Division 2Provisions
relating to works
19Ownership of works
(1)
The Corporation is the owner of all works
installed in or on land by the Corporation and of all works in or on land
vested in or transferred to the Corporation (whether or not the land is owned
by the Corporation).
(1A)
Without limiting subsection (1), the Corporation
is the owner of all works on land that is:
(a)
within a special area, and
(b)
reserved under the National Parks
and Wildlife Act 1974 or vested in Her Majesty or the
Minister administering Part 11 of that Act.
(2)
The Corporation may, subject to this Act,
operate, repair, replace, maintain, remove, extend, expand, connect,
disconnect, improve or do any other things that are necessary or appropriate
to any of its works to ensure that, in the opinion of the Corporation, the
works are used in an efficient manner for the purposes for which they were
installed.
(3)
The Corporation may sell or otherwise deal with
works that it owns.
(4)
The provisions of this section have effect
despite anything contained in section 42 of the Real Property
Act 1900.
s 19: Am 2006 No 90,
Sch 9; 2009 No 17, Sch 3.10 [1].
20Entry on to land
The Corporation may, by authorised persons, enter
land in accordance with this Division for any one or more of the following
purposes:
(a)
to operate, repair, replace, maintain, remove,
extend, expand, connect, disconnect, improve or do any other things that the
Corporation considers are necessary or appropriate to any of its works or to
construct new works and, for these purposes, to carry out any work on, below
or above the surface of the land,
(b)
to read a meter that measures water supplied by
the Corporation or water discharged into the Corporation’s
sewers,
(c)
to find the source of pollution of water supplied
by the Corporation,
(d)
to ascertain whether a customer contract or other
contract for the provision of services by the Corporation is being breached in
relation to the connection to or use of works,
(e)
to rectify defective or improper work that has
not been rectified by a customer in accordance with a notice served by the
Corporation on the customer under a customer contract or other
contract,
(f)
to ascertain the character and condition of the
land or a building to enable the Corporation to operate, repair, replace,
maintain, remove, extend, expand, connect, disconnect or improve the systems
and services referred to in section 13 (1) or to construct new works for the
purposes of that subsection or section 12 (1),
(g)
to ascertain the condition and location of any
pipe, sewer, drain, channel or fitting or other work used in connection with
the land or a building to enable the Corporation to operate, repair, replace,
maintain, remove, extend, expand, connect, disconnect or improve the systems
and services referred to in section 13 (1) or to construct new works for the
purposes of that subsection or section 12 (1).
21Exercise of powers of entry
(1)
Before an authorised person enters any land or
building under a power conferred by this Division, the Corporation or an
authorised person must serve on the owner or occupier of the land or building
notice in writing of the intention to enter the land or building on a day
specified in the notice unless:
(a)
entry to any land or building is made with the
consent of the owner or occupier of the land or building,
or
(b)
entry is required urgently and the case is one in
which the board of the Corporation has authorised in writing (either generally
or in the particular case) entry without notice, or
(c)
entry is made solely for the purpose of reading a
meter that measures water supplied by the Corporation or water discharged into
the Corporation’s sewers if the meter is not in a dwelling-house or
building, or
(d)
the giving of notice would defeat the purpose for
which the power is to be exercised.
(2)
A power conferred by this Division to enter any
land or building may not be exercised unless the person proposing to exercise
the power:
(a)
is in possession of a certificate of authority
issued by an officer of the Corporation who has been authorised by the board
of the Corporation to issue such certificates, and
(b)
exercises the power at a reasonable time during
daylight, unless this would defeat the purpose for which the power is to be
exercised or the power is exercised in an emergency, and
(c)
produces the certificate of authority if required
to do so by the occupier of the land, and
(d)
uses no more force than is reasonably necessary
to effect the entry.
(3)
Nothing in this section authorises the use of
force to enter a dwelling-house or any enclosed part of a building occupied as
a dwelling or authorises the entry of such premises at night without the
consent of the owner or occupier of the premises.
(4)
A certificate of authority must:
(a)
state that it is issued under this Act,
and
(b)
give the name of the person to whom it is issued,
and
(c)
describe the nature of the powers conferred and
the source of the powers, and
(d)
state the date (if any) on which it expires,
and
(e)
if issued to an officer of the Corporation,
describe the general area or the land to which the power extends or, if issued
to an authorised person who is not an employee of the Corporation, describe
the land to which the power extends, and
(f)
bear the signature of the person by whom it is
issued and state the capacity in which the person is acting in issuing the
certificate.
(5)
The Minister may, if the Minister thinks fit, by
order published in the Gazette, attach conditions or restrictions to
certificates of authority issued under this Act, either generally or in
particular cases, including restrictions on the purposes for which and the
circumstances in which a power of entry may be
exercised.
s 21: Am 2016 No 55,
Sch 3.16.
22Compensation
(1)
The Corporation, in exercising its functions
under this Division, is to do as little damage as practicable and is, subject
to this Division, to compensate all persons who suffer damage by the exercise
of the functions.
(2)
Compensation may be made by reinstatement,
repair, construction of works or payment.
(3)
If the Corporation installs a sewer on land in
exercise of powers under this Division, the Corporation is required to pay
compensation only if the sewer damages, or interferes with, a building or
other structure on the land or if a manhole or main ventilator is constructed
on the land.
23Power to open roads
(1)
The Corporation may, for the purpose of complying
with the operating licence and after giving reasonable notice to persons
likely to be affected, open and break up:
(a)
the soil and pavement of a public road or public
reserve, and
(b)
any sewer, drain or tunnel in or under or any
ground under a public road or public reserve.
(2)
The person having the control and management of a
public road or public reserve may, as prescribed by the regulations, require
the Corporation to comply with conditions in exercising its powers under this
section, including conditions for restoration of the surface and removal of
rubbish.
(3)
If a public road or public reserve is damaged by
a leakage from, or a bursting of, a main of the Corporation, the person having
the control and management of the public road or public reserve may require
the Corporation to make good the damage without delay.
(4)
If the Corporation fails to comply with a
condition in force under subsection (2) or a requirement under subsection (3),
the person affected by the failure may remedy it and recover the cost of doing
so as a debt owed to the person by the Corporation.
24Altering position of conduit
(1)
The Corporation may serve a written notice on a
person if:
(a)
the Corporation, in order to comply with the
operating licence, needs an alteration to be made in the position of a conduit
owned by the person, and
(b)
the alteration would not permanently damage the
conduit or adversely affect its operation.
(2)
The notice must:
(a)
specify the alteration needed,
and
(b)
require the alteration to be made within a
reasonable time stated in the notice, and
(c)
include an undertaking by the Corporation to pay
the reasonable cost of the alteration.
(3)
If the alteration is not made as required by the
notice, the Corporation may make the alteration in a manner that does not
damage the conduit permanently or adversely affect its operation on completion
of the alteration.
(4)
In this section, conduit means anything that is
in or under a public road and is used for the conveyance of a substance,
energy or signals.
25Interference with works
(1)
Land in or on which a work of the Corporation is
installed is taken to be the subject of an agreement in the nature of a
covenant in favour of the Corporation pursuant to which the owner from time to
time of land in or on which the work is installed must ensure that:
(a)
the work or any structure owned by, or under the
control or management of, the Corporation is not wilfully or negligently
destroyed, damaged or interfered with, and
(b)
the Corporation and authorised persons are not
delayed or obstructed in and about the taking, in relation to the work, of any
of the steps referred to in section 19 (2), and
(c)
no structure is placed in, on or near the work in
a manner that interferes with the operation of the work,
and
(d)
ground is not opened to expose any pipe or other
work of the Corporation without reasonable excuse, or the consent of the
Corporation, and without giving the Corporation at least 2 days’ written
notice of intention to open the ground unless that requirement is waived by
the Corporation.
(2)
A lease, including a residential tenancy
agreement within the meaning of the Residential Tenancies Act
2010, is taken to include a term requiring the lessee of
land referred to in subsection (1) or any part of it to comply with the same
obligations, in relation to land, as are imposed by that subsection on the
owner who has leased the land to the lessee.
(3)
An agreement to which subsection (1) relates is
enforceable as if it were a covenant.
(4)
It is a defence to proceedings by the Corporation
under this section that the owner or, in a case to which subsection (2)
applies, the lessee, did not know of, or could not reasonably have prevented,
action taken by any person that would, if known to or capable of prevention by
the owner or lessee, have resulted in a breach of this section by the owner or
lessee.
(5)
A person who, on land in, on or near which any
work owned by the Corporation is installed, places a structure in, on or near
the work in a manner that interferes with the operation of the work, must, on
receiving a written notice from the Corporation requiring the removal of the
structure within a period specified in the notice, remove the structure and
compensate the Corporation for all loss or damage suffered by the Corporation
as a result of the placement of the structure in, on or near the
work.
(6)
If a person fails to comply with a notice under
subsection (5) within the period specified in the notice or within any
extension of that period allowed by the Corporation in writing, the
Corporation may remove the structure and recover from the person the cost of
the removal together with compensation for all loss or damage referred to in
that subsection.
(7)
The provisions of this section have effect
despite anything contained in section 42 of the Real Property
Act 1900.
s 25: Am 2009 No 17,
Sch 3.10 [2]; 2010 No 42, Sch 3.6.
26Compensation to Corporation for damage
(1)
Without limiting section 25, a person who,
without the consent of the Corporation, carries out any activity that causes
destruction of, damage to or interference with any work owned by the
Corporation in circumstances in which the person should have known that the
destruction, damage or interference would result from the carrying out of the
activity, is liable to compensate the Corporation for all loss or damage
suffered by the Corporation as a result.
(2)
The Corporation is not entitled to compensation
both under this section and another provision of this Act for the same
destruction, damage or interference.
(3)
In this section, person extends to any
person:
(a)
who caused the carrying out of the activity,
or
(b)
by whose order or direction the activity was
carried out, or
(c)
who aided, assisted, counselled or procured the
carrying out of the activity.
(4)
The Corporation may proceed against a person for
recovery of its loss or compensation for its damage under this section whether
or not the Corporation has proceeded against the person principally
responsible for the loss or damage or any other person involved in the
carrying out of the activity that caused the loss or
damage.
27Interference with works by trees
(1)
If the Corporation has reasonable cause to
believe that a tree is destroying, damaging or interfering with a work of the
Corporation, the Corporation may, by written notice, require the owner of the
land on which the tree is situated within a reasonable period specified in the
notice to remove the tree, including all roots of the tree that are or may be
destroying, damaging or interfering with the work.
(2)
The Corporation must reimburse the owner for the
reasonable expenses of any action taken by the owner under this section unless
the Corporation establishes that:
(a)
after the work was first laid or installed, an
owner or occupier planted the tree, or caused or permitted the tree to be
planted, in, on or near the work in circumstances in which the owner or
occupier should have known that destruction of, damage to or interference with
the work would result, or
(b)
the work of the Corporation is located, within
the land on which the tree has been planted, in land that is the subject of an
easement in favour of the Corporation or an easement for water supply,
sewerage or drainage purposes.
(3)
An owner given notice under this section may,
with the consent of the Corporation and without destroying, damaging or
interfering with the Corporation’s works, take steps, other than removal
of the tree, to eliminate the cause of the destruction of, damage to or
interference with the Corporation’s works and any reasonable expectation
of the destruction, damage or interference occurring in the
future.
(4)
No compensation is payable by the Corporation to
a person for the expenses of taking steps under subsection
(3).
(5)
If, in circumstances other than those referred to
in subsection (3), an owner fails to comply with a notice under this section
within the period specified in the notice or within any extension of that
period allowed by the Corporation in writing, the Corporation may remove the
tree at its own expense.
(6)
This section applies despite the existence of a
tree preservation order or environmental planning instrument but does not
apply to any tree that is the subject of or is within an area that is the
subject of:
(a)
to which an interim heritage order or listing on
the State Heritage Register under the Heritage Act
1977 applies or to which an order under section 136 of
that Act applies, or
(b)
an interim protection order under the National Parks and Wildlife Act 1974,
or
(c)
a protection conferred by any similar
law.
(7)
Nothing done by an owner of land in compliance
with a notice under this section or by the Corporation under subsection (5)
constitutes an offence against any law under which a tree preservation order
or environmental planning instrument relating to the land is
made.
(8)
In this section, tree includes shrub or other
plant.
s 27: Am 1998 No 138,
Sch 2.3.
28Corporation not liable to pay annual charge on pipes
etc
Section 611 of the Local
Government Act 1993 does not apply to the
Corporation.
s 28: Am 1993 No 32,
Sch 2.
Division 5Customer
contracts
35Publication of terms and conditions of customer
contracts
(1)
The terms and conditions of a customer contract
are to be set out in the operating licence.
(2)
(3)
The terms and conditions must include particulars
of the contract charges or of the manner in which the contract charges are to
be calculated or determined in relation to the provision of water supply or
sewerage services to customers by the Corporation.
(4)
s 35: Am 2003 No 40,
Sch 1.20 [1]–[3].
36Owner of land taken to have entered into customer
contract
(1)
An owner of land that is connected to a water
main or sewer main owned by the Corporation is taken to have entered into a
customer contract with the Corporation, on terms and conditions published
under section 35 as varied from time to time in accordance with section 38,
for the provision of water supply or sewerage services, or either of them, to
the land.
(2)
A customer contract is not unconscionable, harsh
or oppressive for the purposes of any law.
(3)
A customer contract does not operate so as to
impose obligations on the Corporation or any owner of land in respect of the
supply of water, or the provision of a sewerage service, during the term of
any contract in that regard entered into between the owner of the land and a
licensed retail supplier within the meaning of the Water Industry Competition Act
2006.
(4)
If:
(a)
the Corporation is a retailer of last resort
within the meaning of the Water Industry Competition Act
2006 in relation to any water supply or sewerage service,
and
(b)
a direction in relation to that service is given
to the Corporation under section 56 of that Act,
the Corporation and the owner are taken to have entered
into a special circumstances contract in such terms as are prescribed by the
regulations for the purposes of this subsection.
s 36: Am 2006 No 104,
Sch 3.4.
37Division not to apply to certain
contracts
This Division does not apply to the extent that
the terms and conditions of a contract for the provision of water supply or
sewerage services, or either of them, have been specifically agreed to by the
Corporation and a customer.
38Terms and conditions of customer contracts may be varied on
6 months’ notice
(1)
The terms and conditions of a customer contract
may, subject to the approval of the Governor, be varied by the Corporation
publishing, in the Gazette or on the NSW legislation website, an order setting
out or summarising the variation.
(1A)
Notice of the making of an order under this
section must be published, at least 6 months before the variation becomes
effective or within a shorter period approved by the Minister, in a manner
that the Corporation is satisfied is likely to bring the notice to the
attention of members of the public in the area of
operations.
(2)
A copy of an order published under this section
is to be given to the customer by the Corporation with the next account for
service charges issued after the date of publication of the order. Failure to
comply with this requirement does not affect the validity of the variation or
any contract charge made in accordance with the
variation.
(3)
A statement in an order published under this
section that the Governor has approved of the variation of the terms and
conditions set out or summarised in the order is prima facie evidence that the
Governor has approved of the variation of the terms and conditions unless the
contrary is proved.
(4)
Subsections (1)–(3) do not apply to the
variation of the terms and conditions of a customer contract to the extent
that the variation relates to alteration of the level of fees or charges and
the alteration is in accordance with a determination of the Independent
Pricing and Regulatory Tribunal.
(5)
Following variation of a customer contract,
copies of the contract and explanatory material concerning the contract are to
be made available to the public in such manner as the operating licence may
provide.
s 38: Am 2003 No 40,
Sch 1.20 [4]–[6]; 2018 No 25, Sch 2.15 [1]–[6].