(2)
relevant water resources management committee26GJ(2)
riparian land20(1)
security interest26GZH
spring2(1)
statutory undertaker26K(4)
take2(1)
third partySch. 1 cl. 19, Sch. 1 cl. 30(1)
underground water2(1)
underground water source2(1)
use and development4(2)
water entitlement26Q(3), Sch. 1 cl. 17(4), Sch. 1 cl. 28, Sch. 1 cl. 37
water resource26GB, Sch. 1 cl. 12(4)
water resources2(1)
Water Resources Council2(1)
water services licence26GZJ(3)
watercourse2(1), 3(1), 4A
well2(1)
wetland2(1)