2014
2014
2014-12-19
act
government
publicspecial
act.reprint
act-1987-015
partuncommenced
2014-05-29
2014-05-29
0
2014
none
act-2014-048
62ee39b4-c877-4f29-89ae-20ac5ca1e4d8
86f6157c-41ca-4836-be10-8fa0179a8445
Note—
Amending Acts and amending provisions are subject
to automatic repeal pursuant to sec 30C of the Interpretation
Act 1987 No 15 once the amendments have taken
effect.
An Act to make miscellaneous amendments to the
Water Management Act 2000 and certain
water sharing plans and to make consequential amendments to certain other
legislation.
1Name of
Act
This Act is the Water Management
Amendment Act 2014.
2Commencement
(1)
This Act commences on a day or days to be
appointed by proclamation, except as provided by subsection
(2).
(2)
Schedules 1.14 [1], 1.15 and 2 commence on the
date of assent to this Act.
Schedule 1Amendment of Water Management Act 2000 No
92
1.1Amendments concerning overland
flow water and terminology
[1]Section
4A
Insert after section 4:
4AMeaning of “overland
flow water”
(1)
In this Act, overland
flow water means water (including floodwater, rainfall
run-off and urban stormwater) that is flowing over or lying on the ground as a
result of:
(a)
rain or any other kinds of precipitation,
or
(b)
rising to the surface from underground,
or
(c)
any other process or action of a kind prescribed
by the regulations.
(2)
Water is flowing over the ground for the purposes
of subsection (1) even if it flows over the ground by means of artificial
structures such as roads, canals or road gutters.
(3)
However, subsection (1) does not include:
(a)
water that is collected from a roof (including
water collected from a roof using a rainwater tank), or
(b)
water that is flowing over or lying on the bed of
a river, lake or estuary, or
(c)
water flowing over or lying on the ground in such
circumstances as may be prescribed by the
regulations.
[2]Sections 329 (4) (b) and 331
(a) (ii)
Omit “rainwater run-off” wherever
occurring. Insert instead “overland flow
water”.
[3]Section 392 State’s
water rights
Omit section 392 (1) (c). Insert instead:
(c)
all water occurring on or below the surface of
the ground (including overland flow water flowing over or lying there for the
time being) other than water referred to in subsection
(1A),
[4]Section 392
(1A)
Insert after section 392 (1):
(1A)
Subsection (1) (c) does not include any of the
following:
(a)
water that is collected from a roof (including
water collected from a roof using a rainwater tank),
(b)
water occurring on or below the surface of the
ground in such other circumstances as may be prescribed by the
regulations.
[5]Dictionary
Insert in alphabetical order:
overland
flow water—see section 4A.
[6]Dictionary, definition of
“water source”
Omit paragraph (b) of the definition. Insert
instead:
(b)
one or more places where water occurs on or below
the surface of the ground (including overland flow water flowing over or lying
there for the time being),
[7]Dictionary, definition of
“water supply work”
Insert “without limiting paragraphs
(b)–(g),” before “a work” in paragraph (a) of the
definition.
[8]Dictionary, definition of
“water supply work”
Omit paragraph (b) of the definition. Insert
instead:
(b)
a work (such as a tank or dam) that is
constructed or used for the purpose of capturing or storing water,
or
1.2Amendments concerning
supplementary water access licences
[1]Section 8A Planned
environmental water
Omit “supplementary water access licence,
and any other category or subcategory of licence prescribed by the
regulations,” from section 8A (1).
Insert instead “category or subcategory of
licence prescribed by the regulations”.
[2]Section 60A Taking water
without, or otherwise than authorised by, an access
licence
Omit “in accordance with the terms of an
order in force under section 70” from section 60A (6).
Insert instead “in such circumstances as
may be authorised by provisions of the relevant management plan that are made
for the purposes of section 70”.
[3]Section
70
Omit the section. Insert instead:
70Special provisions with
respect to supplementary water
A management plan may make provision for or with
respect to the circumstances in which the taking of water pursuant to
supplementary water access licences is authorised within the whole or any part
of a water management area or specified water sources.
[4]Section 77A Cancellation of
access licences that can no longer be used or are no longer
required
Insert “unless the access licence is a
regulated river supplementary water access licence” after “such an
access licence” in section 77A (1).
[5]Section 87 Compensation
payable in certain circumstances for reductions in water allocations arising
during initial period for which management plan is in
force
Insert “that is not a regulated river
supplementary water access licence” after “supplementary water
access licence” in section 87 (1).
[6]Section 87AA Compensation
payable in certain circumstances for reductions in water allocations arising
after initial period that management plan is in force
Insert after section 87AA (1) (f):
(f1)
floodplain harvesting (regulated river) access
licences,
(f2)
floodplain harvesting (unregulated river) access
licences,
(f3)
regulated river supplementary water access
licences,
[7]Section 87AA (1)
(g)
Omit “supplementary water access
licences”.
Insert instead “excluded supplementary
water access licences”.
[8]Section 87AA
(11)
Insert after section 87AA (10):
(11)
In this section:
excluded
supplementary water access licence means a supplementary
water access licence other than a regulated river supplementary water access
licence.
[9]Dictionary
Insert in alphabetical order:
regulated
river supplementary water access licence means a
supplementary water access licence (including a subcategory of such a licence)
that entitles its holder to shares of water from a water source that is a
regulated river.
1.3Amendments concerning
harvestable rights
[1]Section
53
Omit the section. Insert instead:
53Harvestable
rights
(1)
An owner or occupier of a landholding within a
harvestable rights area is entitled, without the need for any access licence,
water supply work approval or water use approval, to do each of the following
in accordance with the harvestable rights order by which the area is
constituted:
(a)
to construct and use one or more water supply
works for the purpose of capturing and storing water of a kind specified by
the harvestable rights order,
(b)
to take and use that
water.
(2)
One or more water supply works may be constructed
and used under subsection (1) (a) for the storage of both water that has been
captured in exercise of a harvestable right and other water that has been
lawfully taken from a water source if the capacity of the work or works does
not exceed the maximum harvestable right volume specified by the harvestable
rights order.
(3)
The following provisions apply where the capacity
of the water supply work or works by means of which water is to be captured or
stored in exercise of a harvestable right exceeds the maximum harvestable
right volume specified by the harvestable rights order for works constructed
under the authority of this section:
(a)
an access licence or water use approval is not
required for water that is captured or stored by the work or works in exercise
of a harvestable right,
(b)
if water (other than water captured or stored in
exercise of a harvestable right) is also captured or stored by the work or
works—an access licence and water use approval is required to authorise
the taking and use of water from that source for any volume taken and stored
in excess of the maximum harvestable right volume unless the water is taken
under the authority of a domestic and stock right or native title
right,
(c)
a water supply work approval for the water supply
work or works is required despite subsection (1).
(4)
Without limiting subsection (1), a single water
supply work may be used by 2 or more landholders regardless of who constructed
it if the shared use is permitted by the harvestable rights
order.
(5)
This section does not allow a landholder:
(a)
to supply any other land with water that has been
captured and stored in exercise of a harvestable right, or
(b)
to construct or use a water supply work in a
river unless the river is declared by the relevant harvestable rights order to
be a minor stream for the purposes of this
Division.
(6)
In this section:
capture, in relation to a water
supply work, includes pumping water for the purposes of storage in another
water supply work.
[2]Section
54
Omit the section. Insert instead:
54Harvestable rights
orders
(1)
The Minister, by order published on the NSW
legislation website, may:
(a)
constitute any land as a harvestable rights area,
and
(b)
name the area that is constituted,
and
(c)
fix the boundaries of the area that is
constituted.
Note—
An order under this section may be amended or
repealed by a subsequent order (see section 43 of the Interpretation Act
1987).
(2)
The order by which a harvestable rights area is
constituted must specify:
(a)
the kinds of water (such as overland flow water)
that may be captured and stored in the area in exercise of harvestable rights,
and
(b)
the method for calculating the maximum
harvestable right volume for works constructed or used in exercise of
harvestable rights on landholdings in the area by reference to a proportion
(not being less than 10%) of the average regional overland flow waters for
that area.
(3)
Without limiting subsection (2) (b), the kinds of
ways in which a maximum harvestable right volume for landholdings in a
harvestable rights area may be expressed include by reference to the capacity
of water supply works or volumetric limits.
(4)
The order may also deal with the following
matters:
(a)
the types and locations of water supply works
that may be used by a landholder to capture and store
water,
(b)
the means by which the maximum capacity of a
water supply work that may be constructed or used by a landholder to capture
and store water is to be calculated,
(c)
the arrangements that may be made by landholders
for the shared use of a water supply work that straddles their
landholdings,
(d)
the method for accounting for water that is
captured or stored in the circumstances referred to in section 53
(3),
(e)
the procedures to be followed for calculating the
average overland flow water for a landholding in the area,
(f)
rules about the purposes for which water may be
captured, taken, stored or used,
(g)
such other matters as are necessary or convenient
to give effect to the order.
(5)
For the purpose of calculating any matter under
an order under this section, a reference in the order to an area of land is,
in the case of a landholding, a reference to the area of the
landholding.
(6)
An order under this section may deal with any
matter by reference to a map held by the Department.
(7)
Any map that is referred to as provided by
subsection (6) is to be available for public inspection, free of charge, by
either or both of the following means:
(a)
at the appropriate regional office of the
Department for the area to which the relevant order relates, during normal
office hours,
(b)
on the website of the Department or any other
website that the Minister considers to be readily accessible by members of the
public.
1.4Amendments concerning the
controlled allocation of access licences
[1]Section 65 Controlled
allocation of access licences
Insert “(or part of such an area or
source)” after “water source” in section 65 (2)
(a).
[2]Section 65 (2) (c) and
(d)
Insert at the end of section 65 (2) (b):
, and
(c)
may set a minimum price for the acquisition of
the right to apply for the access licence or licences concerned,
and
(d)
may set a fee for participation in the auction,
tender or other means specified by the order with respect to the access
licence or licences concerned.
[3]Section 65
(3)
Insert after section 65 (2):
(3)
For the avoidance of doubt, the Independent
Pricing and Regulatory Tribunal does not have jurisdiction under the Independent Pricing and Regulatory Tribunal Act
1992 to investigate or determine minimum prices for the
purposes of this section.
1.5Amendments concerning term
water allocation transfers
[1]Section 71M Transfer of access
licences
Insert after section 71M (8):
(9)
The transferee of an access licence is taken to
hold the access licence subject to any term water allocation transfer, as
referred to in section 71NA, that is in effect when, or is due to come into
effect after, the licence is transferred.
[2]Section
71NA
Insert after section 71N:
71NATerm transfers of water
allocation entitlements
(1)Application of
section
Without limiting section 71N, this section
applies to access licences except local water utility access licences and
major utility access licences.
(2)Creation of term water
allocation transfers
The holder of an access licence to which this
section applies (the holder of
the primary access licence) may transfer, for a specified
period, an entitlement for a water allocation to be credited to the water
allocation account for the licence to another person holding an access licence
(the transferee) to which this section
applies.
(3)
A transfer referred to in subsection (2) (a
term
water allocation transfer) may provide for all or part of
the entitlement for the water allocation concerned to be
transferred.
(4)
The specified period for a term water allocation
transfer:
(a)
must not exceed a period of 10 years,
and
(b)
must commence on 1 July of a year and expire on
30 June of another year, and
(c)
must not commence on 1 July of another year that
is more than 5 years ahead (calculated from 1 July of the year the transfer is
executed).
(5)
The consents of both the Minister and the
proposed transferee to the term water allocation transfer are
required.
(6)Effect of term water
allocation transfers
A term water allocation transfer does not operate
to transfer the share component of an access licence to the transferee, but
only operates to transfer all or part (as the case requires) of the
entitlement to be credited with a water allocation.
(7)
During the period for which a term water
allocation transfer has effect:
(a)
the transferee is taken to be entitled to have
all or part of the water allocation (as the case requires) that the holder of
the primary access licence would have been entitled to have credited to the
water allocation account for the primary licence credited to the water
allocation account for the transferee’s access licence,
and
(b)
the holder of the primary access licence is taken
not to be entitled to have any or that part (as the case requires) of the
water allocation credited to the water allocation account for the primary
access licence, and
(c)
the transferee is taken to be the holder of the
primary access licence concerned in relation to all or that part (as the case
requires) of the water allocation, to the exclusion of the holder of the
primary access licence, for the following purposes:
(i)
the payment of charges with respect to the usage
of water credited to the water allocation account for the
licence,
(ii)
any other purpose prescribed by the
regulations.
(8)Termination and cancellation
of term water allocation transfers
A term water allocation transfer may be
terminated before its expiry:
(a)
by agreement of both the holder of the primary
access licence and the transferee, or
(b)
by the holder of the primary access licence if
the transferee does not comply with any obligation imposed on the transferee
by the contract or other arrangement under which the transfer was
effected.
(9)
If a term water allocation transfer is
terminated:
(a)
the holder of the primary access licence is not
entitled to have recredited to the water allocation account for the primary
access licence any of the transferred water allocation that has already been
credited to the water allocation account of the transferee’s access
licence, and
(b)
the transferee continues to be entitled to any of
the transferred water allocation that has already been credited to the water
allocation account of the transferee’s access
licence.
(10)
A term water allocation transfer may be cancelled
before it commences by agreement of both the holder of the primary access
licence and the transferee.
(11)Extension of term water
allocation transfers
A term water allocation transfer may, with the
consent of the Minister, be extended before it expires by agreement of both
the holder of the primary access licence and the transferee, but not so as to
result in an extended period that exceeds 10 years in
total.
(12)Alteration of commencement
date for term water allocation transfers
The commencement date for a term water allocation
transfer may, by agreement of both the holder of the primary access licence
and the transferee, be altered before the date on which the transfer is due to
commence.
(13)
An application to record an alteration to the
commencement date for a term water allocation transfer in the Access Register
must be lodged before 31 March in the calendar year in which the transfer is
to take effect.
(14)Time for making applications
for Ministerial consent and registration
The holder of the primary access licence must
lodge both an application for the consent of the Minister to any of the
following dealings and an application for any such dealing to be registered in
the Access Register before 31 March in the calendar year in which the dealing
is to take effect:
(a)
the creation of a term water allocation
transfer,
(b)
the extension of the term for a term water
allocation transfer.
Note—
See section 71L (2A), which enables an
application for consent to a general dealing to be combined with an
application for the dealing to be registered if consent is given. The 6-month
or prescribed period referred to in section 71L (2) for registration of
applications is taken to have been satisfied in cases of such joint
applications.
(15)Regulation-making
powers
The regulations may make provision for or with
respect to the manner in which term water allocation transfers are to be
terminated, extended, cancelled or altered for the purposes of this
section.
[3]Section 71X Dealings on
default
Omit “On” from section 71X
(4).
Insert instead “Except as provided by
subsection (4A), on”.
[4]Section 71X
(4A)
Insert after section 71X (4):
(4A)
If an access licence that is transferred is
subject to a term water allocation transfer, as referred to in section 71NA,
that has been registered (whether or not it has come into effect), the
transferee is taken to hold the licence subject to the term water allocation
transfer for the balance of the period for which it has effect unless it is
sooner cancelled or terminated in accordance with this
Act.
[5]Section 71X (8), definition of
“affected person”
Omit the definition. Insert instead:
affected
person, in relation to the transfer of an access licence or
holding in an access licence under this section, means:
(a)
any person on whom notice is required to be
served under subsection (1) (b), or who is entitled to purchase money from a
sale under subsection (2), in relation to the transfer, or
(b)
any person who is a transferee under a term water
allocation transfer, as referred to in section 71NA, in connection with the
licence.
[6]Section 74 Exit from co-held
access licence
Insert after section 74 (6):
(6A)
An application may not be made under this section
by a co-holder of an access licence if a term water allocation transfer, as
referred to in section 71NA, has been granted with respect to the
co-holder’s entitlements to a water allocation under the access
licence.
[7]Section 77 Surrender of access
licences
Insert after section 77 (2):
(2A)
In the case of an access licence that is a
primary access licence in connection with a term water allocation transfer, as
referred to in section 71NA, the notice of surrender must be accompanied by
documentary evidence that the transferee under the transfer consents to the
licence being surrendered.
[8]Section 78 Suspension and
cancellation of access licences
Insert at the end of section 78 (3) (d):
, and
(e)
any entitlement of the transferee under a term
water allocation transfer, as referred to in section 71NA, in relation to the
licence to have the water allocation account for the transferee’s access
licence credited with all or part of the water allocation of the suspended
licence will continue.
[9]Section 78A Notification of
intention to suspend, cancel or require payment of
penalty
Omit section 78A (1) (a). Insert instead:
(a)
has given written notice to:
(i)
the holder of the access licence,
and
(ii)
if there are security holders in relation to the
access licence—those security holders, and
(iii)
if the holder of another access licence is the
transferee under a term water allocation transfer, as referred to in section
71NA, in relation to the access licence—that holder,
and
[10]Section 85 Keeping of water
allocation accounts
Omit “Water” from section 85 (2).
Insert instead “Subject to section 71NA (7),
water”.
[11]Dictionary
Insert after paragraph (b) in the definition of
general
dealing:
(ba)
the transfer of an entitlement to be credited
with the water allocation of an access licence, as referred to in section
71NA,
1.6Amendments concerning
metering
[1]Section 91H Failure to install
or maintain metering equipment
Omit section 91H (2). Insert instead:
(2)
A person is guilty of an offence if the person
fails to ensure the proper operation of any metering equipment that has been
installed in connection with a water supply work or drainage
work.
Tier 2 penalty.
[2]Section
91J
Omit the section. Insert instead:
91JFailure to keep metering
records
A person is guilty of an offence if the person
fails to keep metering records that the person is required under this Act to
keep with respect to any metering equipment that has been installed in
connection with a water supply work or drainage work.
Tier 2 penalty.
1.7Amendment concerning bore
drilling
Section
346A
Insert after section 346:
346AContravention of terms and
conditions of bore driller’s licence
(1)
The holder of a bore driller’s licence must
ensure that the terms and conditions of the licence are not
contravened.
Tier 2 penalty.
(2)
It is a defence to a prosecution under subsection
(1) if the accused person establishes:
(a)
that the contravention of the term or condition
was caused by a person other than the holder of the bore driller’s
licence, and
(b)
that the holder took all reasonable steps to
prevent the contravention of the term or condition.
(3)
A person who is a trainee driller carrying out
bore drilling under the supervision of the holder of a bore driller’s
licence must not contravene the terms and conditions of the
licence.
Tier 2 penalty.
(4)
It is a defence to a prosecution under subsection
(3) if the accused person establishes that the accused person took all
reasonable steps to prevent the contravention of the term or
condition.
1.8Amendments concerning water
allocation accounts and the taking of water
[1]Section 60C Taking water for
which there is no, or insufficient, water allocation
Insert “Offences involving allocations
under a single access licence” as the heading to section 60C
(1).
[2]Section 60C
(5)–(10)
Insert after section 60C (4):
(5)Offences involving allocations
under 2 or more access licences
A holder of 2 or more access licences that
nominate the same water supply work to take water from one or more water
sources under this Part:
(a)
who intentionally takes water by means of that
work from the source or sources concerned in excess of the combined water
allocations for the access licences, or
(b)
who knows or has reasonable cause to believe that
the taking of the water from the source or sources concerned is in excess of
the combined water allocations for the access
licences,
is guilty of an offence.
Tier 1 penalty.
(6)
A holder of 2 or more access licences that
nominate the same water supply work to take water from one or more water
sources under this Part is guilty of an offence if the holder takes water by
means of that work from the source or sources concerned in excess of the
combined water allocations for the access licences.
Tier 2 penalty.
(7)
A holder of 2 or more access licences that
authorise the holder to take water from the same water source under this
Part:
(a)
who intentionally takes water from that water
source in excess of the combined water allocations for the access licences,
or
(b)
who knows or has reasonable cause to believe that
the taking of the water from that source is in excess of the combined water
allocations for the access licences,
is guilty of an offence.
Tier 1 penalty.
(8)
A holder of 2 or more access licences that
authorise the holder to take water from the same water source under this Part
is guilty of an offence if the holder takes water from that source in excess
of the combined water allocations for the access licences in relation to that
source.
Tier 2 penalty.
(9)
If a person who has the control or management of
a water supply work takes water by means of that work in contravention of
subsection (6), and the water supply work is nominated in relation to an
access licence held by some other person, both persons are taken to have
contravened that subsection.
(10)
Either person referred to in subsection (9) may
be proceeded against and convicted for an offence under subsection (6), as the
case requires, whether or not the other person has been proceeded against or
convicted for such an offence.
[3]Section 60D,
heading
Omit “from”. Insert instead
“by”.
[4]Section 60G Minister may
charge for water illegally taken
Insert after section 60G (1):
(1A)
If the person holds 2 or more access licences
that authorise the holder to take water from the water source concerned, the
Minister may, in accordance with criteria specified by the regulations, take
the action referred to in subsection (1) (b) in relation to the water
allocation accounts for each of the licences.
[5]Section 85A Authorisation to
take water from uncontrolled flows
Omit section 85A (2)–(7). Insert
instead:
(2)
The management plan may make provision for or
with respect to the circumstances in which the holders of regulated river
(high security) access licences or regulated river (general security) access
licences, or both, that relate to a water source to which this section applies
are authorised to take water from the water source that has not been credited
to the water allocation accounts of those licences.
1.9Amendments concerning
nominated water supply works and water tagging zones
[1]Section
71W
Omit the section. Insert instead:
71WAccess licence may nominate
water supply works and extraction points
(1)
On the application of the holder of an access
licence made in accordance with the regulations, the Minister may consent to
the amendment of the licence so as:
(a)
to nominate a specified water supply work or
extraction point in the water management area or water source nominated by the
licence as a work or point by means of or from which water credited to the
licence may be taken, or
(b)
to nominate a specified water supply work or
extraction point in another water management area or another water source as a
work or point by means of or from which water credited to the licence may be
taken, or
(c)
to nominate a specified water supply work or
extraction point in a NSW water tagging zone as a work or point by means of or
from which water credited to the licence may be taken, or
(d)
to nominate a specified extraction point in an
interstate water tagging zone as an extraction point from which water credited
to the licence may be taken,
or so as to withdraw such a
nomination.
(2)
For the avoidance of doubt, a water supply work
may be nominated under subsection (1) even though no approval is required to
be held in relation to the work.
(3)
The relevant notifier for a water supply work
must notify the Minister, in accordance with the regulations, of any of the
following:
(a)
that the work has been nominated (whether by
reference to the work itself or by reference to an extraction point at which
it is located) as a work from which water credited to the interstate
equivalent of an access licence may be taken,
(b)
that such a nomination has been
withdrawn.
Tier 3 penalty.
(4)
The regulations may make provision for or with
respect to:
(a)
the making of nominations referred to in
subsection (1), including:
(i)
the identification of water supply works or
extraction points for the purposes of nominations, and
(ii)
the circumstances in which particular nominations
are, or are not, permitted under that subsection,
and
(b)
the giving of notifications to the Minister under
subsection (3), including the form and timing of such
notifications.
(5)
In this section:
relevant
notifier for a water supply work means:
(a)
if an approval is in force for the work—the
holder of the approval, or
(b)
if there is no approval in force for the
work—the owner of the work.
water
supply work includes a reference to a group of such
works.
[2]Section 71Z Access licence
dealing principles
Omit section 71Z (2). Insert instead:
(2)
The access licence dealing principles may include
provisions relating to any or all of the following:
(a)
the establishment of interstate water tagging
zones,
(b)
the establishment of NSW water tagging
zones,
(c)
the criteria to be considered for the granting of
an application with respect to a nomination referred to in section 71W (1)
(b), (c) or (d).
[3]Section 391A Interstate
arrangements in relation to access licences and
approvals
Omit “in cases referred to in section 71W
(2) or 89 (2)” from section 391A (1).
Insert instead “pursuant to section 71W or
89”.
[4]Dictionary
Insert in alphabetical order:
interstate water tagging zone means
an interstate water tagging zone established by the access licence dealing
principles.
NSW water
tagging zone means a NSW water tagging zone established by
the access licence dealing principles.
1.10Amendments concerning the
streamlining of licensing and trading processes
[1]Section 61 Applications for
granting of access licences
Insert after section 61 (6):
(7)
An applicant for an access licence may, by notice
in writing to the Minister, amend or withdraw the application for the access
licence at any time before the application is
determined.
[2]Section 63 Determination of
applications
Insert after section 63 (1):
(1A)
An access licence may be granted unconditionally
or subject to such conditions as are required or permitted to be imposed under
Division 3.
[3]Section
66A
Insert after section 66:
66AImposition of conditions on
granting of access licence
A condition that is imposed when an access
licence is granted takes effect on the day on which the licence takes
effect.
[4]Section
67
Omit the section. Insert instead:
67Imposition of conditions after
access licence is granted
(1)
The Minister may impose discretionary conditions
on an access licence after it has been granted, but only if the
Minister:
(a)
has given written notice to the holder of the
access licence that the Minister proposes to impose such conditions,
and
(b)
has given the holder of the access licence a
reasonable opportunity to make submissions to the Minister with respect to the
proposed conditions, and
(c)
has taken any such submissions into
consideration.
(2)
Subsection (1) does not apply to conditions
imposed on an access licence:
(a)
at the request of the holder of the access
licence, or
(b)
as a result of action taken under section 66 (3),
or
(c)
when the access licence is amended under section
68B, or
(d)
in connection with a dealing under Division
4.
(3)
Mandatory conditions of an access licence may be
imposed, amended, revoked or suspended by the Minister whenever it is
necessary to do so in order to enable compliance with or to give effect to
this Act, the regulations or a relevant management plan.
(4)
The Minister must cause written notice of any
conditions imposed, amended, revoked or suspended under this section to be
served on the holder of the access licence concerned.
(5)
A condition imposed or a change referred to in
subsection (4) takes effect on the day on which the notice referred to in that
subsection is served on the holder of the access licence or on such later day
as may be specified in the notice in that regard.
(6)
The regulations may make provision for or with
respect to the manner in which written notices may be given for the purposes
of this section.
[5]Section 71L How does a dealing
take effect?
Insert after section 71L (2):
(2A)
An application for the Minister’s consent
to a general dealing may also include an application for the Minister to
record the dealing in the Access Register in the event that the Minister
consents to the dealing. Any such application to record the dealing is taken
to have been made in accordance with subsection (2) regardless of when the
Minister’s consent is given.
[6]Section 77 Surrender of access
licences
Omit “The” from section 77 (1).
Insert instead “Subject to subsection (2B),
the”.
[7]Section 77
(2B)
Insert before section 77 (3):
(2B)
The Minister may, by written notice served on the
holder of the access licence, refuse to accept the surrender of the access
licence if the Minister considers it appropriate to do so or in such other
circumstances as may be prescribed by the regulations.
[8]Section 77
(4)
Omit the subsection. Insert instead:
(4)
Without limiting section 77A or 78, the Minister
may:
(a)
cancel a surrendered access licence,
or
(b)
record in the Access Register that the Minister
is the holder of the surrendered access licence.
[9]Section 77
(5)
Insert “(b)” after “Subsection
(4)”.
[10]Section 92 Applications for
approvals
Insert after section 92 (7):
(8)
An applicant for an approval may, by notice in
writing to the Minister, amend or withdraw the application for the approval at
any time before the application is determined.
[11]Section 95 Determination of
applications
Insert after section 95 (1):
(1A)
An approval may be granted unconditionally or
subject to such conditions as are required or permitted to be imposed under
Division 3.
[12]Section 95
(5)
Omit the subsection. Insert instead:
(5)
An approval takes effect on the day on which
notice of the decision to grant the approval has been given to the
applicant.
[13]Section
100A
Insert after section 100:
100AImposition of conditions on
granting of approval
A condition that is imposed when an approval is
granted takes effect on the day on which the approval takes
effect.
[14]Section 102 Imposition or
change of conditions after approval is granted
Insert after section 102 (5):
(6)
The regulations may make provision for or with
respect to the manner in which written notices may be given for the purposes
of this section.
[15]Section 107 Amendment of
approvals
Omit section 107 (1). Insert instead:
(1)
Without limiting any other power conferred by
another provision of this Act, the Minister may amend an approval:
(a)
on the application of the holder of the approval,
or
(b)
to create 2 or more approvals from a single
approval in such circumstances as may be prescribed by the regulations,
or
(c)
in such other circumstances as may be prescribed
by the regulations.
Note—
Section 109 (2A) also enables the Minister to
amend an approval to give effect to the suspension or cancellation of part of
the approval.
(1A)
Action under subsection (1) (b) or (c) may not be
taken in relation to an approval unless the Minister:
(a)
has given written notice to the holder of the
approval that the Minister proposes to take such action,
and
(b)
has given the holder of the approval a reasonable
opportunity to make submissions to the Minister with respect to the proposed
action, and
(c)
has taken any such submissions into
consideration.
[16]Section 107
(2)
Insert “remove,” after
“alter,”.
[17]Section 108 Surrender of
approvals
Omit “The” from section 108 (1).
Insert instead “Subject to subsection (1A),
the”.
[18]Section 108
(1A)
Insert after section 108 (1):
(1A)
The Minister may, by written notice served on the
holder of the approval, refuse to accept the surrender of the approval if the
Minister considers it appropriate to do so or in such other circumstances as
may be prescribed by the regulations.
[19]Section 108
(3)
Insert after section 108 (2):
(3)
Without limiting section 109, the Minister
may:
(a)
cancel a surrendered approval,
or
(b)
transfer the surrendered approval to the Minister
or to another person.
[20]Section 109 Suspension and
cancellation of approvals
Insert “(or any part of an approval)”
after “cancel an approval” in section 109
(1).
[21]Section 109
(2A)
Insert after section 109 (2):
(2A)
If the Minister suspends or cancels a part of an
approval, the Minister may amend the approval so as to give effect to that
suspension or cancellation.
[22]Section 113 Register of
approvals
Insert “transferred,” after
“amended,” in section 113 (1) (b).
[23]Section 368 Appeals to Land
and Environment Court
Insert after section 368 (1) (k):
(k1)
a decision to amend an approval otherwise than on
the basis of an application made by the holder of the
approval,
[24]Section 368 (1)
(l)
Insert “or part of an approval” after
“approval”.
[25]Section 368
(5A)
Insert after section 368 (5):
(5A)
If the Land and Environment Court directs that a
decision under appeal is stayed, the decision does not operate until the stay
ceases to have effect or the Land and Environment Court confirms the decision
or the appeal is withdrawn, whichever first occurs.
[26]Schedule 1A Access
Register
Omit clause 1 (3). Insert instead:
(3)
The Minister must not register any Ministerial
action (other than the grant of an access licence) until:
(a)
the end of the time permitted by section 368 (3)
for making an appeal with respect to the decision, or
(b)
if an appeal is made against the decision within
that time, at or after the time the appeal is finally disposed
of.
[27]Schedule 10 Conversion of
former entitlements to access licences and approvals
Omit clause 20 (2). Insert instead:
(2)
A replacement access licence or approval:
(a)
is to include any mandatory conditions that are
required to be imposed on the licence or approval, and
(b)
may include such other conditions (discretionary conditions) as the
Minister thinks fit, including (but not limited to) conditions relating to the
protection of the environment.
(2A)
Notice of any mandatory or discretionary
conditions of a replacement access licence or approval may be given in the
written notice given under subclause (1) or by one or more subsequent written
notices.
(2B)
Discretionary conditions imposed on a replacement
access licence or approval before the commencement of this subclause are taken
to have been validly imposed (and always to have been validly imposed) to the
extent that the conditions would have been validly imposed had subclauses (2)
and (2A) (as substituted or inserted by the Water Management
Amendment Act 2014) been in force at the time that they
were imposed.
1.11Amendments concerning
management plans
[1]Section 43A Extension of
duration of management plan dealing with water sharing
Omit “first anniversary” from section
43A (6). Insert instead “second
anniversary”.
[2]Section
45A
Insert after section 45:
45AConsolidation of management
plans
(1)
The Minister may, by order published on NSW
legislation website, consolidate 2 or more management plans by:
(a)
repealing one or more management plans and
amending another management plan to make provision with respect to the matters
dealt with by the repealed plan or plans, or
(b)
amending a management plan to make provision with
respect to the matters dealt with by one or more other plans that have expired
(or are to expire) by operation of section 43.
(2)
A consolidated management plan may contain
provisions of a savings or transitional nature consequent on the
consolidation.
(3)
The provisions of Division 9 (Compensation
relating to access licences) of Part 2 of Chapter 3 in relation to the
consolidation of management plans under this section have effect subject to
the following:
(a)
subject to paragraph (b), the consolidation of
the management plans does not affect any right to compensation that the holder
of an access licence would have had under section 87 or 87AA had the
consolidation not occurred,
(b)
the commencement of the 10-year period referred
to in section 87AA (6) (b) in its application to an expired or repealed plan
is to be calculated by reference to the 10-year period commencing on the date
on which the expired or repealed plan was due to expire rather than the date
on which the plan into which the provisions were consolidated ceases to be in
force.
(4)
Section 45 does not limit the circumstances in
which the Minister may repeal or amend a management plan under this section
(including a management plan that deals with water
sharing).
[3]Section
87AC
Insert after section 87AB:
87ACNo compensation payable for
reductions in water allocations under certain replacement management
plans
The holder of an access licence is not entitled
to any compensation in respect of reductions in water allocations for the
access licence resulting from provisions included in a management plan that
replaces another management plan if the replaced management plan authorised
the inclusion of amendments containing provisions of that kind in the replaced
management plan.
1.12Amendments concerning combined
approvals
[1]Chapter 3, Part 3, Division 2,
heading
Insert “and granting of” after
“for”.
[2]Section 95 Determination of
applications
Insert at the end of section 95 (1):
Note—
Section 99A enables the Minister to grant
combined approvals at the time an application is granted for one or more of
the approvals concerned or subsequently.
[3]Section 95
(2)
Omit the subsection.
[4]Section
99A
Insert after section 99:
99AGranting of combined
approvals
(1)
The Minister may, on application or on the
Minister’s own motion, grant 2 or more approvals by means of a single
approval document (a combined
approval).
(2)
A combined approval may be granted:
(a)
at the time an application for one or more of the
approvals is granted, or
(b)
by amending an existing approval (whether or not
a combined approval) to include additional
approvals.
Note—
Section 92 (4) provides that an application may
relate to more than one approval, whether of the same or of a different kind,
unless the Minister requires a separate application to be made in relation to
one or more of them.
(3)
A combined approval that is granted by amending
an existing approval must provide for a common expiry date for all of the
approvals.
(4)
A combined approval may:
(a)
deal with approvals with respect to the same or
different kinds of approvals or the same or different kinds of uses, works or
activities, and
(b)
provide for common terms and conditions, or
different terms and conditions, for some or all of the approvals
granted.
(5)
A combined approval is taken to have effect for
the purposes of this Act as if it were:
(a)
to the extent it contains an approval for water
use—a water use approval, or
(b)
to the extent it contains an approval for the
construction and use of a water supply work—a water supply work
approval, or
(c)
to the extent that it contains an approval for
the construction and use of a drainage work—a drainage work approval,
or
(d)
to the extent that it contains an approval for
the construction and use of a flood work—a flood work approval,
or
(e)
to the extent that it contains approval for the
carrying out of a controlled activity—a controlled activity approval,
or
(f)
to the extent that it contains approval for the
carrying out of an aquifer interference activity—an aquifer interference
approval.
(6)
Each approval granted by means of a combined
approval takes effect as provided by section 95 (5).
(7)
Section 98 (Notice of decision) does not apply
with respect to a determination to grant a combined approval that is made on
the Minister’s own motion.
(8)
Nothing in this section:
(a)
permits the Minister to grant an approval, or to
impose or alter terms or conditions of an approval, by means of a combined
approval otherwise than in accordance with the requirements of this Act for
that kind of approval, or
(b)
limits any right of appeal against a decision
made with respect to each kind of approval granted.
1.13Amendments concerning
floodplain harvesting access licences
[1]Section 57 Categories of
licence
Insert after section 57 (1) (k):
(k1)
floodplain harvesting (regulated river) access
licences,
(k2)
floodplain harvesting (unregulated river) access
licences,
[2]Section
57A
Insert after section 57:
57ASpecial provisions relating to
floodplain harvesting access licences
(1)
The regulations may make provision for or with
respect to the conversion of actual or proposed floodplain water usage by
landholders into any of the following categories or subcategories of
floodplain harvesting access licences (replacement floodplain harvesting access
licences):
(a)
floodplain harvesting (regulated river) access
licences,
(b)
floodplain harvesting (unregulated river) access
licences,
(c)
any other categories or subcategories of
floodplain harvesting access licences prescribed for the purposes of section
57 (1) (l) or (2).
(2)
Without limiting subsection (1), the regulations
may make provision for or with respect to the following:
(a)
the circumstances in which actual or proposed
floodplain water usage by landholders will give rise to replacement floodplain
harvesting access licences,
(b)
the terms and conditions of replacement
floodplain harvesting access licences,
(c)
the share components of replacement floodplain
harvesting access licences (including the process for the determination of
such share components),
(d)
the determination of applications for approvals
for flood works or other works (whether made under this Act or the Water Act 1912) in connection with
floodplains in respect of which replacement floodplain harvesting access
licences will arise,
(e)
the establishment, functions and procedure of
advisory committees to provide advice to the Minister on matters in connection
with any scheme prescribed by the regulations for the creation of replacement
floodplain harvesting access licences (including providing for the application
of section 397 to the acts or omissions of such committees or their
members).
(3)
Regulations made for the purposes of this section
have effect despite any provisions of this Act (including Schedule 10) that
are specified by the regulations.
(4)
A floodplain harvesting (regulated river) access
licence, or other category or subcategory of floodplain harvesting access
licence, that nominates a regulated river water source is taken to authorise
the taking of water from the floodplain for the river and, accordingly, any
water taken under that licence from that floodplain is to be treated as having
been taken from the regulated river water source for the purposes of this Act
or any management plan that applies to the river.
Note—
For example, the taking of water from a
floodplain under a floodplain harvesting (regulated river) access licence
otherwise than in accordance with the water allocation for the licence will be
an offence under section 60C even though it was not directly taken from the
regulated river to which the licence relates.
(5)
In this section:
floodplain water usage by
landholders means the taking or use of water by landholders (whether or not
under an approval, licence or other authority) from land that is, or is to
become, a floodplain.
Note—
The Dictionary defines floodplain to mean land declared by
the regulations to be a floodplain.
1.14Amendments concerning the
conversion of former entitlements into access licences
[1]
[2]Schedule 10, clause
25
Omit the clause. Insert instead:
25Water allocation
accounts
(1)Water allocation accounts
where appointed day before clause re-enactment day
Subclauses (2)–(5) apply with respect to a
replacement access licence if the appointed day in relation to the licence
occurred before the day on which this clause was substituted by the Water Management Amendment Act 2014 (the
clause
re-enactment day).
(2)
The first
reconciliation balance for the water allocation account for
a replacement access licence is the balance determined for the account as at 1
July of the next water year following the water year in which the appointed
day occurred.
Note—
A first reconciliation balance will usually have
been determined after the 1 July concerned following the collection of
relevant information such as, for example, meter
readings.
(3)
Subject to subclause (4), any balance (including
a zero balance) that appeared on the clause re-enactment day in the water
accounting system of the Department as the first reconciliation balance for
the water allocation account for a replacement access licence is taken to be
(and always to have been) the correct first reconciliation
balance.
Note—
This subclause extends to first reconciliation
balances that may have been revised or corrected after the appointed day but
before the clause re-enactment day.
(4)
The Minister may amend the first reconciliation
balance referred to in subclause (3) after the clause re-enactment day
if:
(a)
the Minister is satisfied, based on later and
more accurate information, that the balance was not correctly determined or
displayed, and
(b)
the clause re-enactment day occurred no later
than 2 years after the appointed day.
(5)
Without limiting section 367, a certificate
issued by the Minister that states that a specified balance (including a zero
balance):
(a)
was, or was not, the first reconciliation balance
for the water allocation account for the purposes of subclause (3),
or
(b)
was, or was not, the first reconciliation balance
for the water allocation account for the purposes of subclause (3), as amended
under subclause (4),
is admissible in any legal proceedings and is evidence
of the fact or facts so stated.
(6)Water allocations accounts
where appointed day on or after clause re-enactment day
Subclauses (7)–(9) apply with respect to an
access licence if the appointed day in relation to the licence occurs on or
after the clause re-enactment day.
(7)
On the appointed day, the balance for the water
allocation account for a replacement access licence or licences is taken to be
zero unless the regulations provide otherwise.
(8)
The regulations may make provision for or with
respect to the balances to be allocated to the water allocation accounts for
replacement access licences (whether generally or for the purposes of the
relevant management plan).
(9)
Without limiting subclause (8), the regulations
may make provision for or with respect to the following:
(a)
the allocation, calculation or determination of
balances for water allocation accounts for replacement access
licences,
(b)
the use of balances from existing water accounts
for former entitlements and other information in connection with the
allocation, calculation or determination of balances for water allocation
accounts for replacement access licences,
(c)
the correction or re-calculation of balances for
water allocation accounts for replacement access
licences.
(10)Definition
In this clause:
existing
water account, in relation to a former entitlement, means
the water account that, in accordance with the administrative practices
followed by the Director-General before the appointed day in relation to the
entitlement, was kept in relation to the entitlement.
water
year means a year commencing on 1
July.
1.15
sch 1: Am 1987 No 15,
sec 30C.
Schedule 2
sch 2: Rep 1987 No
15, sec 30C.
Schedule 3Consequential amendment of
other legislation
3.1Water
Management Amendment Act 2008 No 73
Schedule 4 Amendments relating
to access licences
Omit Schedule 4 [5], [6], [10] and
[11].
3.2Water Management (General) Regulation
2011
[1]Clause 4 Categories of access
licence
Omit clause 4 (1) (c).
[2]Schedule 3 Categories and
subcategories of licences
Omit the matter relating to Floodplain
harvesting.
Historical
notes
Table of amending
instruments
Water Management
Amendment Act 2014 No 48. Assented to 17.9.2014. Date of
commencement, except Schs 1.5, 1.7, 1.8 [4], 1.9, 1.10 [5]–[7]
[15]–[19] [22] [23] and [26], 1.14 [1] and [2], 1.15, 2 and 3.1,
1.1.2015, sec 2 (1) and 2014 (838) LW 19.12.2014; date of commencement of Schs
1.5, 1.7, 1.8 [4], 1.9, 1.10 [5]–[7] [15]–[19] [22] [23] and [26],
1.14 [2] and 3.1: not in force; date of commencement of Schs 1.14 [1], 1.15
and 2, assent, sec 2 (2).
This Act has been amended by sec 30C of the
Interpretation Act 1987 No
15.
Table of
amendments
Sch
1
Am 1987 No
15, sec 30C.
Sch
2
Rep 1987 No
15, sec 30C.