Water Management Act 2000 No 92



An Act to provide for the protection, conservation and ecologically sustainable development of the water sources of the State, and for other purposes.
Chapter 1 Preliminary
1   Name of Act
This Act is the Water Management Act 2000.
2   Commencement
(1)  This Act commences on a day or days to be appointed by proclamation.
(2)  Different days may be appointed for the commencement of a single provision of Schedule 7 or 8 for the purpose of commencing the repeals or amendments effected by the provision on different days.
3   Objects
The objects of this Act are to provide for the sustainable and integrated management of the water sources of the State for the benefit of both present and future generations and, in particular—
(a)  to apply the principles of ecologically sustainable development, and
(b)  to protect, enhance and restore water sources, their associated ecosystems, ecological processes and biological diversity and their water quality, and
(c)  to recognise and foster the significant social and economic benefits to the State that result from the sustainable and efficient use of water, including—
(i)  benefits to the environment, and
(ii)  benefits to urban communities, agriculture, fisheries, industry and recreation, and
(iii)  benefits to culture and heritage, and
(iv)  benefits to the Aboriginal people in relation to their spiritual, social, customary and economic use of land and water,
(d)  to recognise the role of the community, as a partner with government, in resolving issues relating to the management of water sources,
(e)  to provide for the orderly, efficient and equitable sharing of water from water sources,
(f)  to integrate the management of water sources with the management of other aspects of the environment, including the land, its soil, its native vegetation and its native fauna,
(g)  to encourage the sharing of responsibility for the sustainable and efficient use of water between the Government and water users,
(h)  to encourage best practice in the management and use of water.
4   Interpretation
(1)  Words and expressions that are defined in the Dictionary at the end of this Act have the meanings set out in that Dictionary.
(1A)  A word or expression (not being a word or expression defined in the Dictionary to this Act) that is used in this Act and that is defined in the Real Property Act 1900 has the same meaning in this Act in relation to an access licence (or holding in an access licence) or dealing in such a licence (or holding) as it has in that Act in relation to land or an estate or interest in land.
(1B)  Subsection (1A) applies except in so far as the context or subject-matter otherwise indicates or requires.
(2)  Notes in the text of this Act do not form part of this Act.
s 4: Am 2004 No 39, Sch 3 [1].
4A   Meaning of “overland flow water”
(1)  In this Act, overland flow water means water (including floodwater, rainfall run-off and urban stormwater) that is flowing over or lying on the ground as a result of—
(a)  rain or any other kinds of precipitation, or
(b)  rising to the surface from underground, or
(c)  any other process or action of a kind prescribed by the regulations.
(2)  Water is flowing over the ground for the purposes of subsection (1) even if it flows over the ground by means of artificial structures such as roads, canals or road gutters.
(3)  However, subsection (1) does not include—
(a)  water that is collected from a roof (including water collected from a roof using a rainwater tank), or
(b)  water that is flowing over or lying on the bed of a river, lake or estuary, or
(c)  water flowing over or lying on the ground in such circumstances as may be prescribed by the regulations.
s 4A: Ins 2014 No 48, Sch 1.1 [1].
Chapter 2 Water management planning
Part 1 General
Division 1 Water management principles
5   Water management principles
(1)  The principles set out in this section are the water management principles of this Act.
(2)  Generally—
(a)  water sources, floodplains and dependent ecosystems (including groundwater and wetlands) should be protected and restored and, where possible, land should not be degraded, and
(b)  habitats, animals and plants that benefit from water or are potentially affected by managed activities should be protected and (in the case of habitats) restored, and
(c)  the water quality of all water sources should be protected and, wherever possible, enhanced, and
(d)  the cumulative impacts of water management licences and approvals and other activities on water sources and their dependent ecosystems, should be considered and minimised, and
(e)  geographical and other features of Aboriginal significance should be protected, and
(f)  geographical and other features of major cultural, heritage or spiritual significance should be protected, and
(g)  the social and economic benefits to the community should be maximised, and
(h)  the principles of adaptive management should be applied, which should be responsive to monitoring and improvements in understanding of ecological water requirements.
(3)  In relation to water sharing—
(a)  sharing of water from a water source must protect the water source and its dependent ecosystems, and
(b)  sharing of water from a water source must protect basic landholder rights, and
(c)  sharing or extraction of water under any other right must not prejudice the principles set out in paragraphs (a) and (b).
(4)  In relation to water use—
(a)  water use should avoid or minimise land degradation, including soil erosion, compaction, geomorphic instability, contamination, acidity, waterlogging, decline of native vegetation or, where appropriate, salinity and, where possible, land should be rehabilitated, and
(b)  water use should be consistent with the maintenance of productivity of land in the long term and should maximise the social and economic benefits to the community, and
(c)  the impacts of water use on other water users should be avoided or minimised.
(5)  In relation to drainage management—
(a)  drainage activities should avoid or minimise land degradation, including soil erosion, compaction, geomorphic instability, contamination, acidity, waterlogging, decline of native vegetation or, where appropriate, salinity and, where possible, land should be rehabilitated, and
(b)  the impacts of drainage activities on other water users should be avoided or minimised.
(6)  In relation to floodplain management—
(a)  floodplain management must avoid or minimise land degradation, including soil erosion, compaction, geomorphic instability, contamination, acidity, waterlogging, decline of native vegetation or, where appropriate, salinity and, where possible, land must be rehabilitated, and
(b)  the impacts of flood works on other water users should be avoided or minimised, and
(c)  the existing and future risk to human life and property arising from occupation of floodplains must be minimised.
(7)  In relation to controlled activities—
(a)  the carrying out of controlled activities must avoid or minimise land degradation, including soil erosion, compaction, geomorphic instability, contamination, acidity, waterlogging, decline of native vegetation or, where appropriate, salinity and, where possible, land must be rehabilitated, and
(b)  the impacts of the carrying out of controlled activities on other water users must be avoided or minimised.
(8)  In relation to aquifer interference activities—
(a)  the carrying out of aquifer interference activities must avoid or minimise land degradation, including soil erosion, compaction, geomorphic instability, contamination, acidity, waterlogging, decline of native vegetation or, where appropriate, salinity and, where possible, land must be rehabilitated, and
(b)  the impacts of the carrying out of aquifer interference activities on other water users must be avoided or minimised.
s 5: Am 2002 No 138, Sch 4 [1] [2]; 2016 No 27, Sch 1.33 [1].
Division 2 State Water Management Outcomes Plan and water source classification
6   State Water Management Outcomes Plan
(1)  The Governor may, by order published in the Gazette, establish a State Water Management Outcomes Plan for the development, conservation, management and control of the State’s water resources in furtherance of the objects of this Act.
(2)  The objects of a State Water Management Outcomes Plan are as follows—
(a)  to set the over-arching policy context, targets and strategic outcomes for the management of the State’s water sources, having regard to—
(i)  relevant environmental, social and economic considerations, and
(ii)  the results of any relevant monitoring programs,
(b)  to promote the water management principles established by this Act,
(c)  to give effect to any State government policy statement in relation to salinity strategies.
(3)  The State Water Management Outcomes Plan must be consistent with—
(a)  government obligations arising under any inter-governmental agreement to which the government is a party, such as the Murray-Darling Basin Agreement set out in Schedule 1 to the Water Act 2007 of the Commonwealth, and
(b)  government obligations arising in connection with any international agreement to which the government of the Commonwealth is a party, and
(c)  State government policy, including State government policy in relation to the environmental objectives for water quality and river flow.
(4)  For the purposes of this section, State government policy includes such matters as are declared by the regulations to be State government policy.
(5)  The regulations may make provision for or with respect to the public consultation procedures to be complied with in relation to the establishment or amendment of a State Water Management Outcomes Plan.
(6)  A State Water Management Outcomes Plan has effect for the period of 5 years commencing on the date on which it is published in the Gazette.
s 6: Am 2008 No 69, Sch 1 [1]; 2016 No 27, Sch 1.33 [2].
7   Classification of water sources
(1)  The Minister may, by order published in the Gazette, classify water sources for the purposes of this Act.
(2)  Such an order may only be made with the concurrence of the Minister for the Environment.
(3)  Water sources are to be classified as follows—
(a)  as to the extent to which they are at risk (that is, the extent to which harm to the water source or its dependent ecosystems is likely to occur),
(b)  as to the extent to which they are subject to stress (that is, the extent to which harm to the water source or its dependent ecosystems has occurred or is occurring),
(c)  as to the extent of their conservation value (that is, the extent to which their intrinsic value merits protection from risk and stress).
(4)  It is the intention of Parliament that, within 12 months after the date of assent to this Act—
(a)  the water sources of the State be classified in accordance with this section, and
(b)  bulk access regimes be established for such of those water sources as are classified high risk, high stress or high conservation value.
(5)  A bulk access regime referred to in subsection (4) (b) is to be established by means of a Minister’s plan made, in the case of a water source that is within a water management area for which a management committee has been established, in consultation with that committee.
(6)  A bulk access regime referred to in subsection (4) (b) has effect for 10 years from the date on which it is established, but may be varied under section 45 as if it had been established by a management plan, in which case section 87 applies accordingly.
(7)  The regulations may prescribe rules in accordance with which water sources are to be classified for the purposes of this Act.
s 7: Am 2008 No 73, Sch 6 [1]; 2018 No 31, Sch 1 [1].
8   Environmental water
(1)  For the purposes of this Act, environmental water comprises the following—
(a)  water that is committed by management plans for fundamental ecosystem health or other specified environmental purposes, either generally or at specified times or in specified circumstances, and that cannot to the extent committed be taken or used for any other purpose (planned environmental water),
(b)  water (licensed environmental water) that is—
(i)  committed by an adaptive environmental water condition under section 8B, 8C, 8D or 63B, or
(ii)  taken or permitted to be taken under a licence of an environmental subcategory, or
(iii)  taken or permitted to be taken under a licence of a class prescribed by the regulations for the purposes of this paragraph.
(1A)  A management plan is to commit water as planned environmental water in at least 2 of the following ways (whether by 2 separate ways or a combination of 2 ways)—
(a)  by reference to the commitment of the physical presence of water in the water source,
(b)  by reference to the long-term average annual commitment of water as planned environmental water,
(c)  by reference to the water that is not committed after the commitments to basic landholder rights and for sharing and extraction under any other rights have been met.
(2)  A management plan must contain provisions for the identification, establishment and maintenance of planned environmental water (environmental water rules). The environmental water rules relating to a water source do not need to specify that a minimum quantity of water is required to be present in the water source at all times.
(3)  Environmental water rules are to be established for all of the water sources in the State as soon as practicable after the commencement of this section.
(4)    (Repealed)
s 8: Subst 2004 No 39, Sch 1 [1]. Am 2005 No 118, Sch 1 [1]; 2010 No 133, Sch 2 [1] [2].
8A   Planned environmental water
(1)  The Minister may cancel any category or subcategory of licence prescribed by the regulations that is held by the Minister and commit an equivalent amount of water as determined in accordance with the management plan as planned environmental water for the water source to which the licence related.
(2)  Planned environmental water committed under this section is to be used for only those purposes specified in the relevant management plan.
(3)  Sections 78, 78A and 87 do not apply to the cancellation of an access licence under this section.
s 8A: Ins 2005 No 118, Sch 1 [2]. Am 2008 No 73, Sch 6 [2]; 2010 No 133, Sch 2 [3]; 2014 No 48, Sch 1.2 [1].
8B   Adaptive environmental water through dedication of existing water entitlements
(1)  The holder of an access licence may request that the Minister impose an adaptive environmental water condition in respect of the whole or a part of the access licence.
(2)  A condition imposed under this section may be amended, and is to be revoked, by the Minister at the request in writing of the holder of the access licence, except as provided by the regulations.
s 8B: Ins 2005 No 118, Sch 1 [2]. Am 2010 No 133, Sch 2 [4] [5].
8C   Adaptive environmental water through system improvements
(1)  The Minister may grant an access licence of a category or subcategory determined by the Minister to the Minister, Local Land Services or another public body, without the need for an application to be made for the licence in accordance with Part 2 of Chapter 3, so long as—
(a)  works or other actions result in water savings in the system being made in the water source in respect of which the licence is granted, and
(b)  the share component of the licence is equivalent to the value of water savings in the system made, and
(c)  an adaptive environmental water condition is imposed on the licence.
(2)  In this section, system means that part of a water source to which a management plan applies that is not identified by the plan for commitments to basic landholder rights and for sharing and extraction under any other rights.
s 8C: Ins 2005 No 118, Sch 1 [2]. Am 2010 No 133, Sch 2 [6]; 2013 No 51, Sch 7.53 [1].
8D   Adaptive environmental water conditions after surrender of licences
(1)  The Minister may keep an access licence surrendered by the holder of the licence or transfer it to Local Land Services or another public body, and may change the licence to a different category or subcategory, if—
(a)  the share component of the licence is equivalent to the share component of the surrendered licence (subject to the application of any conversion factor prescribed by the access licence dealing principles or the regulations), and
(b)  an adaptive environmental water condition is or has been imposed on the licence.
(2)  The Minister may cancel an access licence surrendered by the holder of the licence and transfer the share component of the surrendered licence (subject to the application of any conversion factor prescribed by the access licence dealing principles or the regulations) to another licence if an adaptive environmental water condition is or has been imposed on the licence.
s 8D: Ins 2005 No 118, Sch 1 [2]. Subst 2010 No 133, Sch 2 [7]. Am 2013 No 51, Sch 7.53 [1].
8E   General provisions relating to access licences with adaptive environmental water conditions
(1)  This section applies to access licences that are subject to an adaptive environmental water condition.
(2)  For the purposes of this Act (but subject to section 8B (2)), an adaptive environmental water condition is a mandatory condition.
(3)  The terms of an adaptive environmental water condition imposed in respect of an access licence are to further the objectives of the relevant management plan.
(4)  If the adaptive environmental water condition on an access licence requires the water to be left in the water source for environmental purposes, then the water allocation account is to be debited when the water is available in accordance with the condition.
(5)  If the adaptive environmental water condition requires the environmental water to be taken from the water source then the water allocation account is to be debited when it is taken.
(6)    (Repealed)
(7)  Before imposing an adaptive environmental water condition on an access licence, the Minister is to approve a plan for the implementation of the condition.
(8)  The Minister is to ensure that the plan referred to in subsection (7), and a requirement to comply with the plan, forms part of the adaptive environmental water condition.
(9)  An access licence to which this section applies, or a part of such a licence to which the adaptive environmental water condition concerned is expressed to relate, may be the subject of a dealing in accordance with this Act if the plan approved under subsection (7) so provides.
s 8E: Ins 2005 No 118, Sch 1 [2]. Am 2010 No 133, Sch 2 [8].
8F   Auditing of compliance with extraction limits
(1)  This section applies for the purpose of auditing compliance with the long-term extraction limit (however expressed) under a management plan.
(2)  The long-term extraction limit is taken to be varied by the amount of any change to the amount of water committed as licensed environmental water.
(3)  The variation in the long-term extraction limit is to be determined in accordance with a methodology approved by the Minister and published in the Gazette.
(4)  To avoid doubt, water savings in a system (within the meaning of section 8C) are not to be taken into account when determining the variation.
(5)  Water committed as licensed environmental water is not to be accounted for as extraction.
s 8F: Ins 2010 No 133, Sch 2 [9].
Division 3 General
9   Act to be administered in accordance with water management principles and State Water Management Outcomes Plan
(1)  It is the duty of all persons exercising functions under this Act—
(a)  to take all reasonable steps to do so in accordance with, and so as to promote, the water management principles of this Act, and
(b)  as between the principles for water sharing set out in section 5 (3), to give priority to those principles in the order in which they are set out in that subsection.
(2)  It is the duty of all persons involved in the administration of this Act to exercise their functions under this Act in a manner that gives effect to the State Water Management Outcomes Plan.
10   Review of work and activities of Department
(1)  The Minister is to ensure that the work and activities of the Department are reviewed at intervals of not more than 5 years for the purpose of determining whether they have been effective in giving effect to the water management principles of this Act and the State Water Management Outcomes Plan.
(2)  The results of each review under this section are to be included in the relevant annual reporting information prepared for the Department under the Government Sector Finance Act 2018.
s 10: Am 2018 No 70, Sch 4.117[1].
Part 2 Management committees
11   Constitution of water management areas
(1)  The Minister may, by order published in the Gazette, constitute any land as a water management area.
(2)  An order under this section must name the area and fix its boundaries.
12   Establishment of management committees
(1)  The Minister may, by order published in the Gazette—
(a)  establish a management committee to carry out a specific task in relation to water management in a water management area, and
(b)  set terms of reference in accordance with which the committee is to carry out that task.
(2)  The task for which a management committee is appointed may relate to any aspect of water management, including (without limitation) water sharing, water source protection, floodplain management and drainage management.
(3)  At any time the Minister may, by order published in the Gazette, abolish a management committee, and may do so whether or not it has completed the task for which it was established.
(4)  Nothing in this section prevents the establishment of two or more committees for the same water management area so long as they do not have overlapping functions.
13   Membership of committee
(1)  A management committee consists of at least 12, but not more than 20, members appointed by the Minister, of whom—
(a)  at least two are to be persons appointed to represent the interests of environmental protection groups, and
(b)  at least two are to be persons appointed to represent the interests of water user groups, and
(c)  at least two are to be persons appointed to represent the interests of local councils, and
(d)  at least one is to be a person nominated by Local Land Services, and
(e)  at least two are to be Aboriginal persons appointed to represent the interests of Aboriginal persons, and
(f)  at least one is to be a member of staff of the Department, and
(g)  at least one is to be a person nominated by the Minister for the Environment, and
(h)  such other persons as are appointed to represent such interests as the Minister considers require representation, and
(i)  one is to be a person (not being a member of staff of the Department) who is appointed as an independent chairperson for the committee.
(2)  The regulations may make provision with respect to qualifications for appointment as a member of a management committee.
(3)  The members appointed as referred to in subsection (1) (a)–(e) should, as far as practicable, be persons who reside within the water management area for which the management committee is being constituted.
(4)  Schedule 6 has effect with respect to the constitution and procedure of a management committee.
s 13: Am 2001 No 56, Sch 1.22 [1]; 2004 No 39, Sch 1 [2]; 2008 No 73, Sch 6 [1]; 2013 No 51, Sch 7.53 [2]; 2018 No 31, Sch 1 [1].
14   Functions of management committees
(1)  The principal function of a management committee is to carry out the task for which it is appointed.
(2)  The task for which a committee is appointed may include any one or more of the following—
(a)  to prepare a draft management plan for the whole or any part of the management area or of the water sources in the area,
(b)  to review a management plan that is in force in the water management area,
(c)  to investigate such matters affecting the management of the water management area as the Minister refers to it for investigation,
(d)  to report to the Minister on such matters affecting the management of the water management area as the Minister refers to it for report,
(e)  to advise the Minister on such matters affecting the management of the water management area as the Minister refers to it for advice.
(3)  It is the duty of a management committee to exercise its functions consistently with the principles of ecologically sustainable development.
s 14: Am 2004 No 39, Sch 1 [3] [4].
Part 3 Management plans
Division 1 Preliminary
15   Preparation of draft management plan
(1)  The Minister may, by the order by which a management committee is established or by a subsequent order in writing—
(a)  direct the committee to prepare a draft management plan, and review any related implementation program, on any aspect of water management, including (but not limited to)—
(i)  water sharing, and
(ii)  water source protection, and
(iii)  drainage management, and
(iv)  floodplain management, and
(b)  set terms of reference in accordance with which such a plan is to be prepared.
(2)  A management committee to which such an order is given is to prepare a draft management plan in accordance with the terms of reference specified in the order.
(3)  If the management committee fails to prepare a draft management plan in accordance with its terms of reference, the Minister may make a Minister’s plan under section 50 in respect of the matter.
(4)    (Repealed)
s 15: Am 2004 No 39, Sch 1 [5].
16   Management plans to be consistent with other instruments
(1)  A management plan must be consistent with—
(a)  the State Water Management Outcomes Plan, and
(b)  any State environmental planning policy under the Environmental Planning and Assessment Act 1979, and
(c)  any protection of the environment policy under the Protection of the Environment Operations Act 1997, and
(d)  any regulation under the Water NSW Act 2014 or the Googong Dam Catchment Area Act 1975, and
(e)  State government policy, including State government policy in relation to the environmental objectives for water quality and river flow.
(2)  For the purposes of this section, State government policy includes such matters as are declared by the regulations to be State government policy.
s 16: Am 2008 No 69, Sch 1 [1]; 2014 No 74, Sch 3.43 [1].
17   Provisions applicable to all management plans
A management plan may, in respect of a water management area or water source to which it applies, contain the following kinds of provisions—
(a)  provisions with respect to the preservation and enhancement of the quality of water,
(b)  provisions with respect to the kinds of monitoring and reporting requirements that should be imposed as conditions of approvals,
(c)  provisions with respect to the conditions to which access licences and approvals are to be subject,
(d)  provisions indicating the circumstances in which, the matters in respect of which and the extent to which the management plan may be amended by the Minister during the period for which it is in force,
(e)  provisions with respect to such other matters as may be authorised by the regulations.
s 17: Am 2004 No 39, Sch 1 [6]–[8]; 2018 No 31, Sch 1 [2].
18   Matters for consideration
(1)  In formulating a draft management plan, the management committee must have due regard to the socio-economic impacts of the proposals considered for inclusion in the draft plan.
(1A)  In formulating a draft management plan, the management committee must also have due regard to the provisions of any relevant local strategic plan under the Local Land Services Act 2013.
(2)  Due regard may also be had, in the formulation of the plan’s proposals, to the effect within each water management area or water source to which the plan applies of activities occurring, or likely to occur, outside each such area or water source.
s 18: Am 2002 No 138, Sch 1 [1]; 2004 No 39, Sch 1 [9]; 2013 No 51, Sch 7.53 [3].
Division 2 Water sharing
19   Application of Division
(1)  This Division applies to the provisions of a management plan to the extent to which they deal with water sharing.
(2)  The water sharing provisions of a management plan may apply to the whole or any part of a water management area, or to the whole or any part of one or more water sources within a water management area.
s 19: Am 2002 No 138, Sch 1 [2] [3].
20   Core provisions
(1)  The water sharing provisions of a management plan for a water management area or water source must deal with the following matters—
(a)  the establishment of environmental water rules for the area or water source,
(b)  the identification of requirements for water within the area, or from the water source, to satisfy basic landholder rights,
(c)  the identification of requirements for water for extraction under access licences,
(d)  the establishment of access licence dealing rules for the area or water source,
(e)  the establishment of a bulk access regime for the extraction of water under access licences, having regard to the rules referred to in paragraphs (a) and (d) and the requirements referred to in paragraphs (b) and (c).
(2)  The bulk access regime referred to in subsection (1) (e)—
(a)  must recognise and be consistent with any limits to the availability of water that are set (whether by the relevant management plan or otherwise) in relation to the water sources to which the regime relates, and
(b)  must establish rules according to which access licences are to be granted and managed and available water determinations to be made, and
(c)  must recognise the effect of climatic variability on the availability of water, and
(d)  may establish rules with respect to the priorities according to which water allocations are to be adjusted as a consequence of any reduction in the availability of water, and
(e)  may contain provisions with respect to the conditions that must (as mandatory conditions) be imposed on access licences under section 66 (1), including conditions providing for the variation, from time to time, of the share and extraction components of access licences, and
(f)  must be consistent with the water management principles.
(3)  The rules referred to in subsection (2) (d) must comply with the priorities established under section 58.
(4)  The access licence dealing rules established under subsection (1) (d)—
(a)  must comply with the access licence dealing principles, and
(b)  must not deal with any matter for which the access licence dealing principles may make provision under section 71Z (2), and
(c)  subject to paragraph (b) and the access licence dealing principles, may regulate or prohibit any dealing under Division 4 of Part 2 of Chapter 3.
s 20: Am 2002 No 138, Sch 1 [4]–[10]; 2003 No 40, Sch 2.30 [1]; 2004 No 39, Sch 1 [10]; 2005 No 118, Sch 1 [3] [4]; 2010 No 133, Sch 2 [10].
21   Additional provisions
The water sharing planning provisions of a management plan for a water management area or water source may also deal with the following matters—
(a)  the rates, times and circumstances under which water may be taken from any water source in the area, or the quantity of water that may be taken from any water source in the area or delivered through the area,
(b)  the kinds of water supply works that may be constructed and used in the area,
(c)  the operation of water accounts for the area or water source, such as the carrying over of credits from one accounting period to the next, the maximum credit that may be allowed to accumulate in any account and the withdrawal of water from any account by reason of evaporation or dam spill or in such other circumstances as may be prescribed by the regulations,
(d)  water sharing measures for the protection and enhancement of the quality of water in the water sources in the area or for the restoration or rehabilitation of water sources or their dependent ecosystems,
(e)  measures to give effect to the water management principles and the objects of this Act,
(e1)  measures, not inconsistent with this Act, that are necessary because of requirements arising under the Water Act 2007 of the Commonwealth,
(f)  such other matters as are prescribed by the regulations.
s 21: Am 2002 No 138, Sch 1 [4]; 2004 No 39, Sch 4 [1]; 2018 No 31, Sch 1 [3].
Division 3 Water use
22   Application of Division
(1)  This Division applies to the provisions of a management plan to the extent to which they deal with water use.
(2)  The water use provisions of a management plan may apply to the whole or any part of a water management area.
s 22: Am 2002 No 138, Sch 1 [2] [11].
23   Core provisions
The water use provisions of a management plan for a water management area must deal with the following matters—
(a)  the identification of existing and potential water use practices and related activities,
(b)  the identification of those uses and activities which have adverse impacts, including cumulative impact, on water sources or their dependent ecosystems or on other water users,
(c)  the identification of the occurrence of land degradation, including soil erosion, compaction, geomorphic instability, contamination, acidity, waterlogging, decline of native vegetation or, where appropriate, salinity within the area and any impacts on water sources.
24   Additional provisions
The water use provisions of a management plan for a water management area may also deal with the following matters—
(a)  best practice for water conservation, water efficiency and total water cycle management,
(b)  prevention of off-site impacts of water use,
(c)  requirements for the restoration or rehabilitation of land or water sources or their dependent ecosystems,
(d)  protection of the habitats or pathways of animals and plants,
(e)  the preservation and enhancement of the quality of water of the water sources in the area affected by water use and related practices,
(f)  structural or operational modifications for existing works,
(g)  other measures to give effect to the water management principles and the objects of this Act,
(h)  such other matters as are prescribed by the regulations.
Division 4 Drainage management
25   Application of Division
(1)  This Division applies to the provisions of a management plan to the extent to which they deal with drainage management.
(2)  The drainage management provisions of a management plan may apply to the whole or any part of a water management area.
s 25: Am 2002 No 138, Sch 1 [2] [12].
26   Core provisions
The drainage management provisions of a management plan for a water management area must deal with the following matters—
(a)  the identification of the existing and natural hydrological regimes in the area,
(b)  the identification of existing drainage works in the area and the way they are managed,
(c)  the ecological impacts and impacts on water quality, including cumulative impacts, of the drainage works in the area.
27   Additional provisions
The drainage management provisions of a management plan for a water management area may also deal with the following matters—
(a)  proposals for the construction of new drainage works,
(b)  the modification or removal of existing drainage works,
(c)  restoration or rehabilitation of land, habitats, water sources or their dependent ecosystems,
(d)  the preservation and enhancement of the quality of water of the water sources in the area affected by drainage management,
(e)  other measures to give effect to the water management principles and the objects of this Act,
(f)  such other matters as are prescribed by the regulations.
Division 5 Floodplain management
28   Application of Division
(1)  This Division applies to the provisions of a management plan to the extent to which they deal with floodplain management.
(2)  The floodplain management provisions of a management plan may apply to the whole or any part of a water management area.
s 28: Am 2002 No 138, Sch 1 [2] [13].
29   Core provisions
The floodplain management provisions of a management plan for a water management area must deal with the following matters—
(a)  identification of the existing and natural flooding regimes in the area, in terms of the frequency, duration, nature and extent of flooding,
(b)  the identification of the ecological benefits of flooding in the area, with particular regard to wetlands and other floodplain ecosystems and groundwater recharge,
(c)  the identification of existing flood works in the area and the way they are managed, their benefits in terms of the protection they give to life and property, and their ecological impacts, including cumulative impacts,
(d)  the risk to life and property from the effects of flooding.
30   Additional provisions
The floodplain management provisions of a management plan for a water management area may also deal with the following matters—
(a)  proposals for the construction of new flood works,
(b)  the modification or removal of existing flood works,
(c)  restoration or rehabilitation of land, water sources or their dependent ecosystems, in particular in relation to the following—
(i)  the passage, flow and distribution of floodwater,
(ii)  existing dominant floodways and exits from floodways,
(iii)  rates of flow, floodwater levels and duration of inundation,
(iv)  downstream water flows,
(v)  natural flood regimes, including spatial and temporal variability,
(d)  the control of activities that may affect or be affected by the frequency, duration, nature or extent of flooding within the water management area,
(e)  the preservation and enhancement of the quality of water in the water sources in the area during and after flooding,
(f)  other measures to give effect to the water management principles and the objects of this Act,
(g)  such other matters as are prescribed by the regulations.
Division 6 Controlled activities and aquifer interference activities
31   Application of Division
(1)  This Division applies to the provisions of a management plan to the extent to which they deal with controlled activities and aquifer interference activities.
(2)  The controlled activity and aquifer interference activity provisions of a management plan may apply to the whole or any part of a water management area.
s 31: Am 2002 No 138, Sch 1 [2] [14].
32   Core provisions
The controlled activity and aquifer interference activity planning provisions of a management plan for a water management area must deal with the following matters—
(a)  identification of the nature of any controlled activities or aquifer interference causing impacts, including cumulative impacts, on water sources or their dependent ecosystems, and the extent of those impacts,
(b)  specification of controlled activities or aquifer interferences which are to require controlled activity approvals or aquifer interference approvals in the area.
s 32: Am 2001 No 56, Sch 1.22 [2] (am 2001 No 112, Sch 2.33 [1]); 2002 No 138, Sch 1 [15].
33   Additional provisions
The controlled activity and aquifer interference activity provisions of a management plan for a water management area may also deal with the following matters—
(a)  the undertaking of work for the purpose of restoring or rehabilitating a water source or its dependent ecosystems,
(b)  protecting, restoring or rehabilitating the habitats or pathways of animals and plants,
(c)  specific controls on activities causing unacceptable impacts,
(d)  the preservation and enhancement of the quality of water in the water sources in the area affected by controlled activities or aquifer interference,
(e)  other measures to give effect to the water management principles and the objects of this Act,
(f)  such other matters as are prescribed by the regulations.
s 33: Am 2001 No 56, Sch 1.22 [3].
Division 7 Environmental protection
34   Environmental protection provisions
(1)  A management plan for a water management area, or any part of a water management area, may contain the following provisions (environmental protection provisions) in respect of any aspect of water management—
(a)  provisions identifying zones in which development should be controlled in order to minimise any harm to water sources in the area or to minimise any threat to the floodplain management provisions of the plan,
(b)  provisions identifying development that should be controlled in any such zone,
(c)  provisions identifying the manner in which any such development should be controlled in any such zone,
(d)  provisions to which State agencies and local authorities (including local councils) should be subject when taking action and making decisions concerning any such development,
(e)  provisions requiring development consent to the carrying out of any such development,
(f)  provisions requiring the Minister’s concurrence to the granting of any such development consent,
(g)  provisions requiring the establishment of action plans to encourage the abandonment of existing uses that cause harm to water sources, and to encourage the carrying out of remedial measures to minimise or alleviate any harm already caused to water sources by the continuance of existing uses.
(2)  In this section, control, development, development consent and existing use have the same meanings as they have in the Environmental Planning and Assessment Act 1979.
s 34: Am 2002 No 138, Sch 1 [16].
Division 8 Procedures for making management plans
35   Format of management plan
(1)  A management plan must include the following components—
(a)  a vision statement,
(b)  objectives consistent with the vision statement,
(c)  strategies for reaching those objectives,
(d)  performance indicators to measure the success of those strategies.
(2)  In the case of a water management area for which an equivalent management plan is already in force, the draft management plan may be in the form of—
(a)  an amendment to the existing management plan, or
(b)  a new plan to replace the existing management plan.
(3)  Subject to subsections (1) and (2), the format of a management plan is to be as determined by the Minister.
36   Notification of certain persons and bodies
(1)  In preparing a draft management plan, the following information must be notified to each person or body referred to in subsection (2)—
(a)  the general aims and objectives of the draft plan,
(b)  a description of the water management area to which the draft plan is intended to apply,
(c)  such other matters as the Minister thinks fit.
(2)  The persons and bodies to be notified are as follows—
(a)  each local council within whose area the water management area is located,
(b)  Local Land Services,
(c)  each holder of an access licence or approval in respect of land within the water management area,
(d)  such other persons or bodies as the Minister may determine in relation to the plan.
(3)  Failure to notify a person or body referred to in subsection (2) does not affect the validity of a management plan.
(4)  A person to whom information is notified under this section may make written submissions to the Minister in relation to the preparation of the draft management plan within 28 days (or such longer period as may be determined by the Minister) after the information is notified.
s 36: Am 2003 No 104, Sch 5.5 [1]; 2013 No 51, Sch 7.53 [4].
37   Reference of draft management plan to Minister
(1)  After a draft management plan has been prepared, including a draft management plan that has been referred back to it under this section, the management committee must submit the plan to the Minister.
(2)  If the Minister is of the opinion that the draft plan does not comply with the requirements of this Part, the Minister is to refer the draft plan back to the management committee for further consideration.
(3)  This section does not apply to a draft management plan prepared by the Minister.
38   Public exhibition of draft management plan
(1)  Once the Minister is satisfied that a draft management plan is suitable for public exhibition, the Minister—
(a)  must give public notice of the draft plan, and
(b)  must exhibit the draft plan (together with such other information as is appropriate or necessary to enable the draft plan and its implications to be understood) at the places, on the dates and during the times set out in the notice.
(2)  The public notice referred to in subsection (1) (a)—
(a)  must specify the places at which, the dates on which, and the times during which, the draft plan may be inspected by the public, and
(b)  must specify a period of at least 40 days during which submissions may be made to the Minister in relation to the plan (the submission period), and
(c)  must be published in the authorised manner.
(3)  In the case of a draft management plan containing environmental protection provisions, the Minister must consult with the Minister for Urban Affairs and Planning before making a decision as to whether the plan is suitable for public exhibition.
s 38: Am 2008 No 73, Sch 5 [1]; 2018 No 31, Sch 1 [4].
39   Submissions on draft management plan
(1)  During the submission period, any person may make written submissions to the Minister on the draft management plan.
(2)  The Minister must send a copy of each such submission to the management committee by which the plan was prepared.
(3)  Subsection (2) does not apply to a draft management plan prepared by the Minister.
40   Resubmission of draft management plan to Minister
(1)  As soon as practicable after completing its consideration of any submissions received by it, the management committee must resubmit the draft management plan to the Minister together with the committee’s comments on the submissions.
(2)  Before making any alterations to the draft management plan, the Minister must consult with the management committee.
(3)  This section does not apply to a draft management plan prepared by the Minister.
41   Making of management plan
(1)  After complying with the requirements of this Part, the Minister—
(a)  may, by order published on the NSW legislation website, make a management plan in accordance with the draft plan, as finally submitted to the Minister, or
(b)  may, by order published on the NSW legislation website, make a management plan in accordance with the draft plan, as finally submitted to the Minister, but with such alterations as the Minister thinks fit, or
(c)  may cause the draft management plan to be re-exhibited (with such alterations as the Minister thinks fit) and resubmitted in accordance with this Part, or
(d)  may decide not to proceed with the draft management plan.
(2)  Before making a management plan, the Minister must obtain the concurrence of the Minister for the Environment to the making of the plan.
(3)  A management plan commences on the date on which it is published on the NSW legislation website or on such later date as may be specified in the plan.
s 41: Am 2005 No 118, Sch 1 [5]; 2008 No 73, Sch 6 [1]; 2009 No 110, Sch 1 [1]; 2018 No 31, Sch 1 [1].
42   Amendment of management plans
(1)  A management plan may be amended by a subsequent management plan made in accordance with this Part.
(2)  This section does not limit the operation of Division 9.
(3)  Each management plan specified in Schedule 12 is amended as set out in that Schedule.
(4)  The amendment of a management plan by this or any other Act does not prevent its later amendment or repeal in accordance with this Act.
s 42: Am 2004 No 39, Sch 1 [11]; 2005 No 118, Sch 1 [6].
43   Duration of management plans
(1)  Subject to section 43A, a management plan has effect for—
(a)  if the plan commenced on 1 July in any year—10 years commencing on that date, or
(b)  in any other case—10 years commencing on 1 July next after the date the plan commenced.
(2)  In the 5 years before its expiry, the Minister is to review each management plan (other than provisions dealing with water sharing) for the purpose of ascertaining whether its provisions remain adequate and appropriate for ensuring the effective implementation of the water management principles.
(3)  Such a review is to be conducted in consultation with the Minister for the Environment and the Natural Resources Commission.
(4)  A new management plan may be made in accordance with this Act to replace an earlier management plan. Any such replacement plan may contain provisions of a savings or transitional nature consequent on the replacement of the plan.
s 43: Am 2004 No 39, Sch 1 [12]–[15]; 2008 No 73, Sch 6 [1]; 2018 No 31, Sch 1 [5]; 2022 No 59, Sch 1.38[1] [2].
43A   Extension of duration of management plan dealing with water sharing
(1)  The Minister may, on the recommendation of the Natural Resources Commission and by notice published in the Gazette before its expiry under section 43 or this section, extend a management plan that deals with water sharing for a further period of 10 years after the plan was due to expire.
(2)  More than one such extension of a management plan that deals with water sharing may be made.
(3)  Before deciding whether to extend a management plan that deals with water sharing or to make a new management plan, the Minister is to consider a report of the Natural Resources Commission that reviews (within the previous 5 years) the following—
(a)  the extent to which the water sharing provisions have materially contributed to the achievement of, or the failure to achieve, environmental, social and economic outcomes,
(b)  whether changes to those provisions are warranted.
(3A)  If a report of the Natural Resources Commission under subsection (3) recommends changes to a management plan that will result in a reduction of water allocations in relation to which compensation might be payable under section 87AA, the Commission is to state in the report whether the purpose of the proposed changes is—
(a)  to restore water to the environment because of natural reductions in inflow to the relevant water source, including but not limited to changes resulting from climate change, drought or bushfires, or
(b)  to provide additional water to the environment because of more accurate scientific knowledge that demonstrates that the amount previously allocated to the environment is inadequate.
(4)  For the purposes of a report under subsection (3)—
(a)  the Natural Resources Commission is to call for public submissions and to have regard to any duly received, and
(b)  the Natural Resources Commission is to have regard to any other relevant State-wide and regional government policies or agreements that apply to the catchment management area.
(5)  A report of the Natural Resources Commission under subsection (3) is to be made public after the decision of the Minister with respect to the extension of the management plan or on the expiration of 6 months after the report is received by the Minister, whichever first occurs.
(6)  If the Minister decides not to extend a management plan under this section, the Minister may, by notice published in the Gazette, extend the existing management plan until the commencement of a replacement management plan or until the second anniversary of the date the plan would otherwise have expired, whichever first occurs.
s 43A: Ins 2004 No 39, Sch 1 [16]. Am 2005 No 118, Sch 1 [7] [8]; 2013 No 51, Sch 7.53 [5]; 2014 No 48, Sch 1.11 [1]; 2018 No 31, Sch 1 [5].
44   Periodic auditing of management plans
(1)  The Minister is to ensure that a management plan is audited, within the first 5 years of the plan, for the purpose of ascertaining whether its provisions are being given effect to.
(2)  An audit under this section is to be carried out by the Natural Resources Commission.
(3)  In setting terms of reference for the preparation of a management plan to replace an existing management plan, the Minister must have regard to the results of the most recent audit conducted under this section in relation to the existing management plan.
s 44: Am 2018 No 31, Sch 1 [7] [8].
Division 9 Amendment of management plans by Minister
45   Minister may amend or repeal management plan
(1)  The Minister may at any time, by order published on the NSW legislation website, amend a management plan—
(a)  if satisfied it is in the public interest to do so, or
(b)  in such circumstances, in relation to such matters and to such extent as the plan so provides, or
(c)  if the amendment is required to give effect to a decision of the Land and Environment Court relating to the validity of the plan, or
(d)  if satisfied that it is necessary to do so because of requirements arising under the Water Act 2007 of the Commonwealth.
(2)    (Repealed)
(3)  Before amending a management plan, the Minister must obtain the concurrence of the Minister for the Environment to the amendment.
(4)  The date of commencement of a management plan may, but the duration of a management plan may not, be extended by an amendment of the plan under this section.
(5)  The Minister may at any time, by order published on the NSW legislation website, repeal a management plan (other than a management plan that deals with water sharing).
(5A)  The Minister may at any time, by order published on the NSW legislation website, repeal a management plan that deals with water sharing if satisfied that it is necessary to do so because of requirements arising under the Water Act 2007 of the Commonwealth.
(6)  The amendment or repeal of a management plan under this section takes effect on the date the order is published on the NSW legislation website or on a later date specified in the order.
(7)  An order under subsection (1) (a) varying a bulk access regime is not to be made in relation to a water management area for which a management committee for water sharing is constituted unless the Minister has consulted with the committee in relation to the proposed amendment.
(8)  A provision of a management plan that authorises the amendment of the plan in accordance with section 42 (2) of this Act is to be construed as a reference to an amendment authorised by subsection (1) (b).
s 45: Am 2001 No 56, Sch 1.22 [4]. Subst 2004 No 39, Sch 1 [17]. Am 2005 No 118, Sch 1 [9]; 2008 No 73, Sch 6 [1]; 2009 No 110, Sch 1 [1]; 2018 No 31, Sch 1 [1] [9] [10].
45A   Consolidation of management plans
(1)  The Minister may, by order published on NSW legislation website, consolidate 2 or more management plans by—
(a)  repealing one or more management plans and amending another management plan to make provision with respect to the matters dealt with by the repealed plan or plans, or
(b)  amending a management plan to make provision with respect to the matters dealt with by one or more other plans that have expired (or are to expire) by operation of section 43.
(2)  A consolidated management plan may contain provisions of a savings or transitional nature consequent on the consolidation.
(3)  The provisions of Division 9 (Compensation relating to access licences) of Part 2 of Chapter 3 in relation to the consolidation of management plans under this section have effect subject to the following—
(a)  subject to paragraph (b), the consolidation of the management plans does not affect any right to compensation that the holder of an access licence would have had under section 87 or 87AA had the consolidation not occurred,
(b)  the commencement of the 10-year period referred to in section 87AA (6) (b) in its application to an expired or repealed plan is to be calculated by reference to the 10-year period commencing on the date on which the expired or repealed plan was due to expire rather than the date on which the plan into which the provisions were consolidated ceases to be in force.
(4)  Section 45 does not limit the circumstances in which the Minister may repeal or amend a management plan under this section (including a management plan that deals with water sharing).
s 45A: Ins 2014 No 48, Sch 1.11 [2].
Division 10
  (Repealed)
ch 2, pt 3, div 10: Rep 2005 No 43, Sch 7.17.
Division 11 Miscellaneous
46   Making or amendment of management plan
(1)  If the Minister makes a replacement management plan or amends a management plan and the replacement plan or amendment will result in a reduction of water allocations in relation to which compensation might be payable under section 87AA, the Minister is to include in the order in which the replacement plan or amendment is made, or in another order, a statement as to whether—
(a)  the purpose of the reduction to water allocations is to restore water to the environment because of natural reductions in inflow to the relevant water source, including but not limited to changes resulting from climate change, drought or bushfires, or
(b)  the purpose of the reduction to water allocations is to provide additional water to the environment because of more accurate scientific knowledge that demonstrates that the amount previously allocated to the environment is inadequate, but not if that purpose is also the purpose referred to in paragraph (d), or
(c)  the reduction to water allocations results from a change in State government policy, or
(d)  the purpose of the reduction to water allocations is to enable the replacement plan or amended plan, as the case may be, to be accredited under the Water Act 2007 of the Commonwealth.
(2)  A statement referred to in subsection (1)—
(a)  need not be made if the reduction concerned arises from circumstances referred to in section 87AA (3) (a) or (b), and
(b)  in a case where the reduction is made for more than one of the purposes referred to in subsection (1), is to specify each of the relevant purposes and the extent to which the reduction relates to each of those relevant purposes.
s 46: Rep 2005 No 43, Sch 7.17. Ins 2005 No 118, Sch 1 [10]. Am 2008 No 69, Sch 1 [1]–[4].
47   Validity of management plans and exercise of plan-making functions
(1)  The validity of a management plan may not be challenged, reviewed, quashed or called into question before any court in any proceedings, other than before the Land and Environment Court in proceedings commenced within the judicial review period.
(2)  The judicial review period in respect of a management plan is—
(a)  the period of 3 months after the date the plan was published on the NSW legislation website, except as provided by paragraph (b), or
(b)  in relation to a provision of the plan that was inserted by an amendment of the plan (other than an amendment under section 45 (1) (c)), the period of 3 months after the date that the amendment was published on the NSW legislation website.
A judicial review period does not arise as a result of the extension of the duration of a management plan.
(3)  The judicial review period cannot be extended by the Land and Environment Court or any other court, despite any other Act or law.
(4)  Without limiting subsection (1), the exercise by a designated person of any plan-making function may not be—
(a)  challenged, reviewed, quashed or called into question before any court in any proceedings, or
(b)  restrained, removed or otherwise affected by any proceedings,
other than before the Land and Environment Court in proceedings commenced within the judicial review period.
(5)  The provisions of or made under this Act and the rules of natural justice (procedural fairness), so far as they apply to the exercise of any plan-making function, do not place on a designated person any obligation enforceable in a court (other than in the Land and Environment Court in proceedings commenced within the judicial review period).
(6)  Accordingly, no court (other than the Land and Environment Court in proceedings commenced within the judicial review period) has jurisdiction or power to consider any question involving compliance or non-compliance, by a designated person, with those provisions or with those rules so far as they apply to the exercise of any plan-making function.
(7)  This section is not to be construed as applying the rules of natural justice to the exercise of plan-making functions for the purposes of proceedings instituted within the judicial review period.
(8)  In this section—
court includes any court of law or administrative review body.
designated person means the Minister, a management committee, the Secretary or any person or body assisting or otherwise associated with any of them.
exercise of functions includes the purported exercise of functions and the non-exercise or improper exercise of functions.
judicial review period—see subsection (2).
management plan includes purported management plan.
plan-making function means—
(a)  a function under this Act relating to the making of a management plan (including relating to the amendment, replacement or repeal of a management plan or the extension of the duration of a management plan), or
(b)  a function under section 46 of this Act relating to the statement of the purpose for which any provision of a management plan has been made.
proceedings includes—
(a)  proceedings for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, and
(b)  without limiting paragraph (a), proceedings in the exercise of the inherent jurisdiction of the Supreme Court or the jurisdiction conferred by section 23 of the Supreme Court Act 1970.
s 47: Subst 2004 No 39, Sch 1 [18]. Am 2005 No 118, Sch 1 [11]; 2009 No 110, Sch 1 [1]; 2015 No 58, Sch 3.94 [1].
48   Effect of management plans on exercise of Minister’s functions
When exercising functions under this Act, the Minister must take all reasonable steps to give effect to the provisions of any management plan and, in particular, to ensure that any environmental water rules established by the plan are observed.
49   Consideration of management plans by public authorities
(1)  When exercising its functions, a public authority must have regard to the provisions of any management plan to the extent to which they apply to the public authority.
(2)  For the purposes of this section, a management plan may be expressed so as to apply—
(a)  to a specified public authority, to a specified class of public authorities or to public authorities generally, and
(b)  to a specified function, to a specified class of functions or to functions generally.
(3)  This section neither restricts a public authority’s statutory discretions nor authorises a public authority to do anything inconsistent with its statutory or other legal obligations.
49A   Suspension of management plans during severe water shortages
(1)  If satisfied that there is a severe water shortage in relation to a particular water management area or water source, the Minister may, by order published in the Gazette, suspend the operation of any management plan, either in whole or in part, in relation to that or any other water management area or water source.
(2)  Before suspending the operation of a management plan in relation to a water management area or water source, the Minister must obtain the concurrence of the Minister for the Environment.
(3)  As soon as practicable after an order under this section is published in the Gazette, a copy of the order must be published in the authorised manner.
(4)  An order under this section expires (unless sooner revoked) at the end of 30 June following the date on which it is made or, if made on or after 1 April in any year, at the end of 30 June of the following year.
(5)  An order may not be made under this section or section 49B in relation to a management plan that has, at any time during the previous 12 months, been subject to a prior order under this section or section 49B unless the Minister is satisfied, for reasons specified in the order, that there is no need for the plan to be amended under Division 9.
s 49A: Ins 2008 No 73, Sch 6 [3]. Am 2018 No 31, Sch 1 [1] [4] [11] [12].
49B   Suspension of Basin management plans during extreme events
(1)  If satisfied that there is an extreme event in relation to a particular Basin management area or part of the Basin water resources, the Minister may, by order published in the Gazette, suspend the operation of any Basin management plan, either in whole or in part, in relation to that or any other Basin management area or water source or part of a water source that is part of the Basin water resources.
(2)  Before suspending the operation of a Basin management plan in relation to a Basin management area or part of the Basin water resources, the Minister must obtain the concurrence of the Minister for the Environment.
(3)  As soon as practicable after an order under this section is published in the Gazette, a copy of the order must be published—
(a)  in the authorised manner, or
(b)  on a publicly accessible website that, in the opinion of the Minister, is appropriate for the publication of orders of that kind.
(4)  An order under this section expires (unless sooner revoked) at the end of 30 June following the date on which it is made or, if made on or after 1 April in any year, at the end of 30 June of the following year.
(5)  An order may not be made under this section in relation to a Basin management plan that has, at any time during the previous 12 months, been subject to an order under this section or section 49A unless the Minister is satisfied, for reasons specified in the order, that there is no need for the plan to be amended under Division 9.
(6)  Except as provided by subsection (5), this section does not prevent a Basin management area or part of the Basin water resources from being the subject of an order under section 49A.
s 49B: Ins 2018 No 31, Sch 1 [13].
Part 4 Minister’s plans
50   Minister’s plan
(1)  The Minister may, by order published on the NSW legislation website, make a plan (a Minister’s plan)—
(a)  for any part of the State that is not within a water management area, or
(b)  for any water management area or water source, or part of a water management area or water source, for which a management plan is not in force, or
(c)  for any water management area or water source, or part of a water management area or water source, for which a management plan is in force, but only so as to deal with matters not dealt with by the management plan.
(1A)  A Minister’s plan may be made for more than one water management area or water source or for parts of more than one water management area or water source.
(2)  A Minister’s plan must in general terms deal with any matters that a management plan is required to deal with, and may also deal with any other matters that a management plan is authorised to deal with, other than matters that are already dealt with by a management plan.
(2A)  Part 3 (except sections 15 and 36–41) applies to a Minister’s plan. However, the Minister—
(a)  may adopt any of the provisions of sections 36–41 in a particular case, and
(b)  may dispense with a particular requirement of Part 3 in the case of a Minister’s plan referred to in subsection (1A).
(3)  Before making a Minister’s plan, the Minister must obtain the concurrence of the Minister for the Environment to the making of the plan.
(4)  Except to the extent to which this Act otherwise provides, a Minister’s plan has the same effect as a management plan.
(5)  The Minister may decide whether to make a Minister’s plan or a management plan in respect of any matter (whether or not any draft management plan has been submitted to the Minister).
s 50: Am 2002 No 138, Sch 1 [17]–[19]; 2004 No 39, Sch 1 [19]–[21]; 2008 No 73, Sch 6 [1]; 2009 No 110, Sch 1 [1]; 2018 No 31, Sch 1 [1].
Part 5 Implementation programs
51   Implementation programs
(1)  The Minister may, by order in writing, establish a program for implementing a management plan or Minister’s plan (an implementation program).
(2)  Before establishing the first implementation program for a management plan, the Minister must consult with the management committee by which the plan was prepared.
(3)  An implementation program must set out the means by which the Minister intends that the objectives of the relevant management plan or Minister’s plan are to be achieved.
(4)  On establishing an implementation program, the Minister must ensure that—
(a)  notice of that fact is published in the authorised manner to persons in the area to which the program relates, and
(b)  copies of the program (as currently in force) are made available for inspection during normal office hours, free of charge, at suitable locations within the area.
(5)  The Minister is to ensure that the implementation program is reviewed each year for the purpose of determining whether the implementation program is effective in implementing the management plan or Minister’s plan to which it relates.
(6)  The results of each review under this section are to be included in the relevant annual reporting information prepared for the Department under the Government Sector Finance Act 2018.
s 51: Am 2008 No 73, Sch 5 [2]; 2018 No 31, Sch 1 [14]; 2018 No 70, Sch 4.117[2].
Chapter 3 Water management implementation
Part 1 Basic landholder rights
Division 1 Domestic and stock rights
52   Domestic and stock rights
(1)  Subject to subsection (2), an owner or occupier of a landholding is entitled, without the need for an access licence, water supply work approval or water use approval—
(a)  to take water from any river, estuary or lake to which the land has frontage or from any aquifer underlying the land, and
(b)  to construct and use a water supply work for that purpose, and
(c)  to use the water so taken for domestic consumption and stock watering, but not for any other purpose.
(2)  Subsection (1) does not allow a landholder—
(a)  to take or use water in contravention of any mandatory guidelines established under section 336B, or
(b)  to construct a dam or water bore without a water supply work approval, or
(c)  in the case of the owner or occupier of a landholding arising from a subdivision effected on or after 1 July 2004, to take or use water in contravention of any prohibition or restriction imposed by or under the regulations (including any prohibition or restriction that the Minister is authorised by the regulations to impose), or
(d)  to carry out a controlled activity without a controlled activity approval.
(3)  In this section—
domestic consumption, in relation to land, means consumption for normal household purposes in domestic premises situated on the land.
stock watering, in relation to land, means the watering of stock animals being raised on the land, but does not include the use of water in connection with the raising of stock animals on an intensive commercial basis that are housed or kept in feedlots or buildings for all (or a substantial part) of the period during which the stock animals are being raised.
s 52: Am 2004 No 39, Sch 2 [1]–[3]; 2008 No 73, Sch 4 [1]; 2010 No 133, Sch 2 [11].
Division 2 Harvestable rights
53   Harvestable rights
(1)  An owner or occupier of a landholding within a harvestable rights area is entitled, without the need for any access licence, water supply work approval or water use approval, to do each of the following in accordance with the harvestable rights order by which the area is constituted—
(a)  to construct and use one or more water supply works for the purpose of capturing and storing water of a kind specified by the harvestable rights order,
(b)  to take and use that water.
(2)  One or more water supply works may be constructed and used under subsection (1) (a) for the storage of both water that has been captured in exercise of a harvestable right and other water that has been lawfully taken from a water source if the capacity of the work or works does not exceed the maximum harvestable right volume specified by the harvestable rights order.
(3)  The following provisions apply where the capacity of the water supply work or works by means of which water is to be captured or stored in exercise of a harvestable right exceeds the maximum harvestable right volume specified by the harvestable rights order for works constructed under the authority of this section—
(a)  an access licence or water use approval is not required for water that is captured or stored by the work or works in exercise of a harvestable right,
(b)  if water (other than water captured or stored in exercise of a harvestable right) is also captured or stored by the work or works—an access licence and water use approval is required to authorise the taking and use of water from that source for any volume taken and stored in excess of the maximum harvestable right volume unless the water is taken under the authority of a domestic and stock right or native title right,
(c)  a water supply work approval for the water supply work or works is required despite subsection (1).
(4)  Without limiting subsection (1), a single water supply work may be used by 2 or more landholders regardless of who constructed it if the shared use is permitted by the harvestable rights order.
(5)  This section does not allow a landholder—
(a)  to supply any other land with water that has been captured and stored in exercise of a harvestable right, or
(b)  to construct or use a water supply work in a river unless the river is declared by the relevant harvestable rights order to be a minor stream for the purposes of this Division.
(6)  In this section—
capture, in relation to a water supply work, includes pumping water for the purposes of storage in another water supply work.
s 53: Subst 2014 No 48, Sch 1.3 [1].
54   Harvestable rights orders
(1)  The Minister, by order published on the NSW legislation website, may—
(a)  constitute any land as a harvestable rights area, and
(b)  name the area that is constituted, and
(c)  fix the boundaries of the area that is constituted.
Note—
An order under this section may be amended or repealed by a subsequent order (see section 43 of the Interpretation Act 1987).
Editorial note—
For harvestable rights orders see Gazette No 110 of 1.7.2004, pp 5515, 5517 and Gazette No 40 of 31.3.2006, p 1628.
(2)  The order by which a harvestable rights area is constituted must specify—
(a)  the kinds of water (such as overland flow water) that may be captured and stored in the area in exercise of harvestable rights, and
(b)  the method for calculating the maximum harvestable right volume for works constructed or used in exercise of harvestable rights on landholdings in the area by reference to a proportion (not being less than 10%) of the average regional overland flow waters for that area.
(3)  Without limiting subsection (2) (b), the kinds of ways in which a maximum harvestable right volume for landholdings in a harvestable rights area may be expressed include by reference to the capacity of water supply works or volumetric limits.
(4)  The order may also deal with the following matters—
(a)  the types and locations of water supply works that may be used by a landholder to capture and store water,
(b)  the means by which the maximum capacity of a water supply work that may be constructed or used by a landholder to capture and store water is to be calculated,
(c)  the arrangements that may be made by landholders for the shared use of a water supply work that straddles their landholdings,
(d)  the method for accounting for water that is captured or stored in the circumstances referred to in section 53 (3),
(e)  the procedures to be followed for calculating the average overland flow water for a landholding in the area,
(f)  rules about the purposes for which water may be captured, taken, stored or used,
(g)  such other matters as are necessary or convenient to give effect to the order.
(5)  For the purpose of calculating any matter under an order under this section, a reference in the order to an area of land is, in the case of a landholding, a reference to the area of the landholding.
(6)  An order under this section may deal with any matter by reference to a map held by the Department.
(7)  Any map that is referred to as provided by subsection (6) is to be available for public inspection, free of charge, by either or both of the following means—
(a)  at the appropriate regional office of the Department for the area to which the relevant order relates, during normal office hours,
(b)  on the website of the Department or any other website that the Minister considers to be readily accessible by members of the public.
s 54: Am 2009 No 110, Sch 1 [1]; 2012 No 42, Sch 1.27 [1] [2]. Subst 2014 No 48, Sch 1.3 [2].
Division 3 Native title rights
55   Native title rights
(1)  A native title holder is entitled, without the need for an access licence, water supply work approval or water use approval, to take and use water in the exercise of native title rights.
(2)  This section does not authorise a native title holder—
(a)  to construct a dam or water bore without a water supply work approval, or
(b)  to construct or use a water supply work otherwise than on land that he or she owns.
(3)  The maximum amount of water that can be taken or used by a native title holder in any one year for domestic and traditional purposes is the amount prescribed by the regulations.
Part 2 Access licences
Division 1 Preliminary
55A   Application of Part
(1)  This Part applies to—
(a)  each part of the State or each water source, and
(b)  each category or subcategory of access licence that relates to that part of the State or that water source,
that is declared by proclamation to be a part of the State or water source, and category or subcategory of access licence, to which this Part applies.
Editorial note—
For declarations proclaimed under this subsection see Gazettes No 110 of 1.7.2004, p 5004; No 120 of 29.9.2006, p 8440; No 127 of 27.10.2006, pp 8906, 8907; No 83 of 29.6.2007, p 3967; No 11 of 31.1.2008, p 213; No 76 of 27.6.2008, p 5871; No 93 of 26.6.2009, p 3581 and No 109 of 31.7.2009, p 4665, and proclamations published on the NSW legislation website: 2010 (342) LW 1.7.2010; 2010 (739) LW 17.12.2010; 2011 (152) LW 3.3.2011; 2011 (153) LW 3.3.2011; 2011 (521) LW 30.9.2011; 2011 (576) LW 11.11.2011; 2011 (677) LW 16.12.2011; 2012 (28) LW 27.1.2012; 2012 (135) LW 30.3.2012; 2012 (231) LW 1.6.2012; 2012 (352) LW 3.8.2012; 2012 (464) LW 14.9.2012; 2012 (496) LW 4.10.2012; 2016 (350) LW 24.6.2016; 2016 (600) LW 30.9.2016; 2019 (318) LW 5.7.2019 and 2020 (290) LW 19.6.2020. From April 2021, PCO is no longer updating notes in provisions of in force titles about related gazette notices. To search for related gazette notices, please use the Gazette Search functionality.
(2)  Despite subsection (1), specified provisions of this Part may be declared by proclamation to apply to the whole of the State, and apply accordingly.
Editorial note—
See Gazette No 263 of 20.12.2002, p 10752 for proclamation applying section 71L (renumbered as section 71Z) to the whole of the State on and from 20 December 2002. From April 2021, PCO is no longer updating notes in provisions of in force titles about related gazette notices. To search for related gazette notices, please use the Gazette Search functionality.
(3)  To avoid doubt, the repeal, replacement or amendment of a management plan so as to remove, add or change the description of a water source described in a proclamation made under this section does not affect the application of this Part to the water source as effected by a proclamation previously made under this Part.
s 55A: Ins 2002 No 138, Sch 2 [1]. Am 2004 No 39, Sch 4 [2]; 2018 No 31, Sch 1 [15]; 2020 No 30, Sch 1.48[1].
56   Access licences
(1)  An access licence entitles its holder—
(a)  to specified shares in the available water within a specified water management area or from a specified water source (the share component), and
(b)  to take water—
(i)  at specified times, at specified rates or in specified circumstances, or in any combination of these, and
(ii)  in specified areas or from specified locations,
(the extraction component).
(2)  Without limiting subsection (1) (a), the share component of an access licence may be expressed—
(a)  as a specified maximum volume over a specified period, or
(b)  as a specified proportion of the available water, or
(c)  as a specified proportion of the storage capacity of a specified dam or other storage work and a specified proportion of the inflow to that dam or work, or
(d)  as a specified number of units.
(3)  Shares in available water may be assigned generally or to specified categories of access licence.
(4)  In the case of a local water utility licence, its share component is to be expressed as a specified volume per year.
(4A)  Without limiting subsection (1) (b), the extraction component of an access licence may authorise the taking of water from a water source specified in the share component of the licence and from another water source not so specified if those water sources are vertically abutting (either wholly or partly) water sources.
(4B)  In the circumstances referred to in subsection (4A), the water source specified in the share component of the access licence is to be the water source that is the main source for the extraction of water by the holder of the licence.
(5)  For the purposes of this Act, an access licence may also be referred to as a water access licence or a WAL.
(6)    (Repealed)
Note—
An access licence—
(a)  does not confer a right on any person to use water for any particular purpose (that right is conferred by a water use approval), and
(b)  does not confer a right on any person to construct or use a water supply work (that right is conferred by a water supply work approval).
s 56: Am 2002 No 138, Sch 2 [2]; 2004 No 39, Sch 4 [3]; 2004 No 91, Sch 1.42; 2005 No 118, Sch 1 [12].
57   Categories of licence
(1)  There are the following categories of access licences—
(a)  regulated river (high security) access licences,
(b)  regulated river (general security) access licences,
(c)  regulated river (conveyance) access licences,
(d)  unregulated river access licences,
(e)  aquifer access licences,
(f)  estuarine water access licences,
(g)  coastal water access licences,
(h)  supplementary water access licences,
(i)  major utility access licences,
(j)  local water utility access licences,
(k)  domestic and stock access licences,
(k1)  floodplain harvesting (regulated river) access licences,
(k2)  floodplain harvesting (unregulated river) access licences,
(l)  such other categories of access licence as may be prescribed by the regulations.
(2)  Subcategories of any category of access licence may be prescribed by the regulations.
s 57: Am 2002 No 138, Sch 2 [3]. Subst 2004 No 39, Sch 4 [4]. Am 2014 No 48, Sch 1.13 [1].
57A   Special provisions relating to floodplain harvesting access licences
(1)  The regulations may make provision for or with respect to the conversion of actual or proposed floodplain water usage by landholders into any of the following categories or subcategories of floodplain harvesting access licences (replacement floodplain harvesting access licences)—
(a)  floodplain harvesting (regulated river) access licences,
(b)  floodplain harvesting (unregulated river) access licences,
(c)  any other categories or subcategories of floodplain harvesting access licences prescribed for the purposes of section 57 (1) (l) or (2).
(2)  Without limiting subsection (1), the regulations may make provision for or with respect to the following—
(a)  the circumstances in which actual or proposed floodplain water usage by landholders will give rise to replacement floodplain harvesting access licences,
(b)  the terms and conditions of replacement floodplain harvesting access licences,
(c)  the share components of replacement floodplain harvesting access licences (including the process for the determination of such share components),
(d)  the determination of applications for approvals for flood works or other works (whether made under this Act or the Water Act 1912) in connection with floodplains in respect of which replacement floodplain harvesting access licences will arise,
(e)  the establishment, functions and procedure of advisory committees to provide advice to the Minister on matters in connection with any scheme prescribed by the regulations for the creation of replacement floodplain harvesting access licences (including providing for the application of section 397 to the acts or omissions of such committees or their members).
(3)  Regulations made for the purposes of this section have effect despite any provisions of this Act (including Schedule 10) that are specified by the regulations.
(4)  A floodplain harvesting (regulated river) access licence, or other category or subcategory of floodplain harvesting access licence, that nominates a regulated river water source is taken to authorise the taking of water from the floodplain for the river and, accordingly, any water taken under that licence from that floodplain is to be treated as having been taken from the regulated river water source for the purposes of this Act or any management plan that applies to the river.
Note—
For example, the taking of water from a floodplain under a floodplain harvesting (regulated river) access licence otherwise than in accordance with the water allocation for the licence will be an offence under section 60C even though it was not directly taken from the regulated river to which the licence relates.
(5)  In this section—
floodplain water usage by landholders means the taking or use of water by landholders (whether or not under an approval, licence or other authority) from land that is, or is to become, a floodplain.
Note—
The Dictionary defines floodplain to mean land declared by the regulations to be a floodplain.
s 57A: Ins 2014 No 48, Sch 1.13 [2].
58   Priorities between different categories of licence
(1)  For the purposes of this Act, the following priorities are to be observed in relation to access licences—
(a)  local water utility access licences, major utility access licences and domestic and stock access licences have priority over all other access licences,
(b)  regulated river (high security) access licences have priority over all other access licences (other than those referred to in paragraph (a)),
(c)  access licences (other than those referred to in paragraphs (a), (b) and (d)) have priority between themselves as prescribed by the regulations,
(d)  supplementary water access licences have priority below all other licences.
(2)  If one access licence (the higher priority licence) has priority over another access licence (the lower priority licence), then if the water allocations under them have to be diminished, the water allocations of the higher priority licence are to be diminished at a lesser rate than the water allocations of the lower priority licence.
(3)  In relation to the water management area or water source to which it applies, a management plan may provide for different rules of priority to those established by subsection (1).
(4)  If a management plan so provides for different rules of priority, those different rules are taken to have been established by this section.
s 58: Am 2002 No 138, Sch 2 [4]; 2005 No 118, Sch 1 [13].
59   Available water determinations
(1)  From time to time, the Minister may, by order in writing, make either or both of the following determinations (an available water determination)—
(a)  a determination as to the availability of water for one or more categories or subcategories of access licences in relation to one or more specified water management areas or water sources,
(b)  while an order is in force under section 49A (1) or 49B (1), a determination as to the availability of water for one or more individual access licences in relation to one or more specified water management areas or water sources.
(1A)  An available water determination that is made in relation to a particular category of access licence applies to all subcategories of that category except to the extent to which it otherwise provides.
(2)  The regulations may make provision for or with respect to the manner in which an available water determination is to be notified.
(3)  If the extraction component of an access licence authorises the taking of water from a water source specified in the share component of the licence and from another water source not so specified and those water sources are vertically abutting (either wholly or partly) water sources, the available water determinations that apply to the licence are those made in relation to the water source specified in the share component of the licence.
(4)  If the Minister consents to the amendment of an access licence to enable water to be taken by a nominated water supply work located in some other water management area or water source than that to which the licence relates, the available water determinations applicable to water taken by means of the work are those made in relation to the relevant category or subcategory of access licence in relation to that other water management area or water source.
s 59: Am 2002 No 138, Sch 2 [5]; 2004 No 39, Sch 5 [1] [2]; 2005 No 118, Sch 1 [14]; 2008 No 73, Schs 4 [2], 6 [4] [5]; 2009 No 56, Sch 1.44 [1]; 2018 No 31, Sch 1 [16].
60   Rules of distribution applicable to making of available water determinations
(1)  Except while an order under section 49A or 49B is in force, the following rules of distribution apply to the making of an available water determination of a type referred to in section 59 (1) (a)—
(a)  the rules of priority established by section 58,
(b)  the provisions of any relevant bulk access regime,
(c)  the provisions of any relevant management plan,
(d)  the provisions of any relevant implementation program.
(2)    (Repealed)
(3)  While an order under section 49A is in force, the following rules of distribution apply to the making of an available water determination—
(a)  first priority is to be given to—
(i)  the taking of water for domestic purposes by persons exercising basic landholder rights, and
(ii)  the taking of water for domestic purposes or essential town services authorised by an access licence,
(b)  second priority is to be given to the needs of the environment,
(c)  third priority is to be given to—
(i)  the taking of water for stock purposes by persons exercising basic landholder rights, and
(ii)  in the case of regulated rivers, the taking of water for purposes (other than domestic purposes) authorised by a regulated river (high security) access licence, and
(iii)  the taking of water for the purposes of supply of commercial and industrial activities authorised by a major utility access licence or local water utility access licence, subject to the water made available being in accordance with any drought management strategy established by the Minister for that purpose, and
(iv)  the taking of water for the purposes of electricity generation authorised by a major utility access licence, and
(v)  the taking of water for purposes authorised by a domestic and stock access licence or by persons exercising any other water rights in relation to stock, and
(vi)  the taking of water for purposes authorised by a conveyance access licence in connection with the supply of water for any other purpose or need referred to in this paragraph,
(d)  fourth priority is to be given to the taking of water for purposes authorised by any other category or subcategory of access licence.
(3A)  While an order under section 49B is in force, the following rules of distribution apply to the making of an available water determination—
(a)  first priority is to be given to meeting critical human water needs,
(b)  second, third, fourth and fifth priorities are to be given to the matters set out in subsection (3) (a), (b), (c) and (d), respectively, to the extent that those matters are not critical human water needs.
(3B)  In a case where orders under both sections 49A and 49B are in force in relation to the same water management area or water source, the rules set out in subsection (3A) prevail.
(3C)  In this section—
critical human water needs means the needs for a minimum amount of water, that can only reasonably be provided from the Basin water resources, required to meet—
(a)  core human consumption requirements in urban and rural areas, and
(b)  those non-human consumption requirements that a failure to meet would cause prohibitively high social, economic or national security costs.
(4)  Nothing in this section gives rise to a claim for compensation under Division 9.
s 60: Am 2001 No 56, Sch 1.22 [5]; 2004 No 39, Sch 5 [3] [4]; 2008 No 73, Sch 6 [6]–[9]; 2018 No 31, Sch 1 [17] [18].
Division 1A Offences
ch 3, pt 2, div 1A: Ins 2008 No 73, Sch 1 [1].
60A   Taking water without, or otherwise than authorised by, an access licence
(1)  A person—
(a)  who takes water from a water source to which this Part applies, and
(b)  who does not hold an access licence for that water source, and
(c)  who intentionally or negligently takes that water without obtaining an access licence for that water source,
is guilty of an offence.
Tier 1 penalty.
(2)  A person—
(a)  who takes water from a water source to which this Part applies, and
(b)  who does not hold an access licence for that water source,
is guilty of an offence.
Tier 2 penalty.
(3)  A holder of an access licence—
(a)  who takes water from a water source to which this Part applies otherwise than as authorised by the licence, and
(b)  who intentionally or negligently takes that water without obtaining an access licence that authorises the taking of that water,
is guilty of an offence.
Tier 1 penalty.
(4)  A holder of an access licence who takes water from a water source to which this Part applies otherwise than as authorised by the licence is guilty of an offence.
Tier 2 penalty.
(5)  Without limiting subsections (3) and (4), a person takes water otherwise than as authorised by an access licence if the person takes water while the licence is suspended.
(6)  Without limiting subsections (3), (4) and (5), a person takes water otherwise than as authorised by a supplementary water access licence if the person takes water otherwise than in such circumstances as may be authorised by provisions of the relevant management plan that are made for the purposes of section 70.
(7)  It is a defence to a prosecution under this section in relation to the taking of water from a water source to which this Part applies if the accused person establishes that the water was taken—
(a)  by means of a nominated water supply work for that water source, or
(b)  by means of a water supply work that, at all material times, was nominated in relation to the interstate equivalent of an access licence,
and was otherwise taken in accordance with the terms and conditions of the access licence in connection with which it is nominated.
(8)  The defence established by subsection (7) (b) is not available unless the Minister has been duly notified that the relevant water supply work has been nominated as referred to in that paragraph.
s 60A: Ins 2008 No 73, Sch 1 [1]. Am 2014 No 48, Sch 1.2 [2].
60B   Contravention of terms and conditions of access licence
(1)  A person (other than the holder) who takes water pursuant to an access licence is guilty of an offence if the person contravenes any term or condition of the licence.
Tier 2 penalty.
(2)  If any term or condition of an access licence is contravened by any person, each holder of the access licence is guilty of an offence.
Tier 2 penalty.
(3)  It is a defence to a prosecution under subsection (2) if the accused person establishes—
(a)  that the contravention of the term or condition was caused by another person, and
(b)  that the other person was not associated with the holder at the time the term or condition was contravened, and
(c)  that the holder took all reasonable steps to prevent the contravention of the term or condition.
A person is associated with the holder for the purposes of this subsection (but without limiting any other circumstances of association) if the person is an employee, agent, licensee, contractor or sub-contractor of the holder.
s 60B: Ins 2008 No 73, Sch 1 [1]. Am 2010 No 133, Sch 2 [12] [13].
60C   Taking water for which there is no, or insufficient, water allocation
(1) Offences involving allocations under a single access licence A person who takes water from a water source to which this Part applies otherwise than in accordance with the water allocation for the access licence by which the taking of water from that water source is authorised and—
(a)  who intentionally or negligently fails to ascertain whether the taking of water is in accordance with the water allocation, or
(b)  who knows or has reasonable cause to believe that the taking of the water is not in accordance with the water allocation,
is guilty of an offence.
Tier 1 penalty.
(2)  A person who takes water from a water source to which this Part applies otherwise than in accordance with the water allocation for the access licence by which the taking of water from that water source is authorised is guilty of an offence.
Tier 2 penalty.
(3)  If a person who has the control or management of a water supply work takes water by means of that work in contravention of subsection (2), and the water supply work is nominated in relation to an access licence held by some other person, both persons are taken to have contravened that subsection.
(4)  Either person referred to in subsection (3) may be proceeded against and convicted for an offence under subsection (2), as the case requires, whether or not the other person has been proceeded against or convicted for such an offence.
(5) Offences involving allocations under 2 or more access licences A holder of 2 or more access licences that nominate the same water supply work to take water from one or more water sources under this Part—
(a)  who intentionally takes water by means of that work from the source or sources concerned in excess of the combined water allocations for the access licences, or
(b)  who knows or has reasonable cause to believe that the taking of the water from the source or sources concerned is in excess of the combined water allocations for the access licences,
is guilty of an offence.
Tier 1 penalty.
(6)  A holder of 2 or more access licences that nominate the same water supply work to take water from one or more water sources under this Part is guilty of an offence if the holder takes water by means of that work from the source or sources concerned in excess of the combined water allocations for the access licences.
Tier 2 penalty.
(7)  A holder of 2 or more access licences that authorise the holder to take water from the same water source under this Part—
(a)  who intentionally takes water from that water source in excess of the combined water allocations for the access licences, or
(b)  who knows or has reasonable cause to believe that the taking of the water from that source is in excess of the combined water allocations for the access licences,
is guilty of an offence.
Tier 1 penalty.
(8)  A holder of 2 or more access licences that authorise the holder to take water from the same water source under this Part is guilty of an offence if the holder takes water from that source in excess of the combined water allocations for the access licences in relation to that source.
Tier 2 penalty.
(9)  If a person who has the control or management of a water supply work takes water by means of that work in contravention of subsection (6), and the water supply work is nominated in relation to an access licence held by some other person, both persons are taken to have contravened that subsection.
(10)  Either person referred to in subsection (9) may be proceeded against and convicted for an offence under subsection (6), as the case requires, whether or not the other person has been proceeded against or convicted for such an offence.
s 60C: Ins 2008 No 73, Sch 1 [1]. Subst 2010 No 133, Sch 2 [14]. Am 2014 No 48, Sch 1.8 [1] [2]
60D   Taking water otherwise than by or from water supply work or extraction point nominated in access licence
A person who takes water from a water source to which this Part applies otherwise than by means of a water supply work, or from an extraction point, that is nominated in an access licence is guilty of an offence.
Tier 2 penalty.
s 60D: Ins 2008 No 73, Sch 1 [1]. Am 2014 No 48, Sch 1.8 [3]; 2017 No 22, Sch 1.32 [1].
60E   Liability of occupier of premises for certain offences
(1)  The occupier of premises at or from which water is taken in contravention of a provision of this Division is taken to have contravened that provision unless it is established that—
(a)  the water was taken by another person, and
(b)  the other person was not associated with the occupier at the time the water was taken, and
(c)  the occupier took all reasonable steps to prevent the water being taken.
A person is associated with the occupier for the purposes of paragraph (b) (but without limiting any other circumstances of association) if the person is an employee, agent, licensee, contractor or sub-contractor of the occupier.
(2)  Subsection (1) does not prevent proceedings being taken under this Act against the person who actually committed the offence.
s 60E: Ins 2008 No 73, Sch 1 [1].
60F   General defence
(1)  It is a defence to a prosecution under this Division in relation to a Tier 1 offence if the accused person establishes—
(a)  that the commission of the offence was due to causes over which the person had no control, and
(b)  that the person took reasonable precautions and exercised due diligence to prevent the commission of the offence.
(2)  It is a defence to a prosecution under this Division in relation to the taking of water from a water source to which this Part applies if the accused person establishes—
(a)  that the water was taken pursuant to a basic landholder right or a consent given under section 71V, or
(a1)  that the water was taken in circumstances for which provision is made in a management plan pursuant to section 85A(2), or
(b)  that the person was exempt, pursuant to this Act or the regulations, from any requirement for an access licence in relation to the taking of water from that water source.
(3)  This Division does not prevent a person from taking water pursuant to an entitlement in force under the Water Act 1912, where entitlement has the same meaning as it has in Schedule 10.
s 60F: Ins 2008 No 73, Sch 1 [1]. Am 2020 No 30, Sch 1.48[2] [3].
60G   Minister may charge for water illegally taken
(1)  If satisfied on the balance of probabilities that a person has taken water from a water source to which this Part applies in contravention of this Division, the Minister may do either or both of the following—
(a)  impose on the person a charge for water taken (which may include a penalty component) not exceeding 5 times the value of the water so taken, as determined in accordance with the regulations,
(b)  if the person holds an access licence, order that any water allocations credited or to be credited to the water allocation account for the licence be debited up to 5 times the quantity of the water so taken.
(2)  Action under this section may not be taken against a person unless the Minister—
(a)  has given written notice to the person that the Minister proposes to take such action, and
(b)  has given the person a reasonable opportunity to make submissions to the Minister with respect to the proposed action, and
(c)  has taken any such submissions into consideration.
(3)  For the purposes of taking action under this section, the Minister may determine the quantity of water taken by estimating the quantity in accordance with a methodology prescribed by the regulations for the purposes of this section.
Note—
See also section 11 (1) (e) of the Natural Resources Access Regulator Act 2017 and Schedule 2 to that Act.
s 60G: Ins 2008 No 73, Sch 1 [1]. Am 2009 No 56, Sch 1.44 [2] [3]; 2010 No 133, Sch 2 [15]; 2017 No 64, sec 19; 2018 No 31, Sch 1 [19].
60H   Application of Division in relation to interstate licences
In this Division, a reference to an access licence includes a reference to any licence of a similar nature (however described)—
(a)  that is granted under the law of another State or Territory, and
(b)  that is declared by the regulations to have the same effect as an access licence for the purposes of this Division.
s 60H: Ins 2008 No 73, Sch 1 [1].
60I   Access licence required for water used in mining activities
(1)  A person who takes water in the course of carrying out a mining activity is, for the purposes of this Act, taking water from a water source.
(2)  Without limiting the generality of subsection (1), a person takes water in the course of carrying out a mining activity if, as a result of or in connection with, the activity or a past mining activity carried out by the person, water is removed or diverted from a water source (whether or not water is returned to that water source) or water is re-located from one part of an aquifer to another part of an aquifer.
(3)  To avoid doubt, a person who takes water in the course of carrying out a mining activity as referred to in subsection (2) is required to hold an access licence authorising the taking of that water.
(4)  In this section—
mineral has the same meaning as it has in the Mining Act 1992.
mineral exploration means prospecting pursuant to an assessment lease, exploration licence, mineral claim, mining lease or opal prospecting licence under the Mining Act 1992.
mining means the winning or removal of materials by methods such as excavating, dredging, drilling or tunnelling for the purpose of obtaining minerals or petroleum, and includes—
(a)  the construction, commissioning, operation and decommissioning of associated works, and
(b)  the stockpiling, processing, treatment and transportation of materials extracted, and
(c)  the rehabilitation of land affected by mining.
mining activity means any of the following—
(a)  mining,
(b)  mineral exploration,
(c)  petroleum exploration.
petroleum has the same meaning as it has in the Petroleum (Onshore) Act 1991.
petroleum exploration means prospecting pursuant to a petroleum title under the Petroleum (Onshore) Act 1991.
(5)  This section does not limit any other provision of this Act.
s 60I: Ins 2010 No 133, Sch 2 [16].
Division 2 Granting of access licences
ch 3, pt 2, div 2, hdg: Am 2004 No 39, Sch 4 [5].
61   Applications for granting of access licences
(1)  A person may apply to the Minister for an access licence if—
(a)  the application is for a specific purpose access licence in circumstances where—
(i)  the regulations provide, or a relevant management plan provides, that an application for the licence may be made, and
(ii)  the application does not contravene any restriction on the making of such an application contained in a relevant management plan, or
(b)  the application is for an access licence with a zero share component (as referred to in section 63 (5)), or
(c)  the person has acquired the right to apply for the licence under section 65.
(2)    (Repealed)
(3)  In the case of an application under subsection (1) for an access licence—
(a)  for water in an area that is not within a water management area, or
(b)  for water in a water management area for which there is no water sharing management plan in force,
the Minister must cause the application to be advertised in accordance with the regulations.
(4)    (Repealed)
(5)  The Minister—
(a)  may require an applicant for an access licence to provide additional information within a specified time if of the opinion that additional information would be relevant to consideration of the application, and
(b)  may delay consideration of the application until the information is provided or, if the information is not provided within the time specified, may refuse to consider the application.
(6)  The Minister may refuse to accept an application for an access licence if it appears to the Minister that the application is incomplete.
(7)  An applicant for an access licence may, by notice in writing to the Minister, amend or withdraw the application for the access licence at any time before the application is determined.
s 61: Am 2001 No 56, Sch 1.22 [6]; 2002 No 138, Sch 2 [6]; 2004 No 39, Sch 4 [6] [7]; 2011 No 62, Sch 1.23 [1]; 2014 No 48, Sch 1.10 [1].
62   Objections to granting of access licences
(1)  Any person may, in accordance with the regulations, object to the granting of an access licence—
(a)  for water in an area that is not within a water management area, or
(b)  for water in a water management area for which there is no water sharing management plan in force.
(2)  The Minister must inform the applicant for the access licence of the grounds of any objection to the granting of the licence and must allow the applicant a specified time within which to make a written response to the Minister in relation to the objection.
(3)  The Minister—
(a)  may require an objector or applicant to provide additional information within a specified time if of the opinion that additional information would be relevant to consideration of the objection or response, and
(b)  may delay consideration of the objection or response until the information is provided or, if the information is not provided within the time specified, may refuse to consider the objection or response.
(4)  If there is a deficiency in an objection or response, the Minister may notify the objector or applicant accordingly and allow further time to enable the deficiency to be rectified.
(5)  Before making a decision on an application for an access licence in respect of which any objection has been made, the Minister must endeavour to resolve the issues raised by the objection by means of consultation with the applicant and the objector, with a view to reaching agreement on the matters raised by the objection.
(6)  For the purpose of reaching such an agreement, the Minister may propose that the matters raised by the objection be dealt with by way of mediation or neutral evaluation involving an independent mediator or evaluator selected by agreement between the applicant, the objector and the Minister.
(7)  An application or objection may be dismissed by the Minister if the applicant or objector, as the case may be, fails to participate in any mediation or neutral evaluation proceedings referred to in subsection (6).
63   Determination of applications
(1)  The Minister may determine an application for an access licence by granting or refusing to grant the licence.
(1A)  An access licence may be granted unconditionally or subject to such conditions as are required or permitted to be imposed under Division 3.
(2)  An access licence is not to be granted unless the Minister is satisfied that—
(a)  the application has been made as provided by section 61 (1) (a), (b) or (c), and
(b)  adequate arrangements are in force to ensure that no more than minimal harm will be done to any water source as a consequence of water being taken from the water source under the licence.
(3)  Despite subsection (1)—
(a)  a local water utility access licence may only be granted to a local water utility, and
(b)  a major utility access licence may only be granted to a major utility.
(c)    (Repealed)
(4)  An access licence must specify—
(a)  in relation to its share component, the water management area or water source to which it relates, and
(b)  in relation to its extraction component, the times, rates or circumstances in which, and the areas or locations from which, water may be taken under the licence.
(5)  An access licence may be issued with a zero share component or zero extraction component (or both) but, even if it is issued with a zero share component, must still specify the water management area or water source to which it relates.
(6)  Two or more co-holders of an access licence granted under this section are taken to hold the access licence—
(a)  as provided by the application for the access licence, or
(b)  if the application makes no such provision, as tenants in common with the entitlements conferred by the licence under section 56 apportioned equally between the tenants.
(7)  An access licence is to be in such form as the Minister may determine.
(8)–(10)    (Repealed)
s 63: Am 2002 No 138, Sch 2 [7]–[9]; 2004 No 39, Schs 3 [2] [3], 4 [8]; 2008 No 73, Sch 6 [10]; 2011 No 62, Sch 1.23 [2]; 2014 No 48, Sch 1.10 [2].
63A   Commonwealth and other access licences arising from arrangements
(1)  The Minister may grant an access licence to the Commonwealth, or a person nominated by the Commonwealth, at the Minister’s discretion, if the Minister is satisfied that—
(a)  the licence is required in order to give effect to an agreement or other arrangement (including, but not limited to, a funding agreement or arrangement) entered into by or on behalf of the State, and
(b)  the licence is to form part of the Commonwealth environmental water holdings within the meaning of the Water Act 2007 of the Commonwealth.
(2)  Sections 61 and 63 (1) and (2) do not apply to an access licence granted under this section.
s 63A: Ins 2010 No 133, Sch 1 [1].
63B   Licences arising out of State arrangements or agreements
(1)  The Minister may grant an access licence to the State or a public authority prescribed by the regulations, at the Minister’s discretion, if the Minister is satisfied that the licence is required in order to give effect to an agreement or other arrangement (including, but not limited to, a funding agreement or arrangement) entered into by or on behalf of the State.
(2)  A licence granted by the Minister under this section—
(a)  may be granted subject to an adaptive environmental water condition, or
(b)  may be a licence of an environmental subcategory, or
(c)  may be for water taken or permitted to be taken under a licence of a class prescribed by the regulations for environmental purposes.
(3)  Sections 61 and 63 (1) and (2) do not apply to an access licence granted under this section.
s 63B: Ins 2010 No 133, Sch 1 [1].
64   Notice of decision
(1)  After determining an application under this Division, the Minister must cause notice of the determination to be given to the applicant and, if the application relates to—
(a)  an area that is not within a water management area, or
(b)  a water management area for which there is no water sharing management plan in force,
to each person who has made an objection in connection with the application.
(2)    (Repealed)
(3)  A notification under subsection (1) must be given within 7 days of the determination.
s 64: Am 2002 No 138, Sch 2 [10]; 2004 No 39, Sch 3 [4].
65   Controlled allocation of access licences
(1)  The Minister may, by order published in the Gazette, declare that the right to apply for an access licence for a specified water management area or water source is to be acquired by auction, tender or other means specified in the order.
(2)  An order under this section—
(a)  may relate to one or more particular access licences, or a particular class of access licences or all access licences, for a specified water management area or water source (or part of such an area or source), and
(b)  may specify a limited period for which such an access licence is to have effect, and
(c)  may set a minimum price for the acquisition of the right to apply for the access licence or licences concerned, and
(d)  may set a fee for participation in the auction, tender or other means specified by the order with respect to the access licence or licences concerned.
(3)  For the avoidance of doubt, the Independent Pricing and Regulatory Tribunal does not have jurisdiction under the Independent Pricing and Regulatory Tribunal Act 1992 to investigate or determine minimum prices for the purposes of this section.
(4)    (Repealed)
s 65: Am 2002 No 138, Sch 2 [11]. Subst 2004 No 39, Sch 4 [9]. Am 2005 No 118, Sch 1 [15]; 2014 No 48, Sch 1.4 [1]–[3].
Division 3 Conditions, duration and amendment of access licences
ch 3, pt 2, div 3, hdg: Am 2012 No 95, Sch 1.22 [1].
Note—
An access licence may be amended under section 71S, on application of the licence holder, so as to change the extraction component of the licence. The share component of an access licence may be changed, on application of the licence holder, under section 71R.
ch 3, pt 2, div 3, note: Ins 2012 No 95, Sch 1.22 [2].
66   Conditions of access licence generally
(1)  An access licence is subject to such conditions as the Minister may from time to time impose—
(a)  which must include such conditions as are required to be imposed on the licence by this Act or by any relevant management plan, and
(b)  which may include such other conditions, such as—
(i)  conditions to give effect to any agreement between an applicant and objector under section 62 (5), and
(ii)  conditions relating to the protection of the environment,
as the Minister thinks fit (discretionary conditions).
(1AA)  An access licence is subject to any mandatory conditions imposed by this Act or the regulations.
(1A)  Mandatory conditions (other than conditions imposed by the regulations) do not have effect in relation to an access licence unless they are included in the terms of the licence.
(2)  A mandatory condition prevails over a discretionary condition to the extent of any inconsistency between them.
Note—
If a management plan or Minister’s plan is replaced or amended during the term of an access licence, the mandatory conditions applying to the access licence may vary.
(2A)  When granting a specific purpose access licence, the Minister is to impose a condition on the licence so as to ensure that the licence is used for the purpose for which it is granted. Such a condition may limit the operation of the licence to a particular location.
(3)  At the end of each 5-year period, the Minister is to vary each local water utility licence so as to reflect any variation in population, together with any variation in associated commercial activities, that has occurred during that period in the area in which domestic water is supplied under the licence.
(3A)  In subsection (3), associated commercial activities means activities within the following categories recognised in the Australian and New Zealand Standard Industry Classification (ANZSIC), 1993 edition (Australian Bureau of Statistics publication, Catalogue No 1292.0)—
(a)  construction (category E),
(b)  wholesale trade (category F),
(c)  retail trade (category G),
(d)  accommodation, cafes and restaurants (category H),
(e)  communication services (category J),
(f)  finance and insurance (category K),
(g)  property and business services (category L),
(h)  government administration and defence (category M),
(i)  education (category N),
(j)  health and community services (category O),
(k)  cultural and recreational services (category P),
(l)  personal and other services (category Q).
(4)  On the application of a local water utility, the Minister may at any time increase the utility’s entitlement to water under a local water utility licence so as to reflect any rapid growth of population within the utility’s area requiring an immediate increase in the availability of water for supply by that utility.
(5)  In this section, mandatory condition means a condition referred to in subsection (1) (a) or (1AA) or imposed under section 8E.
s 66: Am 2002 No 138, Sch 2 [12] [13]; 2004 No 39, Sch 4 [10] [11]; 2008 No 73, Sch 4 [3]; 2018 No 31, Sch 1 [20]–[23].
66A   Imposition of conditions on granting of access licence
A condition that is imposed when an access licence is granted takes effect on the day on which the licence takes effect.
s 66A: Ins 2014 No 48, Sch 1.10 [3].
67   Imposition of conditions after access licence is granted
(1)  The Minister may impose discretionary conditions on an access licence after it has been granted, but only if the Minister—
(a)  has given written notice to the holder of the access licence that the Minister proposes to impose such conditions, and
(b)  has given the holder of the access licence a reasonable opportunity to make submissions to the Minister with respect to the proposed conditions, and
(c)  has taken any such submissions into consideration.
(2)  Subsection (1) does not apply to conditions imposed on an access licence—
(a)  at the request of the holder of the access licence, or
(b)  as a result of action taken under section 66 (3), or
(c)  when the access licence is amended under section 68B, or
(d)  in connection with a dealing under Division 4.
(3)  Mandatory conditions referred to in section 66 (1) (a) of an access licence may be imposed, amended, revoked or suspended by the Minister whenever it is necessary to do so in order to enable compliance with or to give effect to this Act, the regulations or a relevant management plan.
(4)  The Minister must cause written notice of any conditions imposed, amended, revoked or suspended under this section to be served on the holder of the access licence concerned.
(5)  A condition imposed or a change referred to in subsection (4) takes effect on the day on which the notice referred to in that subsection is served on the holder of the access licence or on such later day as may be specified in the notice in that regard.
(6)  The regulations may make provision for or with respect to the manner in which written notices may be given for the purposes of this section.
s 67: Am 2002 No 138, Sch 2 [14]–[16]; 2005 No 118, Sch 1 [16]; 2010 No 133, Sch 2 [17]–[19]; 2012 No 95, Sch 1.22 [3]. Subst 2014 No 48, Sch 1.10 [4]. Am 2018 No 31, Sch 1 [24].
68   Revocation of conditions
The Minister may at any time revoke any discretionary conditions to which an access licence is subject, whether or not on the application of the holder of the access licence.
68A   Amendment of share or extraction components of access licences and other actions by Minister
(1)  The Minister may amend the share component or extraction component of an access licence in accordance with this Act or the relevant management plan.
(1A)  The Minister may amend the share component or extraction component (or both) of an access licence so as to alter the water management area or water source to which the share component of the licence relates, or the locations from which water may be taken in accordance with the extraction component of the licence.
(1B)  An amendment may only be made under subsection (1A) if—
(a)  the amendment is for the purpose of enabling the holder of the licence to take water from a different water source to that authorised by the licence because erroneous location data has resulted in the holder taking water from that different source, and
(b)  at the time at which the granting of the access licence was recorded in the Access Register, an access licence could have been granted to the holder authorising the taking of water from that different water source.
(1C)  The Minister may amend the share component of a specific purpose access licence.
(1D)  An amendment may only be made under subsection (1C) if that part of the share component that is the subject of the amendment is no longer necessary for the purpose for which the specific purpose access licence was granted.
(1E)  The Minister may amend an access licence by withdrawing the nomination of a specified water supply work as a work by means of or from which water may be taken under the licence, if the work is the subject of an approval that has expired or has been cancelled or surrendered.
(1F)  The Minister may amend an access licence or approval under subsection (1C) or (1E) at the Minister’s discretion or at the request of the holder of the licence or approval.
(2)  The Minister must cause written notice of an amendment of an access licence under this section to be served on the holder of the licence and any security holder in relation to the licence.
(3)  An amendment under this section has no effect until it is recorded in the Access Register.
Note—
The holder of an access licence that is amended in accordance with this section may be entitled to compensation under section 87.
s 68A: Ins 2004 No 39, Sch 4 [12]. Am 2005 No 118, Sch 1 [17] [18]; 2008 No 73, Sch 6 [11]; 2018 No 31, Sch 1 [25]; 2022 No 59, Sch 1.38[3].
68B   Increase of share components of Commonwealth and other access licences arising from arrangements
(1)  The Minister may amend an access licence held by the Commonwealth (or a person nominated by the Commonwealth), at the Minister’s discretion, by increasing the share component of the licence if the Minister is satisfied that—
(a)  the amendment is required in order to give effect to an agreement or other arrangement (including, but not limited to, a funding agreement or arrangement) entered into by or on behalf of the State, and
(b)  the licence forms part of the Commonwealth environmental water holdings within the meaning of the Water Act 2007 of the Commonwealth.
(2)  The Minister may amend an access licence held by the State (or a public authority prescribed by the regulations), at the Minister’s discretion, by increasing the share component of the licence if—
(a)  the Minister is satisfied that the amendment is required in order to give effect to an agreement or other arrangement (including, but not limited to, a funding agreement or arrangement) entered into by or on behalf of the State, and
(b)  the licence—
(i)  is subject to an adaptive environmental water condition, or
(ii)  is of an environmental subcategory, or
(iii)  is for water taken or permitted to be taken under a licence of a class prescribed by the regulations for environmental purposes.
s 68B: Ins 2012 No 95, Sch 1.22 [4].
69   Duration of access licence
An access licence ceases to be in force on the date that the cancellation of the licence is recorded in the Access Register.
s 69: Am 2002 No 138, Sch 2 [17]–[19]. Subst 2004 No 39, Sch 4 [13].
70   Special provisions with respect to supplementary water
A management plan may make provision for or with respect to the circumstances in which the taking of water pursuant to supplementary water access licences is authorised within the whole or any part of a water management area or specified water sources.
s 70: Rep 2004 No 39, Sch 4 [13]. Ins 2008 No 73, Sch 4 [4]. Subst 2014 No 48, Sch 1.2 [3].
Division 3A Water Access Licence Register
ch 3, pt 2, div 3A: Ins 2004 No 39, Sch 3 [5].
Subdivision 1 Keeping of the Access Register
ch 3, pt 2, div 3A, sdiv 1, hdg: Ins 2004 No 39, Sch 3 [5]. Am 2008 No 73, Sch 6 [11].
ch 3, pt 2, div 3A, sdiv 1: Ins 2004 No 39, Sch 3 [5].
71   Water Access Licence Register
(1)  The Minister is to keep a Water Access Licence Register for the purposes of this Act (the Access Register).
(2)  In the Access Register, there is to be a division recording the matters specified in section 71A (1) (the General Division) and a division recording the matters specified in section 71A (2) (the Assignment Division).
(3)  The Access Register is to be kept in the form and manner determined by the Minister.
(4)  Without limiting subsection (3), the Access Register may be kept in the form of a computer record.
s 71: Rep 2002 No 138, Sch 2 [20]. Ins 2004 No 39, Sch 3 [5].
71A   Dealings and other matters that must be recorded in the Access Register
(1)  The following matters relating to an access licence (including a replacement access licence) or a holding in an access licence must be recorded in the General Division of the Access Register—
(a)  Ministerial action in relation to the licence or holding,
(b)  any general dealing in the licence or holding,
(c)  any dealing on default in relation to the licence or holding,
(d)  any caveat lodged in relation to the licence or holding,
(e)  any security interest held over the licence or holding,
(f)  any devolution of the licence or holding as referred to in section 72,
(g)  any alteration in co-holder’s tenancy arrangements in relation to the licence or holding, as referred to in section 73,
(h)  any other matter prescribed by the regulations.
(2)  The following matters are to be recorded in the Assignment Division of the Access Register in such manner as the Minister considers appropriate—
(a)  any assignment dealing in an access licence,
(b)  any other matter prescribed by the regulations.
s 71A: Ins 2004 No 39, Sch 3 [5].
71B   When matters required to be recorded in General Division of Access Register have effect
(1)  Subject to this section, any matter required to be recorded in the General Division of the Access Register—
(a)  has no effect unless it is so recorded, and
(b)  takes effect on being recorded.
(2)  An assignment dealing in relation to an access licence takes effect when details of the assignment are entered in the water allocation account for the access licence.
(3)  If an application for the extension of a term transfer under section 71N is received before the expiry of the term transfer, the extension is to be recorded in the Access Register as taking effect from the end of the current term of the term transfer.
s 71B: Ins 2004 No 39, Sch 3 [5]. Am 2005 No 118, Sch 1 [19] [20]; 2008 No 73, Sch 6 [11].
71C   Provisions with respect to registration of dealings, security interests, caveats and other matters in the Access Register
Schedule 1A has effect.
s 71C: Ins 2004 No 39, Sch 3 [5].
Subdivision 2 Registration of security interests
ch 3, pt 2, div 3A, sdivs 2, 3 (ss 71D–71F): Ins 2004 No 39, Sch 3 [5].
71D   Creation of registered security interests by recording in Access Register
(1)  A registered security interest over an access licence (or a holding in an access licence that is held as a tenancy in common) is created by—
(a)  execution of an instrument in the approved form evidencing the existence of a security interest over the licence or holding, and
(b)  registering the security interest by recording it in the Access Register in accordance with Part 1 of Schedule 1A.
Note—
A security interest has no effect until recorded in the Access Register—see sections 71A (1) (e) and 71B.
(2)  Subsection (1) does not apply to—
(a)  a specific purpose access licence, or
(b)  a security interest referred to in clause 19 of Schedule 10.
Note—
Clause 19 of Schedule 10 makes provision for the registration of security interests in access licences arising from entitlements under former legislation.
(3)  For the purposes of Chapter 7 of the Duties Act 1997
(a)  a registered security interest over an access licence or holding in an access licence is taken to be a security by way of mortgage or charge over property wholly or partly in New South Wales, and
(b)  the liability date is the date on which the registered security interest is first recorded in the Access Register,
except as provided by the regulations.
ch 3, pt 2, div 3A, sdivs 2, 3 (ss 71D–71F): Ins 2004 No 39, Sch 3 [5].
Subdivision 3 Registration of caveats
ch 3, pt 2, div 3A, sdivs 2, 3 (ss 71D–71F): Ins 2004 No 39, Sch 3 [5].
71E   Minister may register caveats
(1)  The Minister may, on the application in the approved form of an affected person, record a caveat on an access licence (or holding in an access licence) in the Access Register in such manner as appears to the Minister to be appropriate.
(2)  Without limiting subsection (1), the Minister may (whether or not on the application of an affected person) record a caveat in the Access Register—
(a)  on behalf of any person with a legal disability or on behalf of the Crown, or
(b)  if it appears to the Minister that any error has been made by misdescription or otherwise in relation to an access licence, or to prevent any fraud or improper dealing with a licence.
(3)  In this section—
affected person, in relation to an access licence or holding in an access licence, means the following—
(a)  the holder or a co-holder of the licence or holding,
(b)  a holder of a security interest over the licence or holding (whether or not registered),
(c)  a party to a dealing, or prospective dealing, in the licence or holding,
(d)  a person entitled, or claiming to be entitled, to be registered as a holder or co-holder of the licence or holding by devolution as referred to in section 72,
(e)  any other person of a class prescribed by the regulations.
ch 3, pt 2, div 3A, sdivs 2, 3 (ss 71D–71F): Ins 2004 No 39, Sch 3 [5].
71F   Effect of a caveat
(1)  A caveat on an access licence (or holding in an access licence) prohibits the recording in the Access Register of any general dealing, security interest or change in co-holder’s tenancy arrangements in relation to the licence or holding that interferes with the entitlements or rights in respect of the licence or holding claimed by the person by or on whose behalf the caveat is lodged (the caveator).
(2)  A caveat on an access licence or holding in an access licence does not affect the recording in the Access Register of any Ministerial action, devolution, assignment dealing or dealing on default in relation to the licence or holding.
(3)  Subsection (1) does not prohibit the registration of any matter if—
(a)  the caveator consents to the registration, or
(b)  a court of competent jurisdiction orders the registration, or makes an order that by necessary implication requires it, despite the caveat, or
(c)  the matter is required to be registered expressly or by necessary implication by any enactment of the State or the Commonwealth, or
(d)  in such other circumstances as are prescribed by the regulations.
(4)  Subsection (1) does not prohibit registration of any matter in relation to the access licence or holding in an access licence the subject of a caveat if the matter was lodged for registration before the caveat was lodged.
Note—
Part 2 of Schedule 1A contains further provisions with respect to caveats.
ch 3, pt 2, div 3A, sdivs 2, 3 (ss 71D–71F): Ins 2004 No 39, Sch 3 [5].
Subdivision 4 Miscellaneous
ch 3, pt 2, div 3A, sdivs 2, 3 (ss 71D–71F): Ins 2004 No 39, Sch 3 [5].
ch 3, pt 2, div 3A, sdiv 4: Ins 2004 No 39, Sch 3 [5].
71G   Minister may require production or surrender of access licence certificate before recording matters in Access Register
(1)  The Minister may require the access licence certificate for an access licence to be produced to the Minister before the Minister records any dealing, security interest or changes to co-holder’s tenancy arrangements under the licence in the Access Register.
(2)  The Minister may require the access licence certificate for an access licence to be surrendered to the Minister before the Minister records the surrender of the access licence to which that certificate relates in the Access Register.
s 71G: Ins 2004 No 39, Sch 3 [5]. Am 2017 No 22, Sch 1.32 [2].
71H   Searches of the Access Register
(1)  The Minister may, on application made by a person in the approved form for a search of any information recorded in the Access Register, cause—
(a)  a search to be made of the Access Register, and
(b)  a certificate of the result of the search to be issued to the person.
(2)  The search is to be authenticated in such manner as the Minister considers appropriate.
(3)  The Minister is not required to cause a search to be carried out, or a certificate to be issued, under this section, unless—
(a)  the approved fee (if any) for the search or certificate has been paid, or
(b)  the Minister is satisfied that the fee will be paid in accordance with arrangements approved by the Minister.
ss 71H–71K: Ins 2004 No 39, Sch 3 [5].
71I   Correction and amendment of Access Register
The Minister may, on such evidence as the Minister considers sufficient, correct an error, omission or defect, or amend for any other reason, any recording in the Access Register.
ss 71H–71K: Ins 2004 No 39, Sch 3 [5].
71J   Access to the Access Register
(1)  The Minister is to make the information recorded in the Access Register available to any member of the public at the times and in the manner and on payment of the fee (if any) approved by the Minister.
(2)  The information may be made available in accordance with such conditions as are determined by the Minister.
(3)  The conditions may—
(a)  require the payment, whether on a periodic or other basis, of fees and charges, and
(b)  restrict access to information in the Access Register or any part of the Register.
ss 71H–71K: Ins 2004 No 39, Sch 3 [5].
71K   Minister to supply reasons for certain decisions in relation to Access Register
(1)  A person who is dissatisfied with any decision of the Minister in relation to the keeping of the Access Register may apply to the Minister for a copy of the Minister’s reasons for the decision.
(2)  It is the Minister’s duty to provide the person with those reasons.
ss 71H–71K: Ins 2004 No 39, Sch 3 [5].
Division 4 Dealings with access licences
ch 3, pt 2, div 4: Subst 2002 No 138, Sch 2 [20].
71L   How does a dealing take effect?
(1) General dealings requiring consent A general dealing in an access licence or holding in an access licence that requires the Minister’s consent takes effect as follows—
(a)  application is made to the Minister in the approved form, and accompanied by the approved fee, for consent to the dealing,
(b)  the Minister grants consent, but only if—
(i)  the dealing complies with section 71Y (General) and with the other provisions of this Division that are applicable to the dealing, and
(ii)  in the case of an access licence that is co-held—each co-holder of the licence has (subject to sections 71M and 71N) consented to the application,
(c)  if an access licence or holding in an access licence is subject to a registered security interest, the security holder consents to the recording of the dealing in the Access Register,
(d)  application is made to the Minister in accordance with subsection (2) to record the dealing in the Access Register,
(e)  the dealing takes effect on registration (subject to and in accordance with this Act) in the Access Register.
(2)  An application to record a dealing requiring the Minister’s consent in the Access Register must be lodged with the Minister within 6 months (or such other period as is prescribed by the regulations) after consent is granted. Consent is taken to be revoked if an application is not lodged within that period.
(3) Dealings on default and general dealings not requiring consent A dealing on default or general dealing in an access licence or holding in an access licence that does not require the Minister’s consent takes effect as follows—
(a)  in the case of a general dealing in an access licence that is co-held—each co-holder of the licence has (subject to sections 71M and 71N) consented to the recording of the dealing in the Access Register,
(b)  in the case of a general dealing in an access licence or holding in an access licence that is the subject of a registered security interest—consent to the recording of the dealing in the Access Register is obtained from the security holder,
(c)  in the case of a dealing on default in an access licence or holding in an access licence—the dealing complies with section 71X (1),
(d)  the dealing on default or general dealing complies with any other provisions of this Division that are applicable to the dealing,
(e)  an application is made to the Minister to record the dealing in the Access Register,
(f)  the dealing takes effect on registration (subject to and in accordance with this Act) in the Access Register.
(4) Assignment dealings An assignment dealing in an access licence takes effect as follows—
(a)  an application is made to the Minister in the approved form for consent to the dealing,
(b)  if the Minister grants consent, details of the assignment are entered in the water allocation account for the access licence and the dealing takes effect on that entry.
s 71L: Ins 2004 No 39, Sch 3 [6]. Am 2015 No 58, Sch 1.14 [1].
71M   Transfer of access licences
(cf former s 71A)
(1)  Access licences may be transferred in accordance with this section.
(2)  A local water utility access licence may be transferred only if the transferee is a local water utility.
(3)  A major utility access licence may be transferred only if the transferee is a major utility.
(4)  The consent of the Minister is required before—
(a)  the transfer of an access licence of a category or subcategory prescribed by the regulations, or
(b)  the transfer of an access licence in circumstances prescribed by the regulations.
(5)  The consent of the proposed transferee is required before the transfer of any access licence.
(6)  Two or more co-holders of an access licence that is transferred under this section are taken to hold the licence in the way recorded in the Access Register.
(7)  This section applies to the transfer of a holding in an access licence in the same way as it applies to the transfer of an access licence held by a single person. However, holdings in access licences may be transferred only if the co-holders hold as tenants in common.
(8)  A person who is the holder of a holding in an access licence may transfer it without the consent of any other persons who are co-holders of the access licence concerned.
s 71M (previously s 71A): Ins 2002 No 138, Sch 2 [20]. Subst 2004 No 39, Sch 3 [6]. Renumbered 2004 No 39, Sch 3 [6]. Am 2009 No 106, Sch 1.20 [1].
71N   Term transfers of entitlements under access licences
(1)  This section applies to access licences except local water utility access licences and major utility access licences.
(2)  The holder of an access licence to which this section applies (the actual holder of the licence) may transfer the water entitlements conferred by the licence to another person for a specified period of not less than 6 months (a term transfer).
(3)  The consent of the proposed transferee to the term transfer is required.
(4)  The consent of the Minister is required before—
(a)  the term transfer of an access licence of a category or subcategory prescribed by the regulations, or
(b)  the term transfer of an access licence in circumstances prescribed by the regulations.
(5)  During the period for which a term transfer has effect, the transferee is taken to be the holder of the access licence concerned in relation to any water entitlements (to the exclusion of the actual holder of the licence) for the following purposes—
(a)  any entitlements conferred by the licence on the holder of the licence,
(b)  the payment of fees and charges under the licence,
(c)  compliance with the terms and conditions of the licence,
(d)  compliance with any order or direction issued under this Act with which the holder of the licence must comply,
(e)  Division 1A of this Part,
(f)  an application under section 71W (Access licence may nominate water supply works) or 71T (Assignment of water allocations between access licences),
(g)  any other purpose prescribed by the regulations.
(6)  The period for which a term transfer is in force may be reduced with the consent of the transferee.
(7)  Despite subsection (6), the Minister may consent to a reduction of the period of a term transfer without the consent of the transferee if satisfied that the transferee has failed to comply with any obligations imposed on the transferee under subsection (5).
(7A)  The period for which a term transfer has effect may be extended, with the consent of the transferee, while the term transfer remains in force.
(8)  During the period for which a term transfer is in force, the actual holder of the licence is entitled to apply in accordance with this Act for registration of any dealing with respect to the licence, but, in the case of a dealing other than a dealing under section 71M, only with the written consent of the transferee.
(9)  This section applies to a term transfer of such water entitlements as are conferred by a holding in an access licence in the same way as it applies to the transfer of the whole of the water entitlements conferred by an access licence. In so applying this section, a reference in this section to the holder of an access licence is to be read as the holder of the holding in the access licence.
(10)  However, holdings in access licences may be the subject of a term transfer only if the co-holders hold as tenants in common.
(11)  A person who holds a holding in an access licence may transfer such water entitlements as are conferred by the holding without the consent of any of the other co-holders of the access licence.
s 71N: Ins 2004 No 39, Sch 3 [6]. Am 2005 No 118, Sch 1 [21] [22]; 2009 No 56, Sch 1.44 [4].
71O   Conversion of access licence to new category
(cf former s 71B)
(1)  On the application of the holder of an access licence, the Minister may consent to the cancellation of the licence and the grant of a new licence of a different category or subcategory.
(2)  Subsection (1) does not apply to a local water utility access licence or to a supplementary water access licence.
(3)  An access licence arising under this section may only be granted—
(a)  subject to the mandatory conditions applicable to the category or subcategory of licence to which it belongs, and
(b)  for a period no greater than the residue of the period for which the cancelled access licence would have had effect if it had not been cancelled.
(4)  An access licence arising under this section may only be granted in relation to the same water management area or water source as the cancelled access licence.
(5)  Any interests that subsisted in the cancelled access licence, as in force immediately before it was cancelled, become equivalent interests in the new access licence.
(6)    (Repealed)
s 71O (previously s 71B): Ins 2002 No 138, Sch 2 [20]. Am 2004 No 39, Sch 3 [7] [8]. Renumbered 2004 No 39, Sch 3 [25].
71P   Subdivision and consolidation of access licences
(cf former s 71C)
(1)  On the application of the holder of the access licence or access licences concerned, the Minister may consent—
(a)  to the subdivision of an access licence—by cancelling the licence and granting two or more access licences in its place, or
(b)  to the consolidation of two or more access licences that relate to the same water management area or water source and are of the same category or subcategory—by cancelling the licences and granting a single licence in their place.
(2)  Access licences arising from a subdivision referred to in subsection (1) (a) may only be granted—
(a)  with combined share components and combined extraction components no greater than the corresponding components of the cancelled access licence, and
(b)  subject to the same mandatory conditions as those to which the cancelled access licence was subject, and
(c)  for a period no greater than the residue of the period for which the cancelled access licence would have had effect if it had not been cancelled.
(3)  Access licences arising from a consolidation referred to in subsection (1) (b) may only be granted—
(a)  with combined share components and combined extraction components no greater than the sum of the corresponding components of the cancelled access licences, and
(b)  subject to conditions consistent with those to which the cancelled access licences were subject, and
(c)  for a period no greater than the residue of the period for which the earliest expiring of the cancelled access licences would have had effect if they had not been cancelled.
(4)  An access licence arising from a subdivision or consolidation may only be granted in relation to the same water management area or water source as the cancelled access licence or licences.
(5)  Any interests that subsisted in the cancelled access licences, as in force immediately before they were cancelled, become equivalent interests in the new access licences.
(6)    (Repealed)
s 71P (previously s 71C): Ins 2002 No 138, Sch 2 [20]. Am 2004 No 39, Sch 3 [9] [10]. Renumbered 2004 No 39, Sch 3 [25].
71Q   Assignment of rights under access licence
(cf former s 71D)
(1)  On the application of the holder or holders of two or more access licences of the same category with respect to the same water management area or water source, the Minister may consent to the assignment of rights between the access licences concerned by—
(a)  reduction of the share or extraction component, or both, of one or some of the licences, and
(b)  a corresponding increase in the share or extraction component, or both, of the others.
(2)–(4)    (Repealed)
(5)  This section does not authorise the reduction of the share or extraction component, or both, of a local water utility access licence.
(6)  An access licence whose share or extraction component is varied under this section is to be made subject to the mandatory conditions applicable to an access licence with a share or extraction component as so varied.
(7)  An access licence is not cancelled merely because, as a result of an assignment under this section, it has a zero share component or zero extraction component (or both) for the time being.
s 71Q (previously s 71D): Ins 2002 No 138, Sch 2 [20]. Am 2004 No 39, Sch 3 [11] [12]. Renumbered 2004 No 39, Sch 3 [25].
71QA   Assignment of individual daily extraction component
(1)  For the purposes of this section, an individual daily extraction component means an entitlement of the holder of an access licence to take a specified volume of water on a specified day, whether or not it is limited to specified rates or in specified circumstances.
(2)  The holders of 2 or more access licences may apply to the Minister for consent to the assignment of the rights to individual daily extraction components between one or more of the licences.
(3)  An application may be made to assign an individual daily extraction component for a specified day or a specified period, or in specified circumstances, or any or all of them, and may relate to the whole or part of an individual daily extraction component.
(4)  The Minister may consent to the assignment of rights between the access licences concerned by—
(a)  a reduction or removal of the whole or part of one or more individual daily extraction components of one or more of the licences, and
(b)  a corresponding increase in the individual daily extraction components of the others.
(5)  A reduction or increase may be specified by the Minister to have effect for a specified period, or in specified circumstances, or both.
(6)  The assignment of a right to an individual daily extraction component does not entitle the assignee to take water in excess of the volume the assignee is otherwise authorised to take.
(7)  A holder of an access licence may acquire a right to an individual daily extraction component whether or not the holder has any available water allocation credited to the holder’s water allocation account.
(8)  An access licence is not cancelled merely because, as a result of an assignment under this section, it has a zero extraction component for the time being.
(9)  This section is taken to authorise the amendment of a management plan to provide for access licence dealing rules relating to dealings under this section as if the amendment were authorised by the plan and section 45 (1) (b) applies accordingly.
s 71QA: Ins 2018 No 31, Sch 1[27].
71R   Amendment of share component of access licence
(cf former s 71E)
(1)  On the application of the holder of an access licence, the Minister may consent to the cancellation of the access licence and the grant of a new access licence with a share component specifying a different water source or water management area.
(2)  Subsection (1) does not apply to a local water utility access licence or supplementary water access licence.
(3)  An access licence arising under this section may only be granted—
(a)  subject to the mandatory conditions applicable to an access licence of the same category or subcategory for the water management area or water source specified in its share component, and
(b)  for a period no greater than the residue of the period for which the cancelled access licence would have had effect if it had not been cancelled.
(4)  Any interests that subsisted in the cancelled access licence, as in force immediately before it was cancelled, become equivalent interests in the new access licence.
(5)    (Repealed)
s 71R (previously s 71E): Ins 2002 No 138, Sch 2 [20]. Am 2004 No 39, Sch 3 [13] [14]. Renumbered 2004 No 39, Sch 3 [25].
71S   Amendment of extraction component of access licence
(cf former s 71F)
(1)  On the application of the holder of an access licence, the Minister may consent to the amendment of the extraction component of the licence so as—
(a)  to vary the times, rates or circumstances specified in the licence with respect to the taking of water under the licence, or
(b)  to vary the areas or locations specified in the licence as the areas or locations from which water may be taken under the licence.
(2)  The area or location arising from a variation referred to in subsection (1) (b) must relate to the same water management area or water source as that to which the original area or location related.
(3)  An access licence that is amended under this section is subject to the mandatory conditions applicable to the licence as so amended.
(4)  The Minister may, by order published in the Gazette, declare that the right to apply for an amendment of the extraction component of an access licence for a specified water management area or water source is to be acquired by auction, tender or other means specified in the order.
s 71S (previously s 71F): Ins 2002 No 138, Sch 2 [20]. Am 2004 No 39, Sch 3 [15]. Renumbered 2004 No 39, Sch 3 [25]. Am 2005 No 118, Sch 1 [23].
71T   Assignment of water allocations between access licences
(cf former s 71G)
(1)  Water allocations may be assigned from one access licence to another in accordance with this section.
(2)  The holders of two or more access licences may apply to the Minister for consent to the assignment of water allocations between the water allocation accounts for their respective access licences.
(3)  Such an application may only be made with respect to water allocations currently credited to the water allocation account for the access licence from which water allocations are to be assigned.
(4)  On completing an assignment to which consent has been given under this section, the parties to the assignment must cause notice of that fact to be given to the Minister.
(5)    (Repealed)
s 71T (previously s 71G): Ins 2002 No 138, Sch 2 [20]. Am 2004 No 39, Sch 3 [16]. Renumbered 2004 No 39, Sch 3 [25]. Am 2010 No 133, Sch 2 [20].
71U   Interstate transfer of access licences
(cf former s 71H)
(1)  The Minister may enter into an agreement with a Minister of any other State or Territory for the interstate transfer of access licences and their corresponding interstate equivalents.
(2)  On an application made pursuant to such an agreement, the Minister may consent to the grant or cancellation of an access licence to give effect to such a transfer.
(3)  In respect of each access licence arising under this section, the Minister—
(a)  must impose on the licence such mandatory conditions as any relevant management plan may require to be imposed on the licence, and
(b)    (Repealed)
(4)  The provisions of section 63 (4), (5), (6) and (7) and Part 5 of Chapter 3 apply to an access licence arising under this section in the same way as they apply to an access licence granted under section 63.
s 71U (previously s 71H): Ins 2002 No 138, Sch 2 [20]. Am 2004 No 39, Sch 3 [17] [18]. Renumbered 2004 No 39, Sch 3 [25]. Am 2018 No 31, Sch 1 [28].
71V   Interstate assignment of water allocations
(cf former s 71I)
(1)  The Minister may enter into an agreement with a Minister of any other State or Territory for the interstate assignment of water allocations and their corresponding interstate equivalents.
(2)  On an application made pursuant to such an agreement, the Minister may consent to the crediting of water allocations to the water allocation account for an access licence, or the debiting of water allocations from the water allocation account for an access licence, to give effect to such an assignment.
(3)  Such an application may only be made with respect to water allocations currently credited to the water allocation account for the access licence from which water allocations are to be assigned.
s 71V (previously s 71I): Ins 2002 No 138, Sch 2 [20]. Am 2004 No 39, Sch 3 [19]. Renumbered 2004 No 39, Sch 3 [25]. Am 2010 No 133, Sch 2 [21]–[23].
71W   Access licence may nominate water supply works and extraction points
(1)  On the application of the holder of an access licence made in accordance with the regulations, the Minister may consent to the amendment of the licence so as—
(a)  to nominate a specified water supply work or extraction point in the water management area or water source nominated by the licence as a work or point by means of or from which water credited to the licence may be taken, or
(b)  to nominate a specified water supply work or extraction point in another water management area or another water source as a work or point by means of or from which water credited to the licence may be taken, or
(c)  to nominate a specified water supply work or extraction point in a NSW water tagging zone as a work or point by means of or from which water credited to the licence may be taken, or
(d)  to nominate a specified extraction point in an interstate water tagging zone as an extraction point from which water credited to the licence may be taken,
or so as to withdraw such a nomination.
(2)  For the avoidance of doubt, a water supply work may be nominated under subsection (1) even though no approval is required to be held in relation to the work.
(3)  The relevant notifier for a water supply work must notify the Minister, in accordance with the regulations, of any of the following—
(a)  that the work has been nominated (whether by reference to the work itself or by reference to an extraction point at which it is located) as a work from which water credited to the interstate equivalent of an access licence may be taken,
(b)  that such a nomination has been withdrawn.
Tier 3 penalty.
(4)  The regulations may make provision for or with respect to—
(a)  the making of nominations referred to in subsection (1), including—
(i)  the identification of water supply works or extraction points for the purposes of nominations, and
(ii)  the circumstances in which particular nominations are, or are not, permitted under that subsection, and
(b)  the giving of notifications to the Minister under subsection (3), including the form and timing of such notifications.
(5)  In this section—
relevant notifier for a water supply work means—
(a)  if an approval is in force for the work—the holder of the approval, or
(b)  if there is no approval in force for the work—the owner of the work.
water supply work includes a reference to a group of such works.
s 71W (previously s 71J): Ins 2002 No 138, Sch 2 [20]. Am 2004 No 39, Schs 3 [20], 4 [14]. Renumbered 2004 No 39, Sch 3 [25]. Am 2005 No 118, Sch 1 [24]. Subst 2014 No 48, Sch 1.9 [1].
71X   Dealings on default
(1)  A security holder (or a receiver referred to in section 115A of the Conveyancing Act 1919) may transfer the access licence or holding in an access licence over which the security interest is held under this section if—
(a)  default is made in the payment of any debt or performance of any other obligation under a contract or other legally enforceable arrangement secured by the security interest, and
(b)  notice is served, in accordance with the regulations, on the holder or co-holder of the licence who is in default (the defaulter), on any other person having a registered security interest (whether or not having less priority), or who has registered a caveat, over the licence or holding and on the Minister, and
(c)  the defaulter fails, for a period of not less than 30 days after service of the notice, to rectify the default, and
(d)  the security holder or receiver offers the licence or holding for sale, and
(e)  the security holder or receiver takes all reasonable steps to secure the highest possible amount by the sale, and
(f)  application is made to the Minister in the approved form, to record the transfer of the licence or holding in the Access Register to give effect to the sale, or, if the security holder is unable to realise the money secured by the security interest by sale after taking all reasonable steps to do so, to record the transfer of the licence or holding to the security holder in the Access Register.
(2)  The purchase money from a sale under this section is to be applied as follows—
(a)  firstly, in payment of any outstanding fees, charges or civil penalties incurred in respect of the licence or holding,
(b)  secondly, in payment of the expenses of the sale and costs of the transfer,
(c)  thirdly, in payment of money then due or owing to any holders of registered security interests over the licence or holding in order of their priority,
(d)  fourthly, in payment of any residue to the defaulter.
(3)  For the purposes of a transfer under this section, the security holder is taken to be the holder or co-holder of the licence and, accordingly—
(a)  the security holder may do any thing necessary to effect the transfer and may give any discharge to the transferee that could be given by the holder or co-holder of the licence, and
(b)  the transferee need make no enquiry in relation to the sale that the purchaser would not be required to make of the holder or co-holder of the licence.
(4)  On registration of the transfer, the licence or holding is held by the transferee freed and discharged from the registered security interest and any other registered security interest over the licence or holding of less priority. Otherwise the transferee holds the licence or holding with an equivalent interest in the licence or holding to the interest held by the defaulter and subject to the same conditions and obligations (including the payment of any outstanding fees, charges or civil penalties incurred in respect of the licence or holding) to which the defaulter would, but for the transfer, be subject under this Act.
(5)  An affected person may apply, in accordance with rules of court, to the Land and Environment Court for an order prohibiting the registration of the transfer of an access licence or holding in an access licence under this section. The Court may make such an order if it is satisfied that the security holder or receiver has failed to comply with the requirements of subsection (1) or (2) with respect to the transfer of the licence or holding.
(6)  If a security holder or receiver fails to comply with the requirements of subsection (1) or (2) with respect to the transfer of an access licence or holding in an access licence under this section, the security holder is liable to pay to any affected person who suffers pecuniary loss that is attributable to that failure compensation with respect to that loss.
(7)  The compensation is recoverable in proceedings in the Land and Environment Court by the person who claims to have sustained the loss.
(8)  In this section—
affected person, in relation to the transfer of an access licence or holding in an access licence under this section, means any person on whom notice is required to be served under subsection (1) (b), or who is entitled to purchase money from a sale under subsection (2), in relation to the transfer.
s 71X: Ins 2004 No 39, Sch 3 [21].
71Y   General
(cf former s 71K)
(1)  An application for the Minister’s consent to a general dealing, dealing on default or assignment under section 71QA, 71T or 71V is to be dealt with in accordance with—
(a)  the water management principles, and
(b)  the access licence dealing principles, and
(c)  the access licence dealing rules established by any relevant management plan.
(2)  Subsection (1) does not require a dealing to be dealt with in accordance with the access licence dealing rules established by a relevant management plan to the extent to which the rules are suspended by an order in force under section 49A or 49B.
(3)  In the case of an application under section 71R—
(a)  the management plan for the water management area or water source to which the share component of the licence currently relates, and
(b)  the management plan for the water management area or water source to which the share component of the licence is intended to relate if the application is granted,
are each relevant management plans.
(4)  Except to the extent to which the regulations so provide, Division 2 does not apply to or in respect of an application under this Division.
(5)  Subject to the regulations, notice of the Minister’s determination of an application under this Division is to be given to the applicant or applicants as soon as practicable after the determination is made.
(6)  The Minister may, if the Minister thinks it appropriate, deal with 2 or more related dealings under this Act at the same time, and in the same application, as if they comprised one dealing.
s 71Y (previously s 71K): Ins 2002 No 138, Sch 2 [20]. Am 2004 No 39, Sch 3 [22]–[24]. Renumbered 2004 No 39, Sch 3 [25]. Am 2005 No 118, Sch 1 [25]; 2008 No 73, Sch 6 [12]; 2010 No 133, Sch 2 [24]; 2018 No 31, Sch 1[29] [30].
71Z   Access licence dealing principles
(cf former s 71L)
(1)  The Minister may, by order published on the NSW legislation website, establish access licence dealing principles—
(a)  to regulate or prohibit the kinds of access licence dealing rules that may be established by a management plan, and
(b)  to regulate or prohibit the kinds of dealings that may be effected under this Division, and
(c)  to establish conversion factors applicable to the share components of access licences in respect of which dealings are effected under this Division.
(2)  The access licence dealing principles may include provisions relating to any or all of the following—
(a)  the establishment of interstate water tagging zones,
(b)  the establishment of NSW water tagging zones,
(c)  the criteria to be considered for the granting of an application with respect to a nomination referred to in section 71W (1) (b), (c) or (d).
(3)  The access licence dealing principles prevail over the access licence dealing rules to the extent of any inconsistency.
s 71Z (previously s 71L): Ins 2002 No 138, Sch 2 [20]. Renumbered 2004 No 39, Sch 3 [25]. Am 2005 No 118, Sch 1 [26] [27]; 2009 No 110, Sch 1 [1]; 2014 No 48, Sch 1.9 [2].
71ZA   (Repealed)
s 71ZA: Ins 2005 No 118, Sch 2 [1]. Rep 2009 No 110, Sch 1 [2].
Division 4A Devolution of, and tenancy arrangements and other matters relating to, access licences
ch 3, pt 2, div 4A: Ins 2004 No 39, Sch 3 [26].
72   Devolution of access licences
(1)  A person to whom an access licence or holding in an access licence has devolved by operation of law may apply to the Minister in the approved form to be recorded in the Access Register as the holder or a co-holder of the licence or holding.
(2)  Without limiting subsection (1), such an application may be made—
(a)  by an executor, administrator or other person claiming to be entitled to be registered on the death, will or intestacy of the holder or co-holder of the licence or holding, or otherwise, as the holder or co-holder, or
(b)  by or on behalf of a person who was a co-holder as joint tenant of an access licence or holding in an access licence on the death of a person recorded in the Access Register with the person as a co-holder as joint tenant of the licence or holding, or
(c)  by or on behalf of a person that a court has ordered is to be recorded in the Access Register as the holder or co-holder of the licence or holding.
(3)  The application must be supported by such evidence of the applicant’s entitlement to be recorded in the Access Register as a holder or co-holder as the Minister may require.
(4)  The Minister is to record the person as the holder or co-holder of the licence or holding—
(a)  if satisfied that the applicant is entitled to be recorded in the Access Register as the holder or co-holder, and
(b)  if nothing recorded in the Access Register prevents the registration.
(5)  This section applies to 2 or more persons to whom rights have devolved in the same way as it applies to a single person to whom rights have devolved.
s 72: Rep 2002 No 138, Sch 2 [20]. Ins 2004 No 39, Sch 3 [26].
72A   Special provisions relating to co-holdings in access licences
(1)  Subject to sections 71M, 71N and 74, any dealing in relation to an access licence held by co-holders, and any application for the Minister’s consent to such a dealing, requires the consent of all of the co-holders (a co-holder’s consent).
(2)  A co-holder of an access licence may, in accordance with the regulations—
(a)  appoint another co-holder (the first co-holder’s nominee), to give, on his or her behalf, any co-holder’s consent required by subsection (1) in relation to an application for the Minister’s consent to a dealing, and
(b)  revoke any appointment that the co-holder has made under paragraph (a).
(3)  The same person may be nominee for more than one co-holder.
(4)  Any co-holder’s consent given by the co-holder’s nominee in relation to an application for the Minister’s consent to a dealing in an access licence is taken to have been given by the co-holder.
(5)  The revocation of a nominee’s appointment under subsection (2) (b) does not affect any co-holder’s consent given by the nominee before the revocation took effect.
s 72A: Ins 2005 No 118, Sch 1 [28]. Subst 2008 No 73, Sch 4 [7].
73   Changes in co-holder’s tenancy arrangements
(1)  A co-holder of an access licence (whether held as joint tenant or tenant in common) may apply to the Minister in the approved form to record an alteration in the way in which the licence is held by the co-holders (the co-holder’s tenancy arrangement) in the Access Register.
(2)  The alteration to the co-holder’s tenancy arrangement takes effect when it is recorded in the Access Register.
(3)  The Minister must not record the alteration unless—
(a)  each co-holder of the licence that is affected by the alteration has consented to it being recorded, and
(b)  any holder of a security interest over the licence or a holding in the licence that is affected by the alteration has consented to it being recorded.
(4)  Subsection (3) (a) does not apply where a joint tenant unilaterally wishes to sever a joint tenancy by relinquishing the joint tenancy.
(5)  The Minister may require an applicant to verify any information provided for the purposes of this section by statutory declaration.
s 73: Rep 2002 No 138, Sch 2 [20]. Ins 2004 No 39, Sch 3 [26].
74   Exit from co-held access licence
(1)  On the application of one or more of the co-holders of an access licence (the original access licence), the Minister may consent to the extinguishment of the holdings of one or more co-holders in the licence and the granting of a new access licence in accordance with Schedule 1B.
(2)  If the Minister extinguishes holdings in the original licence and grants a new access licence under subsection (1), the Minister is to reduce the entitlements under the original access licence to the extent necessary to reflect the entitlements conferred by the new licence.
(3)  An application may not be made under subsection (1) without the consent in writing of all of the co-holders of the access licence concerned or of co-holders who hold a majority share of the holdings under the licence.
(4)  On the application of one or more co-holders of an access licence, the Supreme Court may, if it considers it just and equitable to do so, order that the consent referred to in subsection (3) need not be obtained and may make ancillary orders for the purposes of this section.
(5)  When determining such an application where the water supply work nominated by the access licence concerned is shared by some or all of the co-holders of the licence, the Supreme Court is to take into consideration the likely effect that the taking of action under subsection (1) would have on the use of that work and the co-holders who have the benefit of it.
(6)  This section does not apply to an access licence if—
(a)  there is any money due under this Act in respect of the access licence, including any civil penalties imposed under this Act, or
(b)  the co-holders hold the licence as joint tenants, or
(c)  the access licence dealing principles or the access licence dealing rules prevent an application being made under this section.
(7)  Schedule 1B has effect.
s 74: Rep 2002 No 138, Sch 2 [20]. Ins 2005 No 118, Sch 1 [29].
Division 5 Water return flows
75   Water return flow rules
(1)  The regulations may establish water return flow rules for the purposes of this Division.
(2)  Such a regulation may not be made except with the concurrence of the Minister for the Environment.
s 75: Am 2008 No 73, Sch 6 [1]; 2018 No 31, Sch 1 [1].
76   Water allocations may be credited
(1)  Water allocations that have been used by the holder of a prescribed access licence may be regained in accordance with this section.
(2)  The holder of a prescribed access licence may apply to the Minister for used water allocations to be recredited to the water allocation account for the licence.
(3)  An application under this section is to be dealt with in accordance with the water return flow rules.
(4)  In this section—
prescribed access licence means an access licence of a category or subcategory prescribed by the regulations for the purposes of this section.
s 76: Am 2010 No 133, Sch 2 [25]; 2014 No 33, Sch 1.18 [1] [2].
Division 6 Surrender, suspension, cancellation and compulsory acquisition of access licences
77   Surrender of access licences
(1)  Subject to subsection (2B), the holder of an access licence may surrender the licence at any time by notice in writing sent to the Minister.
(2)  In the case of an access licence in respect of which any third party interest is entered on the Access Register of access licences, the notice of surrender must be accompanied by documentary evidence that the holder of that interest consents to the licence being surrendered.
(2B)  The Minister may, by written notice served on the holder of the access licence, refuse to accept the surrender of the access licence if the Minister considers it appropriate to do so or in such other circumstances as may be prescribed by the regulations.
(3)  If the notice of surrender of an access licence provides that the surrender is not to take effect until after a date specified in the notice, the Minister is not to record the surrender under section 71A in the Access Register before that date.
(4)  Without limiting section 77A or 78, the Minister may—
(a)  cancel a surrendered access licence, or
(b)  record in the Access Register that the Minister is the holder of the surrendered access licence.
(5)  Subsection (4) (b) does not prevent the Minister from subsequently dealing with a surrendered access licence in any manner that a holder of the licence may deal with it (for example, transferring the licence).
s 77: Am 2004 No 39, Sch 4 [15]; 2008 No 73, Sch 6 [11]; 2014 No 48, Sch 1.10 [6]–[9].
77A   Cancellation of access licences that can no longer be used or are no longer required
(1)  The Minister is to cancel a supplementary water access licence when the relevant management plan ceases to make provision for the extraction of water under such an access licence unless the access licence is a regulated river supplementary water access licence.
(2)  The Minister is to cancel a specific purpose access licence if the Minister is of the opinion that the purpose for which the licence was granted no longer exists.
(2A)  Subsection (2) does not apply to an access licence in relation to which action is taken by the Minister under section 8D.
(3)  The regulations may prescribe criteria which the Minister is to consider when determining under subsection (2) whether the purpose for which a specific purpose access licence was granted no longer exists.
(4)  The Minister is to cancel an access licence of a category prescribed by regulations referred to in section 57 (1) (l) (other than a specific purpose access licence) if the regulations prescribe the period for which such a licence is to have effect and the period has expired.
(5)  The Minister is to cancel an access licence if the period for which the licence is to have effect was specified in an order under section 65 and the period has expired.
(6)  The Minister may cancel any access licence of which the Minister is the holder.
s 77A: Ins 2004 No 39, Sch 4 [16]. Am 2005 No 118, Sch 1 [30]; 2008 No 73, Sch 6 [2]; 2014 No 48, Sch 1.2 [4].
78   Suspension and cancellation of access licences
(1)  The Minister may suspend or cancel an access licence on any one or more of the following grounds—
(a)  that the holder of the licence has failed to comply with any term or condition to which the licence is subject,
(b)  that the holder of the licence has been convicted of an offence against this Act or the regulations,
(c)  if any fees, charges or civil penalties in respect of the licence have not been paid, whether or not those fees, charges or civil penalties were incurred by the current holder of the licence,
(d)  that the holder of the licence has failed to comply with any direction given to the holder under this Act in connection with the licence,
(e)  that the licence was granted as a result of false, misleading or materially inaccurate information supplied by or on behalf of the applicant.
(2)  Instead of or in addition to suspending or cancelling an access licence, the Minister may order a major utility or local water utility to pay to the Minister a civil penalty of an amount not exceeding $500,000 and a further civil penalty of an amount not exceeding $20,000 for each day that the circumstances giving rise to the initial civil penalty continue to exist.
(3)  During any period of suspension of an access licence—
(a)  the holder of the licence is not authorised by the licence to order or take any water credited to the water allocation account for the licence, and
(b)  the holder of the licence is not entitled to apply for the registration of any dealing with respect to the licence, and
(c)  appropriate water allocations continue to accrue to the water allocation account for the licence, and
(d)  fees and charges payable under this Act in respect of the licence will continue to apply.
(4)    (Repealed)
Note—
See also section 11 (1) (e) of the Natural Resources Access Regulator Act 2017 and Schedule 2 to that Act.
s 78: Am 2002 No 138, Sch 2 [21]; 2004 No 39, Sch 4 [17]–[19]; 2005 No 118, Sch 1 [31]; 2008 No 73, Sch 6 [13] [14]; 2010 No 133, Sch 2 [26]; 2017 No 64, sec 19.
78A   Notification of intention to suspend, cancel or require payment of penalty
(1)  Action under section 77A or 78 may not be taken in relation to an access licence unless the Minister—
(a)  has given written notice to the holder of the access licence, and if there are security holders in relation to the access licence to those security holders, that the Minister proposes to take such action, and
(b)  has given any such person that has been notified a reasonable opportunity to make submissions to the Minister with respect to the proposed action, and
(c)  has taken any such submissions into consideration.
(1A)  If the Minister fails to give notice to the holder of an access licence or a security holder before taking action under section 77A or 78, the Minister is taken to have complied with subsection (1) (a)–(c) in relation to that holder if the Minister took all reasonable steps to give notice under subsection (1) to the holder within the period of 28 days before taking the action.
(2)  Subsection (1) (b) and (c) do not apply to the cancellation of an access licence under section 77A (1), (4), (5) or (6).
(3)  Despite subsection (1), a security holder is not entitled to make a submission in relation to the proposed suspension or cancellation of an access licence other than a submission to the effect that the security holder is prepared to make arrangements satisfactory to the Minister for the payment of any outstanding fee, charge or civil penalty if such payment would result in the Minister not proceeding with the suspension or cancellation.
Note—
See also section 11 (1) (e) of the Natural Resources Access Regulator Act 2017 and Schedule 2 to that Act.
s 78A: Ins 2004 No 39, Sch 4 [20]. Am 2017 No 64, sec 19; 2018 No 31, Sch 1 [31].
79   Compulsory acquisition of access licences
(1)  The Minister may, by notice in writing served on their holders, compulsorily acquire access licences if of the opinion that, in the special circumstances of the case, the public interest requires their compulsory acquisition.
(2)  A person from whom an access licence is compulsorily acquired under subsection (1) is entitled to compensation from the State for the market value of the licence as at the time it was compulsorily acquired.
(3)  The amount of compensation payable is to be determined by agreement between the Minister and the person entitled to compensation or, if agreement cannot be reached, is to be determined by the Valuer-General.
(4)  A person who is dissatisfied with the amount of compensation offered to the person under this section, or with any delay in the payment of compensation, may appeal to the Land and Environment Court.
(5)  The regulations may make provision for or with respect to the payment of compensation under this section.
(6)  Nothing in this section prevents the Ministerial Corporation from acquiring an access licence by way of transfer.
(7)  For the avoidance of doubt, it is declared that a reduction of the water entitlements and allocations under an access licence as a consequence of a variation in the mandatory conditions of the licence does not constitute the compulsory acquisition of an access licence or any part of an access licence.
Divisions 7, 8
80–83A  (Repealed)
ch 3, pt 2, div 7: Rep 2004 No 39, Sch 4 [21].
s 80: Am 2002 No 138, Sch 2 [22]. Rep 2004 No 39, Sch 4 [21].
s 81: Am 2002 No 138, Sch 2 [23]. Rep 2004 No 39, Sch 4 [21].
s 82: Am 2002 No 138, Sch 2 [24] [25]. Rep 2004 No 39, Sch 4 [21].
ch 3, pt 2, div 8, hdg: Subst 2002 No 138, Sch 2 [26]. Rep 2004 No 39, Sch 3 [27].
s 83: Am 2001 No 56, Sch 1.22 [7] [8]. Subst 2002 No 138, Sch 2 [27]. Rep 2004 No 39, Sch 3 [27].
s 83A: Ins 2002 No 138, Sch 2 [27]. Rep 2004 No 39, Sch 3 [27].
Division 8A Register of available water determinations and accounting for water
ch 3, pt 2, div 8A: Ins 2004 No 39, Sch 4 [22].
84   Register of available water determinations
(1)  The Minister is to cause a register to be kept of each available water determination made under section 59.
(2)  The regulations may make provision for or with respect to the form in which such a register is to be kept and the particulars that are to be recorded in such a register.
(3)  The register must be made available for public inspection during normal business hours at such places as may be prescribed by the regulations.
s 84: Am 2002 No 138, Sch 2 [28]. Subst 2004 No 39, Sch 4 [22].
85   Keeping of water allocation accounts
(1)  For each access licence, the Minister is to cause an account to be kept of—
(a)  the water allocations that are acquired under section 71T or 71V in relation to the water allocation account for the licence or otherwise credited from time to time to the water allocation account for the licence, and
(b)  the water allocations that are taken or assigned under section 71T or 71V or otherwise debited or withdrawn from time to time in relation to the water allocation account for the licence, and
(c)  the water allocations that are recredited to the water allocation account for the licence from time to time under section 76.
(2)  Water allocations are to be credited to the water allocation account for an access licence in accordance with any relevant available water determination.
(3)  Despite subsection (2), an amount of water may be credited to the water allocation account for an access licence as a result of arrangements made with the Minister for the early release of water by Snowy Hydro Limited. However, the same amount of water as is so credited is to be debited subsequently in accordance with the directions of the Minister.
(4)  The first amount of water to be credited to the water allocation account of an access licence granted part of the way through an accounting period is to bear the same proportion to the amount of available water that would be allocated to the licence if it had existed for the whole of the accounting period as the part of the accounting period remaining when the licence was granted bears to the whole of the accounting period.
(5)  Water allocations in a water allocation account may be withdrawn by the Minister to the extent provided by the relevant management plan, as referred to in section 21 (c).
(6)  The regulations may make provision for or with respect to the form in which a water allocation account is to be kept under this section and the particulars that are to be recorded in such a water allocation account.
s 85: Am 2002 No 138, Sch 2 [29]–[31]. Subst 2004 No 39, Sch 4 [22]. Am 2010 No 133, Sch 2 [27]–[29].
85AA   Daily extraction accounts
(1)  Individual daily extraction components imposed on an access licence are to be recorded in the water allocation account.
(2)  For each access licence, the Minister is to cause an account to be kept of—
(a)  any individual daily extraction component that is acquired under section 71QA, and
(b)  any individual daily extraction component that is assigned under section 71QA.
(3)  The regulations may make provision for or with respect to the particulars that are to be recorded in a water allocation account for the purposes of this section.
s 85AA: Ins 2018 No 31, Sch 1[33].
85A   Authorisation to take water from uncontrolled flows
(1)  This section applies to a water source in respect of which a management plan makes provision for the taking of water from uncontrolled flows.
(2)  The management plan may make provision for or with respect to the circumstances in which the holders of one or more of the following licences that relate to a water source to which this section applies are authorised to take water from the water source that has not been credited to the water allocation accounts of those licences—
(a)  regulated river (high security) access licences,
(b)  regulated river (general security) access licences,
(c)  floodplain harvesting access licences,
(d)  any other access licences prescribed by the regulations.
(3)  The management plan may make provision for or with respect to subsequent adjustments to the water allocation accounts for the licences.
(4)–(7)    (Repealed)
s 85A: Ins 2004 No 39, Sch 4 [22]. Am 2008 No 73, Sch 5 [3] [4]; 2009 No 56, Sch 1.44 [5]; 2010 No 133, Sch 2 [30]; 2014 No 48, Sch 1.8 [5]; 2018 No 31, Sch 1 [34].
85B   (Repealed)
s 85B: Ins 2004 No 39, Sch 4 [22]. Rep 2008 No 73, Sch 1 [2].
Division 9 Compensation relating to access licences
ch 3, pt 2, div 9, hdg: Subst 2004 No 39, Sch 4 [23].
86   Definitions
In this Division—
compensation includes damages or any other form of monetary compensation.
the Crown means the Crown within the meaning of the Crown Proceedings Act 1988, and includes any officer, employee or agent of the Crown.
s 86: Rep 2004 No 39, Sch 3 [27]. Ins 2005 No 118, Sch 1 [32].
87   Compensation payable in certain circumstances for reductions in water allocations arising during initial period for which management plan is in force
(1)  A holder of an access licence (other than a supplementary water access licence that is not a regulated river supplementary water access licence) whose water allocations are reduced as a consequence of the variation of a bulk access regime may claim compensation for loss suffered by the holder as a consequence of that reduction.
(2)  Despite subsection (1), compensation may not be claimed if the variation of the bulk access regime results from—
(a)    (Repealed)
(a1)  a management plan that is made following the expiry of the management plan that established the bulk access regime, or
(b)  a management plan that has been made on the basis of a draft management plan prepared by a management committee, and is in the form in which it was finally submitted to the Minister by the committee, as referred to in section 41 (1) (a), or
(c)  an amendment of a management plan by the Minister under section 45 that is authorised by the plan or that is required to give effect to a decision of the Land and Environment Court relating to the validity of the plan, or
(d)  an amendment made by an Act to a management plan.
(3)  The regulations may make provision for or with respect to the manner and form in which such a claim is to be made.
(4)  The Minister may determine whether or not compensation should be paid and, if so, the amount of any such compensation and the manner and timing of any such payments.
(5)  The amount of any such compensation is to be determined on the advice of the Valuer-General.
(6)  In formulating advice for the Minister, the Valuer-General is to have regard to the market value of the water foregone to the claimant for compensation as a consequence of the variation of the bulk access regime.
(7)  A person who is dissatisfied with the amount of compensation offered to the person under this section, or with any delay in the payment of compensation, may appeal to the Land and Environment Court.
(8)  Payment of compensation under this section is to be made out of the Consolidated Fund which is, to the extent necessary, appropriated accordingly.
(9)  Despite the other provisions of this section, compensation may be claimed under this section only in respect of a reduction in water allocations occurring during the period for which the first management plan that established the bulk access regime concerned is in force (excluding any period for which that plan is extended under section 43A (1)).
(10)  Despite subsection (9), if the first management plan that is established for a bulk access regime is repealed under section 45 (5A) and replaced, compensation under this section may be claimed in respect of a reduction in water allocations occurring during the period of the replacement plan that ends on the day on which the first management plan would have ended if it had not been repealed.
s 87: Am 2002 No 138, Sch 2 [32]; 2004 No 39, Sch 1 [22]–[24]; 2005 No 118, Sch 1 [33]–[35]; 2014 No 48, Sch 1.2 [5]; 2018 No 31, Sch 1 [35].
87AA   Compensation payable in certain circumstances for reductions in water allocations arising after initial period that management plan is in force
(1)  This section applies to the following categories and subcategories of access licence—
(a)  regulated river (high security) access licences,
(b)  regulated river (general security) access licences,
(c)  Murrumbidgee Irrigation (conveyance) access licences,
(d)  Coleambally Irrigation (conveyance) access licences,
(e)  unregulated river access licences,
(f)  aquifer access licences,
(f1)  floodplain harvesting (regulated river) access licences,
(f2)  floodplain harvesting (unregulated river) access licences,
(f3)  regulated river supplementary water access licences,
(g)  any other category or subcategory of access licence that is prescribed by the regulations (other than excluded supplementary water access licences or specific purpose access licences).
(2)  A holder of an access licence to which this section applies whose water allocations are reduced because of a change to provisions of the relevant management plan dealing with water sharing is entitled to compensation as assessed by the Minister in accordance with subsections (5) and (6).
(3)  Despite subsection (2), the holder of an access licence is not entitled to compensation under this section if—
(a)  the reduction in water allocations occurred while the first management plan (excluding any period for which that plan was extended under section 43A (1)) was in force or during the period during which compensation is payable under section 87 (10), or
(b)  the reduction in water allocations occurred as a result of an amendment of a management plan by the Minister under section 45 that is authorised by the plan or that is required to give effect to a decision of the Land and Environment Court relating to the validity of the plan, or
(c)  the reduction in water allocations is for the purpose of restoring water to the environment because of natural reductions in inflow to the water source, including but not limited to changes resulting from climate change, drought or bushfires.
(4)  A reference in subsection (2) to a change in the provisions of a management plan includes a change between the provisions of the management plan concerned and provisions of the management plan that it replaced.
(5)  Compensation is payable to the holder of an access licence whose water allocations are reduced because of a change in the provisions of a management plan as a result of an amendment that is specified under section 46 (1) (c) by the Minister as due to a change in State government policy.
(6)  Compensation is payable as follows for a reduction in water allocations that is specified under section 46 (1) (b) by the Minister as being for the purpose of providing additional water to the environment because of more accurate scientific knowledge that demonstrates that the amount previously allocated to the environment is inadequate—
(a)  no compensation is payable for reductions of 3% or less,
(b)  compensation is payable for reductions of more than 3% over any 10-year period commencing on or after the expiration of the period for which the first management plan for the relevant area was in force (including any period for which that plan was extended under section 43A (1)),
(c)  only one third of the compensation payable for a reduction of more than 3% but not more than 6% over any applicable 10-year period is liable to be paid under this section,
(d)  only one half of the compensation payable for a reduction of more than 6% over any applicable 10-year period is liable to be paid under this section.
(7)  The regulations may make provision for or with respect to the following—
(a)  the basis on which reductions in water allocations are to be calculated or the method of determining such reductions for the purposes of this section,
(b)  the basis on which compensation is to be calculated or the method for calculating the payment of compensation for the purposes of this section,
(c)  the manner and time of payment of compensation.
(8)  This section has effect in relation to water sources that are Basin water resources only while there is in force an agreement between the State and the Commonwealth (separate from the agreement referred to in subsection (8A)) for or with respect to supplementing the payment of compensation under this section.
(8A)  This section has effect in relation to water sources that are not Basin water resources only while there is in force an agreement between the State and the Commonwealth (separate from the agreement referred to in subsection (8)) for or with respect to supplementing the payment of compensation under this section.
(9)  Despite any other provision of this section, no compensation is payable under this section in respect of a reduction in water allocations of a kind referred to in subsection (6) if the Commonwealth has not provided funding in respect of that reduction to meet its obligations under the agreements referred to in subsections (8) and (8A).
(10)  A person may appeal to the Land and Environment Court on the ground that the person is entitled to the payment of compensation under this section but has not been determined as being entitled to any compensation.
(11)  In this section—
excluded supplementary water access licence means a supplementary water access licence other than a regulated river supplementary water access licence.
s 87AA: Ins 2005 No 118, Sch 1 [36]. Am 2008 No 69, Sch 1 [1] [5]–[8]; 2008 No 73, Sch 6 [2]; 2014 No 48, Sch 1.2 [6]–[8]; 2018 No 31, Sch 1 [36].
87AB   Compensation is not payable in relation to certain conduct
(1)  Compensation is not payable by or on behalf of the Crown in respect of any relevant conduct in relation to a management plan.
(2)  In this section, relevant conduct, in relation to a management plan, means an act or omission occurring before the commencement of the management plan in respect of the content, effect or State government policy concerning the management plan, including the following—
(a)  any act or omission, whether unconscionable, misleading, deceptive or otherwise,
(b)  a representation of any kind, whether made verbally or in writing and whether negligent, false, misleading or otherwise.
(3)  This section has effect despite section 87.
(4)  In this section, a reference to a management plan includes a reference to an amendment of a management plan.
s 87AB: Ins 2005 No 118, Sch 1 [36]. Am 2008 No 69, Sch 1 [1].
87AC   No compensation payable for reductions in water allocations under certain replacement management plans
The holder of an access licence is not entitled to any compensation in respect of reductions in water allocations for the access licence resulting from provisions included in a management plan that replaces another management plan if the replaced management plan authorised the inclusion of amendments containing provisions of that kind in the replaced management plan.
s 87AC: Ins 2014 No 48, Sch 1.11 [3].
87A   No compensation payable in relation to access licence
No compensation is payable by or on behalf of the Crown to any person who suffers loss or damage because of any of the following—
(a)  the suspension or cancellation of an access licence,
(b)  any error, misdescription or omission in the Access Register,
(c)  the registration in the Access Register of any person as the holder of an access licence or a security interest in an access licence,
(d)  the registration of a caveat in the Access Register.
s 87A: Ins 2004 No 39, Sch 4 [24].
Division 10 Miscellaneous
87B   Access licence certificate
(1)  The Minister may from time to time issue a certificate in the approved form in respect of an access licence (an access licence certificate).
(2)  If the Minister issues an access licence certificate, the Minister must cancel, wholly or partially as the case requires, any access licence certificate superseded by the new certificate that is available to the Minister. For that purpose, the Minister may require production to the Minister of the superseded certificate.
(3)  If an access licence certificate is lost, mislaid or destroyed, the person to whom it was issued (or a person having legal authority to act on the person’s behalf) may apply in the approved form to the Minister for the issue of a new access licence certificate.
(4)  The application is to be supported by such evidence as the Minister may require.
(5)  The Minister may, if satisfied that an access licence certificate has been lost, mislaid or destroyed, issue a new access licence certificate or new access licence certificates for the licence or holding in an access licence to which the lost, mislaid or destroyed certificate relates and may record in the Access Register that the new certificate or certificates have been issued.
s 87B: Ins 2004 No 39, Sch 3 [28].
87C   Offences with respect to the Access Register
(1)  A person must not—
(a)  fraudulently obtain, or assist in fraudulently obtaining—
(i)  the issue or delivery of an access licence certificate, or
(ii)  a recording in the Access Register, or
(iii)  any alteration in any instrument or approved form issued by the Minister, or
(b)  fraudulently use, or assist in fraudulently using, any approved form issued by the Minister, or
(c)  by any false statement or misrepresentation obtain, or attempt to obtain, an access licence certificate or instrument evidencing any matter that may be recorded in the Access Register.
Tier 2 penalty.
(2)  Any recording in the Access Register obtained in contravention of this section is void as between all parties to the fraud.
s 87C: Ins 2008 No 73, Sch 1 [3].
88   Regulations
(1)  The regulations may make provision for or with respect to the following matters—
(a)  the procedures to be followed in relation to the making of applications under this Part,
(b)  the procedures to be followed in relation to the granting and transfer of access licences,
(c)  the procedures to be followed in relation to the transfer of water allocations in the water allocation account for an access licence,
(d)  the procedures to be followed in relation to the recrediting of water allocations in the water allocation account for an access licence,
(e)  the recording of any dealing, caveat, security interest, devolution, change in co-holder’s tenancy arrangements or other matter in relation to an access licence or holding in an access licence in the Access Register.
(2)  Without limiting subsection (1) (e), the regulations may, for the purposes of this Part, apply, adopt or incorporate, whether with or without modification, any provision of the Real Property Act 1900 or the regulations made under that Act.
(3)  The regulations may exclude a specified class of licence granted under this Act from the operation of section 11 (1) (h) of the Duties Act 1997.
s 88: Am 2004 No 39, Schs 3 [29] [30], 4 [25]; 2010 No 133, Sch 2 [31].
Part 3 Approvals
Division 1 Preliminary
88A   Application and objects of Part
(1)  This Part applies to—
(a)  each part of the State or each water source, and
(b)  each type or kind of approval that relates to that part of the State or that water source,
that is declared by proclamation to be a part of the State or water source, and type or kind of approval, to which this Part applies.
Editorial note—
For declarations proclaimed under this subsection see Gazettes No 110 of 1.7.2004, p 5004; No 120 of 29.9.2006, p 8441; No 127 of 27.10.2006, pp 8906, 8907; No 83 of 29.6.2007, p 3967; No 10 of 25.1.2008, p 151; No 11 of 31.1.2008, p 213; No 76 of 27.6.2008, p 5871; No 93 of 26.6.2009, p 3581 and No 109 of 31.7.2009, p 4665, and proclamations published on the NSW legislation website: 2010 (342) LW 1.7.2010; 2010 (739) LW 17.12.2010; 2011 (104) LW 28.2.2011; 2011 (152) LW 3.3.2011; 2011 (153) LW 3.3.2011; 2011 (521) LW 30.9.2011; 2011 (576) LW 11.11.2011; 2011 (677) LW 16.12.2011; 2012 (28) LW 27.1.2012; 2012 (135) LW 30.3.2012; 2012 (231) LW 1.6.2012; 2012 (352) LW 3.8.2012; 2012 (464) LW 14.9.2012; 2012 (496) LW 4.10.2012; 2015 (558) LW 18.9.2015; 2016 (350) LW 24.6.2016; 2016 (600) LW 30.9.2016; 2019 (318) LW 5.7.2019 and 2020 (290) LW 19.6.2020. From April 2021, PCO is no longer updating notes in provisions of in force titles about related gazette notices. To search for related gazette notices, please use the Gazette Search functionality.
(2)  Despite subsection (1), specified provisions of this Part may be declared by proclamation to apply to the whole of the State, and apply accordingly.
(2A)  To avoid doubt, the repeal, replacement or amendment of a management plan so as to remove, add or change the description of a water source described in a proclamation made under this section does not affect the application of this Part to the water source as effected by a proclamation previously made under this Part.
(3)  Without limiting section 3, the objects of this Part include ensuring that matters relating to safety are taken into consideration in granting water management work approvals for certain dams and flood retarding basins.
s 88A: Ins 2002 No 138, Sch 3 [1]. Am 2004 No 39, Sch 4 [26]; 2015 No 26, Sch 3.9[1]; 2018 No 31, Sch 1 [38]; 2020 No 30, Sch 1.48[4].
89   Water use approvals
(1)  A water use approval confers a right on its holder to use water for a particular purpose at a particular location.
(2)  A water use approval may authorise the use within New South Wales of water taken from a water source outside New South Wales.
s 89: Am 2004 No 39, Sch 4 [27].
90   Water management work approvals
(1)  There are three kinds of water management work approvals, namely, water supply work approvals, drainage work approvals and flood work approvals.
(2)  A water supply work approval authorises its holder to construct and use a specified water supply work at a specified location.
(3)  A drainage work approval confers a right on its holder to construct and use a specified drainage work at a specified location.
(4)  A flood work approval confers a right on its holder to construct and use a specified flood work at a specified location.
91   Activity approvals
(1)  There are two kinds of activity approvals, namely, controlled activity approvals and aquifer interference approvals.
(2)  A controlled activity approval confers a right on its holder to carry out a specified controlled activity at a specified location in, on or under waterfront land.
(3)  An aquifer interference approval confers a right on its holder to carry out one or more specified aquifer interference activities at a specified location, or in a specified area, in the course of carrying out specified activities.
Note—
Examples of where an aquifer interference approval may be needed include mining operations, road construction and any other large scale activity that involves excavation.
s 91: Am 2004 No 39, Sch 4 [28].
91AA   Consultation with Dams Safety NSW in relation to approvals for dams and flood retarding basins
(1)  This section applies in relation to the following kinds of water management work approvals—
(a)  a water supply work approval for the construction or use of a water supply work comprising—
(i)  a declared dam within the meaning of the Dams Safety Act 2015, or
(ii)  a dam or proposed dam that is of a class prescribed by the regulations,
(b)  a flood work approval for the construction or use of a flood retarding basin that is of a class prescribed by the regulations.
(2)  Without limiting any other provision of this Part, the Minister must, before granting a water management work approval to which this section applies or before amending any such approval—
(a)  refer the application for the approval or amendment to Dams Safety NSW, and
(b)  take into consideration any matters that are raised by Dams Safety NSW in relation to the application within 28 days (or such other period as is agreed between the Minister and Dams Safety NSW) after the application is referred to Dams Safety NSW.
(3)  In this section—
(a)  a reference to a water management work of any kind includes a reference to a corresponding kind of work to which Part 2 or 8 of the Water Act 1912 extends, and
(b)  a reference to a water management work approval includes a reference to an entitlement (within the meaning of clause 2 of Schedule 10) that confers a corresponding authority, and
(c)  a reference to the Minister includes, in the case of any such entitlement that confers a corresponding authority, a reference to the Ministerial Corporation.
s 91AA: Ins 2015 No 26, Sch 3.9[2].
Division 1A Offences
ch 3, pt 3, div 1A: Ins 2008 No 73, Sch 1 [4].
91A   Using water without, or otherwise than as authorised by, a water use approval
(1)  A person—
(a)  who uses water from a water source to which this Part applies, and
(b)  who does not hold a water use approval for that use,
is guilty of an offence.
Tier 2 penalty.
(2)  A holder of a water use approval who uses water from a water source to which this Part applies—
(a)  otherwise than as authorised by the approval, or
(b)  if an access licence specifies or restricts the purposes for which the water may be used, otherwise than as authorised by the licence,
is guilty of an offence.
Tier 2 penalty.
(3)  Without limiting subsection (2), a person uses water otherwise than as authorised by a water use approval if the person uses water while the approval is suspended.
(4)  It is a defence to a prosecution under subsection (1) if the accused person establishes that the water was used pursuant to a basic landholder right.
(5)  It is a defence to a prosecution under subsection (2) if the accused person establishes—
(a)  that the contravention of the subsection was caused by another person, and
(b)  that the other person was not associated with the accused person at the time the subsection was contravened, and
(c)  that the accused person took all reasonable steps to prevent the commission of the offence.
A person is associated with the accused person for the purposes of this subsection (but without limiting any other circumstances of association) if the person is an employee, agent, licensee, contractor or sub-contractor of the accused person.
s 91A: Ins 2008 No 73, Sch 1 [4]. Am 2010 No 133, Sch 2 [32].
91B   Constructing or using water supply work without, or otherwise than as authorised by, a water supply work approval
(1)  A person—
(a)  who constructs or uses a water supply work, and
(b)  who does not hold a water supply work approval for that work,
is guilty of an offence.
Tier 2 penalty.
(2)  A holder of a water supply work approval who constructs or uses a water supply work otherwise than as authorised by the approval is guilty of an offence.
Tier 2 penalty.
(3)  Without limiting subsection (2), a person constructs or uses a water supply work otherwise than as authorised by a water supply work approval if the person constructs or uses such a work while the approval is suspended.
(4)  This section does not prevent a person from constructing or using a drainage work or flood work in accordance with a drainage work approval or flood work approval.
(5)  It is a defence to a prosecution under subsection (1) if the accused person establishes that the water supply work was constructed or used pursuant to a basic landholder right.
s 91B: Ins 2008 No 73, Sch 1 [4]. Am 2010 No 133, Sch 2 [33].
91C   Constructing or using drainage work without, or otherwise than as authorised by, a drainage work approval
(1)  A person—
(a)  who constructs or uses a drainage work, and
(b)  who does not hold a drainage work approval for that work,
is guilty of an offence.
Tier 2 penalty.
(2)  The holder of a drainage work approval who constructs or uses a drainage work otherwise than as authorised by the approval is guilty of an offence.
Tier 2 penalty.
(3)  Without limiting subsection (2), a person constructs or uses a drainage work otherwise than as authorised by a drainage work approval if the person constructs or uses such a work while the approval is suspended.
(4)  This section does not prevent a person from constructing or using a water supply work or flood work in accordance with a water supply work approval or flood work approval.
ss 91C–91F: Ins 2008 No 73, Sch 1 [4].
91D   Constructing or using flood work without, or otherwise than as authorised by, a flood work approval
(1)  A person—
(a)  who constructs or uses a flood work, and
(b)  who does not hold a flood work approval for that work,
is guilty of an offence.
Tier 2 penalty.
(2)  The holder of a flood work approval who constructs or uses a flood work in or in the vicinity of a river or lake, or within a floodplain, otherwise than as authorised by the approval is guilty of an offence.
Tier 2 penalty.
(3)  Without limiting subsection (2), a person constructs or uses a flood work otherwise than as authorised by a flood work approval if the person constructs or uses such a work while the approval is suspended.
(4)  This section does not prevent a person from constructing or using a water supply work or drainage work in accordance with a water supply work approval or drainage work approval.
ss 91C–91F: Ins 2008 No 73, Sch 1 [4].
91E   Carrying out controlled activity without, or otherwise than as authorised by, a controlled activity approval
(1)  A person—
(a)  who carries out a controlled activity in, on or under waterfront land, and
(b)  who does not hold a controlled activity approval for that activity,
is guilty of an offence.
Tier 2 penalty.
(2)  The holder of a controlled activity approval who carries out a controlled activity in, on or under waterfront land otherwise than as authorised by the approval is guilty of an offence.
Tier 2 penalty.
(3)  Without limiting subsection (2), a person carries out a controlled activity otherwise than as authorised by a controlled activity approval if the person carries out such an activity while the approval is suspended.
(4)  This section does not prevent a person—
(a)  from constructing and using a water management work in accordance with a water management work approval, or
(b)  from carrying out an aquifer interference activity in accordance with an aquifer interference approval.
ss 91C–91F: Ins 2008 No 73, Sch 1 [4].
91F   Carrying out aquifer interference activity without, or otherwise than as authorised by, an aquifer interference approval
(1)  A person—
(a)  who carries out an aquifer interference activity, and
(b)  who does not hold an aquifer interference approval for that activity,
is guilty of an offence.
Tier 2 penalty.
(2)  The holder of an aquifer interference approval who carries out an aquifer interference activity otherwise than as authorised by the approval is guilty of an offence.
Tier 2 penalty.
(3)  Without limiting subsection (2), a person carries out an aquifer interference activity otherwise than as authorised by an aquifer interference approval if the person carries out such an activity while the approval is suspended.
(4)  This section does not prevent a person—
(a)  from constructing and using a water management work in accordance with a water management work approval, or
(b)  from carrying out a controlled activity in accordance with a controlled activity approval, or
(c)  from using a building or work that has been erected or carried out in accordance with a controlled activity approval.
ss 91C–91F: Ins 2008 No 73, Sch 1 [4].
91G   Contravention of terms and conditions of approval
(1)  A person (other than the holder) who uses water, constructs or uses a water management work or carries out a controlled activity or an aquifer interference activity, pursuant to an approval is guilty of an offence if the person contravenes any term or condition of the approval.
Tier 2 penalty.
(2)  If any term or condition of an approval is contravened by any person, each holder of the approval is guilty of an offence.
Tier 2 penalty.
(3)  It is a defence to a prosecution under subsection (2) if the accused person establishes—
(a)  that the contravention of the term or condition was caused by another person, and
(b)  that the other person was not associated with the holder at the time the term or condition was contravened, and
(c)  that the holder took all reasonable steps to prevent the contravention of the term or condition.
A person is associated with the holder for the purposes of this subsection (but without limiting any other circumstances of association) if the person is an employee, agent, licensee, contractor or sub-contractor of the holder.
s 91G: Ins 2008 No 73, Sch 1 [4]. Subst 2010 No 133, Sch 2 [34].
91H   Failure to install, use or maintain metering equipment
(1)  A person is guilty of an offence if the person fails to install or use any metering equipment that, pursuant to—
(a)  the conditions of an access licence or approval, or
(b)  a direction under section 326, or
(c)  a regulation made under Part 6 of Chapter 3,
the person is required to install or use in connection with a water management work.
Tier 2 penalty.
(2)  A person is guilty of an offence if the person fails to ensure the proper operation of any metering equipment that has been installed in connection with a water management work.
Tier 2 penalty.
(3)  A person is guilty of an offence if the person fails to comply with any regulation setting out a standard or requirement for the installation or location of metering equipment, or setting out any other standard or requirement relating to metering equipment, used in connection with a water management work.
Tier 2 penalty.
(4)  It is a defence to an offence under subsection (3) if the accused person establishes that the failure to comply with the regulation was caused by work done to the metering equipment by a duly qualified person.
s 91H: Ins 2008 No 73, Sch 1 [4]. Am 2014 No 48, Sch 1.6 [1]; 2018 No 31, Sch 1 [39]–[42].
91I   Taking water when metering equipment not working
(1)  A person who takes water from a water source to which this Part applies by means of a metered work while its metering equipment is not operating properly or is not operating and—
(a)  who intentionally or negligently fails to ascertain whether the metering equipment is not operating properly or is operating, or
(b)  who knows or has reasonable cause to believe that the metering equipment is not operating properly or is not operating,
is guilty of an offence.
Tier 1 penalty.
(2)  A person who takes water from a water source to which this Part applies by means of a metered work while its metering equipment is not operating properly or is not operating is guilty of an offence.
Tier 2 penalty.
(3)  Subsections (1) (b) and (2) do not apply if the person who takes the water complies with any requirements set out in the regulations for the purposes of this subsection.
(4)  In this section, metered work means a water management work in connection with which metering equipment has been installed.
Note—
See also section 11 (1) (e) of the Natural Resources Access Regulator Act 2017 and Schedule 2 to that Act.
s 91I: Ins 2008 No 73, Sch 1 [4]. Am 2009 No 56, Sch 1.44 [6]; 2009 No 110, Sch 1 [3]; 2010 No 133, Sch 2 [35]; 2012 No 95, Sch 1.22 [5]; 2017 No 64, sec 19; 2018 No 31, Sch 1 [43].
91IA   Failure to report metering equipment not working
A person is guilty of an offence if—
(a)  the person is the holder of an approval for a work in connection with which any metering equipment has been installed, and
(b)  the person fails to give notice, in accordance with regulations made for the purposes of this section, that the metering equipment is not operating properly, or is not operating, within 24 hours of becoming aware of that fact.
Tier 2 penalty.
s 91IA: Ins 2018 No 31, Sch 1 [44].
91J   Metering records
(1)  A person is guilty of an offence if the person fails to keep metering records that the person is required under this Act to keep with respect to any metering equipment that has been installed in connection with a water management work.
Tier 2 penalty.
(2)  A person must not in or in connection with a metering record required to be kept under this Act, or a requirement of a regulation in connection with metering equipment, make a statement or furnish any information that the person knows to be false or misleading in a material particular.
Tier 2 penalty.
s 91J: Ins 2008 No 73, Sch 1 [4]. Subst 2014 No 48, Sch 1.6 [2]. Am 2018 No 31, Sch 1 [45] [46].
91K   Meter tampering
(1)  A person is guilty of an offence if the person interferes with, damages, destroys or disconnects any metering equipment that has been installed in connection with a water management work, and does so intentionally or recklessly.
Tier 1 penalty.
(2)  A person is guilty of an offence if the person interferes with, damages, destroys or disconnects any metering equipment that has been installed in connection with a water management work.
Tier 2 penalty.
(3)  Without limiting subsections (1) and (2), a person interferes with metering equipment if the person unseals any sealed component of the equipment, blocks any part of the equipment, attaches to the equipment any device that is likely to affect the operation of the equipment or disconnects the equipment from its source of power.
(4)  This section does not apply to anything—
(a)  that a duly qualified person, or a person specified under section 326 (2A), does to metering equipment (other than metering equipment that may only be maintained, repaired, modified or replaced by the Ministerial Corporation or Water NSW) for the sole purpose of maintaining, repairing or replacing the equipment, or
(b)  that is done to metering equipment by or with the written authority of the Ministerial Corporation or Water NSW or the Water NSW Act 2014, or
(c)  that is done to metering equipment by or on behalf of the holder of the water supply work approval or drainage work approval solely for the purposes of complying with any requirements of regulations made under this Division.
(5)    (Repealed)
s 91K: Ins 2008 No 73, Sch 1 [4]. Am 2009 No 56, Sch 1.44 [7]; 2009 No 110, Sch 1 [4]; 2010 No 133, Sch 2 [37]; 2014 No 74, Sch 3.43 [2] [3]; 2018 No 31, Sch 1 [45] [47].
91L   Liability of occupier of premises for certain offences
(1)  The occupier of premises at which—
(a)  a water management work has been constructed or used in contravention of a provision of this Division, or
(b)  a controlled activity or aquifer interference activity has been carried out in contravention of a provision of this Division,
is taken to have contravened that provision.
(2)  However, subsection (1) does not apply if it is established that—
(a)  the work was constructed or used, or the activity was carried out, by a person other than the occupier, and
(b)  the other person was not associated with the occupier at the time the work was constructed or used or the activity was carried out, and
(c)  the occupier took all reasonable steps to prevent the work being constructed or used or the activity being carried out.
A person is associated with the occupier for the purposes of paragraph (b) (but without limiting any other circumstances of association) if the person is an employee, agent, licensee, contractor or sub-contractor of the occupier.
(3)  Subsection (1) does not prevent proceedings being taken under this Act against the person who actually committed the offence.
s 91L: Ins 2008 No 73, Sch 1 [4].
91M   General defence
(1)  It is a defence to a prosecution under this Division in relation to a Tier 1 offence if the accused person establishes—
(a)  that the commission of the offence was due to causes over which the person had no control, and
(b)  that the person took reasonable precautions and exercised due diligence to prevent the commission of the offence.
(2)  It is a defence to a prosecution under this Division in relation to the doing of anything without an approval if the accused person establishes that the person was exempt, pursuant to this Act or the regulations, from any requirement for an approval in relation to the doing of that thing.
(3)  This Division does not prevent a person from doing anything pursuant to an entitlement in force under the Water Act 1912, where entitlement has the same meaning as it has in Schedule 10.
s 91M: Ins 2008 No 73, Sch 1 [4]. Am 2010 No 133, Sch 2 [38].
91N   Corporations not required to hold approvals
Nothing in sections 91A–91D requires the Ministerial Corporation or Water NSW to obtain an approval for the construction or use of metering equipment.
s 91N: Ins 2009 No 110, Sch 1 [5]. Am 2014 No 74, Sch 3.43 [4].
Division 2 Applications for and granting of approvals
ch 3, pt 3, div 2, hdg: Am 2014 No 48, Sch 1.12 [1].
92   Applications for approvals
(1)  Subject to any embargo, any person may apply for an approval.
(2)  An application for an approval must be made to the Minister in accordance with the regulations.
(3)  The regulations may require the application to be accompanied by a management program for the land to which the application relates.
(4)  An application may relate to more than one approval, whether of the same or of a different kind, unless the Minister requires a separate application to be made in relation to one or more of them.
(5)  The Minister—
(a)  may require an applicant for an approval to provide additional information within a specified time if of the opinion that additional information would be relevant to consideration of the application, and
(b)  may delay consideration of the application until the information is provided or, if the information is not provided within the time specified, may refuse to consider the application.
(6)  The Minister may refuse to accept an application for an approval if it appears to the Minister that the application is incomplete.
(7)  The regulations may require any application, or any specified class of applications, to be advertised.
(8)  An applicant for an approval may, by notice in writing to the Minister, amend or withdraw the application for the approval at any time before the application is determined.
Note—
Approvals are listed in section 91 of the Environmental Planning and Assessment Act 1979. Development that requires an approval is consequently integrated development for the purposes of that Act.
s 92: Am 2001 No 56, Sch 1.22 [9]; 2004 No 39, Sch 4 [29]; 2014 No 48, Sch 1.10 [10].
93   Objections to applications for approvals
(1)  Any person may, in accordance with the regulations, object to the granting of an approval that has been advertised pursuant to section 92.
(2)  The Minister must inform the applicant for an approval of the grounds of any objection to the granting of the approval and must allow the applicant a specified time within which to make a written response to the Minister in relation to the objection.
(3)  The Minister—
(a)  may require an objector or applicant to provide additional information within a specified time if of the opinion that additional information would be relevant to consideration of the objection or response, and
(b)  may delay consideration of the objection or response until the information is provided or, if the information is not provided within the time specified, may refuse to consider the objection or response.
(4)  If there is a deficiency in an objection or response, the Minister may notify the objector or applicant accordingly and allow further time to enable the deficiency to be rectified.
(5)  Before making a decision on an application for the approval in respect of which any objection has been made, the Minister must endeavour to resolve the issues raised by the objection by means of consultation with the applicant and the objector, with a view to reaching agreement on the matters raised by the objection.
(6)  For the purpose of reaching such an agreement, the Minister may propose that the matters raised by the objection be dealt with by way of mediation or neutral evaluation involving an independent mediator or evaluator appointed by agreement between the applicant, the objector and the Minister.
(7)  The costs of any such mediation or neutral evaluation are to be paid for by the Minister.
(8)  An application or objection may be dismissed by the Minister if the applicant or objector, as the case may be, fails to participate in any mediation or neutral evaluation proceedings referred to in subsection (6).
94   Determination of applications affected by reviews by Planning Assessment Commission
(1)  This section applies to any application for an approval in respect of which the Independent Planning Commission of New South Wales has given notice of a review under the Environmental Planning and Assessment Act 1979 to the Minister before the Minister makes a decision on the application.
(2)  The Minister—
(a)  must refer to the Independent Planning Commission of New South Wales—
(i)  the application (including any information furnished in relation to the application), and
(ii)  any objection to the application (including any information furnished in relation to the objection),
whether the application or objection is made or lodged before or after the notice is received, and
(b)  must defer making any decision on the application until it receives the Commission’s report under the Environmental Planning and Assessment Act 1979.
(3)  In making a decision on the application, the Minister must have regard to the findings and recommendations contained in the Commission’s report under the Environmental Planning and Assessment Act 1979.
(4)    (Repealed)
s 94: Am 2008 No 36, Sch 2.9 [1]–[5]; 2022 No 59, Sch 2.49.
95   Determination of applications
(1)  After considering an application and all matters relevant to the application, the Minister is to determine the application—
(a)  by granting the approval to which the application relates, or
(b)  by refusing the application.
Note—
Section 99A enables the Minister to grant combined approvals at the time an application is granted for one or more of the approvals concerned or subsequently.
(1A)  An approval may be granted unconditionally or subject to such conditions as are required or permitted to be imposed under Division 3.
(2)    (Repealed)
(3)  An approval may not be granted in contravention of the provisions of any relevant management plan.
(4)  An approval is to be in such form as the Minister may determine.
(5)  An approval takes effect on the day on which notice of the decision to grant the approval has been given to the applicant.
s 95: Am 2002 No 138, Sch 3 [2]–[4]; 2004 No 39, Sch 4 [30]; 2014 No 48, Schs 1.10 [11] [12], 1.12 [2] [3].
96   Matters affecting consideration of applications
In considering whether or not to grant an approval, the Minister must take into account—
(a)  such matters as are prescribed by the regulations, and
(b)  such other matters as the Minister considers to be relevant.
97   Grounds of refusal of certain applications
(1)  A water use approval is not to be granted unless the Minister is satisfied that adequate arrangements are in force to ensure that no more than minimal harm will be done to any water source, or its dependent ecosystems, as a consequence of the proposed use of water on the land in respect of which the approval is to be granted.
(2)  A water management work approval is not to be granted unless the Minister is satisfied that adequate arrangements are in force to ensure that no more than minimal harm will be done to any water source, or its dependent ecosystems, as a consequence of the construction or use of the proposed water management work.
(3)    (Repealed)
(4)  A controlled activity approval is not to be granted unless the Minister is satisfied that adequate arrangements are in force to ensure that no more than minimal harm will be done to any waterfront land as a consequence of the carrying out of the proposed controlled activity.
(5)  A water management work approval for a water management work that is, or is proposed to be, situated on land not owned by the applicant is not to be granted unless the Minister is satisfied—
(a)  that the applicant is likely to become the owner of the land within a reasonable time, or
(b)  that the land is subject to an easement that authorises the construction and use of such a work for the benefit of the applicant’s land, or
(c)  that the applicant is otherwise entitled (whether under this or any other Act or under an agreement applying to the land) to construct and use such a work.
(6)  An aquifer interference approval is not to be granted unless the Minister is satisfied that adequate arrangements are in force to ensure that no more than minimal harm will be done to the aquifer, or its dependent ecosystems, as a consequence of its being interfered with in the course of the activities to which the approval relates.
s 97: Am 2001 No 56, Sch 1.22 [10] [11]; 2002 No 138, Sch 3 [5]; 2008 No 73, Sch 6 [15].
98   Notice of decision
After determining an application under this Division, the Minister must cause notice of the determination to be given to the applicant and, if the application relates to an approval that has been advertised pursuant to section 92, to each person who has made an objection to the Minister in connection with the application.
s 98: Am 2001 No 56, Sch 1.22 [12].
99   Procedures in relation to integrated development
(1)  In this section, consent authority, development consent and integrated development have the same meanings as they have in the Environmental Planning and Assessment Act 1979.
(2)  The provisions of this Act with respect to the advertising of an application for an approval do not apply if the application relates to integrated development.
(3)  If a consent authority grants development consent to integrated development, either as a consequence of having obtained the general terms of any approval proposed to be issued by the Minister or as a consequence of the Minister having failed to inform the consent authority as to whether or not an approval will be granted—
(a)  no person has any right to lodge an objection under this Act to the granting of the approval, and
(b)  no person has any right under this Act to appeal to the Land and Environment Court against the granting of the approval.
(4)  Subsection (3) (b) does not affect any right of appeal to which an objector may be entitled under section 98 of the Environmental Planning and Assessment Act 1979.
99A   Granting of combined approvals
(1)  The Minister may, on application or on the Minister’s own motion, grant 2 or more approvals by means of a single approval document (a combined approval).
(2)  A combined approval may be granted—
(a)  at the time an application for one or more of the approvals is granted, or
(b)  by amending an existing approval (whether or not a combined approval) to include additional approvals.
Note—
Section 92 (4) provides that an application may relate to more than one approval, whether of the same or of a different kind, unless the Minister requires a separate application to be made in relation to one or more of them.
(3)  A combined approval that is granted by amending an existing approval must provide for a common expiry date for all of the approvals.
(4)  A combined approval may—
(a)  deal with approvals with respect to the same or different kinds of approvals or the same or different kinds of uses, works or activities, and
(b)  provide for common terms and conditions, or different terms and conditions, for some or all of the approvals granted.
(5)  A combined approval is taken to have effect for the purposes of this Act as if it were—
(a)  to the extent it contains an approval for water use—a water use approval, or
(b)  to the extent it contains an approval for the construction and use of a water supply work—a water supply work approval, or
(c)  to the extent that it contains an approval for the construction and use of a drainage work—a drainage work approval, or
(d)  to the extent that it contains an approval for the construction and use of a flood work—a flood work approval, or
(e)  to the extent that it contains approval for the carrying out of a controlled activity—a controlled activity approval, or
(f)  to the extent that it contains approval for the carrying out of an aquifer interference activity—an aquifer interference approval.
(6)  Each approval granted by means of a combined approval takes effect as provided by section 95 (5).
(7)  Section 98 (Notice of decision) does not apply with respect to a determination to grant a combined approval that is made on the Minister’s own motion.
(8)  Nothing in this section—
(a)  permits the Minister to grant an approval, or to impose or alter terms or conditions of an approval, by means of a combined approval otherwise than in accordance with the requirements of this Act for that kind of approval, or
(b)  limits any right of appeal against a decision made with respect to each kind of approval granted.
s 99A: Ins 2014 No 48, Sch 1.12 [4].
Division 3 Conditions and duration of approvals
100   Conditions of approvals generally
(1)  An approval is subject to such conditions as the Minister may from time to time impose—
(a)  which must include such conditions as are required to be imposed on the approval by this Act or by any relevant management plan, and
(b)  which may include such other conditions, such as—
(i)  conditions to give effect to any agreement between an applicant and objector under section 93 (5), and
(ii)  conditions relating to the protection of the environment,
as the Minister thinks fit (discretionary conditions).
(1AA)  An approval is subject to any mandatory conditions imposed by this Act or the regulations.
(1A)  Mandatory conditions (other than conditions imposed by the regulations) do not have effect in relation to an approval unless they are included in the terms of the approval.
(2)  A mandatory condition prevails over a discretionary condition to the extent of any inconsistency between them.
(3)  Without limiting the types of conditions relating to the protection of the environment that the Minister may impose under this section on a water management work approval, those conditions may include conditions relating to any or all of the following matters—
(a)  the undertaking of an investigation of the environmental impact of cold water releases and the options for mitigation of that impact,
(b)  the preparation of a program to mitigate the impact of cold water releases and the obtaining of approval to the program from the Minister,
(c)  the implementation of the program,
(d)  the monitoring and reporting on actions taken to implement the program and the impact of those actions on the environment,
(e)  the carrying out of new works or the making of alterations to existing works, or both,
(f)  the method of operation of water management works.
(4)  In this section, mandatory condition means a condition referred to in subsection (1) (a) or (1AA) or imposed under section 101A.
Note—
If a management plan or Minister’s plan is replaced or amended during the term of an approval, the mandatory conditions applying to the approval may vary.
s 100: Am 2002 No 138, Sch 3 [6]; 2005 No 118, Sch 1 [37]; 2008 No 73, Sch 4 [8]; 2018 No 31, Sch 1 [48]–[51].
100A   Imposition of conditions on granting of approval
A condition that is imposed when an approval is granted takes effect on the day on which the approval takes effect.
s 100A: Ins 2014 No 48, Sch 1.10 [13].
101   Conditions of approval for joint schemes
(1)  This section applies to a water management work approval granted in relation to a joint scheme, that is, a scheme under which landholders of different parcels of land hold a single water management work approval for a water management work located on, passing through or otherwise benefiting or affecting those parcels.
(2)  A water management work approval for a water management work the subject of a joint scheme is subject to such conditions as the regulations require and to such other conditions as the landholders concerned agree.
(3)  A regulation referred to in subsection (2) may impose conditions, in relation to the rights and duties of the landholders concerned in the joint scheme, with respect to the following matters—
(a)  the granting of access to the work,
(b)  the operation of the work,
(c)  the apportionment of water supplied by means of the work,
(d)  the apportionment of the cost of constructing and maintaining the work,
(e)  the apportionment of such other costs with respect to work as are prescribed by the regulations,
(f)  the exclusion of land from the joint scheme.
s 101: Subst 2002 No 138, Sch 3 [7].
101A   Metering equipment condition
(1)  It is a mandatory condition of a water supply work approval that metering equipment is installed, used and properly maintained in connection with the work.
(1A)  On the imposition of the condition by this section, any other condition relating to the installation, use and maintenance of metering equipment in connection with the work imposed on the water supply work approval under this Act, or any other instrument made under this Act, ceases to have effect.
(2)  The holder of a water supply work approval is taken to have complied with a particular aspect of the condition imposed by this section if the holder has complied with the applicable requirements (if any) prescribed by the regulations.
(3)  The regulations may provide that the condition does not apply to holders of approvals, or works, specified by the regulations, or in circumstances specified by the regulations.
s 101A: Ins 2018 No 31, Sch 1 [52]. Am 2020 No 30, Sch 1.48[5].
102   Imposition or change of conditions after approval is granted
(1)  The Minister may impose discretionary conditions on an approval after it has been granted, or may amend a discretionary condition, but only if the Minister—
(a)  has given written notice to the holder of the approval that the Minister proposes to impose such conditions or make such an amendment, and
(b)  has given the holder of the approval a reasonable opportunity to make submissions to the Minister with respect to the proposed conditions or amendment, and
(c)  has taken any such submissions into consideration.
(2)  Subsection (1) does not apply to conditions imposed on an approval, or an amendment made, at the request of or with the consent of the holder of the approval.
(3)  Mandatory conditions of an approval referred to in section 100 (1) (a) may be imposed, amended, revoked or suspended by the Minister whenever it is necessary to do so in order to enable compliance with or to give effect to this Act, the regulations or a relevant management plan.
(4)  The Minister must cause written notice of any conditions imposed, amended, revoked or suspended under this section to be served on the holder of the approval concerned.
(5)  A condition imposed or a change referred to in subsection (4) takes effect on the day on which the notice referred to in that subsection is served on the holder of the approval or on such later day as may be specified in the notice in that regard.
(6)  The regulations may make provision for or with respect to the manner in which written notices may be given for the purposes of this section.
s 102: Am 2002 No 138, Sch 3 [8] [9]. Subst 2004 No 39, Sch 4 [31]. Am 2005 No 118, Sch 1 [38]; 2010 No 133, Sch 2 [39]–[44]; 2014 No 48, Sch 1.10 [14]; 2018 No 31, Sch 1 [53].
103   Revocation of conditions
The Minister may at any time revoke any discretionary conditions to which an approval is subject, whether or not on the application of the holder of the approval.
104   Duration of approval
(1)  Subject to this section, an approval has effect for such period as is specified in the approval (being a period not exceeding 10 years) or, if the period of the approval is extended under section 105, that extended period.
(2)  An approval granted to a major utility or a local water utility has effect for a period of 20 years or, if that 20-year period is extended under section 105, that extended period.
(3)  A water supply work approval for a water bore that is used solely for accessing water to which the holder is entitled as a basic landholder right (other than water from the Great Artesian Basin) has effect until it is cancelled.
(4)  If an application for extension of an approval is lodged before the approval expires, the term of the expiring approval is extended until—
(a)  the date of the final decision on the application, or
(b)  a date fixed by the Minister for the approval,
whichever is the later date.
(5)  If—
(a)  an approval expires without an application for its extension being made, and
(b)  an application for its extension is subsequently made by the former holder of an approval and is accompanied by a written statement of the reasons for the delay in making the application, and
(c)  the reasons are accepted by the Minister,
the term of the approval is taken to have been extended, and the application may be dealt with, as if the application had been made before the approval expired.
s 104: Subst 2004 No 39, Sch 4 [32]. Am 2010 No 133, Sch 2 [45]; 2016 No 27, Sch 1.33 [3].
105   Extension of approvals
(1)  The holder of an approval may, in accordance with the regulations, apply for an extension of the period for which the approval has effect.
(2)  A period for which an approval has effect may be extended more than once under this section, but each extension may not exceed the period for which an approval of that type could have originally been granted.
(3)  An application for an extension must be granted unless—
(a)  the relevant management plan provides, or the regulations provide, that an extension of such an approval must be assessed as if it were an application for a new approval, or
(b)  the application is required to be refused under subsection (4).
(4)  An application for an extension must be refused if—
(a)  in the case of a water use approval, the applicant has not certified that the extension is necessary because the particular purpose for which the approval was granted still exists, or
(b)  in the case of a water management work approval, the Minister is not satisfied that the applicant complies with section 97 (5), or
(c)  the applicant has not certified that the terms and conditions of the approval have been complied with.
(5)  If assessment of an application for extension of an approval (the original approval) is required, the provisions of section 92 (2)–(6) apply to the application and the application is to be assessed as if the application were an application for the granting of a new approval to authorise—
(a)  in the case of a water use approval, the continuing use of the water for the particular purpose and at the particular location specified in the original approval, or
(b)  in the case of a water management work approval, the continuing maintenance and use of the work to which the original approval relates, or
(c)  in the case of an activity approval, the continuing carrying out of the activity to which the original approval relates in the same location or area specified in the original approval.
s 105: Subst 2004 No 39, Sch 4 [32].
106   Land benefited by approval
(1)  An approval is taken to be held by, and for the benefit of, each successive landholder for the time being of the land specified in the approval as the land benefited by the approval.
(2)  While the approval is in force, each such landholder—
(a)  is under a duty to comply with the conditions to which the approval is subject, and
(b)  is entitled to commence and maintain legal proceedings against any co-holder of the approval with respect to that co-holder’s failure to comply with those conditions.
(3)  For the purposes of this section, a major utility, local water utility, irrigation corporation, private water corporation or private water trust is taken to be a landholder of land in respect of which a water use approval or water management work approval held by it is in force.
(4)  This section does not apply in such circumstances, or to such types or kinds of approvals, as may be prescribed by the regulations.
s 106: Am 2001 No 56, Sch 1.22 [13]; 2002 No 138, Sch 3 [10] [11]; 2004 No 39, Sch 4 [33] [34]; 2010 No 133, Sch 2[46].
Division 4 Amendment, surrender, suspension and cancellation of approvals
107   Amendment of approvals
(1)  Without limiting any other power conferred by another provision of this Act, the Minister may amend an approval—
(a)  on the application of the holder of the approval, or
(b)  to create 2 or more approvals from a single approval in such circumstances as may be prescribed by the regulations, or
(c)  in such other circumstances as may be prescribed by the regulations.
Note—
Section 109 (2A) also enables the Minister to amend an approval to give effect to the suspension or cancellation of part of the approval.
(1A)  Action under subsection (1) (b) or (c) may not be taken in relation to an approval unless the Minister—
(a)  has given written notice to the holder of the approval that the Minister proposes to take such action, and
(b)  has given the holder of the approval a reasonable opportunity to make submissions to the Minister with respect to the proposed action, and
(c)  has taken any such submissions into consideration.
(2)  Without limiting subsection (1), an approval may be amended to alter, remove, add to or reduce any of the uses, works, activities or land to which the approval relates.
(3)  An amendment of an approval must not result in the approval relating to any additional land, or authorising the extension, construction or use of a water management work on any additional land, unless the additional land adjoins the land to which the unamended approval relates and is lawfully occupied by the holder of the approval.
(4)  Subsection (3) does not apply to an amendment to an approval in respect of a joint scheme (referred to in section 101 (1)) that results in the approval applying to additional land.
(5)  If the granting of an application under this section would result in the approval concerned relating to additional uses, works, activities or land, the application is to be advertised, assessed and determined in accordance with this Part in the same way as an application for a new approval, but only in relation to the additional uses, works, activities or land.
(6)  In considering any application under this section, the Minister is to have regard to any order of the Supreme Court under section 74 that affects the matters covered by the application.
s 107: Subst 2004 No 39, Sch 4 [35]. Am 2005 No 118, Sch 1 [39]; 2014 No 48, Sch 1.10 [15] [16].
108   Surrender of approvals
(1)  Subject to subsection (1A), the holder of an approval may surrender the approval at any time by notice in writing sent to the Minister.
(1A)  The Minister may, by written notice served on the holder of the approval, refuse to accept the surrender of the approval if the Minister considers it appropriate to do so or in such other circumstances as may be prescribed by the regulations.
(2)  The surrender takes effect on the date on which the notice is received by the Minister or such later date as is specified in the notice.
(3)  Without limiting section 109, the Minister may—
(a)  cancel a surrendered approval, or
(b)  transfer the surrendered approval to the Minister or to another person.
s 108: Am 2014 No 48, Sch 1.10 [17]–[19].
109   Suspension and cancellation of approvals
(1)  The Minister may suspend or cancel an approval (or any part of an approval) on any one or more of the following grounds—
(a)  that the holder of the approval has failed to comply with any term or condition to which the approval is subject,
(b)  that the holder of the approval has been convicted of an offence against—
(i)  this Act or the regulations, or
(ii)  the Plumbing and Drainage Act 2011 or the regulations under that Act,
(c)  that the holder of the approval has failed to make due payment with respect to any fee or charge that is payable under this Act in relation to the approval,
(c1)  in the case of an approval granted in relation to a water supply work, if—
(i)  the holder of the approval is also the holder of an access licence for which the water supply work has been nominated under section 71W (Access licence may nominate water supply works), and
(ii)  the holder of the access licence has failed to make due payment with respect to any fees, charges or civil penalties that are payable in respect of the licence (whether or not those fees, charges or civil penalties were incurred by the current holder of the approval),
(c2)  in the case of an approval granted in relation to a water supply work referred to in section 104 (3), if—
(i)  the holder of the approval cannot, on the written request of the Minister, demonstrate that the water bore the subject of the approval is being maintained in accordance with the conditions of the approval, or
(ii)  the water bore has been decommissioned,
(d)  in the case of an approval granted in relation to a water management work, the holder of the approval has failed to comply with any direction given to the holder under this Act in connection with the work,
(e)  that the approval was granted as a result of false, misleading or materially inaccurate information supplied by or on behalf of the applicant.
(2)  Instead of or in addition to suspending or cancelling an approval, the Minister may order a major utility to pay to the Minister a civil penalty not exceeding $500,000 and, in the case of a continuing offence, a further penalty not exceeding $20,000 for each day for which the offence continues.
(2A)  If the Minister suspends or cancels a part of an approval, the Minister may amend the approval so as to give effect to that suspension or cancellation.
(3)  Action under this section may not be taken in relation to an approval unless the Minister—
(a)  has given written notice to the holder of the approval that the Minister proposes to take such action, and
(b)  has given the holder of the approval a reasonable opportunity to make submissions to the Minister with respect to the proposed action, and
(c)  has taken any such submissions into consideration.
(4)  If the Minister fails to give notice to the holder of an approval before taking action under this section, the Minister is taken to have complied with subsection (3) (a)–(c) in relation to that holder if the Minister took all reasonable steps to give notice under subsection (3) to the holder within the period of 28 days before taking the action.
Note—
See also section 11 (1) (e) of the Natural Resources Access Regulator Act 2017 and Schedule 2 to that Act.
s 109: Am 2002 No 138, Sch 3 [12]; 2004 No 39, Sch 4 [36]; 2008 No 73, Sch 6 [16] [17]; 2010 No 133, Sch 2 [45]; 2011 No 59, Sch 2.16 [1]; 2014 No 48, Sch 1.10 [20] [21]; 2017 No 64, sec 19; 2018 No 31, Sch 1 [54].
Division 5 Embargoes on applications for approvals
110   Temporary embargo
(1)  The Minister may, by order published in the Gazette, declare an embargo on the making of applications for approvals with respect to any water management area.
(1A)  Such an order may apply to the whole of a water management area or to any specified part of a water management area, and to approvals generally or to any specified type or kind of approvals.
(2)  An order under this section may relate to all applications, to applications of a specified kind or to all applications other than applications of a specified kind.
(3)  As soon as practicable after an order under this section is published in the Gazette, notice of the order must be published in the authorised manner.
(4)  An order under this section takes effect at the beginning of the date on which it is published in the Gazette and, unless sooner revoked, expires at the end of 2 years after that date.
s 110: Am 2002 No 138, Sch 3 [13]; 2008 No 73, Sch 5 [5] [6]; 2018 No 31, Sch 1 [4].
111   Permanent embargo
(1)  The Governor may, by proclamation published in the Gazette, declare an embargo on the making of applications for approvals with respect to any water management area.
(1A)  Such a proclamation may apply to the whole of a water management area or to any specified part of a water management area, and to approvals generally or to any specified type or kind of approvals.
(2)  A proclamation under this section may relate to all applications, to applications of a specified kind or to all applications other than applications of a specified kind.
(3)  As soon as practicable after a proclamation under this section is published in the Gazette, notice of the proclamation must be published in the authorised manner.
(4)  A proclamation under this section takes effect at the beginning of the date on which it is published in the Gazette and continues in force until it is revoked by a further proclamation so published.
s 111: Am 2002 No 138, Sch 3 [14]; 2008 No 73, Sch 5 [7] [8]; 2018 No 31, Sch 1 [4].
112   Operation of embargo
(1)  An embargo applies to any application for an approval made on or after the date on which the embargo took effect, other than—
(a)  an application to amend an application made before that date, or
(b)  an application for the extension of the period for which an approval has effect, or
(c)  any other application of a kind prescribed by the regulations.
(2)  An application to which an embargo applies is a nullity and is not revived merely because the embargo is subsequently revoked.
s 112: Am 2004 No 39, Sch 4 [37]. Subst 2008 No 73, Sch 6 [18].
Division 6 Registers
113   Register of approvals
(1)  The Minister is to cause a register to be kept of—
(a)  every application for an approval that is duly made under this Act, and
(b)  every approval that is granted, extended, amended, transferred, surrendered, suspended or cancelled under this Act, and
(c)  every agreement entered into by landholders under section 101 (2).
(2)  The regulations may make provision for or with respect to the form in which such a register is to be kept and the particulars that are to be recorded in such a register.
(3)  The register must be made available for public inspection during normal business hours at such places as may be prescribed by the regulations.
s 113: Am 2002 No 138, Sch 3 [15]; 2004 No 39, Schs 3 [31], 4 [38]; 2014 No 48, Sch 1.10 [22].
Part 4 Finance
ch 3, pt 4: Ins 2018 No 31, Sch 1 [56].
114   Minister may impose fees and charges
(1)  The Minister may impose fees and charges for the purposes of this Act.
Note—
Under the Independent Pricing and Regulatory Tribunal Act 1992, any fees and charges imposed by the Minister under this section cannot exceed any relevant determination made by the Independent Pricing and Regulatory Tribunal.
(2)  The Minister may waive or reduce any such fee or charge in a particular case or class of cases if the Minister is of the opinion that the circumstances warrant it.
s 114: Am 2004 No 39, Sch 4 [39].
Part 5 Conditions imposed by regulations
115   Regulations may impose mandatory conditions
(1)  The regulations may impose mandatory conditions on access licences and approvals relating to the following—
(a)  metering equipment or any other means of measuring water flows,
(b)  requiring notice to be given of a change to or the replacement of a water supply work, or any part of it, that results in an increase in the capacity of the work to take water,
(c)  reporting by holders of access licences or approvals as to water taken,
(d)  measures recommended by the Natural Resources Access Regulator to improve compliance with and enforcement of this Act.
(2)  A mandatory condition may be imposed on particular access licences or approvals or classes of access licences or approvals.
(3)  A mandatory condition may be imposed on all access licences or approvals for a specified water source or access licences or approvals within a specified part of the State.
(4)  A mandatory condition, other than a condition that is of a machinery nature or is minor in its effect, must not be prescribed unless the proposed condition has been publicly exhibited for not less than 28 days in accordance with any requirements of the regulations.
s 115: Rep 2004 No 39, Sch 4 [40]. Ins 2018 No 31, Sch 1 [56].
115A   Regulations relating to mandatory and other licence conditions
The regulations may provide for the following—
(a)  notification to holders of approvals or access licences of mandatory conditions imposed under this Part,
(b)  the imposition of a mandatory condition under this Part on a licence or other entitlement in force under the Water Act 1912 and deeming any such condition to be imposed under that Act,
(c)  that a mandatory condition imposed under this Part has effect despite any other approval or licence or condition of an approval or licence under this Act or the Water Act 1912 or any other instrument made under this Act or that Act,
(d)  the amendment of management plans or licences or approvals to remove or vary conditions that are covered by, or are inconsistent with, mandatory conditions imposed by the regulations under this Part.
s 115A: Ins 2018 No 31, Sch 1 [56].
Part 6 Regulations relating to water management works
ch 3, pt 6 (s 115B): Ins 2018 No 31, Sch 1 [56].
115B   Metering equipment
(1)  This section applies to a water management work, whether or not an approval is required to install or use the work.
(2)  Regulations may be made for or with respect to metering equipment in connection with works to which this section applies.
(3)  In particular, and without limiting subsection (2), regulations may be made for or with respect to the following—
(a)  requiring persons who have control and management of works to install, use and maintain metering equipment,
(b)  setting out standards and other requirements for metering equipment to be used in connection with works,
(c)  setting out standards and other requirements for the location and installation of metering equipment,
(d)  the keeping of metering records relating to maintenance of metering equipment and taking of water during periods when metering equipment is not able to be used and relating to any other matters specified by the regulations,
(e)  the taking of water by means of a metered work while its metering equipment is not operating properly or is not operating,
(f)  requiring the owners of metering equipment, holders of approvals or other persons to provide information obtained from or about the equipment,
(g)  the provision of information derived from or about metering equipment to the holders of approvals for works in connection with which the equipment is installed.
(4)  The regulations are to provide for a review of the operation of regulations made under this section as soon as practicable after 5 years after the first regulations are made under this section.
ch 3, pt 6 (s 115B): Ins 2018 No 31, Sch 1 [56].
Chapter 4 Joint private works
Part 1 Irrigation corporations
Division 1 Preliminary
116   Application of Part
This Part applies to all irrigation corporations under the former Irrigation Corporations Act 1994 that were in existence immediately before the repeal of that Act, but does not authorise the establishment of any new irrigation corporations.
117   Definitions
In this Part—
area of operations of an irrigation corporation means the area of land comprising the areas and districts specified in Schedule 1 in relation to the corporation, being areas and districts constituted under the former Irrigation Act 1912 and Part 6 of the former Water Act 1912, including any land included in its area of operations under Division 4 but excluding any land excluded from its area of operations under Division 5 of this Part.
irrigation corporation means a corporation named in Schedule 1.
operating licence means an operating licence referred to in section 122.
s 117: Am 2001 No 56, Sch 1.22 [14].
118   Requirements for access licences and approvals
Nothing in this Part authorises an irrigation corporation or landholder to do anything for which this Act requires an access licence or approval unless the irrigation corporation or landholder holds an appropriate access licence or approval.
s 118: Subst 2008 No 73, Sch 6 [19].
Division 2 Irrigation corporations
119   Assets of irrigation corporations
(1)  An irrigation corporation is the owner of all water management works installed in or on land by the corporation (whether or not the land is owned by the corporation).
(2)  The provisions of Part 5 and section 88 of the Irrigation Corporations Act 1994, as in force immediately before their repeal, continue to apply for the purpose of enabling the Ministerial Corporation to transfer to an irrigation corporation any of its assets, rights and liabilities with respect to an irrigation scheme area with which the irrigation corporation was formerly connected.
120   Entry on to land
(1)  An irrigation corporation may, by its employees and agents, enter land within its area of operations for any one or more of the following purposes—
(a)  to install, operate, repair, replace, maintain, remove, extend, expand, connect, disconnect, improve or do any other things that the corporation considers are necessary or appropriate to any of its water management works or to construct new water management works and, for these purposes, to carry out any work on, below or above the surface of the land,
(b)  to read a meter that—
(i)  measures water supplied by the corporation, or
(ii)  monitors drainage for quantity or quality or both,
(c)  to find the source of pollution of water within the area of operations of the corporation,
(d)  to ascertain whether a water supply contract or other contract for the provision of services by the corporation is being breached,
(e)  to rectify defective or improper work that has not been rectified by a customer in accordance with a notice served by the corporation on the customer under a water supply contract or other contract,
(f)  to ascertain the character and condition of the land or any building on the land, or the condition and location of any pipe, sewer, drain, channel or fitting or other work used in connection with the land or building, so as to enable the corporation—
(i)  to install, operate, repair, replace, maintain, remove, extend, expand, connect, disconnect or improve its systems and services, or
(ii)  to construct new water management works,
in accordance with the obligations imposed on it by its operating licence,
(g)  to carry out any investigation or inspection, take levels, drill test bore-holes, make surveys and marks, and fix pegs and stakes, for the purpose of determining the site of any proposed water management work.
(2)  An irrigation corporation must ensure that as little damage as possible is caused by the exercise of powers under this section and must repair any damage caused or pay compensation for the damage.
(3)  The powers of entry conferred by this section are not to be exercised for a purpose referred to in subsection (1) (a), (f) or (g) without prior notice to the occupier of the land.
(4)  A person must not threaten, hinder, obstruct or delay any person in the exercise of an irrigation corporation’s functions under this section.
Tier 2 penalty.
s 120: Am 2008 No 73, Schs 1 [5], 6 [20].
121   Ceasing to be an irrigation corporation
(1)  A corporation ceases to be an irrigation corporation if its particulars are removed from Schedule 1.
(2)  The Governor may remove an irrigation corporation’s particulars from Schedule 1 by proclamation published on the NSW legislation website, but only—
(a)  on application made by the irrigation corporation to the Minister, or
(b)  if the irrigation corporation ceases to exist.
(3)  The Governor may by proclamation published on the NSW legislation website amend Schedule 1 so as to reflect a change in an irrigation corporation’s name.
(4)  The regulations may make provision, not inconsistent with the Corporations Act 2001 of the Commonwealth, for or with respect to any matters that are consequential on a corporation ceasing to be an irrigation corporation.
s 121: Am 2001 No 34, Sch 4.71 [1]; 2009 No 56, Sch 4.81 [1].
Division 3 Operating licences
122   Authority conferred by operating licence
The operating licence for an irrigation corporation authorises the corporation to carry on the business of supplying water provided to it by the Ministerial Corporation and to exercise its functions under this Part.
123   Terms and conditions of operating licence
(1)  An operating licence is subject to the terms and conditions determined by the Governor.
(2)  Examples of terms and conditions that may be included are as follows—
(a)  a requirement that the irrigation corporation will (in accordance with any applicable management program and the corporation’s business plan) provide, construct, maintain, manage and operate—
(i)  efficient, co-ordinated and commercially viable systems and services for supplying water from both surface and subsurface sources, and
(ii)  surface and subsurface drainage networks that have sufficient capacity having regard to specified factors, including the amount of water supplied by the corporation to users,
(b)  a requirement that the irrigation corporation must be the holder of all relevant licences or other authorities,
(c)  a requirement that the irrigation corporation is to comply with the provisions of any applicable management program, either in all respects or in certain respects,
(d)  a requirement that, in supplying water to its members, the irrigation corporation is to give priority to certain councils or other local water utilities for domestic water supply,
(e)  a requirement as to how the irrigation corporation is to spend and otherwise deal with any money provided to it out of money appropriated from the Consolidated Fund or other public money.
(3)  An operating licence may be amended only in the manner specified in the operating licence.
(4)  Despite subsection (3), the Minister may amend an irrigation corporation’s operating licence so as to give effect to matters agreed to by or on behalf of the State pursuant to, or in connection with, the National Water Initiative.
(5)  In determining the terms of the amendment, the Minister must have regard to any submissions made by the irrigation corporation.
(6)  In this section, National Water Initiative means the Intergovernmental Agreement on a National Water Initiative between the Commonwealth of Australia and the Governments of New South Wales, Victoria, Queensland, South Australia, Western Australia, Tasmania, the Australian Capital Territory and the Northern Territory (as amended from time to time).
s 123: Am 2008 No 73, Sch 4 [9].
124   Term of operating licence
(1)  An operating licence has effect for the period specified in the licence in that regard, but may be renewed at the end of that period.
(2)  An operating licence may be renewed even if its term has expired.
(3)  The Governor may refuse an application for the renewal of an operating licence on such grounds as the Governor considers appropriate.
125   Contravention of operating licence
(1)  If, in the opinion of the Minister, an irrigation corporation contravenes an operating licence, the Governor may direct that one of the following is to apply—
(a)  a letter of reprimand by the Minister is to be served on the irrigation corporation,
(b)  the Minister is to cause a notice to be served on the irrigation corporation requiring it to rectify the contravention within a specified period.
(2)  If, in the opinion of the Minister, an irrigation corporation continues to contravene an operating licence after the issue of a letter under subsection (1) (a) or fails to rectify a contravention as required by a notice under subsection (1) (b), the Governor may do either or both of the following—
(a)  the Governor may direct that the irrigation corporation is to pay a monetary penalty of an amount (not exceeding $150,000) to be determined by the Governor,
(b)  the Governor may cancel the operating licence.
(3)  The fact that the Governor has directed that action be taken under this section does not prevent the Governor directing that the same or other action under this section be taken if the contravention continues or a fresh contravention occurs.
(4)  An operating licence may make provision for advice to be furnished to the Minister in connection with the exercise of the Minister’s functions under this section.
(5)  A penalty imposed under this section may be recovered in any court of competent jurisdiction as if it were a debt due to the Crown.
126   Cancellation of operating licence
(1)  An operating licence may be cancelled by the Governor, but only—
(a)  if the irrigation corporation fails or ceases to hold a relevant licence or other authority, or
(b)  if the irrigation corporation is, in the opinion of the Minister, in material default in compliance with the operating licence, viewed in terms of the operation of the operating licence as a whole, or
(c)  if the irrigation corporation is an externally-administered corporation within the meaning of the Corporations Act 2001 of the Commonwealth, or
(d)  if the irrigation corporation has been convicted of a criminal offence that is punishable by a fine of at least $10,000 or, if the corporation were a natural person, imprisonment for 12 months or more, or
(e)  in the circumstances set out in section 125 (2).
(2)  An operating licence may not be cancelled on the ground referred to in subsection (1) (a) if an appeal against a decision not to renew or to cancel the relevant licence or other authority has been made but not determined or withdrawn.
(3)  Subsection (1) (d) does not apply where the offence is unconnected with the functions of the irrigation corporation relating to the supply or drainage of water.
s 126: Am 2001 No 34, Sch 4.71 [2].
127   Irrigation corporation may make arrangements with subsidiaries
(1)  An irrigation corporation may arrange, whether by an agency agreement or in any other way (except by assignment), for a subsidiary of the irrigation corporation to exercise any or all of the irrigation corporation’s functions under this Part or under an operating licence.
(2)  The Minister may treat any act or omission of the subsidiary of an irrigation corporation as an act or omission of the irrigation corporation for the purpose of determining—
(a)  whether the irrigation corporation has contravened its operating licence, or
(b)  whether the licence should be suspended or cancelled,
but only if the irrigation corporation has made arrangements for the exercise of functions by the subsidiary.
(3)  In this section, subsidiary means a corporation that is a subsidiary of a corporation as determined in accordance with the Corporations Act 2001 of the Commonwealth or any other applicable law.
s 127: Am 2001 No 34, Sch 4.71 [3].
Division 4 Inclusion of land within irrigation corporation’s area of operations
128   Applications to include land within area of operations
(1)  An application for the inclusion of land within an irrigation corporation’s area of operations may be made to the Minister by means of a joint application made by the corporation and by the owner or owners of the land concerned.
(2)  The application must identify the land proposed to be included in the corporation’s area of operations.
(3)  The procedures for making and advertising an application are to be as prescribed by the regulations.
129   Objections to inclusion of land within area of operations
(1)  Any person may object to the inclusion of land within the proposed extension of an irrigation corporation’s area of operations.
(2)  The procedures for making an objection are to be as prescribed by the regulations.
130   Inclusion of land in area of operations
(1)  The Minister may determine an application for the inclusion of land within an irrigation corporation’s area of operations by granting or refusing the application.
(2)  If the Minister grants the application, the Minister must, by order published in the Gazette, include the land within the irrigation corporation’s area of operations.
s 130: Am 2004 No 39, Sch 5 [5]. Subst 2010 No 133, Sch 2 [49].
131   (Repealed)
s 131: Rep 2010 No 133, Sch 2 [49].
Division 5 Exclusion of land from irrigation corporation’s area of operations
132   Applications to exclude land from area of operations
(1)  An application for the exclusion of land from an irrigation corporation’s area of operations may be made to the Minister by means of a joint application made by the corporation and by the owner or owners of the land concerned.
(2)  The application must identify the land proposed to be excluded from the corporation’s area of operations.
(3)  The procedures for making and advertising an application are to be as prescribed by the regulations.
133   Objections to exclusion of land from area of operations
(1)  Any person may object to the proposed exclusion of land from an irrigation corporation’s area of operations.
(2)  The procedures for making an objection are to be as prescribed by the regulations.
134   Exclusion of land from area of operations
(1)  The Minister may determine an application for the exclusion of land from an irrigation corporation’s area of operations by granting or refusing the application.
(2)  If the Minister grants the application, the Minister must, by order published in the Gazette, exclude the land from the irrigation corporation’s area of operations.
s 134: Am 2004 No 39, Sch 5 [6]. Subst 2010 No 133, Sch 2 [50].
135   (Repealed)
s 135: Rep 2010 No 133, Sch 2 [50].
Division 6 Miscellaneous
136   Successor in title liable for unpaid contract charges
On a change of ownership of land, the new landholder of the land is liable to an irrigation corporation for the amount of any charges levied by the irrigation corporation in relation to the land and unpaid by the previous landholder as if the new landholder had entered into a contract with the irrigation corporation for the supply of the service or services to which the unpaid charges relate.
137   Indemnities
(1)  A person does not have any right or claim to relief of any kind whatever in any legal or other proceeding against an irrigation corporation or officer or employee of an irrigation corporation in respect of any nuisance connected with or in any way arising out of—
(a)  the design, construction, alteration, maintenance, non-maintenance, operation, repair, disrepair or non-repair of a water management work owned or controlled by the irrigation corporation, or
(b)  the destruction or damage, or partial destruction or partial damage, by flood, storm, tempest or otherwise of a water management work owned or controlled by the irrigation corporation, or
(c)  the exercise, in respect of a water management work owned or controlled by the irrigation corporation, by the irrigation corporation of any function conferred or imposed on the irrigation corporation under this or any other Act.
(2)  Section 733 of the Local Government Act 1993 applies to and in respect of an irrigation corporation in the same way as it applies to and in respect of a council.
138   Register of licences, audits and management programs
(1)  The Ministerial Corporation must maintain at its head office a register containing copies of the following—
(a)  operating licences,
(b)  audit reports,
(c)  applicable management programs,
(d)  recommendations of the Minister to the Governor under this Part.
(2)  The register must be made available for public inspection during normal business hours.
(3)  Any person may obtain a copy of any information on the register on payment of the reasonable cost of providing the copy.
Part 2 Private water corporations
ch 4, pt 2: Subst 2010 No 133, Sch 2[54].
Division 1 Preliminary
ch 4, pt 2, div 1: Subst 2010 No 133, Sch 2[54].
139   Definitions
In this Part—
board means the board of a corporation.
corporation means a private water corporation established under this Part and listed in Schedule 13.
corporation work means a water management work, or a proposed water management work, specified in the works plan for a corporation.
member’s water entitlement means the part of the share component of the corporation’s access licence that is available to a member.
rules means the rules of a private water corporation, as in force from time to time.
works plan means the works plan for a corporation specified for the corporation, as in force from time to time.
s 139: Subst 2010 No 133, Sch 2[54].
140   Requirements for access licences and approvals
Nothing in this Part authorises a corporation or landholder to do anything for which this Act requires an access licence or approval unless the corporation or landholder holds an appropriate access licence or approval.
s 140: Am 2010 No 133, Sch 1 [2]. Subst 2010 No 133, Sch 2[54].
Division 2 Constitution and management of private water corporations
ch 4, pt 2, div 2: Subst 2010 No 133, Sch 2[54].
141   Application for establishment of private water corporations
(1)  Two or more landholders of landholdings that are being worked on as 2 or more holdings may apply to the Minister to constitute a private water corporation in relation to those landholdings.
(2)  An application is—
(a)  to be in the approved form, and
(b)  to be accompanied by a works plan for the corporation and proposed rules for the corporation, and
(c)  to be accompanied by any other information required by the Minister or prescribed by the regulations, and
(d)  to be accompanied by the fee (if any) prescribed by the regulations.
s 141: Subst 2008 No 73, Sch 6 [21]; 2010 No 133, Sch 2[54].
142   Determination of application and constitution of corporation
(1)  The Minister may grant an application to establish a corporation if—
(a)  the Minister is satisfied that the purpose of the corporation is to provide, maintain or operate any or all of a water supply system, water distribution system or drainage system, and
(b)  the corporation and any proposed works plan and rules of the corporation comply with any requirements of this Act and the regulations.
(2)  A corporation is to be constituted by the Minister by order published on the NSW legislation website.
(3)  In addition to constituting the corporation, the order must specify the following—
(a)  the name of the corporation,
(b)  the water supply, water distribution or water drainage purposes of the corporation,
(c)  the landholdings for which the corporation may exercise functions and the works plan for the corporation,
(d)  the members of the corporation,
(e)  the board members of the corporation, pending the first election of board members,
(f)  the date, time and place of the first election of the board members of the corporation,
(g)  the rules of the corporation.
(4)  On the order being published or on such later day as may be specified in the order—
(a)  the corporation is constituted as a body corporate with the name specified in the order, and
(b)  the members of the corporation are the members specified in the order, and
(c)  the rules and works plan specified by the order take effect.
(5)  A corporation is not a NSW government agency.
s 142: Am 2008 No 73, Sch 5 [9]; 2018 No 31, Sch 1 [4]. Subst 2010 No 133, Sch 2[54].
143   Functions of private water corporations
(1)  A corporation has the following functions—
(a)  to provide, maintain or operate a water supply system, water distribution system or drainage system,
(b)  any other function conferred or imposed on the corporation by or under this or any other Act.
(2)  A corporation may supply water—
(a)  under an access licence or approval held by the corporation, or
(b)  for the purpose of an access licence or approval held by a member whose member’s water entitlement has been transformed under Division 4.
(3)  A corporation must exercise its functions in accordance with this Act, the regulations and the rules.
s 143: Am 2002 No 138, Sch 4 [3]. Subst 2010 No 133, Sch 2[54].
144   Boards of private water corporations
(1)  There is to be a board of a corporation.
(2)  The board is to consist of not less than 3 and not more than 10 members of the corporation.
(3)  The board has the following functions—
(a)  to direct, control and manage the affairs of the corporation, in accordance with this Act, the regulations and the rules,
(b)  any other functions conferred on the board by or under this Act.
(4)  A board member holds office for the term prescribed by the rules.
(5)  The regulations may prescribe the circumstances in which a board member ceases to be a board member.
s 144: Am 2008 No 73, Sch 5 [10]; 2018 No 31, Sch 1 [4]. Subst 2010 No 133, Sch 2[54].
145   Rules of private water corporations
(1)  A corporation may, from time to time, amend or replace the rules of the corporation.
(2)  The rules may make provision for or with respect to the following matters—
(a)  elections of the board,
(b)  the members and procedure of the board,
(c)  the members of the corporation,
(d)  meetings of the corporation,
(e)  the voting rights of members of the corporation, or classes of members of the corporation,
(f)  new members of the corporation,
(g)  the functions of the corporation that may be exercised only by resolution of the corporation at a meeting of the members of the corporation,
(h)  the imposition of rates and charges on members of the corporation for services (including water) provided by the corporation,
(i)  the regulation of a water supply, water distribution or drainage system provided by the corporation,
(j)  the regulation of the supply, taking or use of water provided by a water supply or water distribution system provided by the corporation,
(k)  the regulation of the draining or disposal of water through a drainage system provided by the corporation,
(l)  the financial management and systems of the corporation,
(m)  the manner in which the rules are to be amended or replaced,
(n)  any other matters prescribed by the regulations,
(o)  any other matters necessary for, or ancillary to, the purposes of the corporation.
(3)  The rules must—
(a)  not be inconsistent with this Act or the regulations, and
(b)  comply with any requirements prescribed by the regulations.
(4)  A corporation must notify changes to the rules, or replaced rules, in the manner prescribed by the regulations.
(5)  The rules are binding on the members of the corporation, board members and landholders to whom the corporation provides services and it is presumed that the members and any such landholders have notice of the rules.
(6)  A rule has no effect to the extent to which it is inconsistent with this Act or the regulations.
(7)  A corporation must not make a change to a rule unless the proposed change has been approved by at least two thirds of the members of the corporation who are entitled to vote on the question or the change is authorised under the rules.
(8)  The regulations may vary the proportion of members of a corporation who must approve any such change or any class of change.
s 145: Am 2002 No 53, Sch 2.28. Subst 2010 No 133, Sch 2[54].
146   Corporation must provide copy of rules to Minister
(1)  A corporation must, if required to do so by the Minister, provide the Minister with a copy of the rules of the corporation.
Maximum penalty—20 penalty units.
(2)  A corporation must, on the request of a member and payment by the member of the fee (if any) prescribed by the rules of the corporation, provide the member with a copy of the rules of the corporation.
s 146: Subst 2010 No 133, Sch 2[54].
147   Delegation by corporations and boards
A corporation or a board may by instrument in writing delegate—
(a)  to any member of the corporation or board, or
(b)  to any employee of the corporation,
any of its functions, other than this power of delegation.
s 147: Subst 2010 No 133, Sch 2[54].
Division 3 Operational functions
ch 4, pt 2, div 3: Subst 2010 No 133, Sch 2[54].
148   Corporation works and other works
(1)  A corporation may exercise the following functions for the purpose of its water supply, water distribution and drainage functions—
(a)  construct, install, maintain, operate and manage corporation works,
(b)  repair, replace, maintain, remove, extend, connect, disconnect, improve or do any other things in relation to corporation works that are necessary for the purposes of carrying out its functions.
(2)  The corporation may enter into an arrangement with a landholder to provide services in relation to works that are not corporation works.
s 148: Subst 2010 No 133, Sch 2[54].
149   Members may be required to provide distribution works
(1)  A corporation may require a member of the corporation, or a landholder who is supplied with water by the corporation, to do any of the following—
(a)  to provide water delivery systems on a landholding to enable the supply of water to the land at the rate specified by the corporation,
(b)  to provide water storage works in the locations, and of a kind, specified by the corporation for water supplied for stock or domestic purposes,
(c)  to maintain any water delivery systems or water storage works on the land so as to enable the corporation to properly exercise its functions in relation to the supply of water.
(2)  The requirement is to be made by notice in writing given by the corporation to the member or landholder.
(3)  A requirement may be made under this section only if it is necessary for the efficient or effective operation of corporation works or the carrying out of the corporation’s functions.
s 149: Am 2004 No 39, Sch 5 [7]. Subst 2010 No 133, Sch 2[54].
149A   (Repealed)
s 149A: Ins 2004 No 39, Sch 5 [8]. Rep 2010 No 133, Sch 2[54].
150   Discontinuation of water supply by corporation
(1)  A corporation may at any time suspend or restrict the supply of, or refuse to supply, water to a member or landholder if the corporation is reasonably satisfied that any of the following circumstances exist—
(a)  the water that is available to the corporation cannot meet the demand,
(b)  the water that is available to the corporation is not suitable for the required purpose,
(c)  the corporation is unable to provide sufficient conveyance water in connection with the operation of an irrigation system,
(d)  the corporation is not lawfully able to supply the quantity of water,
(e)  the member or landholder has failed to pay rates or charges for water or other services provided by the corporation,
(f)  the member or landholder has contravened or failed to comply with a condition on which water or drainage services are supplied by the corporation,
(g)  the member or landholder has contravened or failed to comply with a requirement of the corporation relating to the provision, maintenance or repair of distribution works or any other requirement made by the corporation in accordance with this Act, the regulations or the rules,
(h)  the member or landholder has contravened or failed to comply with a requirement of this Act, the regulations or the rules,
(i)  the corporation is unable to dispose of water draining into its drainage system because of the degraded quality of the water.
(2)  A corporation that takes action under this section may reduce the amount of water available by different amounts or proportions according to such factors as the corporation thinks fit.
s 150: Am 2004 No 39, Sch 5 [9]. Subst 2010 No 133, Sch 2[54].
151   Supply of services to other persons
(1)  A corporation may enter into an agreement with a person who is not a member of the corporation to supply water for the purpose of irrigating land or other purposes, or to drain water from land, by means of a water supply, water distribution or drainage system provided and managed by the corporation.
(2)  A corporation must not supply water for domestic purposes if a supply of water is available to the person from a local water utility or major utility.
s 151: Subst 2010 No 133, Sch 2[54].
152   Powers of entry and inspection
(1)  A corporation may, by its employees and agents, enter onto land on which corporation works are situated, or any other land, for the following purposes—
(a)  to carry out any of its functions in relation to corporation works,
(b)  to read a meter that measures water supplied by the corporation or monitors drainage for quantity or quality or both,
(c)  to carry out investigations or inspections, take levels, drill test bore-holes, dig trenches, make surveys and marks, and fix pegs and stakes, for the purposes of designing, constructing or determining the site of a proposed corporation work,
(d)  to remove samples of materials from the land for the purposes of carrying out the corporation’s functions, but only if the landholder has been consulted and the views of the landholder have been considered,
(e)  to exercise any other powers that are incidental to the corporation’s functions or that are reasonably necessary for carrying out the corporation’s functions.
(2)  The powers of entry conferred by this section are not to be exercised for a purpose referred to in subsection (1) (a), (c) or (d) without prior notice to the landholder of the land.
(3)  A corporation must ensure that as little damage as possible is caused by the exercise of powers under this section.
s 152: Subst 2010 No 133, Sch 2[54].
153   Works plans
(1)  A works plan for a corporation must—
(a)  identify the water management works or proposed works that are the corporation works, and
(b)  specify the location of, and describe, the works, and
(c)  specify the land to which the works plan applies.
(2)  A works plan must comply with any requirements prescribed by the regulations and the rules.
(3)  A works plan may be amended or replaced if the amendment or replacement is consented to by any landholder on whose land an affected work is situated or is authorised by the rules.
(4)  A works plan may specify works on land of former members of the corporation who have transformed their member’s water entitlements.
(5)  Regulations may be made for or with respect to the keeping of, and provision of, copies of works plans by corporations.
s 153: Subst 2010 No 133, Sch 2[54].
Division 4 Sale and transformation of water entitlements
ch 4, pt 2, div 4: Subst 2010 No 133, Sch 2[54].
154   Water entitlements of members
(1)  A corporation may, if requested to do so in writing by a member of the corporation, determine the member’s water entitlement.
(2)  The corporation must determine an entitlement if the request is made by a member who is supplied by the corporation with water for irrigation.
(3)  A corporation must have regard to the following matters when determining the member’s water entitlement—
(a)  the nature of agricultural activities on the land to which water is supplied,
(b)  the amount of water currently supplied to the member,
(c)  any present or past water sharing arrangements applicable to the member,
(d)  any other matter it considers relevant,
(e)  any other matter prescribed by the regulations.
(4)  A determination may specify the different parts of the member’s water entitlement that are available to the member for different purposes.
(5)  A determination must be in writing and comply with the requirements prescribed by the regulations. Notice of a determination must be given in writing by the corporation to the member.
(6)  A determination may be varied or redetermined only on a further application made by the member within 3 months of the determination or in the circumstances prescribed by the regulations.
(7)  A person must not participate in a determination of a member’s water entitlement if the person or a member of the person’s immediate family (within the meaning of the regulations) has an interest in the entitlement.
s 154: Subst 2010 No 133, Sch 2[54].
155   Sale or transfer of group entitlement
A corporation must not enter into a dealing to sell or mortgage the whole or part of its water entitlement under its access licence unless the dealing is permitted under, and is in accordance with, the rules of the corporation.
s 155: Subst 2010 No 133, Sch 2[54].
156   Sale or transfer of members’ water entitlements
(1)  A member of a corporation may sell or transfer the whole or any part of the member’s water entitlement to another member or to the corporation.
(2)  A member must not sell or transfer the whole or part of the member’s water entitlement under this section unless the sale or transfer has been approved by the corporation in accordance with the rules or the regulations.
(3)  A sale or transfer by a member does not affect the member’s membership of the corporation, except as provided by this Act or the rules of the corporation.
s 156: Am 2001 No 56, Sch 1.22 [15]; 2008 No 73, Sch 5 [11]; 2018 No 31, Sch 1 [4]. Subst 2010 No 133, Sch 2[54].
157   Transformation of member’s water entitlement
(1)  A corporation may make an application under Division 4 of Part 2 of Chapter 3 for the purpose of wholly or partly transforming a member’s water entitlement into an access licence under this Act.
(2)  On transformation of the whole or part of a member’s water entitlement to an access licence—
(a)  the member is not entitled to vote (as a board member) or as a member of the corporation on any matter relating to the transformation of one or more other members’ water entitlements or the supply of water to members who have not transformed their water entitlements, and
(b)  the corporation may continue to exercise functions in relation to any corporation works that are located on the landholding (whether or not the corporation is to deliver the member’s water entitlement under the access licence or the landholder is a member of the corporation).
(3)  If the whole of a person’s water entitlement is transformed and the person does not have a right to the delivery of that water by the corporation—
(a)  the person ceases to be a member of the corporation, and
(b)  the corporation must not fix rates and charges in respect of the person’s landholding for that water (other than termination charges).
(4)  The rules may make provision for or with respect to other circumstances in which a person whose member’s water entitlement has been transformed ceases to be a member of the corporation.
(5)  A corporation may require a member to provide security as a condition of consent to transformation of the whole or part of the member’s water entitlement, subject to the regulations.
(6)  Without limiting subsection (5), the following kinds of security may be required by a corporation—
(a)  a charge over a part of an irrigation right that is not transformed,
(b)  a charge over an access licence or other entitlement to water acquired by the person and resulting from the transformation,
(c)  a guarantee by an authorised deposit-taking institution,
(d)  a deposit lodged with the corporation.
s 157: Subst 2010 No 133, Sch 2[54].
Division 5 Changes to private water corporations
ch 4, pt 2, div 5: Subst 2010 No 133, Sch 2[54].
158   Changes in membership requiring works plan changes
(1)  A corporation must not make a change in membership that requires a change to the works plan unless the proposed change to the works plan has been approved by at least two thirds of the members of the corporation who are entitled to vote on the question.
(2)  The regulations may vary the proportion of members of a corporation who must approve any such change.
(3)  Any change to the works plan takes effect from the date approval is given or such other date (being an earlier or later date) as is specified in the approval.
s 158: Subst 2010 No 133, Sch 2[54].
159   Application for amalgamation of private water corporations
(1)  Two or more corporations may apply to the Minister to constitute one private water corporation.
(2)  An application is—
(a)  to be in the approved form, and
(b)  to be accompanied by a works plan for the land and proposed rules for the new corporation, and
(c)  to be accompanied by any other information required by the Minister or prescribed by the regulations, and
(d)  to be accompanied by the fee (if any) prescribed by the regulations.
s 159: Subst 2010 No 133, Sch 2[54].
160   Determination of application for amalgamation
(1)  The Minister may grant an application to amalgamate 2 or more corporations if—
(a)  the Minister is satisfied that the purpose of the amalgamated corporation is to provide, maintain or operate any or all of a water supply system, water distribution system or drainage system, and
(b)  the corporation and any proposed works plan or rules of the corporation comply with any requirements of this Act and the regulations.
(2)  The amalgamated corporation is to be constituted by the Minister by order published on the NSW legislation website.
(3)  In addition to constituting the corporation, the order must specify the following—
(a)  the name of the corporation,
(b)  the water supply, water distribution or water drainage purposes of the corporation,
(c)  the landholdings for which the corporation may exercise functions and the works plan of the corporation,
(d)  the members of the corporation,
(e)  the board members of the corporation, pending the first election of board members,
(f)  the date, time and place for the first election of the board members of the corporation,
(g)  the rules of the corporation.
(4)  On the order being published or on such later day as may be specified in the order—
(a)  the new corporation is constituted as a body corporate with the name specified in the order, and
(b)  the members specified in the order are the members of the corporation, and
(c)  the rules and works plan specified by the order take effect, and
(d)  the amalgamated corporations are abolished, and
(e)  the new corporation is taken for all purposes to be a continuation of and the same legal entity as each of the amalgamated corporations.
(5)  The new corporation is not a NSW government agency.
s 160: Subst 2010 No 133, Sch 2[54].
161   Effect of sale of land
(1)  If a member of a corporation sells to a person land to which the corporation provides or is able to provide water supply or drainage services—
(a)  the member ceases to be a member in respect of that land when that sale takes effect, and
(b)  the purchaser is taken to be a member of the corporation when the sale takes effect, and
(c)  the purchaser has all the entitlements and liabilities of the vendor as a member, in respect of the land, that the vendor had immediately before the sale took effect.
(2)  A member of a corporation who sells land as referred to in this section must notify the corporation of the sale in accordance with any requirements of the regulations or the rules.
s 161: Subst 2010 No 133, Sch 2[54].
162   Effect of subdivision
The subdivision of land by a member of a corporation—
(a)  does not of itself entitle any other person to be a member of the corporation or entitle any other person to be supplied with water or provided with drainage or other services by the corporation, and
(b)  does not of itself affect any existing entitlement of any other person in relation to any such service, and
(c)  does not of itself affect any functions of the corporation in relation to corporation works.
s 162: Subst 2010 No 133, Sch 2[54].
Division 6 Rates and charges
ch 4, pt 2, div 6: Subst 2010 No 133, Sch 2[54].
163   Fixing of rates and charges
(1)  A corporation must for each year commencing on 1 July fix the rates and charges payable in respect of each landholding that is a landholding owned or occupied by its members for which the corporation may exercise functions, or for which it provides water or drainage services in that year.
(2)  In determining the amount of rates and charges payable, the corporation must fix an amount that it considers is sufficient to meet the estimated costs of the following—
(a)  the corporation’s likely costs in providing irrigation, water supply and drainage services for that year,
(b)  the liabilities of the corporation,
(c)  the corporation’s likely costs relating to corporation works, including (but not limited to) maintenance, improvement and replacement of works and new works,
(d)  provision for a sinking fund (if necessary),
(e)  any other matters prescribed by the regulations.
(3)  The rates and charges payable may (but are not required to) be fixed on the basis of any one or more of the following—
(a)  the volume or quality of water supplied or proposed to be supplied to a landholding,
(b)  the area of a landholding,
(c)  whether or not water or drainage services are or are proposed to be provided to a landholding,
(d)  the purpose for which water services are supplied or proposed to be supplied to a landholding.
(4)  If rates and charges are payable on the basis of the area of a landholding, a landholding that has an area equal to a number of hectares and a remaining fraction of a hectare is to be rounded up to the nearest hectare.
(5)  A corporation may also fix the following charges—
(a)  termination charges payable by a member or former member in connection with the corporation ceasing to supply water to the member or former member (whether because of the transformation of the member’s water entitlement to an access licence or otherwise),
(b)  charges payable for the delivery of water to a member or former member after transformation of the whole or part of the member’s water entitlement.
(6)  A corporation must give notice of its fees and charges for a year in the manner prescribed by the regulations and must specify in the notice the basis on which the rates and charges are calculated.
(7)  The rules of a corporation must provide for the procedures for setting rates and charges and the period within which rates and charges must be paid.
Note—
The regulations may prescribe requirements for rules made under this section (see section 145 (3) (b)).
s 163: Subst 2010 No 133, Sch 2[54] (am 2011 No 62, Sch 1.24[1]).
164   Recovery of unpaid rates and charges
(1)  The owner or occupier of a landholding for which rates or charges are levied by a corporation must pay the rates and charges to the corporation.
(2)  If a landholding for which rates or charges are levied is owned or occupied by more than one person the following provisions apply—
(a)  the rates or charges may be levied on one or more of those persons and may be recovered by the corporation from any one or more of those persons,
(b)  the corporation is not entitled to recover more than the total amount of the rates and charges (and any interest payable).
(3)  If any land in a holding reverts to the Crown during any year for which rates or charges are or are to be assessed, the person who immediately before the reversion was the landholder of the land is liable for payment of only that part of the rates or charges proportionate to the part of the year for which the land was held by the person, and any excess payment by the person must be refunded to the person.
Note—
Rates and charges are a charge on the land, procedures for the sale of land for overdue rates are set out in Part 4 of Chapter 7.
s 164: Subst 2010 No 133, Sch 2[54].
165   Abandonment of rates and charges
(1)  A corporation may, in accordance with the rules, waive or reduce rates, charges and interest due.
(2)  Rates and charges may be waived under this section only if the auditor of the corporation certifies that the waiver is in accordance with the rules and has been approved by the board of the corporation.
s 165: Subst 2010 No 133, Sch 2[54].
Division 7 Finance
ch 4, pt 2, div 7: Subst 2010 No 133, Sch 2[54].
166   Financial records
(1)  A corporation must cause proper accounts and records to be kept in relation to all its operations.
(2)  A corporation must prepare financial statements for each financial year of the corporation.
(3)  Section 7.6 of the Government Sector Finance Act 2018 applies to financial statements required to be prepared under this section in the same way that it applies to annual GSF financial statements required to be prepared under that Act.
(4)  The financial statements must be submitted for verification and certification to an auditor appointed by the corporation in the manner prescribed by the rules of the corporation.
(5)  The regulations may provide for the qualifications for appointment as an auditor under this section.
(6)  A member of a corporation or a board member of the corporation must not be appointed to audit the financial statements of the corporation.
s 166: Subst 2010 No 133, Sch 2[54].
167   Auditor’s right to access to information
(1)  An auditor of a corporation has a right of access at all reasonable times to the accounts and records of the corporation.
(2)  A board member, or an employee of, a corporation must comply with any reasonable request by the auditor of the corporation to provide information or documents relating to the accounts or financial statements or related records of the corporation.
Maximum penalty—20 penalty units.
s 167: Subst 2010 No 133, Sch 2[54].
168   Presentation of audited financial statements
(1)  A corporation must, at the request of the Minister, furnish to the Minister the audited financial statements and any other documents requested within the time specified in the request.
(2)  The audited financial statements must be laid before the annual general meeting of the corporation following their verification and certification by the auditor.
s 168: Am 2011 No 62, Sch 1.23 [3]. Subst 2010 No 133, Sch 2[54].
169   Borrowing and investment by corporations
(1)  A corporation may obtain borrowings, and may invest the funds of the corporation, in any manner it thinks fit.
(2)  A corporation may, for the purpose of obtaining borrowings—
(a)  charge the whole or any part of any of its property (including any income arising from rates or charges) by debenture, mortgage or in any other manner, and
(b)  enter into arrangements to provide guarantees or indemnities.
(3)  If a corporation defaults in carrying out its obligations under a debenture charged on income arising from rates or charges, the Supreme Court may, on the application of a creditor or a trustee for the debenture holders—
(a)  direct the corporation to appropriate a specified portion of its income to satisfy its obligations under the debenture, or
(b)  direct the corporation to raise a specified amount by way of charges and direct the amount to be applied towards satisfying those obligations,
and may give any other ancillary or incidental directions that it thinks fit.
(4)  The rights of a creditor or trustee in subsection (3) are in addition to any other rights of the creditor or trustee.
(5)  The obligations of a corporation are not guaranteed by the State of New South Wales.
(6)  The State of New South Wales is not liable to any action, liability, claim or demand in respect of the exercise by or on behalf of a corporation of any function under this Division.
(7)  In this section—
borrowing has the same meaning as in the Government Sector Finance Act 2018.
funds includes any funds under the control of the corporation and real property, securities or other property comprising an investment.
s 169: Subst 2010 No 133, Sch 2[54] (am 2018 No 70, Sch 3.69[1] [2]).
Division 8 Enforcement powers
ch 4, pt 2, div 8: Subst 2010 No 133, Sch 2[54].
170   Charges for water illegally taken and damage to works
(1)  A corporation may impose a charge on a person for water taken if the corporation is satisfied on the balance of probabilities that the person has knowingly taken water from a water management work that is owned by, or is under the control and management of, the corporation in contravention of this Act, the regulations, the rules or an agreement with the corporation.
(2)  A corporation may impose a charge on a person for the repair or replacement of a work if the corporation is satisfied on the balance of probabilities that the person has destroyed, damaged or interfered with a work that is owned by, or is under the control or management of, the corporation.
(3)  The charge imposed by the corporation may include a penalty component.
(4)  The maximum charge that a corporation may impose under this section—
(a)  for the taking of water, is an amount not exceeding 5 times the value of the water so taken, as determined in accordance with the regulations, or
(b)  for destroying, damaging or interfering with a work, is an amount not exceeding 5 times the reasonable cost of the repair or replacement (as required) of the work.
(5)  Action under this section may not be taken against a person unless the corporation—
(a)  has given written notice to the person that the corporation proposes to take such action, and
(b)  has given the person a reasonable opportunity to make submissions to the corporation with respect to the proposed action, and
(c)  has taken any such submissions into consideration.
(6)  A charge imposed by a corporation under this section is recoverable in any court of competent jurisdiction as a debt due to the corporation.
(7)  A corporation is not entitled to take action under this section unless the Minister has approved the application of this section to the corporation.
(8)  Action may be taken under this section against a former member of the corporation.
(9)  The exercise of powers by a corporation under this section is subject to any requirements of, or limits imposed by, the regulations or the rules of a corporation.
s 170: Subst 2010 No 133, Sch 2[54].
171   Entry and investigation powers
(1)  A corporation may appoint a person to act as an authorised officer of the corporation under this section. An appointment is to be in writing and is to comply with any requirements of the regulations.
(2)  An authorised officer of a corporation may enter land at any reasonable time if the authorised officer is reasonably of the opinion that the landholder has contravened an irrigation, water supply, water distribution or drainage agreement with the corporation and that it is necessary to enter the land for the purpose of investigating that contravention.
(3)  An authorised officer who enters land under this section may exercise the powers set out in section 339B (2) (a)–(g).
(4)  Sections 339D, 339F and 340 apply to authorised officers appointed under this section.
(5)  A corporation, and authorised officers of a corporation, may exercise the functions conferred by this section only if authorised to do so by the rules of the corporation.
(6)  This section does not empower an authorised officer to enter any part of premises used only for residential purposes.
(7)  A corporation must compensate all interested parties for any damage caused by a person exercising a power of entry on to land under this section on behalf of the corporation (but not any damage caused by the exercise of any other power), unless the occupier obstructed or hindered the person in the exercise of the power of entry.
s 171: Subst 2010 No 133, Sch 2[54].
172   Ministerial directions about rules
(1)  The Minister may, by notice in writing to a corporation, direct the corporation to comply with, or cease to contravene, the rules of the corporation.
(2)  The notice may direct the corporation to take specified action or to cease to take specified action.
(3)  A corporation must not contravene a direction under this section.
Tier 2 penalty.
s 172: Subst 2010 No 133, Sch 2[54].
Division 9 Winding up of private water corporations
ch 4, pt 2, div 9: Subst 2010 No 133, Sch 2[54].
173   Appointment of an administrator
(1)  The Minister may, by order published in the Gazette, remove the members of the board of a corporation from office and appoint an administrator to conduct the affairs of the corporation.
(2)  The Minister may make an order if the Minister is of the opinion that—
(a)  the board or the corporation has failed, or is unable to, carry out its functions as required by or under this Act, or
(b)  without limiting paragraph (a), the corporation has failed or is unable to provide or maintain water supply, water distribution or drainage services or corporation works, or
(c)  the corporation is unable to pay its debts as they fall due, or
(d)  the board or corporation has regularly or materially contravened this Act, the regulations or the rules of the corporation, or
(e)  in all the circumstances of the case it is just and equitable to do so.
(3)  Before making an order, the Minister must—
(a)  cause notice of the proposed order to be published in a newspaper circulating in the local area in which the corporation provides services, and
(b)  in that notice, invite submissions to be made to the Minister about the proposal within the period of 4 weeks following the publication of the notice, and
(c)  consider any submissions made within that period.
(4)  The Minister is not required to comply with subsection (3) if the Minister is of the opinion that the special circumstances of the case require the order to be made immediately.
s 173: Am 2009 No 17, Sch 3.22 [1]. Subst 2010 No 133, Sch 2[54].
174   Functions of administrator
(1)  The administrator of a corporation appointed under this Division holds office for such period as is specified in the order appointing the administrator. The administrator ceases to hold office if the Minister, by a subsequent order published in the Gazette, revokes the appointment or on the election of a new board under this section.
(2)  The administrator has and may exercise the functions of the board of the corporation or corporation specified in the administrator’s order of appointment (subject to any conditions specified in that order) but is not required to comply with the rules of the corporation.
(3)  The administrator may amend the rules of the corporation and take such other action as is necessary to enable the corporation to properly exercise its functions.
(4)  The administrator is entitled to be paid such remuneration, from the funds of the corporation, as the Minister may from time to time determine.
(5)  The Minister may at any time, by order published in the Gazette, extend the period of appointment of an administrator.
(6)  The administrator must, if required to do so by the Minister, report to the Minister on the administrator’s conduct of the affairs of the corporation.
(7)  The administrator may at any time recommend to the Minister that elections be held for a new board or that the corporation be wound up.
(8)  The administrator must, if required to do so by the Minister, arrange for elections to be held for a new board.
s 174: Subst 2010 No 133, Sch 2[54].
175   Removed board members not eligible for re-election
If the board of a corporation has been removed from office, each of the board members is ineligible for election to the board at any subsequent election, unless the Minister declares in writing that the board member is eligible for election at such an election.
s 175: Subst 2010 No 133, Sch 2[54].
176   Effect of administration on existing contracts
On the appointment of an administrator of a corporation—
(a)  all contracts of employment with the corporation are terminated, and
(b)  the administrator may terminate any contract for the provision of services to or by the corporation.
s 176: Am 2001 No 56, Sch 1.22 [16]. Subst 2010 No 133, Sch 2[54].
177   Winding up of corporations
(1)  The Minister may, by order published in the Gazette, order that a corporation be wound up if—
(a)  requested to do so by the corporation, after a resolution to wind up the corporation was passed at a meeting of the corporation by not less than 75% of the members, or
(b)  the administrator of the corporation has recommended that the corporation be wound up.
(2)  The order must appoint a person as the liquidator of the corporation.
(3)  The regulations may make provision for or with respect to the winding up of a corporation and for the disposal of residual assets of the corporation.
(4)  The Minister may, by order published in the Gazette, abolish a corporation if satisfied that the winding up of the corporation under this section has been completed.
s 177: Subst 2010 No 133, Sch 2[54].
Division 10 Miscellaneous
ch 4, pt 2, div 10: Subst 2010 No 133, Sch 2[54].
178   Liability for water source and other changes
(1)  A corporation, any officer or employee of a corporation or a person acting under the direction of the corporation, officer or employee is not subject to any action, liability, claim or demand arising—
(a)  from the unavailability of water, or
(b)  from the escape of water from a corporation work, or
(c)  from a failure to supply, distribute or drain water that is authorised by the rules, this Act or the regulations,
as a consequence of anything done or omitted to be done in good faith by the corporation, officer, employee or person for the purposes of executing this Act or of carrying out the functions of the corporation.
(2)  This section does not limit section 397.
s 178: Am 2003 No 40, Sch 2.30 [2]. Subst 2010 No 133, Sch 2[54].
179   Amendment of Schedule 13 to insert, change, omit name of corporation
The Minister may, by order published on the NSW legislation website, amend Schedule 13—
(a)  to insert the name of a private water corporation constituted under this Act, or
(b)  to change the name of a private water corporation constituted under this Act, or
(c)  to omit the name of a private water corporation, if the corporation is abolished.
s 179: Subst 2010 No 133, Sch 2[54].
180–190   (Repealed)
s 180: Rep 2010 No 133, Sch 2[54].
s 181: Rep 2010 No 133, Sch 2[54].
s 182: Rep 2010 No 133, Sch 2[54].
s 183: Rep 2010 No 133, Sch 2[54].
s 184: Rep 2010 No 133, Sch 2[54].
s 185: Rep 2010 No 133, Sch 2[54].
s 186: Rep 2010 No 133, Sch 2[54].
s 187: Am 2001 No 34, Sch 4.71 [4]. Rep 2010 No 133, Sch 2[54].
s 188: Rep 2010 No 133, Sch 2[54].
s 189: Rep 2010 No 133, Sch 2[54].
s 190: Rep 2010 No 133, Sch 2[54].
Divisions 10A, 11
190A–196  (Repealed)
ch 4, pt 2, div 10A: Ins 2010 No 133, Sch 1 [3]. Rep 2010 No 133, Sch 2[54].
s 190A: Ins 2010 No 133, Sch 1 [3]. Rep 2010 No 133, Sch 2[54].
s 190B: Ins 2010 No 133, Sch 1 [3]. Am 2011 No 62, Sch 1.23 [4]. Rep 2010 No 133, Sch 2[54].
ch 4, pt 2, div 11: Rep 2010 No 133, Sch 2[54].
s 191: Rep 2010 No 133, Sch 2[54].
s 192: Rep 2010 No 133, Sch 2[54].
s 193: Rep 2010 No 133, Sch 2[54].
s 194: Rep 2010 No 133, Sch 2[54].
s 195: Rep 2010 No 133, Sch 2[54].
s 196: Rep 2010 No 133, Sch 2[54].
Part 3
197–219  (Repealed)
ch 4, pt 3: Rep 2010 No 133, Sch 2[54].
ch 4, pt 3, div 1: Rep 2010 No 133, Sch 2[54].
s 197: Rep 2010 No 133, Sch 2[54].
s 198: Am 2001 No 112, Sch 2.41 [1]. Rep 2010 No 133, Sch 2[54].
s 199: Subst 2008 No 73, Sch 6 [22]. Rep 2010 No 133, Sch 2[54].
ch 4, pt 3, div 2: Rep 2010 No 133, Sch 2[54].
s 200: Rep 2010 No 133, Sch 2[54].
s 201: Am 2001 No 112, Sch 2.41 [2]. Rep 2010 No 133, Sch 2[54].
s 202: Rep 2010 No 133, Sch 2[54].
s 203: Rep 2010 No 133, Sch 2[54].
s 204: Rep 2010 No 133, Sch 2[54].
s 205: Am 2008 No 73, Sch 5 [12]; 2018 No 31, Sch 1 [4]. Rep 2010 No 133, Sch 2[54].
ch 4, pt 3, div 3: Rep 2010 No 133, Sch 2[54].
s 206: Rep 2010 No 133, Sch 2[54].
s 207: Rep 2010 No 133, Sch 2[54].
s 208: Rep 2010 No 133, Sch 2[54].
s 209: Rep 2010 No 133, Sch 2[54].
s 210: Rep 2010 No 133, Sch 2[54].
s 211: Rep 2010 No 133, Sch 2[54].
s 212: Rep 2010 No 133, Sch 2[54].
s 213: Am 2003 No 40, Sch 2.30 [3]. Rep 2010 No 133, Sch 2[54].
ch 4, pt 3, div 4: Rep 2010 No 133, Sch 2[54].
s 214: Rep 2010 No 133, Sch 2[54].
s 215: Rep 2010 No 133, Sch 2[54].
ch 4, pt 3, div 5: Rep 2010 No 133, Sch 2[54].
s 216: Am 2008 No 73, Schs 5 [13], 6 [23]; 2018 No 31, Sch 1 [4]. Rep 2010 No 133, Sch 2[54].
s 217: Rep 2010 No 133, Sch 2[54].
s 218: Am 2008 No 73, Sch 5 [14]; 2018 No 31, Sch 1 [57]. Rep 2010 No 133, Sch 2[54].
s 219: Rep 2010 No 133, Sch 2[54].
Part 4 Private water trusts
Division 1 Preliminary
220   Application of Part
This Part applies to all private water trusts under Part 3 of the former Water Act 1912 that were in existence immediately before the repeal of that Part, but does not authorise the establishment of any new private water trusts.
221   Definitions
In this Part—
landholder’s water entitlement means the part of the share component of an access licence held by or on behalf of a private water trust that is available to a landholder for irrigation.
member’s water entitlement means the part of the share component of an access licence held by or on behalf a private water trust that is available to a member.
private water trust means a trust constituted under Part 3 of the former Water Act 1912.
ratepayer means person paying rates in respect of land within a water supply district.
rules means the rules of a private water trust, as in force from time to time.
trust work means a water management work, or a proposed water management work, specified in the works plan for a private water trust.
trustee of a private water trust means a trustee elected under section 223.
works plan means the works plan for a private water trust specified for the trust, as in force from time to time.
s 221: Am 2010 No 133, Schs 1 [4], 2[55] [56].
222   Requirements for access licences and approvals
Nothing in this Part authorises a private water trust, the trustees of a trust or landholder to do anything for which this Act requires an access licence or approval unless the private water trust or landholder holds an appropriate access licence or approval.
s 222: Subst 2008 No 73, Sch 6 [24]. Am 2010 No 133, Sch 2[57].
Division 2 Management of private water trusts
ch 4, pt 4, div 2: Subst 2010 No 133, Sch 2[59].
223   Trustees of private water trusts
(1)  The number of trustees of a private water trust is to be the number when section 220 commenced.
(2)  The trustees of a trust are to be elected.
(3)  The trustees must elect one of the trustees as chairperson of the trust.
(4)  The trustees have the following functions—
(a)  to direct, control and manage the affairs of the trust, in accordance with this Act, the regulations and the rules,
(b)  any other functions conferred on the trustees by or under this Act.
(5)  The trustees are to act for and on behalf of the trust.
(6)  A trustee holds office for the term prescribed by the rules.
(7)  The regulations may prescribe the circumstances in which a trustee ceases to be a trustee.
(8)  For the purposes of this Act and the regulations, a trust is taken to be the holder of any access licence or approval that is held by any former or other current trustees on behalf of the trust.
(9)  A trustee must, as soon as practicable after ceasing to be a trustee, take all necessary action to transfer any interest in property held by the former trustee on behalf of the trust to the trustees of the trust or the trust.
s 223: Subst 2010 No 133, Sch 2[59].
224   Water supply and other functions of trusts
(1)  A private water trust has the following functions—
(a)  to provide, maintain or operate a water supply system, water distribution system or drainage system,
(b)  any other function conferred or imposed on the trust by or under this or any other Act.
(2)  The trust may supply water—
(a)  under an access licence or approval held by the trustees or trust, or
(b)  for the purpose of an access licence or approval held by a member whose member’s water entitlement has been transformed under Division 4.
s 224: Subst 2010 No 133, Sch 2[59].
225   Rules of private water trusts
(1)  A private water trust may, from time to time, amend or replace the rules of the trust.
(2)  The rules may make provision for or with respect to the following matters—
(a)  elections of trustees,
(b)  the trustees and procedures of the trustees,
(c)  the members of the trust,
(d)  meetings of the trust,
(e)  meetings of trustees of the trust,
(f)  the voting rights of members of the trust, or classes of members of the trust,
(g)  new members of the trust,
(h)  the functions of the trust that may be exercised only by resolution at a meeting of the members of the trust,
(i)  the imposition of rates and charges on members of the trust for services (including water) provided by the trust,
(j)  the regulation of a water supply, water distribution or drainage system provided by the trust,
(k)  the regulation of the supply, taking or use of water provided by a water supply or water distribution system provided by the trust,
(l)  the regulation of the draining or disposal of water through a drainage system provided by the trust,
(m)  the financial management and systems of the trust,
(n)  the manner in which the rules are to be amended or replaced,
(o)  any other matters prescribed by the regulations,
(p)  any other matters necessary for, or ancillary to, the purposes of the trust.
(3)  The rules must—
(a)  not be inconsistent with this Act or the regulations, and
(b)  comply with any requirements prescribed by the regulations.
(4)  A trust must notify changes to the rules, or replaced rules, in the manner prescribed by the regulations.
(5)  The rules are binding on the trustees and members of the trust and landholders to whom the trust provides services and it is presumed that the trustees, members and landholders have notice of the rules.
(6)  A rule has no effect to the extent to which it is inconsistent with this Act or the regulations.
(7)  A trust must not make a change to a rule unless the proposed change has been approved by at least two thirds of the members of the trust who are entitled to vote on the question or the change is authorised by the rules.
(8)  The regulations may vary the proportion of members of a trust who must approve any such change or any class of change.
s 225: Subst 2010 No 133, Sch 2[59].
226   Trustees must provide copy of rules
(1)  A trustee of a private water trust must, if required to do so by the Minister, provide the Minister with a copy of the rules of the trust.
Maximum penalty—20 penalty units.
(2)  A private water trust must, on the request of a member of the trust and payment by the member of the fee (if any) prescribed by the rules of the trust, provide the member with a copy of the rules of the trust.
s 226: Subst 2010 No 133, Sch 2[59].
227   Delegation
A private water trust or the trustees of a trust may by instrument in writing delegate—
(a)  to any trustee or to any member of the trust, or
(b)  to any employee of the trust,
any of their functions, other than this power of delegation.
s 227: Subst 2010 No 133, Sch 2[59].
Division 3 Operational functions
ch 4, pt 4, div 3: Subst 2010 No 133, Sch 2[59].
228   Trust works and other works
(1)  A private water trust may exercise the following functions for the purpose of its water supply, water distribution and drainage functions—
(a)  construct, install, maintain, operate and manage trust works,
(b)  repair, replace, maintain, remove, extend, connect, disconnect, improve or do any other things in relation to trust works that are necessary for the purpose of carrying out their functions.
(2)  A private water trust may enter into an arrangement with a landholder to provide services in relation to works that are not trust works.
s 228: Subst 2010 No 133, Sch 2[59].
229   Members may be required to provide distribution works
(1)  A private water trust may require a member of the trust, or a landholder who is supplied with water by the trust, to do any of the following—
(a)  to provide water delivery systems on a landholding to enable the supply of water to the land at the rate specified by the trust,
(b)  to provide water storage works in the locations, and of a kind, specified by the trust for water supplied for stock or domestic purposes,
(c)  to maintain any water delivery systems or water storage works on the land so as to enable the trust to properly exercise functions in relation to the supply of water.
(2)  The requirement is to be made by notice in writing given by the trust to the member or landholder.
(3)  A requirement may be made under this section only if it is necessary for the efficient or effective operation of trust works or the carrying out of the trust’s functions.
s 229: Subst 2010 No 133, Sch 2[59].
230   Discontinuation of water supply by trust
(1)  A private water trust may at any time suspend or restrict the supply of, or refuse to supply, water to a member or landholder if the trust is reasonably satisfied that any of the following circumstances exist—
(a)  the water that is available to the trust cannot meet the demand,
(b)  the water that is available to the trust is not suitable for the required purpose,
(c)  the trust is unable to provide sufficient conveyance water in connection with the operation of an irrigation system,
(d)  the trust is not lawfully able to supply the quantity of water,
(e)  the member or landholder has failed to pay charges or fees for water or other services provided by the trust,
(f)  the member or landholder has contravened or failed to comply with a condition on which water or drainage services are supplied by the trust,
(g)  the member or landholder has contravened or failed to comply with a requirement of the trust relating to the provision, maintenance or repair of distribution works or any other requirement made by the trust in accordance with this Act, the regulations or the rules,
(h)  the member or landholder has contravened or failed to comply with a requirement of this Act, the regulations or the rules,
(i)  the trust is unable to dispose of water draining into its drainage system because of the degraded quality of the water.
(2)  A private water trust that takes action under this section may reduce the amount of water available by different amounts or proportions according to such factors as it thinks fit.
s 230: Subst 2010 No 133, Sch 2[59].
231   Supply of services to other persons
(1)  A private water trust may enter into an agreement with a person who is not a member of the trust to supply water for the purpose of irrigating land or other purposes, or to drain water from land, by means of a water supply, water distribution or drainage system provided and managed by the trust.
(2)  A private water trust must not supply water for domestic purposes if a supply of water is available to the person from a local water utility or a major utility.
s 231: Subst 2010 No 133, Sch 2[59].
232   Powers of entry and inspection
(1)  A private water trust may, by its employees or agents, enter onto land on which trust works are situated, or any other land, for the following purposes—
(a)  to carry out any of the trust’s functions in relation to trust works,
(b)  to read a meter that measures water supplied by the trust or monitors drainage for quantity or quality or both,
(c)  to carry out investigations or inspections, take levels, drill test bore-holes, dig trenches, make surveys and marks, and fix pegs and stakes, for the purposes of designing, constructing or determining the site of a proposed trust work,
(d)  to remove samples of materials from the land for the purpose of carrying out trust functions, but only if the landholder has been consulted and the views of the landholder have been considered,
(e)  to exercise any other powers that are incidental to the trust’s functions that are reasonably necessary for carrying out those functions.
(2)  The powers of entry conferred by this section are not to be exercised for a purpose referred to in subsection (1) (a), (c) or (d) without prior notice to the landholder of the land.
(3)  The trust must ensure that as little damage as possible is caused by the exercise of powers under this section and must repair any damage caused or pay compensation for the damage.
s 232: Am 2007 No 94, Sch 2; 2009 No 17, Sch 3.22 [2]. Subst 2010 No 133, Sch 2[59].
233   Works plans
(1)  A works plan for a trust must—
(a)  identify the water management works or proposed works that are the trust works, and
(b)  specify the location of, and describe, the works, and
(c)  specify the land to which the works plan applies.
(2)  A works plan must comply with any requirements prescribed by the regulations and the rules.
(3)  A works plan may be amended or replaced if the amendment or replacement is consented to by any landholder on whose land affected works are situated or is authorised by the rules.
(4)  A works plan may specify works on land of former members of the trust who have transformed their member’s water entitlements.
(5)  Regulations may be made for or with respect to the keeping of, and provision of, copies of works plans.
s 233: Subst 2010 No 133, Sch 2[59].
Division 4 Sale and transformation of water entitlements
ch 4, pt 4, div 4: Subst 2010 No 133, Sch 2[59].
234   Water entitlements of members
(1)  A private water trust may, if requested to do so by a member of the trust, determine the member’s water entitlement.
(2)  The trust must determine a member’s water entitlement if the request is made by a member who is supplied by the trust with water for irrigation.
(3)  The trust must have regard to the following matters when determining the member’s water entitlement—
(a)  the nature of agricultural activities on the land to which water is supplied,
(b)  the amount of water currently supplied to the member,
(c)  any present or past water sharing arrangements applicable to the member,
(d)  any other matter it considers relevant,
(e)  any other matter prescribed by the regulations.
(4)  A determination may specify the different parts of the member’s water entitlement that are available to the landholding for different purposes.
(5)  A determination must be in writing and comply with the requirements of the regulations. Notice of a determination must be given in writing by the trust to the member.
(6)  A determination may be varied or redetermined only on a further application made by the member within 3 months of the determination or in the circumstances prescribed by the regulations.
(7)  A person must not participate in a determination of a member’s water entitlement if the person or a member of the person’s immediate family (within the meaning of the regulations) has an interest in the entitlement.
s 234: Subst 2010 No 133, Sch 2[59].
235   Sale or transfer of group entitlement
A private water trust must not enter into a dealing to sell or mortgage the whole or part of the water entitlement of a trust under an access licence unless the dealing is permitted under, and is in accordance with, the rules of the trust.
s 235: Subst 2010 No 133, Sch 2[59].
236   Sale or transfer of members’ water entitlements
(1)  A member of a private water trust may sell or transfer the whole or any part of the member’s water entitlement to another member or to the trust.
(2)  A member must not sell or transfer the whole or part of the member’s water entitlement under this section unless the sale or transfer has been approved by the trust in accordance with the rules or the regulations.
(3)  A sale or transfer by a member does not affect the member’s membership of the trust, except as provided by this Act and the rules of the trust.
s 236: Subst 2010 No 133, Sch 2[59].
237   Transformation of member’s water entitlements
(1)  A private water trust may make an application under Division 4 of Part 2 of Chapter 3 for the purpose of wholly or partly transforming a member’s water entitlement into an access licence under this Act.
(2)  On transformation of the whole or part of a member’s water entitlement to an access licence—
(a)  the member is not entitled to vote (as a trustee) or as a member on any matter relating to the transformation of one or more other members’ water entitlements or the supply of water to members who have not transformed their water entitlements, and
(b)  the trust may continue to exercise functions in relation to any trust works that are located on the landholding (whether or not the trust is to deliver the member’s water entitlement under the access licence or the landholder remains a member of the trust).
(3)  If the whole of a person’s water entitlement is transformed and the person does not have a right to the delivery of that water by the trust—
(a)  the person ceases to be a member of the trust, and
(b)  the trust must not fix rates and charges in respect of the person’s landholding for that water (other than termination charges).
(4)  The rules may make provision for or with respect to other circumstances in which a person whose member’s water entitlement has been transformed ceases to be a member of the trust.
(5)  The trust may require a member to provide security as a condition of consent to transformation of the whole or part of the member’s water entitlement, subject to the regulations.
(6)  Without limiting subsection (5), the following kinds of security may be required by the trust—
(a)  a charge over a part of an irrigation right that is not transformed,
(b)  a charge over an access licence or other entitlement to water acquired by the person and resulting from the transformation,
(c)  a guarantee by an authorised deposit-taking institution,
(d)  a deposit lodged with the trust.
s 237: Subst 2010 No 133, Sch 2[59].
Division 5A
237A, 237B  (Repealed)
ch 4, pt 4, div 5A: Ins 2010 No 133, Sch 1 [5]. Rep 2010 No 133, Sch 2[59].
s 237A: Ins 2010 No 133, Sch 1 [5]. Rep 2010 No 133, Sch 2[59].
s 237B: Ins 2010 No 133, Sch 1 [5]. Am 2011 No 62, Sch 1.23 [5]. Rep 2010 No 133, Sch 2[59].
Division 5 Changes to private water trusts
ch 4, pt 4, div 5: Subst 2010 No 133, Sch 2[59].
238   Changes in membership requiring works plan changes
(1)  A private water trust must not make a change in membership that results in a consequential change to the works plan of the trust unless the proposed change to the works plan has been approved by at least two thirds of the members of the trust who are entitled to vote on the question.
(2)  The regulations may vary the proportion of the members of the trust who must approve any such change.
(3)  Any change to the works plan takes effect from the date approval is given or such other date (being an earlier or later date) as is specified in the approval.
s 238: Am 2008 No 73, Sch 6 [25]. Subst 2010 No 133, Sch 2[59].
238A   (Repealed)
s 238A: Ins 2011 No 62, Sch 1.23 [6]. Rep 2010 No 133, Sch 2[59].
239   Application for amalgamation of private water trusts
(1)  Two or more private water trusts may apply to the Minister to constitute one private water trust.
(2)  An application is—
(a)  to be in the approved form, and
(b)  to be accompanied by a works plan and proposed rules for the new trust, and
(c)  to be accompanied by any other information required by the Minister or prescribed by the regulations, and
(d)  to be accompanied by the fee (if any) prescribed by the regulations.
s 239: Subst 2010 No 133, Sch 2[59].
239A   Determination of application for amalgamation
(1)  The Minister may grant an application to amalgamate 2 or more trusts if—
(a)  the Minister is satisfied that the purpose of the amalgamated trust is to provide, maintain or operate any or all of a water supply system, water distribution system or drainage system, and
(b)  the trust and any proposed works plan or rules of the trust comply with any requirements of this Act and the regulations.
(2)  The amalgamated private water trust is to be constituted by the Minister by order published on the NSW legislation website.
(3)  In addition to constituting the trust, the order must specify the following—
(a)  the name of the trust,
(b)  the water supply, water distribution or water drainage purposes of the trust,
(c)  the landholdings for which the trust may exercise functions and the works plan of the trust,
(d)  the members of the trust,
(e)  the trustees of the trust, pending the first election of trustees,
(f)  the date, time and place for the first election of the trustees,
(g)  the rules of the trust.
(4)  On the order being published or on such later day as may be specified in the order—
(a)  the new trust is constituted, and
(b)  the members of the trust are the members specified in the order, and
(c)  the rules and works plan specified by the order take effect, and
(d)  the amalgamated trusts are abolished, and
(e)  the new trust is taken for all purposes to be a continuation of and the same legal entity as each of the amalgamated trusts.
(5)  The new trust is not a NSW government agency.
s 239A: Ins 2010 No 133, Sch 2[59].
239B   Effect of sale of land
(1)  If a member of a private water trust sells to a person land to which the trust provides or is able to provide water supply or drainage services—
(a)  the member ceases to be a member in respect of that land when that sale takes effect, and
(b)  the purchaser is taken to be a member of the trust when the sale takes effect, and
(c)  the purchaser has all the entitlements and liabilities of the vendor as a member, in respect of the land, that the vendor had immediately before the sale took effect.
(2)  A member of a trust who sells land as referred to in this section must notify the trust of the sale in accordance with any requirements of the regulations or the rules.
s 239B: Ins 2010 No 133, Sch 2[59].
239C   Effect of subdivision
The subdivision of land by a member of a private water trust—
(a)  does not of itself entitle any other person to be a member of the trust or entitle any other person to be supplied with water or provided with drainage or other services by the trustees or trust, and
(b)  does not of itself affect any existing entitlement of any other person in relation to any such service, and
(c)  does not of itself affect any functions of the trustees or trust in relation to trust works.
s 239C: Ins 2010 No 133, Sch 2[59].
239D   Conversion of private water trust to private water corporation
(1)  A private water trust may apply to the Minister to convert the trust to a private water corporation.
(2)  An application is—
(a)  to be in the approved form, and
(b)  to be accompanied by a works plan for the corporation and proposed rules for the corporation, and
(c)  to be accompanied by any other information required by the Minister or prescribed by the regulations, and
(d)  to be accompanied by the fee (if any) prescribed by the regulations.
(3)  The Minister must not grant the application unless the Minister is satisfied that not less than two thirds of the members of the trust have approved of the application being made.
(4)  The application is to be dealt with as if it were an application for the constitution of a corporation made in accordance with Part 2.
(5)  The regulations may make provision for or with respect to the following matters—
(a)  the modification of the application of the provisions of Part 2 for the purposes of this section,
(b)  provisions of a savings and transitional nature and any other matter consequent on or ancillary to the creation of the corporation.
s 239D: Ins 2010 No 133, Sch 2[59].
Division 6 Rates and charges
ch 4, pt 4, div 6: Subst 2010 No 133, Sch 2[59].
239E   Fixing of rates and charges
(1)  A private water trust must for each year commencing on 1 July fix the rates and charges payable in respect of each landholding owned or occupied by its members that is a landholding for which the trust may exercise functions, or for which it provides water or drainage services in that year.
(2)  In determining the amount of rates and charges payable, the trust must fix an amount that it considers is sufficient to meet the estimated costs of the following—
(a)  the trust’s likely costs in providing irrigation, water supply, drainage and flood control services for that year,
(b)  the liabilities of the trust,
(c)  the likely costs relating to trust works, including (but not limited to) maintenance, improvement and replacement of works and new works,
(d)  provision for a sinking fund (if necessary),
(e)  any other matters prescribed by the regulations.
(3)  The rates and charges payable may (but are not required to) be fixed on the basis of any one or more of the following—
(a)  the volume or quality of water supplied or proposed to be supplied to a landholding,
(b)  the area of a landholding,
(c)  whether or not water or drainage services are or are proposed to be provided to a landholding,
(d)  the purpose for which water services are supplied or proposed to be supplied to a landholding.
(4)  If rates and charges are payable on the basis of the area of a landholding, a landholding that has an area equal to a number of hectares and a remaining fraction of a hectare is to be rounded up to the nearest hectare.
(5)  The trust may also fix the following charges—
(a)  termination charges payable by a member or former member in connection with the trust ceasing to supply water to the member or former member (whether because of the transformation of the member’s water entitlement to an access licence or otherwise),
(b)  charges payable for the delivery of water to a member after transformation of the whole or part of the member’s water entitlement.
(6)  A trust must give notice of its fees and charges for a year in the manner prescribed by the regulations and must specify in the notice the basis on which the rates and charges are calculated.
(7)  The rules of a trust must provide for the procedures for setting rates and charges and the period within which rates and charges must be paid.
Note—
The regulations may prescribe requirements for rules made under this section (see section 225 (3) (b)).
s 239E: Ins 2010 No 133, Sch 2[59] (am 2011 No 62, Sch 1.24[2]).
239F   Recovery of unpaid rates and charges
(1)  The owner or occupier of a landholding for which rates or charges are levied by a private water trust must pay the rates and charges to the trust.
(2)  If a landholding for which rates or charges are levied is owned or occupied by more than one person the following provisions apply—
(a)  the rates or charges may be levied on one or more of those persons and may be recovered by the trust from any one or more of those persons,
(b)  the trust is not entitled to recover more than the total amount of the rates and charges (and any interest payable).
(3)  If any land in a holding reverts to the Crown during any year for which rates or charges are or are to be assessed, the person who immediately before the reversion was the landholder of the land is liable for payment of only that part of the rates or charges proportionate to the part of the year for which the land was held by the person, and any excess payment by the person must be refunded to the person.
Note—
Rates and charges are a charge on the land, procedures for the sale of land for overdue rates are set out in Part 4 of Chapter 7.
s 239F: Ins 2010 No 133, Sch 2[59].
239G   Abandonment of rates and charges
(1)  A private water trust may, in accordance with the rules, waive or reduce rates, charges and interest due.
(2)  Rates and charges may be waived under this section only if the auditor of the private water trust certifies that the waiver is in accordance with the rules and has been approved by the trustees of the trust.
s 239G: Ins 2010 No 133, Sch 2[59].
Division 7 Finance
ch 4, pt 4, div 7: Ins 2010 No 133, Sch 2[59].
239H   Financial records
(1)  A private water trust must cause proper accounts and records to be kept in relation to all the operations of the trust.
(2)  The trust must prepare financial statements for each financial year of the trust.
(3)  Section 7.6 of the Government Sector Finance Act 2018 applies to financial statements required to be prepared under this section in the same way that it applies to annual GSF financial statements required to be prepared under that Act.
(4)  The financial statements must be submitted for verification and certification to an auditor appointed in the manner prescribed by the rules of the trust.
(5)  The regulations may provide for the qualifications for appointment as an auditor under this section.
(6)  A trustee of a trust or a member of a trust must not be appointed to audit the financial statements of the trust.
s 239H: Ins 2010 No 133, Sch 2[59].
239I   Auditor’s right to access to information
(1)  An auditor of a private water trust has a right of access at all reasonable times to the accounts and records of the trust.
(2)  A trustee of a trust must comply with any reasonable request by the auditor of the trust to provide information or documents relating to the accounts or financial statements or related records of the trust.
Maximum penalty—20 penalty units.
s 239I: Ins 2010 No 133, Sch 2[59].
239J   Presentation of audited financial statements
(1)  A private water trust must, at the request of the Minister, furnish to the Minister the audited financial statements and any other documents requested within the time specified in the request.
(2)  The audited financial statement must be laid before the annual general meeting of the trust following their verification and certification by the auditor.
s 239J: Ins 2010 No 133, Sch 2[59].
239K   Borrowing by private water trusts
(1)  A private water trust has and may exercise the following functions—
(a)  to pay to the Treasury, at such times as may be fixed by the Minister, the interest and charges payable by the trust,
(b)  to borrow money, but only as provided by this section.
(2)  A loan by way of limited overdraft may be obtained for the purpose of meeting necessary legitimate expenditure prior to the collection of rates or for the purpose of carrying out urgent works of renewal, or replacement, or other emergency, for which sufficient funds are not immediately available.
(3)  On application by a trust the Minister may issue a certificate of limit of overdraft, in which must be named the purpose in respect of which the loan may be obtained and the limit of the amount to be borrowed.
(4)  The sum to be stated in the certificate as the limit of the overdraft is in the discretion of the Minister, but must not exceed the estimated amount required for the purpose mentioned therein plus 10% of such amount.
(5)  The loan is subject to any conditions inserted by the Minister in the certificate, and the money borrowed is taken to be secured on the income of the trust and must be repaid within the time fixed in the certificate.
(6)  All sums received on account of a trust’s sinking fund must be carried by the Treasurer to a special account, to be called “The Water Supply Loan Redemption Fund”, and all other sums to the Consolidated Fund.
(7)  The regulations may make provision for or with respect to regulating the payment to the Crown of interest.
s 239K: Ins 2010 No 133, Sch 2[59].
Division 8 Winding up of private water trusts
ch 4, pt 4, div 8: Ins 2010 No 133, Sch 2[59].
239L   Appointment of an administrator
(1)  The Minister may, by order published in the Gazette, remove the trustees of a private water trust from office and appoint an administrator to conduct the affairs of the trust.
(2)  The Minister may make an order if the Minister is of the opinion that—
(a)  the trustees or the trust have failed, or are unable to, carry out their functions as required by or under this Act, or
(b)  without limiting paragraph (a), the trustees or trust have failed or are unable to provide or maintain water supply, water distribution or drainage services or trust works, or
(c)  the trust is unable to pay its debts as they fall due, or
(d)  the trustees or trust have regularly or materially contravened this Act, the regulations or the rules of the trust, or
(e)  in all the circumstances of the case it is just and equitable to do so.
(3)  Before making an order, the Minister must—
(a)  cause notice of the proposed order to be published in a newspaper circulating in the local area in which the trust provides services, and
(b)  in that notice, invite submissions to be made to the Minister about the proposal within the period of 4 weeks following the publication of the notice, and
(c)  consider any submissions made within that period.
(4)  The Minister is not required to comply with subsection (3) if the Minister is of the opinion that the special circumstances of the case require the order to be made immediately.
s 239L: Ins 2010 No 133, Sch 2[59].
239M   Functions of administrator
(1)  The administrator of a private water trust appointed under this Division holds office for such period as is specified in the order appointing the administrator. The administrator ceases to hold office if the Minister, by a subsequent order published in the Gazette, revokes the appointment or on the appointment of new trustees under this section.
(2)  The administrator has and may exercise the functions of the trust specified in the administrator’s order of appointment (subject to any conditions specified in that order) but is not required to comply with the rules of the trust.
(3)  The administrator may amend the rules of the trust and take such other action as is necessary to enable the trust to properly exercise its functions.
(4)  The administrator is entitled to be paid such remuneration, from the funds of the trust, as the Minister may from time to time determine.
(5)  The Minister may at any time, by order published in the Gazette, extend the period of appointment of an administrator.
(6)  The administrator must, if required to do so by the Minister, report to the Minister on the administrator’s conduct of the affairs of the trust.
(7)  The administrator may at any time recommend to the Minister that new trustees be appointed or that the trust be wound up.
(8)  The administrator must, if required to do so by the Minister, arrange for elections to be held for new elected trustees.
s 239M: Ins 2010 No 133, Sch 2[59].
239N   Removed trustees not eligible for re-election
If the trustees of a private water trust have been removed from office, each of the trustees is ineligible for subsequent appointment or election as a trustee of the trust, unless the Minister declares in writing that the trustee is eligible for subsequent appointment or election.
s 239N: Ins 2010 No 133, Sch 2[59].
239O   Effect of administration on existing contracts
On the appointment of an administrator of a private water trust—
(a)  all contracts of employment by or on behalf of the trust are terminated, and
(b)  the administrator may terminate any contract for the provision of services to or by or on behalf of the trust.
s 239O: Ins 2010 No 133, Sch 2[59].
239P   Winding up of private water trusts
(1)  The Minister may, by order published in the Gazette, order that a private water trust be wound up if—
(a)  requested to do so by the trustees after a resolution to wind up the trust was passed at a meeting of the trust by not less than 75% of the members of the trust, or
(b)  the administrator of the trust has recommended that the trust be wound up.
(2)  The order must appoint a person as the liquidator of the trust.
(3)  The regulations may make provision for or with respect to the winding up of a trust and for the disposal of residual assets held by or on behalf of the trust.
(4)  The Minister may, by order published in the Gazette, abolish a trust if satisfied that the winding up of the trust under this section has been completed.
s 239P: Ins 2010 No 133, Sch 2[59].
Division 9 Miscellaneous
ch 4, pt 4, div 9: Ins 2010 No 133, Sch 2[59].
239Q   Liability for water source and other changes
(1)  A private water trust, the trustees of a trust, any officer or employee of the trustees of a trust or a person acting under the direction of the trust, trustees, officer or employee is not subject to any action, liability, claim or demand arising—
(a)  from the unavailability of water, or
(b)  from the escape of water from a trust work, or
(c)  from a failure to supply, distribute or drain water that is authorised by the rules, this Act or the regulations,
as a consequence of anything done or omitted to be done in good faith by the trust, trustees, officer or employee or person for the purposes of executing this Act or of carrying out the functions of the trust.
(2)  This section does not limit section 397.
s 239Q: Ins 2010 No 133, Sch 2[59].
239R   Ministerial directions about rules
(1)  The Minister may, by notice in writing to a private water trust or the trustees of a trust, direct the trust or trustees to comply with, or cease to contravene, the rules of the trust.
(2)  The notice may direct the trust or trustees to take specified action or to cease to take specified action.
(3)  A trust or the trustees of a trust must not contravene a direction under this section.
Tier 2 penalty.
s 239R: Ins 2010 No 133, Sch 2[59].
239S   Name changes
The Minister may, by order published in the Gazette, change the name of a private water trust, if the change has been approved by the voting members in accordance with the rules of the trust.
s 239S: Ins 2010 No 133, Sch 2[59] (am 2015 No 58, Sch 1.15).
239T   Private trusts not NSW government agencies
A private water trust is not a NSW government agency.
s 239T: Ins 2010 No 133, Sch 2[59].
Chapter 5 Public works
Part 1
240–252  (Repealed)
ch 5, pt 1: Rep 2004 No 40, Sch 3.21 [1].
ch 5, pt 1, div 1: Rep 2004 No 40, Sch 3.21 [1].
s 240: Am 2001 No 56, Sch 1.22 [17]. Rep 2004 No 40, Sch 3.21 [1].
s 241: Am 2001 No 56, Sch 1.22 [18]. Rep 2004 No 40, Sch 3.21 [1].
s 242: Am 2001 No 56, Sch 1.22 [19]. Rep 2004 No 40, Sch 3.21 [1].
ch 5, pt 1, div 2: Rep 2004 No 40, Sch 3.21 [1].
s 243: Am 2001 No 56, Sch 1.22 [20]. Rep 2004 No 40, Sch 3.21 [1].
s 244: Am 2001 No 56, Sch 1.22 [21]. Rep 2004 No 40, Sch 3.21 [1].
s 245: Rep 2004 No 40, Sch 3.21 [1].
ch 5, pt 1, div 3: Rep 2004 No 40, Sch 3.21 [1].
s 246: Am 2001 No 56, Sch 1.22 [22]. Rep 2004 No 40, Sch 3.21 [1].
s 247: Rep 2004 No 40, Sch 3.21 [1].
s 248: Rep 2004 No 40, Sch 3.21 [1].
ch 5, pt 1, div 4: Rep 2004 No 40, Sch 3.21 [1].
s 249: Rep 2004 No 40, Sch 3.21 [1].
s 250: Am 2001 No 56, Sch 1.22 [23]. Rep 2004 No 40, Sch 3.21 [1].
s 251: Rep 2004 No 40, Sch 3.21 [1].
ch 5, pt 1, div 5: Rep 2004 No 40, Sch 3.21 [1].
s 252: Rep 2004 No 40, Sch 3.21 [1].
Part 2 Hunter Valley flood mitigation works
Division 1 Preliminary
253   Application of Part
This Part applies to and in respect of land in the Hunter Valley.
254   Definitions
In this Part—
Hunter River includes all tributaries that, directly or indirectly, flow into the Hunter River, and includes the estuary of the Hunter River and all arms and branches of that estuary.
Hunter Valley means the catchment area of the Hunter River, and includes the land shown on the plan marked “DWR PLA No 20/2551” held by the Department, and also includes such other land as is declared by the regulations to form part of the Hunter Valley.
levee bank means a levee bank designed or intended for the purpose of or that could or might have the effect of excluding or partially excluding the waters of the Hunter River or waters overflowing from the Hunter River from any land.
protective works means works for the protection of any works vested in or otherwise under the control of a public authority—
(a)  against flooding by waters overflowing from the Hunter River, or
(b)  against the effects of any such flooding, or
(c)  against the effects of river bank erosion.
tree includes sapling and shrub.
s 254: Am 2003 No 104, Sch 5.5 [2]; 2012 No 42, Sch 1.27 [3]; 2013 No 51, Sch 7.53 [6].
Division 2 Powers of Minister
255   Restriction on use of lands adjacent to levee banks
(1)  If a levee bank has been constructed adjacent to the Hunter River, the Minister may, by notice in writing to—
(a)  the landholder of the land on which the levee bank has been constructed, or
(b)  the landholder of any land adjacent to the levee bank, or
(c)  the landholder of the whole or any part of the land lying between the levee bank and the Hunter River,
impose such conditions and restrictions on the use of such levee bank or land as the Minister considers necessary or desirable to ensure the stability of the levee bank and in the interests of flood prevention or mitigation within the Hunter Valley generally.
(2)  The Minister may in the like manner revoke or vary any notice given in pursuance of this section.
(3)  If any landholder to whom such a notice has been given contravenes any condition or restriction imposed by the notice, the Minister—
(a)  may authorise any person to enter the land to which such notice relates, and to take such remedial measures on that land as the Minister considers necessary, and
(b)  may recover any cost incurred in so doing from the landholder in any court of competent jurisdiction as a debt due and owing to the Crown.
(4)  If under this section conditions or restrictions on the use of any levee bank or land are imposed by the Minister, the landholder of the levee bank or land is entitled to claim and be paid compensation for any loss sustained by reason of those conditions or restrictions.
256   Construction of fences, structures and flood works
(1)  A person must not—
(a)  construct any building, fence or structure in, on, or adjacent to, a levee bank, or
(b)  construct a flood work on a floodplain,
except with the consent of the Minister.
Tier 2 penalty.
(2)  The Minister’s consent may be given unconditionally or subject to conditions.
(3)  An authorised officer—
(a)  may enter any lands on which any building, fence or flood work has been constructed otherwise than in accordance with the Minister’s consent, and
(b)  may take such measures as are necessary to demolish or remove the building, fence or flood work or to render the flood work ineffective.
(4)  The costs incurred by an authorised officer under this section are recoverable from the landholder as a debt in a court of competent jurisdiction.
(5)  The Minister may, by notice published in the Gazette, exclude any lands from a floodplain.
(6)  In this section, floodplain means any lands declared to be within the floodplain of the Hunter River by a proclamation in force under section 16 of the former Hunter Valley Flood Mitigation Act 1956, other than lands excluded from the floodplain by a notice published under this section.
s 256: Am 2008 No 73, Sch 1 [6].
Division 3 Finance
257   Accounts to be kept in Special Deposits Account
There is to be established in the Special Deposits Account an account to be called the “Hunter Valley Flood Mitigation Account”.
258   Allocation of money
(1)  Within the Hunter Valley Flood Mitigation Account is to be kept an account to be called the “Hunter Valley Flood Mitigation Working Account”, in this Part referred to as the Working Account.
(2)  Any amount paid to the Minister by Local Land Services is to be paid into the Working Account, from which account may be made, in such manner as the Treasurer determines, any payments that the Minister is required to make under or for the purposes of this Part.
ss 258–261: Am 2003 No 104, Sch 5.5 [3]; 2013 No 51, Sch 7.53 [7].
259   Cost of works generally
(1)  This section applies to all flood works that are constructed or maintained by the Minister, other than those for which Local Land Services is liable to make contribution under some other provision of this Division.
(2)  Local Land Services is liable to contribute one-quarter of the cost to the Minister of constructing and maintaining any flood work to which this section applies.
ss 258–261: Am 2003 No 104, Sch 5.5 [3]; 2013 No 51, Sch 7.53 [7].
260   Cost of works to protect towns and villages
(1)  This section applies to all flood works constructed or maintained by the Minister for the purpose of protecting a town or village from flooding, being works that have been constructed at the request or with the concurrence of the local council within whose area the town or village is situated.
(2)  Of the cost to the Minister of constructing and maintaining any flood work to which this section applies—
(a)  the local council is liable to contribute such percentage (not exceeding 12%) as the Minister may determine, and
(b)  Local Land Services is liable to contribute one-quarter of the balance.
ss 258–261: Am 2003 No 104, Sch 5.5 [3]; 2013 No 51, Sch 7.53 [7].
261   Cost of protective works
(1)  Of the cost to the Minister of constructing and maintaining any protective works—
(a)  the public authority whose works are protected by the protective works is liable to contribute such percentage as the Minister may determine, and
(b)  Local Land Services is liable to contribute one-quarter of the balance.
(2)  The Minister may pay to any public authority that constructs or maintains any protective works such amount as the Minister considers appropriate towards the cost to the public authority of so doing.
(3)  Local Land Services is liable to pay to the Minister one-quarter of any amount paid to a public authority under subsection (2).
ss 258–261: Am 2003 No 104, Sch 5.5 [3]; 2013 No 51, Sch 7.53 [7].
262   Annual contribution to works program by Local Land Services
(1)  Local Land Services is liable to pay to the Minister in each financial year—
(a)  one-quarter of the estimated cost of constructing any flood works that the Minister proposes to construct during that financial year, and
(b)  one-quarter of the estimated cost of maintaining any flood works that the Minister proposes to maintain during that financial year.
(2)  The following amounts are to be deducted from the estimated costs for the purpose of calculating Local Land Services’ liability under this section—
(a)  any contribution to those costs for which a local council will be liable under this Division,
(b)  any amount that Local Land Services has paid to the Minister under this section during the previous financial year but that remained unexpended at the end of that year.
(3)  Any estimates are to be made by the Minister whose decision is final.
s 262: Am 2003 No 104, Sch 5.5 [3]; 2004 No 39, Sch 5 [10]; 2013 No 51, Sch 7.53 [8] [9]; 2014 No 33, Sch 2.45.
263   Consultation with Local Land Services as to works program
(1)  Before the beginning of each financial year or as soon as practicable thereafter, the Minister must submit to Local Land Services a program of the flood works that the Minister proposes to construct or maintain during that year.
(2)  Such a program must be consistent with any management plan that applies to the land on which the works or proposed works are situated.
(3)  Such a program must be accompanied by a statement setting out the following particulars—
(a)  the estimated cost of constructing any work,
(b)  the estimated annual cost of maintaining any work,
(c)  the amount for which Local Land Services will be liable,
(d)  such other particulars as may be prescribed by the regulations.
s 263: Am 2003 No 104, Sch 5.5 [3]; 2013 No 51, Sch 7.53 [10].
264   Consultation with local council as to works program
(1)  This section applies to all flood works constructed or maintained by the Minister for the purpose of protecting a town or village from flooding, being works that have been constructed at the request or with the concurrence of the local council within whose area the town or village is situated.
(2)  Before the beginning of each financial year or as soon as practicable thereafter, the Minister must submit to the local council concerned a program of the flood works that the Minister proposes to construct or maintain during that year.
(3)  Such a program must be consistent with any management plan that applies to the land on which the works or proposed works are situated.
(4)  Such a program must be accompanied by a statement setting out the following particulars—
(a)  the estimated cost of constructing any work,
(b)  the estimated annual cost of maintaining any work,
(c)  the percentage that the Minister has determined that the council should contribute to the cost of the construction and maintenance of the work,
(d)  the amount for which the council will be liable,
(e)  such other particulars as may be prescribed by the regulations.
(5)  Any estimates are to be made by the Minister whose decision is final.
(6)  When the work has been completed, the Minister must notify the local council of the actual cost of the work.
(7)  If the amount paid by the local council in respect of the work is more than the amount for which the council is liable, the Minister must repay to the council the amount of such excess.
(8)  If the amount paid by the local council in respect of the work is less than the amount for which the council is liable, the council must pay to the Minister the amount of the shortfall.
(9)  Any amount paid to the Minister by a local council under this section is to be paid into the Hunter Valley Flood Mitigation Working Account.
265   Payment of contribution towards maintenance by a local council
(1)  A local council that is liable to contribute to the cost of maintenance of any flood work must pay to the Minister in each financial year the same percentage of the estimated cost of maintenance as the council is liable to contribute to the actual cost of maintenance of that work.
(2)  In calculating the local council’s liability under this subsection in respect of any financial year there is to be deducted any amount that the council has paid to the Minister in respect of any flood work during any previous financial year and that remained unexpended at the end of the immediately preceding financial year.
(3)  Any estimate is to be made by the Minister whose decision is final.
266   Consultation with local council as to maintenance program
(1)  Before the beginning of each financial year, the Minister must furnish the local council with a statement setting out the following particulars—
(a)  the amount that the council will be liable to pay under this Division for that financial year,
(b)  such other particulars as may be prescribed by the regulations.
(2)  The local council must pay to the Minister the amount referred to in subsection (1) (a).
(3)  Any such amount is to be paid into the Hunter Valley Flood Mitigation Working Account.
267   Urgent maintenance works
(1)  If in the opinion of the Minister it becomes necessary to carry out urgent maintenance on any flood work, the Minister may carry out the maintenance, despite maintenance not having been included in any program of works or any statement furnished to a local council.
(2)  When the maintenance has been completed, the Minister must determine the total amount paid in respect of such maintenance and notify any local council affected by the work and Local Land Services of the respective amounts that they are required to contribute in accordance with this Division.
(3)  Any money paid to the Minister under this section is to be paid into the Hunter Valley Flood Mitigation Working Account.
s 267: Am 2003 No 104, Sch 5.5 [3]; 2013 No 51, Sch 7.53 [7].
268   Payments to be duly made
Any amount that is payable to the Minister under this Division—
(a)  by Local Land Services, or
(b)  by a local council, or
(c)  by any other public authority,
is payable at such times, and in such instalments, as the Minister may determine.
s 268: Am 2003 No 104, Sch 5.5 [3]; 2013 No 51, Sch 7.53 [7].
Division 4 Miscellaneous
269   Works to protect public and local government works to be approved by Minister
(1)  A public authority must not construct any protective works unless the Minister has approved of the site, nature, dimensions and design of the works.
(2)  In giving approval, the Minister may require such amendment of the site, nature, dimensions or design of the protective works as the Minister considers necessary, and the public authority must comply with that requirement accordingly.
(3)  The Minister may by notice in writing require the public authority by which any protective works have been constructed to take specified measures for the proper upkeep, preservation and maintenance of the protective works.
(4)  The public authority must comply with the requirements specified in the notice in such manner and within such time as is so specified.
(5)  If a public authority fails to comply with the terms of the notice, the Minister—
(a)  may authorise any person to enter the land on which the protective works are located and carry out the measures specified in such notice, and
(b)  may recover any cost incurred in so doing from the public authority in any court of competent jurisdiction as a debt due to the Crown.
270   Major floodgates to be maintained and operated by local councils
(1)  If in the opinion of the Minister any floodgate operates for the protection of lands other than lands owned by one landholder or a small localised group of landholders, the Minister may by notice in writing to the local council declare the floodgate to be a major floodgate.
(2)  It is the duty of the local council—
(a)  to keep any major floodgate at all times in a good and proper state of repair and working order, and
(b)  to maintain and operate it in accordance with any directions that may from time to time be given by the Minister.
(3)  If the local council fails to perform that duty, the Minister—
(a)  may authorise any person to enter the land on which the major floodgate is located and to take such measures as to the maintenance, operation or repair of the floodgate as the Minister considers necessary, and
(b)  may recover any cost incurred in so doing from the council in any court of competent jurisdiction as a debt due to the Crown.
271   Maintenance of minor floodgates
(1)  In this section, minor floodgate means any floodgate that is not a major floodgate.
(2)  It is the duty of each landholder for the protection of whose land a minor floodgate operates to keep the floodgate at all times in a good and proper state of repair and working order.
(3)  If any such landholder fails to perform that duty, the Minister may by notice in writing direct the landholder to take such measures as to the maintenance, operation or repair of the floodgate as may be specified in the notice.
(4)  If any landholder fails to comply with the terms of the notice, the Minister—
(a)  may authorise any person to enter the land on which the minor floodgate is located and to take such measures as to the maintenance, operation or repair of the floodgate as the Minister considers necessary, and
(b)  may recover any cost incurred in so doing from the landholder in any court of competent jurisdiction as a debt due to the Crown.
(5)  In the case of multiple landholders, the liability imposed on them under this section is joint and several but, as between themselves, each is liable only for such share of the liability as bears the same proportion to the total liability as the area of the person’s land for the protection of which the floodgate operates bears to the total area of land for the protection of which the floodgate operates.
(6)  If any landholder pays to the Minister more than the person’s share of the total liability the landholder may recover the excess by way of contribution from the others.
272   Application of Public Works Act 1912
Sections 91–95 of the Public Works Act 1912 do not apply to any works constructed under this Part.
273   Evidence of cost of works
If the Minister is empowered to recover any cost incurred in carrying out any work or measure, a certificate by the Minister of the amount of such cost is evidence of that cost.
Part 3
274–280  (Repealed)
ch 5, pt 3 (ss 274–280): Rep 2000 No 92, Sch 8.30 [3].
Chapter 6 Public utilities
Part 1 Major utilities
281   Major utilities
(1)  This Part applies to each body referred to in Schedule 2 (referred to as a major utility).
(2)  The Governor may by proclamation published on the NSW legislation website amend Schedule 2 so as—
(a)  to add the corporate name of any body that is to become a major utility for the purposes of this Part, or
(b)  to vary the name of any major utility as a consequence of any change in its corporate name, or
(c)  to omit the corporate name of any body.
s 281: Am 2009 No 56, Sch 4.81 [1].
282   Review of activities of major utilities
(1)  The activities of a major utility under this Act—
(a)  may be reviewed at any time, and
(b)  must be reviewed—
(i)  before the end of the 6 month period following the date on which its first approval was granted under section 95, and
(ii)  before the end of each 5 year period following the date on which its current approval was granted.
(2)  For the purpose of conducting such a review, the Minister must cause notice to be published—
(a)  in the Gazette, and
(b)  in the authorised manner,
inviting written submissions from interested persons in relation to the activities of the major utility during the period under review.
s 282: Am 2008 No 73, Sch 5 [15]; 2018 No 31, Sch 1 [4].
Part 2 Water supply authorities
Division 1 Preliminary
283   Definitions
In this Part—
area of operations of a water supply authority means the area of operations prescribed by the regulations in relation to that authority.
charging year, in relation to a water supply authority, means—
(a)  the period of 12 months declared by an order in force under Division 6 to be the charging year for the water supply authority, or
(b)  if the charging year is changed under that Division by a further order, the period between the end of one charging year and the beginning of the next.
development area means an area of land declared by an order in force under Division 6 to be a development area.
drainage area means an area of land declared by an order in force under Division 6 to be a drainage area.
drainage service means that part of drainage pipework up to its point of connection to a water supply authority’s drainage system.
drainage service pipe means a pipe connecting a drainage service to a water supply authority’s drainage system, and includes the plumbing fittings connected to the pipe.
floodplain means an area of land declared by an order in force under Division 6 to be a floodplain.
meter includes any measuring device.
plumbing fitting includes any pipe, apparatus or fixture used for plumbing work.
plumbing work means work comprising or affecting—
(a)  a water supply service pipe or its connection (whether directly or indirectly) with a water supply authority’s water supply system, or
(b)  a sewerage service pipe or its connection (whether directly or indirectly) with a water supply authority’s sewerage system, or
(c)  a drainage service pipe or its connection (whether directly or indirectly) with a water supply authority’s drainage system.
river management area means an area of land declared by an order in force under Division 6 to be a river management area.
service charge means any of the following—
(a)  a water service charge,
(b)  a sewerage service charge,
(c)  a drainage service charge,
(d)  a loan service charge,
(e)  a developmental works service charge,
(f)  a flood mitigation service charge,
(g)  a river management service charge, or
(h)  a special industry service charge,
that may be levied under Division 6.
sewage work means a work (such as a pump, pipe or channel) for the purpose of removing sewage or other waste matter from land, including a reticulated system of such works, and includes—
(a)  all associated pipes, valves, pumps and other equipment, and
(b)  all sewage treatment or sewage processing plants and their outfalls and drainage beds,
but does not include any work declared by the regulations not to be a sewage work.
sewerage service means that part of sewerage pipework, including all sanitary fixtures, up to its point of connection to a water supply authority’s sewerage system.
sewerage service pipe means a pipe connecting a sewerage service to a water supply authority’s sewerage system, and includes the plumbing fittings connected to the pipe.
special area means an area of land declared under Division 4 to be a special area.
special industry means an industry declared by an order in force under Division 6 to be a special industry.
water management work means a water supply work, drainage work, sewage work or flood work, and includes a work in the nature of a water supply work (being a work that receives water from a water supply work under the control or management of a water supply authority).
water supply service means that part of water supply pipework from its point of connection to a water supply authority’s water supply system up to and including its outlet valves.
water supply service pipe means a pipe connecting a water supply service to a water supply authority’s water supply system, and includes the plumbing fittings connected to the pipe.
water supply work includes any work that receives water from a water supply work under the control or management of a water supply authority.
s 283: Am 2001 No 34, Sch 4.71 [5]; 2002 No 138, Sch 4 [4] [5]; 2008 No 73, Sch 6 [26]; 2018 No 31, Sch 1 [58].
284   Requirements for access licences and approvals
Nothing in this Part authorises a water supply authority to do anything for which this Act requires an access licence or approval unless the water supply authority holds an appropriate access licence or approval.
s 284: Subst 2008 No 73, Sch 6 [27].
Division 2 Water supply authorities
285   Water supply authorities
(1)  The corporations listed in Schedule 3 are water supply authorities.
(2)  A corporation listed in Part 1 of Schedule 3 is, for the purposes of any Act, a statutory body representing the Crown.
(3)    (Repealed)
s 285: Am 2006 No 2, Sch 4.79 [1]; 2015 No 58, Sch 3.94 [2].
286   Constitution of water supply authorities
(1)  The Governor may, by proclamation published on the NSW legislation website—
(a)  name a water supply authority proposed to be constituted under this section, and
(b)  specify the number of members, the qualification for each member and whether or not the member is a full-time member or a part-time member, and
(c)  amend Schedule 3 by adding the name of the water supply authority to Part 1 of that Schedule.
(2)  The members are to be appointed by the Governor and, on their appointment, the water supply authority is constituted as a corporation.
(3)  The corporate name for the water supply authority is the name of the water supply authority stated in the proclamation.
(4)  On a change of area of operations or functions for a water supply authority listed in Part 1 of Schedule 3, the Governor may, by proclamation published in the Gazette, do either or both of the following—
(a)  change the number of part-time members of the water supply authority,
(b)  change the qualifications for part-time members of the water supply authority.
(5)  A change referred to in subsection (4) does not affect the identity of the water supply authority.
s 286: Am 2009 No 56, Sch 4.81 [2].
287   Statutory body may be water supply authority
(1)  The Governor may, by proclamation published on the NSW legislation website with the consent of the Minister administering the Act by or under which a statutory body is constituted, amend Schedule 3 by adding the name of the statutory body to Part 2 of that Schedule.
(2)  On the addition of the name of a statutory body to Part 2 of Schedule 3, it becomes a water supply authority but still has its other functions.
s 287: Am 2009 No 56, Sch 4.81 [2].
288   Provisions relating to constitution and procedure of water supply authorities
(1)  Part 1 of Schedule 5 has effect with respect to the members of the water supply authorities listed in Part 1 of Schedule 3.
(2)  Part 2 of Schedule 5 has effect with respect to the Australian Inland Energy Water Infrastructure.
(3)  Part 3 of Schedule 5 has effect with respect to the Cobar Water Board.
(4)  Parts 2 and 3 of Schedule 5 do not affect the operation of the other provisions of this Part in relation to the water supply authorities to which those Parts relate.
s 288: Am 2001 No 56, Sch 1.22 [24].
289   Area of operations
(1)  The area of operations of a water supply authority is such as may be prescribed by the regulations for the water supply authority.
(2)  If a regulation so provides, a water supply authority has, and may exercise, in its area of operations or a specified part of its area of operations—
(a)  only such of the functions of a water supply authority as are specified in the regulation, or
(b)  all functions of a water supply authority other than functions specified in the regulation.
(3)  A regulation made for the purposes of subsection (2) may make provision for or with respect to—
(a)  matters affecting revenue, assets, rights, liabilities and employees of a water supply authority, and
(b)  procedures to be adopted for the purposes of paragraph (a).
(4)  Within the area of operations of a water supply authority, a function under this Part may be exercised only by the water supply authority unless—
(a)  the function is exercisable by the Minister, or
(b)  the function is exercised by Local Land Services under the Local Land Services Act 2013, or
(c)  with the consent of the Minister, the function is exercised by another Minister, by the delegate of another Minister or by a statutory body, or
(d)  this Part provides otherwise.
(5)  With the consent of the Minister, a water supply authority may exercise a function outside its area of operations.
(6)  Until a regulation is made for the purposes of subsection (1), the area of operations of a water supply authority is the same as it was immediately before the commencement of this Part.
s 289: Am 2003 No 104, Sch 5.5 [4]; 2013 No 51, Sch 7.53 [11].
290   Staff
Persons may be employed in the Public Service under the Government Sector Employment Act 2013 to enable a corporation listed in Part 1 of Schedule 3 to exercise its functions.
Note—
Section 59 of the Government Sector Employment Act 2013 provides that the persons so employed (or whose services a water supply authority makes use of) may be referred to as officers or employees, or members of staff, of the water supply authority. Section 47A of the Constitution Act 1902 precludes a water supply authority from employing staff.
s 290: Rep 2006 No 2, Sch 4.79 [2]. Ins 2015 No 58, Sch 3.94 [3].
291   Delegation
A water supply authority may delegate to a person the exercise of any of its functions, other than this power of delegation.
Division 3 Functions of water supply authorities
292   Functions of water supply authority
(1)  A water supply authority has the following functions—
(a)  subject to the Minister’s approval, to construct, maintain and operate water management works and other associated works,
(b)  to conduct research, collect information and develop technology in relation to water management,
(c)  to do anything for the purpose of enabling the objects of this Act to be attained.
(2)  A water supply authority may exercise its functions within and beyond its area of operations.
(2A)  A water supply authority must not exercise any function beyond its area of operations in such a way as to limit its capacity to exercise that function within that area.
(3)  It is the duty of a water supply authority to exercise its functions consistently with the principles of ecologically sustainable development.
s 292: Am 2011 No 27, Sch 1.11 [1].
293   Exercise of functions by a water supply authority
(1)  A water supply authority—
(a)  has and may exercise the functions conferred or imposed on it by or under this or any other Act, and
(b)  in the exercise of its functions (except in relation to the contents of a report or recommendation made by it) is subject to the control and direction of the Minister.
(1A)  Subsection (1) (b) does not apply to a water supply authority listed in Part 3 of Schedule 3.
(2)  If a function conferred or imposed on a water supply authority by this Part is inconsistent with a function conferred or imposed on the water supply authority by or under another Act, this Part prevails.
s 293: Am 2002 No 138, Sch 4 [6].
294   Commercial operations
(1)  With the approval of the Governor, a water supply authority may enter into commercial operations with respect to—
(a)  any services developed in connection with the exercise of its functions, or
(b)  any products or by-products (including intellectual property) resulting from the exercise of its functions, or
(c)  such other matters as may be prescribed by the regulations.
(2)  With the approval of the Governor, a water supply authority may form, or join in forming, a company, partnership or trust for the purpose of exercising its functions under this Part.
295   Assistance to statutory body
A water supply authority may, at the request of a statutory body and with the consent of the Minister, exercise any of the functions of the statutory body in a part of its area of operations in respect of which the statutory body may exercise different functions, even if, but for the request, the water supply authority would not have exercised the function.
296   Entry on land to read meters or carry out works
(1)  A water supply authority may, by its employees and agents—
(a)  enter and occupy land and there exercise any of its functions, including the carrying out of any work on, below or above the surface of the land, and
(b)  divert water from, or alter the course of, a stream, and
(c)  impound or take water on, in or under the surface of any land.
(2)  The power conferred by this section is sufficient authority for an employee or agent to enter and occupy land or any part of a building (except an enclosed part occupied as a separate dwelling) in the exercise of a water supply authority’s functions during daylight for the purpose of—
(a)  reading a meter, or
(b)  ascertaining whether trade waste is present or is being (or has recently been) discharged to a work of the authority, or
(c)  making a valuation,
unless the employee or agent is refused access by the lawful occupier of the land.
(3)  A water supply authority may, in accordance with the regulations, attach a ventilating shaft, pipe or tube for a sewer to the wall of a building.
(4)  A water supply authority may remove or use anything dug up or obtained in the exercise of its powers under this section.
(5)  A water supply authority—
(a)  must do as little damage as practicable in exercising its powers under this section, and
(b)  must compensate all persons who suffer damage by the exercise of the powers,
in relation to the land entered.
(6)  Compensation may be made by reinstatement or repair, by construction of works or by payment.
(7)  If a water supply authority provides a sewer, compensation is required only if—
(a)  the sewer causes injury to, or interference with, a building or other structure, or
(b)  a manhole or main ventilator is constructed on the land.
(8)  A claim for compensation—
(a)  is ineffective unless made in writing not later than 6 months after the damage was suffered, and
(b)  in the absence of agreement on the compensation, must be dealt with as if it were a claim for compensation for the acquisition of land for public purposes under the Public Works Act 1912.
297   Entry on land for inspections
(1)  A water supply authority may at any time, by its employees or agents, enter any land (except an enclosed part occupied as a separate dwelling) for the purpose of finding out—
(a)  the character and condition of the land or building, or
(b)  the condition or location of any water management work used in connection with the land or building, or
(c)  whether any use, consumption, waste, misuse or undue consumption of water supplied by a water supply authority is occurring, or
(d)  whether any offence against this Act has been, or is being, committed.
(2)  A water supply authority must not exercise the powers conferred by subsection (1) unless—
(a)  reasonable written notice of its intention to do so has first been given to the landholder of the land, building or dwelling-house, or
(b)  it authorises the entry after forming the opinion that the giving of the notice would cause undue delay.
(3)  Reasonable force may be used to enter land, or a building other than a dwelling-house, under this section.
(4)  If the powers of entry under this section are exercised—
(a)  without notice being given, or
(b)  by force,
the water supply authority must, without delay, notify such persons as it considers appropriate of the action taken.
(5)  The water supply authority may, by notice in writing given to the landholder of the land or building, require all defective or improper work discovered on an inspection to be repaired, altered or removed within 24 hours or such longer period as is stated in the notice.
(6)  If a notice under subsection (5) is not complied with, the water supply authority may, by its employees and agents, enter the land, building or dwelling-house and repair, alter or remove the defective or improper work.
(7)  If a notice is given under subsection (5)—
(a)  the costs and expenses of the entry and inspection by the water supply authority, and
(b)  if the notice is not complied with, the costs and expenses of the water supply authority in acting under subsection (6),
are recoverable from the landholder as a service charge.
(8)  If, on an inspection under this section—
(a)  no defective or improper work is discovered, and
(b)  no waste, misuse or undue consumption of water supplied by the water supply authority is occurring, and
(c)  no offence against this Act is discovered,
the water supply authority must make good any damage or disturbance caused by it for the purposes of the inspection.
(9)  In exercising its powers under this section, a water supply authority must do as little damage as practicable.
s 297: Am 2008 No 73, Sch 6 [28].
298   Power to break up roads
(1)  A water supply authority may, on 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 a public road or public reserve,
for the purpose of exercising its functions.
(2)  The statutory body having the control and management of a public road or public reserve may, as prescribed by the regulations, require a water supply authority to comply with conditions in exercising its powers under subsection (1), 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 water supply authority’s water main or sewer main, the statutory body having the control and management of the public road or public reserve may require the water supply authority to make good the damage without delay.
(4)  If a water supply authority fails—
(a)  to comply with a condition in force under subsection (2), or
(b)  to comply with a requirement under subsection (3),
the statutory body affected by the failure may remedy it and recover the cost of doing so as a debt owed to the statutory body by the water supply authority.
299   Altering position of conduits
(1)  If—
(a)  a water supply authority, in order to exercise its functions, needs an alteration to be made in the position of a conduit owned by another person, and
(b)  the alteration would not permanently damage the conduit or adversely affect its operation,
the water supply authority may serve on the person a written notice that complies with subsection (2).
(2)  A 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 water supply authority to pay the reasonable cost of the alteration.
(3)  If the alteration is not made as required by the notice, the water supply authority may make the alteration in such a manner as not to 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 (or any other land on which no building or other structure is located) and is used for the conveyance of a substance, energy or signals.
s 299: Am 2002 No 138, Sch 4 [7].
300   Obstruction of works
(1)  If a person places a structure or other thing in or near a water supply authority’s water management work in such a manner as to interfere with the work, the water supply authority may—
(a)  demolish and remove the structure or other thing, and
(b)  repair the work, and
(c)  recover the cost of doing so as a debt owing to the water supply authority by the person who placed the structure or other thing there.
(2)  A water supply authority may apply for and obtain an injunction to prevent a structure or other thing being placed as referred to in subsection (1).
301   Finding source of pollution of water supply
(1)  If water supplied by a water supply authority is being polluted, the water supply authority may, after giving reasonable notice to persons likely to be affected by its action, dig up the ground and try to find the source of the pollution.
(2)  If it is found that a person given notice under this section is not responsible for the pollution, the water supply authority must bear the expenses of—
(a)  the digging, examination, repair and reinstatement of the broken ground, and
(b)  the repair of any damage caused by the water supply authority to the property of the person.
(3)  A water supply authority may recover the expenses incurred by it as a debt due to the water supply authority by any person responsible for the pollution.
301A   Power to give directions
(1)  Without limiting Part 1 of Chapter 7, the Minister’s power to give directions under that Part may be exercised in relation to a water supply authority’s sewage work as if it were a water management work within the meaning of that Part.
(2)  An appeal lies to the Land and Environment Court against the Minister’s decision to give such a direction in the same way as it lies against the Minister’s decision to give a direction under Part 1 of Chapter 7.
s 301A: Ins 2008 No 73, Sch 2 [1].
Division 4 Special areas
302   Special areas
(1)  The Governor may, on the recommendation of the Minister, by order published in the Gazette, declare an area of land described in the order to be a special area for a water supply authority.
(2)  The Minister may recommend an order only if of the opinion that the exercise of the State’s water rights could be adversely affected unless the order is made.
303   Crown land in special areas
(1)  Action may not be taken under the Crown Land Management Act 2016 in respect of land within a special area for a water supply authority unless—
(a)  a water supply authority has given its approval in writing, and
(b)  any conditions to which the approval is subject are complied with.
(2)  A water supply authority may, in a special area, exercise the functions of a Crown land manager under the Crown Land Management Act 2016 without being appointed as such.
s 303: Am 2017 No 17, Sch 4.105 [1] [2].
304   Exercise of certain functions in special areas
(1)  A public agency may not, in relation to land within a special area for a water supply authority, exercise functions other than functions under this Part unless notice is first given, as prescribed by the regulations, to the water supply authority.
(2)  On receipt of such a notice, the water supply authority may make such representations to the public agency as it thinks fit.
(3)  A public agency may not exercise functions contrary to any such representations made by a water supply authority unless—
(a)  at least 14 days’ notice has been given to the water supply authority of the functions intended to be exercised, and
(b)  that period has expired without the matter being referred to the Minister as a dispute for determination.
(4)  In this section, public agency means—
(a)  the Governor, or
(b)  a Minister of the Crown, or
(c)  a statutory body.
Division 5 Developer contributions to the construction of works
305   Application for certificate of compliance
(1)  A person may apply to a water supply authority for a certificate of compliance for development carried out, or proposed to be carried out, within the water supply authority’s area.
(2)  An application must be accompanied by such information as the regulations may prescribe.
306   Authority may impose certain requirements before granting certificate of compliance
(1)  This section applies to such kinds of development as are prescribed by the regulations for the purposes of this section.
(2)  As a precondition to granting a certificate of compliance for development, a water supply authority may, by notice in writing served on the applicant, require the applicant to do either or both of the following—
(a)  to pay a specified amount to the water supply authority by way of contribution towards the cost of such water management works as are specified in the notice, being existing works or projected works, or both,
(b)  to construct water management works to serve the development.
(3)  In calculating an amount for the purposes of subsection (2) (a)—
(a)  the value of existing water management works and the estimated cost of projected water management works may be taken into consideration, and
(b)  the amount of any government subsidy or similar payment is not to be deducted from the relevant value or cost of the water management works, and
(c)  consideration is to be given to any guidelines issued for the time being for the purposes of this section by the Minister.
(4)  If a water supply authority imposes a requirement under this section on the Crown, the Crown may request the Minister for Urban Affairs and Planning to determine whether such a requirement should be imposed and, if so, in what terms.
(5)  The determination made by the Minister for Urban Affairs and Planning in response to such a request is final and is taken to be the determination of the water supply authority.
(6)  Any water management works constructed in compliance with a requirement under this section are the property of the water supply authority.
s 306: Am 2002 No 138, Sch 4 [8].
307   Granting of certificates of compliance
(1)  A water supply authority must grant a certificate of compliance for development—
(a)  within 60 days after an application for the granting of such a certificate is made, or
(b)  if, within that period, the water supply authority imposes a requirement on the applicant under this Division, as soon as it is satisfied that the requirement has been complied with.
(2)  A water supply authority may be satisfied that a requirement under this Division has been complied with if the applicant lodges with the water supply authority such security for compliance with the requirement as the water supply authority may approve.
(3)  If a water supply authority fails or refuses to give a compliance certificate within the period of 60 days after an application is duly made in that regard, the applicant may appeal to the Land and Environment Court, within 12 months after the expiration of that period, against the failure or refusal.
Division 6 Finance
308   Orders for purpose of service charges
(1)  The Governor may, by order published in the Gazette, declare any land described in the order to be a development area for the purposes of this Part.
(2)  The Minister may, by order published in the Gazette, declare any land described in the order to be a drainage area, floodplain or river management area for the purposes of this Part.
(3)  The Minister may, by order published in the Gazette, declare any industry specified in the order to be a special industry for the purposes of this Part.
(4)  The Minister may, by order published in the Gazette, declare a period of 12 months to be the charging year for a water supply authority.
309   Connections
(1)  On a water supply authority’s water main or a sewer main becoming available for connection, the water supply authority may—
(a)  publish in the Gazette notice of its availability, and
(b)  give such other notices as may be prescribed.
(2)  A landholder of land to which a notice under subsection (1) (a) relates becomes liable—
(a)  in the case of a water main, to payment of water service charges after the expiration of 21 days from publication of the notice, or
(b)  in the case of a sewer main, to payment of sewerage service charges after the expiration of 21 days from publication of the notice.
(3)  If a landholder does not make a connection to the water supply authority’s water main or sewer main before becoming liable under subsection (2), the water supply authority may make the connection at the expense of the landholder.
(4)  Any amount due to a water supply authority for a connection made under subsection (3) is a charge on the land connected and may be recovered as a debt owed to the water supply authority by the landholder of the land.
(5)  If a landholder of land fails—
(a)  to connect the land to a water supply authority’s water main or sewer main before becoming liable under subsection (2), or
(b)  to do any work that by this Part is required to be done by the landholder,
the occupier of the land may make the connection or do the work and, in accordance with subsection (6), recover the cost from the landholder.
(6)  An amount (including interest) recoverable under subsection (5) by an occupier from a landholder may be recovered—
(a)  by deducting it from any rent from time to time payable to the landholder by the occupier, or
(b)  as a debt owed to the occupier by the landholder.
(7)  Any person desiring to connect premises with a water supply authority’s water main or sewer main may (subject to such conditions as may be imposed by law) open up the surface and soil of any road or way, public or private, or any footpath or public reserve to the extent required to make the connection.
(8)  Nothing in this section requires a water supply authority to allow a person to connect premises with the water supply authority’s water main or sewer main.
s 309: Am 2004 No 40, Sch 3.21 [2].
310   Authority may levy service charges and impose fees and other charges
(1)  A water supply authority may, in accordance with this Part, levy the following service charges on land within its area of operations—
(a)  water service charges,
(b)  sewerage service charges,
(c)  drainage service charges,
(d)  loan service charges,
(e)  developmental works service charges,
(f)  flood mitigation service charges,
(g)  river management service charges,
(h)  special industry service charges.
(2)  A water supply authority may, in accordance with the regulations, impose fees and charges for any service or thing supplied or provided by it in the exercise of its functions under this Part.
(3)  Without limiting subsection (2), a water supply authority may impose fees and charges with respect to discharges into its sewerage system.
s 310: Am 2002 No 138, Sch 4 [9].
311   Land in respect of which a water supply authority may levy service charges
(1)  A water supply authority may only levy water service charges on land—
(a)  to which water is supplied, or
(b)  to which, in the opinion of the water supply authority, it is reasonably practicable for water to be supplied,
from one of the water supply authority’s water mains.
(2)  A water supply authority may only levy sewerage service charges on land—
(a)  from which sewage is discharged, or
(b)  from which, in the opinion of the water supply authority, it is reasonably practicable for sewage to be discharged,
into one of the water supply authority’s sewer mains.
(3)  A water supply authority may only levy drainage service charges on land that is within a drainage area.
(4)  A water supply authority may only levy developmental works service charges on land within a development area.
(5)  A water supply authority may only levy flood mitigation service charges on land within a floodplain.
(6)  A water supply authority may only levy river management service charges on land within a river management area.
(7)  A water supply authority may only levy special industry service charges on land on which a special industry is conducted.
312   Certain land exempt from service charges
(1)  A water supply authority may not levy service charges in respect of the lands described in Schedule 4.
(2)  Subsection (1) does not apply to the following land—
(a)  land that is within a public reserve or park that is the subject of a lease, licence or other authority under which a person carries on a trade or business,
(b)  land that is vested in the Crown or a public body leased to any person for private purposes,
(c)  land that is used or occupied by the Crown in connection with an undertaking declared by the Governor by proclamation published in the Gazette to be an industrial undertaking for the purposes of this section.
313   Classification of lands
(1)  The regulations must specify the factor or factors according to which a water supply authority may classify land for the purpose of levying service charges.
(2)  Without limiting the generality of subsection (1), the regulations may specify that a water supply authority may classify land according to any one or more of the following factors—
(a)  the purpose for which the land is actually being used,
(b)  the intensity with which the land is being used for that purpose,
(c)  the purposes for which the land is capable of being used,
(d)  the nature and extent of the water or sewerage services connected to the land.
(3)  For the purposes of subsection (2) (c), land is not capable of being used for a purpose if the use of the land for that purpose would be in contravention of—
(b)  any environmental planning instrument in force under that Act, or
(c)  any other Act or law relating to the use of land.
314   Basis of levying service charges
The regulations must specify the basis or bases according to which a water supply authority may levy service charges.
315   Determinations by water supply authority
(1)  Not later than 1 month before the beginning of each charging year a water supply authority must, in accordance with the regulations, determine the following matters for that charging year—
(a)  the amount of money that it proposes to raise by way of service charges levied on land within its area of operations,
(b)  the factor or factors according to which land within its area of operations is to be classified for the purposes of levying service charges,
(c)  the basis or bases according to which service charges are to be levied,
(d)  the rate at which service charges are to be levied on, or the maximum or minimum service charges that are to be applicable to, land within its area of operations.
(2)  In making a determination under this section, a water supply authority may have regard to the following—
(a)  its estimation of the degree of benefit that accrues to land in respect of each service for which a charge is to be levied,
(b)  its estimation of the degree to which each service is or may be used in relation to land in respect of which a charge is to be levied,
(c)  its estimation of the cost involved in the construction, maintenance and operation of each service for which a charge is to be levied,
(d)  such other matters as it considers relevant to the levying of charges for each such service.
(3)  A determination under this section—
(a)  is required to be approved by the Minister and does not have effect unless it is so approved, and
(b)  must be published in the Gazette before the commencement of the charging year to which it relates, and
(c)  takes effect on the commencement of the charging year to which it relates.
(4)  A determination does not fail merely because it is not published in the Gazette before the commencement of the charging year to which it relates but, in that event, no person is liable for payment of the service charges to which the determination relates until the determination is published in the Gazette.
(5)  A service charge determined under this section is levied on publication of the determination in the Gazette.
(6)  If, for any reason—
(a)  a determination under this section is not made before the charging year to which it relates, or
(b)  there is any irregularity or alleged irregularity in the making of any such determination,
the Governor may extend the time for making the determination (whether or not that time has expired) and may authorise the water supply authority concerned to do anything necessary to cure any irregularity and to make a valid determination.
316   Assessment of service charges
(1)  A water supply authority—
(a)  must classify each parcel of land within its area of operations in respect of which a service charge is to be levied, and
(b)  must assess the service charges payable for each such parcel of land,
in accordance with its determination under this Division.
(2)  After it makes an assessment under this section, a water supply authority must, in accordance with the regulations, cause a notice to be served on the landholder of each parcel of land in respect of which a service charge has been levied.
(3)  Such a notice must include information as to the following—
(a)  the factor or factors according to which the parcel of land has been classified for the purposes of the levying of service charges,
(b)  the basis or bases according to which service charges have been levied in respect of the parcel of land,
(c)  if service charges have been levied on the basis of the value of the parcel of land, the value of the parcel on which those service charges have been levied,
(d)  the rate at which service charges have been levied on, or the maximum or minimum service charges that are applicable to, the parcel of land,
(e)  the amounts payable in respect of each service charge that has been levied in respect of the parcel of land.
(4)  On service of such a notice, the landholder of the land to which the notice relates becomes liable for payment of the service charges specified in the notice.
317   Re-assessment of service charges
(1)  This section applies to any land in respect of which a service charge has been levied on the basis of the value of the land.
(2)  If a water supply authority becomes aware that the value (as calculated in accordance with this Division) of any parcel of land in respect of which it has levied a service charge for any charging year differs from the value (as so calculated) as at the date on which the service charge was originally assessed, the water supply authority may re-assess the service charge on the basis of the different value.
(3)  A service charge may only be re-assessed as from the date from which the revised calculation of the value of the land has effect.
(4)  After it makes a re-assessment under this section, a water supply authority must, in accordance with the regulations, cause a notice to be served on the landholder of the parcel of land in respect of which the re-assessment has been made.
(5)  Such a notice must specify—
(a)  the revised calculation of the value of the land, and
(b)  the date from which the revised calculation of the value of the land has effect, and
(c)  the revised assessment of the amounts payable in respect of each service charge that has been levied on that land.
(6)  On service of such a notice, the service charges for which the landholder of the land to which the notice relates is liable are varied in accordance with the terms of the notice.
Division 7 Miscellaneous
318   Acquisition and divesting of land
(1)  A water supply authority may acquire land (or an interest in land) for the purposes of this Part by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991.
(2)  For the purposes of the Public Works Act 1912, any such acquisition of land is taken to be for an authorised work and the water supply authority is, in relation to that authorised work, taken to be the Constructing Authority.
(3)  Part 3 of the Public Works Act 1912 does not apply in respect of works constructed under this Part.
(4)  With the consent of the local council concerned, the Governor may, by proclamation published in the Gazette, vest in a local council the estate or interest of a water supply authority in any land on which is situated a work of the water supply authority (whether wholly or partly completed).
318A   Exposure of underground pipes
A person must not, except in an emergency or with lawful excuse, open any ground so as to expose a water supply authority’s pipe or other work unless the person has given the water supply authority at least 2 days’ written notice of his or her intention to do so.
Tier 2 penalty.
s 318A: Ins 2008 No 73, Sch 1 [7].
318B   Unlicensed plumbing work
A person must not do any kind of plumbing work unless the person—
(a)  holds an endorsed contractor licence or a supervisor certificate under the Home Building Act 1989 that authorises the holder to do that kind of work, or
(b)  does the work under the immediate supervision of the holder of such a licence or certificate, or
(c)  holds a tradesperson certificate under the Home Building Act 1989 that authorises the holder to do that kind of work under supervision, and does the work under the general supervision of the holder of a licence or certificate referred to in paragraph (a).
Tier 3 penalty.
s 318B: Ins 2008 No 73, Sch 1 [7].
319   Compensation for interference or damage
(1)  If—
(a)  a person does, or causes to be done, any work that interferes with, or damages, any property of a water supply authority, and
(b)  there was reasonable cause to believe that the interference or damage would result from the doing of the work,
the person is liable to compensate the water supply authority for the interference or damage.
(2)  A water supply authority is not entitled to compensation both under this section and another provision of this Part for the same interference or damage.
320   Efficiency review
(1)  The Minister may appoint a person to investigate and review the efficiency of a water supply authority in exercising its functions.
(2)  A water supply authority must bear the costs of an investigation and review under this section that is requested by it.
(3)  This section does not apply to a water supply authority listed in Part 3 of Schedule 3.
s 320: Am 2002 No 138, Sch 4 [10].
321   Appointment of administrator
(1)  If a water supply authority refuses or fails to comply with a direction or requirement given or made by the Minister in relation to this Part, the Minister may, by order published in the Gazette—
(a)  in the case of a water supply authority listed in Part 1 of Schedule 3, appoint an administrator to exercise all the functions, or specified functions, of the water supply authority, or
(b)  in the case of a statutory body listed in Part 2 of Schedule 3, with the consent of the Minister administering the Act by which the statutory body is constituted, appoint an administrator to exercise all the functions, or specified functions, of the water supply authority under this Part.
(2)  An administrator has, during his or her term of office and to the exclusion of the water supply authority, the functions the administrator was appointed to exercise.
(3)  Regulations may be made for or with respect to—
(a)  the accommodation (if any) to be provided at the offices of a water supply authority for the administrator and his or her assistants, and
(b)  requiring the employees of a water supply authority to assist, and to refrain from obstructing, the administrator in the exercise of his or her functions.
(4)  This section does not apply to a water supply authority listed in Part 3 of Schedule 3.
s 321: Am 2002 No 138, Sch 4 [11].
322   Regulations
(1)  The regulations may make provision for or with respect to the following matters—
(a)  fees and charges, including charges for the supply of water,
(b)  the imposition of water use restrictions,
(c)    (Repealed)
(d)  the carrying out of plumbing work,
(e)  the planning and management of water supply, sewerage and drainage systems,
(f)  the design and construction of water supply, sewerage and drainage systems,
(g)  the establishment and enforcement of customer service standards,
(h)  the regulation and prohibition of discharges into sewerage and drainage systems,
(i)  the waiver, reduction, deferral and refund of fees, service charges and other charges,
(j)  the control and management of special areas.
(2)  A regulation made for or with respect to a special area prevails to the extent of any inconsistency with a statutory instrument made under another Act, other than a SEPP made under the Environmental Planning and Assessment Act 1979.
(3)  If any requirement with respect to plumbing work imposed by the regulations is inconsistent with the requirements imposed by the Plumbing and Drainage Act 2011 or the regulations under that Act with respect to the same work, that Act and any regulations under that Act prevail to the extent of the inconsistency.
s 322: Am 2002 No 138, Sch 4 [12]–[15]; 2006 No 58, Sch 1.40 [1]; 2008 No 36, Sch 1.7; 2011 No 59, Sch 2.16 [2].
Chapter 7 Enforcement
Part 1 Directions to landholder and other persons
ch 7, pt 1: Subst 2008 No 73, Sch 2 [2].
Division 1 Preliminary
ch 7, pt 1, div 1, hdg: Ins 2008 No 73, Sch 2 [2].
323   Definitions
(1)  In this Part—
landholder, in relation to land, includes any person having the care, control or management of the land.
specified measures include measures that involve doing, or refraining from doing, any act.
(2)  In this Part—
(a)  a power to direct a person to take specified measures includes a power to direct in what circumstances, in what order and in what manner those measures are to be taken, and
(b)  a reference to a water management work of any kind includes a reference to a corresponding kind of work to which Part 2, 5 or 8 of the Water Act 1912 extends, and
(b1)  a reference to an approval or an access licence includes a reference to an entitlement (within the meaning of clause 2 of Schedule 10) that confers a corresponding authority, and
(c)  a reference to this Act or the regulations extends to the Water Act 1912 and the regulations under that Act.
(3)  For the purpose of applying this Part to the Water Act 1912 and the regulations under that Act, references to this Act in section 390 of this Act, and in the definition of authorised officer in the Dictionary to this Act, extend to the Water Act 1912 and the regulations under that Act.
s 323: Am 2004 No 39, Sch 2 [4] [5]. Subst 2008 No 73, Sch 2 [2]. Am 2009 No 106, Sch 1.20 [2].
Division 2 Conservation of water, metering and audits
ch 7, pt 1, div 2, hdg: Ins 2008 No 73, Sch 2 [2]. Am 2018 No 31, Sch 1 [59].
324   Temporary water restrictions
(1)  If satisfied that it is necessary to do so in the public interest (such as (but not limited to) to cope with a water shortage, threat to public health or safety or to manage water for environmental purposes), the Minister may, by order in writing, direct that, for a specified period, the taking of water from a specified water source is prohibited, or is subject to specified restrictions, as the case requires.
(2)  If satisfied that it is necessary to do so—
(a)  to maintain or protect water levels in an aquifer, or
(b)  to maintain, protect or improve the quality of water in an aquifer, or
(c)  to prevent land subsidence or compaction in an aquifer, or
(d)  to protect groundwater-dependent ecosystems, or
(e)  to maintain pressure, or to ensure pressure recovery, in an aquifer,
the Minister may, by order in writing, direct that, within a specified area and for a specified period, the taking of water from that aquifer, or from any other aquifer that is above, below or adjacent to that aquifer, is prohibited, or is subject to specified restrictions, as the case requires.
(3)  The Minister must cause a copy of an order under this section to be published in the Gazette and notice of the order to be published in the authorised manner.
(4)  If satisfied that circumstances require publication of an order under subsection (1) or (2) sooner than can be achieved under subsection (3), the Minister may, prior to its publication under that subsection, cause notice of the order to be broadcast by a television or radio station transmitting to the part or parts of the State within which the water source is situated.
(5)  An order under this section takes effect when it is first published or broadcast in accordance with subsection (3) or (4), as the case may be, or at such later date or time as may be specified in the order.
(6)  Unless sooner repealed, an order under this section ceases to have effect on the expiry of the period specified in the order.
(7)  In the event of any inconsistency between an order under this section and any other provision of this Act relating to the distribution, sharing or taking of water (including any order made, or any condition imposed on an access licence or approval, under this Act), the order under this section prevails to the extent of the inconsistency.
(8)  Nothing in this section gives rise to a claim for compensation under Division 9 of Part 2 of Chapter 3.
s 324: Am 2001 No 56, Sch 1.22 [25]. Subst 2008 No 73, Sch 2 [2]. Am 2018 No 31, Sch 1 [4] [60].
325   Directions concerning waste of water
The Minister may, by order in writing served on a landholder, direct the landholder to take specified measures to ensure that—
(a)  water taken and used under the authority of—
(i)  a domestic and stock right, or
(ii)  a domestic and stock access licence,
is taken and used in accordance with the mandatory guidelines established under section 336B, and
(b)  water taken and used under the authority of—
(i)  a domestic and stock right, or
(ii)  a domestic and stock access licence,
is beneficially used, and is not wasted or improperly used, and
(c)  water taken by means of a water supply work situated on the land, or used under the authority of a water use approval applying to the land, is beneficially used, and is not wasted or improperly used.
Note—
See also section 11 (1) (e) of the Natural Resources Access Regulator Act 2017 and Schedule 2 to that Act.
s 325: Subst 2004 No 39, Sch 2 [6]; 2008 No 73, Sch 2 [2]. Am 2017 No 64, sec 19.
326   Directions to install, replace, use and maintain metering equipment
(1)  The Minister may, by order in writing served on—
(a)  a landholder on whose land is situated a water supply work, or
(b)  any person having the control and management of such a work,
direct the landholder or person to take specified measures to install, replace, use or to properly maintain metering equipment for use in connection with that work.
(2)  Unless the direction otherwise specifies, a direction to take specified measures to install or replace metering equipment is taken to include—
(a)  a direction that the equipment be properly maintained, and
(b)  a direction that the equipment not be used unless it is properly sealed.
(2A)  A direction under this section may specify the only person or persons who may install, replace, maintain or seal metering equipment.
(3)  Metering equipment is properly maintained and properly sealed only if it is maintained and sealed by a duly qualified person or a person specified under subsection (2A).
(4)    (Repealed)
Note—
See also section 11 (1) (e) of the Natural Resources Access Regulator Act 2017 and Schedule 2 to that Act.
s 326: Subst 2008 No 73, Sch 2 [2]. Am 2009 No 56, Sch 1.44 [7]–[9]; 2009 No 110, Sch 1 [6]–[10]; 2017 No 64, sec 19; 2018 No 31, Sch 1 [61] [62].
326A   Compliance audits
(1)  The Minister may, by order in writing served on the holder of an access licence or an approval, direct the holder to undertake a compliance audit to the satisfaction of the Minister.
(2)  The direction may require the audit to be undertaken by either or both the holder or a compliance auditor and may require compliance audits to be undertaken at intervals specified by the direction.
(3)  A compliance audit is an evaluation of the activities of the holder in relation to the taking of water and other activities regulated under this Act to provide information to the holder and to the persons administering this Act on compliance with legal requirements under this Act relating to those activities.
(4)  The regulations may make provision for or with respect to the following matters—
(a)  the payment of the costs of compliance audits by holders,
(b)  requirements for the form and content of compliance audits,
(c)  certification of compliance audits,
(d)  persons who are qualified to undertake compliance audits.
s 326A: Ins 2018 No 31, Sch 1 [63].
326B   Use of information
(1)  Any information in an audit report or other document supplied to the Minister in connection with a compliance audit may be taken into consideration by the Minister and used for the purposes of this Act.
(2)  Without limiting the above, any such information is admissible in evidence in any prosecution of the holder of an access licence or approval for any offence (whether under this Act or otherwise).
s 326B: Ins 2018 No 31, Sch 1 [63].
Division 3 Unlawful works and activities
ch 7, pt 1, div 3, hdg: Ins 2008 No 73, Sch 2 [2].
327   Stop work order regarding unlawful construction or use of water management work
(1)  This section applies to a water management work that, in the Minister’s opinion, is being constructed or used, or is about to be constructed or used, in contravention of this Act.
(2)  The Minister may, by order in writing served on any person having control or management of the water management work, direct the person to take specified measures—
(a)  to prohibit or discontinue its construction or use, or
(b)  to construct or use the work only as specified.
(3)  Without limiting subsection (2), the landholder on whose land the water management work is situated, or is proposed to be situated, is taken to have control and management of the work.
Note—
See also section 11 (1) (e) of the Natural Resources Access Regulator Act 2017 and Schedule 2 to that Act.
s 327: Am 2002 No 138, Sch 4 [16]. Subst 2008 No 73, Sch 2 [2]. Am 2009 No 56, Sch 1.44 [10] [11]; 2017 No 64, sec 19.
328   Stop work order regarding unlawful controlled activity or aquifer interference activity
(1)  This section applies to a controlled activity or aquifer interference activity that, in the Minister’s opinion, is being carried out, or is about to be carried out, in contravention of this Act.
(2)  The Minister may, by order in writing served on any person carrying out the controlled activity or aquifer interference activity, direct the person to take specified measures—
(a)  to prohibit or discontinue that activity, or
(b)  to carry out that activity only as specified.
(3)  Without limiting subsection (2), the landholder on whose land a controlled activity or aquifer interference activity is being carried out, or is proposed to be carried out, is taken to be carrying out that activity.
Note—
See also section 11 (1) (e) of the Natural Resources Access Regulator Act 2017 and Schedule 2 to that Act.
s 328: Subst 2008 No 73, Sch 2 [2]. Am 2009 No 56, Sch 1.44 [10] [12]; 2017 No 64, sec 19.
329   Removal of unlawful water management works
(1)  This section applies to a water management work for which no water management work approval is in force.
(2)  The Minister may, by order in writing served on any person having control or management of the work, direct the person to take specified measures to demolish, remove, modify or dismantle the work or otherwise render it ineffective.
(3)  Such a direction may be given even if the work is not being used or is not capable of being used.
(4)  Such a direction may not be given in relation to a water supply work that is being used solely—
(a)  to take water from a water source pursuant to a landholder’s domestic and stock rights, or
(b)  to capture and store overland flow water pursuant to a landholder’s harvestable rights.
(5)  Without limiting subsection (2), the landholder on whose land the work is situated is taken to have control and management of the work.
Note—
See also section 11 (1) (e) of the Natural Resources Access Regulator Act 2017 and Schedule 2 to that Act.
s 329: Subst 2008 No 73, Sch 2 [2]. Am 2009 No 56, Sch 1.44 [10] [13] [14]; 2009 No 106, Sch 1.20 [3]; 2014 No 48, Sch 1.1 [2]; 2017 No 64, sec 19.
Division 4 Temporary stop work orders
ch 7, pt 1, div 4, hdg: Ins 2008 No 73, Sch 2 [2].
330   Temporary stop work order to protect public interest
(1)  If satisfied that the public interest so requires, the Minister may, by order in writing served on—
(a)  a landholder on whose land is situated a water management work, or
(b)  any person having the control or management of such a work, or
(c)  any person by whom a controlled activity or aquifer interference activity is being carried out,
direct that, for a specified period, the use of that work, or the carrying out of that activity, is prohibited, or is subject to specified restrictions or specified measures, as the case requires.
(2)  Such a direction may be given in relation to a flood work only so as to regulate the use of those parts of the work (including, without limitation, sluices and flood gates) as are capable of being operated to influence the flow of water.
s 330: Subst 2008 No 73, Sch 2 [2]. Am 2009 No 56, Sch 1.44 [15].
Division 5 Protection of public health, public safety and the environment
ch 7, pt 1, div 5, hdg: Ins 2008 No 73, Sch 2 [2].
331   Directions to holders of basic landholder rights
The Minister may, by order in writing served on—
(a)  a landholder on whose land is situated a water supply work that is being used—
(i)  to take water from a water source pursuant to the landholder’s domestic and stock rights, or
(ii)  to capture and store overland flow water pursuant to the landholder’s harvestable rights, or
(b)  any person having the control or management of such a work,
direct the landholder or person to take specified measures to protect the environment, to preserve basic landholder rights or to overcome a threat to public health.
Note—
See also section 11 (1) (e) of the Natural Resources Access Regulator Act 2017 and Schedule 2 to that Act.
s 331: Subst 2008 No 73, Sch 2 [2]. Am 2009 No 106, Sch 1.20 [3]; 2014 No 48, Sch 1.1 [2]; 2017 No 64, sec 19.
332   Directions concerning damage caused by straying stock
The Minister may, by order in writing served on any landholder, direct the landholder to take specified measures—
(a)  to prevent stock from straying from the landholder’s land into or onto a water management work that is owned by, or is under the control or management of, the Ministerial Corporation, or
(b)  to repair any damage caused to any such water management work as a consequence of stock having strayed from the landholder’s land.
Note—
See also section 11 (1) (e) of the Natural Resources Access Regulator Act 2017 and Schedule 2 to that Act.
s 332: Am 2001 No 56, Sch 1.22 [26]. Subst 2008 No 73, Sch 2 [2]. Am 2017 No 64, sec 19.
333   Directions to protect water sources
(1)  This section applies if the Minister is of the opinion that—
(a)  the construction or use of a water management work, or
(b)  a controlled activity or aquifer interference activity,
is having, has had, or is likely to have, an adverse effect on a water source or waterfront land.
(2)  The Minister may, by order in writing served on—
(a)  the person having control or management of the water management work, or
(b)  the person who has carried out, is carrying out or proposes to carry out the controlled activity or aquifer interference activity,
direct the person to take specified measures to prevent, minimise or mitigate any adverse effect on the water source or waterfront land as a consequence of the construction or use of the work or the carrying out of the activity.
(3)  Without limiting subsection (2), the measures that may be specified in a direction under this section include—
(a)  a direction to repair any damage caused by the construction or use of the water management work or the carrying out of the controlled activity or aquifer interference activity, and
(b)  a direction to rehabilitate any water source or waterfront land that has been adversely affected by the construction or use of the water management work or the carrying out of the controlled activity or aquifer interference activity, and
(c)  a direction to ensure that the construction or use of the water management work, or the carrying out of the controlled activity or aquifer interference activity, will not in future adversely affect any water source or waterfront land.
(4)  Without limiting subsection (2)—
(a)  the person who, at the time of the construction or use of a water management work to which this section applies, was the landholder on whose land the work was situated is taken to have control and management of the work, and
(b)  the landholder on whose land a water management work is situated, or is proposed to be situated, is taken to have control and management of the work, and
(c)  the person who, at the time a controlled activity or aquifer interference activity to which this section applies, was the landholder on whose land the activity was carried out is taken to be carrying out the activity, and
(d)  the landholder on whose land a controlled activity or aquifer interference activity is carried out, or is proposed to be carried out, is taken to be carrying out the activity.
Note—
See also section 11 (1) (e) of the Natural Resources Access Regulator Act 2017 and Schedule 2 to that Act.
s 333: Subst 2008 No 73, Sch 2 [2]. Am 2009 No 56, Sch 1.44 [16]–[18]; 2017 No 64, sec 19.
334   Directions to prepare reports
(1)  A direction served on a person under this Part may require the person to prepare, and submit to the Minister, reports as to any of the following—
(a)  the measures the person proposes to take for the purpose of complying with the direction,
(b)  the progress made by the person in implementing any such measures.
(2)  The direction may also prohibit the person from implementing any such measures until they have been approved by the Minister.
Note—
See also section 11 (1) (e) of the Natural Resources Access Regulator Act 2017 and Schedule 2 to that Act.
s 334: Subst 2008 No 73, Sch 2 [2]. Am 2009 No 56, Sch 1.44 [19]; 2017 No 64, sec 19.
Division 6 Enforcement by Land and Environment Court
ch 7, pt 1, div 6, hdg: Ins 2008 No 73, Sch 2 [2].
335   Land and Environment Court may grant injunctions
On the application of the Minister, the Land and Environment Court may grant an injunction directing any person to whom a direction has been given under this Part to comply with the direction.
Note—
See also section 11 (1) (e) of the Natural Resources Access Regulator Act 2017 and Schedule 2 to that Act.
s 335: Subst 2008 No 73, Sch 2 [2]. Am 2017 No 64, sec 19.
336   Restraint of breaches of this Act
(1)  Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act or the regulations.
(2)  Any such proceedings may be brought whether or not proceedings have been instituted for an offence against this Act or the regulations.
(3)  Any such proceedings may be brought whether or not any right of the person has been or may be infringed by or as a consequence of the breach.
(4)  Any such proceedings may be brought by a person on the person’s own behalf or on behalf of another person (with their consent), or of a body corporate or unincorporate (with the consent of its committee or other controlling body), having like or common interests in those proceedings.
(5)  Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings.
(6)  If the Land and Environment Court is satisfied that a breach has been committed or that a breach will, unless restrained by the order of the Court, be committed, it may make such orders as it thinks fit to remedy or restrain the breach.
(7)  In this section, breach includes a threatened or apprehended breach.
s 336: Subst 2008 No 73, Sch 2 [2].
Division 7 General
ch 7, pt 1, div 7, hdg: Ins 2008 No 73, Sch 2 [2].
336A   Remedial measures may be taken by Minister
(1)  If a person fails to take the measures specified in a direction under this Part, the Minister may authorise any other person to take those measures.
(2)  The amount of any costs and expenses incurred by the authorised person as a result of the taking of those measures is recoverable in a court of competent jurisdiction as a debt due to the Ministerial Corporation from the person on whom the direction was served.
Note—
See also section 11 (1) (e) of the Natural Resources Access Regulator Act 2017 and Schedule 2 to that Act.
s 336A: Ins 2002 No 138, Sch 4 [17]. Subst 2008 No 73, Sch 2 [2]. Am 2017 No 64, sec 19.
336B   Mandatory guidelines
(1)  The Minister may, by order published on the NSW legislation website, establish mandatory guidelines with respect to the taking and use of water for domestic consumption and stock watering by landholders or other persons authorised to take and use water for either or both of those purposes under—
(a)  a domestic and stock right, or
(b)  a domestic and stock access licence.
(2)  Before establishing any guidelines under this section, the Minister must prepare draft guidelines.
(3)  The Minister—
(a)  must give public notice of the draft guidelines, and
(b)  must exhibit the draft guidelines (together with such other information as is appropriate or necessary to enable the draft guidelines and their implications to be understood) at the places, on the dates and during the times set out in the notice.
(4)  The public notice referred to in subsection (3) (a)—
(a)  must specify the places at which, the dates on which, and the times during which, the draft guidelines may be inspected by the public, and
(b)  must specify a period of at least 40 days during which submissions may be made to the Minister in relation to the guidelines (the submission period), and
(c)  must be published in the authorised manner.
(5)  During the submission period, any person may make written submissions to the Minister on the draft guidelines.
(6)  After complying with the requirements of this section, the Minister—
(a)  may establish guidelines under this section in accordance with the draft guidelines, or
(b)  may establish guidelines under this section in accordance with the draft guidelines, but with such alterations as the Minister thinks fit, or
(c)  may decide not to proceed with the draft guidelines.
(7)  The Minister is to cause—
(a)  a copy of any guidelines established under this section as in force from time to time to be published on the Department’s internet site, and
(b)  copies of the guidelines as in force from time to time to be made available for inspection by members of the public during ordinary business hours at such places as the Minister directs.
(8)  A failure to comply with subsection (7) does not affect the validity of any guidelines established under this section.
(9)  In this section—
domestic consumption, in relation to land, includes (but is not limited to) domestic consumption within the meaning of section 52.
stock watering, in relation to land, includes (but is not limited to) stock watering within the meaning of section 52.
s 336B: Ins 2008 No 73, Sch 2 [2]. Am 2009 No 110, Sch 1 [1]; 2010 No 133, Sch 2 [60]; 2018 No 31, Sch 1 [4].
336C   Contravention of certain directions
(1)  A person who fails to comply with a direction under this Part is guilty of an offence.
Tier 2 penalty.
(2)  For the avoidance of doubt, a person fails to comply with a direction under this Part if the direction requires compliance within a specified period and the direction is not fully complied with within that period.
s 336C: Ins 2008 No 73, Sch 2 [2].
336D   Prior notice of direction not required
The Minister is not required to notify any person who may be affected by a direction under this Part before giving the direction.
s 336D: Ins 2008 No 73, Sch 2 [2].
Division 8 Enforceable undertakings
ch 7, pt 1, div 8 (ss 336E, 336F): Ins 2018 No 31, Sch 1 [64].
336E   Enforcement of undertakings
(1)  The Minister may accept a written undertaking given by a person for the purposes of this section in connection with a matter in relation to which the Minister, the Ministerial Corporation, the Natural Resources Access Regulator or any other public authority has a function under this Act.
(2)  The person may withdraw or vary the undertaking at any time, but only with the consent in writing of the Minister. The consent of the Minister is required even if the undertaking purports to authorise withdrawal or variation of the undertaking without that consent.
(3)  The Minister may apply to the Land and Environment Court for an order under subsection (4) if the Minister considers that the person who gave the undertaking has breached any of its terms.
(4)  The Land and Environment Court may make all or any of the following orders if it is satisfied that the person has breached a term of the undertaking—
(a)  an order directing the person to comply with that term of the undertaking,
(b)  an order directing the person to pay to the State an amount not exceeding the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach,
(c)  any order that the Court thinks appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach,
(d)  an order requiring the person to prevent, control, abate or mitigate any actual or likely damage to the built or natural environment caused by the breach,
(e)  an order requiring the person to make good any actual or likely damage to the built or natural environment caused by the breach,
(f)  any other order the Court considers appropriate.
(5)  The Ministerial Corporation, the Natural Resources Access Regulator or another public authority may recommend that the Minister accept an undertaking under this section that the Ministerial Corporation, the Natural Resources Access Regulator or public authority has negotiated with a person proposing to give the undertaking in connection with a function of the public authority under this Act.
(6)  Nothing in this section prevents proceedings being brought for the contravention or alleged contravention of this Act to which the undertaking relates.
ch 7, pt 1, div 8 (ss 336E, 336F): Ins 2018 No 31, Sch 1 [64].
336F   Notice of decision and reasons for decision
The Minister must give the person seeking to make an undertaking written notice of the Minister’s decision to accept or reject the undertaking and of the reasons for the decision.
ch 7, pt 1, div 8 (ss 336E, 336F): Ins 2018 No 31, Sch 1 [64].
Part 2 Other enforcement powers
ch 7, pt 2: Subst 2008 No 73, Sch 2 [2].
Division 1 Preliminary
ch 7, pt 2, div 1, hdg: Ins 2008 No 73, Sch 2 [2].
337   Purposes for which powers under Part may be exercised
(1)  Powers may be exercised under this Part for any of the following purposes—
(a)  for determining whether there has been compliance with or a contravention of this Act or the regulations or any access licence, approval, notice or requirement issued or made under this Act,
(b)  for obtaining information or records for purposes connected with the administration of this Act,
(c)  generally for administering this Act and protecting the environment.
(2)  In this Part, a reference to this Act or the regulations extends to the Water Act 1912 and the regulations under that Act.
(3)  For the purpose of applying this Part to the Water Act 1912 and the regulations under that Act, references to this Act in section 390 of this Act, and in the definition of authorised officer in the Dictionary to this Act, extend to the Water Act 1912 and the regulations under that Act.
s 337: Subst 2008 No 73, Sch 2 [2].
337A   Effect on other functions
Nothing in this Part affects any function under any other provision of this Act or under any other Act.
s 337A: Ins 2008 No 73, Sch 2 [2].
337B   Extended meaning of “occupier”
In this Part, occupier, in relation to land, includes any person having the care, control or management of the land.
s 337B: Ins 2008 No 73, Sch 2 [2].
Division 2 Powers to require information or records
ch 7, pt 2, div 2, hdg: Ins 2008 No 73, Sch 2 [2].
338   Application of Division
This Division applies whether or not a power of entry under Division 3 is being or has been exercised.
s 338: Am 2002 No 103, Sch 4.97 [1]–[4]. Subst 2008 No 73, Sch 2 [2].
338A   Powers of authorised officers to require information and records
(1)  The Minister may, by notice in writing given to a person, require the person to furnish to the Minister such information or records (or both) as he or she may require for the purposes of this Act.
(2)  An authorised officer may, by notice in writing given to a person, require the person to furnish to the officer such information or records (or both) as he or she may require for the purposes of this Act.
(3)  A notice under this Division must specify the manner in which information or records are required to be furnished and a reasonable time by which the information or records are required to be furnished.
(4)  A notice under this Division may only require a person to furnish existing records that are in the person’s possession or that are within the person’s power to obtain lawfully.
(5)  The person to whom any record is furnished under this Division may take copies of it.
(6)  If any record required to be furnished under this Division is in electronic, mechanical or other form, the notice requires the record to be furnished in written form, unless the notice otherwise provides.
Note—
See also section 11 (1) (e) of the Natural Resources Access Regulator Act 2017 and Schedule 2 to that Act.
s 338A: Ins 2008 No 73, Sch 2 [2]. Am 2017 No 64, sec 19.
338B   Power of authorised officers to require answers
(1)  An authorised officer may require a person whom the authorised officer suspects on reasonable grounds to have knowledge of matters in respect of which information is reasonably required for the purposes of this Act to answer questions in relation to those matters.
(2)  The Minister may, by notice in writing, require a corporation to nominate, in writing within the time specified in the notice, a director or officer of the corporation to be the corporation’s representative for the purpose of answering questions under this section.
(3)  Answers given by a person nominated under subsection (2) bind the corporation.
(4)  An authorised officer may, by notice in writing, require a person to attend at a specified place and time to answer questions under this section if attendance at that place is reasonably required in order that the questions can be properly put and answered.
(5)  The place and time at which a person may be required to attend under subsection (4) is to be—
(a)  a place or time nominated by the person, or
(b)  if the place and time nominated is not reasonable in the circumstances or a place and time is not nominated by the person, a place and time nominated by the authorised officer that is reasonable in the circumstances.
(6)  The authorised officer may, in the notice under subsection (4) or in a subsequent notice, authorise the person to answer the questions using an audio link or audio visual link of a kind approved by the authorised officer.
(7)  If the questions are to be answered by the person using an audio link or audio visual link—
(a)  the place at which the person is required to attend is taken to be any place having adequate facilities for the answering of questions in that way at the time nominated under subsection (5), and
(b)  the person must ensure the audio link or audio visual link is operated appropriately so that the answers given to the questions are clear to the authorised officer.
(8)  In this section—
audio link means technology that enables continuous and contemporaneous audio communication between persons at different places, including telephones.
audio visual link means technology that enables continuous and contemporaneous audio and visual communication between persons at different places, including video conferencing.
(9)    (Repealed)
Note—
See also section 11 (1) (e) of the Natural Resources Access Regulator Act 2017 and Schedule 2 to that Act.
s 338B: Ins 2008 No 73, Sch 2 [2]. Am 2000 No 92, sec 338B(9); 2017 No 64, sec 19; 2020 No 5, Sch 1.33; 2021 No 5, Sch 1.31; 2022 No 5, Sch 1.18.
338C   Recording of evidence
(1)  An authorised officer may cause any questions and answers to questions given under this Division to be recorded if the officer has informed the person who is to be questioned that the record is to be made.
(2)  A record may be made using sound recording apparatus or audio visual apparatus, or any other method determined by the authorised officer.
(3)  A copy of any such record must be provided by the authorised officer to the person who is questioned as soon as practicable after it is made.
(4)  A record may be made under this section despite the provisions of any other law.
s 338C: Ins 2008 No 73, Sch 2 [2].
338D   Power of authorised officers to demand name and address
(1)  An authorised officer may require a person whom the authorised officer suspects on reasonable grounds to have committed, or to be committing, an offence against this Act or the regulations to state his or her full name and residential address.
(2)  An authorised officer may request a person who is required under this section to state his or her full name and residential address to provide proof of the name and address. It is not an offence to fail to comply with any such request.
(3)  A person who, being required to do so under this section—
(a)  refuses to state his or her name or residential address, or
(b)  states a name or residential address that in the opinion of the authorised officer is false,
may without any other warrant than this Act be apprehended by the authorised officer and taken before a Magistrate or court officer to be dealt with according to law.
(4)  A Magistrate or court officer before whom a person is taken under subsection (3) may make a bail decision under the Bail Act 2013 in respect of the person.
(5)  If the person has not been charged with an offence, the Bail Act 2013 applies as if the person were accused of an offence.
(6)  For the purpose of applying the Bail Act 2013, a court officer has the same functions as an authorised justice under that Act.
(7)  In this section—
court officer means an authorised officer under the Criminal Procedure Act 1986.
s 338D: Ins 2008 No 73, Sch 2 [2]. Am 2014 No 5, Sch 2.29 [1] [2].
Division 3 Powers of entry and search of premises
ch 7, pt 2, div 3, hdg: Ins 2008 No 73, Sch 2 [2].
339   Powers of authorised officers to enter premises
(1)  An authorised officer may enter any premises at any reasonable time.
(2)  A power to enter premises conferred by this Act authorises entry by foot, by vehicle, vessel or aircraft or by any other means.
(3)  Entry may be effected under this Act by an authorised officer with the aid of such police officers as the authorised officer considers necessary and with the use of reasonable force.
(4)  Entry may be effected to any premises with the authority of a search warrant under section 339C.
s 339: Subst 2008 No 73, Sch 2 [2].
339A   Entry into residential premises only with permission or warrant
This Division does not empower an authorised officer to enter any part of premises used only for residential purposes without the permission of the occupier or the authority of a search warrant under section 339C.
s 339A: Ins 2008 No 73, Sch 2 [2]. Am 2016 No 27, Sch 1.33 [4] [5].
339B   Powers of authorised officers to do things at premises
(1)  An authorised officer may, at any premises lawfully entered, do anything that in the opinion of the authorised officer is necessary to be done for the purposes of this Part, including (but not limited to) the things specified in subsection (2).
(2)  An authorised officer may do any or all of the following—
(a)  examine and inspect any works,
(b)  take and remove samples,
(c)  make such examinations, inquiries and tests as the authorised officer considers necessary,
(d)  take such photographs, films, audio, video and other recordings as the authorised officer considers necessary,
(e)  require records to be produced for inspection,
(f)  examine and inspect any records,
(g)  copy any records,
(h)  seize anything that the authorised officer has reasonable grounds for believing is connected with an offence against this Act or the regulations,
(i)  for the purposes of paragraph (h), direct the occupier of the premises where the thing is seized to retain it at those premises or at another place under the control of the occupier,
(j)  do any other thing the authorised officer is empowered to do under this Part.
(3)  The power to seize anything connected with an offence includes a power to seize—
(a)  a thing with respect to which the offence has been committed, and
(b)  a thing that will afford evidence of the commission of the offence, and
(c)  a thing that was used for the purpose of committing the offence.
(4)  In this section, a reference to an offence includes a reference to an offence that there are reasonable grounds for believing has been committed.
s 339B: Ins 2008 No 73, Sch 2 [2]. Am 2009 No 56, Sch 1.44 [19].
339C   Search warrants
(1)  An authorised officer under this Act may apply to an authorised officer within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002 for the issue of a search warrant if the authorised officer under this Act believes on reasonable grounds that—
(a)  a provision of this Act or the regulations is being or has been contravened at any premises, or
(b)  there is in or on any premises matter or a thing that is connected with an offence under this Act or the regulations.
(2)  An authorised officer within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002 to whom such an application is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising an authorised officer under this Act named in the warrant—
(a)  to enter the premises, and
(b)  to exercise any function of an authorised officer under this Division.
(3)  Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section.
(4)  In this section—
matter or a thing connected with an offence means—
(a)  a matter or a thing with respect to which the offence has been committed, or
(b)  a matter or a thing that will afford evidence of the commission of an offence, or
(c)  a matter or a thing that was used, or is intended to be used, for the purpose of committing the offence.
offence includes an offence that there are reasonable grounds for believing has been, or is to be, committed.
s 339C: Ins 2008 No 73, Sch 2 [2].
339D   Authorised officers may request assistance
A person may accompany an authorised officer and take all reasonable steps to assist an authorised officer in the exercise of the authorised officer’s functions under this Division if the authorised officer is of the opinion that the person is capable of providing assistance to the authorised officer in the exercise of those functions.
s 339D: Ins 2008 No 73, Sch 2 [2].
339E   Assistance to be given to authorised officers
(1)  This section applies for the purpose of enabling an authorised officer to exercise any of the powers of an authorised officer under this Division in connection with any premises.
(2)  The Minister may, by notice in writing given to the owner or occupier of the premises, require the owner or occupier to provide such reasonable assistance and facilities as are specified in the notice within a specified time and in a specified manner.
(3)  Assistance and facilities can be required under this section, whether they are of the same kind as, or a different kind from, any prescribed by the regulations.
Note—
See also section 11 (1) (e) of the Natural Resources Access Regulator Act 2017 and Schedule 2 to that Act.
s 339E: Ins 2008 No 73, Sch 2 [2]. Am 2017 No 64, sec 19.
339F   Care to be taken
In the exercise of a power of entering or searching premises under this Division, the authorised officer must do as little damage as possible.
s 339F: Ins 2008 No 73, Sch 2 [2].
339G   Compensation
The Minister must compensate all interested parties for any damage caused by the authorised officer in exercising a power of entering premises (but not any damage caused by the exercise of any other power), unless the occupier obstructed or hindered the authorised officer in the exercise of the power of entry.
s 339G: Ins 2008 No 73, Sch 2 [2].
Division 4 General
ch 7, pt 2, div 4, hdg: Ins 2008 No 73, Sch 2 [2].
340   Identification
(1)  Every authorised officer is to be provided with evidence of his or her authority as an authorised officer.
(2)  In the course of exercising the functions of an authorised officer, the officer must, if requested to do so by any person affected by the exercise of any such function, produce to the person the officer’s evidence of authority.
s 340: Subst 2008 No 73, Sch 2 [2].
340A   Offences
(1)  A person must not, without lawful excuse, neglect or fail to comply with a requirement made of the person under this Part.
Tier 2 penalty.
(2)  A person must not furnish any information or do any other thing in purported compliance with a requirement made under this Part, knowing that it is false or misleading in a material respect.
Tier 2 penalty.
(3)  A person must not threaten, hinder, obstruct or delay an authorised officer in the exercise of the authorised officer’s powers under this Part.
Tier 2 penalty.
(4)  A person must not impersonate an authorised officer.
Tier 2 penalty.
s 340A: Ins 2008 No 73, Sch 2 [2].
340B   Provisions relating to requirements to furnish records, information or answer questions
(1)  A person is not guilty of an offence of failing to comply with a requirement under this Part to furnish records or information or to answer a question unless the person was warned on that occasion that a failure to comply is an offence.
(2)  A person is not excused from a requirement under this Part to furnish records or information or to answer a question on the ground that the record, information or answer might incriminate the person or make the person liable to a penalty.
(3)  However, any information furnished or answer given by a natural person in compliance with a requirement under this Part is not admissible in evidence against the person in criminal proceedings (except proceedings for an offence under this Part) if—
(a)  the person objected at the time to doing so on the ground that it might incriminate the person, or
(b)  the person was not warned on that occasion that the person may object to furnishing the information or giving the answer on the ground that it might incriminate the person.
(4)  Any record furnished by a person in compliance with a requirement under this Part is not inadmissible in evidence against the person in criminal proceedings on the ground that the record might incriminate the person.
(5)  Further information obtained as a result of a record or information furnished or of an answer given in compliance with a requirement under this Part is not inadmissible on the ground—
(a)  that the record or information had to be furnished or the answer had to be given, or
(b)  that the record or information furnished or answer given might incriminate the person.
(6)  This section extends to a requirement under this Part to state a person’s name and address.
s 340B: Ins 2008 No 73, Sch 2 [2].
340C   Revocation or variation
(1)  A notice given under this Part may be revoked or varied by a subsequent notice or notices.
(2)  A notice may be varied by modification of, or addition to, its terms and specifications.
(3)  Without limiting the above, a notice may be varied by extending the time for complying with the notice.
(4)  A notice may only be revoked or varied by the Minister or by the person who gave it.
Note—
See also section 11 (1) (e) of the Natural Resources Access Regulator Act 2017 and Schedule 2 to that Act.
s 340C: Ins 2008 No 73, Sch 2 [2]. Am 2017 No 64, sec 19.
340D   Extraterritorial application
An order, direction or notice may be given under this Chapter to a person in respect of a matter even though the person is outside the State or the matter occurs or is located outside the State, so long as the matter affects a matter to which this Act relates.
s 340D: Ins 2010 No 133, Sch 2 [61].
Part 3 Offences
ch 7, pt 3: Subst 2008 No 73, Sch 1 [8].
ch 7, pt 3, div 1, hdg: Rep 2008 No 73, Sch 1 [8].
341   (Repealed)
s 341: Am 2002 No 138, Sch 2 [33] [34]; 2004 No 39, Schs 4 [41], 5 [11]; 2005 No 118, Sch 1 [40] [41]. Rep 2008 No 73, Sch 1 [8].
342   Destruction, damage and interference with certain works
(1)  A person must not destroy, damage or interfere with—
(a)  any work that is owned by, or is under the control and management of, the Minister, the Ministerial Corporation, a water supply authority, an irrigation corporation, a private water corporation or a private water trust, or
(b)  any mark, peg, stake or level fixed for the purposes of this Act.
Tier 2 penalty.
(2)  A person must not deposit anything in any work that is owned by, or is under the control and management of, the Minister, the Ministerial Corporation, a water supply authority, an irrigation corporation, a private water corporation or a private water trust.
Tier 2 penalty.
(3)  A person is not guilty of an offence against this section if the person establishes that the act giving rise to the alleged offence was done with lawful authority.
s 342: Am 2001 No 56, Sch 1.22 [27]; 2002 No 138, Schs 2 [35] [36], 4 [18]; 2004 No 39, Sch 5 [11]. Subst 2008 No 73, Sch 1 [8]. Am 2010 No 133, Sch 2[62].
343   Taking water from public or private works
(1)  A person must not take water from any water supply work that is owned by, or is under the control and management of, the Minister, the Ministerial Corporation, a water supply authority, an irrigation corporation, a private water corporation or a private water trust, except with the authority of the Minister, that corporation, authority or trust.
Tier 2 penalty.
(2)  A person is not guilty of an offence against this section if the person establishes that the act giving rise to the alleged offence was done with lawful authority.
(3)  In subsection (1), a reference to a water supply work, in relation to a water supply authority, is a reference to a water supply work within the meaning of Part 2 of Chapter 6.
s 343: Am 2002 No 138, Schs 2 [37] [38], 4 [19]; 2004 No 39, Sch 5 [11]. Subst 2008 No 73, Sch 1 [8]. Am 2010 No 133, Sch 2[63] [64].
344   False or misleading information
A person must not, in or in connection with any application under this Act or the regulations, make a statement that the person knows to be false or misleading in a material particular.
Tier 2 penalty.
s 344: Am 2001 No 56, Sch 1.22 [28]; 2002 No 138, Sch 4 [20]–[23]. Subst 2008 No 73, Sch 1 [8].
345   Harm to aquifers and waterfront land
(1)  A person who harms an aquifer or waterfront land, and does so intentionally or negligently, is guilty of an offence.
Tier 1 penalty.
(2)  A person who harms an aquifer or waterfront land is guilty of an offence.
Tier 2 penalty.
(3)  It is a defence to a prosecution under this section if the accused person establishes that the conduct that harmed the aquifer or waterfront land—
(a)  was essential for the carrying out of—
(i)  development in accordance with a development consent within the meaning of the Environmental Planning and Assessment Act 1979, or
(ii)  an activity by a determining authority within the meaning of Part 5 of that Act if the determining authority has complied with that Part, or
(iii)  an activity in accordance with an approval of a determining authority within the meaning of Part 5 of that Act if the determining authority has complied with that Part, or
(iv)  a project approved under Part 3A of that Act, or
(v)  infrastructure approved under Part 5.1 of that Act, or
(b)  was authorised to be done by or under the State Emergency and Rescue Management Act 1989 or the State Emergency Service Act 1989 and was reasonably necessary in order to avoid a threat to life or property, or
(c)  was authorised to be done by or under the Rural Fires Act 1997 in relation to any emergency fire fighting act within the meaning of that Act.
(4)  In this section, harm, in relation to an aquifer or waterfront land, means any act or omission that adversely affects, the capacity of the aquifer or waterfront land to hold or carry water.
s 345: Am 2004 No 39, Sch 2 [7]. Subst 2008 No 73, Sch 1 [8]. Am 2009 No 56, Sch 1.44 [20] [21]; 2011 No 22, Sch 2.30.
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