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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Landscape South Australia
Bill 2019
A BILL FOR
An Act to promote sustainable and integrated management of the State's
landscapes, to make provision for the protection of the State's natural
resources, to repeal the
Natural
Resources Management Act 2004
and to make consequential amendments to other Acts, and for other
purposes.
Contents
5Territorial and extra-territorial operation of
Act
Division 2—Objects, principles and
general statutory duties
Division 2—Landscape
regions and boards
Subdivision 1—Establishment
of regions
Subdivision 2—Establishment of
regional landscape boards
Subdivision 3—Membership
of boards
16Qualifications for
membership
21Conflict of interest under Public Sector
(Honesty and Accountability) Act
Subdivision 4—Procedures at
meetings
Subdivision 5—Functions of boards
(general)
23Functions of boards (general)
Subdivision 6—Functions of Green
Adelaide Board (additional provisions)
24Green Adelaide Board (priority
areas)
Subdivision 7—Funding and
grants
Subdivision 8—Powers of
boards
28Special powers to carry out
works
29Entry and occupation of
land
30Special vesting of
infrastructure
31Landscapes affecting
activities control policies
Subdivision 10—Committees
and other bodies
Subdivision 11—Power of
delegation
Subdivision 12—Accounts, audit and
reports
Subdivision 13—Related
matters
40Assignment of responsibility for
infrastructure to another person or body
41Appointment of
administrator
Part 3—State
Landscape Strategy
Part 4—Regional
and water allocation plans
Division 1—Regional
landscape plans and business plans
44Preparation of regional landscape
plans
47Consultation associated with preparation of a
plan or amendment
Division 2—Water
allocation plans
50Preparation of water
allocation plans
53Consultation associated with preparation of a
plan or amendment
58Promotion of River Murray legislation and
IGA
59Associated Ministerial consents
60Amendment of plans
without formal procedures
61Plans may confer discretionary
powers
62Effect of declaration of
invalidity
63Time for preparation and review of
plans
Part 5—Landscape
and water levies
Division 1—Levies
in respect of land
64Contributions by
constituent councils
65Payment of contributions by
councils
66Funds may be expended in subsequent
years
67Imposition of levy by
councils
Subdivision 2—Outside
council areas
70Liability and payment of levy
Subdivision 3—Related
provisions
Division 2—Levies
in respect of water
76Notice of liability for
levy
77Determination of
quantity of water taken
78Cancellation etc of entitlement for
non-payment of levy
79Costs associated with
collection
83Recovery rights with respect to unpaid
levy
84Sale of land for
non-payment of a levy
86Declaration of penalty
in relation to unauthorised or unlawful taking of water
87Appropriation of levies,
penalties and interest
Division 1—The
Landscape Administration Fund
88The Landscape
Administration Fund
Division 2—The
Landscape Priorities Fund
91The Landscape Priorities
Fund
Division 3—Regional landscape board
funds
94Regional landscape board funds
Part 7—Management
and protection of land
96Special provisions
relating to land
97Requirement to
implement action plan
Part 8—Management
and protection of water resources
Division 1—General
rights in relation to water
98Right to take water subject to certain
requirements
99Declaration of
prescribed water resources
Division 2—Control
of activities affecting water
Subdivision 1—Water affecting
activities control policies
100Water affecting activities
control policies
Subdivision 2—Determination of
relevant authority
101Determination of
relevant authority
Subdivision 3—Control
of activities
103Certain uses of water
authorised
104Activities not
requiring a permit
105Notice to rectify
unauthorised activity
106Notice to maintain
watercourse or lake
107Restrictions in case
of inadequate supply or overuse of water
108Specific duty with
respect to damage to a watercourse or lake
109Minister may direct
removal of dam etc
111Requirement for notice
of certain applications
112Refusal of permit to drill
well
Subdivision 5—Provisions
relating to wells
115Non-application of certain
provisions
117Obligation to maintain
well
118Requirement for
remedial or other work
Division 3—Licensing
and associated rights and entitlements
120Water
licences—applications and matters to be considered
122Variation of water licences
124Surrender of water
licences
Subdivision 2—Allocation
of water
126Issuing of water allocation
127Water allocations—matters to be
considered
128Reduction of water
allocation
129Variation of water
allocations
130Transfer of water allocations
131Surrender of water allocations
Subdivision 3—Water
resource works approvals
132Water resource works
approvals—applications and matters to be considered
136Cancellation if works not constructed or
used
Subdivision 4—Site
use approval
139Site use approvals—applications and
matters to be considered
Subdivision 5—Delivery
capacity entitlements
146Delivery capacity
entitlements—applications and matters to be considered
147Issuing of delivery capacity
entitlements
148Delivery capacity entitlements to relate to
point of extraction
149Variation of delivery capacity
entitlements
150Transfer of delivery capacity
entitlements
151Surrender of delivery capacity
entitlements
Subdivision 6—Interstate
agreements
153Allocation on
declaration of prescribed water resource
154Schemes to promote the
transfer or surrender of certain entitlements
155Consequences of breach of
water management authorisations
156Effect of cancellation of water management
authorisations
Division 4—Reservation
of excess water by Minister
158Reservation of excess
water in a water resource
159Allocation of reserved
water
160Public notice of allocation of reserved
water
Division 5—Water conservation
measures
161Water conservation
measures
Division 6—Commercial
forestry
163Declaration of
forestry areas
170Establishment of licence
on declaration of areas
Division 7—Interaction with
Irrigation Acts
174Interaction with Irrigation
Act 2009
175Interaction with
Renmark Irrigation Trust Act 2009
176Effect of water use on
ecosystems
177Activities relating to Murray-Darling
Basin
178Consultation with Minister responsible for
River Murray Act 2003
179Representations by SA Water
180Water recovery and other rights subject to
board's functions and powers
181Water management authorisation is not
personal property for the purposes of Commonwealth Act
182Law governing decisions under this
Part
Part 9—Control of
animals and plants
Subdivision 1—Specific
controls
184Movement of animals or
plants
185Possession of animals
or plants
186Sale of animals or
plants, or produce or goods carrying animals or plants
187Offence to release
animals or plants
188Notification of
presence of animals or plants
189Requirement to confine
certain animals or plants
190Owner of land to take
action to destroy or control animals or plants
192Boards may recover certain costs from owners
of land adjoining road reserves
193Destruction or control
of animals outside the dog fence by poison and traps
194Ability of Minister to
control or quarantine any animal or plant
197Offence to damage
certain fences
198Offence to leave gates open
199Protection of certain
vegetation and habitats
Division 1—Authorised
officers
202Powers of authorised
officers
203Provisions relating to seizure
204Hindering etc persons
engaged in the administration of this Act
Subdivision 1—Orders
issued by landscape boards
206Action on non-compliance with a protection
order
208Action on non-compliance with a reparation
order
Subdivision 2—Orders
made by ERD Court
215Operation and implementation of decisions or
orders subject to appeal
216Powers of Court on determination of
appeals
218Avoidance of duplication of procedures
etc
220Service of notices or other
documents
221Publication of notices by
Minister
223Compulsory acquisition of land
227False or misleading
information
228Interference with
works or other property
229Criminal jurisdiction of Court
232Offences by bodies
corporate
233Additional orders on
conviction
235Constitution of Environment, Resources and
Development Court
237Determination of costs and
expenses
238Minister may apply assumptions and other
information
241Damage caused by non-compliance with a
notice etc
242Recovery of technical costs associated with
contraventions
243Delegation by Chief Executive
244Incorporation of codes and
standards
Schedule 2—Activities
control policies
3Preparation of a policy or
amendment
Schedule 3—Classes
of wells in relation to which a permit is not required
3Minister's power to require
information
4Form of record and management of
register
7Special arrangement as
to transfers
Part 3—Registration of security
interests
8Creation of security interests
10Variation of registered security
interests
12Discharge of registered
interests
13Enforcement of security
interests
16Recording monetary
consideration
18Cancellation of registration
19Address for service of notices
Schedule 5—Related amendments,
repeals and transitional provisions
Part 2—Amendment of Adelaide Park
Lands Act 2005
2Amendment of section 25—Provisions
relating to specific land
Part 3—Amendment of Crown Land
Management Act 2009
3Amendment of section 12—Management
plans
Part 4—Amendment of Development
Act 1993
4Amendment of section 24—Council or
Minister may amend a Development Plan
Part 5—Amendment of Dog and Cat
Management Act 1995
5Amendment of 63—Power to destroy
cats
6Amendment of section 64D—Notification to
owner of dog or cat destroyed etc under Part
Part 6—Amendment of Dog Fence
Act 1946
7Amendment of section 6—Members of
board
Part 7—Amendment of Environment
Protection Act 1993
9Amendment of section 46—Notice and
submissions in respect of proposed variations of conditions
10Amendment of section 47—Criteria for
grant and conditions of environmental authorisations
11Amendment of section
61—Interpretation
12Amendment of section 62—Appointment of
authorised officers by the Water Resources Minister
13Amendment of section 64—Certain matters
to be referred to Water Resources Minister
14Amendment of section 93—Environment
protection orders
15Amendment of section 99—Clean-up
orders
16Amendment of section 103H—Site
contamination assessment orders
17Amendment of section 103J—Site
remediation orders
Part 8—Amendment of Farm Debt
Mediation Act 2018
18Amendment of section
4—Interpretation
Part 9—Amendment of Fire and
Emergency Services Act 2005
19Amendment of section 71—State Bushfire
Coordination Committee
20Amendment of section 72—Establishment
of bushfire management areas
21Amendment of section 73—State Bushfire
Management Plan
22Amendment of section 73A—Bushfire
Management Area Plans
Part 10—Amendment of Groundwater
(Border Agreement) Act 1985
23Amendment of section 12—Bores for
observation and providing data
Part 11—Amendment of Ground Water
(Qualco-Sunlands) Control Act 2000
24Amendment of section
3—Interpretation
25Amendment of section 40—Waterlogging
and salinity risk management allocation
26Amendment of section 43—Request for
increase in, or for a new, risk management allocation
27Amendment of section
62—Permits
28Substitution of heading to Part
9
29Amendment of section 66—Exclusion of
section 102 of the Landscape South Australia Act 2019
31Amendment of section 68—Lower levy for
certain irrigated properties
32Amendment of section 69—Scheme to be
acknowledged for levy refund purposes
Part 12—Amendment of Irrigation
Act 2009
33Amendment of section
3—Interpretation
34Amendment of section 14—Dissolution on
application
35Amendment of section 15—Dissolution on
Minister's initiative
36Amendment of section 23—Functions of
trusts
37Amendment of section 29—Fixing of
irrigation rights
38Amendment of section 30—Surrender or
transfer of water available under irrigation rights
39Amendment of section 32—Transformation
of irrigation rights
40Amendment of section 33—Trust may
determine to devolve water licence
41Amendment of section 35—Power to
restrict supply or to reduce water made available by trust
42Amendment of section 40—Protection and
facilitation of systems
43Amendment of section 59—Protection from
liability
44Amendment of Schedule 1—Transitional
provisions
Part 13—Amendment of Local
Government Act 1999
45Amendment of Schedule 1A—Implementation
of Stormwater Management Agreement
Part 14—Amendment of Marine Parks
Act 2007
46Amendment of section 13—General nature
and content of management plans
Part 15—Amendment of Mining
Act 1971
47Amendment of section 10B—Interaction
with other legislation
48Amendment of section 70A—Object of
Part
Part 16—Amendment of National
Parks and Wildlife Act 1972
49Amendment of section
75A—Defence
Part 17—Amendment of Native
Vegetation Act 1991
50Amendment of section
3—Interpretation
51Amendment of section 8—Membership of
the Council
52Amendment of section 14—Functions of
the Council
54Amendment of section 29—Provisions
relating to consent
55Amendment of Schedule 1—Principles of
native vegetation clearance
Part 18—Amendment of Parliamentary
Committees Act 1991
56Amendment of section 15L—Functions of
Committee
Part 19—Amendment of Pastoral Land
Management and Conservation Act 1989
57Amendment of section 5—Duty of the
Minister and the Board
58Amendment of section 22—Conditions of
pastoral leases
59Amendment of section
23—Rent
60Amendment of section 41—Property
plans
61Amendment of section 43—Notices to
destock or take other action
62Amendment of section 45—Establishment
of public access routes and stock routes
63Amendment of section 59—Right to take
water
Part 20—Amendment of Petroleum and
Geothermal Energy Act 2000
64Amendment of section 6A—Interaction
with other legislation
65Amendment of section
95—Objects
Part 21—Amendment of Renmark
Irrigation Trust Act 2009
66Amendment of section
3—Interpretation
67Amendment of section 24—Functions of
trust
68Amendment of section 30—Fixing of
irrigation rights
69Amendment of section 31—Surrender or
transfer of water available under irrigation rights
70Amendment of section 33—Transformation
of irrigation rights
71Amendment of section 34—Trust may
determine to devolve water licence
72Amendment of section 36—Power to
restrict supply or to reduce water made available
73Amendment of section 41—Protection and
facilitation of systems
74Amendment of section 57—Dissolution on
application
75Amendment of section 58—Dissolution on
Minister's initiative
76Amendment of section 64—Protection from
liability
Part 22—Amendment of Residential
Parks Act 2007
77Amendment of section
3—Interpretation
Part 23—Amendment of Residential
Tenancies Act 1995
78Amendment of section
3—Interpretation
Part 24—Amendment of River Murray
Act 2003
79Amendment of section 5—Interaction with
other Acts
80Amendment of section 18—Management
agreements
81Amendment of section 21—Implementation
Strategy
Part 25—Amendment of Safe Drinking
Water Act 2011
82Amendment of section
3—Interpretation
Part 26—Amendment of South Eastern
Water Conservation and Drainage Act 1992
83Amendment of section 17—Functions of
Board
Part 27—Amendment of Subordinate
Legislation Act 1978
84Amendment of section 16A—Regulations to
which this Part applies
Part 28—Amendment of Water
Industry Act 2012
85Amendment of section 86P—Principles to
be taken into account
Part 29—Repeal of Natural
Resources Management Act 2004
Part 30—Transitional and other
provisions
88Establishment of regions
and boards
Division 5—Levies, penalties,
interest and other fees
95Outstanding levies, penalties, interest or
other fees
100Continuation of authorisations, notices and
other measures
101Bundled water allocation plans and water
licences
105Minister may make provision for assignment
of responsibilities and modifications of plans
109Continuation of other plans, notices,
permits and orders
111Constitution of Environment, Resources and
Development Court
112References to Planning and Design
Code
113NRM Register and The Water
Register
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Landscape South Australia
Act 2019.
This Act will come into operation on a day to be fixed by
proclamation.
(1) In this Act, unless the contrary intention appears—
animal means a live vertebrate or invertebrate animal and
includes the eggs or semen of such an animal, but does not include any animal of
a class excluded from the ambit of this definition by the regulations;
animal-proof fence means a fence that complies with the
prescribed requirements for an animal-proof fence;
annual business plan means the annual business plan of a
regional landscape board under
section 49
;
annual value means annual value as defined in the
Valuation
of Land Act 1971
;
appointed member, of a regional landscape board, means a
person appointed to the board by the Minister under
section 15
;
approved account means an account designated by the Minister
as an approved account for the purposes of this Act, or a specified provision of
this Act;
authorised officer means a person appointed as an authorised
officer under
Part 10
;
biological diversity or biodiversity means the
variety of life forms represented by plants, animals and other organisms and
micro-organisms, the genes that they contain, and the ecosystems and ecosystem
processes of which they form a part;
business day means any day except—
(a) a Saturday, Sunday or public holiday; or
(b) a day which falls between 25 December and 1 January in the following
year;
capital value means capital value as defined in the
Valuation
of Land Act 1971
;
channel includes—
(a) a drain, gutter or pipe; and
(b) part of a channel;
Chief Executive means the Chief Executive of the Department
and includes a person for the time being acting in that position;
commercial forest means a forest plantation where the forest
vegetation is grown or maintained so that it can be harvested or used for
commercial purposes (including through the commercial exploitation of the carbon
absorption capacity of the forest vegetation);
constituent council means, in relation to a regional
landscape board, or the region of a regional landscape board, a council whose
area, or part of whose area, comprises or is included in the region of the
regional landscape board;
construct includes erect, alter, reduce, enlarge, repair or
excavate;
consumptive pool means the water that will from time to time
be taken to constitute the resource within a particular part of a prescribed
water resource for the purposes of
Part 8
, as determined—
(a) by or under a water allocation plan for that water resource;
or
(b) in prescribed circumstances—by the Minister;
control means—
(a) in relation to a particular class of animals, any of the
following:
(i) destroy the animals and their warrens, burrows, nests or harbours
(whether occupied or not);
(ii) reduce the extent to which land is inhabited or subject to
infestation by the animals;
(iii) undertake any other prescribed action,
as far as is reasonably achievable;
(b) in relation to a particular class of plants, any of the
following:
(i) destroy the plants;
(ii) reduce and inhibit the propagation of the plants;
(iii) prevent the spread of the plants;
(iv) undertake any other prescribed action,
as far as is reasonably achievable;
council means a council within the meaning of the
Local
Government Act 1999
;
council subsidiary means a subsidiary established under
Schedule 2 of the
Local
Government Act 1999
;
CPI means the Consumer Price Index (All groups index for
Adelaide);
declared forestry area means a declared forestry area under
section 163
;
delivery capacity entitlement means a delivery capacity
entitlement issued under
Part 8 Division 3
Subdivision 5
;
Department means the administrative unit designated from time
to time by the Minister by notice in the Gazette as being the Department
primarily responsible for assisting a Minister in the administration of this
Act;
designated entity for
Part 4
Division 2
or
Division 3
, or
Part 8
—see
section 50
;
dingo includes an animal that is a cross of a
dingo;
dog fence means the primary dog fence established under the
Dog
Fence Act 1946
;
domestic activity means an activity undertaken for a domestic
purpose;
domestic partner means a person who is a domestic partner
within the meaning of the
Family
Relationships Act 1975
, whether declared as such under that Act or not;
domestic purpose in relation to the taking of water does not
include—
(a) taking water
for the purpose of watering or irrigating land, other than land used solely in
connection with a dwelling; or
(b) without limiting
paragraph (a)
—taking water for the purpose of watering or irrigating more than 0.4
of a hectare of land; or
(c) taking water to be used in carrying on a business (except for the
personal use of persons employed in the business);
domestic wastewater means—
(a) water used in the disposal of human waste; and
(b) water used for personal washing; and
(c) water used for washing clothes or dishes; and
(d) water used in a swimming pool;
to drill in relation to a well means to drill the well or to
excavate the well in any other manner and includes to deepen or widen an
existing well;
ecosystem means a dynamic complex of plant, animal and
micro-organism communities and their non-living environment interacting as a
functional unit;
effluent means domestic wastewater or industrial
wastewater;
elected member, of a regional landscape board, means a person
elected to the board under
section 15(1)(b)
;
eligible elector, in relation to an election of members of a
regional landscape board, means a person who, according to the scheme prescribed
by the regulations under
section 17
, is recognised as an eligible elector for the purposes of the
election;
ERD Court means the Environment, Resources and Development
Court established under the
Environment,
Resources and Development Court Act 1993
;
estuary means a partially enclosed coastal body of water that
is permanently, periodically, intermittently or occasionally open to the sea
within which there is a measurable variation in salinity due to the mixture of
seawater with water derived from or under the land;
floodplain means any area of land adjacent to a watercourse,
lake or estuary that is periodically inundated with water and includes any other
area designated as a floodplain—
(a) by a regional landscape plan, a water allocation plan or a water
affecting activities control policy; or
(b) by the Planning and Design Code under the
Planning,
Development and Infrastructure Act 2016
;
forest vegetation means trees and other forms of forest
vegetation including—
(a) roots or other parts of the trees or other forest vegetation that lie
beneath the soil; and
(b) leaves, branches or other parts or products of trees or other forest
vegetation;
forest water licence means a licence granted by the Minister
under
Part 8
Division 6
;
general manager means the general manager of a regional
landscape board and includes a person acting in the office of general
manager;
general rate means a general rate under section 152 of the
Local
Government Act 1999
;
general statutory duty means the duty under
section 8
;
industrial wastewater means water (not being domestic
wastewater) that has been used in the course of carrying on a business
(including water used in the watering or irrigation of plants) that has been
allowed to run to waste or has been disposed of or has been collected for
disposal;
infrastructure includes—
(a) artificial lakes; and
(b) dams or reservoirs; and
(c) embankments, walls, channels or other works or earthworks;
and
(d) bridges and culverts; and
(e) buildings or structures; and
(f) roads; and
(g) pipes, machinery or other plant or equipment; and
(h) any device; and
(i) any item or thing used in connection with—
(i) testing, monitoring, protecting, enhancing or re-establishing any
natural resource, or any aspect of a natural resource; or
(ii) any other program or initiative associated with the management of a
natural resource; and
(j) other items brought within the ambit of this definition by the
regulations;
intensive farming means a method of keeping animals in the
course of carrying on the business of primary production in which the animals
are usually confined to a small space or area and usually fed by hand or by a
mechanical means;
Interstate Water Entitlements Transfer Scheme or
IWETS means—
(a) a scheme for the transfer of entitlements between 2 or more States
under the Murray-Darling Basin Agreement; or
(b) an agreement between South Australia and 1 or more other States or a
Territory entered into under
section 152
;
keep in captivity—an animal is kept in captivity if it
is held in a building or enclosure with security measures designed to ensure
that the animal cannot escape (other than in circumstances that cannot be
reasonably foreseen and guarded against);
lake means a natural lake, pond, lagoon, wetland or spring
(whether modified or not) and includes—
(a) part of a lake; and
(b) a body of water designated as a lake—
(i) by a regional landscape plan, a water allocation plan or a water
affecting activities control policy; or
(ii) by the Planning and Design Code under the
Planning,
Development and Infrastructure Act 2016
;
land means, according to the context—
(a) land as a physical entity, including land under water; or
(b) any legal estate or interest in, or right in respect of,
land,
and includes any building or structure fixed to land;
landscape or landscapes—see
subsection (2)
;
Landscape Administration Fund means the Landscape
Administration Fund established under
Part 6
Division 1
;
landscape management region or region means a
landscape management region established under
Part 2
Division 2 Subdivision 1
;
Landscape Priorities Fund means the Landscape Priorities Fund
established under
Part 6
Division 2
;
landscapes affecting activities control policy means a
landscapes affecting activities control policy prepared by a regional landscapes
board under
section 31
;
LGA means the Local Government Association of South
Australia;
licensed well driller means a person who holds a licence
under
Part 8
to drill wells;
management agreement means an agreement under
Part 12
;
management zone means an area identified in a water
allocation plan as a management zone for the purpose of managing resource
conditions and impacts associated with the take, extraction or use of water in,
or in association with, that area;
Mining Act means any of the following:
(a) the
Mining
Act 1971
, the
Opal
Mining Act 1995
, the
Petroleum
and Geothermal Energy Act 2000
or the
Petroleum
(Submerged Lands) Act 1982
;
(b) the
Cooper
Basin (Ratification) Act 1975
, the
Roxby
Downs (Indenture Ratification) Act 1982
or the
Stony
Point (Liquids Project) Ratification Act 1981
;
(c) any other Act relating to the production, recovery, management,
conveyance or delivery of minerals brought within the ambit of this definition
by the regulations;
Mount Lofty Ranges Watershed means the area prescribed by
regulation for the purposes of this definition;
Murray-Darling Basin has the same meaning as in the Water
Act 2007 of the Commonwealth;
Murray-Darling Basin Agreement means the Murray-Darling Basin
Agreement, a copy of which is set out in Schedule 1 of the Water
Act 2007 of the Commonwealth, as in force from time to time;
native animal means a protected animal within the meaning of
the
National
Parks and Wildlife Act 1972
and any species included in Schedule 10 of that Act, but does not include
a dingo or any other animal of a class excluded from the ambit of this
definition by the regulations;
native vegetation has the same meaning as in the
Native
Vegetation Act 1991
;
natural resources includes—
(a) land and soil; and
(b) water resources; and
(c) geological features; and
(d) native vegetation, native animals and other native organisms;
and
(e) ecosystems;
occupier of land means a person who has, or is entitled to,
possession or control of the land (other than a mortgagee in possession unless
the mortgagee has assumed active management of the land), or who is entitled to
use the land as the holder of native title in the land;
OC levy means a levy declared under
section 69
;
owner of land means—
(a) if the land is unalienated from the Crown—the Crown;
or
(b) if the land is alienated from the Crown by grant in fee
simple—the owner (at law or in equity) of the estate in fee simple; or
(c) if the land is held from the Crown by lease or licence—the
lessee or licensee, or a person who has entered into an agreement to acquire the
interest of the lessee or licensee; or
(d) if the land is held from the Crown under an agreement to
purchase—the person who has the right to purchase; or
(e) a person who holds native title in the land; or
(f) a person who has arrogated to themselves (lawfully or unlawfully) the
rights of an owner of the land,
and includes an occupier of the land and any other person of a prescribed
class included within the ambit of this definition by the regulations;
pastoral land means land of the Crown that is subject to a
pastoral lease;
plant means vegetation of any species and includes the seeds
and any part of any such vegetation, or any other form of plant material, but
does not include any vegetation or material excluded from the ambit of this
definition by the regulations;
prescribed lake means a lake declared to be a prescribed lake
under
section 99
;
prescribed watercourse means a watercourse declared to be a
prescribed watercourse under
section 99
;
prescribed water resource includes underground water to which
access is obtained by prescribed wells;
prescribed well means a well declared to be a prescribed well
under
section 99
;
private land means land that is not—
(a) dedicated land within the meaning of the
Crown
Land Management Act 2009
; or
(b) unalienated land of the Crown; or
(c) vested in or under the care, control or management of an agency or
instrumentality of the Crown; or
(d) vested in or under the care, control or management of a
council;
public authority means—
(a) a Minister; or
(b) an agency or instrumentality of the Crown; or
(c) a council or council subsidiary;
rateable land means rateable land under the
Local
Government Act 1999
;
record means—
(a) a documentary record; or
(b) a record made by an electronic, electro-magnetic, photographic or
optical process; or
(c) any other kind of record;
regional landscape board means a body established under
Part 2
Division 2
;
regional landscape levy means a levy imposed by a council
under
section 67
;
regional landscape plan means a regional landscape plan
prepared by a regional landscape board under
Part 4
Division 1
;
repealed Act means the
Natural
Resources Management Act 2004
;
River Murray has the same meaning as in the
River
Murray Act 2003
;
River Murray Protection Area means a River Murray Protection
Area under the
River
Murray Act 2003
;
road reserve means land set aside for the purposes of a
public road, whether or not it is being used for that purpose;
SA Water means the South Australian Water
Corporation;
Schedule 4 entitlement means—
(a) a water licence; or
(b) a water access entitlement (or part of a water access entitlement);
or
(c) a forest water licence; or
(d) a water allocation (or part of a water allocation); or
(e) a delivery capacity entitlement;
security interest means a mortgage or charge over, or other
arrangement of a kind prescribed by the regulations in respect of, a water
management authorisation or a forest water licence that secures the payment of a
debt or the performance of some other obligation under a contract or other
legally enforceable arrangement;
sell includes—
(a) barter, offer or attempt to sell; and
(b) receive for sale; and
(c) have in possession for sale; and
(d) cause or permit to be sold or offered for sale; and
(e) send, forward or deliver for sale; and
(f) dispose of by any method for valuable consideration; and
(g) dispose of to an agent for sale on consignment; and
(h) sell for the purposes of resale;
site use approval means a site use approval issued under
Part 8 Division 3
Subdivision 4
;
site value means site value as defined in the
Valuation
of Land Act 1971
;
spouse—a person is the spouse of another if they are
legally married;
State includes any part of the sea—
(a) that is within the limits of the State; or
(b) that is from time to time included in the coastal waters of the State
by virtue of the Coastal Waters (State Powers) Act 1980 of the
Commonwealth;
State Landscape Strategy means the strategy prepared under
Part 3
;
stormwater infrastructure means infrastructure established
for the purposes of stormwater management;
surface water means—
(a) water flowing
over land (except in a watercourse)—
(i) after having fallen as rain or hail or having precipitated in any
other manner; or
(ii) after rising to the surface naturally from underground; or
(b) water of the kind referred to in
paragraph (a)
that has been collected in a dam or reservoir; or
(c) water of the kind referred to in
paragraph (a)
that is contained in any stormwater infrastructure; or
(d) in relation to a surface water prescribed area—water in a
prescribed watercourse if the watercourse, or a particular part of a
watercourse, is declared by a water allocation plan as forming part of the
surface water prescribed area;
surface water prescribed area means a part of the State
declared to be a surface water prescribed area under
section 99
(including, if relevant, any stormwater infrastructure within that
area);
to take water from a water resource includes—
(a) to take water by pumping or syphoning the water; and
(b) to stop, impede or divert the flow of water over land (whether in a
watercourse or not) for the purpose of collecting the water; and
(c) to stop, impede or direct the flow of water in any stormwater
infrastructure for the purpose of collecting the water, or to extract any water
from stormwater infrastructure; and
(d) to divert the flow of water in a watercourse from the watercourse;
and
(e) to release water from a lake; and
(f) to permit water to flow under natural pressure from a well;
and
(g) to permit stock to drink from a watercourse, a natural or artificial
lake, a dam or reservoir; and
(h) to cause, permit or suffer any activity referred to in a preceding
paragraph;
underground water means—
(a) water occurring naturally below ground level; or
(b) water pumped, diverted or released into a well for storage
underground;
vehicle includes any—
(a) vessel or craft; and
(b) plant or equipment designed to be moved or operated by a
driver;
water access entitlement—see
section 119(2)
;
water affecting activities control policy means a water
affecting activities control policy prepared by a regional landscape board under
section 100
;
water allocation—
(a) in respect of a water licence, means an allocation of water under the
terms of the licence in accordance with
Part 8 Division 3
Subdivision 2
and includes, if the context so requires, a component or part of such an
allocation, or the water available in connection with the entitlement;
and
(b) in respect of an Interstate Water Entitlements Transfer Scheme, means
an allocation of water under the terms of that scheme and the provisions of
Part 8 Division 3
Subdivision 2
and includes, if the context so requires, a component or part of such an
allocation, or the water available in connection with the entitlement;
and
(c) in respect of water taken pursuant to an authorisation under
section 103
means the maximum quantity of water that can be taken and used pursuant to
the authorisation; and
(d) in respect of a forest water licence means the water allocation
attached to the licence;
water allocation plan means a water allocation plan prepared
under
Part 4
Division 2
;
watercourse means a river, creek or other natural watercourse
(whether modified or not) in which water is contained or flows whether
permanently or from time to time and includes—
(a) a dam or reservoir that collects water flowing in a watercourse;
and
(b) a lake through which water flows; and
(c) a channel (but not a channel declared by regulation to be excluded
from the ambit of this definition) into which the water of a watercourse has
been diverted; and
(d) part of a watercourse; and
(e) an estuary through which water flows; and
(f) any other natural resource, or class of natural resource, designated
as a watercourse for the purposes of this Act by a regional landscape plan, a
water allocation plan or a water affecting activities control policy;
water levy means a levy declared under
section 74
;
water licence means a licence granted by the Minister under
section 119
;
water management authorisation means—
(a) a water licence; or
(b) a water allocation; or
(c) a site use approval; or
(d) a water resource works approval; or
(e) a delivery capacity entitlement;
The Water Register—see
section 239
;
water resource means a watercourse or lake, surface water,
underground water, stormwater (to the extent that it is not within a preceding
item) and effluent;
water resource works approval means a water resource works
approval issued under
Part 8 Division 3
Subdivision 3
;
well means—
(a) an opening in the ground excavated for the purpose of obtaining access
to underground water; or
(b) an opening in the ground excavated for some other purpose but that
gives access to underground water; or
(c) a natural opening in the ground that gives access to underground
water;
wetland means an area that comprises land that is permanently
or periodically inundated with water (whether through a natural or artificial
process) where the water may be static or flowing and may range from fresh water
to saline water and where the inundation with water influences the biota or
ecological processes (whether permanently or from time to time) and includes any
other area designated as a wetland—
(a) by a regional landscape plan, a water allocation plan or a water
affecting activities control policy; or
(b) by the Planning and Design Code under the
Planning,
Development and Infrastructure Act 2016
,
but does not include—
(c) a dam or reservoir that has been constructed by a person wholly or
predominantly for the provision of water for primary production or human
consumption; or
(d) an area within an estuary or within any part of the sea; or
(e) an area excluded from the ambit of this definition by the
regulations;
works means—
(a) dams or reservoirs;
(b) wells or channels;
(c) pumps, pumping stations, pipes or tanks;
(d) drains, machinery or other plant or equipment;
(e) other forms of structures or apparatus;
(f) other items brought within the ambit of this definition by the
regulations,
whether on, above or under land, but does not include any items excluded
from the ambit of this definition by the regulations.
(2) For the purposes of
this Act, a landscape or landscapes comprise—
(a) natural and physical features, including coasts and seas;
and
(b) natural resources; and
(c) human values and uses related to interaction with the environment,
including environmental, social, cultural and economic values;
(3) For the purposes of this Act—
(a) a reference to land in the context of the physical entity includes all
aspects of land, including the soil, organisms and other components and
ecosystems that contribute to the physical state and environmental, social,
cultural and economic value of land; and
(b) a reference to a water resource includes all aspects of a water
resource, including the water, organisms and other components and ecosystems
that contribute to the physical state and environmental, social, cultural and
economic value of a water resource.
(4) For the purposes of this Act—
(a) a reference to a watercourse is a reference to either—
(i) the bed and banks of the watercourse (as they may exist from time to
time); or
(ii) the water for the time being within the bed and banks of the
watercourse (as they may exist from time to time),
or both, depending on the context;
(b) a reference to a lake is a reference to either—
(i) the bed, banks and shores of the lake (as they may exist from time to
time); or
(ii) the water for the time being held by the bed, banks and shores of the
lake (as they may exist from time to time),
or both, depending on the context.
(5) For the purposes of this Act, a reference to an estuary may include,
according to the context, a reference to—
(a) any ecosystem processes or biodiversity associated with an estuary;
and
(b) estuarine habitats adjacent to an estuary.
(6) A reference in this Act to varying a water management authorisation
(in any of its forms) includes a reference to varying the conditions attached to
the particular water management authorisation.
(7) The conditions of an authorisation or permit under this Act may be
varied by the addition, substitution or deletion of 1 or more
conditions.
(8) For the purposes of this Act, native vegetation is cleared (or would
be cleared) if the relevant activity constitutes (or would constitute) clearance
of the native vegetation under the
Native
Vegetation Act 1991
.
(9) A regulation, regional landscape plan, water allocation plan or water
affecting activities control policy, or the Planning and Design Code under the
Planning,
Development and Infrastructure Act 2016
, may make a designation for the purposes of a definition under this
section by the use of a map or maps prescribed by the regulation or included in
the plan (as the case may be).
(10) For the
purposes of this Act, a person is an associate of another
if—
(a) they are partners; or
(b) one is a spouse, domestic partner, parent or child of another;
or
(c) they are both trustees or beneficiaries of the same trust, or one is a
trustee and the other is a beneficiary of the same trust; or
(d) one is a body corporate or other entity (whether inside or outside
Australia) and the other is a director or member of the governing body of the
body corporate or other entity; or
(e) one is a body corporate or other entity (whether inside or outside
Australia) and the other is a person who has a legal or equitable interest in 5%
or more of the share capital of the body corporate or other entity; or
(f) they are related bodies corporate within the meaning of the
Corporations Act 2001 of the Commonwealth; or
(g) a chain of relationships can be traced between them under any one or
more of the preceding paragraphs.
(11) For the purposes of
subsection (10)
, a beneficiary of a trust includes an object of a
discretionary trust.
(1) Except where the contrary intention is expressed in this or any other
Act, this Act is in addition to and does not limit or derogate from the
provisions of any other Act.
(2) This Act is subject to the following Acts and agreements:
(a) the Murray-Darling Basin Agreement;
(b) the Border Groundwater Agreement (as amended from time to time)
approved by the
Groundwater
(Border Agreement) Act 1985
;
(c) the Lake Eyre Basin Intergovernmental Agreement (as amended from time
to time) ratified and approved under the
Lake
Eyre Basin (Intergovernmental Agreement) Act 2001
;
(d) the indenture (as amended from time to time) ratified and approved by
the
Roxby
Downs (Indenture Ratification) Act 1982
.
(3)
Section 8
and
Part 7
do not apply in relation to any minerals or other substances or facilities
administered under a Mining Act, or any activity conducted under a tenement
granted under a Mining Act.
5—Territorial
and extra-territorial operation of Act
(1) Subject to this section, this Act applies to the whole of the
State.
(2) The Governor may, by regulation, exclude a part of the State from the
operation of this Act, or specified provisions of this Act.
(3) This Act extends to an activity or circumstance undertaken or existing
outside the State that may affect the natural resources of the State.
(4) This Act may also apply so as to give effect within the State or
outside the State to any intergovernmental agreement relevant to the operation
of this Act to which the State is a party.
(1) This Act binds
the Crown in right of this State and also, so far as the legislative power of
the State extends, the Crown in all its other capacities, but not so as to
impose any criminal liability on the Crown.
(2) Without limiting or derogating from
subsection (1)
, all agencies and instrumentalities of the Crown must endeavour, as far as
practicable, to act consistently with the State Landscape Strategy and other
relevant plans under this Act.
Division 2—Objects,
principles and general statutory duties
(1) The objects of
this Act include to support and enhance the ecologically sustainable development
of the natural resources that make up or contribute to our State's landscape in
an integrated manner that—
(a) recognises and protects the intrinsic values of landscapes and
recognises the interconnection between different elements of landscapes,
including in relation to various aspects of the State's natural resources;
and
(b) supports the State's primary production and other industries and a
sustainable State economy, supports resilient communities and natural and built
environments, and supports the interests of Aboriginal peoples; and
(c) provides for the protection, enhancement and sustainable management of
land, soil and water resources, especially so that they are resilient in the
face of change; and
(d) promotes healthy native fauna and flora, biological diversity and
ecosystems that are resilient in the face of change; and
(e) recognises that climate change is a significant factor in our
environment; and
(f) provides for the prevention or control of impacts caused by pest
species of animals and plants that may have an adverse effect on the
environment, primary production or the community; and
(g) promotes the collaborative management of native animals that adversely
affect the natural or built environments, people or primary production or other
industries; and
(h) provides educational initiatives and provides support mechanisms to
strengthen the skills, knowledge and capacity of people to sustainably manage
natural resources; and
(i) supports initiatives or action to facilitate the increased capacity of
people to engage in processes under this Act, including through the provision of
information relevant to the protection, enhancement or management of
landscapes.
(2) For the purposes of
subsection (1)
, ecologically sustainable development comprises the use, reuse,
conservation, development and enhancement of natural resources and landscapes in
a way, and at a rate, that will enable people and communities to provide for
their economic, social, cultural and physical well-being while—
(a) sustaining the potential of landscapes, including natural resources,
to meet the reasonably foreseeable needs of future generations; and
(b) safeguarding the life-supporting capacities of natural resources and
landscapes; and
(c) avoiding, remedying or mitigating any adverse effects of activities on
natural resources and landscapes.
(3) The following principles should be taken into account in connection
with achieving ecologically sustainable development for the purposes of this
Act:
(a) recognition should be given to the spiritual, social, customary and
economic significance of landscapes, and especially natural resources, to
Aboriginal people;
(b) the responsibility to achieve ecologically sustainable development
should be seen as a shared responsibility between local, State and the
Commonwealth governments, the private sector, and the community more generally,
and enduring and effective partnerships should be promoted and
supported;
(c) the costs associated with managing natural resources and landscapes
should be allocated or shared equitably and in a manner that encourages the
responsible use of natural resources;
(d) decision-making should be informed by local knowledge and expertise,
and traditional Aboriginal knowledge, together with the best available science,
to achieve a functioning, resilient and productive landscape and avoiding, where
practicable, serious or irreversible damage to the environment;
(e) if there are threats of serious or irreversible damage to natural
resources or landscapes, lack of full scientific knowledge should not be used as
a reason for postponing measures to prevent environmental degradation or
damage;
(f) decision-making should be informed by long term and short term
environmental, social, cultural, economic, equity (including intergenerational
equity so that our natural resources and landscapes are maintained or enhanced
for the benefit of future generations) and practical considerations, recognising
that trade-offs may be necessary;
(g) if the management of natural resources associated with the State's
landscape requires the taking of remedial action, the first step should, insofar
as is reasonably practicable and appropriate, be to encourage those responsible
to take such action before resorting to more formal processes and
procedures;
(h) risk management and regulatory approaches should be proportionate to
the risk involved and the feasibility of managing the risk.
(4) The Minister, the Court and all other persons or bodies involved in
the administration of this Act, or performing, exercising or discharging a
function, power or duty under this Act, must have regard to, and seek to
further, the objects of this Act.
(1) A person must
act reasonably in relation to the management of natural resources within the
State.
(2) In determining what
is reasonable for the purposes of
subsection (1)
, regard must be had, amongst other things, to the objects of this Act, and
to—
(a) the need to act responsibly in relation to the management of natural
resources, and the potential impact of a failure to comply with the relevant
duty; and
(b) any environmental, social, cultural, economic or practical
implications, including any relevant assessment of costs and benefits associated
with a particular course of action, the financial implications of various
measures or options, and the current state of technical and scientific
knowledge; and
(c) any degrees of risk that may be involved; and
(d) the nature, extent and duration of any harm; and
(e) the extent to which a person is responsible for the management of the
natural resources; and
(f) the significance of the natural resources, including in relation to
the environment and to the economy of the State (if relevant); and
(g) the extent to which an act or activity may have a cumulative effect on
any natural resources; and
(h) any pre-existing circumstance, and the state or condition of the
natural resources; and
(i) any local
circumstances as described in
subsection (8)
.
(3) A person will be taken not to be in breach of
subsection (1)
if the person is acting—
(a) in pursuance of a requirement under this or any other Act;
or
(b) in a manner consistent with the relevant regional landscape plan, a
water allocation plan, a landscapes affecting activities control policy, a water
affecting activities control policy, or any other policy approved by the
relevant regional landscape board for the purposes of this section; or
(c) in circumstances prescribed by the regulations.
(4) Subject to
subsections (5)
and
(6)
, a person who breaches
subsection (1)
is not, on account of the breach alone, liable to any civil or criminal
action.
(5) If a person
breaches
subsection (1)
—
(a) the person may be required to prepare and implement an action plan in
the circumstances contemplated by
Part 7
; and
(b) compliance with the subsection may be enforced by the issuing of a
protection order under
Part 10
; and
(c) a reparation order or reparation authorisation may be issued under
Part 10
; and
(d) an order may be made by the ERD Court under
Part 10
in respect of the non-compliance.
(6)
Subsection (4)
does not limit or derogate from any other provision of this Act.
(7) In addition, if a
person can demonstrate that the person has acted in a manner consistent with any
best practice methods or standards, or any guidelines, in the relevant industry
or sphere of activity that are recognised as being acceptable for the purposes
of
subsection (1)
by the relevant regional landscape board after taking into account any
local circumstances as described in
subsection (8)
, then, to the extent of the consistency, no action can be taken against
the person in connection with the operation of this section.
(8) For the purposes of
subsections (2)(i)
and
(7)
, local circumstances are constituted by the local situation, conditions
and surrounding circumstances, with regard being given to contributing factors
such as climate, the condition of land, land and water use, and degrees of risk
and impact.
(9) To avoid doubt, a person cannot, in relation to the operation of this
section, be held responsible for any condition or circumstance existing before 2
September 2004.
Note—
2 September 2004 is the day on which the Natural Resources Management
Act 2004 commenced.
(1) The functions
of the Minister under this Act are—
(a) to monitor, evaluate and audit the state and condition of the State's
natural resources, coasts and seas; and
(b) to report on the state and condition of the State's natural resources,
coasts and seas; and
(c) to prepare and
maintain the State Landscape Strategy; and
(d) to develop,
implement, apply or co-ordinate policies relating to natural resources
management, and to promote sound management programs and practices for the use,
development or protection of the natural resources of the State; and
(e) to conduct and support research into the preservation, protection,
management, enhancement, restoration or rehabilitation of the State's natural
resources; and
(f) to compile,
maintain and update data and other information in relation to the State's
natural resources, coasts and seas; and
(g) to promote the integration or co-ordination of policies, programs,
plans and projects insofar as they are relevant to the proper management, use or
protection of the State's natural resources; and
(h) to promote public awareness of the importance of the State's natural
resources and to encourage conservation of those resources; and
(i) as the Minister thinks fit, to take any other action that may promote
the preservation, protection, management, enhancement, restoration or
rehabilitation of the State's landscapes; and
(j) such other functions assigned to the Minister by or under this
Act.
(a) prescribe the kinds of information to which
subsection (1)(f)
applies; and
(b) require persons
or bodies referred to in the regulations to provide the Minister with
information of that kind that is in their possession; and
(c) specify the
kind or kinds of information to which
subsection (3)
applies.
(3) If a person has
provided information of a kind to which this subsection applies under
subsection (2)(b)
, the Minister—
(a) must seek the consent of the person who provided the information to
make it publicly available and must make it publicly available if consent is
given; and
(b) must not disclose that information to another person without the
consent of the person who provided it.
(1) The Minister
may delegate to a body or person (including a person for the time being holding
or acting in a specified office or position) a function or power of the Minister
under this Act, or under any other Act that, in the opinion of the Minister, is
relevant to the operation or administration of this Act.
(2) A delegation under this section—
(a) must be by instrument in writing; and
(b) may be absolute or conditional; and
(c) does not derogate from the ability of the Minister to act in any
matter; and
(d) is revocable at will.
(3) A function or power delegated under this section may, if the
instrument of delegation so provides, be further delegated.
(4) The Minister cannot delegate the function of making recommendations to
the Governor.
(5) A person to
whom functions or powers have been delegated under
subsection (1)
who has a direct or indirect personal or pecuniary interest in any matter
in relation to which the person proposes to perform those functions or exercise
those powers must disclose the nature of the interest in writing to the
Minister.
Maximum penalty: $20 000.
(6) It is a defence to a charge of an offence against
subsection (5)
to prove that the defendant was not, at the time of the alleged offence,
aware of their interest in the matter.
Division 2—Landscape
regions and boards
Subdivision 1—Establishment
of regions
(1) The Governor
may, by proclamation made on the recommendation of the Minister, divide the
State into landscape management regions.
(2) The Minister must, in formulating a recommendation for the purposes of
subsection (1)
—
(a) give attention to the nature and form of the natural environment;
and
(b) take into account relevant economic, social, cultural and local
government boundaries or areas,
(and may take into account such other matters as the Minister thinks
fit).
(3) The Governor
may, by subsequent proclamation made on the recommendation of the
Minister—
(a) vary the boundaries of any landscape management region;
(b) abolish a landscape management region (on the basis that a new
division is to occur).
(4) If a proclamation is being made under
subsection (3)
, the Governor may, by the same or a subsequent proclamation, make
provision for any transitional or consequential matter, including for the
transfer, apportionment or adjustment of property, assets, rights, liabilities
or expenses as between any relevant regional landscape boards or the alteration
or revision of any plan under this Act (and any such proclamation will have
effect according to its terms and despite any other provision of this or any
other Act, or any law, agreement or arrangement).
(5) This section applies subject to
section 12
.
(1) A landscape management region known as Green Adelaide or the
Green Adelaide Region must be established as one of the landscape
management regions under
section 11
.
(2) The area of Green Adelaide must be based (wholly or predominantly) on
the urban areas of metropolitan Adelaide, as considered appropriate by the
Governor on the recommendation of the Minister.
(3) The Governor may, by proclamation made on the recommendation of the
Minister, vary the boundaries of Green Adelaide from time to time.
Subdivision 2—Establishment
of regional landscape boards
(1) The Minister
must, by notice in the Gazette, establish a regional landscape board for each
landscape management region (other than for Green Adelaide).
(2) A notice under
subsection (1)
must—
(a) identify the region in relation to which the regional landscape board
is established; and
(b) assign a distinctive name to the regional landscape board;
and
(c) set out
functions of the regional landscape board (if any) that are additional to the
functions prescribed by this Act.
(3) The Minister
may, by subsequent notice in the Gazette—
(a) vary a notice under this section (including by making a variation to
the functions of the regional landscape board under
subsection (2)(c)
);
(b) abolish a regional landscape board (on the basis that the relevant
region is being abolished under
Subdivision 1
).
(4) A notice relating to a regional landscape board under
subsection (3)
may provide for any transitional or consequential matter,
including—
(a) by providing that the property, assets, rights or liabilities of the
board will vest in or attach to—
(i) the Crown; or
(ii) a Minister; or
(iii) another body established under this Act; or
(iv) any other agency or instrumentality of the Crown; or
(v) with the agreement of the relevant person or body, a person or body
specified in the notice; and
(b) by making provision with respect to any relevant regional landscape
plan, water allocation plan, landscapes affecting activities control policy or
water affecting activities control policy,
(and any such notice will have effect according to its terms and despite
any other provision of this or any other Act, or any law, agreement or
arrangement).
(5) In relation to Green Adelaide—
(a) the regional landscape board is established by force of this
subsection; and
(b) the name of the board is Green Adelaide Board; and
(c) the Minister may, by notice in the Gazette, set out functions of the
Green Adelaide Board (if any) that are additional to the functions prescribed by
this Act.
(1) A regional landscape board—
(a) is a body corporate; and
(b) has perpetual succession and a common seal; and
(c) can sue and be sued in its corporate name; and
(d) is an instrumentality of the Crown and holds its property on behalf of
the Crown; and
(e) has the functions and powers assigned or conferred by or under this or
any other Act.
(2) If a document appears to bear the common seal of a regional landscape
board, it will be presumed, in the absence of proof to the contrary, that the
common seal of the regional landscape board was duly fixed to the
document.
(3) A regional landscape board is subject to the direction and control of
the Minister.
Subdivision 3—Membership
of boards
(1) Subject to
subsections (2)
and
(3)
(and to the other provisions of this Act), a regional landscape board
consists of—
(a) 4 members appointed
by the Minister; and
(b) 3 members elected
by eligible electors.
(2) The Green Adelaide
Board consists of at least 6 and not more than 10 members appointed by the
Minister.
(3) A regional
landscape board (other than Green Adelaide) may consist of at least 5 and not
more than 9 members, all appointed by the Minister, if the Minister considers
that a board wholly constituted by appointed members is preferable to a board
constituted with some elected members due to special circumstances applying in
the relevant region.
(4) At least 1 member of a regional landscape board must be a woman and at
least 1 member must be a man.
(5) The Minister must appoint a suitable member of a regional landscape
board to be the presiding member of the board (and may from time to time revoke
any such appointment and make a new appointment in the Minister's absolute
discretion).
(6) The Minister may appoint a suitable person to be the deputy of a
member of a regional landscape board (and a person may be appointed as a deputy
of more than 1 member).
(7) A deputy may act as a member of a regional landscape board during any
period of absence of the member in relation to whom the deputy has been
appointed.
(8) In the event of a vacancy in an office under
subsection (1)
(including on account of an insufficient number of members being elected
to a regional landscape board under
subsection (1)(b)
), the Minister may appoint a suitable person to fill the
vacancy.
(9) A member who is
filling a casual vacancy for an office that has been held by an elected member
will be appointed for the balance of the term of that elected member.
16—Qualifications
for membership
(1) The Minister will
determine the skills, qualifications, knowledge and experience that persons
should collectively have to enable a regional landscape board to carry out its
functions effectively.
(2) The Minister—
(a) may make different determinations under
subsection (1)
in relation to different boards; and
(b) must ensure that a determination under
subsection (1)
is published in such manner as the Minister thinks fit.
(3) In connection with
subsection (1)
, a prospective member of a regional landscape board—
(a) must demonstrate that they have any skills, qualifications, knowledge
or experience determined by the Minister (and the Minister may put in place
processes to ensure that members of regional landscape boards have those skills,
qualifications, knowledge or experience); and
(b) must satisfy any other requirements determined by the Minister in
order to be eligible for appointment or election as a member of a regional
landscape board under this Act.
(4) The Minister should publish information about any determinations or
processes applying under
subsection (3)
(in such manner as the Minister thinks fit).
(1) Without limiting
section 16
, if a candidate nominated for election as a member of a regional landscape
board in accordance with the regulations under
subsection (2)
does not have, in the opinion of the Minister, the necessary skills,
qualifications, knowledge and experience, the Minister may determine that the
person is ineligible to stand for election as a member of the board (and any
such determination will have effect according to its terms).
(2) The regulations may
provide for a variety of matters relating to the nomination and election of
members of regional landscape boards under
section 15(1)(b)
, including by prescribing—
(a) provisions for determining who will be recognised as eligible electors
for the purposes of an election; and
(b) subject to
subsection (1)
, provisions for determining who is eligible to be nominated as a candidate
for election as a member of a regional landscape board; and
(c) provisions for setting dates for—
(i) the close of nominations of candidates for the purposes of an
election; and
(ii) the opening and closing of voting for the purposes of an election;
and
(d) the procedures for the conduct of an election (which may include
processes based on eligible electors only receiving voting papers or otherwise
voting in an election if they have indicated an interest in participating in the
election, and procedures for postal voting or electronic voting using the
internet); and
(e) the method of voting and procedures for the counting of votes;
and
(f) procedures for the declaration of successful candidates.
(3) In connection with
the operation of
subsection (2)
—
(a) to the extent that
the region of a regional landscape board is within the area of a
council—
(i) a person who is enrolled on the voters roll for the area of that
council under the
Local
Government (Elections) Act 1999
on a date fixed or determined under the regulations will be an eligible
elector for the purposes of a particular election; and
(ii) the eligibility of
a person to be nominated as a candidate for election as a member of a regional
landscape board will be based on eligibility to be a candidate for election as a
member of the council under section 17(1) and (3)(a), (b) and (c) of the
Local
Government (Elections) Act 1999
on a date fixed or determined under the regulations; and
(b) to the extent that
the region of a regional landscape board is outside the area of a
council—
(i) the recognition of persons as eligible electors will be determined
under a scheme based on qualification for enrollment under section 14 of the
Local
Government (Elections) Act 1999
as if the relevant area were within the area of a council, with that
section applying with any modifications prescribed by the regulations (including
as to who will be taken to be the chief executive officer for the purposes of
that section as applying under this Act); and
(ii) the eligibility of
a person to be nominated as a candidate for election as a member of a regional
landscape board will be determined under a scheme based on eligibility to be a
candidate for election as a member of the council under section 17(1) and
(3)(a), (b) and (c) of the
Local
Government (Elections) Act 1999
as if the relevant area were within the area of a council, with that
section applying with any modifications prescribed by the regulations.
(4) In connection with
the operation of
subsection (3)
—
(a) for the purposes of
any election that relates to the area of a council, the council must provide, in
accordance with the regulations, an up-to-date copy of the voters roll for the
area of the council to the person who will be conducting the election by a date
fixed or determined under the regulations; and
(b) for the purposes of
any election that relates to an area outside the area of a council, the
Electoral Commissioner must provide, in accordance with the regulations, an
up-to-date extract from the voters roll for the House of Assembly that relates
to the area to the person who will be conducting the election by a date fixed or
determined under the regulations.
(5) The relevant regional landscape board is liable to
pay—
(a) for
subsection (4)(a)
—a fee, determined by the Minister after consultation with the LGA,
to a council in connection with the council providing a copy of a voters roll;
and
(b) for
subsection (4)(b)
—a fee, determined by the Minister after consultation with the
Electoral Commissioner, to the Electoral Commission in connection with the
Electoral Commissioner providing an extract of the voters roll for the House of
Assembly.
and
(b)(ii)
operate subject to
section 16
and to
subsection (1)
of this section.
(7) A person elected to
be a member of a regional landscape board will take office on a day determined
by or under the regulations.
(8) The Minister will appoint a person to conduct an election, or
elections, for the purposes of this Part (and may from time to time revoke any
such appointment and make a new appointment as the Minister thinks
fit).
(1) A member of a
regional landscape board will hold office on conditions determined by the
Minister.
(2) The term of office
of a member of a regional landscape board (other than the Green Adelaide Board)
will be—
(a) in the case of an appointed member (other than in a case where
section 15(9)
applies)—a period not exceeding 4 years specified in the instrument
of appointment; and
(b) in the case of an elected member—a period of 4 years from the
date on which the member takes office, as determined by or under the regulations
(unless the office becomes vacant under
subsection (6)
).
(3) The term of office
of a member of the Green Adelaide Board is a term not exceeding 3 years
specified in the instrument of appointment.
(4) A member of a regional landscape board is, at the expiration of a term
of office, eligible for reappointment or re-election (as the case may
be).
(5) The Minister
may remove a member of a regional landscape board from office—
(a) for breach of, or non-compliance with, a condition of appointment;
or
(b) for mental or physical incapacity to carry out duties of office
satisfactorily; or
(c) for failing to discharge a responsibility under this Act, or for
failing to work constructively in the performance of the member's functions or
duties under this Act; or
(d) for dishonourable conduct; or
(e) if serious irregularities have occurred in the conduct of the board's
affairs or the board has failed to carry out its functions satisfactorily and
the Minister considers that the board should be reconstituted for that
reason.
(6) The office of a
member of a regional landscape board becomes vacant if the
member—
(a) dies; or
(b) completes a term of office and is not reappointed; or
(c) resigns by written notice addressed to the Minister; or
(d) is found guilty of an indictable offence; or
(e) becomes bankrupt or applies to take the benefit of a law for the
relief of insolvent debtors; or
(f) is removed from office by the Minister under
subsection (5)
.
(7) This section does not limit the operation of
section 41
.
A member of a regional landscape board is entitled to fees, allowances and
expenses determined or approved by the Minister.
An act or proceeding of a regional landscape board is not invalid by reason
only of a vacancy in its membership or a defect in the appointment of a
member.
21—Conflict
of interest under Public Sector (Honesty and Accountability)
Act
A member of a regional landscape board will not be taken to have a direct
or indirect interest in a matter for the purposes of the
Public
Sector (Honesty and Accountability) Act 1995
by reason only of the fact that—
(a) the member has an interest in a matter that is shared in common with
persons in the region for which the board is established generally, or in common
with a substantial group of persons who have an interest in the administration
of 1 or more aspects of this Act; or
(b) the member has an interest in a matter as a member or officer of a
constituent council or council subsidiary that has an interest in the
matter.
Subdivision 4—Procedures
at meetings
(1) The quorum for a meeting of a regional landscape board is determined
by dividing the number of current members of the board by 2, ignoring any
fraction, and adding 1.
(2) If the presiding member is absent from a meeting, a member chosen by
the members present at the meeting will preside at the meeting.
(3) A decision carried by a majority of the votes cast by members at a
meeting is a decision of the regional landscape board.
(4) Each member present at a meeting has 1 vote on any question arising
for decision, and if the votes are equal, the member presiding at the meeting
may exercise a casting vote.
(5) A resolution of a regional landscape board—
(a) of which notice is given to all members of the board in accordance
with procedures determined by the board; and
(b) in which a majority of members of the board express their concurrence
in a manner determined by the board,
will be taken to be a decision of the board made at a meeting of the
board.
(6) A regional landscape board must cause accurate minutes to be kept of
its proceedings.
(7) The regulations may make any other provision relating to the
proceedings or procedures of a regional landscape board.
(8) Subject to this Act and the regulations, a regional landscape board
may determine its own procedures.
Subdivision 5—Functions
of boards (general)
23—Functions
of boards (general)
(1) The functions
of a regional landscape board are—
(a) to undertake, promote and integrate the management of natural
resources within its region, with particular reference to land management, water
resource management and pest animal and plant control, to build resilience in
the face of change and to facilitate integrated landscape management;
and
(b) —
(i) to prepare a regional landscape plan and (where relevant) water
allocation plans, landscapes affecting activities control policies and water
affecting activities control policies, in accordance with this Act;
and
(ii) to facilitate the implementation of those plans and policies;
and
(iii) to monitor, evaluate and report on the extent of success of those
plans and policies in achieving their objectives; and
(c) to promote public awareness and understanding of the importance of
integrated and sustainable natural resources management within its region, to
undertake or support educational initiatives with respect to natural resources
management, and to provide mechanisms to increase the capacity of people to
implement programs or to take other steps to improve the management of natural
resources; and
(d) to provide advice with respect to the assessment of various activities
or proposals referred to the board under this or any other Act; and
(e) to undertake an active role in ensuring, insofar as is reasonably
practicable, that the board's regional landscape plan, water allocation plans
and water affecting activities control policies, and the Planning and Design
Code under the
Planning,
Development and Infrastructure Act 2016
, form a coherent set of policies and, in so doing, when an amendment to
that Code that is relevant to the activities of the board is under consideration
under that Act, to work with the entity or entities engaged in undertaking the
amendment under that Act; and
(f) at the request of the Minister, or on its own initiative, to provide
advice on any matter relevant to the condition of landscapes within its region
or on the management of those landscapes, or to provide any other advice or
report that may be appropriate in the circumstances; and
(g) to facilitate an understanding of, and to provide information to
landowners on, land management, water management and pest animal and plant
control, and other issues, relevant to landscape activities and, where
necessary, to take action under this Act to ensure compliance with the
provisions of this Act; and
(h) to assist in the management of any native animals that adversely
affect the natural or built environments, people or primary production or other
industries, or to facilitate action to mitigate or manage the impact of those
native animals, by—
(i) supporting educational initiatives; or
(ii) identifying or promoting mechanisms to increase the capacity of
people to implement programs to manage the native animals; or
(iii) supporting other steps or action to improve the management of native
animals; or
(iv) providing information about the management of native animals in these
circumstances; or
(v) taking any other action prescribed by the regulations.
(i) such other functions assigned to the board by the Minister or by or
under this or any other Act.
(2) To avoid doubt, a regional landscape board may act with respect to a
particular matter despite the fact that the matter may not fall within the scope
of its regional landscape plan.
(3) In performing its functions, a regional landscape board
should—
(a) set and adopt clear strategies; and
(b) create strong strategic and funding partnerships and pursue
appropriate and cost-effective opportunities to deliver its work programs
through partnerships or other arrangements with other entities, agencies or
authorities; and
(c) work to support programs and projects involving State and local
government agencies and authorities, academic and other leaders in relevant
fields, non-government organisations and bodies, and the community.
(4) A regional landscape board should also seek to work collaboratively
with—
(a) the other regional landscape boards; and
(b) relevant sections and cross-sections of the community, including
Aboriginal people; and
(c) persons who own and occupy land within the region of the board
(insofar as may be relevant).
(5) A regional
landscape board will, with respect to the performance of its functions, report
to the Minister.
(6) Without limiting
subsection (5)
, a regional landscape board must provide to the Minister (in a form
specified by the Minister) such information relating to any aspect of the
functions or operations of the board as the Minister may from time to time
require.
Subdivision 6—Functions
of Green Adelaide Board (additional provisions)
24—Green
Adelaide Board (priority areas)
(1) The functions of the Green Adelaide Board will involve leading
innovation and achieving positive outcomes across the urban landscapes of the
Green Adelaide Region with a particular focus on urban design and building
resilience with respect to climate.
(2) The Green Adelaide Board will adopt 7 key priorities relating
to—
(a) coastal management; and
(b) water resources and wetlands; and
(c) water sensitive urban design; and
(d) green streets and flourishing parklands; and
(e) fauna and flora in the urban environment; and
(f) controlling pest animals and plants; and
(g) nature education.
(3) The Green Adelaide Board will take a strategic leadership role in
relation to these priorities and promote coordination and partnerships with
other entities, agencies and authorities.
(4) The Green Adelaide Board may (subject to any direction of the
Minister)—
(a) undertake a role in
leading, promoting or supporting innovation and positive outcomes in relation to
any of these priorities in any part of the State; and
(b) in connection with acting under
paragraph (a)
, establish, support or facilitate programs in places outside the Green
Adelaide Region.
(5) This section does not limit any other function or activity of the
Green Adelaide Board under this Act.
Subdivision 7—Funding
and grants
(1) A regional landscape board should work to provide, or to facilitate or
support the provision of, funding and grants to councils and other bodies,
organisations, groups and persons—
(a) to achieve outcomes
that promote the objects of this Act and to assist the board to deliver its
priorities under this Act; and
(b) without limiting
paragraph (a)
—to improve the state of natural resources after taking into account
the board's regional landscape plan and its annual business plan.
(2) A regional landscape board may provide financial or other assistance
under this section on such conditions as the board thinks fit.
(3) A regional landscape board must ensure that a report on any assistance
provided under this section is included in its annual report.
(4) The provision of financial assistance under this section does not
extend to the making of a loan.
(1) Without limiting any other provision, a regional landscape board must
establish and maintain a Grassroots Grants Program for its
region.
(2) The purposes of a Grassroots Grants Program is to support individuals,
and volunteer, community and other bodies, organisations and groups working at
the local level on a not-for-profit basis, by making grants to undertake work or
activities to achieve outcomes that promote the objects of this Act at the local
level.
(3) The amount to be made available on an annual basis by a regional
landscape board for the purposes of its Grassroots Grants Program will be an
amount determined by the Minister from time to time (being, if the Minister
thinks fit, a percentage of contributions received by the board under
Part 5
).
(4) The Minister may, for the purposes of this section, by information
published in such manner as the Minister thinks fit—
(a) establish any requirements for making applications for grants;
and
(b) establish criteria for the assessment and awarding of grants;
and
(c) provide for any other related matter.
(5) A regional landscape board may make a grant under this section on such
conditions as the Minister may require or as the board thinks fit.
(6) A regional landscape board must ensure that a report on the grants
provided under this section is included in its annual report.
Subdivision 8—Powers
of boards
(1) A regional
landscape board has the power to do anything necessary, expedient or incidental
to—
(a) performing the functions of the board under this or any other Act;
or
(b) assisting in the administration of this Act; or
(c) furthering the objects of this Act.
(2) Without
limiting the operation of
subsection (1)
(but subject to
subsections (3)
and
(4)
), a regional landscape board may—
(a) enter into any form of contract, agreement or arrangement;
and
(b) acquire, hold, deal with and dispose of real and personal property or
any interest in real or personal property; and
(c) provide for the care, control, management, conservation or
preservation of any natural resource; and
(d) seek expert, technical or other advice on any matter from any person
on such terms and conditions as the board thinks fit; and
(e) carry out projects; and
(f) act in conjunction with any other authority or person.
(3) A regional
landscape board must not, without the approval of the Minister—
(a) undertake an activity with the object (or principal object) of
securing a profit; or
(b) participate in any commercial or business activity.
(4) The Minister
may, by instrument in writing given to a regional landscape board, limit or
regulate the powers of the board in any other respect.
(5) Subject to any direction of the Minister, a regional landscape board
may, as the board thinks fit, undertake activities outside its region.
(6) Money received by a regional landscape board under this Act or in
performing its functions or duties or exercising its powers under this Act is
not payable into the Consolidated Account and may be applied by the board in
accordance with the provisions of this Act without further appropriation by
Parliament.
(7) In this section—
project includes any form of work, scheme, undertaking or
other activity.
28—Special
powers to carry out works
(1) Without
limiting any other provision of this Act, a regional landscape board
may—
(a) construct,
maintain or remove any infrastructure; and
(c) inspect, examine or survey any land and for that purpose—
(i) fix posts, stakes or other markers on the land; and
(ii) dig trenches or sink test holes in the land to determine the nature
of the top soil and underlying strata; and
(iii) remove samples for analysis; and
(d) alter water table levels, stop or reduce the flow of water in a
watercourse, divert water flowing in a watercourse to another watercourse or to
a lake or control the flow of water in any other manner; and
(e) hold water in a watercourse or lake or by any other means;
and
(f) divert water to an underground aquifer, dispose of water to a lake,
underground aquifer or the sea, or deal with water in any other manner;
and
(g) deepen, widen
or change the course of a watercourse, deepen or widen a lake or take action to
remove any obstruction to the flow of water; and
(h) undertake any
other form of work (including work undertaken for the purposes of stormwater
management or flood mitigation); and
(i) undertake any testing, monitoring or evaluation; and
(j) undertake any other activity of a prescribed kind.
(2) A regional
landscape board must not exercise a power under
subsection (1)(a)
,
(b)
,
(g)
or
(h)
in relation to private land with the intention that any infrastructure,
devices or works will be permanent unless—
(a) it is intended that the owner of the private land will undertake the
care, control or management of any relevant infrastructure, devices or works and
the regional landscape board is acting with the agreement of the owner;
or
(b) the board has first acquired an easement or other appropriate interest
over the relevant land.
(3)
Subsection (2)
does not limit or affect the ability of a regional landscape board to
acquire land by agreement for the purpose of constructing any infrastructure or
performing any work.
(4) Any work undertaken under this section must form part of a work
program set out in the regional landscape board's annual business
plan.
(5) In this section—
lake includes an artificial lake, dam or reservoir.
29—Entry
and occupation of land
(1) For the purpose of
carrying out an investigation or survey, or carrying out any work in an
emergency, a regional landscape board, or a person authorised by a regional
landscape board, may enter and occupy any land.
(2) A regional landscape board or a person authorised by a regional
landscape board that intends to enter, or to enter and occupy, land must give
reasonable notice of that intention to the occupier of the land.
(3) The period of the notice must be at least 2 business days
except—
(a) where the occupier has given consent; or
(b) in an emergency, in which case the person proposing to enter must give
such notice (if any) as the person considers is reasonable in the
circumstances.
(4) A regional landscape board or other person acting under this section
may not enter residential premises except with the consent of the
occupier.
(5) A regional landscape board or other person entering or occupying land
under this section—
(a) may occupy the land for so long as is reasonably required to exercise
powers under
subsection (1)
; and
(b) may do anything that is reasonably necessary to achieve the outcome or
outcomes for which the entry was undertaken; and
(c) insofar as is reasonably practicable, must take steps to ensure that
the land is maintained in such state, or restored to such state, as is
reasonable in the circumstances; and
(d) must co-operate as far as practicable with any owner or occupier of
the land.
(6) A person must not, without reasonable excuse, obstruct or hinder a
person exercising powers under this section.
Maximum penalty: $10 000.
(7) A person may
use force to enter land (other than residential premises) under this
section—
(a) on the authority of a warrant issued by a magistrate; or
(b) if the person believes, on reasonable grounds, that the circumstances
require immediate entry on to the land.
(8) A magistrate must not issue a warrant under
subsection (7)
unless satisfied, on information given on oath, that the warrant is
reasonably required in the circumstances.
(9) An application for a warrant under
subsection (7)
—
(a) may be made either personally or by telephone; and
(b) must be made in accordance with any procedures prescribed by the
regulations.
30—Special
vesting of infrastructure
(1) Subject to this
section, the Governor may, by proclamation made on the recommendation of the
Minister, vest in a regional landscape board the use of any infrastructure
vested in or under the care, control or management of a public
authority.
(2) Subject to this
section, the Governor may, by proclamation made on the recommendation of the
Minister, vest in a regional landscape board the use of any land vested in or
under the care, control or management of a public authority that is specified in
the board's regional landscape plan as being land that should be under the care,
control and management of the board.
(3) Subject to
subsection (4)
, if the use of infrastructure or land is vested in a regional landscape
board under
subsection (1)
or
(2)
, the care, control and management of the infrastructure or land is also
vested in the board and the board is responsible for the maintenance and repair
of the infrastructure or the maintenance of the land.
(4) The use of
infrastructure or land will be vested exclusively in a regional landscape board
by a proclamation under
subsection (1)
or
(2)
unless the proclamation provides for the use to be shared by the board and
a public authority in which case the proclamation must—
(a) specify the respective responsibilities of the board and the public
authority for the care, control and management and the maintenance and repair of
the infrastructure or land; and
(b) include any other conditions that are necessary or desirable, in the
Governor's opinion, relating to the shared use of the infrastructure or
land.
(5) A regional landscape board is not liable to pay compensation to a
public authority in respect of a proclamation under
subsection (1)
and
(2)
.
(6) Subject to this
section, the Governor may, by subsequent proclamation made on the recommendation
of the Minister, vary or revoke a proclamation under this section.
(7) The Governor cannot make a proclamation under
subsection (1)
,
(2)
or
(6)
in relation to infrastructure or land vested in or under the care, control
or management of a council or council subsidiary without the consent in writing
of the council or council subsidiary.
31—Landscapes
affecting activities control policies
(1) A prescribed authority may prepare a policy under this section (a
landscapes affecting activities control policy) with respect to
the conservation, management or protection of any landscapes through the
implementation of policies and controls as set out in
subsection (2)
.
(2) A landscapes
affecting activities control policy may—
(a) outline practices relating to protecting land from unreasonable
degradation, or an unreasonable risk of degradation; and
(b) make provision in connection with declarations made under
Part 9
Division 1
; and
(c) make provision in connection with the issuing of permits under
section 195
; and
(d) impose requirements with respect to the identification, reporting,
protection, preservation or relocation of native animals and their habitats for
the purposes of
section 199
; and
(e) include any other matter prescribed by the regulations.
(3) A prescribed authority may amend a landscapes affecting activities
control policy at any time (in accordance with the provisions of this
Act).
(4)
Schedule 2
makes provision in relation to the review, preparation and amendment of a
landscapes affecting activities control policy.
(5) In this section—
prescribed authority means a regional landscape board and
includes, in relation to Green Adelaide, the Chief Executive.
(1) Each regional landscape board, other than Green Adelaide, is to have a
general manager.
(2) A general manager will be appointed by the Chief Executive of the
Department on the recommendation of the relevant board.
(3) A general manager will be a public sector employee but will not, while
holding appointment under this section, be an employee in the
Department.
(4) A general manager will be appointed on terms and conditions determined
by the Chief Executive after taking into account the recommendations of the
relevant board (and may be removed from office as provided in those terms and
conditions).
(5) A general manager is responsible to the board for—
(a) managing the board's business efficiently and effectively;
and
(b) supervising the staff engaged in the work of the board.
(6) A general manager is designated as an employing authority for the
purposes of the
Public
Sector Act 2009
and is empowered to employ persons on behalf of the Crown under (and in
accordance with) this Act.
(7) A general manager will have a performance agreement
that—
(a) is established by
the relevant board after consultation between the presiding member of the board
(on behalf of the board) and the general manager; and
(b) is subject to
approval by the Chief Executive; and
(c) may be varied from time to time (in accordance with
paragraphs (a)
and
(b)
as if the variation were a new agreement).
(8) In relation to the performance of a general manager—
(a) the presiding member of the board—
(i) will oversee the general manager's performance (on behalf of the
board); and
(ii) will report to the Chief Executive as requested by the Chief
Executive or as the presiding member thinks fit; and
(b) the Chief Executive will have responsibility for ensuring that the
general manager complies with the terms and conditions of the general manager's
appointment.
(9) To avoid doubt, a person may be the general manager for more than 1
board.
(10) The Chief
Executive may, after consultation with the relevant board, appoint a person to
act as the general manager of the board during a vacancy in the position of
general manager or while the general manager is absent (if required).
(11) A person appointed under
subsection (10)
—
(a) may be—
(i) a member of the staff of the board; or
(ii) a person appointed or engaged by the Chief Executive to undertake the
role of general manager; and
(b) will hold office on terms and conditions determined by the Chief
Executive after consultation with the board (and may be removed from office as
provided in those terms and conditions); and
(c) in the case of an employee of the Department, may continue as such an
employee during the term of appointment.
(1) The following provisions of this section do not apply in relation to
Green Adelaide:
;
(b)
subsections (4)
to
(10)
(inclusive).
(2) The staffing
arrangements for a regional landscape board will be approved by the Minister
after consultation with the board.
(3) Any staff under
subsection (2)
will be—
(a) if appointments
have been made under
subsection (4)
—the persons holding those appointments; or
(b) Public Service employees assigned to work with the regional landscape
board.
(4) The general
manager of a regional landscape board (as an employing authority) may employ a
person to perform functions in connection with the operations or activities of
the board.
(5) The terms and conditions of employment of a person under
subsection (4)
will be determined by the general manager after obtaining the approval of
the Commissioner for Public Sector Employment.
(6) A person employed under
subsection (4)
will be taken to be employed by or on behalf of the Crown (but will not be
employed in the Public Service of the State unless brought into an
administrative unit under the
Public
Sector Act 2009
).
(7) The general manager may direct a person employed under
subsection (4)
to perform functions in connection with the operations of a public sector
agency specified by the general manager (and the person must comply with that
direction).
(8) The general
manager (as an employing authority) may delegate a power or function under this
section.
(9) A delegation under
subsection (8)
—
(a) must be by instrument in writing; and
(b) may be made to a body or person (including a person for the time being
holding or acting in a specified office or position); and
(c) may be absolute or conditional; and
(d) may, if the instrument of delegation so provides, allow for the
further delegation of a power or function that has been delegated; and
(e) does not derogate from the ability of the general manager to act in
any matter; and
(f) is revocable at will.
(10) A change in the
person who constitutes the employing authority under this Act will not affect
the continuity of employment of a person under this section.
(11) A regional landscape board must, at the direction of the Minister,
make payments with respect to any matter arising in connection with the
employment or work of a person under this section (including, but not limited
to, payments with respect to salary or other aspects of remuneration, leave
entitlements, superannuation contributions, taxation liabilities, workers
compensation payments, termination payments, public liability insurance and
vicarious liabilities).
(12) A regional landscape board does not have the power to employ any
person.
(13) In this section—
public sector agency has the same meaning as in the
Public
Sector Act 2009
.
Subdivision 10—Committees
and other bodies
34—Committees
and other bodies
(1) A regional
landscape board—
(a) must establish
the committees or other bodies required by the Minister; and
(b) may establish such other committees or bodies as the board thinks
fit,
to advise or assist the board.
(2) A committee or other body established under
subsection (1)
may, but need not, consist of or include members of the regional landscape
board.
(3) The procedures to be observed in relation to the conduct of the
business of a committee or other body will be—
(a) as prescribed by regulation; or
(b) insofar as the procedure is not prescribed by regulation—as
determined by the regional landscape board; or
(c) insofar as the procedure is not prescribed by regulation or determined
by the regional landscape board—as determined by the committee or other
body.
(4) A regional landscape board may, with the approval of the Minister, pay
fees or other forms of remuneration to the members of a committee or other body
established by the board (at rates or according to other factors determined or
approved by the Minister).
Subdivision 11—Power
of delegation
(1) A regional landscape board may delegate a function or power of the
board under this or any other Act—
(a) to a member of the board; or
(b) to a person holding office or acting under
Subdivision 9
in the work of the board; or
(c) with the approval of the council—to a council or an officer of a
council; or
(d) with the approval of the council subsidiary—to a council
subsidiary or an officer of a council subsidiary; or
(e) to a committee or other body established under
Subdivision 10
; or
(f) with the approval of the Minister—to any other person or
body.
(2) A delegation under this section—
(a) must be by instrument in writing; and
(b) may be absolute or conditional; and
(c) does not derogate from the ability of the regional landscape board to
act in any matter; and
(d) is revocable at will.
(3) A function or power delegated under this section may, if the
instrument of delegation so provides, be further delegated.
Subdivision 12—Accounts,
audit and reports
(1) A regional
landscape board must cause proper accounts to be kept of its financial affairs
and must cause financial statements to be prepared in respect of each financial
year.
(2) The Auditor-General may at any time, and must in respect of each
financial year, audit the accounts and financial statements required under
subsection (1)
.
(1) A regional landscape board must, on or before 30 November in
every year, provide to the Minister a report on its activities for the financial
year ending on the preceding 30 June (and the regional landscape board need
not provide a report under the
Public
Sector Act 2009
).
(2) The report must—
(a) include an assessment of the extent to which the regional landscape
board has succeeded in implementing its regional landscape plan; and
(b) include the audited accounts and financial statements of the regional
landscape board; and
(c) include a specific report on actual expenditure of amounts raised by
levies for the relevant financial year against the regional landscape board's
budget for that year; and
(d) include other information required by or under this Act or the
regulations.
(3) The Minister
must cause a copy of a report provided to the Minister under this section to be
laid before both Houses of Parliament within 12 sitting days after
receiving the report.
(4) The relevant regional landscape board must ensure that copies of any
report within the ambit of
subsection (3)
are made reasonably available to the public within 5 business days
after being laid before both Houses of Parliament under that
subsection.
The Minister may, by written notice to a regional landscape board, require
the board to provide to the Minister, within a period stated in the notice or at
stated intervals, any report or reports relating to any matter relevant to the
operation of this Act, as the Minister thinks fit.
Subdivision 13—Related
matters
A regional landscape board may, by arrangement with the relevant body, make
use of the services of the staff, equipment or facilities of—
(a) an administrative unit in the Public Service; or
(b) a public authority.
40—Assignment
of responsibility for infrastructure to another person or
body
(1) A regional
landscape board may assign any responsibility for the care, control or
management of infrastructure—
(a) to an owner or
occupier of land on which the infrastructure is situated if the relevant owner
or occupier agrees to the assignment; or
(b) with the
approval of the Minister, to a third party.
(2) A regional landscape board must, before seeking the approval of the
Minister under
subsection (1)(b)
, give notice of the proposed assignment to any owner or occupier of the
land and give consideration to any submission that the owner or occupier may
make within a period (of at least 21 days) specified by the board, and then
prepare a report on the matter (including details of any submission that has
been made) for submission to the Minister.
(3) An assignment
under
subsection (1)
will be effected by agreement entered into in accordance with the
regulations.
(4) An agreement under
subsection (3)
may include arrangements for access to the land on which the
infrastructure is situated.
(5) The
Registrar-General must, on an application by the relevant regional landscape
board, note an agreement under
subsection (3)
against the instrument of title for the land where the infrastructure is
situated or, in the case of land not under the provisions of the
Real
Property Act 1886
, against the land where the infrastructure is situated.
(6) If a note has been entered under
subsection (5)
, an arrangement for access to the relevant land is, despite the provisions
of the
Real
Property Act 1886
, binding on each owner of the land from time to time and on any occupier
of the land.
(7) The Registrar-General must, on the application of the relevant
regional landscape board, enter a note of any rescission or amendment of an
agreement under
subsection (3)
against the instrument of title, or against the land (but must otherwise
ensure that the note is not removed once made).
41—Appointment
of administrator
(1) This section applies if the Minister considers—
(a) that a regional landscape board has refused or failed to perform,
exercise or discharge a function, power or duty under this Act; or
(b) that there has been a serious irregularity in the conduct of the
affairs of a regional landscape board; or
(c) that some or all of the members of a regional landscape board have
failed to discharge any responsibility under this Act, or are failing to work
constructively in the performance of their functions and duties under this Act;
or
(d) that some other serious circumstance exists in relation to the
governance or operations of a regional landscape board,
and accordingly action should be taken by the Minister under this
section.
(2) The Minister must, before taking action under this section, give the
members of the regional landscape board a reasonable opportunity to make
submissions to the Minister about the matter or matters that have given rise to
the proposed course of action.
(3) The Minister may
then, if the Minister thinks fit, by notice in the Gazette—
(a) declare that this section applies in relation to the regional
landscape board; and
(b) appoint a suitable person to be administrator of the affairs of the
board.
(4) On making a declaration under
subsection (3)
, all members of the regional landscape board cease to hold
office.
(5) An administrator will, until the Minister revokes the declaration,
administer the affairs of the regional landscape board in the name of and on
behalf of the regional landscape board (and for that purpose will have all the
functions and powers of the regional landscape board).
(6)
Sections 15
to
22
(inclusive), and any other section of this Act prescribed by the
regulations, do not apply in relation to the regional landscape board while an
administrator is acting under this section.
(7) The remuneration of an administrator (which will be determined by the
Minister) and any liability incurred by the administrator in the course of the
administration will be paid or satisfied out of the funds of the regional
landscape board.
(8) An administrator must report to the Minister at intervals determined
by the Minister on the administration of the affairs of the regional landscape
board.
(9) The Minister may,
by further notice in the Gazette, revoke a declaration under
subsection (3)
.
(10) A revocation under
subsection (9)
will take effect from a date specified by the Minister.
(11) The Minister may, in a notice under
subsection (9)
, do any of following (or any combination of the following):
(a) reinstate 1 or more members of the regional landscape board (on terms
and conditions determined by the Minister for a term to be determined by the
Minister);
(b) appoint 1 or more persons as members of the regional landscape board
(on terms and conditions determined by the Minister for a term to be determined
by the Minister);
(c) provide for the conduct of an election or elections to fill 1 or more
vacancies in the membership of the board (with the election to take effect from
a date determined by the Minister);
(d) provide for other matters associated with the reconstitution of the
regional landscape board, including by specifying the terms of office of persons
who take office under this subsection.
Part 3—State
Landscape Strategy
(1) The Minister must prepare and maintain a plan to be called the
State Landscape Strategy.
(2) The State
Landscape Strategy is to set out principles, policies and high level strategic
directions for achieving the objects of this Act throughout the State.
(3) In connection with the operation of
subsection (2)
, the State Landscape Strategy will—
(a) set out a long-term vision for managing the State's landscapes;
and
(b) set out a guiding framework of principles and objectives for managing
the State's natural resources; and
(c) support an effective and adaptive planning cycle for landscape
management, with a particular emphasis on establishing links and alignment
between State and regional planning; and
(d) set out high level principles for the Landscape Priorities Fund;
and
(e) identify outcomes that are expected to be achieved by the
implementation of the strategy and timeframes for achieving those outcomes;
and
(f) include or address other matters as may be contemplated by this Act or
prescribed by the regulations.
(4) The State Landscape Strategy must take into account—
(a) the state and condition of the State's landscapes; and
(b) the key or strategic priorities of the regional landscape boards;
and
(c) whole-of-government strategies and priorities that are relevant to the
operation of this Act.
(5) The State Landscape Strategy must include a framework for measuring
the success of the State Landscape Strategy.
(6) The Minister must
review the State Landscape Strategy at least once in every 10 years.
(7) A review under
subsection (6)
must include a review of the success of the State Landscape Strategy after
taking into account the outcomes sought to be achieved by the State Landscape
Strategy.
(1) The Minister
should, in establishing or reviewing the State Landscape Strategy under
section 42
, undertake such consultation as the Minister determines to be necessary
and appropriate taking into account—
(a) the status and scope of the State Landscape Strategy; and
(b) the need to promote government and community involvement in strategic
policy planning under the Act.
(2) At the conclusion of a review under
section 42(6)
, the Minister must prepare a report on the outcome of the review and
publish the report in such manner as the Minister considers
appropriate.
(3) The Minister may amend the State Landscape Strategy at any time after
undertaking such consultation as the Minister determines to be necessary and
appropriate after taking into account the status of the State Landscape Strategy
and the extent of the proposed amendment.
(4) The Minister must ensure that up-to-date copies of the State Landscape
Strategy are made reasonably available to the public.
(5) The State Landscape Strategy is an expression of policy and does not
in itself affect rights or liabilities (whether of a substantive, procedural or
other nature).
Part 4—Regional
and water allocation plans
Division 1—Regional
landscape plans and business plans
44—Preparation
of regional landscape plans
A regional landscape board must prepare and maintain a plan for the
purposes of its operations and to promote the objects of this Act through
managing landscapes within its region (a regional landscape
plan).
(1) A regional
landscape plan must—
(i) in the case of the Green Adelaide Board—a 5 year strategic plan
that is focussed on its 7 key priorities; or
(ii) in the case of any
other regional landscape board—a 5 year strategic plan that is focussed on
its 5 strategic priorities; and
(b) in the case of
the priorities included under
paragraph (a)(ii)
—information about how the priorities were determined, including
through identifying and taking into account local priorities and needs,
scientific and other relevant expert information and advice, Aboriginal
traditional knowledge, and other relevant information, evidence and factors;
and
(c) include information about how these priorities are expected to
maintain, protect, improve or enhance the state of landscapes at the regional
and local level after taking into account—
(i) the nature, extent and quality of those landscapes; and
(ii) environmental, social, cultural, economic and practical
considerations relating to the use, management, conservation, protection,
improvement and, if relevant, rehabilitation, of those landscapes; and
(iii) appropriate methods associated with the conservation and use of
land, the management of water and water affecting activities, and the management
of pest species of animals and plants; and
(iv) other prescribed matters; and
(d) set out the method or methods that the board will use to assess the
extent to which it has succeeded in implementing the plan, and its business
plan; and
(e) include such other information or material contemplated by this Act or
required by the regulations.
(2) A regional landscape plan should be consistent with the State
Landscape Strategy.
(3) A regional
landscape plan, when adopted, (and amendments made to a plan when adopted)
should, as far as practicable, be consistent with such other plans, policies,
strategies or guidelines as are prescribed by the regulations.
(4) In addition, a plan must—
(a) address, adopt or incorporate any plan, policy or strategy specified
by the Minister; and
(b) address, and be consistent with, any intergovernmental agreement
specified by the Minister.
(5) A regional landscape board must, in preparing and reviewing its
regional landscape plan, give due consideration to the plans of other boards
insofar as this may be relevant to issues or activities under its
plan.
(6) A council or council subsidiary must, when performing functions or
exercising powers under the
Local
Government Act 1999
or any other Act, have regard to any regional landscape plan that applies
within the relevant area and in particular must give consideration to the
question whether it should implement changes to the manner in which, or the
means by which, it performs a function or exercises a power or undertakes any
other activity that has been identified in the plan as requiring
change.
(7) A plan must be in a form determined or approved by the
Minister.
(8) A regional landscape board may amend its regional landscape plan at
any time (in accordance with the provisions of this Act).
(1) A regional
landscape board must review its regional landscape plan on a comprehensive basis
at least once in every 5 years.
(2) The purpose of a comprehensive review under
subsection (1)
is to—
(a) provide a review of the extent to which the implementation of the plan
has been successful in maintaining, protecting, improving or enhancing the state
of landscapes at the regional and local level; and
(b) assess or address any other matter prescribed by the
regulations.
(3) A regional
landscape board may also review any aspect of its regional landscape plan at any
time.
(4) In undertaking a
review under
subsection (1)
or
(3)
, the regional landscape board will undertake such consultation as the
board determines to be reasonable after taking into account any guidelines
specified by the Minister for the purposes of this section.
(5) The consultation referred to in
subsection (4)
must also comply with any requirements prescribed by the
regulations.
(6) At the conclusion of a review under
subsection (1)
, the regional landscape board must—
(a) report to the Minister on the outcome of the review; and
(b) make a public statement about the outcome of the review in such
manner, and to such extent, as the board thinks appropriate.
47—Consultation
associated with preparation of a plan or amendment
(1) A regional
landscape board proposing to create or amend a regional landscape plan must
undertake such consultation as the board determines to be reasonable after
taking into account any guidelines specified by the Minister for the purposes of
this section.
(2) The consultation
referred to in
subsection (1)
must also comply with any requirements prescribed by the
regulations.
(3) In connection with
subsections (1)
and
(2)
, consultation on any proposed amendments to a regional landscape plan may
be undertaken as part of a review of the plan under
section 46
.
(4) The board must, at
the time that it furnishes a proposal to the Minister to approve a regional
landscape plan, or an amendment to a regional landscape plan, provide a report
on the consultation undertaken by the board for the purposes of this section
(and this report may be included as part of a report to the Minister under
section 46
).
(5) A report under
subsection (4)
must provide information about any matters raised during consultation and
comply with any requirements prescribed by the regulations.
(6) A regional landscape board may, at the end of the processes referred
to above, propose any amendments to the regional landscape plan as it thinks fit
(and is not required to repeat the processes on account of any change to its
original proposal or proposals).
(1) Subject to this Act, a regional landscape plan, or an amendment of a
regional landscape plan, does not have effect unless or until it has been
approved by the Minister.
(2) The Minister
may, on receiving a proposal to approve a plan, or the amendment of a plan, (a
plan proposal)—
(a) approve the
plan proposal with or without amendment; or
(b) refer the plan proposal back to the board for further
consideration.
(3) The Minister must consult with the regional landscape board before
making an amendment under
subsection (2)(a)
.
(4) If the Minister
refers a plan proposal back to the regional landscape board, the board must take
any further action specified by the Minister to reconsider the plan proposal
(and the board may take such other action as it thinks fit), and then the board
must refer the plan proposal (with or without amendment) back to the
Minister.
(5) After a
regional landscape board has complied with
subsection (4)
, the Minister may—
(a) approve the plan proposal with or without amendment; or
(b) refer the plan
proposal back to the board again (in which case
subsection (4)
will again apply); or
(c) lay the plan proposal aside.
(6) In a case where
subsection (5)(b)
applies, the Minister may, after the board has complied with
subsection (4)
—
(a) approve the plan proposal with or without amendment; or
(b) lay the plan proposal aside.
(7) If the Minister lays a plan proposal aside, the Minister may give
directions to the regional landscape board as to what steps the board should
take in the circumstances.
(8) The preceding subsections do not apply to an amendment of a regional
landscape plan if—
(a) the amendment is to achieve consistency with any other plan under this
Act, or to achieve consistency with any other plan, policy, strategy, program or
guideline prescribed by the regulations; or
(b) the amendment is otherwise authorised by the regulations.
(9) A regional landscape board must ensure that up-to-date copies of its
regional landscape plan are made reasonably available to the public.
(1) A regional landscape board must prepare a business plan for each
financial year (an annual business plan).
(2) An annual business plan must be in a form determined or approved by
the Minister and be prepared in accordance with any prescribed
requirements.
(3) An annual business plan must include—
(a) the regional
landscape board's budget for the relevant financial year; and
(b) without limiting
paragraph (a)
—prescribed information with respect to amounts proposed to be
recovered by the regional landscape board under
Part 5
in relation to the relevant financial year; and
(c) information that clearly shows proposed expenditure for each of the
regional landscape board's key or strategic priorities; and
(d) information about the board's staffing arrangements or plans for the
relevant financial year; and
(e) such other information as may be contemplated by this Act or
prescribed by the regulations.
(4) Without limiting
any other provision, the annual business plan must clearly show any proposal of
the regional landscape board—
(a) to require a contribution from the constituent councils for the region
under
Part 5 Division 1
Subdivision 1
where it has not required such a contribution in relation to the financial
year immediately preceding the relevant financial year; or
(b) to require a contribution from the constituent councils for the region
under
Part 5 Division 1
Subdivision 1
which will require the approval of the Minister under
section 64(5)
; or
(c) for a change to be made to the basis of a levy under
section 67(3)
; or
(d) to require a contribution from persons who occupy land outside council
areas under
Part 5 Division 1
Subdivision 2
where it has not required such a contribution in relation to the financial
year immediately preceding the relevant financial year; or
(e) to require a contribution under
Part 5
Division 1 Subdivision 2
which will require the approval of the Minister under
section 69(10)
; or
(f) to make a change to the basis of a levy under
section 69(4)
; or
(g) for a new levy to be imposed under
Part 5
Division 2
; or
(h) for the Minister to act under
section 74(17)(b)
; or
(i) for a change to be made to the basis of a levy under
section 74(7)
.
(5) If a regional
landscape board is intending to include in its annual business plan any proposal
referred to in
subsection (4)
(referred to in the following subsections as a prescribed levy
proposal), the board must—
(a) publish, in
accordance with any guidelines specified by the Minister for the purposes of
this subsection, information relating to the proposal as well as a notice
inviting members of the public to provide it with written submissions in
relation to the proposal within a specified period (which must be at
least 21 days); and
(b) in a case where the
proposal relates to the payment (or proposed payment) of contributions by
constituent councils under
Part 5 Division 1
Subdivision 1
—take steps to consult with each constituent council to the extent
required by the regulations; and
(c) at the conclusion
of the processes and consultation required under
paragraphs (a)
and
(b)
—prepare a report to the Minister on the outcome of those processes
and that consultation.
(6) When an annual business plan has been prepared in accordance with the
preceding subsections, the regional landscape board must provide the plan to the
Minister in accordance with the regulations.
(7) The annual business
plan must be accompanied by any report required under
subsection (5)(c)
.
(8) An annual business
plan requires the approval of the Minister if—
(a) it is inconsistent with the board's regional landscape plan;
or
(b) it contains a
prescribed levy proposal.
(9) The Minister, in considering whether to approve an annual business
plan under
subsection (8)(b)
—
(a) must take into account—
(i) the report provided to the Minister under
subsection (7)
; and
(ii) the requirements of
section 64(5)
,
69(10)
(if relevant); and
(b) may take into account such other matters as the Minister thinks
fit.
(10) If the Minister
gives an approval under
subsection (8)(b)
, the Minister must prepare a report on the matter and cause a copy of the
report to be laid before both Houses of Parliament within 6 sitting days after
so acting.
(11) The House of
Assembly may, by resolution passed within 6 sitting days after a report has been
laid before it under
subsection (10)
—
(a) resolve that it does not object to a prescribed levy proposal; or
(b) resolve to suggest
amendments to a prescribed levy proposal; or
(c) resolve to disallow a prescribed levy proposal.
(12) If, at the expiration of 6 sitting days, the House of Assembly has
not made a resolution under
subsection (11)
, it will be conclusively presumed that the House of Assembly does not
object to the prescribed levy proposal and does not propose to suggest any
amendments to it (and in this case the prescribed levy proposal may
proceed).
(13) If an amendment is suggested under
subsection (11)(b)
—
(a) the Minister may make the amendment (and then the prescribed levy
proposal, as amended, may proceed); or
(b) the Minister must report back to the House of Assembly that the
Minister is not willing to make the amendment and, in this case, the House of
Assembly may resolve that it does not object to the prescribed levy proposal as
originally approved by the Minister (and in this case the prescribed levy
proposal may proceed), or may resolve to disallow the prescribed levy
proposal.
(14) If the House of Assembly passes a resolution to disallow a prescribed
levy proposal—
(a) the prescribed levy proposal ceases to have effect; and
(b) the business plan will be taken to provide for an increase from the
amount to be paid in relation to the immediately preceding financial year,
adjusted to take account the percentage change in CPI as described in
section 64(4)
,
69(9)
or
74(16)
(as the case may be and including in a case where the proposal was, or
included, a proposal to change the basis of a levy).
(15) A regional landscape board may adjust its annual business plan from
time to time as circumstances require.
(16) If a regional landscape board makes a material adjustment to its
annual business plan, the regional landscape board must provide a copy of the
business plan (as adjusted) to the Minister (and such an adjustment will require
the approval of the Minister in circumstances prescribed by the
regulations).
(17) A regional landscape board must ensure that up-to-date copies of its
annual business plan are made reasonably available to the public.
Division 2—Water
allocation plans
50—Preparation
of water allocation plans
(1) Subject to
subsection (2)
, a regional landscape board must prepare a water allocation
plan—
(a) for each prescribed water resource in its region; and
(b) for any prescribed water resource, situated in more than 1 region,
which is located in its region more than in any other region (with any question
as to the application of this paragraph being determined by the
Minister).
(2) The Chief Executive
may, if determined by the Minister, prepare a water allocation plan for any
prescribed water resource if—
(a) the whole or any part of the water resource is within the Green
Adelaide Region; or
(b) the Minister
considers that special circumstances apply.
(3) For the purposes of
subsection (2)(b)
, special circumstances include—
(a) that an administrator has been appointed under
section 41
; or
(b) that the relevant regional landscape board has failed to prepare a
water allocation plan in a timely manner (as determined by the
Minister).
(4) A water allocation plan may relate to more than 1 prescribed water
resource.
(5) An entity entitled to prepare a water allocation plan is also
responsible to review, or entitled to prepare an amendment to, a water
allocation plan (in accordance with the provisions of this Act and on the basis
that
subsections (1)
and
(2)
also apply to any review or amendment in the same way as those subsections
apply to the preparation of a water allocation plan).
(6) If the Chief Executive is the designated entity for a water allocation
plan, the Chief Executive must take reasonable steps to consult with any
regional landscape board within whose region the relevant prescribed water
resource is situated (in whole or in part) in undertaking the key processes and
procedures set out in this Division.
(7) If—
(a) a regional landscape board is the designated entity for a water
allocation plan; and
(b) the relevant prescribed water resource is situated in more than 1
region,
the regional landscape board must take reasonable steps to consult with any
other regional landscape board in whose area a part of the prescribed water
resource is situated in undertaking the key processes and procedures set out in
this Division.
(8) A reference in this Division or
Division 3
, or in
Part 8
, to a designated entity is a reference to an entity that is
able to prepare, review or amend a water allocation plan under this
section.
(1) A water allocation plan—
(a) must include—
(i) an assessment of the quantity and quality of water needed by the
ecosystems that depend on the water resource and the times at which, or the
periods during which, those ecosystems will need that water; and
(ii) an assessment as to whether the taking or use of water from the
resource will have a detrimental effect on the quantity or quality of water that
is available from any other water resource; and
(b) must include—
(i) an assessment of the capacity of the water resource to meet
environmental water requirements; and
(ii) information about the water that is to be set aside for the
environment including, insofar as is reasonably practicable, information about
the quantity and quality of that water, the time when that water is expected to
be made available, and the type and extent of the ecosystems to which it is to
be provided; and
(iii) a statement of the environmental outcomes expected to be delivered
on account of the provision of environmental water under the plan; and
(c) must determine, or provide a mechanism for determining, from time to
time, a consumptive pool, or consumptive pools, for the water resource;
and
(d) must set out principles associated with the determination of water
access entitlements and for the taking and use of water so that—
(i) an equitable balance is achieved between environmental, social and
economic needs for the water; and
(ii) the rate of the taking and use of the water is sustainable;
and
(e) in providing for the allocation of water, must take into account the
present and future needs of the occupiers of land in relation to the existing
requirements and future capacity of the land and the likely effect of those
provisions on the value of the land; and
(f) must assess the capacity of the resource to meet the demands for water
on a continuing basis and provide for regular monitoring of the capacity of the
resource to meet those demands; and
(g) must identify and assess methods for the conservation, use and
management of water in an efficient and sustainable manner; and
(h) in connection with the conservation, management or protection of the
water resource, may—
(i) make provision for the requirement to have a water management
authorisation or a permit under
Part 8
Division 2
to undertake an activity specified in the water allocation plan;
and
(ii) make provision for the identification of the relevant authority for
the purposes of the application and implementation of the provisions of the
water allocation plan under
Part 8
Division 2
; and
(iii) set out matters that should be taken into account when a relevant
authority is exercising a power to grant or refuse a water management
authorisation or a permit under
Part 8
Division 2
or
Division 3
; and
(iv) make provision for or in relation to the conditions of any water
management authorisation or permit issued under
Part 8
Division 2
or
Division 3
; and
(i) may identify the changes (if any) considered by the designated entity
to be necessary or desirable to any statutory instrument, plan or policy
(including subordinate legislation); and
(j) may include a framework for measuring the success of the water
allocation plan; and
(k) may include such other information or material contemplated by this
Act or required or authorised by the regulations.
(2) A water allocation
plan that relates to a surface water prescribed area may declare water in a
prescribed watercourse, or a particular part of a prescribed watercourse, that
is located within the boundary of the surface water prescribed area as forming
part of the surface water prescribed area.
(3) If a declaration is made under
subsection (2)
—
(a) the declaration will have effect according to its terms; and
(b) the water to which it relates, and the surface water, will be taken to
form part of a single prescribed water resource; and
(c) the water allocation plan may account for and manage the relevant
water as part of the prescribed water resource to which it relates (including as
to any requirement for a water management authorisation).
(4) A water allocation plan may provide for the constitution of 1 or more
consumptive pools with respect to a particular part of a water resource and, in
relation to those consumptive pools, may do any of the following (in any
combination):
(a) assign the same purpose to more than 1 consumptive pool;
(b) assign different purposes to different consumptive pools;
(c) assign different purposes to a consumptive pool;
(d) not assign any purpose to a consumptive pool or consumptive
pools.
(5) The basis on
which a water access entitlement is to be determined may be
expressed—
(a) as a specified share of the water that constitutes the relevant
consumptive pool from time to time, expressed—
(i) as a number of units of a total number of units; or
(ii) as a percentage,
(as made available over a specified period); or
(b) as a specified maximum volume over a specified period; or
(c) if relevant in view of the nature of the particular water resource, as
a specified proportion of water held in the relevant water resource, or a
specified proportion of any inflow of water; or
(d) on any basis prescribed by the regulations; or
(e) on any other basis that the designated entity considers should apply
under the water allocation plan.
(6) The periods specified for the purposes of a water access entitlement
may be recurrent periods (such as financial years).
(7) A water allocation plan may—
(a) set out appropriate policies and principles to assist in regulating
the transfer of, or other dealings with, water management authorisations or
water access entitlements (which policies may include provisions that provide
for the varying of any water management authorisation or water access
entitlements or prevent specified classes of transfers or dealings in specified
circumstances); and
(b) specify the classes of applications which will be subject to the
operation of
section 135
or
142
.
(8) A water allocation
plan may provide for the variation of site use approvals or water resource works
approvals of classes specified by the plan in circumstances specified by the
plan.
(9) If the taking, or the taking and use, of water from a water resource
has, or is likely to have, a detrimental effect on the quantity or quality of
water that is available from another water resource, the water allocation plan
for the first mentioned resource must take into account the needs of persons and
ecosystems using water from the other resource as well as the needs of persons
and ecosystems using water from its own resource and may, to achieve an
equitable balance between competing interests, include provisions designed to
prevent or reduce those detrimental effects.
(10) If the taking, or the taking and use, of water from a water resource
affects, or is likely to affect, the management of water in another water
resource, the water allocation plan for the second mentioned water resource may
include provisions relating to the taking, or the taking and use, of water from
the first mentioned water resource.
(11) A water allocation plan may, in order to improve the management of a
water resource, change the basis on which water is allocated from the resource
notwithstanding that a consequential variation of a water licence to maintain
consistency with the plan results in a reduction or increase in the quantity of
water allocated in relation to the licence.
(12) For the purposes of this section, environmental water requirements
are those water requirements that must be met in order to sustain the ecological
values of ecosystems that depend on the water resource, including their
processes and biodiversity, at a low level of risk.
(13) A water
allocation plan may, in connection with the management of a prescribed water
resource—
(a) set out or
identify appropriate principles and methodologies to determine the impact that
commercial forests may have on the prescribed water resource and, on the basis
of those principles and methodologies, specify hydrological values, as
measurements of hydrological impact, that may be assigned to various classes of
commercial forest; and
(b) designate
commercial forests, or commercial forests of a specified class or classes,
within a defined area as commercial forests that, on account of assessments
undertaken by the regional landscape board, have been identified as being
appropriate to bring within the ambit of
Part 8 Division 6
Subdivision 2
on account of their impacts on the prescribed water resource (taking into
account the requirements of that Division); and
(c) set out policies or criteria that are to apply for the purposes of
determining the extent to which a water allocation under
Part 8
Division 6
should be varied in various cases (which may include circumstances that
lead to an allocation being reduced to zero).
(14) A water
allocation plan may, for the purposes of
subsection (13)
do the following:
(a) make different provision as to any principles, methodologies or values
according to any matter or circumstance specified by the designated
entity;
(b) specify values (as measurements of hydrological impact) according to
any number of trees, volume, area, year or other factor (as determined by the
designated entity);
(c) exclude
specified forests, or forests of a specified class, from a designation under
subsection (13)(b)
(so as to exclude them from the operation of
Part 8
Division 6 Subdivision 2
).
(15) A designation under
subsection (13)(b)
may be made on the basis of an assessment of hydrological impacts that the
commercial forests are having, or may be expected to have, on the prescribed
water resource.
(16) A summary of the assessments undertaken for the purposes of
subsection (13)(b)
must be included in the water allocation plan.
(17) For the purposes of
subsections (13)
and
(14)
, hydrological impacts may be determined according to an assessment by the
designated entity of 1 or more of the following:
(a) groundwater recharge reduction;
(b) surface water run off reduction;
(c) direct extraction from aquifers;
(d) any impact prescribed by the regulations.
(18) To avoid doubt, a water allocation plan may make provision under
subsection (13)
in relation to 1 or more commercial forests despite the fact that the
commercial forest or commercial forests have not been the subject of a notice
under
section 99(7)
.
(19) A water allocation plan should be consistent with the State Landscape
Strategy.
(20) A water allocation plan, when adopted, (and amendments made to a
water allocation plan when adopted) should, as far as practicable, be consistent
with such other plans, policies, strategies or guidelines as are prescribed by
the regulations.
(21) In addition, a water allocation plan must—
(a) address, adopt or incorporate any plan, policy or strategy specified
by the Minister; and
(b) address, and be consistent with, any intergovernmental agreement
specified by the Minister.
(22) A designated entity must, in preparing and reviewing a water
allocation plan, give due consideration to any other water allocation plan
insofar as this may be relevant to the water allocation plan.
(23) In the event of an inconsistency between a regional landscape plan
and a water allocation plan, the water allocation plan will prevail to the
extent of the inconsistency.
(24) A plan must be in a form determined or approved by the
Minister.
(1) A designated entity
must review a water allocation plan on a comprehensive basis at least once in
every 10 years.
(2) The purpose of a comprehensive review under
subsection (1)
is to—
(a) provide a review of—
(i) the principles reflected in the plan; and
(ii) the success of the plan after taking into account the outcomes sought
to be achieved by the water allocation plan; and
(b) provide an assessment of whether the water allocation plan remains
appropriate or requires amendment; and
(c) assess or address any other matter prescribed by the
regulations.
(3) A designated entity
may also review any aspect of a water allocation plan at any time.
(4) In undertaking a
review under
subsection (1)
or
(3)
, the designated entity will undertake such consultation as the designated
entity determines to be reasonable after taking into account any guidelines
specified by the Minister for the purposes of this section.
(5) The consultation referred to in
subsection (4)
must also comply with any requirements prescribed by the
regulations.
(6) At the conclusion of a review under
subsection (1)
, the designated entity must—
(a) report to the Minister on the outcome of the review; and
(b) make a public statement about the outcome of the review in such
manner, and to such extent, as the designated entity thinks
appropriate.
53—Consultation
associated with preparation of a plan or amendment
(1) A designated entity
proposing to create or amend a water allocation plan must undertake such
consultation as the designated entity determines to be reasonable after taking
into account any guidelines specified by the Minister for the purposes of this
section.
(2) The consultation
referred to in
subsection (1)
must—
(a) in the case of a proposal to create a water allocation
plan—provide for a period of public consultation for at least 2 months
from the time that a draft of the plan is released to the public; and
(b) comply with any other requirements prescribed by the
regulations.
(3) In connection with
subsections (1)
and
(2)
—
(a) consultation on any proposed amendments to a water allocation plan may
be undertaken as part of a review of the plan under
section 52
; and
(b) if the proposal would lead to a reduction of existing water access
entitlements or water allocations in connection with water licences in respect
of the water resource, or a change to a consumptive pool, the designated entity
must ensure that the holders of the licences affected by the reduction or change
are notified of the proposal in accordance with the regulations (and provided
with a reasonable opportunity to make representations in respect of the
matter).
(4) A designated entity
must, at the time that it furnishes a proposal to the Minister to approve a
water allocation plan, or an amendment to a water allocation plan, provide a
report on the consultation undertaken by the designated entity for the purposes
of this section (and this report may be included as part of a report to the
Minister under
section 52
).
(5) A report under
subsection (4)
must provide information about any matters raised during consultation and
comply with any requirements prescribed by the regulations.
(6) A designated entity may, at the end of the processes referred to
above, propose any amendments to the water allocation plan as it thinks fit (and
is not required to repeat the processes on account of any change to its original
proposal or proposals).
(1) Subject to this Act, a water allocation plan, or an amendment of a
water allocation plan, does not have effect unless or until it has been approved
by the Minister.
(2) The Minister may, on receiving a proposal to approve a plan, or the
amendment of a plan, (a plan proposal)—
(a) approve the plan proposal with or without amendment; or
(b) refer the plan proposal back to the designated entity for further
consideration.
(3) The Minister must consult with the designated entity before making an
amendment under
subsection (2)(a)
.
(4) If the Minister
refers a plan proposal back to the designated entity, the designated entity must
take any further action specified by the Minister to reconsider the plan
proposal (and the designated entity may take such other action as it thinks
fit), and then the designated entity must refer the plan proposal (with or
without amendment) back to the Minister.
(5) After the
designated entity has complied with
subsection (4)
, the Minister may—
(a) approve the plan proposal with or without amendment; or
(b) refer the plan
proposal back to the designated entity again (in which case
subsection (4)
will again apply); or
(c) lay the plan proposal aside.
(6) In a case where
subsection (5)(b)
applies, the Minister may, after the designated entity has complied with
subsection (4)
—
(a) approve the plan proposal with or without amendment; or
(b) lay the plan proposal aside.
(7) If the Minister lays a plan proposal aside, the Minister may give
directions as to what steps should be taken in the circumstances.
(8) The preceding subsections do not apply to the amendment of a water
allocation plan if—
(a) the amendment is to achieve consistency with any other plan under this
Act, or to achieve consistency with any other plan, policy, strategy, program or
guideline prescribed by the regulations; or
(b) the amendment is otherwise authorised by the regulations.
(9) A regional landscape board must ensure that up-to-date copies of any
water allocation plan that relates to a prescribed water resource within its
region are made reasonably available to the public.
(1) A draft water
allocation plan or amendments to a water allocation plan that have not been
approved by the Minister under
section 54
may be implemented by the regional landscape board with the consent of the
Minister under this section and, if
subsection (2)
applies, the consent of the Minister for the time being administering the
Water
Industry Act 2012
.
(2) The consent of the
Minister for the time being administering the
Water
Industry Act 2012
is required under
subsection (1)
if, in the opinion of the Minister for the time being administering this
Act, implementation of the plan or the amendments under
subsection (1)
would affect the quality or quantity of water flowing into any
infrastructure under the
Water
Industry Act 2012
.
(3) If the Minister and the Minister for the time being administering the
Water
Industry Act 2012
cannot reach agreement for the purposes of
subsection (2)
, the Minister may take steps to refer the matter to the Governor and the
Governor will determine the matter (and any decision taken by the Governor will
be taken to be a decision of both Ministers for the purposes of this
section).
This Division applies to a plan under
Division 1
or
Division 2
.
(1) A plan, or a provision of a plan, is not invalid because it is
inconsistent with the State Landscape Strategy.
(2) A failure of a regional landscape board to comply with a requirement
of this Part cannot be taken to affect the validity of a plan, or any other
instrument under this Act.
58—Promotion
of River Murray legislation and IGA
To the extent that a plan applies to the Murray-Darling Basin or in
relation to the River Murray, the plan should—
(a) seek to further the objects of the
River
Murray Act 2003
and the Objectives for a Healthy River Murray under that Act;
and
(b) be consistent with—
(i) the terms or requirements of the Murray-Darling Basin Agreement, and
any relevant resolution of the Ministerial Council under that agreement;
and
(ii) any relevant provisions of the Basin Plan under the Water Act
2007 of the Commonwealth,
(insofar as they may be relevant).
59—Associated
Ministerial consents
(1) Subject to
subsection (4)
, if in the opinion of the Minister the implementation of a plan would
affect the quality or quantity of water flowing into any water infrastructure
under the
Water
Industry Act 2012
, the Minister must not approve the plan without the consent of the
Minister for the time being administering that Act.
(2) Subject to
subsection (4)
, if in the opinion of the Minister the implementation of a plan would
adversely affect any native animal or native plant that is subject to any form
of control under the
National
Parks and Wildlife Act 1972
, the Minister must not approve the plan without the consent of the
Minister for the time being administering that Act.
(3) Subject to
subsection (4)
, if in the opinion of the Minister the implementation of a plan would
result in the clearance of any native vegetation, the Minister must not approve
the plan without the consent of the Minister for the time being administering
the
Native
Vegetation Act 1991
.
(4) If the relevant
Ministers cannot reach agreement on a plan under
subsection (1)
,
(2)
or
(3)
, the Minister administering this Act may approve the plan with the consent
of the Governor.
60—Amendment
of plans without formal procedures
(1) The Minister
may amend a plan in order—
(a) to take action which, in the opinion of the Minister, is
addressing—
(i) an unfair, inappropriate or unsustainable assumption or position
contained or reflected in the plan; or
(ii) a matter that is, or that is based on, a mistake of fact;
or
(b) to achieve
greater consistency with the provisions of a management plan under the
Marine
Parks Act 2007
; or
(c) to further the objects of the
River
Murray Act 2003
, or the Objectives for a Healthy River Murray under that Act;
or
(d) to achieve greater consistency with—
(i) the terms or requirements of the Murray-Darling Basin Agreement, or
any relevant resolution of the Ministerial Council under that agreement;
or
(ii) the provisions of the Basin Plan under the Water Act 2007 of
the Commonwealth; or
(e) to achieve greater consistency with the terms or requirements of the
Border Groundwaters Agreement under the
Groundwater
(Border Agreement) Act 1985
; or
(f) to achieve greater consistency with the terms or requirements of the
Lake Eyre Basin Intergovernmental Agreement under the
Lake
Eyre Basin (Intergovernmental Agreement) Act 2001
; or
(g) to achieve consistency with any other relevant intergovernmental
agreement,
without the application or adoption of any procedures for amendment under
Division 1
or
Division 2
(as the case requires) if the Minister certifies, at the time of making
the amendment, that the amendment is not to be used to effect a reduction in
existing water access entitlements or water allocations in connection with water
licences, or a change to a consumptive pool, and that the Minister has consulted
with the relevant regional landscape board before taking action under this
subsection.
(2) If the Minister makes an amendment under
subsection (1)
, the Minister must—
(a) prepare a report in relation to the matter; and
(b) cause a copy of the report to be laid before both Houses of Parliament
within 12 sitting days after completing the report.
(3) A regional
landscape board, a designated entity or the Minister may amend a plan in
order—
(a) to correct an error in the plan; or
(b) to achieve consistency with any other plan under this Act, or to give
effect to the provisions of a stormwater management plan under Schedule 1A of
the
Local
Government Act 1999
(including by incorporating the whole or any part of that plan into the
plan under this Part); or
(c) to make a change of form (not involving a change of substance) in the
plan,
without the application or adoption of any procedures for amendment under
Division 1
or
Division 2
(as the case requires).
61—Plans
may confer discretionary powers
A plan may confer discretionary powers.
62—Effect
of declaration of invalidity
If a part of a plan is found to be invalid—
(a) the balance of the plan may nevertheless continue to have full force
and effect; and
(b) if the part that is found to be invalid arises from, or is
attributable to, an amendment (or purported amendment) to the plan then the
amendment (or purported amendment) will, to the extent of the invalidity, be
disregarded and the plan will, to that extent, revert to the position that
applied immediately before it was sought to give the amendment (or purported
amendment) effect.
63—Time
for preparation and review of plans
(1) The initial regional landscape plan or water allocation plan prepared
by or under this Act need not satisfy all the requirements of this Act but the
Minister, a regional landscape board or a designated entity (as the case
requires) must take reasonable steps to ensure that the plan is brought into a
form that satisfies those requirements by an amendment, or series of amendments,
or by the substitution of a comprehensive plan that satisfies those requirements
within a period determined by the Minister.
(2) If, in the opinion of the Minister, the scope of an initial plan will
be so limited that no useful purpose will be served by the public and other
consultation required by this Act, the Minister may dispense with the
requirements for such consultation in relation to the preparation and adoption
of that plan.
Part 5—Landscape
and water levies
Division 1—Levies
in respect of land
64—Contributions
by constituent councils
(1) The constituent
councils for the region of a regional landscape board are responsible to make a
contribution towards the costs of the board performing its functions under this
Act in respect of a particular financial year if the board's annual business
plan specifies an amount to be contributed by the constituent councils for that
financial year for the purposes of this section.
(2) Liability for the
amount to be contributed by constituent councils for a particular region will be
shared between them according to a scheme set out in the relevant annual
business plan.
(3)
Subsections (1)
and
(2)
are subject to the qualification that the total amount to be paid by the
constituent councils for the region in respect of a particular financial year
should not exceed—
(a) unless
paragraph (b)
or
(c)
applies—the total amount of the constituent councils' contribution
imposed under this Subdivision for the immediately preceding financial year
adjusted by the percentage applying under
subsection (4)
; or
(b) an amount allowed
by the Minister under
subsection (5)
; or
(c) an amount approved
by the Minister under
subsection (7)
.
(4) The percentage
applying under this subsection in respect of a particular financial year is the
percentage change in the CPI (expressed to 1 decimal place) when comparing the
CPI for the September quarter of the immediately preceding financial year with
the CPI for the September quarter of the financial year immediately before that
preceding financial year, being this percentage change published by the
Australian Bureau of Statistics.
(5) The Minister may
allow a regional landscape board to require the constituent councils for the
region to pay more than the amount that would otherwise be payable under
subsection (3)(a)
if the Minister is satisfied that exceptional circumstances exist that
justify the principle established by
subsection (3)(a)
not applying in relation to the board for a particular financial
year.
(6) For the purposes of
subsection (5)
, exceptional circumstances must fall into 1 of the following
cases:
(a) that there is an urgent need to address an issue with existing
infrastructure located within the board's region that cannot reasonably be dealt
with through other funding sources or over a longer period;
(b) that there has been a natural or environmental disaster that has
resulted in extraordinary measures being proposed by the board;
(c) that some other major event with an adverse impact on a significant
part of the community within the board's region has occurred and the board
considers that it should take immediate action in relation to the
matter;
(d) that some other situation exists that is exceptional and that the
benefits in allowing the board to impose an amount under
subsection (5)
in a particular financial year outweigh the fact that additional costs are
to be imposed on the relevant community in a particular financial
year.
(7) In a case where a
regional landscape board did not require a contribution from the constituent
councils for the region in relation to the immediately preceding financial year,
the Minister may approve an amount under this subsection for the relevant
financial year after taking into account—
(a) a report from the board on the outcome of the consultation required by
section 49
; and
(b) such other matters as the Minister thinks fit.
65—Payment
of contributions by councils
(1) Subject to
subsection (2)
, a council's share of the amount to be contributed by the constituent
councils is payable by the council in approximately equal instalments on
30 September, 31 December, 31 March and 30 June in the year
to which the contribution relates and interest accrues on any amount unpaid at
the rate and in the manner prescribed by regulation.
(2) If notice of a
regional landscape levy imposed by a council in respect of a financial year
could not be included in the notice of general rates for that year because the
regional landscape board's annual business plan was not finalised (and, if
necessary, approved by the Minister) on or before 1 June preceding that year,
the council may pay its share in approximately equal instalments on
31 December, 31 March and 30 June in that year.
(3) An amount payable by a council to a regional landscape board under
this section and any interest that accrues in respect of that amount is
recoverable by the board as a debt.
66—Funds
may be expended in subsequent years
To avoid doubt, if an amount paid by a council under this Subdivision is
not spent by a regional landscape board in the financial year in respect of
which it was paid, it may be spent by the board in a subsequent financial
year.
67—Imposition
of levy by councils
(1) In order to reimburse themselves for the amounts contributed (or to be
contributed) to a regional landscape board under this Subdivision, the
constituent councils must impose a levy (a regional landscape
levy) on rateable land in the region of the board.
(2) Except to the extent that the contrary intention appears, Chapter 10
of the
Local
Government Act 1999
applies to and in relation to a regional landscape levy as if it were a
separate rate under that Chapter.
(3) Without
limiting the operation of any other provision of this Act, the following
provisions apply with respect to the application of Chapter 10 of the
Local
Government Act 1999
to and in relation to a regional landscape levy:
(a) section 154(1) and
(2) of that Act will not apply in relation to the levy and the basis for the
levy will be chosen from the following, as determined under a scheme set out in
the relevant annual business plan:
(i) the value of rateable land; or
(ii) a fixed charge of the same amount on all rateable land; or
(iii) a fixed charge of
an amount that depends on the purpose for which rateable land is used;
or
(iv) the area of rateable land;
(b) if the value of
rateable land is to be the basis for the levy, a council must use capital value,
site value or annual value as the basis to impose the levy;
(c) any section, or any part of any section, of Chapter 10 of that Act
prescribed by the regulations (including any other part of section 154 of that
Act) will not apply in relation to the levy;
(d) the regulations may modify the operation of Chapter 10 of that Act in
any other respect.
(4) To avoid doubt, nothing in
subsection (3)
prevents the operation of section 158 of the
Local
Government Act 1999
.
(5) The purposes for which land may be used that may be the basis for a
regional landscape levy under
subsection (3)(a)(iii)
may be prescribed by the regulations.
(6) A council must
(as far as is reasonably practicable) fix a regional landscape levy in a manner
calculated to return the same amount as the council's share of the amount to be
contributed to the relevant regional landscape board under this
Division.
(7) A regional landscape levy imposed under this section will be taken to
be a rate imposed under the
Local
Government Act 1999
for the purposes of the
Rates
and Land Tax Remission Act 1986
.
(8) The amount that applies under
subsection (6)
will be arrived at after taking into account any rebates or remissions to
be granted by the council.
(9) A regional landscape levy is not invalid because it raises more or
less than the amount that applies under
subsection (6)
.
(10) A regulation cannot be made modifying the operation of Chapter 10 of
the
Local
Government Act 1999
under this section unless the Minister has given the LGA notice of the
proposal to make a regulation under this section and given consideration to any
submission made by the LGA within a period (of at least 21 days) specified
by the Minister.
(1) A regional
landscape board is liable to pay to each of the constituent councils for the
region an amount determined in accordance with the regulations on account of the
costs of the council in complying with the requirements of this
Subdivision.
(2) Regulations made for the purposes of
subsection (1)
may—
(a) provide a method or methods by which a council's costs are to be
determined, including by the use of estimates or prescribed amounts in
prescribed circumstances; and
(b) limit any calculation of costs to amounts prescribed as fair costs;
and
(c) take into account any financial benefit to a council in receiving
payment of a regional landscape levy before it pays its share of the amount to
be contributed to the board under this Subdivision.
(3) A payment under
subsection (1)
must be paid in accordance with the regulations.
(4) A regulation cannot be made for the purposes of this section unless
the Minister has given the LGA notice of the proposal to make a regulation under
this section and given consideration to any submission made by the LGA within a
period (of at least 21 days) specified by the Minister.
Subdivision 2—Outside
council areas
(1) If the annual
business plan for a regional landscape board specifies an amount to be
contributed by persons who occupy land outside council areas towards the costs
of the board performing its functions under this Act in a particular financial
year, the board may, by notice in the Gazette, declare a levy under this
section.
(2) Subject to this section, a levy may be declared with respect to land
within the relevant area (to be called rateable land for the
purposes of this section).
(3) The regulations may exclude land, or land of a prescribed class, from
the operation of this section.
(4) A levy may be
based on 1 of the following factors, as specified in the relevant annual
business plan:
(a) the capital value of rateable land;
(b) a fixed charge of the same amount on all rateable land within the
relevant area;
(c) a fixed charge of
an amount that depends on the purpose for which rateable land is used;
(d) the area of rateable land;
(e) any other factor prescribed by the regulations.
(5) Differential levies may be declared on any basis prescribed by the
regulations.
(6) The purposes for which land may be used that may be the basis for a
regional landscape levy under
subsection (4)(c)
may be prescribed by the regulations.
(7) A regional landscape board may, in declaring a levy, fix a minimum
amount payable by way of a levy under this section (despite a preceding
subsection).
(8) The amount
specified by a regional landscape board in an annual business plan under
subsection (1)
in respect of a particular financial year should not
exceed—
(a) unless
paragraph (b)
or
(c)
applies—the amount imposed by the board under this section for the
immediately preceding financial year adjusted by the percentage applying under
subsection (9)
; or
(b) an amount allowed
by the Minister under
subsection (10)
; or
(c) an amount approved
the Minister under
subsection (12)
.
(9) The percentage
applying under this subsection in respect of a particular financial year is the
percentage change in the CPI (expressed to 1 decimal place) when comparing the
CPI for the September quarter of the immediately preceding financial year with
the CPI for the September quarter of the financial year immediately before that
preceding financial year, being this percentage change published by the
Australian Bureau of Statistics.
(10) The Minister may
allow a regional landscape board to specify an amount under this section that
exceeds the amount that would otherwise be payable under
subsection (8)(a)
if the Minister is satisfied that exceptional circumstances exist that
justify the principle established by
subsection (8)(a)
not applying in relation to the board for a particular financial
year.
(11) For the purposes of
subsection (10)
, exceptional circumstances must fall into 1 of the following
cases:
(a) that there is an urgent need to address an issue with existing
infrastructure located within the board's region that cannot reasonably be dealt
with through other funding sources or over a longer period;
(b) that there has been a natural or environmental disaster that has
resulted in extraordinary measures being proposed by the board;
(c) that some other major event with an adverse impact on a significant
part of the community within the board's region has occurred and the board
considers that it should take immediate action in relation to the
matter;
(d) that some other situation exists that is exceptional and that the
benefits in allowing the board to impose an amount under
subsection (10)
in a particular financial year outweigh the fact that additional costs are
to be imposed on the relevant community in a particular financial
year.
(12) In a case where a
regional landscape board did not require a contribution under this section in
relation to the immediately preceding financial year, the Minister may approve
an amount under this subsection for the relevant financial year after taking
into account such matters as the Minister thinks fit.
(13) To avoid doubt, if an amount due or paid to a regional landscape
board under this section is not received or spent by the regional landscape
board in the relevant financial year, it may be spent by the board in a
subsequent financial year.
70—Liability
and payment of levy
(1) Subject to
subsection (2)
, the owner of any rateable land will be taken to be the occupier of the
land and so liable to pay a levy declared under this Subdivision.
(2) If a person other
than the owner of rateable land has, by notice to the relevant regional
landscape board in a manner and form determined by the board, assumed liability
to pay a levy under this Subdivision, that person will be liable to pay the
levy.
(3) The relevant regional landscape board must as soon as is reasonably
practicable after the declaration of a levy cause a notice of the amount of the
levy that is payable in respect of any land for the relevant financial year to
be served on the person liable to pay the levy.
(4) The notice must state—
(a) the amount of the levy payable; and
(b) the factor on which the levy is based and, if it is a differential
levy, the differential basis; and
(c) the date on or before which the levy must be paid or, if the regional
landscape board is prepared to accept payment in instalments, the amount of each
instalment and the date on or before which it must be paid.
(5) If there are 2 or more persons liable to pay a levy, service of a
notice on 1 of them will be taken to be service on both or all of
them.
(6) A regional landscape board—
(a) may arrange for service of a notice to be effected as part of any
other notice served by a public authority or other person; and
(b) may arrange for collection of a levy to be effected by a public
authority or other person.
(7) The Governor may, by regulation—
(a) make other provisions for the collection of the levy; and
(b) grant remissions in respect of the levy, or a part of the levy;
and
(c) provide for such other matters as the Governor thinks fit.
Subdivision 3—Related
provisions
If a piece of land to which the provisions of this Division apply is
divided—
(a) by the boundaries of 2 or more landscape management regions;
or
(b) by the boundaries of 2 or more councils,
then the whole of the land will be taken to be assigned to a particular
region or a particular council area (as the case requires) in accordance with a
scheme set out in the regulations (and the other provisions of this Part will
then apply accordingly so that only 1 levy under this Division is imposed in
relation to the whole of the land in accordance with the assignment and so that
the whole of the levy so imposed will be payable with respect to the regional
landscape board for the region to which the assignment relates).
(1) To avoid doubt, nothing in this Division prevents any levy raised in 1
part of the State being applied by a regional landscape board in another part of
the State in accordance with the provisions of an annual business
plan.
(2) However, the Minister cannot, by direction or by the exercise of any
other power under this Act, require a regional landscape board to apply any levy
raised in its region in another part of the State.
(3) To avoid doubt, nothing in this Division limits the requirement to pay
amounts into the Landscape Priorities Fund under
Part 6
.
Division 2—Levies
in respect of water
(1) In this Division, unless the contrary intention
appears—
accounting period means a financial year, or part of a
financial year, in respect of which a levy is payable under this Division in
accordance with a notice served under
section 76
;
consumption period in relation to an accounting period means
a period of approximately the same length as the accounting period that
commences or terminates during the accounting period and in respect of which the
quantity of water taken is measured by meter readings;
imported water permit means a permit required under
section 102(3)(e)
with respect to the use of water in the circumstances described in
section 102(4)(i)
;
to irrigate land includes to water land by any means for the
purpose of growing any kind of plant or plants;
levy includes an instalment of a levy.
(2) For the purposes of this Division, water will be regarded as being
allocated under the terms of a water access entitlement even if the right to the
allocation is held by a person who is not the holder of the water
licence.
(1) The Minister
may, by notice in the Gazette, declare a levy or levies (a water levy or
levies) payable by persons who—
(a) are the holders
of any water management authorisation granted in relation to a water resource
within a specified landscape management region; or
(b) are the holders
of imported water permits; or
(c) are authorised
under
section 103
to take water from a water resource within a specified landscape
management region; or
(d) are the holders of forest water licences granted in relation to
commercial forests within a specified landscape management region.
(2) A levy declared
by the Minister under this section must be set at a level that will return an
amount that is near as reasonably practicable to the amount stated in the annual
business plan (or plans) of the relevant regional landscape board (or boards) as
the amount to be raised by way of that particular water levy under this
Division.
(3) A levy is not invalid because it raises more or less than the amount
referred to in
subsection (2)
.
(4) An annual business plan may include proposals for money raised through
the imposition of a levy in 1 or more years to be expended in a subsequent year
or years (and a levy may be declared on this basis).
(5) Without
limiting the operation of any other subsection—
(a) levies under
subsection (1)(a)
may—
(i) in respect of a
levy with respect to a water licence or water allocation—be declared with
respect to 1 or both of the following:
(A) the right to an
allocation of water under the terms of a water access entitlement or
IWETS;
(B) the allocation
of water under the terms of a water access entitlement or IWETS; and
(ii) in respect of
a levy with respect to a water resource works approval—be declared with
respect to 1 or both of the following:
(A) the potential
use of the relevant works for the purposes of taking water;
(B) the use of the
relevant works for the purposes of taking water; and
(iii) in respect of
a levy with respect to a site use approval—be declared with respect to 1
or both of the following:
(b) levies under
subsection (1)(c)
may be declared with respect to 1 or both of the following:
(i) the right to take water;
(ii) the water taken.
(6) Levies may be declared, applied or imposed even if water is yet to be
made available under the terms of a water access entitlement or IWETS.
(7) A levy may
comprise of 1 or more components based on 1 or more of the following factors (in
any combination), as determined under a scheme set out in the relevant business
plan (or plans):
(a) a fixed charge;
(b) the quantity of water allocated;
(c) the quantity of water received or taken;
(d) the quantity of water passing through any works;
(e) the size, type or capacity of any works;
(f) the quantity of water used;
(g) the share of the water that makes up the relevant water
resource;
(h) the area of land where water may be used, or the area of land where
water is used;
(i) the effect that
taking or using water has, or may have, on the environment, or some other effect
or impact that, in the opinion of the Minister, is relevant and that is capable
of being determined, measured or applied.
(8) A quantity of water may be determined according to a unit, percentage,
volume or proportion of water.
(9) Without
limiting
subsection (7)(i)
, in the case of the River Murray, a factor on which a levy may be based is
the effect that the use of water may have on salinity levels associated with the
River Murray.
(10) Different
levies may be declared in respect of the same water resource based on 1 or more
of the following factors:
(a) the part of the water resource from which the water may be, or is,
taken;
(b) the place or location where the water may be, or is, used;
(c) the purpose for which the water may be, or is, used;
(d) the manner in which the water may be, or is, used;
(e) when the right to take or use the water was granted;
(f) any other factor prescribed by the regulations.
(11) For the purposes of
subsection (7)
or
(9)
, the Minister may, by notice in the Gazette, determine a method or methods
by which the effect that the taking or using of water is having may be
determined, measured or used.
(12) The Minister may, in declaring a levy, fix a minimum amount payable
by way of a levy under this section (despite a preceding subsection).
(13) If a levy that relates to the River Murray has a component based on
the effect that the use of water may have on salinity levels associated with the
River Murray, money raised from the levy that is attributable to that component
must be applied towards reducing salinity levels associated with the River
Murray.
(14) A levy cannot be imposed under this section with respect to the
taking of water for domestic purposes or for watering stock that are not subject
to intensive farming.
(15) Furthermore, the
amount of a levy imposed in relation to a particular component under
subsection (7)
in respect of a particular financial year should not exceed the amount
imposed under this section for the immediately preceding financial year adjusted
by the percentage applying under
subsection (16)
.
(16) The percentage
applying under this subsection in respect of a particular financial year is the
percentage change in the CPI (expressed to 1 decimal place) when comparing the
CPI for the September quarter of the immediately preceding financial year with
the CPI for the September quarter of the financial year immediately before that
preceding financial year, being this percentage change published by the
Australian Bureau of Statistics.
(17)
Subsections (15)
and
(16)
do not apply if—
(a) a levy was not imposed in relation to the particular component under
subsection (7)
in respect of the immediately preceding financial year; or
(b) the Minister is
satisfied that it is appropriate that the subsections do not apply in the
particular circumstances.
(18) A notice under
subsection (1)
—
(a) has effect in relation to the financial year specified in the notice;
and
(b) subject to
subsection (19)
, must be published in the Gazette on or before the first day of that
financial year.
(19) A notice under
subsection (1)
with respect to a watercourse, lake or well, or surface water taken from a
particular area of the State, may be published in the Gazette within 1 month
after the watercourse, lake or well became a prescribed watercourse, lake or
well or the area became a surface water prescribed area.
(1) For the purposes of this section—
(a) a Category A levy is a levy within the ambit of
section 74(5)(a)(i)(A)
,
(ii)(A)
or
(iii)(A)
; and
(b) a Category B levy is a levy within the ambit of
section 74(5)(a)(i)(B)
,
(ii)(B)
or
(iii)(B)
.
(2) Subject to this
section, a person who holds a water management authorisation at any time during
a financial year in respect of which a levy has been declared is liable to pay
to the Minister the full amount of the levy whether the person holds the water
management authorisation throughout the year or not.
(3) Subject to
subsection (6)
, a person who takes water pursuant to an authorisation under
section 103
at any time during a financial year in respect of which a levy with
respect to the taking of water has been declared is liable to pay to the
Minister the amount of the levy that applies in relation to the
authorisation.
(4) If a levy
applies in relation to water that is intended to be used, or is used, for
irrigating land or in the course of carrying on a business on land, the
following persons are jointly and severally liable to the Minister for payment
of the levy in addition to the person primarily liable under
subsection (2)
or
(3)
:
(a) in the case of
a Category A levy—the owner of the land (if the owner is not the person
primarily liable under
subsection (2)
)—
(i) if the levy was declared during the financial year to which the levy
relates—at the time the levy was declared;
(ii) if a relevant water management authorisation was not in existence in
relation to that land at the commencement of the financial year to which the
levy relates but was granted after the commencement of that year—at the
time when the water management authorisation was granted;
(iii) if the levy is payable with respect to or on account of an increase
in a water allocation—at the time of the increase;
(iv) in any other case—at the commencement of the financial year to
which the levy relates;
(b) in the case of
a Category B levy—the owner of the land (if the owner is not the person
primarily liable under
subsection (2)
) when the relevant water was taken (including under another water
management authorisation);
(c) in the case of
a levy with respect to an authorisation under
section 103
—the owner of the land (if the owner is not the person primarily
liable under
subsection (3)
) when the water was taken;
(d) all persons who own or occupy the land at any time—
(i) after the person primarily liable under
subsection (2)
or
(3)
or the person liable under
paragraph (a)
,
(b)
or
(c)
; and
(ii) before the levy is paid.
(5) A person who makes a payment to the Minister in respect of the
person's liability under
subsection (4)
may recover the amount of the payment from the person primarily liable
under
subsection (2)
or
(3)
.
(6) If 2 or more
persons are liable under
subsection (2)
or
(3)
with respect to water taken (including under another water management
authorisation) during different parts of an accounting period and the water is
used to irrigate the same land or is used in the course of carrying on business
on the same land, the following provisions apply:
(a) the last of those persons to have access to the water during the
accounting period will be liable under
subsection (2)
or
(3)
to the Minister for the amount of the levy with respect to water taken
during the whole of that period; and
(b) that person is entitled to contribution from the other person or
persons with respect to water taken during another part or parts of the
accounting period, calculated on the basis of respective amounts of water
taken.
(7) A levy is payable even though taking water under the terms of a water
management authorisation (including another relevant water management
authorisation) has been prohibited or restricted under this Act or under a
relevant water management authorisation.
(8) A person who holds an imported water permit at any time during a
financial year in respect of which a levy has been declared is liable to pay to
the Minister the full amount of that levy whether the person holds the permit
throughout the year or not.
(9) A person who holds a forest water licence at any time during a
financial year in respect of which a levy has been declared is liable to pay to
the Minister the full amount of the levy whether the person holds the licence
throughout the year or not.
(10) A levy becomes payable on the date for payment stated in the notice
under
section 76
.
(11) A levy or instalments of a levy are payable pursuant to a notice
served under
section 76
despite the fact that the person liable disputes the amount of the levy,
but any overpayment must be refunded when the correct amount is finally
determined.
(12) If 2 or more persons hold an interest in a water management
authorisation, they are each jointly and severally liable for the payment of any
levy that relates to that interest.
76—Notice
of liability for levy
(1) The Minister may serve the notice referred to in
subsection (2)
on a person who is liable to pay a levy under
section 75
.
(a) the amount of the levy payable and the accounting period or periods to
which the notice relates; and
(b) the factor, or combination of factors, on which the levy is based;
and
(c) the date on or before which the levy must be paid or, if the Minister
is prepared to accept payment in instalments, the amount of each instalment and
the date on or before which it must be paid.
(3) The accounting period or periods to which a notice relates must be
confined to 1 financial year or to part of a financial year.
77—Determination
of quantity of water taken
(1) If the basis of
a levy is or includes the quantity of water taken then the following provisions
apply:
(a) meter readings will be used to determine the quantity of water taken
except where—
(i) a meter has not been installed; or
(ii) the readings given by the meter are unreliable in the opinion of the
Minister;
(b) if meter readings are used, the quantity of water taken during an
accounting period will be taken to be the quantity of water taken during the
consumption period for that accounting period;
(c) if meter
readings are not used, the quantity of water taken during an accounting period
will, subject to
subsection (2)
, be assessed by the Minister on—
(i) the basis of the pumping capacity of the pump (if any) used to take
the water; or
(ii) the basis of the area of land irrigated and the crop grown on that
land; or
(iii) such basis as the Minister thinks fit;
(d) water taken—
(i) by the occupier of land for domestic purposes on the land or for
providing stock (other than stock subject to intensive farming) kept on the land
with drinking water; or
(ii) for firefighting,
must be disregarded;
(e) if water taken
for domestic or stock purposes or for firefighting is not measured by meter, or
the water taken is used for other purposes as well, the Minister must make an
assessment of the quantity of water taken for those purposes in accordance with
paragraph (c)
;
(f) water taken for the purposes of the construction or repair of a public
road must be disregarded;
(g) if water taken for the purposes of the construction or repair of a
public road is not measured by meter, or the water is taken for other purposes
as well, the Minister must make an assessment of the quantity of water taken for
those purposes on such basis as the Minister thinks fit.
(2) For the
purposes of
subsection (1)(c)
, the Minister must publish a notice in the Gazette setting
out—
(a) if the basis of assessment is to be pumping capacity—the method
to be used in assessing the quantity of water on that basis; or
(b) if the basis of assessment is to be crop area—water use rates
for the crop concerned; or
(c) if some other basis of assessment is to be used—the basis to be
used and the method by which it will be used.
(3) A notice under
subsection (2)
—
(a) may relate to a particular water resource or class of resource;
and
(b) is not required in relation to water taken for stock or domestic
purposes; and
(c) may be varied by the Minister from time to time, or revoked by the
Minister.
(4) If a person
liable to pay a levy with respect to water taken from a prescribed water
resource is dissatisfied with the accuracy of a meter supplied by the Minister
that is being used to measure any quantity of water taken, the person may, on
payment of the fee prescribed by the regulations, require the Minister to test
the meter.
(a) the meter used to measure any quantity of water taken has not been
supplied by the Minister; and
(b) the Minister requires that the meter be tested,
then the person liable to pay a levy with respect to that water must ensure
that the meter is tested in the manner prescribed by the regulations and provide
a certificate relating to the testing to the Minister in accordance with the
regulations.
Maximum penalty: $10 000.
(6) If a person fails to comply with
subsection (5)
, the Minister may arrange for the meter to be tested and recover the cost
of the testing from that person as a debt due to the Crown in a court of
competent jurisdiction.
(7) If on testing a
meter in accordance with this section it is found—
(a) that the quantity of water measured by the meter was not more than 5%
more or less than the quantity of water actually taken, the quantity of water
measured by the meter will be the quantity in respect of which the levy is
payable;
(b) that the quantity of water as measured by the meter was inaccurate by
more than 5% and the Minister is able to determine the degree of inaccuracy, the
Minister may serve a further notice under
section 76
based on the quantity of water taken appropriately adjusted;
(c) that the quantity of water as measured by the meter was inaccurate by
more than 5% but the Minister is unable to determine the degree of inaccuracy,
the Minister may serve a further notice under
section 76
based on the Minister's assessment under
subsection (1)(c)
and
subsection (2)
does not apply in relation to an assessment in these
circumstances.
(8) If the quantity of water as measured by a meter tested under
subsection (4)
was inaccurate by more than 5%, the Minister must refund the fee referred
to in that subsection.
(9) A person who is dissatisfied with the finding or determination of the
Minister under
subsection (7)
may appeal to the ERD Court against the finding or
determination.
(10) If the Minister assesses—
(a) the quantity of water taken under
subsection (1)(c)
; or
(b) the quantity of water used for domestic or stock purposes or for
firefighting under
subsection (1)(e)
; or
(c) the quantity of water taken by a person who is not authorised by a
licence or under
section 103
to take the water,
the assessment and the basis on which it was made cannot be called into
question by, or before, any court, tribunal or other authority except on the
ground that the assessment was not made in good faith.
(11) The Governor may, by regulation, prescribe standards for meters used
for the purpose of determining the quantity of water taken.
78—Cancellation
etc of entitlement for non-payment of levy
(1) If a person who
holds a water management authorisation or an imported water permit has failed to
pay a levy, or an instalment of a levy, within 3 months after being served with
a notice under
section 76
, the Minister may serve further notice on the holder of the water
management authorisation or permit requiring payment within a period of not less
than 1 month and stating that the water management authorisation or permit
(as the case may be) may be cancelled, suspended or varied by the Minister if
the amount is not paid within that time.
(2) The Minister may cancel, suspend or vary the water management
authorisation or imported water permit by 7 days written notice served on the
holder of the water management authorisation or permit if the levy or instalment
is not paid in accordance with the notice referred to in
subsection (1)
.
79—Costs
associated with collection
(1) Subject to
subsection (2)
, a regional landscape board is liable to pay to the Minister an amount
determined in accordance with guidelines approved by the Treasurer on account of
the costs incurred by the Minister in collecting any levy under this Division
that applies in respect of a water resource located within the region of the
board.
(2) An amount
payable by a regional landscape board with respect to a particular financial
year cannot exceed an amount determined in accordance with the
regulations.
This Division applies to—
(a) an OC levy; and
(b) a water levy.
(1) Interest accrues—
(a) on an unpaid levy; and
(b) on any unpaid instalments of a levy; and
(c) on unpaid interest,
in accordance with the regulations.
(2) A person who is liable to pay a levy is also liable to pay interest
that accrues, or has accrued, on or in relation to the levy under this
section.
(3) The Minister
may release a person suffering financial hardship from liability to pay the
whole or part of interest that has accrued under this section.
The Minister may discount a levy in accordance with the regulations to
encourage early payment of the levy.
83—Recovery
rights with respect to unpaid levy
(1) In the case of an OC levy, the levy will be a first charge on rateable
land in accordance with a scheme established by the regulations.
(2) In the case of
a water levy, other than a levy imposed in relation to a water licence or water
allocation, the levy will be a first charge on—
(a) in the case of a levy imposed in relation to a site use approval or
delivery capacity entitlement—any land where any water that relates to the
relevant water management authorisation is used; and
(b) in the case of a water resource works approval—the land where
the relevant works are located, or to which they are connected (taking into
account any principles prescribed by the regulations),
in accordance with a scheme established by the regulations.
(3) In addition,
any levy that is not paid in accordance with a notice under
section 76
, together with any interest under
section 81
, may be recovered by the Minister as a debt from any person who is liable
to pay the levy.
(4) No statute of limitations bars or affects any action or remedy for
recovery by the Minister of an amount under
subsection (3)
.
(5) Any action to recover any levy (and interest) as a debt does not
prejudice any action to recover any levy (and interest) as a charge on land in a
case where
subsection (2)
applies, and vice versa, but any amount sought to be recovered under 1
right must be adjusted to take into account any amount actually recovered under
the other right.
84—Sale
of land for non-payment of a levy
(1) If a levy, or interest in relation to a levy, is a first charge on
land and has been unpaid for 3 years or more, the Minister may sell the
land.
(2) Before the
Minister sells land in pursuance of this section, the Minister must serve notice
on the owner and occupier of the land—
(a) stating the period for which the levy and interest have been in
arrears; and
(b) stating the amount of the total liability for the levy and interest
presently outstanding and charged on the land; and
(c) stating that if that amount is not paid in full within 1 month of
service of the notice (or such longer time as the Minister may allow), the
Minister intends to sell the land for non-payment of the levy or
interest.
(3) A copy of a notice must be served on—
(a) any registered mortgagee or encumbrancee of the land; and
(b) the holder of any caveat over the land.
(4) If the outstanding amount is not paid in full within the time allowed
under
subsection (2)
, the Minister may proceed to sell the land.
(5) The sale will, except in the case of land held from the Crown under a
lease, licence or agreement to purchase, be by public auction (and the Minister
may set a reserve price for the purposes of the auction).
(6) An auction under this section must be advertised on at least 2
separate occasions in a newspaper circulating generally throughout the
State.
(7) If, before the date of the auction, the outstanding amount and the
costs incurred by the Minister in proceeding under this section are paid to the
Minister, the Minister must withdraw the land from auction.
(8) If—
(a) an auction fails; or
(b) the land is held from the Crown under a lease, licence or agreement to
purchase,
the Minister may sell the land by private contract for the best price that
the Minister can reasonably obtain.
(9) Any money received by the Minister in respect of the sale of land
under this section will be applied as follows:
(a) firstly—in paying the costs of the sale and any other costs
incurred in proceeding under this section;
(b) secondly—in discharging the liability for the levy and interest
and any other liabilities to the Minister in respect of the land;
(c) thirdly—in discharging the liability (if any) to any other
authority under this Act that relates to the administration of this
Act;
(d) fourthly—in discharging any liability to the Crown for rates,
charges or taxes (including rates, charges or taxes that are a first charge on
the land);
(e) fifthly—in discharging any liability to a council for rates or
any other liability to a council in respect of the land;
(f) sixthly—in discharging any liabilities secured by registered
mortgages, encumbrances or charges;
(g) seventhly—in discharging any other mortgages, encumbrances and
charges of which the Minister has notice;
(h) eighthly—in payment to the former owner of the land.
(10) If the former owner cannot be found after making reasonable inquiries
as to that person's whereabouts, an amount payable to the former owner must be
dealt with as unclaimed money under the
Unclaimed
Moneys Act 1891
.
(11) If land is
sold by the Minister in pursuance of this section, an instrument of transfer
executed by the Minister will operate to vest title to the land in the
purchaser.
(12) If the
Minister cannot sell the land under this section after taking all reasonable
steps to do so—
(a) the Minister
may, by notice in the Gazette, assume title to the land (and title will then, by
force of this subsection, vest in the Minister); and
(b) the value of the land vested in the Minister under
paragraph (a)
, as at the date of the notice under that paragraph, will be deducted from
any outstanding amount and the costs incurred by the Minister in proceeding
under this section.
(13) The title vested under
subsection (11)
or
(12)
will be free of—
(a) all mortgages, charges and caveats; and
(b) except in the case of land held from the Crown under lease or
licence—all leases and licences.
(14) An instrument of transfer passing title to land in pursuance of a
sale under this section must, when lodged with the Registrar-General for
registration or enrolment, be accompanied by a statutory declaration made by the
Chief Executive of the Department stating that the requirements of this section
in relation to the dealing with the land have been observed.
(15) The Chief Executive of the Department must, as soon as is reasonably
practicable after the publication of a notice under
subsection (12)
, inform the Registrar-General of the publication of the notice and lodge
with the Registrar-General a statutory declaration stating that the requirements
of this section in relation to dealing with the land have been
observed.
(16) A reference in this section to land, or title to land, held from the
Crown under lease, licence or agreement to purchase, is a reference to the
interest of the lessee, licensee or purchaser in the land.
(1) A regional
landscape plan, annual business plan or the regulations may set out natural
resources management practices designed to conserve, protect, maintain or
improve the quality or state of natural resources of a specified kind that will
form the basis of an application for a refund of the levy imposed under this
Part.
(2) Without limiting
subsection (1)
, natural resources management practices may include—
(a) the establishment of, or participation in, a drainage scheme, or a
scheme to restore or rehabilitate natural resources; or
(b) the establishment or maintenance of infrastructure, plant or
equipment; or
(c) other initiatives.
(3) The plan or the regulations must specify the amount of the refund that
may be applied for.
(4) A person who has undertaken or adopted practices referred to in
subsection (1)
in a financial year may apply for a refund of the whole or a part of a
levy (or a component of a levy) under this Part paid by that person for that
year.
(5) The application must be made to the relevant regional landscape
board.
(6) A regional landscape board must grant an application under this
section if the relevant criteria set out in the regional landscape plan, annual
business plan or the regulations have been satisfied.
(7) Without limiting the criteria that may be used, a plan or regulations
may specify accreditation by a specified body as the criterion or 1 of the
criteria on which an application will be granted.
(8) An applicant may apply to the Minister for a review of a decision of a
regional landscape board under this section.
(9) On the granting of an application, the relevant regional landscape
board must pay to the applicant the amount of the refund applied for.
(10) The Minister
may also grant a refund of, or an exemption from, the whole or a part of a levy
(or a component of a levy)—
(a) as a condition of a water management authorisation; or
(b) under the terms of a management agreement under the
River
Murray Act 2003
; or
(c) by notice in the Gazette.
(11) A refund under
this section may be granted on conditions determined by the regional landscape
board or by the Minister.
(12) Without limiting
subsection (11)
, a condition may be that the person who has the benefit of the refund pay
a fee to cover—
(a) any administrative costs associated with granting the refund;
or
(b) any monitoring or assessment costs associated with ensuring that
specified criteria or conditions are met.
86—Declaration
of penalty in relation to unauthorised or unlawful taking of
water
(1) The Minister
may, by notice in the Gazette, declare a penalty payable by—
(a) a person who is
the holder of a water allocation who takes water in excess of the amount
available under the allocation; or
(b) a person who is
the holder of a water resource works approval who takes water contrary to the
provisions that apply in relation to that water resource works approval;
or
(c) a person who is
the holder of a site use approval who uses water contrary to the provisions that
apply in relation to the site use approval; or
(d) a person who is
the holder of a delivery capacity entitlement who takes water contrary to the
provisions that apply in relation to that delivery capacity entitlement;
or
(e) a person who
takes water and is not authorised under
section 103
or as part of a water allocation to take that water, and so acts in
contravention of this Act; or
(f) a person who
has acted in contravention of a notice under
section 107
.
(2) The Minister may declare different penalties—
(a) depending on the quantity of water taken or used; or
(b) for water taken from different water resources; or
(c) in the case of a contravention of a notice under
section 107
—depending on the relevant circumstances.
(3) Subject to
subsection (4)
, a notice declaring a penalty under
subsection (1)(a)
,
(b)
,
(c)
or
(d)
—
(a) will apply with respect to the taking of water in a consumption period
that corresponds to an accounting period specified in the notice; and
(b) must be published in the Gazette during the first half of the
accounting period.
(4) If the Minister
has not declared a penalty or penalties under
paragraph (a)
,
(b)
,
(c)
or
(d)
by the end of the first half of a particular accounting period (the
new accounting period), it will be taken that the last penalty or
penalties declared by the Minister under that paragraph also apply to the taking
or use of water in the consumption period that corresponds to the new accounting
period.
(5) A notice declaring a penalty under
subsection (1)(e)
or
(f)
—
(a) will apply with respect to the taking of water in the period specified
in the notice; and
(b) may be published in the Gazette at any time before or during that
period.
(6) The sections of this Part prescribed by the regulations apply to, and
in relation to, a penalty under this section as though it were a levy declared
under
section 74
.
(7) In this section—
accounting period and consumption period have
the same respective meanings as in
Division 2
.
87—Appropriation
of levies, penalties and interest
(1) Money paid in
satisfaction of a liability for a levy under this Part, after any appropriate
deductions authorised by or under this Act, and penalty or interest,
must—
(i) in the case of a levy collected under
Division 1
—be paid to the regional landscape board for the region in respect of
which the levy is declared; and
(ii) in the case of a
levy paid to the Minister under
Division 2
—
(A) unless
subsubparagraph (B)
applies—be paid to the regional landscape board for the region where
the water resource in relation to which the levy was declared is located;
or
(B) in the case of a
levy attributable to a water resource situated in more than 1 region—be
paid to the regional landscape board determined under a scheme for the
allocation of levies between regional landscape boards established by the
Minister for the purposes of this provision; and
(b) in the case of a penalty under
section 86
—be paid into the Landscape Administration Fund; and
(c) in any other case—be paid in accordance with the
regulations.
(2) The Treasurer may authorise deductions that will have effect under
subsection (1)
.
(3) The following will initially be deposited in the Landscape
Administration Fund:
(a) money paid to the Minister;
(b) money paid in satisfaction of a liability for a levy collected under
Division 1
.
(4) This section applies subject to any provision made under
Part 6
.
Division 1—The
Landscape Administration Fund
88—The
Landscape Administration Fund
(1) There will be a fund kept in a separate account at the Treasury to be
called the Landscape Administration Fund.
(2) The Landscape Administration Fund will consist of—
(a) any money provided by Parliament for the purposes of the fund;
and
(b) grants, gifts and loans made to the Minister for payment into the
fund; and
(c) any income arising from the investment of the fund under
subsection (3)
; and
(d) money paid by a regional landscape board that is the repayment of a
loan or other form of financial accommodation that has been financed by money
drawn from the fund; and
(e) the prescribed percentage of fees (other than expiation fees) paid
under this Act; and
(f) expiation fees and the prescribed percentage of penalties recovered in
respect of offences against this Act; and
(g) all other money that is required or authorised by or under this Act or
any other law to be paid into the fund.
(3) Any money in
the Landscape Administration Fund that is not for the time being required for
the purposes of this Act may be invested by the Minister after consultation with
the Treasurer.
(4) The Minister
may apply any part of the Landscape Administration Fund—
(a) in making payments to regional landscape boards; or
(b) in making grants or other payments to other persons or bodies for the
purposes of this Act; or
(c) in satisfying any requirements to use levies for a particular purpose;
or
(d) in refunding a levy under
Part 5
; or
(e) in paying any amount into the Landscape Priorities Fund that the
Minister determines should be held and applied for the purposes of that fund
rather than under this section (and any such determination will have effect
according to its terms); or
(f) for any other purpose to further the objects of this Act or to support
the operation or administration of this Act; or
(g) in making any other payment required or authorised by or under this
Act or any other law.
The Minister must cause proper accounts to be kept of money paid to and
from the Landscape Administration Fund.
The Auditor-General may at any time, and must at least once in each year,
audit the accounts of the Landscape Administration Fund.
Division 2—The
Landscape Priorities Fund
91—The
Landscape Priorities Fund
(1) There will be a fund kept in a separate account at the Treasury to be
called the Landscape Priorities Fund.
(2) The Landscape
Priorities Fund will consist of—
(a) any money provided by Parliament for the purposes of the fund;
and
(b) grants, gifts and loans made to the Minister for payment into the
fund; and
(c) any income arising from the investment of the fund under
subsection (4)
; and
(d) the designated
percentage of contributions received by the Green Adelaide Board under
Part 5 Division 1
Subdivision 1
; and
(e) the designated
percentage of the amount that would otherwise be payable to the Green Adelaide
Board under
section 87(1)(a)(ii)(A)
; and
(f) any money that the Minister pays into the fund from the Landscape
Administration Fund; and
(g) any other money that the Minister determines should be held and
applied for the purposes of the fund (and any such determination will have
effect according to its terms); and
(h) all other money that is required or authorised by or under this Act or
any other law to be paid into the fund.
(3) For the purposes of
subsection (2)(d)
and
(e)
, the Minister may from time to time, by notice in the Gazette, designate a
percentage for each (or either) of those provisions.
(4) Any money in the
Landscape Priorities Fund that is not for the time being required for the
purposes of this Act may be invested by the Minister after consultation with the
Treasurer.
(5) The Minister may
apply any part of the Landscape Priorities Fund—
(a) in addressing any
priority for managing, improving or enhancing the State's landscape or natural
resources, whether the priority is of sub-regional, regional, cross-regional or
State wide significance; or
(b) in making any other payment required or authorised by or under this
Act or any other law.
(6) The Minister must,
in acting under
subsection (5)
, take into account any principles relating to the use of the fund set out
in the State Landscape Strategy.
(7) For the purposes of
subsection (5)(a)
, the Minister may establish criteria and processes associated
with—
(a) receiving and assessing applications for funding to address those
priorities; and
(b) making grants or other payments to bodies, organisations, groups or
persons who may undertake activities to address those priorities.
(8) The Minister may, in acting under
subsection (7)
, make grants or provide financial assistance on such conditions as the
Minister thinks fit.
The Minister must cause proper accounts to be kept of money paid into and
from the Landscape Priorities Fund.
The Auditor-General may at any time, and must at least once in each year,
audit the accounts of the Landscape Priorities Fund.
Division 3—Regional
landscape board funds
94—Regional
landscape board funds
(1) Each regional landscape board must establish, maintain and administer
a fund to be called by a distinctive name and to be managed in accordance with
any relevant requirements of the
Public
Finance and Audit Act 1987
.
(2) The fund of a regional landscape board will consist
of—
(a) any money received by the board from the Minister; and
(b) any money received by the board under this Act; and
(c) any income arising from the investment of the fund under
subsection (3)
; and
(d) other money received by the board in the performance of its functions
or the exercise of its powers under this Act; and
(e) all other money that is required or authorised by or under this Act or
any other law to be paid into the fund.
(3) Any money in
the fund of a regional landscape board that is not for the time being required
for the purposes of this Act may, with the consent of the Minister, be invested
by the board in accordance with the usual requirements that apply with respect
to the investment of trust funds.
(4) A regional landscape board may apply any part of its
fund—
(a) in implementing its regional landscape plan or annual business plan,
or any water allocation plan, in initiating or supporting other programs and
projects under this Act, and in performing its other functions; or
(b) in defraying any expenses incurred by the board in the administration
of any part of this Act; or
(c) in providing
financial assistance to other bodies or persons in accordance with this Act;
or
(d) without limiting
paragraph (c)
, in acting under
section 25
or
26
; or
(e) in refunding a levy under
Part 5
(as necessary); or
(f) in making any other payment required or authorised by or under this
Act or any other law.
Part 7—Management
and protection of land
In this Part—
degradation of land means any change in the quality of land,
or any loss of soil, that has an adverse effect on water, native vegetation or
other natural resources associated with, or reliant on, land, any other aspect
of the environment, or biological diversity;
relevant authority means—
(a) the regional landscape board for the relevant area; or
(b) in prescribed circumstances—an authorised officer.
96—Special
provisions relating to land
(1) Subject to this
section, if a relevant authority considers—
(a) that an owner of land has been, is, or is likely to be, in breach of
the general statutory duty on account of land management practices or activities
undertaken in relation to land for which the owner is responsible; and
(b) that those practices or activities have resulted in, or could
reasonably be expected to result in, unreasonable degradation of land or an
unreasonable risk of degradation of land,
the relevant authority may require the owner to prepare an action
plan in accordance with the requirements of this Part.
(2) The following are relevant to determining whether a practice or
activity involves (or may involve) unreasonable degradation, or an unreasonable
risk of degradation, of land:
(a) any relevant provisions of the regional landscape plan or any relevant
landscapes affecting activities control policy;
(b) the extent to which a practice or activity has been authorised under
another Act, or is being, or will be, undertaken in connection with an activity
authorised under another Act;
(c) the local situation, conditions and surrounding circumstances, with
regard being given to contributing factors such as climate, the condition of
land, land and water use, and degrees of risk and impact;
(d) any factors prescribed by the regulations.
(3) Action should
not be taken under this section in relation to—
(a) an activity that a person is required to take under another provision
of this Act; or
(b) an activity that is required or authorised by—
(i) an environment protection policy, an environment protection order, an
environmental authorisation or a clean-up order under the
Environment
Protection Act 1993
; or
(ii) a protection order, a reparation order or a reparation authorisation
under the
River
Murray Act 2003
; or
(c) an activity that is required to implement an approved property plan
under the
Pastoral
Land Management and Conservation Act 1989
; or
(d) an activity that is required to comply with a notice under section 43
of the
Pastoral
Land Management and Conservation Act 1989
; or
(e) an activity that is required to comply with a requirement under the
Fire
and Emergency Services Act 2005
; or
(f) an activity that is required to comply with a requirement under the
South
Eastern Water Conservation and Drainage Act 1992
; or
(g) an activity undertaken in circumstances prescribed by the
regulations.
97—Requirement
to implement action plan
(1) A requirement
to prepare an action plan under this Part is to be imposed by notice in a form
approved by the Minister.
(2) A notice under
subsection (1)
must specify a reasonable period (which must be at least 21 days)
within which the relevant owner of land must prepare the action plan.
(3) An owner of
land who receives a notice under
subsection (1)
may, within 21 days after receiving the notice, apply to the Chief
Executive for a review of the notice.
(4) The Chief
Executive may, on application under
subsection (3)
and after giving the applicant a reasonable opportunity to be heard and to
place material before the Chief Executive, confirm, vary or set aside the
notice.
(5) The Chief Executive must prepare and make available written reasons
for the Chief Executive's decision on an application under
subsection (3)
.
(6) Subject to the
outcome of any review under
subsection (4)
(and, if relevant, any appeal under
Part 11
), if an owner of land is required to prepare an action plan then the owner
must submit such a plan to the relevant authority that issued the notice in
accordance with the requirements of the notice.
(7) An action plan submitted under
subsection (6)
must set out in detail—
(a) the measures that the owner proposes to take to address any breach of
the general statutory duty, and to comply with the general statutory duty in the
future; and
(b) the period or periods within which those measures are proposed to be
taken.
(8) The relevant
authority to which the action plan is submitted should, within 6 weeks after
receiving the plan—
(a) approve the plan; or
(b) after consulting with the owner, amend the plan,
and must then notify the owner of its decision.
(9) The owner may,
within 21 days after receiving a notice under
subsection (8)
, apply to the Chief Executive for a review of the action plan.
(10) The Chief
Executive may, on application under
subsection (9)
and after giving the applicant a reasonable opportunity to be heard and to
place material before the Chief Executive, confirm, vary or set aside the action
plan.
(11) The Chief Executive must prepare and make available written reasons
for the Chief Executive's decision on an application under
subsection (9)
.
(a) fails to comply with a notice under this section; or
(b) fails to implement an action plan in accordance with its terms
(including as varied from time to time),
the following provisions will apply:
(c) the owner is guilty of an offence and liable to a penalty not
exceeding $20 000; and
(d) the Chief
Executive or a regional landscape board may—
(i) cause to be carried out such measures as appear to the Chief Executive
or regional landscape board (as the case may be) to be appropriate in view of
the failure on the part of the owner (being, if an action plan has been agreed,
measures contemplated by, or consistent with, that plan); or
(ii) engage a suitably qualified person to devise and implement measures
to address the problem or problems to which the relevant requirement relates
(being, if an action plan has been agreed, measures contemplated by, or
consistent with, that plan).
(13) A person
taking action under
subsection (12)(d)
may, after giving reasonable notice, enter the relevant land at any
reasonable time (using any force that may be reasonably necessary in the
circumstances) and carry out such measures as appear to be appropriate in view
of the failure on the part of the owner.
(14) A person must not hinder or obstruct a person acting under
subsection (12)(d)
or
(13)
.
Maximum penalty: $10 000.
(15) The reasonable
costs and expenses incurred by the Chief Executive or a regional landscape board
in taking action under
subsection (12)(d)
may be recovered as a debt from the relevant owner.
(16) If an amount is recoverable by the Chief Executive or a regional
landscape board under
subsection (15)
, the Chief Executive or regional landscape board (as the case may be) may,
by notice in writing to the relevant owner, fix a period (which must be at least
28 days) within which the amount must be paid by the relevant owner and if the
amount is not paid by the owner within that period, the owner is also liable to
pay interest charged at the prescribed rate per annum on the amount
unpaid.
(17) A relevant
authority may, on its own initiative or on application by an owner of land, by
notice in writing to the owner of land, vary or revoke an action plan under this
section.
(18) However, a relevant authority must take reasonable steps to consult
with the relevant owner of land before it takes action under
subsection (17)
(unless the relevant authority is acting at the request of the
owner).
(19) If an action plan includes an activity for which a permit would, but
for
section 104
, be required under
Part 8
, a relevant authority must not approve the plan, or the variation of the
plan, without first consulting and having regard to views of the authority under
that Part to whom an application for a permit for that activity would otherwise
have to be made.
Part 8—Management
and protection of water resources
Division 1—General
rights in relation to water
98—Right
to take water subject to certain requirements
(1) Subject to this Act and to any other Act or law to the contrary, a
person who has lawful access to a watercourse, lake or well may take water from
the watercourse, lake or well for any purpose.
(2) Subject to this Act and to any other Act or law to the contrary, the
occupier of land is entitled to take surface water from the land for any
purpose.
(3) Subject to this Act, any other Act or law to the contrary, any
provision made by the regulations, or the provisions of a stormwater management
plan incorporated into a regional landscape plan or a water allocation plan
under
section 60(3)
, a person who has lawful access to any stormwater infrastructure may take
water from the infrastructure for any purpose.
(4) However,
subject to
subsections (5)
,
(7)
and
(8)
—
(a) —
(i) an authorisation under
section 103
; or
(ii) a water allocation that relates to the relevant water
resource,
is required to take water from a prescribed watercourse, lake or well or to
take water from a surface water prescribed area; and
(b) a person must not take water from a watercourse, lake or well that is
not prescribed if to do so—
(i) would detrimentally affect the ability of another person to exercise a
right to take water from the watercourse or lake or from the same underground
aquifer; or
(ii) would detrimentally affect the enjoyment of the amenity of water in
the watercourse or lake by the occupier of land—
(A) that adjoins the watercourse or through which the watercourse runs;
or
(B) that adjoins the lake or on which the lake is situated.
(5)
Subsection (4)
does not apply to the taking of water if—
(a) the water is taken by the occupier of land from—
(i) a watercourse that adjoins or runs through the land; or
(ii) a lake that adjoins or is on the land; or
(iii) a well that is on the land; or
(b) the water is surface water and is taken by the occupier of land from
the land,
and is used by the occupier for domestic purposes or for watering stock
(other than stock subject to intensive farming).
(6)
Subsection (5)
does not apply to the taking of water from a prescribed watercourse, lake
or well or the taking of surface water from a surface water prescribed area if
the regulation declaring the watercourse, lake or well or the surface water
prescribed area excludes the operation of that subsection.
(7)
Subsection (4)
does not apply to the taking of water for the purposes of drinking or
cooking by the person who takes it or by a person to whom the water is given if
the rate at which the water is taken does not exceed the rate prescribed by
regulation.
(8)
Subsection (4)
does not apply—
(a) to the taking of water from stormwater infrastructure in circumstances
prescribed by regulation; or
(b) to the taking of water from stormwater infrastructure, or a part of
stormwater infrastructure, brought within the ambit of this paragraph by
regulation.
(9) Despite the other provisions of this section, water must not be taken
contrary to the provisions of a regional landscape plan, a water allocation plan
or a water affecting activities control policy that applies in relation to that
water unless the water is taken pursuant to an authorisation under
section 103
or a water allocation that relates to the relevant water
resource.
(10) This section operates subject to any requirement to have a licence
with respect to a commercial forest under
Division 6
.
(11) Rights at common law in relation to the taking of naturally occurring
water are abolished.
99—Declaration
of prescribed water resources
(1) The Governor
may, by regulation made on the recommendation of the Minister, declare that a
watercourse, lake or well is a prescribed watercourse, lake or well.
(2) The Governor
may, by regulation made on the recommendation of the Minister, declare that part
of the State is a surface water prescribed area.
(3) The Governor
may, by subsequent regulation made on the recommendation of the Minister, vary
or revoke a regulation under
subsection (1)
or
(2)
.
(4) A regulation under
subsection (1)
or
(3)
may refer to watercourses, lakes or wells individually or by reference to
the part of the State in which they are situated or by any other
classification.
(5) A regulation under
subsection (2)
or
(3)
may operate (wholly or in part) by reference to particular stormwater
infrastructure (or a part of stormwater infrastructure).
(6) Before making a
recommendation to the Governor, the Minister must—
(a) cause to be published, in the Gazette and in such other manner as the
Minister thinks appropriate, a notice outlining the proposed recommendation,
stating the reasons for it and inviting interested persons to make written
submissions to the Minister in relation to the proposal within a period (being
at least 3 months) specified in the notice; and
(b) serve a copy of the notice on all councils in the area that will be
affected by the proposed regulation; and
(c) have regard to all submissions made in accordance with the
notice.
(7) The Minister
may, in a notice under
subsection (6)
, include an outline of proposals to introduce controls on the hydrological
impacts of commercial forests, or specified classes of commercial forests, on
the water resource under
Division 6
.
(8) The Minister must not make a recommendation under
subsection (1)
or
(2)
for a regulation declaring a water resource to be a prescribed water
resource unless satisfied that the proposed regulation is necessary or desirable
for the proper management of the water resource to which it will
apply.
(9) After a regulation is made the Minister must cause to be published in
a newspaper circulating generally throughout the State and in a local newspaper
a notice stating the date on which the regulation was made and explaining its
effect.
Division 2—Control
of activities affecting water
Subdivision 1—Water
affecting activities control policies
100—Water
affecting activities control policies
(1) A prescribed authority may prepare a policy under this section (a
water affecting activities control policy) with respect to the
conservation, management or protection of—
(a) a watercourse, lake or well (insofar as the watercourse, lake or well
is within the board's region); or
(b) an area or a place containing (or from time to time containing)
surface water (insofar as the area or place is within the relevant regional
landscape board's region).
(2) However, in the case of—
(a) a prescribed watercourse, lake or well; or
(b) a surface water prescribed area,
a water affecting activities control policy should not overlap with the
provisions of a water allocation plan that is in operation under this Act in
relation to that prescribed water resource.
(3) A water affecting activities control policy may—
(a) make provision for the requirement to have a water management
authorisation or a permit under this Division to undertake an activity specified
in the policy; and
(b) make provision for the identification of the relevant authority for
the purposes of the application and implementation of the policy under this
Division; and
(c) set out matters that should be taken into account when a relevant
authority is exercising a power to grant or refuse a water management
authorisation or a permit under this Division or
Division 3
; and
(d) make provision for or in relation to the conditions of any water
management authorisation or permit issued under this Division or
Division 3
; and
(e) specify rules, and make other provision, in relation to taking water
from a watercourse, lake or well, or from an area or place, other than with
respect to a prescribed water resource; and
(f) include any other matter prescribed by the regulations.
(4) A prescribed authority may amend a water affecting activities control
policy at any time (in accordance with the provisions of this Act).
(5)
Schedule 2
makes provision in relation to the review, preparation and amendment of a
water affecting activities control policy.
(6) In this section—
prescribed authority means a regional landscape board and
includes, in relation to Green Adelaide, the Chief Executive.
Subdivision 2—Determination
of relevant authority
101—Determination
of relevant authority
(1) The relevant authority in relation to the granting of a water
management authorisation is the Minister.
(2) Subject to
subsections (3)
and
(5)
, the relevant authority in relation to activities for which a permit is
required under this Division is—
(a) in the case of an activity referred to in
section 102(3)(a)
,
(b)
or
(c)
—the Minister; and
(b) in the case of an activity referred to in
section 102(3)(d)
—
(i) if so provided by a water allocation plan or a water affecting
activities control policy—the regional landscape board or a designated
authority, as specified in the plan or policy (as the case may be); or
(ii) in any other case—the Minister; and
(c) in the case of
the discharge of water into a watercourse for the purpose of running the water
down the watercourse for storage in a reservoir or other facility—the
Minister; and
(d) in the case of
an activity (other than an activity referred to in
paragraph (c)
) referred to in
section 102(3)(e)
or
(f)
—the authority (being the Minister, the regional landscape board, a
designated authority, a council or a council subsidiary) specified in a water
allocation plan, a water affecting activities control policy or a regulation as
the authority from whom the permit must be obtained.
(3) The authority
that is the relevant authority under
subsection (2)
may appoint the Minister, a regional landscape board, a designated entity,
a council or a council subsidiary in its place to be the relevant authority and
in that event the Minister, regional landscape board, designated entity, council
or council subsidiary so appointed is the relevant authority.
(4) An appointment under
subsection (3)
must be in writing.
(5) In the case of
an activity of a prescribed class within the Murray-Darling Basin, the Minister
will be the relevant authority in relation to activities for which a permit is
required under this Division.
Subdivision 3—Control
of activities
102—Water
affecting activities
(1) A person must
not take water from a prescribed watercourse, lake or well or take surface water
from a surface water prescribed area—
(a) unless the person is—
(i) —
(A) authorised to do so under
section 103
; or
(B) taking the water as part of a water allocation that relates to the
relevant water resource; or
(ii) entitled to take the water for domestic purposes or for watering
stock under
Division 1
; and
(b) if the taking of water consists of the erection, construction or
enlargement of a dam, wall or other structure that collects or diverts water
flowing in a watercourse or flowing over any other land—unless the person
is authorised to erect, construct or enlarge the dam by a water management
authorisation or a permit referred to in
subsection (3)
.
(2) A person must
not take water from a watercourse, lake or well that is not prescribed or take
surface water from land that is not in a surface water prescribed area in
contravention of a water affecting activities control policy.
(3) Subject to this
Act, a person must not undertake any of the following activities unless
authorised to do so by a water management authorisation or permit granted by the
relevant authority:
(a) drilling,
plugging, backfilling or sealing of a well;
(b) repairing,
replacing or altering the casing, lining or screen of a well;
(c) draining or
discharging water directly or indirectly into a well;
(d) the erection,
construction, modification, enlargement or removal of a dam, wall or other
structure that will collect or divert, or collects or diverts—
(i) water flowing in a prescribed watercourse; or
(ii) water flowing in a watercourse in the Mount Lofty Ranges Watershed
that is not prescribed; or
(iii) surface water flowing over land in a surface water prescribed area
or in the Mount Lofty Ranges Watershed;
(e) an activity of
a kind referred to in
subsection (4)
that is identified in a water allocation plan or a water affecting
activities control policy that applies or makes provision in relation to the
region or area in which the activity is to be undertaken as being an activity
for which a permit is required under this subsection;
(f) an activity
prescribed by the regulations made on the recommendation of the
Minister.
(4) Subject to this
Act, a person must not undertake any of the following activities contrary to a
water allocation plan or a water affecting activities control policy that
applies or makes provision in relation to the region or area in which the
activity is to be undertaken:
(a) the erection, construction, modification, enlargement or removal of a
dam, wall or other structure that will collect or divert, or collects or
diverts, water flowing in a watercourse that is not in the Mount Lofty Ranges
Watershed and that is not prescribed or flowing over any other land that is not
in a surface water prescribed area or in the Mount Lofty Ranges
Watershed;
(b) the erection, construction or placement of any building or structure
in a watercourse or lake or on the floodplain of a watercourse;
(c) draining or discharging water directly or indirectly into a
watercourse or lake;
(d) depositing or placing an object or solid material in a watercourse or
lake;
(e) obstructing a watercourse or lake in any other manner;
(f) depositing or placing an object or solid material on the floodplain of
a watercourse or near the bank or shore of a lake to control flooding from the
watercourse or lake;
(g) destroying vegetation growing in a watercourse or lake or growing on
the floodplain of a watercourse;
(h) excavating or removing rock, sand or soil from—
(i) a watercourse or lake or the floodplain of a watercourse; or
(ii) an area near to the banks of a lake so as to damage, or create the
likelihood of damage to, the banks of the lake;
(i) using water in
the course of carrying on a business in a landscape management region at a rate
that exceeds the rate prescribed by a water allocation plan or a water affecting
activities control policy if the water has been brought into the region by means
of a pipe or other channel;
(j) using effluent in the course of carrying on a business in a landscape
management region at a rate that exceeds a rate prescribed by a water allocation
plan or a water affecting activities control policy;
(k) undertaking commercial forestry;
(l) an activity prescribed by the regulations.
(5) Without
limiting a preceding subsection, in the case of a prescribed watercourse, lake
or well or a surface water prescribed area—
(a) a person must
not construct, maintain or operate any works for the purposes of taking water or
surface water (as the case may be) from the relevant water resource unless
authorised to do so by a water resource works approval; and
(b) a person must
not use water or surface water (as the case may be) taken from the relevant
water resource unless authorised to do so by a site use approval; and
(c) if the relevant
water allocation plan so requires—a person must not take water or surface
water (as the case may be) unless authorised to do so by a delivery capacity
entitlement.
(6)
Subsection (5)
does not apply—
(a) in the case of
subsection (5)(a)
—to any works prescribed by regulation under this paragraph;
or
(b) in the case of
subsection (5)(b)
—to any circumstance or situation, or after any point, prescribed by
regulation under this paragraph; or
(c) in the case of
subsection (5)(c)
—to any circumstance or situation prescribed by regulation under this
paragraph.
(a) contravenes
subsection (1)
,
(2)
,
(3)
,
(4)
or
(5)
; or
(b) contravenes or fails to comply with a term or provision of a water
management authorisation; or
(c) contravenes or fails to comply with a condition to which a water
management authorisation, an authorisation under
section 103
or a permit is subject,
is guilty of an offence.
Maximum penalty:
(a) if the offence relates to the taking or using of water and the court
by which the conviction is recorded has accepted evidence as to the amount of
water taken or used in contravention of this Act—
(i) a sum calculated at the prescribed rate for each kilolitre of water so
taken or used; or
(ii) —
(A) where the offender is a body corporate—$100 000;
(B) where the offender is a natural person—$50 000,
whichever is the greater;
(b) in any other case—
(i) where the offender is a body corporate—$100 000;
(ii) where the offender is a natural person—$50 000.
Expiation fee: If the offence is constituted by a breach of a prescribed
condition of a water management authorisation or permit—$1 000.
(8) The Minister, a regional landscape board, a council or a council
subsidiary that proposes to undertake an activity does not require a permit for
the activity if the Minister, regional landscape board, council or council
subsidiary is the relevant authority for the purposes of granting permits for
that kind of activity.
(9) The relevant authority may, in conjunction with the operation of
subsection (3)(d)
, determine not to grant any more permits for the erection, construction or
enlargement of a dam, wall or other structure in a particular area unless or
until there has been a reduction, to a level determined by the relevant
authority, of the capacity of water capable of being retained by other dams,
walls or structures already existing in the relevant area.
(10) In this section—
prescribed rate means $25.
103—Certain
uses of water authorised
(1) Subject to
subsection (2)
, the Minister may, by notice published in the Gazette and in such other
manner as the Minister thinks appropriate, authorise the taking of water from a
prescribed watercourse, lake or well, or the taking of surface water from a
surface water prescribed area, for a particular purpose specified in the
notice.
(2) A notice under
subsection (1)
cannot authorise the taking of water by stopping, impeding or diverting
the flow of water for the purpose of collecting the water or diverting the flow
of water from a watercourse unless the Minister is satisfied that it is
reasonable to allow the water to be taken in this way after taking into account
any criteria prescribed by the regulations for the purposes of this
subsection.
(3) A notice under
subsection (1)
may apply generally throughout the State or in relation to a particular
watercourse or lake or to the wells, or the wells of a particular class, in a
particular part of the State or to a particular surface water prescribed area
(including as to particular stormwater infrastructure (or a part of stormwater
infrastructure) or stormwater infrastructure of a particular class).
(4) An authorisation under
subsection (1)
will be subject to such conditions as the Minister thinks fit and
specifies in the notice.
(5) The Minister
may vary or revoke a notice under
subsection (1)
by a subsequent notice published in the Gazette and in such other manner
as the Minister thinks appropriate.
(6) A notice published under
subsection (5)
does not have effect, insofar as it revokes or restricts the right to take
water or imposes further conditions on that right, until the expiration of 7
days after its publication in the Gazette.
(7) If SA Water has
discharged water into a prescribed watercourse, the Minister may authorise SA
Water to take water from the watercourse.
(8) An authorisation under
subsection (7)
is subject to such conditions as the Minister thinks fit and may be varied
or revoked by the Minister at any time.
104—Activities
not requiring a permit
(1) Subject to
subsection (2)
and
(3)
, a permit is not required—
(a) to authorise a person to undertake an activity that the person is
authorised to undertake by a water management authorisation; or
(b) to authorise a person to erect, construct or enlarge contour banks to
divert surface water solely for the purpose of preventing or reducing soil
erosion but only if—
(i) a regional landscape plan, a water allocation plan, a water affecting
activities control policy or an approved action plan under
Part 7
, that includes guidelines, recommendations or directions in relation to
the erection or construction of contour banks is in force; and
(ii) the contour banks are erected or constructed in accordance with those
guidelines, recommendations or directions; or
(c) to destroy vegetation growing in a watercourse or lake or on the
floodplain of a watercourse pursuant to an obligation under
Part 9
or in accordance with consent granted under the
Native
Vegetation Act 1991
; or
(d) to undertake an activity that is required to implement an approved
action plan under this Act or an order or requirement under
Part 10
Division 2
; or
(e) to undertake an
activity that is development for the purposes of the
Planning,
Development and Infrastructure Act 2016
and that is authorised by a development authorisation under that Act;
or
(f) to undertake an activity that is required or authorised
by—
(i) an environment protection policy, an environment protection order, an
environmental authorisation or a clean-up order under the
Environment
Protection Act 1993
; or
(ii) a protection order, a reparation order or a reparation authorisation
under the
River
Murray Act 2003
; or
(g) to undertake an activity under an approved property plan under the
Pastoral
Land Management and Conservation Act 1989
; or
(h) to undertake an activity under section 43 of the
Pastoral
Land Management and Conservation Act 1989
; or
(i) to authorise a person to undertake an activity that the person is
authorised to undertake by a licence granted under Part 3 Division 2 of the
South
Eastern Water Conservation and Drainage Act 1992
; or
(j) to undertake an activity in circumstances prescribed by the
regulations.
(2)
Subsection (1)
does not apply to or in relation to—
(a) drilling, plugging, backfilling or sealing a well; or
(b) repairing, replacing or altering the casing, lining or screen of a
well.
(3) If an activity
is to be undertaken within the Murray-Darling Basin—
does not apply unless the application for the relevant development
authorisation was referred to the Minister to whom the administration of the
River
Murray Act 2003
is committed under section 122 of the
Planning,
Development and Infrastructure Act 2016
; and
(b) in any event,
subsection (1)
does not apply if the operation of this section is excluded by the
regulations.
(4) In addition,
subsection (1)(e)
does not apply in relation to any activity of a class prescribed by the
regulations under this subsection.
(5) A permit is not required to undertake an activity contemplated by
subsection (2)
if the well is within the ambit of
Schedule 3
.
105—Notice
to rectify unauthorised activity
(a) undertaken an
activity of a kind referred to in this Subdivision in contravention
of—
(i) this Subdivision; or
(ii) a corresponding previous enactment; or
(b) contravened or
failed to comply with a condition of a water management authorisation or an
authorisation under
section 103
or a permit,
the relevant authority may serve notice on the owner of the land on which
the activity was undertaken directing the owner to take such action as is
specified in the notice to rectify the effects of the activity and to take such
other action as the relevant authority considers necessary or desirable in the
circumstances.
(2) If the owner fails to comply with a notice—
(a) the person is guilty of an offence; and
(b) the relevant authority may enter the land and take the action
specified in the notice and such other action as the authority considers
appropriate in the circumstances and the authority's costs will be a debt due by
the owner to the authority or, if appropriate, the Crown.
Maximum penalty:
(a) where the offender is a body corporate—$70 000;
(b) where the offender is a natural person—$35 000.
(3) In this section—
corresponding previous enactment means—
(a) the
Local
Government Act 1934
; or
(b) the
Natural
Resources Management Act 2004
; or
(c) the
Water
Resources Act 1990
; or
(d) the
Water
Resources Act 1997
;
relevant authority means—
(a) where
subsection (1)(a)
applies—the authority that has the power to grant or refuse a
licence, authority or permit in relation to the activity referred to in
subsection (1)
; or
(b) where
subsection (1)(b)
applies in relation to a water management authorisation or a
permit—the authority that granted the water management authorisation or
permit; or
(c) where
subsection (1)(b)
applies in relation to an authorisation under
section 103
—the Minister or the Chief Executive.
106—Notice
to maintain watercourse or lake
(1) The relevant
authority may, by notice served on the owner of land on which a watercourse or
lake is situated or that adjoins a watercourse or lake, direct the owner to take
the action specified in the notice to maintain the watercourse or lake in good
condition.
(2) A person who fails to comply with a notice under
subsection (1)
is guilty of an offence.
Maximum penalty:
(a) where the offender is a body corporate—$70 000;
(b) where the offender is a natural person—$35 000.
(3) If the owner on whom a notice has been served under this section fails
to comply with the notice, the relevant authority may enter the land and take
the action specified in the notice and such other action as the authority
considers appropriate in the circumstances and the authority's costs will be a
debt due by the owner to the authority or, if appropriate, the Crown.
(4) In this section—
relevant authority means—
(a) the Minister; or
(b) the Chief Executive; or
(c) the relevant regional landscape board.
107—Restrictions
in case of inadequate supply or overuse of water
(1) If, in the
opinion of the Minister—
(a) the rate at which water is taken from a watercourse, lake or well
(whether prescribed or not)—
(i) is such that the quantity of water available can no longer meet the
demand or there is a risk that the available water will not be sufficient to
meet future demand; or
(ii) is affecting, or is likely to affect, the quality of the water in the
watercourse, lake or underground aquifer; or
(iii) in the case of water taken from a watercourse or lake—is
having a serious effect on another watercourse or lake, or the level of water in
an underground aquifer, that depends on water from the watercourse or lake for
replenishment; or
(b) the rate at which water is taken from a well (whether prescribed or
not) is such that the underground aquifer is likely to collapse or suffer any
other damage; or
(c) the rate at which surface water is taken (whether from a surface water
prescribed area or not)—
(i) is such that the surface water available can no longer meet the
demand; or
(ii) is having a serious effect on a watercourse or lake, or the level of
water in an underground aquifer, that depends on the surface water for
replenishment,
the Minister may, by notice published in the Gazette and in such other
manner as the Minister thinks appropriate—
(d) prohibit or restrict the taking of water from the watercourse, lake or
well or the taking of surface water; or
(e) limit the quantity of water that may be taken from the watercourse,
lake or well, or from any surface water; or
(f) direct that dams, reservoirs, embankments, walls or other structures
be modified to allow water to pass over, under or through them.
(2) When determining the demands on available water under
subsection (1)
, the need for water of the ecosystems that depend on water from the water
resource concerned must be taken into account.
(3) A notice under
subsection (1)
has effect on a date specified in the notice.
(4) A notice under
subsection (1)
remains in force for such period (not exceeding 2 years) as is stated in
the notice unless it is revoked under
subsection (9)
.
(5) If, in the
opinion of the Minister, the rate at which, or the manner in which, water is
taken from a water resource that has not been prescribed is causing, or is
likely to cause, damage to ecosystems that depend on water from the water
resource, the Minister may, by notice served on a person taking the
water—
(a) restrict the rate and the times at which the person may take water;
or
(b) direct the person to take such action as is specified in the notice to
rectify any problem relating to the manner in which water is taken.
(6) A notice under
subsection (1)
or
(5)
—
(a) may require the
removal of the means by which water can be taken from the watercourse, lake or
well or the means by which surface water can be taken; or
(b) may specify conditions subject to which water may be taken from the
watercourse, lake or well or surface water may be taken.
(7) A person who contravenes or fails to comply with a notice under this
section is guilty of an offence.
Maximum penalty:
(a) where the offender is a body corporate—$70 000;
(b) where the offender is a natural person—$35 000.
Expiation fee: $400.
(8) If the owner or occupier of land fails to comply with a requirement of
a notice under
subsection (6)(a)
, the Chief Executive may enter the land and take the action specified in
the notice and such other action as the Chief Executive considers appropriate in
the circumstances and the Chief Executive's costs will be a debt due by the
owner or occupier to the Crown.
(9) If a notice has
been published under
subsection (1)
, the Minister may vary or revoke the notice by notice published in the
Gazette and in such other manner as the Minister thinks appropriate.
(10) If the Minister has served notice on a person under
subsection (5)
, the Minister may vary or revoke the notice by subsequent notice served on
that person.
108—Specific
duty with respect to damage to a watercourse or lake
(1) It is the duty
of the owner of land on which a watercourse or lake is situated, or that adjoins
a watercourse or lake, to take reasonable measures to prevent damage to the bed
and banks of the watercourse or the bed, banks or shores of the lake and to the
ecosystems that depend on the watercourse or lake.
(2) A person who breaches
subsection (1)
is not, on account of the breach alone, liable to any civil or criminal
action, but—
(a) compliance with that subsection may be enforced by the issuing of a
protection order under
Part 10 Division 2
Subdivision 1
; and
(b) a reparation order or reparation authorisation may be issued under
Part 10 Division 2
Subdivision 1
; and
(c) an order may be made by the ERD Court under
Part 10
Division 2 Subdivision 2
in respect of the non-compliance.
(3) In this section—
damage does not include—
(a) damage caused in the normal course of an activity authorised by or
under this Act; or
(b) damage of a minor nature.
109—Minister
may direct removal of dam etc
(1) The Minister
may, on the recommendation of a regional landscape board or on the Minister's
own initiative after consultation with the relevant regional landscape board, by
notice served on the owner of land, direct the owner to remove or modify a dam,
embankment, wall or other obstruction or object that collects water, or diverts
or impedes the flow of water, in a watercourse or flowing over any other land
and that was lawfully placed in or near the watercourse or on the land before
the prescribed date.
(2) Compensation is payable under
section 224
in relation to the removal of a dam, embankment, wall or other obstruction
or object by the owner in compliance with a notice under
subsection (1)
.
(3) If the owner on whom a notice has been served under this section fails
to comply with the notice, the Minister may enter the land and take the action
specified in the notice and such other action as the Minister considers
appropriate in the circumstances.
(1) An application for a permit must be in a form approved by the relevant
authority and must, if a fee has been prescribed by regulation in relation to
the application, be accompanied by the fee.
(2) The applicant must provide the relevant authority with such
information as the authority reasonably requires to consider the
application.
(3) A relevant authority must—
(a) take into account
the provisions of any relevant water allocation plan or water affecting
activities control policy when considering an application for a permit;
and
(b) ensure that the permit, if granted, and any conditions of the permit,
are not inconsistent with the provisions of a plan or policy under
paragraph (a)
.
(4) A relevant authority must not grant a permit contrary to a notice for
the time being in force under
section 107
.
(5) Subject to its terms, a permit is binding on and operates for the
benefit of the applicant and the owner and occupier of the land to which it
relates when it is granted and all subsequent owners and occupiers of the
land.
(6) A permit is subject to such conditions as are prescribed by this Act
or by the regulations, or are specified in the permit by the relevant
authority.
(7) Depending on its nature, a condition may remain in force after the
activity authorised by the permit has been completed.
(8) It is a condition of a permit to drill, plug, backfill or seal a well
or to repair, replace or alter the casing, lining or screen of a well that the
work be undertaken by a person who is a licensed well driller or is supervised
in carrying out the work by a licensed well driller.
(9) If the relevant authority is satisfied that the holder of a permit or
a person acting on behalf of the holder of a permit has contravened or failed to
comply with a condition of the permit, the authority may, by notice served on
the holder of the permit, vary, suspend or revoke the permit.
(10) If a water
allocation plan or water affecting activities control policy has been varied, a
relevant authority may vary a permit granted by it so that the permit is not
inconsistent with the plan or policy.
(11) If it is not possible or practicable to vary a permit under
subsection (10)
so that the permit is not inconsistent with a water allocation plan or
water affecting activities control policy, the relevant authority may revoke the
permit.
(12) If the rising level of underground water is—
(a) damaging soil, rock or other structures; or
(b) damaging ecosystems; or
(c) affecting the natural drainage of surface water,
the relevant authority may revoke a permit to drain or discharge water
directly or indirectly into a well that provides access to that underground
water.
(13) In any other case, the relevant authority may vary, suspend or revoke
a permit with the consent of the holder of the permit.
(14) The variation or revocation of a permit under this section will be
effected by the relevant authority serving notice of the variation or revocation
on the holder of the permit.
(15) The holder of a permit may appeal to the ERD Court against the
variation or revocation of the permit under this section.
(16) A relevant authority that has granted a permit to undertake an
activity and a person employed by, or who acted on behalf of, the authority in
granting the permit is not liable for any injury, loss or damage caused by, or
resulting from—
(a) the manner in which the activity is carried out; and
(b) in the case of the erection, construction or enlargement of a dam,
wall, building or other structure—the design of the dam, wall, building or
other structure or the materials used for its erection, construction or
enlargement.
(17) In this section—
relevant authority in relation to a permit means the
authority that is for the time being the relevant authority under
section 101
for the purpose of granting or refusing an application for a permit of
that kind.
111—Requirement
for notice of certain applications
(1) This section applies to an application for a permit if a water
allocation plan or water affecting activities control policy provides that this
section applies to the application.
(2) Notice of an application to which this section applies must be given
by the relevant authority to whom the application has been made in accordance
with the regulations to—
(a) those persons specified in the plan or policy (as the case may be);
and
(b) those persons (if any) prescribed by the regulations; and
(c) the public generally.
(3) If notice of an application has been given under this section, a
person who desires to do so may, in accordance with the regulations, make
representations in writing to the relevant authority in relation to the granting
or refusal of the permit.
(4) The relevant
authority must forward to the applicant a copy of the representations (if any)
made and allow the applicant an opportunity to respond, in writing, to those
representations.
(5) The response referred to in
subsection (4)
must be made within the number of days prescribed by the regulations after
the relevant material is forwarded to the applicant.
(6) The relevant
authority must allow a person who made a representation and who, as part of that
representation, indicated an interest in appearing before the authority, a
reasonable opportunity to appear personally or by representative before it to be
heard in support of the representation.
(7) If a person appears before the relevant authority under
subsection (6)
, the relevant authority must also allow the applicant a reasonable
opportunity, on request, to appear personally or by representative before it in
order to respond to any relevant matter.
(8) If
representations have been made under this section, the relevant authority
must—
(a) give to each person who made a representation notice of its decision
on the application and of the date of the decision and of the person's appeal
rights under this Act; and
(b) give notice to the ERD Court—
(i) of its decision on the application and of the date of the decision;
and
(ii) of the names and addresses of persons who made representations to the
relevant authority under this section.
(9) A notice under
subsection (8)
must be given within 5 business days from the date of the relevant
authority's decision on the application.
(10) A person who is entitled to be given notice of the decision under
subsection (8)
may, within 15 business days after the date on which the notice was given
to the person, appeal to the ERD Court against the decision.
(11) If an appeal is lodged, the applicant for the permit must be notified
by the ERD Court of the appeal and will be a party to the appeal.
(12) A decision of a relevant authority in respect of which
representations have been made under this section does not
operate—
(a) until the time within which any person who made any such
representation may appeal against a decision to grant the permit has expired;
or
(b) if an appeal is commenced—
(i) until the appeal is dismissed, struck out or withdrawn; or
(ii) until the questions raised by the appeal have been finally determined
(other than any question as to costs).
(13) The relevant authority must make written representations made under
this section in relation to an application for a permit, and the written
response of the applicant (if any), available for inspection (without charge)
and purchase by members of the public (and must not charge more than the fee
prescribed by the regulations in so doing).
112—Refusal
of permit to drill well
Without limiting the grounds on which an application to drill a well may be
refused, a relevant authority may refuse such a permit if, in the opinion of the
authority, the underground water to which the well would give access is so
contaminated that its use would create a risk to the health of people or
animals.
Subdivision 5—Provisions
relating to wells
(1) The Chief Executive may grant a well driller's licence to a natural
person who—
(a) is of or over the age of 18 years; and
(b) holds qualifications (if any) prescribed by regulation; and
(c) is, in the Chief Executive's opinion, a fit and proper person to hold
such a licence.
(2) An application for a licence must be in a form approved by the
Minister and must be accompanied by the fee prescribed by the
regulations.
(3) A licence must specify the term of the licence and is subject to such
conditions prescribed from time to time by the regulations and to such further
conditions specified in the licence by the Chief Executive.
(4) If the holder
of a well driller's licence contravenes or fails to comply with a condition of
the licence—
(a) the Chief
Executive may cancel or suspend the licence, or vary a condition of the licence;
and
(b) the holder of the licence is guilty of an offence.
Maximum penalty: $35 000.
(5) The Chief
Executive may cancel a well driller's licence if the Chief Executive is
satisfied that the holder of the licence is no longer a fit and proper person to
hold such a licence.
(6) The holder of a well driller's licence or the former holder of a
licence may appeal to the ERD Court against a decision of the Chief Executive
under
subsection (4)(a)
or
(5)
on the ground that the decision was harsh or unreasonable.
(7) The Chief Executive may vary a well driller's licence on the
application of the holder of the licence.
(1) A well driller's licence may be renewed from time to time.
(2) An application for renewal of a licence must be in a form approved by
the Minister and must be accompanied by the fee prescribed by the
regulations.
115—Non-application
of certain provisions
(1) A provision of
this Subdivision does not apply to, or in relation to, a well of a class
declared by proclamation to be excluded from the operation of that
provision.
(2) A proclamation under
subsection (1)
may be varied or revoked by subsequent proclamation.
It is a defence to prosecution for the offence of drilling, plugging,
backfilling or sealing a well or repairing, replacing or altering the casing,
lining or screen of a well without being authorised to do so by a permit or
without using the services of a licensed well driller or a person supervised by
a licensed well driller—
(a) to prove that the well is of a class specified by or under Schedule 3;
or
(b) to prove that the person who carried out the work was the owner of the
land on which the well is situated or was the employee or sharefarmer of the
owner of that land and that—
(i) the well gives access to underground water the surface of which is at
atmospheric pressure and the total dissolved salts of which exceed 1 800
milligrams per litre; and
(ii) the work was carried out solely for the purposes of maintenance and
did not involve—
(A) substantial alteration to the casing, lining or screen of the well or
the replacement of the casing, lining or screen with a casing, lining or screen
of substantially different design or specifications; or
(B) a substantial repositioning of the casing, lining or screen;
or
(C) deepening the well by more than 1.5 metres; or
(c) to prove that—
(i) the work comprising the alleged offence was carried out to prevent or
reduce pollution of water in the well and that in the circumstances it was
unreasonable to expect the defendant—
(A) to have obtained a permit; or
(B) to have obtained the services of a licensed well driller;
and
(ii) the work was carried out in accordance with the regulations (if any);
and
(iii) the Chief Executive was given written notice of the work as soon as
practicable after it was completed; or
(d) to prove that—
(i) the work comprising the alleged offence was carried out pursuant to a
permit issued by the relevant authority; and
(ii) the work comprising the alleged offence was carried out by or under
the supervision of the owner of the land on which the well is situated;
and
(iii) at the time of the alleged offence the well was not more than
15 metres in depth (or such other depth as may be prescribed by
regulation); and
(iv) the work was carried out in accordance with the regulations (if
any).
117—Obligation
to maintain well
(1) Subject to
subsection (2)
, the occupier of land on which a well is situated must ensure that the
well (including the casing, lining, and screen of the well and the mechanism (if
any) used to cap the well) are properly maintained.
Maximum penalty:
(a) where the offender is a body corporate—$40 000;
(b) where the offender is a natural person—$20 000.
(2) It is a defence
to prosecution for an offence against
subsection (1)
to prove that—
(a) the defendant could not lawfully carry out the necessary maintenance
work without a permit granted under
Subdivision 4
; and
(b) the defendant had applied for the required permit within a reasonable
time but the relevant authority had refused or failed to grant it.
118—Requirement
for remedial or other work
(1) If the Chief
Executive is satisfied that the water of a well is likely to be degraded or
wasted because—
(a) of a defect in the well, or in the casing, lining or screen of the
well; or
(b) the well or the casing, lining or screen is in need of maintenance;
or
(c) there is no mechanism for capping the well or the mechanism for
capping the well is inadequate or in need of maintenance,
the Chief Executive may, by notice served on the owner or occupier of the
land on which the well is situated, direct that the work or other action
specified in the notice be carried out or taken to remedy the problem.
(2) If the Chief
Executive is satisfied—
(a) —
(i) that there is a defect in a well, or in the casing, lining or screen
of a well; or
(ii) that a well, or the casing, lining or screen of a well, is in need of
extensive maintenance; or
(iii) that the drawing of water from a well has caused, or would be likely
to cause, damage to a water resource; or
(iv) that a well has been constructed in contravention of this Act, or has
been used in connection with a contravention of this Act; and
(b) that it is reasonable in the circumstances to act under this
subsection,
the Chief Executive may, by notice served on the owner or occupier of the
land on which the well is situated, direct that the well be plugged, backfilled
or sealed.
(3) If, in the Chief Executive's opinion, a defect in a well resulted from
work carried out by a licensed well driller, the Chief Executive may, in
addition to or instead of serving notice on the owner or occupier of the land,
serve notice under
subsection (1)
on the well driller (but the notice must not be served later than
6 months after the work was carried out).
(4) A well driller on whom a notice is served is entitled to enter the
land on which the well is situated in order to comply with the notice.
(5) A person who fails to comply with a notice is guilty of an
offence.
Maximum penalty:
(a) where the offender is a body corporate—$40 000;
(b) where the offender is a natural person—$20 000.
(6) If a person on whom a notice has been served fails to comply with the
notice the Chief Executive may enter the land on which the well is situated and
carry out the necessary work or take the necessary action and any other work or
action that the Chief Executive considers appropriate in the circumstances and
the Chief Executive's costs will be a debt due by the person to the
Crown.
Division 3—Licensing
and associated rights and entitlements
(1) The Minister may grant a licence (a water licence) in
respect of a prescribed watercourse, lake or well or in respect of the surface
water in a surface water prescribed area or part of a surface water prescribed
area.
(2) A water licence
provides an entitlement to the holder of the licence to gain access to a share
of water available in the consumptive pool or consumptive pools to which the
licence relates, as specified by the licence and after taking into account any
factors specified by the relevant water allocation plan or prescribed by the
regulations (and this entitlement will be called a water access
entitlement).
(3) A water access entitlement is subject to—
(a) a determination of the Minister under
subsection (4)
; and
(b) any other provision of this Act that operates with respect to the
licence or the water access entitlement; and
(c) the conditions attached to the licence.
(4) The Minister
will from time to time, by notice in the Gazette, determine the volume of water
that is to be made available from a consumptive pool for allocation under this
Act during a period specified by the Minister.
(5) The Minister
may, by further notice in the Gazette, vary a determination under
subsection (4)
.
(6) The consumptive pool or consumptive pools may be affected by water
allocations attached to forest water licences (and these allocations must then
be taken into account in connection with the operation of the scheme established
by this section).
(7) A water licence
is personal property and may pass to another in accordance with the provisions
of this Act or, subject to this Act, in accordance with any other law for the
passing of property.
120—Water
licences—applications and matters to be considered
(1) An application for a water licence must be in a form approved by the
Minister and must—
(a) specify the water resource in relation to which the licence is being
sought; and
(b) be accompanied by the fee prescribed by the regulations; and
(c) be accompanied by such other information or material as the Minister
may require.
(2) The Minister
may, if the Minister thinks fit, issue licences with respect to a particular
water resource, or a particular part of a water resource, on the basis of
applications submitted to the Minister under procedures determined by the
Minister as being appropriate in the relevant circumstances (including
procedures that require applications to be submitted as tenders or furnished as
part of an auction process).
(3) The Minister may refuse to grant a water licence—
(a) if in the opinion of the Minister—
(i) it would be contrary to the provisions of the relevant water
allocation plan to grant a water access entitlement under the terms of the
licence that is being sought; or
(ii) a water access entitlement under the terms of the licence that is
being sought would relate to water that is so contaminated that its use would
create a risk to the health of people or animals; or
(b) if the application has not been successful under the terms of any
procedure established under
subsection (2)
; or
(c) to a person, or to the associate of a person, who formerly held a
water management authorisation that was cancelled under this Act; or
(d) to a person who has acted in contravention of this Act; or
(e) on any ground prescribed by the regulations; or
(f) on any other reasonable ground.
(4) In addition, the Minister's decision on the grant of a water licence
must—
(a) be made in the public interest; and
(b) be consistent with requirements (if any) prescribed by the
regulations.
(5) The Minister
may, if the licence is being issued under procedures that require the payment of
a fee or purchase price with respect to the licence, require the relevant
payment before granting a water licence.
(6) In this section—
relevant water allocation plan
means the water allocation plan that relates to the water resource in relation
to which the licence is sought and includes the water allocation plan of another
water resource (if any) that includes provisions relating to the taking, or the
taking and use, of water from the firstmentioned water resource.
A water licence—
(a) must specify, in such manner as the Minister thinks fit, the water
resource to which it relates; and
(b) must specify the basis on which the water access entitlement is to
apply; and
(c) is subject to
the conditions—
(i) prescribed from time to time by the regulations; or
(ii) endorsed on the licence by the Minister; and
(d) takes effect from the time of registration in The Water Register;
and
(e) remains in force until the licence—
(i) is terminated by or under this Act; or
(ii) if relevant, expires under the terms of the licence.
122—Variation
of water licences
(1) A water licence
may be varied by the Minister—
(a) at any time on
the application of, or with the consent of, the licensee; or
(b) if the licence
provides for intervals at which the conditions of the licence may be
varied—at those intervals if, in the opinion of the Minister, the
variation is necessary or desirable to more effectively regulate the use of
water from the resource in accordance with the relevant water allocation plan
and this Act; or
(c) at any time if
there has been an alteration to the water allocation plan for the water resource
to which the licence relates and the variation is necessary, in the opinion of
the Minister, to prevent the licence from being inconsistent (as to the basis on
which the water access entitlement is determined) or seriously at variance (as
to the licence conditions) with the plan; or
(d) at any time if
the variation is to impose or vary a condition of a licence that relates to a
water resource within the Murray-Darling Basin and the Minister is of the
opinion that the variation is appropriate or desirable to prevent, reduce or
address damage to the River Murray; or
(e) if the Minister is authorised to do so by another provision of this
Act; or
(f) if the Minister is authorised to do so by the regulations.
(2) An application under
subsection (1)(a)
must—
(a) be made in a form approved by the Minister; and
(b) if a person is recorded on The Water Register as having an interest in
the water licence (other than as a licensee), be made with the written consent
of that person; and
(c) be accompanied by the fee prescribed by the regulations.
(3) The Minister's decision on the variation of a water
licence—
(a) must—
(i) as to the water access entitlement—be consistent with the
relevant water allocation plan; and
(ii) as to the conditions attached to the licence—not be seriously
at variance with the relevant water allocation plan,
and, for the purposes of this paragraph, the relevant water allocation plan
includes the water allocation plan of another water resource (if any) that
includes provisions relating to the taking, or the taking and use, of water from
the water resource in relation to which the licence was granted; and
(b) must be made in the public interest; and
(c) must be consistent with requirements (if any) prescribed by regulation
under this paragraph (which regulation may prescribe circumstances where an
application for a variation must be refused).
(4) A licensee may
appeal to the ERD Court against—
(a) a decision to refuse to grant an application to vary the licensee's
licence under
subsection (1)(a)
; or
(b) the variation of the licensee's licence under
subsection (1)(b)
,
(c)
or
(d)
.
(5) However, if the licence relates to a water resource within the
Murray-Darling Basin then no right of appeal will arise under
subsection (4)
if the regulations so provide.
(6) The Minister is not required to conduct a hearing or to give notice to
a third party before varying a water licence under this section.
(7) The Minister must, after making a variation, give notice of the
variation to a person with a prescribed interest in the licence in accordance
with the regulations.
123—Transfer
of water licences
(1) Subject to this
Act and the relevant water allocation plan, the holder of a water licence
may—
(a) transfer the licence to another person; or
(b) transfer a
water access entitlement, or part of a water access entitlement, under the
licence to another person.
(2) In the case of a transfer under
subsection (1)(b)
, the transfer must be—
(a) to the holder of another licence (including a licence created to
receive the transfer), or to the Minister; or
(b) to any other person or the Minister under an Interstate Water
Entitlements Transfer Scheme.
(3) A transfer may be absolute or for a limited period.
(4) A transfer requires the approval of the Minister.
(5) An application to the Minister for the Minister's approval
must—
(a) be made in a form approved by the Minister; and
(b) be accompanied by the fee prescribed by the regulations.
(6) The Minister may refuse to grant approval for a transfer under this
section to a person on the same grounds as those on which the Minister would
refuse to grant an application by that person for a licence.
(7) The Minister may refuse to grant approval for a transfer under this
section—
(a) if the licensee is in breach of a condition of the licence;
or
(b) unless or until any water levy that has been imposed in relation to
the licence has been paid.
(8) In addition,
the Minister's decision to grant or refuse approval for the transfer of a
licence—
(a) must be
consistent with the relevant water allocation plan (and for the purposes of this
paragraph the relevant water allocation plan includes the water allocation plan
of another water resource (if any) that includes provisions relating to the
taking, or the taking and use, of water from the water resource in relation to
which the licence was granted); and
(b) must be made in the public interest; and
(c) must be consistent with requirements (if any) prescribed by regulation
under this paragraph (which regulation may prescribe circumstances where an
application for a transfer must be refused).
operates subject to the terms or requirements of an Interstate Water
Entitlements Transfer Scheme.
(10) If a person is recorded on The Water Register as having an interest
in a water licence (other than as a licensee), the Minister must not grant
approval for a transfer under this section without the written consent of that
person.
(11) The Minister
may, when granting an application for a transfer under this
section—
(a) vary the water access entitlement under the licence (including as to
the basis on which the water access entitlement is determined);
(b) vary any condition of the licence to ensure consistency with the
relevant water allocation plan;
(c) if relevant, take any other action required or permitted under an
Interstate Water Entitlements Transfer Scheme;
(d) require a
reduction in the size of a dam, or require other work to be undertaken with
respect to a dam, wall or structure, to match the effect of the
transfer.
(12) As an example
but without limiting
subsection (11)
, if, following a transfer, the water will not be taken from the same part
of the water resource as before, the Minister may exercise the Minister's powers
under
subsection (11)
—
(a) to ensure that the demand for water from the part of the water
resource from which the water will be taken in future does not prejudice other
licensees by exceeding the availability of water in that part of the water
resource; or
(b) to reflect the loss to the water resource of part of the water
represented by the transfer by reason of evaporation or any other cause as the
water flows to the part of the resource from which it will be taken in
future.
(13) A person who holds a water licence that is subject to the operation
of
subsection (11)(d)
must comply with that requirement within a period specified by the
Minister.
Maximum penalty:
(a) where the offender is a body corporate—$70 000;
(b) where the offender is a natural person—$35 000.
(14) A transfer is subject to the operation of
Schedule 4
clause 7
.
(15) A water licence or part of a water access entitlement that has been
transferred for a limited period reverts automatically to the transferor when
the period expires (and the Minister may then take such action as the Minister
thinks fit, including to cancel any licence that is no longer
required).
(16) Despite the provisions of the
Stamp
Duties Act 1923
, the transfer of a water licence or part of a water access entitlement is
not chargeable with duty under that Act.
124—Surrender
of water licences
(1) Subject to
subsection (2)
, a licensee may surrender the licensee's water licence at any
time.
(2) If a person is
recorded on The Water Register as having an interest in the water licence (other
than as a licensee), a water licence cannot be surrendered without the written
consent of that person.
Subdivision 2—Allocation
of water
(1) A water
allocation may be obtained—
(a) on account of a
water access entitlement under a water licence; or
(b) as a carry-over
under
subsection (8)(a)
or
(b)
; or
(c) under an
Interstate Water Entitlements Transfer Scheme; or
(d) from the holder of a forest water licence (subject to any conversion
or adjustment under the provisions of any relevant water allocation
plan).
(2) In a case where
subsection (1)(a)
applies, the water allocation may be obtained—
(a) by the holder of the relevant water licence, on the basis that the
water allocation is being granted by the Minister under the terms of the water
licence; or
(b) by a person, whether or not the person is the holder of a water
licence, on the basis of a transfer of a water allocation that has been provided
by the Minister under the terms of a water licence.
(3) In a case where
subsection (1)(b)
applies, the water allocation that is carried over will be subject to such
adjustments (including a reduction) as the Minister may determine for the
purposes of this section.
(4) In a case where
subsection (1)(c)
applies, the Minister will issue a water allocation that is to take effect
for the purposes of this Act.
(5) A water allocation will relate to a specified water resource (or part
of a water resource)—
(a) endorsed on the relevant instrument under the terms of the water
licence to which the allocation is attributable (as determined under the water
access entitlement); or
(b) determined under the terms of the relevant Interstate Water
Entitlements Transfer Scheme.
(6) A water allocation is subject to—
(a) any other provision of this Act that operates with respect to the
water allocation; and
(b) the conditions attached to the water allocation.
(7) A water allocation is personal property and may pass to another in
accordance with the provisions of this Act or, subject to this Act, in
accordance with any other law for the passing of property.
(8) A water
allocation will initially relate to a specified period (not exceeding
12 months) and if water is not taken under the terms of the allocation
during that period the allocation may be carried over if—
(a) to do so is
authorised by the relevant water allocation plan; or
(b) a carry-over is
allowed by the Minister (either by determination of the Minister in a particular
case or cases or under a policy established by the Minister for the purposes of
this section by notice in the Gazette),
but otherwise the water allocation will expire at the end of the
period.
(9) To avoid doubt,
subsection (8)
extends to a water allocation converted from a water allocation attached
to a forest water licence under
Division 6
to a water allocation within the operation of this section.
126—Issuing
of water allocation
(1) A water
allocation granted or issued by the Minister—
(a) must be consistent with the relevant water access entitlement or IWETS
(as the case requires) in relation to the volume of water granted; and
(b) must be consistent with the provisions of the relevant water
allocation plan; and
(c) is subject to
the conditions—
(i) prescribed from time to time by the regulations; or
(ii) endorsed on a relevant water licence or on the water allocation
itself by the Minister.
(2) Without limiting any other provision, a water allocation
may—
(a) comprise 1 or more components that expire on a future date;
(b) restrict the purpose for which any component or volume of water may be
used.
(3) In this section—
relevant water allocation plan means the water allocation
plan that relates to the water resource in relation to which the water
allocation applies and includes the water allocation plan of another water
resource (if any) that includes provisions relating to the taking, or the taking
and use, of water from the firstmentioned water resource.
127—Water
allocations—matters to be considered
(1) The Minister may determine not to grant or issue a water
allocation—
(a) if in the opinion of the Minister—
(i) it would be contrary to the provisions of the relevant water
allocation plan to grant or issue the water allocation; or
(ii) the water allocation would relate to water that is so contaminated
that its use would create a risk to the health of people or animals;
or
(b) to a person, or to the associate of a person, who formerly held a
water management authorisation that was cancelled under this Act; or
(c) to a person who has acted in contravention of this Act; or
(d) on any ground prescribed by the regulations; or
(e) on any other reasonable ground.
(2) In this section—
relevant water allocation plan
means the water allocation plan that relates to the water resource in relation
to which the water allocation applies and includes the water allocation plan of
another water resource (if any) that includes provisions relating to the taking,
or the taking and use, of water from the firstmentioned water
resource.
128—Reduction
of water allocation
(1) The Minister may reduce the water allocations that apply in relation
to a particular water resource if in the opinion of the Minister it is necessary
or desirable to do so—
(a) to prevent a reduction, or further reduction, in the quality of the
water in the resource or in a water resource that is affected by the taking of
water from the firstmentioned resource; or
(b) to prevent damage, or further damage, to an ecosystem that depends on
that water or on the water from a resource that is affected by the taking of
water from the firstmentioned resource; or
(c) because there is insufficient water to meet the existing demand or
expected future demand for water from that resource or from a water resource
that is affected by the taking of water from the firstmentioned resource;
or
(d) because there has been, or is to be, a reduction in the quantity of
water available—
(i) under or by virtue of the
Groundwater
(Border Agreement) Act 1985
; or
(ii) on account of the operation of the Murray-Darling Basin Agreement,
the operation or effect of a resolution of the Ministerial Council under that
agreement, or the operation or effect of the Basin Plan under the Water Act
2007 of the Commonwealth.
(2) Subject to regulations made under
subsection (3)
, the Minister must, in acting under this section, reduce the allocation of
all water allocations that apply in relation to a particular water resource
proportionately.
(3) Instead of the
allocations being reduced proportionately, they may be reduced pursuant to a
scheme set out in regulations made by the Governor on the recommendation of the
Minister.
(4) The reduction of a water allocation under this section comes into
operation at the expiration of 14 days after notice of the reduction is
served by the Minister in accordance with the regulations.
(5) Before making a recommendation to the Governor for the purposes of
subsection (3)
, the Minister must—
(a) consult the relevant regional landscape board; and
(b) cause to be published, in the Gazette and in such other manner as the
Minister thinks appropriate, a notice outlining the proposed recommendation,
stating the reasons for it and inviting interested persons to make written
submissions to the Minister in relation to the proposal within a period (being
at least 3 months) specified in the notice (and then have regard to all
submissions made in accordance with the notice); and
(c) have regard to the views of the regional landscape board and all
submissions made in accordance with the notice.
(6) The Minister may, in taking action under this section, make
corresponding variations to water access entitlements and delivery capacity
entitlements that relate to relevant water allocations reduced under this
section.
(7) Nothing in this section limits or affects the operation of
section 129
.
129—Variation
of water allocations
(1) A water
allocation may be varied by the Minister—
(a) at any time on
the application of, or with the consent of, the holder of the water allocation;
or
(b) if the water
allocation provides for intervals at which the conditions of the water
allocation may be varied—at those intervals if, in the opinion of the
Minister, the variation is necessary or desirable to more effectively regulate
the use of water from the resource in accordance with the relevant water
allocation plan and this Act; or
(c) at any time if
there has been an alteration to the water allocation plan for the water resource
to which the water allocation relates and the variation is necessary, in the
opinion of the Minister, to prevent the water allocation from being inconsistent
(as to the basis on which the water allocation is determined) or seriously at
variance (as to the conditions of the water allocation) with the plan;
or
(d) at any time if
the variation is to impose or vary a condition of a water allocation that
relates to a water resource within the Murray-Darling Basin and the Minister is
of the opinion that the variation is appropriate or desirable to prevent, reduce
or address damage to the River Murray; or
(e) if the Minister is authorised to do so by another provision of this
Act; or
(f) under a scheme established under
section 154
; or
(g) if the Minister is authorised to do so by the regulations.
(2) An application under
subsection (1)(a)
must—
(a) be made in a form approved by the Minister; and
(b) be accompanied by the fee prescribed by the regulations.
(3) The Minister's decision on the variation of a water
allocation—
(a) must—
(i) be consistent with the relevant water allocation plan; and
(ii) if the variation relates to conditions attached to the water
allocation—not be seriously at variance with the relevant water allocation
plan,
and for the purposes of this paragraph the relevant water allocation plan
includes the water allocation plan of another water resource (if any) that
includes provisions relating to the taking, or the taking and use, of water from
the water resource in relation to which the water allocation was granted;
and
(b) must be made in the public interest; and
(c) must be consistent with requirements (if any) prescribed by regulation
under this paragraph (which regulation may prescribe circumstances where an
application for a variation must be refused).
(4) The holder of a
water allocation may appeal to the ERD Court against—
(a) a decision to refuse to grant an application to vary the water
allocation under
subsection (1)(a)
; or
(b) the variation of the water allocation under
subsection (1)(b)
,
(c)
or
(d)
.
(5) However, if the water allocation relates to a water resource within
the Murray-Darling Basin then no right of appeal will arise under
subsection (4)
if the regulations so provide.
(6) The Minister is not required to conduct a hearing or to give notice to
a third party before varying a water allocation under this section.
(7) Nothing in this section limits or affects the operation of
section 128
.
130—Transfer
of water allocations
(1) Subject to this Act and the relevant water allocation plan, the holder
of a water allocation may transfer the water allocation to another
person.
(2) A transfer requires the approval of the Minister.
(3) An application to the Minister for the Minister's approval
must—
(a) be made in a form approved by the Minister; and
(b) be accompanied by the fee prescribed by the regulations.
(4) The Minister may refuse to grant approval for the transfer of a water
allocation—
(a) if the holder of the water allocation is in breach of a condition of
the water allocation; or
(b) unless or until any water levy that has been imposed in relation to
the relevant water licence has been paid.
(5) In addition, the Minister's decision to grant or refuse approval for
the transfer of a water allocation—
(a) must be consistent with the relevant water allocation plan (and for
the purposes of this paragraph the relevant water allocation plan includes the
water allocation plan of another water resource (if any) that includes
provisions relating to the taking, or the taking and use, of water from the
water resource in relation to which the water allocation was granted);
and
(b) must be made in the public interest; and
(c) must be consistent with requirements (if any) prescribed by regulation
under this paragraph (which regulation may prescribe circumstances where an
application for a transfer must be refused).
(6) The Minister
may, when granting an application for the transfer of a water
allocation—
(a) vary the basis on which the water allocation is determined;
(b) reduce the water allocation;
(c) vary any condition of the water allocation to ensure consistency with
the relevant water allocation plan.
(7) As an example
but without limiting
paragraph (b)
, if, following the transfer of a water allocation, the water will not be
taken from the same part of the water resource as before, the Minister may
exercise the Minister's powers under
subsection (6)
—
(a) to ensure that the demand for water from the part of the water
resource from which the water will be taken in future does not prejudice other
holders of water allocations by exceeding the availability of water in that part
of the water resource; or
(b) to reflect the loss
to the water resource of part of the water represented by the transferred water
allocation by reason of evaporation or any other cause as the water flows to the
part of the resource from which it will be taken in future.
(8) Despite the provisions of the
Stamp
Duties Act 1923
, the transfer of a water allocation is not chargeable with duty under that
Act.
131—Surrender
of water allocations
The holder of a water allocation may surrender the water allocation at any
time.
Subdivision 3—Water
resource works approvals
132—Water
resource works approvals—applications and matters to be
considered
(1) An application for a water resource works approval must be in a form
approved by the Minister and must—
(a) specify—
(i) the water resource in relation to which the approval is being sought;
and
(ii) the nature and extent of the works for which the approval is being
sought; and
(iii) the place where the works will be located; and
(b) be accompanied by the fee prescribed by the regulations; and
(c) be accompanied by such other information or material as the Minister
may require.
(2) The Minister may, after receiving an application, request the
applicant to provide such additional information or material as the Minister
thinks fit in order to assess the application.
(3) The Minister may refuse to grant an approval—
(a) if in the opinion of the Minister—
(i) it would be contrary to the provisions of the relevant water
allocation plan to grant the approval; or
(ii) the proposed works are inappropriate after taking into account any
matter prescribed by the regulations, or such other matters as the Minister
thinks fit; or
(b) to a person, or to the associate of a person, who formerly held a
water management authorisation that was cancelled under this Act; or
(c) to a person who has acted in contravention of this Act; or
(d) on any ground prescribed by the regulations; or
(e) on any other reasonable ground.
(4) In addition, the Minister's decision on the grant of an approval
must—
(a) take into account any relevant environmental, social or economic
impacts associated with the construction or use of the relevant works;
and
(b) be consistent with requirements (if any) prescribed by the
regulations.
(1) A water
resource works approval—
(a) must specify, in such manner as the Minister thinks
fit—
(i) the site where the works are authorised to be located; and
(ii) the nature and extent of the works that are authorised; and
(b) may specify a
maximum volume of water that may be taken, collected, diverted or extracted
under the approval; and
(i) prescribed from time to time by the regulations; or
(ii) specified from time to time by the relevant water allocation plan;
or
(iii) endorsed on the approval by the Minister; and
(d) may be classified in connection with a management zone or zones
specified in the relevant water allocation plan.
(2) A water resource works approval may relate to more than 1 form of
works (including different forms of works).
(3) In connection with
subsection (1)(b)
—
(a) a maximum volume of water may apply to more than 1 works (and
different maximums may apply in relation to different works); and
(b) a water resource works approval may specify a maximum volume that will
apply—
(i) for a specified time; or
(ii) until a specified day; or
(iii) from time to time according to circumstances, or for periods,
specified in the water resource works approval; or
(iv) indefinitely (subject to any variation made by the Minister);
or
(v) on some other basis specified in the water resource works
approval.
(4) Without
limiting the operation of
subsection (1)(c)
, a condition of a water resource works approval that relates to a water
resource within the Murray-Darling Basin may include—
(a) a requirement that a person who has the benefit of the approval enter
into or maintain a bond in such sum and subject to such terms and conditions
specified by the Minister, or enter into some other arrangement specified by the
Minister (which may include the payment of a sum or sums of money into an
account specified by the Minister), to ensure that money is available to address
the costs of any damage to the River Murray (being the costs of any such damage
within the meaning of section 3(5) of the
River
Murray Act 2003
) that may be attributable to the taking or use of water from the
resource;
(b) a requirement that a person who has the benefit of the
approval—
(i) develop to the satisfaction of the Minister an environment improvement
program containing requirements specified by the Minister, and then comply with
the requirements of that program to the satisfaction of the Minister;
or
(ii) participate in a specified environment improvement program (including
a program that applies with respect to any part of the River Murray);
(c) a requirement that a person who has the benefit of the approval
participate in any other form of scheme to protect, restore or otherwise benefit
the River Murray specified by the Minister (including a scheme established by
the Minister or any other person or body that has effect in relation to any part
of the River Murray and including by payment of a sum or sums of money into an
account established or used for the purposes of the scheme).
(5) A condition of a kind referred to in
subsection (4)
may also be imposed with respect to damage to the River Murray occurring
before the imposition of the condition.
(1) A water resource
works approval may be varied by the Minister—
(a) at any time on
the application of, or with the consent of, the holder of the approval;
or
(b) if the approval
provides for intervals at which the conditions of the approval may be
varied—at those intervals if, in the opinion of the Minister, the
variation is necessary or desirable to more effectively regulate the taking of
water from the resource in accordance with the relevant water allocation plan
and this Act; or
(c) at any time if
there has been an alteration to the water allocation plan for the water resource
to which the approval relates and the variation is necessary, in the opinion of
the Minister, to prevent the approval from being seriously at variance with the
plan; or
(d) at any time if
the variation is to impose or vary a condition of an approval that relates to a
water resource within the Murray-Darling Basin and the Minister is of the
opinion that the variation is appropriate or desirable to prevent, reduce or
address damage to the River Murray; or
(e) at any time if the
variation is necessary, in the opinion of the Minister, to provide consistency
with action taken with respect to the variation or transfer of a water licence
or water allocation that is relevant to the water resource works approval;
or
(f) if the Minister is authorised to do so by the regulations.
(2) An application under
subsection (1)(a)
must—
(a) be made in a form approved by the Minister; and
(b) be accompanied by the fee prescribed by the regulations.
(3) For the purposes of
subsection (1)(e)
, a water resource works approval is relevant to a water licence or water
allocation if the works approved under the approval are used or may be used to
take water under the licence or water allocation that is being varied or
transferred.
(4) The Minister's decision on the variation of an
approval—
(a) must not be seriously at variance with the relevant water allocation
plan; and
(b) must be made in the public interest; and
(c) must be consistent with requirements (if any) prescribed by regulation
under this paragraph (which regulation may prescribe circumstances where an
application for a variation must be refused).
(5) A person who
holds a water resource works approval may appeal to the ERD Court
against—
(a) a decision to refuse to grant an application to vary the approval
under
subsection (1)(a)
; or
(b) the variation of the person's water resource works approval under
subsection (1)(b)
,
(c)
or
(d)
.
(6) However, if the approval relates to a water resource within the
Murray-Darling Basin then no right of appeal will arise under
subsection (5)
if the regulations so provide.
(7) The Minister is not required to conduct a hearing or to give notice to
a third party before varying a water resource works approval under this
section.
(8) However, the Minister must, after making a variation, give notice of
the variation to a person with a prescribed interest in the relevant land in
accordance with the regulations.
(9) Without limiting a preceding subsection, a water resource works
approval may be varied—
(a) by operation of the provisions of the relevant water allocation plan,
and the variation will take effect by force of this subsection; or
(b) by the Minister acting in a circumstance specified by the water
allocation plan under
section 51(8)
.
If an application for a water resource works approval or the variation of a
water resource works approval falls within a class specified by the relevant
water allocation plan for the purposes of this section—
(a) notice of the application must be given by the Minister, in accordance
with the regulations, to—
(i) those persons specified in the plan; and
(ii) those persons (if any) prescribed by the regulations; and
(iii) the public generally; and
(b) if notice of an application has been given under this section, any
person who desires to do so may, in accordance with the regulations, make
representations in writing to the Minister in relation to the granting or
refusal of the application; and
(c) the Minister
must forward to the applicant a copy of the representations (if any) made and
allow the applicant an opportunity to respond, in writing, to those
representations; and
(d) the response referred to in
paragraph (c)
must be made within the number of days prescribed by the regulations after
the relevant material is forwarded to the applicant; and
(e) the Minister
must allow a person who made a representation and who, as part of that
representation, indicated an interest in appearing before the Minister, a
reasonable opportunity to appear personally or by representative before the
Minister to be heard in support of the representation; and
(f) if a person appears before the Minister under
paragraph (e)
, the Minister must also allow the applicant a reasonable opportunity, on
request, to appear personally or by representative in order to respond to any
relevant matter; and
(g) if
representations have been made under this subsection, the Minister must, within
the period prescribed by the regulations—
(i) give to each person who made a representation notice of the Minister's
decision on the application and of the date of the decision and of the person's
appeal rights under this Act; and
(ii) give notice to the ERD Court—
(A) of the Minister's decision on the application and of the date of the
decision; and
(B) of the names and addresses of persons who made representations to the
Minister under this section; and
(h) a person who is entitled to be given notice of the decision under
paragraph (g)
may, within 15 business days after the date on which the notice was
given to the person, appeal to the ERD Court against the decision; and
(i) if an appeal is lodged by a person who is entitled to be given notice
of the decision under
paragraph (g)
, the applicant for the water resource works approval or variation (as the
case may be) must be notified by the ERD Court of the appeal and will be a party
to the appeal; and
(j) a decision of the Minister in respect of which representations have
been made under this section does not operate—
(i) until the time within which any person who made any such
representation may appeal against a decision to grant the application has
expired; or
(ii) if an appeal is commenced—
(A) until the appeal is dismissed, struck out or withdrawn; or
(B) until the questions raised by the appeal have been finally determined
(other than any question as to costs).
136—Cancellation
if works not constructed or used
(1) The Minister
may, in accordance with a scheme prescribed by the regulations, cancel a water
resource works approval if works within the ambit of the approval are not, over
a period prescribed by the regulations—
(a) constructed, or substantially completed; or
(b) used, or used to any significant degree.
(2) The holder of a
water resource works approval may appeal to the ERD Court against a decision
under
subsection (1)
.
(3) However, if the approval relates to a water resource within the
Murray-Darling Basin then no right of appeal will arise under
subsection (2)
if the regulations so provide.
A water resource works approval applies to the site to which the approval
relates and is attached to the land constituting that site.
A water resource works approval will expire according to its terms if the
provisions of the approval so provide.
Subdivision 4—Site
use approval
139—Site
use approvals—applications and matters to be
considered
(1) An application for a site use approval must be in a form approved by
the Minister and must—
(a) specify—
(i) the purpose or purposes for which the water is proposed to be used;
and
(ii) the place at which the water is proposed to be used; and
(iii) prescribed information about the proposed extent, manner and rate of
use of the water; and
(b) be accompanied by the fee prescribed by the regulations; and
(c) be accompanied by such other information or material as the Minister
may require.
(2) The Minister may, after receiving an application, request the
applicant to provide such additional information or material as the Minister
thinks fit in order to assess the application.
(3) The Minister may refuse to grant an approval—
(a) if in the opinion of the Minister—
(i) it would be contrary to the provisions of the relevant water
allocation plan to grant the approval; or
(ii) the use of the water under the terms of the application would have an
unreasonable impact on a water resource or other form of natural resource;
or
(b) to a person, or to the associate of a person, who formerly held a
water management authorisation that was cancelled under this Act; or
(c) to a person who has acted in contravention of this Act; or
(d) on any ground prescribed by the regulations; or
(e) on any other reasonable ground.
(4) In addition, the Minister's decision on the grant of an approval must
be consistent with requirements (if any) prescribed by the
regulations.
(a) must specify, in
such manner as the Minister thinks fit—
(i) the place where the use is allowed; and
(ii) the manner and use of water authorised by the approval; and
(b) may specify the
maximum volume of water that may be used at the place under
paragraph (a)
under the approval; and
(i) prescribed from time to time by the regulations; or
(ii) specified from time to time by the relevant water allocation plan;
or
(iii) endorsed on the approval by the Minister; and
(d) may be classified in connection with a management zone specified in
the relevant water allocation plan.
(2) In connection with
subsection (1)(b)
, a site use approval may specify a maximum volume of water that will
apply—
(a) for a specified time; or
(b) until a specified day; or
(c) from time to time according to circumstances, or for periods,
specified in the site use approval; or
(d) indefinitely (subject to any variation made by the Minister);
or
(e) on some other basis specified in the site use approval.
(3) Without
limiting the operation of
subsection (1)(c)
, a condition of a site use approval that relates to a water resource
within the Murray-Darling Basin may include—
(a) a requirement that a person who has the benefit of the approval enter
into or maintain a bond in such sum and subject to such terms and conditions
specified by the Minister, or enter into some other arrangement specified by the
Minister (which may include the payment of a sum or sums of money into an
account specified by the Minister), to ensure that money is available to address
the costs of any damage to the River Murray (being the costs of any such damage
within the meaning of section 3(5) of the
River
Murray Act 2003
) that may be attributable to the taking or use of water from the
resource;
(b) a requirement that a person who has the benefit of the
approval—
(i) develop to the satisfaction of the Minister an environment improvement
program containing requirements specified by the Minister, and then comply with
the requirements of that program to the satisfaction of the Minister;
or
(ii) participate in a specified environment improvement program (including
a program that applies with respect to any part of the River Murray);
(c) a requirement that a person who has the benefit of the approval
participate in any other form of scheme to protect, restore or otherwise benefit
the River Murray specified by the Minister (including a scheme established by
the Minister or any other person or body that has effect in relation to any part
of the River Murray and including by payment of a sum or sums of money into an
account established or used for the purposes of the scheme).
(4) A condition of a kind referred to in
subsection (3)
may also be imposed with respect to damage to the River Murray occurring
before the imposition of the condition.
(1) A site use approval
may be varied by the Minister—
(a) at any time on
the application of, or with the consent of, the holder of the approval;
or
(b) if the approval
provides for intervals at which the conditions of the approval may be
varied—at those intervals if, in the opinion of the Minister, the
variation is necessary or desirable to more effectively regulate the use of
water from the resource in accordance with the relevant water allocation plan
and this Act; or
(c) at any time if
there has been an alteration to the water allocation plan for the water resource
to which the approval relates and the variation is necessary, in the opinion of
the Minister, to prevent the approval from being seriously at variance with the
plan; or
(d) at any time if
the variation is to impose or vary a condition of an approval that relates to a
water resource within the Murray-Darling Basin and the Minister is of the
opinion that the variation is appropriate or desirable to prevent, reduce or
address damage to the River Murray; or
(e) if the Minister is authorised to do so by the regulations.
(2) An application under
subsection (1)(a)
must—
(a) be made in a form approved by the Minister; and
(b) be accompanied by the fee prescribed by the regulations.
(3) The Minister's decision on the variation of an
approval—
(a) must not be seriously at variance with the relevant water allocation
plan; and
(b) must be made in the public interest; and
(c) must be consistent with requirements (if any) prescribed by regulation
under this paragraph (which regulation may prescribe circumstances where an
application for a variation must be refused).
(4) A person who
holds a site use approval may appeal to the ERD Court against—
(a) a decision to refuse to grant an application to vary the approval
under
subsection (1)(a)
; or
(b) the variation of the person's approval under
subsection (1)(b)
,
(c)
or
(d)
.
(5) However, if the approval relates to a water resource within the
Murray-Darling Basin then no right of appeal will arise under
subsection (4)
if the regulations so provide.
(6) The Minister is not required to conduct a hearing or to give notice to
a third party before varying a site use approval under this section.
(7) However, the Minister must, after making a variation, give notice of
the variation to a person with a prescribed interest in the relevant land in
accordance with the regulations.
(8) Without limiting a preceding subsection, a site use approval may be
varied—
(a) by operation of the provisions of the relevant water allocation plan,
and the variation will take effect by force of this subsection; or
(b) by the Minister acting in a circumstance specified by the water
allocation plan under
section 51(8)
.
If an application for a site use approval or the variation of a site use
approval falls within a class specified by the relevant water allocation plan
for the purposes of this section—
(a) notice of the application must be given by the Minister, in accordance
with the regulations, to—
(i) those persons specified in the plan; and
(ii) those persons (if any) prescribed by the regulations; and
(iii) the public generally; and
(b) if notice of an application has been given under this section, any
person who desires to do so may, in accordance with the regulations, make
representations in writing to the Minister in relation to the granting or
refusal of the application; and
(c) the Minister
must forward to the applicant a copy of the representations (if any) made and
allow the applicant an opportunity to respond, in writing, to those
representations; and
(d) the response referred to in
paragraph (c)
must be made within the number of days prescribed by the regulations after
the relevant material is forwarded to the applicant; and
(e) the Minister
must allow a person who made a representation and who, as part of that
representation, indicated an interest in appearing before the Minister, a
reasonable opportunity to appear personally or by representative before the
Minister to be heard in support of the representation; and
(f) if a person appears before the Minister under
paragraph (e)
, the Minister must also allow the applicant a reasonable opportunity, on
request, to appear personally or by representative in order to respond to any
relevant matter; and
(g) if
representations have been made under this subsection, the Minister must, within
the period prescribed by the regulations—
(i) give to each person who made a representation notice of the Minister's
decision on the application and of the date of the decision and of the person's
appeal rights under this Act; and
(ii) give notice to the ERD Court—
(A) of the Minister's decision on the application and of the date of the
decision; and
(B) of the names and addresses of persons who made representations to the
Minister under this section; and
(h) a person who is entitled to be given notice of the decision under
paragraph (g)
may, within 15 business days after the date on which the notice was
given to the person, appeal to the ERD Court against the decision; and
(i) if an appeal is lodged by a person who is entitled to be given notice
of the decision under
paragraph (g)
, the applicant for the site use approval or variation (as the case may be)
must be notified by the ERD Court of the appeal and will be a party to the
appeal; and
(j) a decision of the Minister in respect of which representations have
been made under this section does not operate—
(i) until the time within which any person who made any such
representation may appeal against a decision to grant the application has
expired; or
(ii) if an appeal is commenced—
(A) until the appeal is dismissed, struck out or withdrawn; or
(B) until the questions raised by the appeal have been finally determined
(other than any question as to costs).
(1) The Minister
may, in accordance with a scheme prescribed by the regulations, cancel a site
use approval in prescribed circumstances.
(2) The holder of a
site use approval may appeal to the ERD Court against a decision under
subsection (1)
.
(3) However, if the approval relates to a water resource within the
Murray-Darling Basin then no right of appeal will arise under
subsection (2)
if the regulations so provide.
A site use approval applies to the site to which the approval relates and
is attached to the land constituting that site.
A site use approval will expire according to its terms if the provisions of
the approval so provide.
Subdivision 5—Delivery
capacity entitlements
146—Delivery
capacity entitlements—applications and matters to be
considered
(1) An application for a delivery capacity entitlement must be in a form
approved by the Minister and must—
(a) specify—
(i) the water resource in relation to which the delivery capacity
entitlement is being sought; and
(ii) the place or area where water is proposed to be taken; and
(iii) prescribed information about the times and rates at which it is
proposed to take water; and
(iv) prescribed information about the extent to which priority is being
sought over other delivery capacity entitlements issued in relation to the same
water resource (or a specified part of the water resource); and
(b) be accompanied by the fee prescribed by the regulations; and
(c) be accompanied by such other information or material as the Minister
may require.
(2) The Minister may, after receiving an application, request the
applicant to provide such additional information or material as the Minister
thinks fit in order to assess the application.
(3) The Minister
may, if the Minister thinks fit, issue delivery capacity entitlements with
respect to a particular water resource, or a particular part of a water
resource, on the basis of applications submitted to the Minister under
procedures determined by the Minister as being appropriate in the relevant
circumstances (including procedures that require applications to be submitted as
tenders or furnished as part of an auction process).
(4) The Minister may refuse to grant a delivery capacity
entitlement—
(a) if in the opinion of the Minister it would be contrary to the
provisions of the relevant water allocation plan to grant a delivery capacity
entitlement under the terms being sought; or
(b) if the application has not been successful under the terms of any
procedure established under
subsection (3)
; or
(c) to a person, or to the associate of a person, who formerly held a
water management authorisation that was cancelled under this Act; or
(d) to a person who has acted in contravention of this Act; or
(e) on any ground prescribed by the regulations; or
(f) on any other reasonable ground.
(5) In addition, the Minister's decision on the grant of a delivery
capacity entitlement must—
(a) be made in the public interest; and
(b) be consistent with requirements (if any) prescribed by the
regulations.
(6) The Minister may, if the delivery capacity entitlement is being issued
under procedures that require the payment of a fee or purchase price with
respect to the delivery capacity entitlement, require the relevant payment
before granting a delivery capacity entitlement.
(7) In this section—
relevant water allocation plan
means the water allocation plan that relates to the water resource in relation
to which the delivery capacity entitlement is sought and includes the water
allocation plan of another water resource (if any) that includes provisions
relating to the taking, or the taking and use, of water from the firstmentioned
water resource.
147—Issuing
of delivery capacity entitlements
(1) A delivery
capacity entitlement—
(a) must specify, in such manner as the Minister thinks fit, the terms of
the entitlement; and
(b) is subject to conditions—
(i) prescribed from time to time by the regulations; or
(ii) specified from time to time by the relevant water allocation plan;
or
(iii) endorsed on the approval by the Minister; and
(c) may be granted
on the basis that it cannot be transferred except in conjunction with the
transfer of a specified water licence, water access entitlement or water
allocation; and
(d) remains in force until the delivery capacity
entitlement—
(i) is terminated by or under this Act; or
(ii) if relevant, expires under the terms of the delivery capacity
entitlement.
(2) Subject to any provision made under
subsection (1)(c)
, a delivery capacity entitlement is personal property and may pass to
another in accordance with the provisions of this Act or, subject to this Act,
in accordance with any other law for the passing of property.
148—Delivery
capacity entitlements to relate to point of extraction
A delivery capacity entitlement—
(a) may be applied
to any aspect of the taking of water from the relevant water resource at a point
of extraction; but
(b) must not be applied to any part of an irrigation system that
distributes water after extraction from the relevant water resource (other than
indirectly through the operation of
paragraph (a)
).
149—Variation
of delivery capacity entitlements
(1) A delivery
capacity entitlement may be varied by the Minister—
(a) at any time on
the application of, or with the consent of, the holder of the delivery capacity
entitlement; or
(b) if the delivery
capacity entitlement provides for intervals at which the conditions of the
delivery capacity entitlement may be varied—at those intervals if, in the
opinion of the Minister, the variation is necessary or desirable to more
effectively regulate the use of water from the resource in accordance with the
relevant water allocation plan and this Act; or
(c) at any time if
there has been an alteration to the water allocation plan for the water resource
to which the delivery capacity entitlement relates and the variation is
necessary, in the opinion of the Minister, to prevent the delivery capacity
entitlement from being inconsistent with the plan; or
(d) at any time if
the variation is to impose or vary a condition of a delivery capacity
entitlement that relates to a water resource within the Murray-Darling Basin and
the Minister is of the opinion that the variation is appropriate or desirable to
prevent, reduce or address damage to the River Murray; or
(e) if the Minister is authorised to do so by another provision of this
Act; or
(f) if the Minister is authorised to do so by the regulations.
(2) An application under
subsection (1)(a)
must—
(a) be made in a form approved by the Minister; and
(b) be accompanied by the fee prescribed by the regulations.
(3) The Minister's decision on the variation of a delivery capacity
entitlement—
(a) must be consistent with the relevant water allocation plan and for the
purposes of this paragraph the relevant water allocation plan includes the water
allocation plan of another water resource (if any) that includes provisions
relating to the taking, or the taking and use, of water from the water resource
in relation to which the delivery capacity entitlement was granted;
and
(b) must be made in the public interest; and
(c) must be consistent with requirements (if any) prescribed by regulation
under this paragraph (which regulation may prescribe circumstances where an
application for a variation must be refused).
(4) A person who
holds a delivery capacity entitlement may appeal to the ERD Court
against—
(a) a decision to refuse to grant an application to vary the person's
delivery capacity entitlement under
subsection (1)(a)
; or
(b) the variation of the person's delivery capacity entitlement under
subsection (1)(b)
,
(c)
or
(d)
.
(5) However, if the delivery capacity entitlement relates to a water
resource within the Murray-Darling Basin then no right of appeal will arise
under
subsection (4)
if the regulations so provide.
(6) The Minister is not required to conduct a hearing or to give notice to
a third party before varying a delivery capacity entitlement under this
section.
150—Transfer
of delivery capacity entitlements
(1) Subject to this Act, the relevant water allocation plan and the terms
of the delivery capacity entitlement, the holder of a delivery capacity
entitlement may transfer the delivery capacity entitlement to another
person.
(2) A transfer may be absolute or for a limited period.
(3) A transfer requires the approval of the Minister.
(4) An application to the Minister for the Minister's approval
must—
(a) be made in a form approved by the Minister; and
(b) be accompanied by the fee prescribed by the regulations.
(5) The Minister may refuse to grant approval for the transfer of a
delivery capacity entitlement to a person on the same grounds as those on which
the Minister would refuse to grant an application by that person for a delivery
capacity entitlement.
(6) The Minister may refuse to grant approval for the transfer of a
delivery capacity entitlement—
(a) if the holder of the delivery capacity entitlement is in breach of a
condition of the delivery capacity entitlement; or
(b) unless or until any water levy that has been imposed in relation to
the delivery capacity entitlement has been paid.
(7) In addition,
the Minister's decision to grant or refuse approval for the transfer of a
delivery capacity entitlement—
(a) must be
consistent with the relevant water allocation plan (and for the purposes of this
paragraph the relevant water allocation plan includes the water allocation plan
of another water resource (if any) that includes provisions relating to the
taking, or the taking and use, of water from the water resource in relation to
which the delivery capacity entitlement was granted); and
(b) must be made in the public interest; and
(c) must be consistent with requirements (if any) prescribed by regulation
under this paragraph (which regulation may prescribe circumstances where an
application for a transfer must be refused).
operates subject to the terms or requirements of an Interstate Water
Entitlements Transfer Scheme.
(9) If an application for the transfer of a delivery capacity entitlement
relates to a delivery capacity entitlement held by SA Water, the Minister's
decision on the application must be made with the concurrence of the Minister
for the time being administering the
South
Australian Water Corporation Act 1994
.
(10) The Minister may, before granting an application for the transfer of
a delivery capacity entitlement, direct that an assessment of the effect of
granting the application be made (at the expense of the applicant) by an expert
appointed or approved by the Minister.
(11) The Minister
may, when granting an application for the transfer of a delivery capacity
entitlement—
(a) vary the terms of the delivery capacity entitlement;
(b) vary any condition of the delivery capacity
entitlement—
(i) to ensure consistency with the relevant water allocation plan;
or
(ii) in the case of a delivery capacity entitlement that relates to a
water resource within the Murray-Darling Basin—to reduce or address damage
to the River Murray;
(c) if relevant, take any other action required or permitted under an
Interstate Water Entitlements Transfer Scheme.
(12) A delivery capacity entitlement that has been transferred for a
limited period reverts automatically to the transferor when the period
expires.
(13) Despite the provisions of the
Stamp
Duties Act 1923
, the transfer of a delivery capacity entitlement is not chargeable with
duty under that Act.
151—Surrender
of delivery capacity entitlements
The holder of a delivery capacity entitlement may surrender the delivery
capacity entitlement at any time.
Subdivision 6—Interstate
agreements
(1) The Minister may (on behalf of the State of South Australia) enter
into an agreement with a Minister of any other State or a
Territory—
(a) for the conversion of water entitlements or equivalent rights in 1
State or Territory into water entitlements or equivalent rights in another State
or Territory;
(b) for the recognition of water entitlements or equivalent rights in 1
State or Territory in another State or Territory;
(c) for the assignment of water allocations from 1 State or Territory to
another State or Territory.
(2) In this section—
water entitlement means—
(a) a water licence (and an associated water access
entitlement);
(b) a water allocation;
(c) a delivery capacity entitlement.
153—Allocation
on declaration of prescribed water resource
(1) On declaration
of a watercourse, lake or well as a prescribed watercourse, lake or well or
declaration of a part of the State as a surface water prescribed area, an
existing user of water from the water resource concerned—
(a) may, subject to a restriction or prohibition under
section 107
, continue to use water without a water management authorisation until the
end of the prescribed period or, if the existing user applies for any necessary
water management authorisation (depending on the circumstances of the particular
case) within 6 months after the publication in the Gazette of the
regulation declaring the resource to be a prescribed resource, until all
relevant applications have been granted or refused;
(b) is, subject to
subsection (3)
, entitled to be granted, without the payment of any purchase price, the
necessary water management authorisations, subject to any determination by the
Minister under
subsection (2)
after consultation with the existing user.
(2) The water
access entitlement that applies under
subsection (1)(b)
will be the share of a consumptive pool that will, in the opinion of the
Minister, meet the future requirements of the existing user—
(a) based on their
reasonable requirements during the establishment period; or
(b) for water for a
development, project or other undertaking to which they were legally committed
or in respect of which they had committed significant financial or other
resources during the establishment period; or
(c) under both
paragraphs (a)
and
(b)
.
(3) If at the
expiration of the prescribed period, the aggregate of water access entitlements
assigned to existing users under
subsections (1)
and
(2)
exceeds, in the opinion of the Minister, the capacity of the resource, the
Minister may—
(a) reduce each water access entitlement proportionately; or
(b) reduce each water access entitlement pursuant to a scheme set out in
the regulations.
(4) Before determining the capacity of the resource, the Minister must
prepare a report assessing the need for water of ecosystems that depend on the
resource for water.
(5) The Minister must make the report publicly available.
(6) An existing user may appeal to the ERD Court against a determination
or decision of the Minister under
subsection (1)
or
(2)
.
(7) Subject to a restriction or prohibition under
section 107
, a person who is not an existing user may take water from the water
resource without a water management authorisation until the end of the
prescribed period.
(8) If the quantity of water available for allocation exceeds the
entitlements of existing users, the Minister may allocate the excess in
accordance with this Act and the relevant water allocation plan.
(9) An entitlement under
subsection (1)(b)
may be transferred to another person with the approval of the Minister but
subject to any requirement or limitation prescribed by the
regulations.
(10) In this section—
establishment period in relation to the declaration of a
water resource means the period prescribed for the purposes of this definition
by the regulation declaring the resource to be a prescribed resource being a
period that ends at the commencement of the prescribed period;
existing user means, subject to
subsection (11)
, a person—
(a) who took water from the resource at any time during the establishment
period; or
(b) who did not take any water during that period but who needs water for
a development, project or undertaking to which the person was legally committed
or in respect of which the person had, in the opinion of the Minister, committed
significant financial or other resources during the establishment
period;
prescribed period in relation to a water resource commences
on the date of publication in the Gazette of the notice inviting submissions in
relation to the proposed regulation declaring the resource to be a prescribed
resource and ends on the date specified for that purpose in the
regulation.
(11) A person
ceases to be an existing user if the person does not make the necessary
applications under
subsection (1)
within 6 months after publication in the Gazette of the regulation
declaring the resource to be a prescribed resource.
(12) If a person who is an existing user under a preceding subsection
divests themselves of land (or an interest in land) in relation to which the
rights of an existing user arises under those subsections—
(a) the person who acquires the land (or the interest in land), or any
successor to that person, will be regarded as the existing user in substitution
for the earlier existing user (and to obtain the benefit of any action or
commitment taken or made by an earlier existing user); and
(b) those subsections will apply subject to any modifications necessary to
take into account the operation of this subsection, and such other modifications
as may be prescribed by the regulations.
154—Schemes
to promote the transfer or surrender of certain
entitlements
(1) The Minister
may, by notice in the Gazette, establish a scheme—
(a) to promote the transfer or surrender of water allocations, or water
allocations of a specified class, that relate to an area within the
Murray-Darling Basin;
(b) to promote the surrender of water licences, or water licences of a
specified class, that relate to a specified area within the Murray-Darling
Basin.
(2) A scheme under
subsection (1)
will be a scheme—
(a) under which any holder of a water allocation of a specified class
must, in accordance with the terms of the scheme, make an offer—
(i) to transfer the whole or a specified part of the water allocation to
the Minister or to a person of a specified class—
(A) for a price specified by the holder of the water allocation;
or
(B) for a price determined under the terms of the scheme, being a price
that equals or exceeds a reserve price specified by the holder of the water
allocation; or
(ii) to surrender the whole or a specified part of the water allocation to
the Minister, for a price specified by the holder of the water
allocation;
(b) under which the holder of a water licence of a specified class must,
in accordance with the terms of the scheme, make an offer to surrender the
licence for a price specified by the holder of the licence;
(c) under which the
Minister will, in accordance with the terms of the scheme—
(i) make an offer to any holder of a water allocation of a specified class
to pay a price specified by the Minister for the surrender of the whole or a
specified part of the water allocation;
(ii) make an offer to the holder of a water licence of a specified class
to pay a price specified by the Minister for the surrender of the
licence.
(3) Neither the Minister nor the holder of a water allocation or a water
licence is required to accept an offer under a scheme established under this
section.
(4) Subject to
subsection (5)
, the Minister must not reject any acceptance of an offer within the terms
of a scheme under
subsection (2)(c)
.
(5) The Minister
may reject such an acceptance if—
(a) the Minister has, in establishing the particular scheme, set a maximum
amount of water allocation with respect to which the Minister is willing to make
a payment and that maximum had been achieved before the receipt by the Minister
of the relevant acceptance; or
(b) the Minister has, in establishing the particular scheme, set a limit
on the amount of money that the Minister is willing to expend under the scheme
and that limit has been achieved before the receipt by the Minister of the
relevant acceptance; or
(c) the Water Register includes a notation that a person has an interest
in the relevant water allocation or water licence and the acceptance has been
made without the written consent of that person; or
(d) the Minister receives the relevant acceptance after the Minister has
brought the scheme to an end; or
(e) any other prescribed circumstance applies.
(6) The Minister may in the Minister's absolute discretion, by notice in
the Gazette, bring a scheme to an end at any time.
(7) When a scheme is brought to an end, any unaccepted offers
automatically lapse.
(8) The Governor may, by regulation, make provision for related or
ancillary matters connected with the operation of this section.
155—Consequences
of breach of water management authorisations
(1) If the holder
of a water management authorisation, or a person acting on behalf of the holder
of a water management authorisation—
(a) takes water in excess of any entitlement under the water management
authorisation, or contrary to a provision of the water management authorisation;
or
(b) contravenes or fails to comply with a condition of the water
management authorisation; or
(c) uses water taken pursuant to the water management authorisation for an
illegal purpose,
the Minister may cancel, suspend or vary the water management authorisation
by 7 days written notice served on the holder of the water management
authorisation.
(2) If the holder
of a water management authorisation, or a person acting on behalf of the holder
of a water management authorisation, contravenes or fails to comply with a
notice under
section 107
, the Minister may cancel, suspend or vary the water management
authorisation by 7 days written notice served on the holder of the water
management authorisation.
(a) the holder of a water management authorisation, or a person acting on
behalf of the holder of a water management authorisation—
(i) has contravened an environment protection order under the
Environment
Protection Act 1993
or a protection order under the
River
Murray Act 2003
; or
(ii) has failed to comply with a clean-up order under the
Environment
Protection Act 1993
or a reparation order under the
River
Murray Act 2003
; and
(b) the Minister is satisfied that the quality of the water in the water
resource to which the water management authorisation relates has been
detrimentally affected by the contravention or failure,
the Minister may cancel, suspend or vary the water management authorisation
by 7 days written notice served on the holder of the water management
authorisation.
(4) A holder, or former holder, of a water management authorisation may
appeal to the ERD Court against a decision of the Minister under this
section.
(5) The Minister must, after taking action to cancel, suspend or vary a
water management authorisation under this section, give notice of the action to
a person with a prescribed interest in the water management authorisation in
accordance with the regulations.
156—Effect
of cancellation of water management authorisations
(1) Any entitlement
under a water management authorisation that has been cancelled under this Act is
forfeited to the Minister.
(2) If—
(a) a water licence, water access entitlement, water allocation or
delivery capacity entitlement (an entitlement) is forfeited under
subsection (1)
; and
(b) the entitlement has sufficient value to cover the costs associated
with its sale; and
(c) the entitlement can be transferred consistently with the relevant
water allocation plan and the provisions of the entitlement,
the Minister must endeavour to sell the entitlement—
(d) by public auction or tender; or
(e) by some other process considered by the Minister to be reasonable in
the circumstances (including by private sale).
(3) The proposal to sell the entitlement must be advertised on at least 2
separate occasions in a newspaper circulating in the area in which the water
resource is situated.
(4) If 1 process fails, the Minister may proceed to another.
(5) The Minister should, in taking action to sell the entitlement, take
reasonable steps to achieve the best price that can reasonably be
obtained.
(6) Any money received by the Minister on the sale of the entitlement
under this section must be applied as follows:
(a) firstly—in paying the costs of the sale and any other costs
incurred in proceedings under this section;
(b) secondly—in discharging any liability (if any) for an unpaid
levy or instalment of a levy under
Part 5
, and any interest in respect of an unpaid levy or instalment, in relation
to the entitlement;
(c) thirdly—in discharging any other liability of the former holder
of the entitlement under this Act to the Minister or to any other authority
under this Act;
(d) fourthly—in discharging any liabilities of the former holder of
the entitlement of which the Minister knows that are secured by a charge over
the entitlement;
(e) fifthly—in payment to the former holder of the
entitlement.
(7) If the former holder of the entitlement cannot be found after making
reasonable enquiries as to their whereabouts, an amount payable to the former
holder of the entitlement must be dealt with as unclaimed money under the
Unclaimed
Moneys Act 1891
.
(8) The purchaser of an entitlement under this section takes the
entitlement free of all charges.
Division 4—Reservation
of excess water by Minister
In this Division, unless the contrary intention appears—
reserved water means water reserved by notice published in
the Gazette under
section 158
.
158—Reservation
of excess water in a water resource
(a) a water allocation plan has been approved by the Minister in relation
to a water resource; and
(b) the water resource includes excess water that is available for
allocation; and
(c) the Minister is satisfied that it is necessary or desirable for the
proper management of the water of the resource to reserve the whole or part of
that excess water either from allocation under any circumstances or for
allocation subject to restrictions,
the Minister may, by notice published in the Gazette, reserve the whole or
a part of the excess water.
(2) The notice—
(a) must specify the quantity of water that is reserved; and
(b) must state whether the water is reserved from allocation under any
circumstances or may be allocated by the Minister if the requirements referred
to in a regulation under
section 159
are satisfied; and
(c) may, if water can be allocated, specify the requirements (if any) that
must be satisfied in addition to those referred to in a regulation under
section 159
before water is allocated.
(3) The Minister may, at any time, by subsequent notice published in the
Gazette vary or revoke a notice under
subsection (1)
.
159—Allocation
of reserved water
(1) The following provisions apply in relation to the allocation of
reserved water despite the other provisions of this Act:
(a) the restrictions (if any) in the relevant water allocation plan as to
the purpose for which allocated water can be used do not apply to the allocation
of reserved water (but this paragraph does not prevent the Minister from
allocating reserved water subject to the same or similar
restrictions);
(b) the allocation will be for a limited term of not more that
15 years and may be based on a water access entitlement specified by the
Minister;
(c) the Minister may require an applicant to pay to the Minister for the
allocation of reserved water an amount negotiated with the applicant either in 1
payment or a series of periodic payments;
(d)
sections 120(2)
and
(5)
do not apply in relation to an allocation of reserved water;
(e) a person cannot transfer an allocation of reserved water to another
person.
(2) The Minister
must not allocate reserved water unless—
(a) a regulation
that sets out requirements that must be satisfied is in force; and
(b) those requirements have been satisfied.
(3) A regulation referred to in
subsection (2)(a)
cannot come into operation until it is no longer possible for the
regulation to be disallowed under section 10 of the
Subordinate
Legislation Act 1978
.
160—Public
notice of allocation of reserved water
(a) the Minister has by notice in the Gazette reserved water under this
Division; and
(b) under the terms of the notice the reserved water may be
allocated,
the Minister must, subject to
subsection (3)
, publish notice in the Gazette in respect of each quarter setting
out—
(c) the quantity of reserved water allocated to each person during the
quarter; and
(d) the name of each person to whom the water was allocated; and
(e) the term during which the allocation operates; and
(f) the amount or amounts payable for the allocation of the water and the
date or dates on which those amounts are payable.
(2) A notice under
subsection (1)
must be published in the Gazette as soon as practicable after the end of
the quarter to which it relates.
(3) A notice need
not be published under
subsection (1)
if no water was allocated in the relevant quarter.
(4) In this section—
quarter means the periods of 3 months ending on 30 September,
31 December, 31 March and 30 June in each financial year.
Division 5—Water
conservation measures
161—Water
conservation measures
(1) For the purposes of this section, water conservation measures may do 1
or more of the following:
(a) prohibit the use of water for a specified purpose or purposes, or
restrict or regulate the purposes for which water can be used;
(b) prohibit the use of water in a specified manner or by specified means,
or restrict or regulate the manner in which, or the means by which, water may be
used;
(c) prohibit specified uses of water during specified periods, or restrict
or regulate the times at which water may be used.
(2) The Governor
may, by regulation, introduce 1 or more water conservation measures.
(3) Regulations under
subsection (2)
must be declared to be made—
(a) for the purposes of taking action to provide for the better
conservation, use or management of water (longer-term measures);
or
(b) for the purposes of taking action on account of a situation, or likely
situation, that, in the opinion of the Governor, has resulted, or is likely to
result, in a decrease of the amount of water available within a water resource
(whether prescribed or not) (short-term measures).
(4) A regulation under
subsection (2)
will, unless it has already been revoked, expire—
(a) in the case of a longer-term measure—at the expiration of 5
years from the day on which it comes into operation;
(b) in the case of a short-term measure—at the expiration of 1 year
from the day on which it comes into operation.
(5) Before a regulation
is made under
subsection (2)
—
(a) the Minister should take reasonable steps to consult with persons who,
in the opinion of the Minister, are appropriate representatives of groups who
will be affected by the proposed regulation; and
(b) the Minister should give consideration—
(i) to the impact that the regulation would have on any rights or
entitlements arising under or by virtue of any licences or permits granted under
this Part; and
(ii) to the provisions of any relevant water allocation plan, and of any
other relevant provision of this Part.
(6) A regulation under this section may provide that a specified activity
involving the use of water cannot occur except under the authority of an
approval issued by the Minister in accordance with the regulations.
(7) A regulation under this section may—
(a) apply in relation to any water—
(i) that forms part of the water resources (whether prescribed or not) of
the State; or
(ii) that is available for use within the State (including through a water
reticulation system);
(b) apply in relation to the whole or any part of the State;
(c) apply any measure in relation to specified classes of persons or
bodies, or generally;
(d) specify conditions or provide for exemptions;
(e) otherwise make different provision according to circumstances
specified in the regulation.
(8) A person who contravenes or fails to comply with a regulation under
this section is guilty of an offence.
Maximum penalty:
(a) where the offender is a body corporate—$12 500;
(b) where the offender is a natural person—$6 000.
Expiation fee: $350.
Division 6—Commercial
forestry
(1) In this Division—
forest manager, in relation to a commercial forest, means the
person who has effective control of the forest vegetation that makes up the
forest, either as the owner or occupier of the land on which the vegetation is
growing or as owner of the forest vegetation under a forest property
(vegetation) agreement under the
Forest
Property Act 2000
.
(2) In this Division, a reference to harvesting does not include any
activity prescribed by the regulations for the purposes of this
subsection.
163—Declaration
of forestry areas
(1) The Minister
may, by notice in the Gazette, declare an area of the State to be a declared
forestry area for the purposes of this Act.
(2) However, the Minister must not declare an area to be a declared
forestry area unless—
(a) the area has been identified in a water allocation plan; and
(b) the Minister has referred the matter to the Minister primarily
responsible for commercial forestry within the State and has considered any
advice provided by that Minister; and
(c) the Minister is satisfied, after taking into account such matters as
the Minister thinks fit—
(i) that commercial forests in the relevant area (including after taking
into account expansions that are reasonably likely to occur into the future) are
having, or are reasonably likely to have, a significant hydrological impact on a
prescribed water resource; and
(ii) that the declaration is a reasonable measure to improve the
management of the prescribed water resource.
(3) While a
declaration is in force under
subsection (1)
, the forest manager for a commercial forest within the declared forestry
area that falls within the relevant designation under the water allocation plan
must ensure that the forest is the subject of a forest water licence granted by
the Minister under
Subdivision 2
(unless the commercial forest is a forest excluded from the operation of
Subdivision 2
by the relevant water allocation plan).
(4) The Minister
may, by subsequent notice in the Gazette—
(a) vary the declaration of an area under
subsection (1)
;
(b) revoke the declaration of an area under
subsection (1)
.
(5) If a notice is published under
subsection (4)
, the Minister may, by the same or a subsequent notice in the Gazette, make
provision for any transitional or consequential matter, including for the status
or operation of any forest water licence that may apply in relation to the
relevant area and the status or hydrological transfer value (if any) of any
water allocation attached to any forest water licence after taking into account
the provisions of the relevant water allocation plan (and any such notice will
have effect according to its terms).
(6) For the purposes of this section, the expansion of a commercial forest
will be taken to include a situation where there is to be an increase in the
land that is to be planted with trees for the purposes of a commercial
forest.
(1) A forest water licence will be granted by the Minister.
(2) An application for a licence must be in a form approved by the
Minister and must—
(a) specify—
(i) the commercial forest in relation to which the licence is being
sought; or
(ii) if the forest is yet to be established, the land where the forest is
to be located, the proposed size of the forest (by area and by number of trees),
and the type or types of trees proposed to be planted; and
(b) be made by the forest manager, or by some other person authorised by
the Minister; and
(c) be accompanied by the fee prescribed by the regulations; and
(d) be accompanied by such other information or material as the Minister
may require.
(3) The Minister may refuse to grant a forest water
licence—
(a) to a person, or to the associate of a person, who formerly held a
licence that was cancelled under this Act; or
(b) to a person who has acted in contravention of this Act; or
(c) on any ground prescribed by the regulations; or
(d) on any other reasonable ground.
(4) In addition, the Minister's decision on the grant of a forest water
licence must be consistent with—
(a) any relevant provisions of the water allocation plan; and
(b) requirements (if any) prescribed by the regulations.
(5) A forest water
licence applies to the site of the commercial forest to which the licence
relates and is attached to—
(a) subject to
paragraph (b)
—the land constituting the site;
(b) if the forest
is the subject of a forest property (vegetation) agreement—the forest
vegetation.
(6) If land within the ambit of
subsection (5)(a)
is transferred, the transferee must furnish the Minister with notice of
the transfer in accordance with the regulations.
(7) If the interest conferred under the
Forest
Property Act 2000
by a forest property (vegetation) agreement within the ambit of
subsection (5)(b)
is assigned to another person, the person to whom the interest is assigned
must furnish the Minister with notice of the assignment in accordance with the
regulations.
(1) A forest water licence must have a water allocation attached to the
licence.
(2) The water allocation must provide for a quantity of water that is at
least equal to the water required to fully offset the impact of the forest on
the relevant water resource, as determined in accordance with the hydrological
values that are relevant to the commercial forest under the relevant water
allocation plan (as relevant at the time of the issue of the licence and as
relevant taking into account any expansion or reduction in the size of the
forest) and subject to any allowance under a scheme (if any) relating to the
management of the forest (including as to the planting and harvesting of trees
constituting the forest) approved by the Minister (on such conditions as the
Minister thinks fit) for the purposes of this section.
(3) The water
allocation may be obtained—
(a) by the holder
of the relevant forest water licence, on the basis that a water allocation is
being granted by the Minister; or
(b) by the holder
of the relevant forest water licence on the basis of a transfer of a water
allocation—
(i) from the holder of another forest water licence; or
(ii) from the holder of a water licence,
(or by a combination of both).
(4) The Minister
may require the payment of a fee for a water allocation granted by the Minister
under
subsection (3)(a)
.
(5) The Minister may, in connection with the operation of
subsection (4)
, determine a fee that is based on—
(a) the Minister's assessment of the value of the water allocation;
or
(b) a process that determines the value of the water allocation according
to a procedure determined by the Minister (including, if the Minister thinks
fit, a tender or auction process).
(6) A water allocation (as attached to a forest water licence) must be
consistent with the relevant water allocation plan (and, in the case of a water
allocation under
subsection (3)(b)
, will be obtained subject to any conversion or adjustment under the
provisions of the relevant water allocation plan).
(7) A water allocation is personal property and may pass to another in
accordance with the provisions of this Act or, subject to this Act, in
accordance with any other law for the passing of property.
(8) In this section—
hydrological values means the values specified by the water
allocation plan (as measurements of hydrological impact).
(1) A water
allocation attached to a forest water licence may be varied (including so as to
provide for a reduction in the water allocation) by the
Minister—
(a) at any time on
the application of, or with the consent of, the holder of the licence;
or
(b) at the time, or
within the prescribed period following the time, when a part (or all) of the
forest is harvested; or
(c) if the Minister
is authorised to do so by the regulations.
(2) An application under
subsection (1)(a)
must—
(a) be made in a form approved by the Minister; and
(b) be accompanied by the fee prescribed by the regulations.
(3) A variation to provide for the reduction of a water allocation under
subsection (1)(c)
may only be made within the prescribed period following the time when a
part (or all) of the forest is harvested.
(4) The Minister's
decision on the variation of a water allocation under
subsection (1)
must be consistent with the relevant water allocation plan.
(5) A variation under
subsection (1)
may operate subject to any allowance under a scheme (if any) relating to
the management of the forest (including as to the planting and harvesting of
trees constituting the forest) approved by the Minister (and subject to
complying with any conditions attached to that approval).
(6) The Minister is not required to conduct a hearing or to give notice to
a third party before varying a water allocation under this section.
(1) Subject to this
Act and the relevant water allocation plan, the holder of a forest water licence
may transfer the whole or a part of the water allocation attached to the
licence—
(a) to the holder
of another forest water licence for a forest in the same declared forestry area;
or
(b) to the holder
of another forest water licence for a forest in a different declared forestry
area; or
(c) to the holder
of a water licence; or
(d) to the Minister.
(2) A reference in
subsection (1)(a)
,
(b)
or
(c)
to a forest water licence or a water licence includes a reference to a
licence created to receive the relevant transfer.
(3) A transfer requires the approval of the Minister.
(4) An application to the Minister for the Minister's approval
must—
(a) be made in a form approved by the Minister; and
(b) be accompanied by the fee prescribed by the regulations.
(5) The Minister must refuse to grant approval for the transfer of a water
allocation if the result would be that the water allocation attached to the
licence would fall below the water required to offset the impact of the forest
on the relevant water resource (as determined under the relevant water
allocation plan).
(6) The Minister may refuse to grant approval for the transfer of a water
allocation if the holder of the licence is in breach of a condition of the
licence.
(7) In addition, the Minister's decision to grant or refuse approval for
the transfer of a water allocation—
(a) must be consistent with the relevant water allocation plan;
and
(b) if—
(i) the transfer is to the holder of another forest water licence for a
forest in a different declared area—must be consistent with the water
allocation plan for the water resource that is relevant to the other forest
water licence; or
(ii) the transfer is to the holder of a water licence that relates to a
different prescribed water resource—must be consistent with the water
allocation plan for that other prescribed water resource; and
(c) must be made in the public interest; and
(d) must be consistent with requirements (if any) prescribed by regulation
under this paragraph (which regulation may prescribe circumstances where an
application for a transfer must be refused).
(8) Depending on—
(a) the class of the commercial forest under the other licence on a
transfer under
subsection (1)(a)
or
(b)
, taking into account the provisions of the relevant water allocation plan;
and
(b) the provisions of any relevant water allocation plan as to how water
allocations are to be converted or adjusted if transferred from 1 class of
forest to another, or in relation to 1 prescribed water resource to
another,
the hydrological value of a water allocation may be reduced or increased
(by force of the provisions of a water allocation plan or plans and by force of
this subsection) on its transfer.
(9) Without limiting a preceding subsection, if a forest property
(vegetation) agreement to which a forest water licence is attached comes to an
end, the forest manager may, subject to the regulations, deal with a water
allocation attached to the licence in a manner approved by the
Minister.
(10) Despite the provisions of the
Stamp
Duties Act 1923
, the transfer of a water allocation under this section is not chargeable
with duty under that Act.
A forest water licence will be subject to such conditions—
(a) prescribed from time to time by the regulations; or
(b) endorsed on the licence itself by the Minister.
(1) A condition to
a forest water licence may be varied by the Minister—
(a) at any time on
the application of, or with the consent of, the holder of the licence;
or
(b) at the time, or
within the prescribed period following the time, when a part of the forest is
harvested; or
(c) at intervals
specified by the Minister in the licence; or
(d) if the Minister is authorised to do so under the provisions of the
relevant water allocation plan; or
(e) if the Minister is authorised to do so by the regulations.
(2) An application under
subsection (1)(a)
must—
(a) be made in a form approved by the Minister; and
(b) be accompanied by the fee prescribed by the regulations.
(3) The Minister's decision on the variation of a
condition—
(a) must not be seriously at variance with the relevant water allocation
plan; and
(b) must be consistent with requirements (if any) prescribed by regulation
under this paragraph (which regulation may prescribe circumstances where an
application for variation must be refused).
(4) The holder of a licence may appeal to the ERD Court
against—
(a) a decision to refuse to grant an application to vary a condition of
the licence under
subsection (1)(a)
; or
(b) the variation of a condition under
subsection (1)(b)
or
(c)
.
(5) The Minister is not required to conduct a hearing or to give notice to
a third party before varying a condition under this section.
170—Establishment
of licence on declaration of areas
(1) On or after a
relevant day, the forest manager for a commercial forest within the relevant
declared forestry area (as the forest exists on the relevant day) is entitled,
on due application under this Act made within a period specified by the relevant
water allocation plan, to be issued a forest water licence with respect to that
forest that has attached to the licence a water allocation granted by the
Minister (without the payment of a purchase price) (and until the period so
specified expires and, if due application is made within that period, until the
forest water licence is issued, the forest manager will be taken not to be in
breach of
section 163(3)
).
(2) The Minister
must, in acting under
subsection (1)
, take into account the provisions of the relevant water allocation plan
(as at the date of issue of the licence), and may take into account such other
matters as the Minister thinks fit.
(3) A water
allocation plan may, in connection with the operation of
subsections (1)
and
(2)
, make any provision on account of any water allocation held in relation to
a commercial forest immediately before the commencement of this section by
virtue of a requirement to hold a permit under
section 102(3)(f)
(an off-set allocation), including that the water allocation
attached to a forest water licence under
subsection (1)
is to be adjusted to take into account the existence of the off-set
allocation, that the off-set allocation take the place of an allocation under
subsection (1)
, that the off-set allocation may be transferred (subject to the provisions
of this Act and of the water allocation plan), or that the off-set allocation
will be subject to any other requirement or provision due to the replacement of
a requirement for a permit with the scheme set out in this Division.
(4) Any provision made under
subsection (3)
will also operate subject to any principles or adjustments set out in the
relevant water allocation plan (including so as to vary the hydrological value
of an off-set allocation on account of the need to convert the allocation to an
allocation under this Division or in connection with any transfer of a water
allocation from 1 class of forest to another or in relation to
1 prescribed water resource to another).
(5) In this section—
relevant day, in relation to a commercial forest within a
declared forestry area, is the day from which a forest water licence is required
under this Division in relation to the commercial forest.
A licensee may surrender the licensee's forest water licence in prescribed
circumstances.
The Minister may cancel a forest water licence in
circumstances—
(a) specified in the relevant water allocation plan; or
(b) prescribed by the regulations.
(1) A person who—
(a) contravenes
section 163(3)
; or
(b) contravenes or fails to comply with a condition to which a licence
under this Division is subject,
is guilty of an offence.
Maximum penalty:
(a) if the court by which the conviction is recorded has accepted evidence
as to the extent of the deficiency in a water allocation, as assessed according
to hydrological values, and considers it appropriate that this paragraph
applies—
(i) a sum calculated at the prescribed rate for each kilolitre of water
represented by those hydrological values; or
(ii) —
(A) where the offender is a body corporate—$250 000;
(B) where the offender is a natural person—$125 000,
whichever is the greater; or
(b) in any other case—
(i) where the offender is a body corporate—$250 000;
(ii) where the offender is a natural person—$125 000.
(2) A forest manager who is required to comply with
section 163(3)
in relation to a particular commercial forest must ensure that the water
allocation attached to the relevant forest water licence is at all times at
least equal to the water required to fully offset the hydrological impacts of
the forest on the relevant water resource, as determined in accordance with the
hydrological values that are relevant to the forest under the relevant water
allocation plan and subject to any allowance under a scheme (if any) relating to
the management of the forest (including as to the planting and harvesting of
trees constituting the forest) approved by the Minister (and subject to
complying with any conditions attached to that approval).
Maximum penalty:
(a) if the court by which the conviction is recorded has accepted evidence
as to the extent of the deficiency in a water allocation, as assessed according
to hydrological values, and considers it appropriate that this paragraph
applies—
(i) a sum calculated at the prescribed rate for each kilolitre of water
represented by those hydrological values; or
(ii) —
(A) where the offender is a body corporate—$250 000;
(B) where the offender is a natural person—$125 000,
whichever is the greater; or
(b) in any other case—
(i) where the offender is a body corporate—$250 000;
(ii) where the offender is a natural person—$125 000.
Division 7—Interaction
with Irrigation Acts
174—Interaction
with Irrigation
Act 2009
(1) The Minister may transfer a water licence, and deal with any related
entitlement under this Part, held by an irrigation trust to another trust or a
person or other body to give effect to any determination or approval of the
relevant Minister under Part 2 Division 4 of the
Irrigation
Act 2009
.
(2) The Minister may allocate water transferred by an irrigation trust to
a person or other body under section 30 of the
Irrigation
Act 2009
to a person or body holding a water licence under this Act to give effect
to the operation of that section.
(3) The Minister may—
(a) grant a water licence to a person whose irrigation right is being
transformed into a water licence under section 32 or 33 of the
Irrigation
Act 2009
unless the Minister considers that the water licence should not be granted
on a ground that applies under
Division 3
Subdivision 1
;
(b) make adjustments to a water licence already held by a person whose
irrigation right is being transformed into a water licence under section 32
or 33 of the
Irrigation
Act 2009
on account of that transformation.
(4) This section does not limit the operation or effect of any other
provision of this Act.
(5) A fee (if any) prescribed by the regulations is payable in respect of
any action taken by the Minister under this section (and the Minister may
decline to take the action unless or until the fee is paid).
175—Interaction
with Renmark Irrigation Trust
Act 2009
(1) The Minister may allocate water transferred by RIT to a person or
other body under section 31 of the
Renmark
Irrigation Trust Act 2009
to a person or body holding a water licence under this Act to give effect
to the operation of that section.
(2) The Minister may—
(a) grant a water licence to a person whose irrigation right is being
transformed into a water licence under section 33 or 34 of the
Renmark
Irrigation Trust Act 2009
unless the Minister considers that the water licence should not be granted
on a ground that applies under
Division 3
Subdivision 1
;
(b) make adjustments to a water licence already held by a person whose
irrigation right is being transformed into a water licence under section 33 or
34 of the
Renmark
Irrigation Trust Act 2009
on account of that transformation.
(3) This section does not limit the operation or effect of any other
provision of this Act.
(4) A fee (if any) prescribed by the regulations is payable in respect of
any action taken by the Minister under this section (and the Minister may
decline to take the action unless or until the fee is paid).
(5) In this section—
RIT means the Renmark Irrigation Trust.
176—Effect
of water use on ecosystems
When making a decision under this Part that is based wholly or partly on an
assessment of the quantity of water available or the period or periods during
which water is available from a water resource, the Minister or other person or
body making that decision must take into account the needs of the ecosystems
that depend on that resource for water.
177—Activities
relating to Murray-Darling Basin
When making a decision under this Part that relates to—
(a) an activity to be carried out in an area within the Murray-Darling
Basin; or
(b) the management of water within a part of the Murray-Darling Basin;
or
(c) the taking, allocation or use of water from a water resource within a
part of the Murray-Darling Basin; or
(d) any other matter of a prescribed kind,
the Minister or other person or body making that decision must take into
account the terms or requirements of the Murray-Darling Basin Agreement and any
resolution of the Ministerial Council under that agreement (insofar as they may
be relevant).
178—Consultation
with Minister responsible for River Murray Act
2003
(1) The Minister must,
before acting under this Part in any case or circumstance prescribed by the
regulations for the purposes of this section—
(a) consult with the Minister to whom the administration of the
River
Murray Act 2003
is committed; and
(b) comply with that Minister's directions (if any) in relation to the
matter.
(2) Without limiting
paragraph (a)
, a direction under
subsection (1)
—
(a) may have the effect
of prohibiting the taking of a specified step, the granting of an application,
or the issuing, variation or transfer of a specified authority or approval;
and
(b) may require the
imposition or variation of a specified condition or conditions with respect to
the taking of a specified step, the granting of an application, or the issuing,
variation or transfer of a specified authority or approval; and
(c) without limiting
paragraph (a)
or
(b)
, may make provision in relation to or affect—
(i) an allocation of water, or any other entitlement to water under this
Part, or the transfer of such an allocation or other entitlement; or
(ii) the taking or use of water (including so as to impose a prohibition
or condition); and
(d) may otherwise have effect in relation to the exercise of any statutory
function or power conferred on the Minister to whom the administration of this
Act is committed under another provision of this Act.
179—Representations
by SA Water
(1) If water is
discharged into a watercourse or lake in the region of a regional landscape
board by SA Water, SA Water may make representations to the board in respect of
the performance or exercise by the board of its functions or powers in relation
to that water.
(2) A regional landscape board must have regard to representations made
under
subsection (1)
.
180—Water
recovery and other rights subject to board's functions and
powers
The following rights are subject to the performance of functions and duties
and the exercise of powers by a regional landscape board or a designated entity
under this or any other Act:
(a) the right of a person to take water from a watercourse or lake or to
take surface water or underground water whether pursuant to a water management
authorisation or not;
(b) the right of SA Water to erect dams or reservoirs across and in the
bed of the River Torrens;
(c) the right of SA Water—
(i) to erect buildings upon any watercourse; or
(ii) to divert, impound or take water from a watercourse or lake;
or
(iii) to alter the course of a watercourse.
181—Water
management authorisation is not personal property for the purposes of
Commonwealth Act
A water management authorisation is not personal property for the purposes
of the Personal Property Securities Act 2009 of the
Commonwealth.
182—Law
governing decisions under this Part
(1) In this section—
permit means a permit under
section 110
;
prescribed decision means a decision under this Part with
respect to—
(a) an application for a water management authorisation, a permit or a
forest water licence; or
(b) a water allocation (including a water allocation under a WETS);
or
(c) the variation of a water management authorisation or permit;
or
(d) the variation of a condition of a water management authorisation,
permit or forest water licence; or
(e) the transfer of a water management authorisation.
(2) If a prescribed decision is being made under this Part, the law to be
applied in deciding the matter, and the provisions of any water allocation plan
or water affecting activities control policy that are relevant to the
consideration or determination of the matter (including in any subsequent review
or appeal proceedings (whether brought under this Act or not), is the law in
force, and the provisions of the water allocation plan or water affecting
activities control policy as in force, at the time that the matter falls to be
decided, considered or determined (including when that time is the time of any
decision on a review or appeal).
(3) However, if the Minister does not determine an application for a water
management authorisation, permit or forest water licence (as the case may be)
within the prescribed period, the provisions of the relevant water allocation
plan or water affecting activities control policy that are relevant to the
determination of the matter will be the provisions as in force at the end of
that prescribed period.
(4) If the Minister requests an applicant for a water management
authorisation, permit or forest water licence—
(a) to provide such additional documents or information; or
(b) to carry out any form of assessment or test; or
(c) to take any other action,
as the Minister may reasonably require in order to allow the Minister to
assess the application, then any period between the date of the request and the
date of compliance is not to be included in the calculation of the prescribed
period.
(5) If the Minister
does not decide an application within the prescribed period, the applicant may,
after giving 14 days notice in writing to the Minister, apply to the ERD
Court for an order requiring the Minister to make a decision on the application
within a time fixed by the ERD Court.
(6) If the ERD Court makes an order under
subsection (5)
, the ERD Court should also order the Minister to pay the applicant's costs
of the proceedings unless the ERD Court is satisfied—
(a) that the delay is not attributable to an act or omission of the
Minister; or
(b) that the delay is attributable to a decision of the Minister not to
deal with the application within a reasonable time because—
(i) it appeared to the Minister that there has been a failure to comply
with a requirement imposed by or under this Act; or
(ii) the Minister believed, on other reasonable grounds, that it was not
appropriate to decide the matter in the particular circumstances; or
(c) that an order for costs should not be made for some other
reason.
Part 9—Control
of animals and plants
(1) The Minister
may, by notice in the Gazette—
(a) declare that a
specified provision of this Part applies to—
(i) a specified class of animals; or
(ii) a specified class of plants; and
(b) in addition, with respect to a class of animals or a class of plants
specified under
paragraph (a)
, do either or both of the following:
(i) declare that a specified area (which may be the whole or a part of the
State) is a declared area for that class of animals or plants for the purposes
of that provision;
(ii) declare that a prohibition contained in that provision operates as an
absolute prohibition in relation to that class of animals or plants and declared
area (if any).
(2) The Minister
may, by subsequent notice in the Gazette, vary or revoke a notice under
subsection (1)
.
(3) A notice under
subsection (1)
cannot be made with respect to a class of native animals.
(4)
Subsection (3)
does not apply if the notice is being made to give effect to a provision
of a landscapes affecting activities control policy, or any other policy made or
approved by the relevant regional landscape board and adopted by the Minister
for the purposes of this section.
(5) For the purposes of this Part, there will be 3 categories of animals
and plants declared under
subsection (1)
, being—
(a) Category 1; or
(b) Category 2; or
(c) Category 3.
(6) The following
provisions will apply in relation to the assignment of animals and plants
declared under
subsection (1)
to these categories:
(a) a particular
class of animals or plants may be assigned to a category by a declaration of the
Minister under
subsection (1)
, or by a separate notice published by the Minister in the Gazette under
this subsection;
(b) a particular class of animals or plants may be assigned to different
categories for different parts of the State and for the purposes of different
provisions of this Part;
(c) any class of animals or plants that is not assigned to a category in
the manner contemplated by
paragraph (a)
will be taken to be assigned to Category 1 in the particular
circumstances.
(7) The Minister may, by subsequent notice in the Gazette, vary or revoke
a notice under
subsection (6)
.
Subdivision 1—Specific
controls
184—Movement
of animals or plants
(1) Subject to this Act, a person must not bring an animal or plant of a
class to which this subsection applies, or cause or permit an animal or plant of
a class to which this subsection applies, to be brought into a declared area for
that class of animals or plants.
Maximum penalty: $12 500.
(2) Subject to this
Act, a person must not transport or move, or cause or permit to be transported
or moved, on a public road within a declared area for a class of animals or
plants to which this subsection applies—
(a) an animal or plant of that class; or
(b) any animal, plant, soil, vehicle, farming implement or other produce,
goods, material or thing carrying an animal or plant of that class.
Maximum penalty: $12 500.
Expiation fee: $600.
(3) Subject to this
Act, a person who owns land within a declared area for a class of animals or
plants to which this subsection applies must not move, or cause or permit to be
moved—
(a) an animal or plant of that class; or
(b) in the case of a class of plants any animal, plant, soil, vehicle,
farming implement or other produce, goods, material or thing carrying a plant of
that class,
from one part of the land to another part of that land that is not affected
or infested with animals or plants of that class, or to any land within the
declared area.
Maximum penalty: $12 500.
Expiation fee: $600.
(4) It is a defence to a charge of an offence against
subsection (2)
or
(3)
if the defendant proves that the circumstances alleged to constitute the
offence were not the result of a wilful or negligent act or omission on the
defendant's part.
(5) An authorised
officer may, subject to conditions as the authorised officer thinks fit, exempt
a person from compliance with a preceding subsection.
(6) An exemption should be given in writing but may be given orally in a
case of an emergency.
(7) If an exemption is given orally, the authorised officer who gave it
must confirm it in writing at the earliest opportunity (and in any event within
2 business days) by written notice given to the person who has the benefit of
the exemption.
(8) An authorised officer may, by notice in writing given to a person who
has the benefit of an exemption, vary or revoke the exemption, or a condition of
the exemption, or attach a further condition to the exemption.
(9) A person who contravenes or fails to comply with a condition of an
exemption is guilty of an offence.
Maximum penalty: $12 500.
185—Possession
of animals or plants
(1) Subject to this Act, a person must not keep, or have in the person's
possession or control, an animal of a class to which this subsection
applies.
Maximum penalty:
(a) if the offence relates to a Category 1 animal—$60 000
or imprisonment for 1 year;
(b) if the offence relates to a Category 2 animal—$25 000
or imprisonment for 6 months;
(c) if the offence relates to a Category 3
animal—$12 500.
Expiation fee:
(a) if the offence relates to a Category 2 animal—$1 000;
(b) if the offence relates to a Category 3 animal—$600.
(2) Subject to this Act, a person must not keep, or have in the person's
possession or control, an animal of a class to which this subsection applies
within a declared area for that class of animals.
Maximum penalty:
(a) if the offence relates to a Category 1 animal—$60 000
or imprisonment for 1 year;
(b) if the offence relates to a Category 2 animal—$25 000
or imprisonment for 6 months;
(c) if the offence relates to a Category 3
animal—$12 500.
Expiation fee:
(a) if the offence relates to a Category 2 animal—$1 000;
(b) if the offence relates to a Category 3 animal—$600.
(3) Subject to this
Act, a person must not have a plant of a class to which this subsection applies
in the person's possession within a declared area for that class of
plants.
Maximum penalty:
(a) if the offence relates to a Category 1 plant—$60 000 or
imprisonment for 1 year;
(b) if the offence relates to a Category 2 plant—$25 000 or
imprisonment for 6 months;
(c) if the offence relates to a Category 3
plant—$12 500.
Expiation fee: If the offence relates to a Category 3
plant—$600.
(4) For the purposes of
subsection (3)
, a person who cultivates a plant, or allows a plant to grow on land that
the person occupies, will be taken to be in possession of the plant (but this
subsection does not in any way limit the operation of that
subsection).
186—Sale
of animals or plants, or produce or goods carrying animals or
plants
(1) Subject to this Act, a person must not sell an animal or plant of a
class to which this subsection applies.
Maximum penalty:
(a) if the offence relates to a Category 1 animal or
plant—$60 000 or imprisonment for 1 year;
(b) if the offence relates to a Category 2 animal or
plant—$25 000 or imprisonment for 6 months;
(c) if the offence relates to a Category 3 animal or
plant—$12 500.
Expiation fee: If the offence relates to a Category 3 animal or
plant—$600.
(2) Subject to this
Act, a person must not sell any animal, plant, soil, vehicle, farming implement
or other produce, goods, material or thing carrying an animal or plant of a
class to which this subsection applies.
Maximum penalty:
(a) if the offence relates to a Category 1 animal or
plant—$60 000 or imprisonment for 1 year;
(b) if the offence relates to a Category 2 animal or
plant—$25 000 or imprisonment for 6 months;
(c) if the offence relates to a Category 3 animal or
plant—$12 500.
Expiation fee: If the offence relates to a Category 3 animal or
plant—$600.
(3) It is a defence to a charge of an offence against
subsection (2)
if the defendant proves that the circumstances alleged to constitute the
offence were not the result of a wilful or negligent act or omission on the
defendant's part.
(4) An authorised
officer may, subject to conditions as the authorised officer thinks fit, exempt
a person from compliance with a preceding subsection.
(5) An exemption should be given in writing but may be given orally in a
case of an emergency.
(6) If an exemption is given orally, the authorised officer who gave it
must confirm it in writing at the earliest opportunity (and in any event within
2 business days) by written notice given to the person who has the benefit of
the exemption.
(7) An authorised officer may, by notice in writing given to a person who
has the benefit of an exemption, vary or revoke the exemption, or a condition of
the exemption, or attach a further condition to the exemption.
(8) A person who contravenes or fails to comply with a condition of an
exemption is guilty of an offence.
Maximum penalty: $12 500.
187—Offence
to release animals or plants
(1) A person must not release an animal of a class to which this
subsection applies, or cause or permit an animal of that class to be
released.
Maximum penalty: $125 000 or imprisonment for 2 years.
(2) A person must
not release an animal of a class to which this subsection applies, or cause or
permit an animal of that class to be released, in a declared area for that class
of animals.
Maximum penalty: $125 000 or imprisonment for 2 years.
(3) A person must
not release a plant of a class to which this subsection applies, or cause or
permit a plant of that class to be released, in a declared area for that class
of plants.
Maximum penalty: $125 000 or imprisonment for 2 years.
(4) Subject to
subsection (5)
, it is a defence to a charge of an offence against this section if the
defendant proves that the circumstances alleged to constitute the offence were
not the result of a wilful or negligent act or omission on the defendant's
part.
(5) The defence
prescribed by
subsection (4)
does not apply if an authorised officer furnished to the defendant a
notice in a form approved by the Minister—
(a) in a case relating to an animal or class of animals—
(i) requiring the defendant to keep the particular animal, or any animal
of the relevant class, in captivity, or to take any other action relating to
securing, controlling or managing the animal, or animals of that class;
and
(ii) warning the defendant that if the animal, or an animal of that class
(as the case may be) were to be released into a declared area the defence would
not apply;
(b) in a case relating to a plant or class of plants—
(i) requiring the defendant to keep the plant, or any plant of the
relevant class, in a particular way, or to take any other action relating to
securing, controlling or managing the plant, or plants of that class;
and
(ii) warning the defendant that if the plant, or a plant of that class,
(as the case may be) were to be released into a declared area then the defence
would not apply.
(6) Any reasonable
costs or expenses incurred by the Minister, or a regional landscape board, in
the capture or destruction, or attempted capture or destruction, of an animal
released in contravention of this section may be recovered as a debt from the
owner of the animal or from the person who released it or caused or permitted it
to be released.
(7) Any reasonable
costs or expenses incurred by the Minister, or a regional landscape board, in
collecting, dealing with or destroying a plant released in contravention of this
section may be recovered as a debt from the person who was in possession of the
plant or from the person who released it or caused or permitted it to be
released.
(8) An apparently genuine document purporting to be a certificate of the
Minister or a regional landscape board (as the case may be) stating the amount
of any costs or expenses referred to in
subsection (6)
or
(7)
will, in the absence of proof to the contrary, be accepted as proof of the
amount of those costs or expenses in any legal proceedings for their
recovery.
(9) An authorised
officer may, subject to conditions as the authorised officer thinks fit, exempt
a person from compliance with a preceding subsection.
(10) An authorised officer may, by notice in writing given to a person who
has the benefit of an exemption under
subsection (9)
, vary or revoke the exemption, or a condition of the exemption, or attach
a further condition to the exemption.
(11) A person who contravenes or fails to comply with a condition of an
exemption is guilty of an offence.
Maximum penalty: $12 500.
(12) In this section—
release—
(a) in relation to an animal, means to set the animal at liberty or to
release the animal from captivity or to allow (in any way) the animal to go at
large;
(b) in relation to a plant, means to release the plant into the open
environment (including by sowing or planting any plant or plant material or by
otherwise distributing seeds, spores, cuttings, divisions or other plant
propagating material), whether or not it is released with provision for limiting
the dissemination or persistence of the plant, or any related plant material, in
the environment.
188—Notification
of presence of animals or plants
(1) If an owner of land within a declared area for a class of animals or
plants to which this section applies becomes aware of the presence of an animal
or plant of that class on that land, the owner must, within the prescribed
period, notify the regional landscape board for the area in which the land is
situated of the species of animal or plant and the locality in which it was seen
or is to be found.
Maximum penalty: $12 500.
Expiation fee: $600.
(2) If a regional
landscape board becomes aware (other than by notification under
subsection (3)
) of the presence of an animal or plant of a class to which this section
applies on land situated within both a declared area for that class of animals
or plants and its region, the board must, within 48 hours, notify the Chief
Executive of the species of animal or plant and the locality in which it was
seen or is to be found.
(3) If the Chief
Executive becomes aware (other than by notification under
subsection (2)
) of the presence of an animal or plant of a class to which this section
applies on land situated within a declared area for that class of animal or
plant, the Chief Executive must, within 48 hours, notify the regional landscape
board for the area in which the land is situated of the species of the animal or
plant and the locality in which it was seen or is to be found.
(4) In this section—
prescribed period means—
(a) in relation to a Category 1 animal or plant—24 hours;
(b) in relation to a Category 2 animal or plant—3 days;
(c) in relation to a Category 3 animal or plant—7 days.
189—Requirement
to confine certain animals or plants
(1) A person who has in the person's possession or control an animal of a
class to which this subsection applies must comply with any instructions of an
authorised officer with respect to the keeping or management of any animal of
that class.
Maximum penalty:
(a) if the offence relates to a Category 1 animal—$60 000
or imprisonment for 1 year;
(b) if the offence relates to a Category 2 animal—$25 000
or imprisonment for 6 months;
(c) if the offence relates to a Category 3
animal—$12 500.
Expiation fee: If the offence relates to a Category 3
animal—$600.
(2) An owner of
land within a declared area for a class of animals to which this subsection
applies must comply with any instructions of an authorised officer with respect
to keeping any animal of that class on that land in captivity.
Maximum penalty:
(a) if the offence relates to a Category 1 animal—$60 000 or
imprisonment for 1 year;
(b) if the offence relates to a Category 2 animal—$25 000 or
imprisonment for 6 months;
(c) if the offence relates to a Category 3
animal—$12 500.
Expiation fee: If the offence relates to a Category 3
animal—$600.
(3) An owner of
land within a declared area for a class of plants to which this subsection
applies must comply with any instructions of an authorised officer with respect
to keeping any plant of that class within the boundaries of that land.
Maximum penalty:
(a) if the offence relates to a Category 1 plant—$60 000
or imprisonment for 1 year;
(b) if the offence relates to a Category 2 plant—$25 000
or imprisonment for 6 months;
(c) if the offence relates to a Category 3
plant—$12 500.
Expiation fee: If the offence relates to a Category 3
plant—$600.
(4) An instruction under this section must be given by notice in a form
approved by the Minister.
190—Owner
of land to take action to destroy or control animals or
plants
(1) Subject to this
section, an owner of land within a declared area for a class of animals or
plants to which this subsection applies must destroy all animals or plants of
that class on that land.
(2) Subject to this
section, an owner of land within a declared area for a class of animals or
plants to which this subsection applies must control and keep controlled all
animals or plants of that class on that land.
(3) An owner of
land within a declared area for a class of animals or plants to which this
subsection applies must—
(a) take any measures prescribed by the regulations or specified by a
relevant authority in the prescribed manner for the control of all animals or
plants of that class that are, or may be, on that land;
(b) take any measures prescribed by the regulations or specified by a
relevant authority in the prescribed manner requiring that the land, or anything
present on the land, be subjected to specified treatment.
(4) A relevant
authority may, subject to such conditions as the relevant authority thinks fit,
exempt a person from compliance with a preceding subsection.
(5) A relevant authority may, by notice in writing given to a person who
has the benefit of an exemption under
subsection (4)
, vary or revoke the exemption, or a condition of the exemption, or attach
a further condition to the exemption.
(6) A person who contravenes or fails to comply with a condition of an
exemption is guilty of an offence.
Maximum penalty: $12 500.
(7) A person who
breaches a requirement under
subsection (1)
,
(2)
or
(3)
is not, on account of that breach alone, liable to any civil action, but
is subject to the operation of
section 191
and
Part 10
.
(8) All regional landscape boards must carry out proper measures for the
destruction of all animals or plants of a class to which
subsection (1)
applies and for the control of all animals or plants of a class to which
subsection (2)
applies on road reserves situated within both a declared area for that
class of animals or plants and the region of the board.
(9) In this section—
relevant authority means—
(a) the regional landscape board for the relevant area; or
(b) the Chief Executive; or
(c) an authorised officer.
(1) If a relevant
authority considers that an owner of land has been, is, or is likely to be, in
breach of
section 190(1)
,
(2)
or
(3)
, the relevant authority may, by notice in a form approved by the Minister,
issue an order (an action order) to the owner of the land under
this section.
(2) An action order—
(a) must be in the form of a written notice served on the person to whom
the order is issued; and
(b) must specify the person to whom it is issued (whether by name or a
description sufficient to identify the person); and
(c) must specify the land or area to which the order relates;
and
(d) must state the grounds on which the order is issued; and
(e) must state the species of animals or plants to which the order
applies; and
(f) must specify the action required to be taken to destroy or control the
relevant animals or plants, or to otherwise comply with any requirement under
section 190
; and
(g) must specify a period (which must be at least 14 days) within which
the required action must be taken; and
(h) may specify any other requirement considered reasonable by the
relevant authority; and
(i) must state that the person may, within 14 days, appeal to the ERD
Court against the order or any subsequent variation to the order.
(3) A relevant authority may, by written notice served on a person to whom
an action order has been issued, vary or revoke the order.
(4) A person to whom an
action order is issued must comply with the order.
Maximum penalty: $25 000.
(5) If a person fails
to comply with an action order, a relevant authority may take any action
required by the order.
(6) Action taken by a
relevant authority under
subsection (5)
may be taken on the relevant authority's behalf by an authorised officer,
a member of the Department, or another person authorised by the relevant
authority for the purpose.
(7) A person taking
action under
subsection (5)
may, after giving reasonable notice, enter the relevant land at any
reasonable time (using any force that may be reasonably necessary in the
circumstances) and carry out such measures as appear to be appropriate in the
circumstances.
(8) A person must
not hinder or obstruct a person acting under this section.
Maximum penalty: $10 000.
(9) The reasonable
costs and expenses incurred by a relevant authority under this section
(including under
subsection (5)
) may be recovered as a debt from the person to whom the order was
issued.
(10) If an amount is recoverable by a relevant authority under
subsection (9)
, the relevant authority may, by notice in writing to the relevant person,
fix a period (which must be at least 28 days) within which the amount must be
paid and if the amount is not paid within that period, the person is also liable
to pay interest charged at the prescribed rate per annum on the amount
unpaid.
(11) In this section—
relevant authority means—
(a) the regional landscape board for the relevant area; or
(b) the Chief Executive; or
(c) an authorised officer.
192—Boards
may recover certain costs from owners of land adjoining road
reserves
(1) If a regional
landscape board carries out on road reserve measures for the destruction or
control of animals or plants of a class to which this section applies, the board
may, within 3 months, give notice in writing to each owner of land adjoining the
road reserve requiring the owner to pay to the board an amount specified in the
notice within a period specified in the notice, being not less than 28 days from
the date of the notice.
(2) Subject to
subsection (3)
, the amount specified in a notice under
subsection (1)
directed to an owner of land must be the amount determined by the regional
landscape board to be the costs and expenses incurred by the board in carrying
out the measures referred to in
subsection (1)
on the section of road reserve adjoining the owner's land up to the middle
of the road reserve.
(3) Despite
subsection (2)
, a regional landscape board may, from time to time, fix a standard charge
and determine the circumstances in which the standard charge is to apply (being
a standard charge not exceeding an amount determined on the basis for the time
being fixed by the Minister), and, if those circumstances apply in relation to
an owner of land, the amount specified in a notice under
subsection (1)
directed to that owner will be the standard charge.
(4) If an amount is not paid by an owner of land within the period within
which it is required to be paid under this section, the owner is liable to pay
interest charged at the prescribed rate per annum on the amount
unpaid.
(5) An amount payable to a regional landscape board by an owner of land
under this section (including any interest charge) may be recovered by the board
as a debt.
(6) A regional landscape board may, if it is satisfied that just and
proper grounds exists for it to do so, remit the whole, or part, of any amount
payable by a person under this section.
193—Destruction
or control of animals outside the dog fence by poison and
traps
(1) An owner of land bounded by and inside the dog fence may, for the
purpose of the destruction or control of animals required to be destroyed or
controlled in pursuance of this Division, lay poison or set traps on adjoining
land immediately outside the dog fence in accordance with the terms of approved
proposals and may gain such access to the adjoining land as is necessary for
that purpose.
(2) In this section—
approved proposals means—
(a) proposals contained in a notice given under
subsection (3)
to which no notice of objection has been given under
subsection (4)
; or
(b) proposals contained in a notice given under
subsection (3)
as confirmed or varied by the Chief Executive under
subsection (6)
.
(3) If an owner of
land proposes to lay poison or set traps pursuant to this section, the owner
must first give notice, in a form approved by the Minister, of the proposal to
the owner of the adjoining land.
Maximum penalty: $1 750.
Expiation fee: $225.
(4) The owner of
the adjoining land may, if not in agreement with any proposals contained in a
notice given under
subsection (3)
, within 14 days of the receipt of that notice, give notice of objection to
the other owner.
(5) If a notice of
objection is given under
subsection (4)
, an application for review of the proposals may be made to the Chief
Executive within 14 days of the giving of that notice.
(6) The Chief
Executive may, on application made under
subsection (5)
, confirm, vary or set aside the proposals.
194—Ability
of Minister to control or quarantine any animal or plant
(1) For the
purposes of providing for the control of, or preventing the spread of, any
animal or plant to which a provision of this Division applies, or the spread of
any disease that may be carried by such an animal or plant, the Minister may, by
notice in the Gazette, declare a portion of the State specified in the notice to
be a quarantine area under this section.
(2) A notice under
subsection (1)
may—
(a) prohibit or restrict the movement from or within the quarantine area
of—
(i) any animal or plant of a specified kind;
(ii) any soil, vehicle, farm implement or other produce, goods, material
or thing of a specified kind,
that might, in the opinion of the Minister, spread the relevant animals or
plants or any disease;
(b) require the owner of any land or the occupier of any premises within
the quarantine area to take measures (including the destruction of animals or
plants), specified in the notice, that are, in the opinion of the Minister,
necessary to control, or to prevent the spread of, the relevant animals or
plants, or the spread of any disease;
(c) require the owner of any land or the occupier of any premises within
specified parts of the quarantine area to take more stringent measures
(including the destruction of animals or plants), specified in the notice, than
owners or occupiers of other land or premises within the quarantine
area;
(d) prohibit the planting or propagation of plants, or plants of a
specified kind, within the quarantine area during a period specified in the
notice;
(e) prohibit absolutely or subject to exceptions or conditions specified
in the notice, the importing into the quarantine area of any animal, plant,
soil, produce, goods, material or other thing of a specified kind;
(f) provide that a prohibition or requirement under the notice will not
apply in specified circumstances;
(g) provide for any other matter prescribed by the regulations.
(3) A notice under
subsection (1)
will have effect from a date specified in the notice.
(4) The Minister may, by subsequent notice in the Gazette, vary or revoke
a notice under
subsection (1)
.
(5) The Minister
may, by notice in writing, confer exemptions from the operation of a notice, or
specified parts of a notice, under this section.
(6) An exemption under
subsection (5)
may be granted on such conditions as the Minister thinks fit.
(7) The Minister may, by subsequent notice in writing—
(a) vary or revoke an exemption; or
(b) vary or revoke a condition of an exemption, or impose a new
condition.
(8) A person who contravenes or fails to comply with—
(a) a notice under this section; or
(b) a condition of an exemption under this section,
is guilty of an offence.
Maximum penalty: $125 000 or imprisonment for 2 years.
Expiation fee: $700.
(1) The relevant authority may issue a permit to a person—
(a) authorising the movement of a specified animal or animals of a
specified class, or of a specified plant or plants of a specified class;
or
(b) authorising the keeping or possession of an animal or animals of a
specified class, or of a specified plant or plants of a specified class;
or
(c) authorising the sale of a specified animal or animals of a specified
class, or of a plant or plants of a specified class.
(2) Subject to this section, a permit authorises an act, activity or
circumstance that would otherwise not be permitted under
Subdivision 1
.
(3) A permit under this section may be issued by the relevant authority on
such conditions as the relevant authority thinks fit.
(4) A permit may not be issued under this section if a provision of
Subdivision 1
operates as an absolute prohibition of the conduct for which the permit is
sought by virtue of a declaration under
Division 1
.
(5) The relevant authority must, in considering whether to issue a permit
under this section and, if so, the conditions on which the permit may be issued,
take into account any relevant provision of a landscapes affecting activities
control policy.
(6) The relevant authority must, in issuing a permit under this section
that applies to a situation or circumstance within the Murray-Darling Basin,
take into account, and seek to further, the objects of the
River
Murray Act 2003
and the Objectives for a Healthy River Murray under that Act
(insofar as they may be relevant).
(7) If an application for a permit under this section applies to a
situation or circumstance within a River Murray Protection Area and is within a
class of applications prescribed by the regulations for the purposes of this
provision (which class may be prescribed so as to consist of applications for
all such permits), the relevant authority must, before making its decision on
the application—
(a) consult the Minister to whom the administration of the
River
Murray Act 2003
is committed; and
(b) comply with the Minister's directions (if any) in relation to the
applications (including a direction that the application not be granted, or that
if it is to be granted, then the permit be subject to conditions specified by
the Minister).
(8) A person
applying for a permit under this section must—
(a) pay a fee (if any) prescribed by the regulations with respect to the
application; and
(b) if required by
the relevant authority before the issuing of the permit, pay an amount, not
exceeding an amount prescribed by the regulations, as security for compliance
with any condition of the permit.
(9) An amount paid under
subsection (8)(b)
will be paid into the Landscape Administration Fund and will, on the
expiration or revocation of the permit, be repaid to the person by whom it was
paid unless the person failed to comply with a condition of the permit, in which
case, it is forfeited to the State and will be retained in the Landscape
Administration Fund (to be applied for the purposes of that fund).
(10) The relevant authority may, by notice in writing to the holder of a
permit—
(a) vary or revoke the permit; or
(b) vary or revoke a condition of the permit, or impose a new
condition.
(11) A person who contravenes or fails to comply with a provision or
condition of a permit under this section is guilty of an offence.
Maximum penalty: $60 000.
Expiation fee: $800.
(12) In this section—
relevant authority means—
(a) in relation to a Category 1 or Category 2 animal or plant—the
Chief Executive; or
(b) in relation to a Category 3 animal or plant—the regional
landscape board for the relevant area.
If a court is exercising jurisdiction conferred on it under the
Fences
Act 1975
, an apparently genuine document purporting to be a certificate of the
Minister stating—
(a) that—
(i) a fence conforms, or a proposed fence would conform, with the
prescribed requirements for an animal-proof fence; or
(ii) fencing work has made, or proposed fencing work would make, a fence
animal-proof; and
(b) that such a fence or such fencing work is necessary or desirable for
the control of animals in the locality that are liable to be controlled under
this Part,
is admissible as proof that the nature of such fence or fencing work is
adequate and appropriate in the circumstances.
197—Offence
to damage certain fences
(1) A person must
not interfere with an animal-proof fence except with the permission of the owner
of the land on which the fence is situated.
Maximum penalty: $5 000.
Expiation fee: $250.
(2) A court may, on the conviction of a person of an offence against
subsection (1)
, order the person to pay compensation to the owner of the land on which
the fence is situated.
(3) In this section—
animal-proof fence includes any gate or ramp pertaining to
the fence.
198—Offence
to leave gates open
A person must not leave open a gate in an animal-proof fence
except—
(a) for so long as is reasonably necessary for passage through the
opening; or
(b) with the permission of the owner of land on which the fence is
situated.
Maximum penalty: $1 250.
Expiation fee: $160.
199—Protection
of certain vegetation and habitats
(1) A person must, in taking measures for the control of animals or plants
under this Part, take all reasonable steps to ensure—
(a) that native vegetation is not cleared except in accordance with
guidelines prepared by the Native Vegetation Council under section 25 of the
Native
Vegetation Act 1991
; and
(b) that damage to or destruction of other vegetation is kept to a minimum
(unless the vegetation is subject to destruction or control under this
Part).
Maximum penalty: $25 000.
Expiation fee: $750.
(2) A person must, in taking measures for the control of animals or plants
under this Part—
(a) comply with any requirement—
(i) set out in a landscapes affecting activities control policy;
or
(ii) prescribed by the regulations,
with respect to the identification or reporting of any habitat or native
animal of a specified class; and
(b) comply with any requirement—
(i) set out in a landscapes affecting activities control policy;
or
(ii) specified by a relevant authority in the manner prescribed by the
regulations,
with respect to the protection, preservation or relocation of any habitat
or native animal of a specified class.
Maximum penalty: $25 000.
Expiation fee: $750.
(3) In this section—
relevant authority means—
(a) the regional landscape board for the relevant area; or
(b) the Chief Executive; or
(c) an authorised officer.
Division 1—Authorised
officers
(1) The Minister may appoint a person to be an authorised
officer.
(2) An appointment
under this section may be made subject to such conditions or limitations as the
Minister thinks fit.
(3) Without limiting
subsection (2)
, the powers conferred on an authorised officer under this or any other Act
may be exercised in the whole of the State or such part or parts of the State as
may be specified in the instrument of appointment.
(4) The Minister may only appoint an officer of a council as an authorised
officer under this section with the agreement of the council.
(5) The Minister may vary or revoke an appointment at any time.
(1) An authorised officer must be issued with an identity
card—
(a) containing the person's name and a photograph of the person;
and
(b) stating that the person is an authorised officer for the purposes of
this Act.
(2) The identity card must be issued as soon as is reasonably practicable
after the appointment is made (but an authorised officer is not prevented from
exercising powers under this Act just because an identity card is yet to be
issued).
(3) An authorised
officer must, on request, produce evidence of the officer's appointment by
showing a copy of the officer's notice of appointment, or by showing the
officer's identity card for inspection, before exercising the powers of an
authorised officer under this Act in relation to any person.
(4) For the purposes of
subsection (3)
, an authorised officer who produces a copy of the officer's notice of
appointment is not required to produce an identity card, and vice
versa.
202—Powers
of authorised officers
(1) An authorised
officer may, as may reasonably be required in connection with the
administration, operation or enforcement of this Act, at any reasonable
time—
(a) enter any place;
(b) inspect any place, including the stratum lying below the surface of
any land, and water on or under any land, and inspect any works, plant or
equipment;
(c) enter and inspect any vehicle and for that purpose require a vehicle
to stop, or to be presented for inspection at a place and time specified by the
authorised officer, and board any vessel or craft;
(d) use reasonable force to break into or open any part of, or anything in
or on, any place or vehicle, but only if the authorised officer—
(i) is acting under the authority of a warrant issued by a magistrate;
or
(ii) is acting with the permission of the owner of the relevant land, or
the person apparently in charge of the vehicle (as the case requires);
or
(iii) believes on reasonable grounds that immediate action is required
because a Category 1 or Category 2 animal may be present in the place
or vehicle;
(e) give directions with respect to the stopping, securing or movement of
a vehicle, plant, equipment or other thing;
(f) require a person apparently in charge of a vessel or craft to
facilitate any boarding;
(g) bring any equipment or other thing on to any land, and use that
equipment or thing on the land;
(h) take measurements, including measurements of the flow of any water on
or under any land or relating to any change in any aspect of a natural
resource;
(i) place any
markers, pegs or other items or equipment in order to assist in testing or
monitoring;
(j) take samples of any substance or thing from any place (including under
any land) or vehicle;
(k) with the
authority of a warrant issued by a magistrate, require any person to produce
specified documents or documents of a specified kind, including a written record
that reproduces in an understandable form information stored by computer,
microfilm or other process;
(l) with the
authority of a warrant issued by a magistrate, examine, copy or take extracts
from a document or information so produced or require a person to provide a copy
of any such document or information;
(m) take photographs, films, audio, video or other recordings;
(n) examine or test any vehicle, plant, equipment, fitting or other thing,
or cause or require it to be so examined or tested, or require its production
for such examination or testing;
(o) seize and
retain anything that the authorised officer reasonably suspects has been used
in, or may constitute evidence of, a contravention of this Act, or require a
person to surrender, either immediately or within a specified period and at a
specified place, anything held or maintained in contravention of this
Act;
(p) without
limiting the operation of
paragraph (o)
, if the authorised officer finds any animals or plants that are being held
or maintained contrary to any requirement or provision of this Act, that are
liable to be destroyed or controlled under this Act, or that are prohibited from
being in the State under any other Act or law, seize and remove the animals or
plants or take measures for their destruction or control;
(q) require a person who the authorised officer reasonably suspects has
committed, is committing or is about to commit, a contravention of this Act to
state the person's full name and usual place of residence and to produce
evidence of the person's identity;
(r) require a person who the authorised officer reasonably suspects has
knowledge of matters in respect of which information is reasonably required in
connection with the administration, operation or enforcement of this Act to
answer questions in relation to those matters;
(s) give directions reasonably required in connection with the exercise of
a power conferred by any of the above paragraphs or otherwise in connection with
the administration, operation or enforcement of this Act;
(t) require a person holding or required to hold a permit, licence or
other authority under this Act, or acting in reliance of a permit, licence or
other authority under this Act, to produce immediately the permit, licence or
authority for inspection.
(2) Without
limiting
subsection (1)
, an authorised officer may exercise a power under this section for the
purpose of determining whether a management agreement is being, or has been,
complied with.
(3) An authorised officer must not exercise a power conferred by
subsection (1)
or
(2)
in respect of residential premises unless the authorised officer is acting
—
(a) on the authority of a warrant issued by a magistrate; or
(b) in a case where the authorised officer believes, on reasonable
grounds, that a Category 1 or Category 2 animal may be present on the
premises.
(4) An authorised officer in exercising powers under this section may be
accompanied by such assistants as are reasonably required in the
circumstances.
(5) An authorised
officer may only use force to enter any place or vehicle—
(a) on the authority of a warrant issued by a magistrate; or
(b) if the authorised officer believes, on reasonable grounds, that a
Category 1 or Category 2 animal may be present in the place or
vehicle.
(6) A magistrate must not issue a warrant under
subsection (1)(k)
or
(l)
unless satisfied that there are reasonable grounds to believe that
circumstances require the relevant action to be taken.
(7) A magistrate must not issue a warrant under
subsection (5)
unless satisfied that there are reasonable grounds to
believe—
(a) that a contravention of this Act has been, is being, or is about to
be, committed in or on a place or vehicle; or
(b) that something may be found in or on a place or vehicle that has been
used in, or constitutes evidence of, a contravention of this Act; or
(c) that other circumstances require such action to be taken.
(8) An application for the issue of a warrant under this
section—
(a) may be made either personally or by telephone; and
(b) must be made in accordance with any procedures prescribed by the
regulations.
(9) If an authorised officer digs up any land under this section, the
authorised officer must, after taking such steps as the authorised officer
thinks fit in the exercise of powers under this section, insofar as is
reasonably practicable, take steps to ensure that the land is restored to such
state as is reasonable in the circumstances.
(10) If an authorised officer causes any damage by digging up any land
under this section, the Crown is liable to pay reasonable compensation to any
person who has suffered loss on account of that damage.
(11) If any animal
or plant is surrendered under
subsection (1)(o)
or seized or removed under
subsection (1)(p)
, the animal or plant may be destroyed or disposed of in such manner as the
Chief Executive approves if the Chief Executive believes on reasonable grounds
that such action should be taken.
(12) An authorised
officer may require an occupier of any land or a person apparently in charge of
any vehicle, plant, equipment or other thing to give to the authorised officer
or a person assisting the authorised officer such assistance as is reasonably
required by the authorised officer for the effective exercise of powers
conferred by this Act.
(13) If a person gives assistance to an authorised officer as required
under
subsection (12)
, the person must, if the person so requires, be reimbursed in accordance
with the regulations for any reasonable costs and expenses incurred in giving
the assistance.
(14) An authorised officer must, in taking action under this section, have
regard to any request made by indigenous peoples that the authorised officer (or
authorised officers generally) not enter a specified area.
(15) If—
(a) an authorised officer seizes or takes possession of an animal under
this section; and
(b) a permit authorising the keeping of the animal is subsequently issued
to a person,
the reasonable costs and expenses in keeping the animal pending its return
may be recovered by the Chief Executive from the person to whom the permit has
been issued (and, if the Chief Executive so directs, the animal may be retained
by an authorised officer until those costs and expenses are paid).
(16) An authorised officer may, if the authorised officer thinks fit,
determine not to seize something that the authorised officer suspects has been
used in, or may constitute evidence of, a contravention of this Act pending the
outcome of any proceedings or other process under this Act (and a decision not
to exercise a power of seizure does not prevent the institution of proceedings
under this Act).
(17) In this section—
Category 1 or Category 2 animal means an animal assigned to
such a category under
Part 9
.
203—Provisions
relating to seizure
(1) If a thing has
been seized under
section 202(1)(o)
or
(p)
the following provisions apply:
(a) the thing must
be held pending proceedings for an offence against this Act related to the thing
seized, unless the Chief Executive, on application, authorises its release to
the person from whom it was seized, or to any person who had legal title to it
at the time of its seizure, subject to such conditions as the Chief Executive
thinks fit (including conditions as to the giving of security for satisfaction
of an order under
paragraph (b)(ii)
);
(b) if proceedings
for an offence against this Act relating to the thing are instituted within the
prescribed period after its seizure and the defendant is convicted or found
guilty of the offence, the court may—
(i) order that it be forfeited to the Crown; or
(ii) where it has
been released pursuant to
paragraph (a)
—order that it be forfeited to the Crown or that the person to whom
it was released or the defendant pay to the Crown an amount equal to its market
value at the time of its seizure, as the court thinks fit;
(c) if—
(i) proceedings are not instituted for an offence against this Act
relating to the thing within the prescribed period after its seizure;
or
(ii) proceedings have been so instituted and—
(A) the defendant is found not guilty of the offence; or
(B) the defendant is convicted or found guilty of the offence but no order
for forfeiture is made under
paragraph (b)
,
then the person from whom the thing was seized, or any person with legal
title to it, is entitled to recover from the Crown (if necessary, by action in a
court of competent jurisdiction) the thing itself, or if it has been damaged or
destroyed, compensation of an amount equal to its market value at the time of
its seizure, unless possession of the thing is (or would be) contrary to another
provision of this Act;
(d) if—
(i) possession of the thing by the person from whom the thing was seized
is (or would be) contrary to another provision of this Act; or
(ii) a thing is not liable for forfeiture under a preceding paragraph and
the Chief Executive has, after taking reasonable steps in the circumstances,
been unable to return the thing to the person from whom it was
received,
the Chief Executive may deal with or dispose of the thing in such manner as
the Chief Executive thinks fit.
(2)
Subsection (1)
does not limit the operation of
section 202(11)
.
(3) In
subsection (1)
—
the prescribed period means 12 months or such longer period
as the ERD Court may, on application by the Minister, allow.
204—Hindering
etc persons engaged in the administration of this Act
(1) A person who—
(a) without
reasonable excuse hinders or obstructs an authorised officer or other person
engaged in the administration or enforcement of this Act; or
(b) fails to answer a question put by an authorised officer to the best of
the person's knowledge, information or belief; or
(c) produces a document or record that the person knows is false or
misleading in a material particular; or
(d) fails without reasonable excuse to comply with a requirement or
direction of an authorised officer under this Act; or
(e) uses abusive,
threatening or insulting language to an authorised officer, or a person
assisting an authorised officer; or
(f) falsely represents, by words or conduct, that the person is an
authorised officer,
is guilty of an offence.
Maximum penalty:
(a) in the case of an offence against
paragraph (a)
or
(e)
—$5 000;
(b) in any other case—$10 000.
(2) A person (other than an authorised officer) who, without the
permission of the Chief Executive, removes, destroys or interferes with any
marker, peg or other item or equipment placed under
section 202(1)
by an authorised officer is guilty of an offence.
Maximum penalty: $5 000.
Subdivision 1—Orders
issued by landscape boards
(1) A regional landscape board or an authorised officer may issue a
protection order under this Subdivision for the purpose of securing compliance
with—
(a) the requirements of
section 8
; or
(b) a requirement under
section 108
; or
(c) the requirements of
Part 8
Division 6
; or
(d) a requirement under
section 190
; or
(e) a management agreement; or
(f) any other requirement imposed by or under this Act, or the repealed
Act, and prescribed by the regulations for the purposes of this
section.
(a) must be in the form of a written notice served on the person to whom
the notice is issued; and
(b) must specify the person to whom it is issued (whether by name or a
description sufficient to identify the person); and
(c) must state the grounds on which it is made with reasonable
particularity; and
(d) may impose any
requirement reasonably required for the purpose for which the order is issued
including one or more of the following:
(i) a requirement that the person discontinue, or not commence, a
specified activity indefinitely or for a specified period or until further
notice from a regional landscape board or an authorised officer;
(ii) a requirement that the person not carry on a specified activity
except at specified times or subject to specified conditions;
(iii) a requirement that the person take specified action in a specified
way, and within a specified period or at specified times, or in specified
circumstances;
(iv) a requirement that the person enter into a bond in such sum and
subject to such terms and conditions specified in the order, or enter into some
other arrangement specified in the order (which may include payment of a sum of
money into an approved account), to ensure that money is available to address
the costs of any damage, or threatened damage, to specified natural
resources;
(v) a requirement that the person take action to prevent or minimise any
damage to specified natural resources, or to control any specified
activity;
(vi) a requirement that the person comply with any specified code or
standard prepared or published by a body or authority referred to in the
notice;
(vii) a requirement that the person undertake specified tests or
monitoring;
(viii) a requirement that the person furnish to the Minister specified
results or reports;
(ix) a requirement that the person appoint or engage a person with
specified qualifications to prepare a plan or report or to undertake tests or
monitoring required by the order; and
(e) must state that the person may, within 21 days, appeal to the ERD
Court against the order or any subsequent variation of the order.
(3) An authorised officer may, if of the opinion that urgent action is
required for the protection of a particular natural resource, issue an emergency
protection order imposing requirements of a kind referred to in
subsection (2)(d)
as reasonably required for the protection of the natural
resource.
(4) An emergency protection order may be issued orally but, in that event,
the person to whom the order is issued must be advised forthwith of the person's
right to appeal to the ERD Court against the order.
(5) If an emergency protection order is issued orally, the authorised
officer who issued it must confirm it in writing at the earliest opportunity
(and in any event within 2 business days) by written notice given to the
person to whom it applies.
(6) A regional landscape board or an authorised officer may, if of the
opinion that it is reasonably necessary to do so in the circumstances, include
in an emergency or other protection order a requirement for an act or omission
that might otherwise constitute a contravention of this Act and, in that event,
a person incurs no liability to a penalty under this Act for compliance with the
requirement.
(7) A regional landscape board or an authorised officer may, by written
notice served on a person to whom a protection order has been issued, vary or
revoke the order.
(8) A person to whom a protection order is issued must comply with the
order.
Maximum penalty:
(a) if the order was issued in relation to a domestic activity for the
purpose of securing compliance with
section 8
—$ 2 500;
(b) in any other case—$70 000.
Expiation fee:
(a) if the order was issued in relation to a domestic activity for the
purpose of securing compliance with
section 8
in relation to a domestic activity—$250;
(b) in any other case—$750.
(9) A person must not hinder or obstruct a person complying with a
protection order.
Maximum penalty: $10 000.
(10) A person is not obliged to provide information in response to a
requirement imposed by a protection order if to do so might incriminate the
person or make the person liable to a penalty (including through the taking of
further action under this Act).
206—Action
on non-compliance with a protection order
(1) If the
requirements of a protection order are not complied with, a relevant authority
may take any action required by the order.
(2) Action to be taken by a relevant authority under
subsection (1)
may be taken on the relevant authority's behalf by an authorised officer,
a member of the Department, or another person authorised by the relevant
authority for the purpose.
(3) A person taking action under this section may enter any relevant land
at any reasonable time.
(4) The reasonable costs and expenses incurred by a relevant authority in
taking action under this section may be recovered by the relevant authority as a
debt from the person who failed to comply with the requirements of the
protection order.
(5) If an amount is recoverable from a person by a relevant authority
under this section—
(a) the relevant authority may, by notice in writing to the person, fix a
period, being not less than 28 days from the date of the notice, within which
the amount must be paid by the person, and, if the amount is not paid by the
person within that period, the person is liable to pay interest charged at the
prescribed rate per annum on the amount unpaid; and
(b) the amount together with any interest charge so payable is until paid
a charge in favour of the Crown on any land owned by the person in relation to
which the protection order is registered under this Subdivision.
(6) In this section—
relevant authority means—
(a) a regional landscape board; or
(b) the Chief Executive.
(1) If a regional landscape board or an authorised officer is satisfied
that a person has caused harm to any natural resource by contravention
of—
(a) the requirements of
section 8
; or
(b) a requirement under
section 108
; or
(c) the requirements of
Part 8
Division 6
; or
(d) a requirement under
section 190
; or
(e) a management agreement; or
(f) any other requirement imposed by or under this Act or the repealed Act
and prescribed by the regulations for the purposes of this section,
the regional landscape board or authorised officer may issue a reparation
order requiring the person—
(g) to take specified action within a specified period to make good any
resulting damage to the natural resource; or
(h) to make a payment or payments into an approved account to enable
action to be taken to address any resulting damage to the natural
resource,
or both.
(a) must be in the form of a written notice served on the person to whom
it is issued; and
(b) must specify the person to whom it is issued (whether by name or a
description sufficient to identify the person); and
(c) must state the grounds on which it is made with reasonable
particularity; and
(d) may include requirements for action to be taken to prevent or mitigate
further harm to any natural resource, or for a plan of action to be prepared to
the satisfaction of the regional landscape board or authorised officer;
and
(e) may include requirements for specified tests or monitoring;
and
(f) may include requirements for furnishing to the regional landscape
board or authorised officer specified results or reports; and
(g) may include requirements that the person to whom it is issued appoint
or engage a person with specified qualifications to prepare a plan or report or
to undertake tests or monitoring required by the order; and
(h) in the case of an order requiring payment into an approved account,
may provide that payments must occur in accordance with a scheme approved by the
Minister (either at the time of the making of the order or at a later time when
the extent or impact of any action has been assessed or finally determined);
and
(i) must state that the person may, within 21 days, appeal to the ERD
Court against the order or any subsequent variation of the order.
(3) An authorised officer may, if of the opinion that urgent action is
required to prevent or mitigate further harm, issue an emergency reparation
order containing requirements of a kind referred to in
subsection (2)
, other than a requirement for payment into an approved account.
(4) An emergency reparation order may be issued orally, but, in that
event, the person to whom it is issued must be advised forthwith of the person's
right to appeal to the ERD Court against the order.
(5) If an emergency reparation order is issued orally, the authorised
officer who issued it must confirm it in writing at the earliest opportunity by
written notice given to the person to whom it applies.
(6) A regional landscape board or an authorised officer may, if of the
opinion that it is reasonably necessary to do so in the circumstances, include
in an emergency or other reparation order a requirement for an act or omission
that might otherwise constitute a contravention of this Act and, in that event,
a person incurs no criminal liability under this Act for compliance with the
requirement.
(7) A regional landscape board or an authorised officer may, by written
notice served on a person to whom a reparation order has been issued, vary or
revoke the order.
(8) A person to whom a reparation order is issued must comply with the
order.
Maximum penalty: $70 000.
Expiation fee: $750.
208—Action
on non-compliance with a reparation order
(1) If the
requirements of a reparation order are not complied with, a relevant authority
may take any action required by the order.
(2) Action taken by a relevant authority under
subsection (1)
may be taken on the relevant authority's behalf by an authorised officer,
a member of the Department, or another person authorised by the relevant
authority for the purpose.
(3) A person taking action under this section may enter any relevant land
at any reasonable time.
(4) The reasonable costs and expenses incurred by a relevant authority in
taking action under this section may be recovered by the relevant authority as a
debt from the person who failed to comply with the requirements of the
reparation order.
(5) If an amount is recoverable from a person by a relevant authority
under this section—
(a) the relevant authority may, by notice in writing to the person, fix a
period, being not less than 28 days from the date of the notice, within which
the amount must be paid by the person, and, if the amount is not paid by the
person within that period, the person is liable to pay interest charged at the
prescribed rate per annum on the amount unpaid; and
(b) the amount together with any interest charge so payable is until paid
a charge in favour of the Crown on any land owned by the person in relation to
which the reparation order is registered under this Subdivision.
(6) In this section—
relevant authority means—
(a) a regional landscape board; or
(b) the Chief Executive.
(1) If a relevant
authority is satisfied that a person has caused harm to any natural resource by
contravention of—
(a) the requirements of
section 8
; or
(b) a requirement under
section 108
; or
(c) the requirements of
Part 8
Division 6
; or
(d) a requirement under
section 190
; or
(e) a management agreement; or
(f) any other requirement imposed by or under this Act or the repealed Act
and prescribed by the regulations for the purposes of this section,
the relevant authority may (whether or not a reparation order has been
issued to the person) issue a reparation authorisation under which authorised
officers or other persons authorised by the relevant authority for the purpose
may take specified action on the relevant authority's behalf to make good any
resulting damage to the natural resource.
(2) A reparation authorisation—
(a) must be in the form of a written notice; and
(b) must specify the person alleged to have caused the harm (whether by
name or a description sufficient to identify the person); and
(c) must state the grounds on which it is made with reasonable
particularity; and
(d) may include authorisation for action to be taken to prevent or
mitigate further harm to any natural resource.
(3) A relevant authority must, as soon as practicable after issuing a
reparation authorisation, serve a copy of the authorisation on the person
alleged to have caused the harm.
(4) A relevant authority may, by notice in writing, vary or revoke a
reparation authorisation and must, as soon as practicable after doing so, serve
a copy of the notice on the person alleged to have caused the harm.
(5) The copy of the authorisation must be accompanied by a written notice
stating that the person may, within 21 days, appeal to the ERD Court against the
issuing of the reparation authorisation.
(6) If a person other than an authorised officer is authorised to take
action under
subsection (1)
, the following provisions apply:
(a) the relevant authority that issued the authorisation must issue the
person with an instrument of authority;
(b) the person may exercise such powers of an authorised officer as are
reasonably required for the purpose of taking action under that
subsection;
(c) the provisions of this Act apply in relation to the exercise of such
powers by the person in the same way as in relation to an authorised
officer;
(d) the person must produce the instrument of authority for the inspection
of any person in relation to whom the person intends to exercise powers of an
authorised officer.
(7) A person taking action under a reparation authorisation may enter any
relevant land at any reasonable time.
(8) The reasonable costs and expenses incurred by a relevant authority in
taking action under a reparation authorisation may be recovered by the relevant
authority as a debt from the person who caused the relevant harm.
(9) If an amount is recoverable from a person by a relevant authority
under this section—
(a) the relevant authority may, by notice in writing to the person, fix a
period, being not less than 28 days from the date of the notice, within which
the amount must be paid by the person, and, if the amount is not paid by the
person within that period, the person is liable to pay interest charged at the
prescribed rate per annum on the amount unpaid; and
(b) the amount together with any interest charge so payable is until paid
a charge in favour of the Crown on any land owned by the person in relation to
which the reparation authorisation is registered under this
Subdivision.
(10) In this section—
relevant authority means—
(a) a regional landscape board; or
(b) the Chief Executive.
A person cannot claim compensation from—
(a) the Crown; or
(b) a regional landscape board; or
(c) the Chief Executive; or
(d) an authorised officer; or
(e) a person acting under the authority of a regional landscape board, the
Chief Executive or an authorised officer,
in respect of a requirement imposed by or under this Subdivision, or on
account of any act or omission undertaken or made in good faith in the exercise
(or purported exercise) of a power under this Subdivision.
(1) If—
(a) a regional landscape board or person issues an order or authorisation
under this Subdivision; and
(b) the order or authorisation is issued in relation to an activity
carried out on land, or requires a person to take action on or in relation to
land,
the relevant authority may apply to the Registrar-General for the
registration of the order or authorisation in relation to that land.
(2) An application
under this section must—
(a) define the land to which it relates; and
(b) comply with any requirement imposed by the Registrar-General for the
purposes of this section.
(3) The
Registrar-General must, on due application under
subsection (2)
, register the order or authorisation in relation to the land by making
such entries in any register book, memorial or other book or record in the Lands
Titles Registration Office or in the General Registry Office as the
Registrar-General thinks fit.
(4) The relevant
authority must, in accordance with the regulations, furnish to the
Registrar-General notice on any variation to an order or authorisation
registered under this section.
(5) An order or authorisation registered under this section (as varied
from time to time) is binding on each owner and occupier from time to time of
the land.
(6) The Registrar-General must, on application by the relevant authority,
cancel the registration of an order or authorisation in relation to land and
make such endorsements to that effect in the appropriate register book, memorial
or other book or record in respect of the land as the Registrar-General thinks
fit.
(7) The relevant
authority must apply to the Registrar-General for cancellation of the
registration of an order or authorisation under this section in relation to
land—
(a) on revocation of the order or authorisation; or
(b) in relation to—
(i) an order—
(A) on full compliance with the requirements of the order;
(B) if action has been taken under this Subdivision to carry out the
requirements of the order—on payment of any amount recoverable under this
Subdivision in relation to the action so taken; or
(ii) an authorisation—on payment of any amount recoverable under
this Subdivision in relation to the action taken in pursuance of the
authorisation.
(8) An owner or occupier of the relevant land must be notified, in the
manner prescribed by the regulations, if—
(a) an order or authorisation is registered under
subsection (3)
; or
(b) a notice of the variation of an order or authorisation is registered
under
subsection (4)
; or
(c) the cancellation of the registration of an order or authorisation is
given effect to under
subsection (7)
.
(9) In this section—
relevant authority means—
(a) in relation to an order or authorisation issued by a regional
landscape board—the regional landscape board;
(b) in relation to an order or authorisation issued by the Chief Executive
or an authorised officer—the Chief Executive.
A charge imposed on land under this Subdivision with respect to an order or
authorisation registered under this Subdivision has priority
over—
(a) any prior charge on the land (whether or not registered) that operates
in favour of a person who is an associate of the owner of the land;
and
(b) any other charge on the land other than a charge registered prior to
registration under this Subdivision of the relevant order or authorisation in
relation to the land.
Subdivision 2—Orders
made by ERD Court
(1) Applications
may be made to the ERD Court for 1 or more of the following orders:
(a) if a person has engaged, is engaging or is proposing to engage in
conduct in contravention of this Act—an order restraining the person, or
an associate of the person, from engaging in the conduct and, if the Court
considers it appropriate to do so, requiring the person, or an associate of the
person, to take such action as may appear appropriate to the Court in the
circumstances (including an order to rectify the consequences of any
contravention, or to ensure that a further contravention does not
occur);
(b) if a person has refused or failed, is refusing or failing or is
proposing to refuse or fail to take any action required by this Act—an
order requiring the person to take that action;
(c) if a person has suffered injury, loss (including economic loss or loss
of property) or damage to property as a result of a contravention of this Act,
or incurred costs and expenses in taking action to prevent or mitigate such
injury, loss or damage—an order against the person who committed the
contravention for payment of compensation for the injury, loss or damage, or for
payment of the reasonable costs and expenses incurred in taking that
action;
(d) if a person has engaged in conduct in contravention of this
Act—an order that the person pay into the Landscape Administration Fund an
amount, determined by the Court to be appropriate in the circumstances, on
account of any financial benefit that the person, or an associate of the person,
has gained, or can reasonably be expected to gain, as a result of the
contravention;
(e) if the Court considers it appropriate to do so—an order against
a person who has contravened this Act for payment (for the credit of the
Consolidated Account) of an amount in the nature of exemplary damages determined
by the Court.
(2) The power of the ERD Court to make an order restraining a person from
engaging in conduct of a particular kind may be exercised—
(a) if the Court is satisfied that the person has engaged in conduct of
that kind—whether or not it appears to the Court that the person intends
to engage again, or to continue to engage, in conduct of that kind; or
(b) if it appears to the Court that, in the event that an order is not
made, it is likely that the person will engage in conduct of that
kind—whether or not the person has previously engaged in conduct of that
kind and whether or not there is an imminent danger of damage if the person
engages in conduct of that kind.
(3) The power conferred by
subsection (1)
may only be exercised by a Judge of the ERD Court.
(4) In assessing an amount to be ordered in the nature of exemplary
damages, the ERD Court must have regard to—
(a) any damage to a water resource or any other part of the environment or
detriment to the public interest resulting from the contravention; and
(b) any financial saving or other benefit that the respondent, or an
associate of the respondent, stood to gain by committing the contravention;
and
(c) any other matter it considers relevant.
(5) An application
under this section may be made—
(a) by the Minister or the Chief Executive; or
(b) by a regional landscape board; or
(c) by any person whose interests are affected by the subject matter of
the application; or
(d) by any other
person with the permission of the ERD Court.
(6) Before the ERD Court may grant permission for the purposes of
subsection (5)(d)
, the Court must be satisfied that—
(a) the proceedings on the application would not be an abuse of the
process of the Court; and
(b) it is not unlikely that the requirements for the making of an order
under
subsection (1)
on the application would be satisfied; and
(c) it is in the public interest that the proceedings should be
brought.
(7) If an application is made by a person other than the
Minister—
(a) the applicant must serve a copy of the application on the Minister
within 3 days after filing the application with the ERD Court;
and
(b) the ERD Court must, on application by the Minister, join the Minister
as a party to the proceedings.
(8) An application under this section may be made in a representative
capacity (but, if so, the consent of all persons on whose behalf the application
is made must be obtained).
(9) An application may be made in the absence of the respondent, (or an
associate of the respondent), and, if the ERD Court is satisfied on the
application that the respondent has a case to answer, it may grant permission to
the applicant to serve a summons requiring the respondent to appear before the
Court to show cause why an order should not be made under this
section.
(10) An application under this section must, in the first instance, be
referred to a conference under section 16 of the
Environment,
Resources and Development Court Act 1993
.
(11) If, on an application under this section or before the determination
of the proceedings commenced by the application, the ERD Court is satisfied
that, in order to preserve the rights or interests of parties to the proceedings
or for any other reason, it is desirable to make an interim order under this
section, the Court may make such an order.
(12) An interim order—
(a) may be made in the absence of the respondent or any other party;
and
(b) may be made whether or not the proceedings have been referred to a
conference; and
(c) will be made subject to such conditions as the Court thinks fit;
and
(d) will not operate after the proceedings in which it is made are finally
determined.
(13) The ERD Court may order an applicant in proceedings under this
section—
(a) to provide security for the payment of costs that may be awarded
against the applicant if the application is subsequently dismissed;
(b) to give an undertaking as to the payment of any amount that may be
awarded against the applicant under
subsection (14)
.
(14) If, on an
application under this section alleging a contravention of this Act, the ERD
Court is satisfied—
(a) that the respondent has not contravened this Act; and
(b) that the respondent has suffered loss or damage as a result of the
actions of the applicant; and
(c) that in the circumstances it is appropriate to make an order under
this provision,
the Court may, on the application of the respondent (and in addition to any
order as to costs), require the applicant to pay to the respondent an amount,
determined by the Court, to compensate the respondent for the loss or damage
suffered by the respondent.
(15) The ERD Court may, if it considers it appropriate to do so, either on
its own initiative or on the application of a party, vary or revoke an order
previously made under this section.
(16) Proceedings under this section based on a contravention of this Act
may be commenced at any time within 3 years after the date of the alleged
contravention or, with the authorisation of the Attorney-General, at any later
time.
(17) An apparently genuine document purporting to be under the hand of the
Attorney-General and to authorise the commencement of proceedings under this
section must be accepted in any legal proceedings, in the absence of proof to
the contrary, as proof of the authorisation.
(18) The ERD Court
may, in any proceedings under this section, make such orders in relation to the
costs of the proceedings as it thinks just and reasonable.
(19) Without limiting the generality of
subsection (18)
, in determining whether to make any order in relation to costs the ERD
Court may have regard to the following matters (so far as they are
relevant):
(a) whether the applicant is pursuing a personal interest only in bringing
the proceedings or is furthering a wider group interest or the public
interest;
(b) whether or not the proceedings raise significant issues relating to
the administration of this Act.
(20) In this section—
(a) a reference to a contravention of this Act will be taken to include a
reference to a contravention of a management agreement; and
(b) a reference to a failure to take action required by this Act will be
taken to include a reference to a failure to comply with a management
agreement.
(1) The following rights of appeal lie to the ERD Court:
(a) an owner of land who is dissatisfied with—
(i) a review of a notice by the Chief Executive under
section 97(4)
or
(10)
may appeal to the Court against the decision of the Chief Executive;
or
(ii) a decision of a relevant authority to vary an action plan under
subsection (17)
of
section 97
, or on an application under that subsection, may appeal to the Court
against the decision;
(b) without limiting any other paragraph, in respect of the operation of
Part 8
—
(i) a person who is subject to a restriction under
section 107(5)
may appeal to the Court against the restriction;
(ii) an applicant for a water management authorisation, a forest water
licence, a well driller's licence or a permit under
Part 8
may appeal to the Court against a refusal to grant or issue the
authorisation, licence or permit or the imposition of conditions in relation to
the authorisation, licence or permit (other than in a case involving the
allocation of reserved water within the meaning of
Part 8
Division 4
);
(iii) an applicant for the transfer of a water management authorisation
may appeal to the Court against a refusal to grant the application or a decision
to vary the conditions of the transferred water management authorisation or, in
the case of a water allocation, to reduce the water allocation;
(iv) an applicant for the transfer of a water allocation attached to a
forest water licence may appeal to the Court against a refusal to grant the
application;
(v) the holder of a water management authorisation, licence or permit
under
Part 8
may, if authorised to do so by a specific provision of that Part, appeal
to the Court against the variation, suspension or cancellation of the
authorisation or licence or the variation, suspension or revocation of the
permit;
(vi) a person who is subject to a direction by the Minister or other
authority under
Part 8
may appeal to the Court against the direction;
(vii) a person with a prescribed interest in a water management
authorisation of a prescribed class may appeal to the Court against a decision
to vary the water management authorisation;
(c) a person who is dissatisfied with—
(i) an action order issued to the person under
section 191
may appeal to the Court against the decision to issue the order;
or
(ii) a decision of a relevant authority to vary an action plan, may appeal
to the Court against the decision;
(d) a person who has applied for a permit under
Part 9
Division 2 Subdivision 2
may appeal to the Court against a decision of the relevant authority to
refuse the application, or to impose particular conditions, and a person who is
the holder of such a permit may appeal to the Court against a decision of the
relevant authority to vary or revoke the permit, or a condition of the permit,
or to impose a new condition;
(e) a person to whom an order has been issued under
Part 10 Division 2
Subdivision 1
may appeal to the Court against the order or any variation of the order
and a person who has been served with a reparation authorisation under
section 209
may appeal to the Court against the issuing of the
authorisation;
(f) a person who is subject to a direction by the Minister or other
authority under this Act in prescribed circumstances may appeal to the Court
against the direction;
(g) a person who is expressly given a right of appeal by another provision
of this Act or by the regulations may appeal to the Court in pursuance of that
right.
(2) The Crown in right of the State of Victoria has a right of appeal to
the ERD Court against a decision to grant a water management authorisation or to
issue a permit under
Part 8
on the ground that the decision is contrary to the Border Groundwaters
Agreement approved by the
Groundwater
(Border Agreement) Act 1985
.
(3) Subject to this section, an appeal must be made—
(a) in the case of an appeal against an order under
section 191
or variation of such an order—within 14 days after the order or
variation was served; or
(b) in the case of an appeal against an order or reparation authorisation
under
Part 10
Division 2
or variation of such an order or authorisation—within 21 days
after the order or authorisation or variation is served; or
(c) in the case of an appeal in any circumstance prescribed by the
regulations—within the period prescribed by the regulations; or
(d) in any other case—within 6 weeks of the decision, direction
or restriction appealed against.
(4) The ERD Court may, if it is satisfied that it is just and reasonable
in the circumstances to do so, dispense with the requirement that an appeal be
made within the period fixed by this section.
(5) An appeal must be referred in the first instance to a conference under
section 16 of the
Environment,
Resources and Development Court Act 1993
.
215—Operation
and implementation of decisions or orders subject to appeal
(1) Subject to
subsection (2)
, the making of an appeal to the ERD Court does not affect the operation of
any decision, order, direction or restriction to which the appeal relates or
prevent the taking of action to implement the decision, order, direction or
restriction.
(2) The ERD Court,
or the authority that has made or issued a decision, order, direction or
restriction may, on its own initiative or on application by a party to an
appeal, suspend the operation of any decision, order, direction or restriction
until the determination of an appeal.
(3) A suspension under
subsection (2)
may be made subject to specified conditions, and may be varied or revoked
by the ERD Court or relevant authority that granted the suspension at any
time.
216—Powers
of Court on determination of appeals
The ERD Court may, on hearing an appeal—
(a) confirm, vary or reverse any decision, order, direction or restriction
appealed against, or substitute any decision, order, direction or restriction
that should have been made in the first instance;
(b) remit the subject matter of the appeal to any person or body under
this Act for further consideration;
(c) order or direct a person or body to take such action as the Court
thinks fit, or to refrain (either temporarily or permanently) from such action
or activity as the Court thinks fit;
(d) make any consequential or ancillary order or direction, or impose any
condition, that it considers necessary or expedient.
(1) The Minister
may enter into an agreement (a management agreement) relating
to—
(a) the protection, conservation, management, enhancement, restoration or
rehabilitation of any natural resources;
(b) any other matter associated with furthering the objects of this
Act,
with the owner of any land.
(2) Without
limiting the operation of
subsection (1)
, a management agreement may, with respect to the land to which it
relates—
(a) require specified work or work of a specified kind be carried out on
the land, or authorise the performance of work on the land;
(b) restrict the nature of any work that may be carried out on the
land;
(c) prohibit or restrict specified activities or activities of a specified
kind on the land;
(d) provide for the care, control, management or operation of any
infrastructure or works;
(e) provide for the management of any matter in accordance with a
particular management plan (which may then be varied from time to time by
agreement between the Minister and the owner of the land);
(f) provide for the adoption or implementation of natural resources
protection measures or improvement programs;
(g) provide for the testing or monitoring of any natural
resources;
(h) provide for financial, technical or other professional advice or
assistance to the owner of land with respect to any relevant matter;
(i) provide for a
remission or exemption in respect of a levy under
Part 5
;
(j) provide for
remission of rates or taxes in respect of the land;
(k) provide for the Minister to pay to the owner of the land an amount as
an incentive to enter into the agreement.
(3) The Minister must not enter into a management agreement that provides
for the remission of any council rates under
subsection (2)(j)
unless the Minister has given the relevant council notice of the proposal
to provide for the remission and given consideration to any submission made by
the council within a period (of at least 21 days) specified by the
Minister.
(4) A term of management agreement under
subsection (2)(i)
or
(j)
has effect despite any other Act or law to the contrary.
(5) The
Registrar-General must, on the application of a party to a management agreement,
note the agreement against the relevant instrument of title or, in the case of
land not under the provisions of the
Real
Property Act 1886
, against the land.
(6) A management agreement has no force or effect under this Act until a
note is made under
subsection (5)
.
(7) Where a note has been entered under
subsection (5)
, the agreement is binding on each owner of the land from time to time
whether or not the owner was the person with whom the agreement was made and
despite the provisions of the
Real
Property Act 1886
, and on any occupier of the land.
(8) The Registrar-General must, if satisfied on the application of the
Minister or the owner of the land that an agreement in relation to which a note
has been made under this section has been rescinded or amended, enter a note of
the rescission or amendment against the instrument of title, or against the land
(but must otherwise ensure that the note is not removed once made).
(9) Except to the extent that the agreement provides for a remission or
exemption under
subsection (2)(i)
or
(j)
, a management agreement does not affect the obligations of an owner or
occupier of land under any other Act.
(10) The existence of a management agreement may be taken into account
when assessing an application for a licence, permit or other authorisation under
this Act.
(11) A management agreement cannot derogate from the operation of a Mining
Act or from the exercise of a right under a tenement granted under a Mining
Act.
218—Avoidance
of duplication of procedures etc
(1) The purpose of this section is to provide for the avoidance of
unnecessary duplication of procedures and compliance requirements under the
Commonwealth Act and this Act where an activity requires authorisation under
this Act and approval under the Commonwealth Act.
(2) Despite any
other provision of this Act, an authority under this Act may—
(a) accept a
Commonwealth Act document as an application, notice or other document for the
purposes of this Act if (subject to
subsection (5)
) the document complies with the requirements of this Act; and
(b) direct that a
procedure taken under the Commonwealth Act in relation to a Commonwealth Act
document that has been accepted by the authority under
paragraph (a)
will be taken to have fulfilled the requirement for a procedure in
relation to the relevant document under this Act if the requirements of this Act
in relation to the procedure have been complied with; and
(c) instead of the authority, or some other person, preparing a plan,
report, statement, assessment or other document under this Act, adopt or accept
the whole or part of a document (whether a plan, report, statement, assessment
or other document of the same kind or not) used, or to be used, for the purposes
of the Commonwealth Act as the document required under this Act if (subject to
subsection (5)
) the document has been prepared in compliance with this Act and complies
with the requirements of this Act.
(3) To avoid doubt, where a controlled action under the Commonwealth Act
is an activity or part of an activity, or includes an activity, for which
authorisation is required under this Act, the authority may, when considering an
application for, or for the variation of, a water licence, permit or other
instrument, use information and other material provided to the Commonwealth
Minister under the Commonwealth Act for the purpose of deciding whether to give
his or her approval to the controlled action under that Act.
(4) Where a controlled action under the Commonwealth Act is an activity or
part of an activity, or includes an activity, for which authorisation is
required under this Act, the authority—
(a) must, if the Commonwealth Minister has given the Minister's approval
to the controlled action, consider whether the conditions (if any) to be
attached to the licence, permit or other instrument should be consistent with
the conditions (if any) attached to the Commonwealth Minister's approval under
the Commonwealth Act;
(b) may attach a condition to a licence, permit or other instrument that
requires compliance with all or some of the conditions attached to the
Commonwealth Minister's approval under the Commonwealth Act.
(5) A document
accepted or adopted under
subsection (2)
—
(a) may be in a form that does not comply with the requirements of this
Act; and
(b) may include information or other material that is irrelevant for the
purposes of this Act.
(6) Once a document is accepted or adopted under
subsection (2)
or a direction has been given in relation to a procedure under
subsection (2)(b)
, the document or procedure will not be invalid or ineffective for the
purposes of this Act because a court, tribunal or other authority has decided
that it is invalid or ineffective for the purposes of the Commonwealth
Act.
(7) In this section—
assessment report means—
(a) an assessment report as defined in the Commonwealth Act by reference
to section 84(3), 95, 100 or 105 of that Act; or
(b) a report under section 121 of the Commonwealth Act;
the authority means—
(a) in reference to a water licence—the Minister;
(b) in reference to a permit—the relevant authority under
section 101
;
(c) in reference to any other instrument brought within the ambit of this
definition by the regulations—a person or body prescribed by the
regulations;
Commonwealth Act means the Environment Protection and
Biodiversity Conservation Act 1999 of the Commonwealth;
Commonwealth Act document means—
(a) a referral under section 68, 69 or 71 of the Commonwealth Act;
or
(b) information given by a person to the Minister under the Commonwealth
Act under section 86 of that Act; or
(c) information and invitation published by a proponent under section 93
of the Commonwealth Act; or
(d) guidelines prepared under section 97 or 102 of the Commonwealth Act;
or
(e) a draft report prepared under section 98 of the Commonwealth Act;
or
(f) a finalised report prepared under section 99 of the Commonwealth Act;
or
(g) a draft statement prepared under section 103 of the Commonwealth Act;
or
(h) a finalised statement prepared under section 104 of the Commonwealth
Act; or
(i) an assessment report.
(1) Nothing done
under this Act will be taken to affect native title in any land or
water.
(2) However,
subsection (1)
does not apply if the effect is valid under a law of the State or the
Native Title Act 1993 of the Commonwealth.
220—Service
of notices or other documents
(1) If this Act
requires or authorised a notice or other document to be served on, or given to,
a person, the notice or document may—
(a) be served on, or given to, the person or an agent of the person;
or
(b) be left for the person at the person's place of residence or business
with someone apparently over the age of 16 years; or
(c) be sent by post to the person or an agent of the person at the
person's or agent's last known address; or
(d) if the notice or document is to be served on the owner of land, the
land is unoccupied, and the person seeking to serve the notice or document has
taken reasonable steps to effect service under the other paragraphs of this
subsection but has been unsuccessful—be served by fixing it to some
conspicuous part of the land; or
(e) if the notice or document is to be served on the occupier of
land—be sent by post to the occupier at the address of the land;
or
(f) be served on the person by fixing it to, or leaving it on, a vessel or
craft that the person is apparently in charge of, or expected to board at some
stage, if the person giving or serving the notice or document has reasonable
grounds to believe that service in this manner will bring the notice or document
to the attention of the person to be served; or
(g) be sent to an email address known to be used by the person (in which
case the notice or other document will be taken to have been served or given at
the time of transmission); or
(h) be served or given in some other manner prescribed by the
regulations.
(2) Without limiting
subsection (1)
, a notice or document to be served on or given to a company or registered
body within the meaning of the Corporations Act 2001 of the
Commonwealth may be served or given in accordance with that Act.
(3) Subject to the regulations, a notice or document required or
authorised to be given to an owner of land may, if it is to be served
personally, be served on the owner, one of any joint owners, or the agent of the
owner.
(4) This section does not affect any provision for service prescribed by
the
Native
Title (South Australia) Act 1994
.
221—Publication
of notices by Minister
If the Minister is authorised to publish a notice under this Act in such
manner as the Minister considers appropriate, the Minister should give
consideration to the extent to which a particular form of publication may be
effective in bringing the notice to the attention of persons who are most likely
to be directly affected by the notice or will have a particular interest in the
notice (without requiring personal service).
Money that is due to the Minister or other authority under this Act in
respect of the Minister's or the authority's costs in carrying out the
requirements of a notice served on the owner or occupier of land may be
recovered by the Minister or other authority by selling the land in accordance
with
section 84
and for the purposes of applying that section the money due will be taken
to be a levy and an authority other than the Minister to which the money is due
will be taken to be the Minister.
223—Compulsory
acquisition of land
(1) The Minister may, after taking into account any recommendation of the
relevant regional landscape board, acquire land under this section where the
Minister considers that the acquisition of the land is reasonably necessary to
further the objects of this Act.
(2) The
Land
Acquisition Act 1969
applies to the acquisition of land pursuant to this section.
(3) Nothing in this section limits or affects—
(a) the ability of the Minister to acquire land by agreement; or
(b) the operation of any other section of this Act.
(1) A regional
landscape board is liable to pay compensation—
(a) to a person who
has the right to take water from a watercourse or lake whether pursuant to a
water management authorisation or not, for loss or damage resulting from the
effect on the exercise of the right by that person of the board stopping,
reducing or diverting the flow of water in the watercourse or in a watercourse
that flows into the lake;
(b) to the owner of
land that the board, or a person authorised by the board, has entered, or
entered and occupied, for loss or damage caused by the entry or occupation of
the land.
(2) If the exercise of rights under or in respect of a water management
authorisation or a permit has the effect of stopping, reducing or diverting the
flow of water in a watercourse, a regional landscape board that allocated water
under this Act or approved the transfer of any water management authorisation or
any interest in any water management authorisation (as a delegate of the
Minister) or granted the permit is not responsible for the purposes of
subsection (1)(a)
for stopping, reducing or diverting the flow of water in the
watercourse.
(3) The Minister is
liable to pay compensation to the owner of land for—
(a) the value of a dam, embankment, wall or other obstruction or object
removed by the owner in compliance with a notice under
section 109(1)
; and
(b) the costs of removal incurred by the owner.
(4) For the purposes of
subsection (3)
, the value of a dam, embankment, wall or other obstruction or object will
be taken to be—
(a) the amount by which the dam, embankment, wall or other obstruction or
object increased the value of the land; or
(b) the cost, at the time of removal, of replacing the dam, embankment,
wall or other obstruction or object,
whichever is the lesser.
(5) The Minister is
liable to pay compensation to the occupier of land for the loss of water (if
any) held by a dam, embankment, wall or other obstruction or object when it is
removed in compliance with a notice under
section 109(1)
.
(6) A claim for compensation under this section against a regional
landscape board must be made by written notice served on the
board—
(a) in the case of compensation under
subsection (1)(a)
—within 6 months after the loss or damage first occurred;
(b) in the case of compensation under
subsection (1)(b)
—within 3 months after the board, or a person authorised by the
board, entered the land or ceased to occupy the land.
(7) A claim for compensation under this section against the Minister must
be made by written notice served on the Minister within 6 months after the
removal of the dam, embankment, wall or other obstruction or object.
(8) If the claimant and the regional landscape board or the Minister
cannot reach agreement within 3 months after the notice is served on the board
or the Minister, the claimant may apply to the ERD Court for determination of
the amount of compensation payable.
(9) Compensation is not payable under
subsection (1)(b)
in respect of the entry or occupation of land pursuant to an
easement.
(10) Compensation is not payable under
subsection (1)
,
(3)
or
(5)
to the Crown or a public authority.
(1) Despite any
other Act or law to the contrary, an owner of land, the Minister or another
authority or any other person who—
(a) destroys an animal or plant; or
(b) captures or removes an animal from land; or
(c) takes any other action that is a prescribed measure for the control of
animals or plants; or
(d) after an animal has been removed from land, sells or otherwise
disposes of the animal,
pursuant to this Act, is not subject to any criminal or civil liability in
relation to that action.
(2) The immunity
provided by
subsection (1)
to an owner of land, the Minister, an authority or other person extends to
a person who acts as an agent of the owner, Minister, authority or other
person.
For the purposes of this Act, an act or omission of an employee or agent
will be taken to be the act or omission of the employer or principal unless it
is proved that the act or omission did not occur in the course of the employment
or agency.
227—False
or misleading information
A person who furnishes information to the Minister or another authority
under this Act that is false or misleading in a material particular is guilty of
an offence.
Maximum penalty: $20 000.
228—Interference
with works or other property
(1) A person must not interfere with any property of the Crown used in, or
in connection with, the administration of this Act without the permission of the
Minister.
Maximum penalty:
(a) where the offender is a body corporate—$10 000;
(b) where the offender is a natural person—$5 000.
Expiation fee: $500.
(2) If a meter is used for the purposes of this Act to measure the
quantity of water taken from a water resource, a person (including the owner of
the meter) must not interfere with the meter without the permission of the
Minister.
Maximum penalty:
(a) where the offender is a body corporate—$10 000;
(b) where the offender is a natural person—$5 000.
Expiation fee: $500.
(3) A person must not interfere with any infrastructure or other property
that is vested in or is under the care, control and management of a regional
landscape board or a person acting on behalf of such a board without the board's
permission.
Maximum penalty:
(a) where the offender is a body corporate—$10 000;
(b) where the offender is a natural person—$5 000.
Expiation fee: $500.
(4) The Minister's or a regional landscape board's permission under this
section may be conditional or unconditional and if conditional it is an offence
to contravene or fail to comply with the condition.
Maximum penalty:
(a) where the offender is a body corporate—$10 000;
(b) where the offender is a natural person—$5 000.
Expiation fee: $500.
229—Criminal
jurisdiction of Court
An offence against any section of this Act prescribed by the regulations
for the purposes of this section lies within the criminal jurisdiction of the
ERD Court.
(1) Proceedings for an offence against this Act—
(a) may only be commenced by—
(i) the Minister; or
(ii) the Director of Public Prosecutions; or
(iii) the Chief Executive; or
(iv) a person acting with the authorisation in writing of the Minister;
and
(b) must be commenced within 5 years after the date on which the offence
is alleged to have been committed.
(2) An apparently genuine document purporting to be under the hand of the
Minister and to authorise the commencement of proceedings under this Act must be
accepted in legal proceedings, in the absence of proof to the contrary, as proof
of the authorisation.
(1) It is a defence to a charge of an offence against this Act if the
defendant proves that the alleged offence was not committed intentionally and
did not result from any failure on the part of the defendant to take reasonable
care to avoid the commission of the offence.
(2) This section does not apply in relation to a person who is charged
with an offence under
section 232
.
232—Offences
by bodies corporate
(1) If a body corporate is guilty of a prescribed offence, each member of
the governing body, and the manager, of the body corporate are guilty of an
offence and liable to the same penalty as is prescribed for the principal
offence when committed by a natural person unless the member or the manager (as
the case may be) proves that they could not by the exercise of due diligence
have prevented the commission of the offence.
(2) If a body
corporate is guilty of any other offence against this Act (other than an offence
against the regulations), each member of the governing body, and the manager, of
the body corporate is guilty of an offence and liable to the same penalty as is
prescribed for the principal offence when committed by a natural person if the
prosecution proves that—
(a) the member or manager (as the case may be) knew, or ought reasonably
to have known, that there was a significant risk that such an offence would be
committed; and
(b) the member or manager (as the case may be) was in a position to
influence the conduct of the body corporate in relation to the commission of
such an offence; and
(c) the member or manager (as the case may be) failed to exercise due
diligence to prevent the commission of the offence.
(3)
Subsection (2)
does not apply if the principal offence is—
(a) an offence against
section 10
or
(3)
or
section 228
; or
(b) an offence against
section 102(7)
that relates to the breach of a prescribed condition of a water management
authorisation; or
(c) an offence against
section 185
or
186
that relates to a Category 3 animal or plant; or
(d) an offence against
section 189
that relates to a Category 3 animal or plant.
(4) A person referred to in this section may be prosecuted and convicted
of an offence against this section whether or not the body corporate has been
prosecuted or convicted of the principal offence committed by the body
corporate.
(5) The regulations may make provision in relation to the criminal
liability of a member of the governing body, or the manager, of a body corporate
that is guilty of an offence against the regulations.
(6) In this section—
prescribed offence means—
(a) an offence against
section 97(12)
; or
(b) an offence against
section 189
that relates to a Category 1 or Category 2 animal or
plant.
233—Additional
orders on conviction
If a person is convicted of an offence against this Act, the court by which
the conviction is recorded may, in addition to any penalty that it may impose,
and to any other order that it may make under this or any other Act, make 1 or
both of the following orders:
(a) an order requiring the person to take any specified action (including
an order to rectify the consequences of any contravention of this Act, or to
ensure that a further contravention does not occur);
(b) an order that the person pay to the Crown an amount determined by the
court to be equal to a fair assessment or estimate of the financial benefit that
the person, or an associate of the person, has gained, or can reasonably be
expected to gain, as a result of the commission of an offence against this
Act.
(1) A person convicted of an offence against a provision of this Act in
respect of a continuing act or omission—
(a) is liable, subject to any determination of a court, in addition to the
penalty otherwise applicable to the offence, to a penalty for each day during
which the act or omission continued of not more than one-tenth of the maximum
penalty prescribed for that offence; and
(b) is, if the act or omission continues after the conviction, subject to
any determination of a court, guilty of a further offence against the provision
and liable, in addition to the penalty otherwise applicable to the further
offence, to a penalty for each day during which the act or omission continued
after the conviction of not more than one-tenth of the maximum penalty
prescribed for the offence.
(2) If an offence consists of an omission to do something that is required
to be done, the omission will be taken to continue for as long as the thing
required to be done remains undone after the end of the period for compliance
with the requirement.
235—Constitution
of Environment, Resources and Development Court
The following provisions apply in respect of the constitution of the ERD
Court when exercising jurisdiction under this Act:
(a) the Court may be constituted in a manner provided by the
Environment,
Resources and Development Court Act 1993
or may, if the Presiding Member of the Court so determines, be constituted
of a Judge and 1 commissioner;
(b) the provisions of the
Environment,
Resources and Development Court Act 1993
apply in relation to the Court constituted of a Judge and 1 commissioner
in the same way as in relation to a full bench of the Court;
(c) the Court may not be constituted of or include a commissioner
unless—
(i) in a case where only 1 commissioner is to sit (whether alone or with
another member or members of the Court)—the commissioner; or
(ii) in any other case—at least 1 commissioner,
is a commissioner who has been specifically designated by the Governor as a
person who has expertise in fields that are relevant to the jurisdiction
conferred on the Court by this Act.
(1) If, in criminal or civil proceedings under this Act relating to the
taking of water from a prescribed watercourse, lake or well without authority,
it is proved that at the time at which the water is alleged to have been taken
the watercourse, lake or well was connected by pipes or channels to land
occupied by the defendant, it must be presumed (in the absence of proof to the
contrary)—
(a) that the defendant took water from the watercourse, lake or
well;
(b) that the defendant took the water for a purpose other than for
domestic purposes or for watering stock.
(2) An allegation in criminal or civil proceedings under this Act that on
a particular date or during a particular period—
(a) the defendant, respondent or any other person was, or was not, the
holder of a licence or permit under this Act; or
(b) a particular person was, or was not, the owner or occupier of any
specified land or the owner of any specified vehicle, vessel or aircraft;
or
(c) a specified watercourse, lake or well or a specified area was, or was
not, a prescribed watercourse, lake or well or a surface water prescribed area;
or
(d) specified infrastructure—
(i) was, or was not, stormwater infrastructure;
(ii) was, or was not, stormwater infrastructure forming part of a surface
water prescribed area; or
(e) the defendant took or used a specified quantity of water; or
(f) an animal was an animal of a specified class, or a plant was a plant
of a specified class, under a provision of this Act; or
(g) a person had failed to carry out the requirements of a notice under
Part 9
; or
(h) a particular person was an authorised officer,
must, in the absence of proof to the contrary, be accepted as proved.
(3) A document that purports to have been certified by the Minister, a
regional landscape board or an authorised officer to be an accurate copy of a
licence or permit granted or issued under this Act must, in the absence of proof
to the contrary, be accepted in criminal or civil proceedings under this Act as
an accurate copy of that licence or permit.
(4) If in proceedings before a court or other tribunal it is proved
that—
(a) a meter used to
measure the quantity of water taken from a prescribed water resource has been
adjusted or modified in a manner that affects the accuracy of the meter;
or
(b) a pipe has been installed to bypass a meter referred to in
paragraph (a)
; or
(c) any other pipe or fitting has been interfered with,
it must be presumed (in the absence of proof to the contrary) that the
occupier of the land on which the meter, pipe or other fitting is situated, or a
person acting on the occupier's behalf, was the person who—
(d) adjusted or modified the meter; or
(e) installed the pipe bypassing the meter; or
(f) interfered with the pipe or other fitting.
(5) A document purporting to be a regional landscape plan, a water
allocation plan, a landscapes affecting activities control policy or a water
affecting activities control policy, prepared and approved under this Act must
in proceedings before a court or other tribunal, be presumed in the absence of
proof to the contrary, to be a plan or policy (as the case may be) prepared,
approved and for the time being in force under this Act.
(6) If in any proceedings under
Part 10
Division 2
or in proceedings for an offence against this Act it appears that an
alleged fact has been determined by the use of an electronic, sonic, optical,
mechanical or other device by an authorised officer or a person assisting an
authorised officer, the alleged fact must be accepted as proved in the absence
of proof to the contrary.
237—Determination
of costs and expenses
(1) A reference in this Act to the costs of an authority under this Act in
taking action or performing work includes a reference to expenses incurred in
taking the action or performing the work.
(2) The costs and expenses of an authority under this Act in taking action
or performing work must be determined by reference to the costs and expenses
that would have been incurred if an independent contractor had been engaged to
take the action or perform the work.
238—Minister
may apply assumptions and other information
(1) Subject to this section, the Minister may, in assessing or determining
any matter that the Minister considers to be relevant to—
(a) the imposition or calculation of any levy under
Part 5
; or
(b) a condition or proposed condition with respect to a permit or licence
under
Part 8
; or
(c) any notice or other requirement that may be issued or imposed under
this Act; or
(d) any plan, policy or report under this Act,
apply any assumptions, or adopt or apply any information or criteria,
determined by the Minister to be reasonable in the circumstances (and the
Minister's determination in relation to the particular matter will then have
effect for the purposes of this Act).
(2) If the regulations so provide, no appeal will lie against any
determination of a prescribed kind based on any assumption, information or
criteria of a kind specified by the regulations.
(3) This section only applies with respect to a matter that relates to the
River Murray.
(1) The Minister
must keep a register (the Landscape Scheme Register)
of—
(a) water management authorisations granted or issued under this Act;
and
(b) forest water licences granted under this Act; and
(c) permits granted under this Act; and
(d) action plans imposed under
section 97
; and
(e) other prescribed matters,
in such form and containing such information as the Minister thinks
fit.
(2) The register
may be divided into such parts as the Minister thinks fit but the Minister must
at least establish 1 part that specifically relates to Schedule 4 entitlements
under
Part 8
.
(3) The part
established under
subsection (2)
—
(a) will be known as The Water Register; and
(b) will be subject to the operation of Schedule 4.
(4) Subject to this section, the register must be made available for
public inspection.
(5) The Minister is
not required to make available for public inspection any part of the register
that, in the opinion of the Minister, should be kept confidential for safety or
security reasons.
(6) The Minister may also establish or authorise arrangements that
restrict or prohibit access to the register (or a part of the register) to
protect information that, in the opinion of the Minister, is commercially
sensitive or should be protected for some other reasonable cause.
(7) No fee may be imposed for the inspection of the register but the
Minister may fix fees for the supply of copies of the register or for extracts
from the register.
(8) Information on the register may be made available on conditions
determined or approved by the Minister.
(9) Without limiting a preceding subsection, any part of the register may
be kept in the form of a computer record.
A person engaged in the administration of this Act who, in the course of
carrying out official duties, acquires information on the income, assets,
liabilities or other private business affairs of a person must not disclose that
information to any other person except in the performance of those official
duties or as required by law or authorised by the Minister.
Maximum penalty: $7 500
241—Damage
caused by non-compliance with a notice etc
(1) If—
(a) a person fails to comply with—
(i) a requirement under
section 97
or
section 191
; or
(ii) an order under
Part 10 Division 2
Subdivision 1
; and
(b) damage is caused to the land of another person as a result of that
non-compliance,
that other person may recover damages from the person who has failed to so
comply.
(2) If a person fails to comply with a notice or other requirement under
this Act to make good damage caused to the land of another person, that other
person may recover the cost of making good the damage as a debt from the person
who has failed to comply.
242—Recovery
of technical costs associated with contraventions
(1) If, in the course of investigating a contravention of this Act, a
relevant authority has incurred costs and expenses in taking samples or in
conducting tests, examinations or analyses the following provisions
apply:
(a) if a person is convicted of an offence in respect of the
contravention—the court must, on application by a relevant authority,
order the person to pay to the relevant authority the reasonable costs and
expenses incurred by the relevant authority;
(b) if an order has been issued under
Part 10
Division 2 Subdivision 1
to a person in respect of the contravention—a relevant authority
may, by notice in writing served on the person, require the person to pay to the
relevant authority an amount specified in the notice as being the reasonable
costs and expenses incurred by the relevant authority (and such an amount may be
recovered as a debt by the relevant authority).
(2) In this section—
relevant authority means—
(a) the Minister; or
(b) the Chief Executive; or
(c) a regional landscape board; or
(d) any other person or body prescribed by the regulations.
243—Delegation
by Chief Executive
(1) The Chief Executive
may delegate to a body or person (including a person for the time being holding
or acting in a specified office or position) a function or power of the Chief
Executive under this Act.
(2) A delegation under this section—
(a) may be absolute or conditional; and
(b) does not derogate from the ability of the Chief Executive to act in
any matter; and
(c) is revocable at will.
(3) A function or power delegated under this section may, if the
instrument of delegation so provides, be further delegated.
(4) A person to
whom functions or powers have been delegated under
subsection (1)
who has a direct or indirect personal or pecuniary interest in any matter
in relation to which the person proposes to perform those functions or exercise
those powers must disclose the nature of the interest in writing to the Chief
Executive.
Maximum penalty: $20 000.
(5) It is a defence to a charge for an offence against
subsection (4)
to prove that the defendant was not, at the time of the alleged offence,
aware of their interest in the matter.
244—Incorporation
of codes and standards
(1) A notice given by the Minister or by any other person or body involved
in the administration or enforcement of this Act, or a regulation made under
this Act, may—
(a) be of general or limited application;
(b) apply, adopt or incorporate, with or without modification, any code,
standard or other document prepared or approved by a body or authority referred
to in the notice or regulation as in force from time to time or as in force at a
specified time.
(2) If a code, standard or other document is applied, adopted or
incorporated in a notice or regulation—
(a) a copy of the code, standard or other document must be kept available
for inspection by members of the public, without charge and during normal office
hours, at the office of the Department; and
(b) in any legal proceedings, evidence of the contents of the code,
standard or other document may be given by production of a document apparently
certified by or on behalf of the Minister as a true copy of the code, standard
or other document.
(3) Any regulation adopting a code, standard or other document, or an
amendment to a code, standard or other document, may contain such incidental,
supplementary or transitional provisions as appear to the Governor to be
necessary.
(1) The Governor
may, by regulation—
(a) exempt, or empower the Minister to exempt, a person, or a person of a
class, from the operation of any provision of this Act;
(b) declare that this Act, or any provision of this Act, does not apply,
or applies with prescribed variations, to, or in relation to—
(i) a circumstance or situation (or circumstance or situation of a
prescribed class); or
(ii) a water resource (or a water resource of a class); or
(iii) a place or area within the State,
specified in the regulation.
(2) A regulation under
subsection (1)
may operate subject to such limitations and conditions as may be specified
in the regulation.
(1) The Governor
may make such regulations as are contemplated by this Act or as are necessary or
expedient for the purposes of this Act.
(2) Without limiting the generality of
subsection (1)
, regulations may be made with respect to any of the matters specified in
Schedule 1.
(3) A regulation under this Act—
(a) may make different provision according to the matters or circumstances
to which they are expressed to apply;
(b) may provide that a matter or thing in respect of which regulations may
be made is to be determined according to the discretion of the Minister or any
other person or body prescribed by the regulations;
(c) may, in relation to fees or charges, prescribe differential fees or
charges, or provide for fees or charges to be determined according to prescribed
factors.
1 The
keeping of records, statistics and other information by any person or body that
performs a function under this Act and the provision of reports based on that
information to the Minister or to any other prescribed person or body.
2 The
keeping of records, statistics and other information by the holders of licences
or permits under this Act, or by any other prescribed person or body.
3 The
provision of reports, statements, documents or other forms of information to any
person or body that performs a function under this Act.
4 The
giving of notice before any prescribed class of activity or procedure is
commenced, the notification of the occurrence of any prescribed class of event,
or the giving of a notice to a person or body in any prescribed
circumstances.
5 The
transfer of any licence or water allocation under this Act.
6 The
fixing, payment or recovery of—
(a) rental for water meters;
(b) other charges with respect to the use of any infrastructure connected
with the operation of this Act.
7 The
assessment of the quality of water or of the state or condition of other natural
resources or of other components of any landscape.
8 The
prohibition or regulation of—
(a) the use of water or other natural resources; or
(b) activities on or in water, or involving other natural resources;
or
(c) activities on land under the care, control or management of the
Minister, a regional landscape board, or any other prescribed person or
body.
9 The
methods that may, or must, be used in the destruction or control of any animal
or plant.
10 The
prohibition or regulation of the sale, possession or use of any substance, or
the employment of any method, for, or in relation to—
(a) the destruction or control of any animal or plant; or
(b) the management or protection of any natural resource.
11 The
issue of flood management, including through the registration of flood maps in
the General Registry Office.
12 The
preparation and content of regional landscape plans, water allocation plans,
landscapes affecting activities control policies and water affecting activities
control policies.
13 The
form or content of any notice imposing a levy under this Act, or the information
that must accompany any such notice.
14 Fixing
fees and charges to be paid—
(a) for the installation, maintenance, use or testing of water meters or
other infrastructure; or
(b) for any service provided by the Minister or a regional landscape
board; or
(c) in relation to the registration or discharge of instruments on the
Landscape Scheme Register; or
(d) in relation to any other matter connected with the administration or
operation of this Act.
15 The
regulation of the payment, recovery, waiving or reduction of fees or
charges.
16 The
procedures associated with any process under this Act.
17 The
payment of money into, or the use of money standing to the credit of, a fund
under this Act.
18 Fixing
expiation fees, not exceeding $750, for alleged offences against the
regulations.
19 Evidence
in proceedings for an offence against the regulations.
20 The
imposition of penalties, not exceeding $15 000, for a contravention of, or
failure to comply with, a regulation.
Schedule 2—Activities
control policies
(1) In this Schedule—
policy means—
(a) a landscapes affecting activities control policy; or
(b) a water affecting activities control policy;
(2) prescribed authority means a regional landscape board
and includes, in relation to Green Adelaide, the Chief Executive.
(3) For the purposes of this Schedule, the Chief Executive may, with the
approval of the Minister, perform or discharge any function or duty of the Green
Adelaide Board under this Schedule.
(1) A prescribed
authority must review any policy applying in relation to its region on a
comprehensive basis at least once in every 10 years.
(2) A prescribed
authority may also review any aspect of a policy applying in relation to its
region at any time.
(3) In undertaking a
review under
subclause (1)
or
(2)
, the prescribed authority will undertake such consultation as the
prescribed authority determines to be reasonable after taking into account any
guidelines specified by the Minister for the purposes of this clause.
(4) The consultation referred to in
subclause (3)
must comply with any requirements prescribed by the regulations.
(5) At the conclusion of a review under
subclause (1)
, the prescribed authority must—
(a) report to the Minister on the outcome of the review; and
(b) make a public statement about the outcome of the review in such
manner, and to such extent, as the prescribed authority thinks
appropriate.
3—Preparation
of a policy or amendment
(1) A prescribed
authority proposing to create or amend a policy must undertake such consultation
as the prescribed authority determines to be reasonable after taking into
account any guidelines specified by the Minister for the purposes of this
clause.
(2) The
consultation referred to in
subclause (1)
must—
(a) in the case of a proposal to create a water affecting activities
control policy—provide for a period of public consultation for at least 2
months from the time that a draft of the policy is released to the public;
and
(b) comply with any other requirements prescribed by the
regulations.
(3) In connection with
subclauses (1)
and
(2)
, consultation on any proposed amendment to a policy may be undertaken as
part of a review of the policy under
clause 2
.
(4) A prescribed
authority must, at the time that it furnishes a proposal to the Minister to
approve a policy, or an amendment to a policy, provide a report on the
consultation undertaken by the prescribed authority for the purposes of this
clause (and this report may be provided as part of the report to the Minister
under
clause 2
).
(5) A report under
subclause (4)
must provide information about any matters raised during consultation and
comply with any requirements prescribed by the regulations.
(6) A prescribed authority may, at the end of the processes referred to
above, propose any amendments to the policy as prescribed authority thinks fit
(and is not required to repeat the processes on account of any change to its
original proposal or proposals).
(1) Subject to this Act, a policy, or an amendment of a policy, does not
have effect unless or until it has been approved by the Minister.
(2) The Minister may,
on receiving a proposal to approve a policy, or the amendment of a policy, (a
policy proposal)—
(a) approve the policy
proposal with or without amendment; or
(b) refer the policy proposal back to the prescribed authority for further
consideration.
(3) The Minister must consult with the prescribed authority before making
an amendment under
subclause (2)(a)
.
(4) If the Minister
refers a policy proposal back to the prescribed authority, the prescribed
authority must take any further action specified by the Minister to reconsider
the policy proposal (and the prescribed authority may take such other action as
the prescribed authority thinks fit), and then the prescribed authority must
refer the policy proposal (with or without amendment) back to the
Minister.
(5) After the
prescribed authority has complied with
subclause (4)
, the Minister may—
(a) approve the policy
proposal with or without amendment; or
(b) refer the
policy proposal back to the prescribed authority again (in which case
subclause (4)
will again apply); or
(c) lay the policy proposal aside.
(6) In a case where
subclause (5)(b)
applies, the Minister may, after the prescribed authority has complied
with
subclause (4)
—
(a) approve the policy proposal with or without amendment; or
(b) lay the policy proposal aside.
(7) If the Minister lays a policy proposal aside, the Minister may give
directions as to what steps should take in the circumstances.
(8) The preceding subclauses do not apply to the amendment of a policy
if—
(a) the amendment is to achieve consistency with a regional landscape plan
or a water allocation plan under this Act, or to achieve consistency with any
other plan, policy, strategy, program or guideline prescribed by the
regulations; or
(b) the amendment is otherwise authorised by the regulations.
(9) A prescribed authority must ensure that up-to-date copies of any
policy that relates to its region are made reasonably available to the
public.
Schedule 3—Classes
of wells in relation to which a permit is not required
1 A well
that is 2.5 metres or less in depth (or such other depth as may be prescribed by
regulation).
(a) that is not used to provide a supply of water or to drain water into,
or to recharge, an underground aquifer; and
(b) in relation to which requirements imposed by or under a Mining Act are
in force.
3 A well
of 1 or more of the following classes if the well is not used to provide a
supply of water from the well:
(a) a trench for the laying of pipes, cables or other equipment in
relation to the supply of water, gas or electricity or the provision of sewerage
or drainage;
(b) a drain that is under the control of the Commonwealth or State
Government or a council;
(c) an excavation for or in relation to a building or for a swimming
pool;
(d) a private mine within the meaning of the
Mining
Act 1971
;
(e) an excavation drilled for engineering or survey purposes if the
excavation is not in a part of the State excluded from the operation of this
paragraph by proclamation and the excavation is not more than 15 metres in
depth;
(f) an excavation for the purposes of a toilet;
(g) an excavation (not exceeding 15 metres in depth) for the installation
of cathodic protection anodes or the measurement of water pressure.
4 (1) A
well drilled to a depth not exceeding the depth of the water table nearest to
the surface for the purpose of obtaining samples of water or other material for
scientific research.
(2) A well comprising an excavation (not exceeding 3 metres in depth) for
the purposes of conducting an underground test or extracting material for
testing.
5 A well
of a class declared by proclamation to be excluded from the operation of
Part 8 Division 2
Subdivision 5
.
6 A
proclamation referred to in this Schedule may be varied or revoked by subsequent
proclamation made by the Governor.
Part 1—Preliminary
In this Schedule—
register means The Water Register.
An application under this Schedule—
(a) must be in a form approved by the Minister; and
(b) must be accompanied by any relevant fee prescribed by the
regulations.
3—Minister's
power to require information
The Minister may, for the purposes of this Schedule, require a person to
provide any information specified by the Minister before performing or
exercising a function or power under this Schedule.
4—Form
of record and management of register
(1) The Minister may record any information under this Schedule in such
manner, and to such extent, as the Minister thinks fit.
(2) The Minister may, in addition to recording any information required
under this Schedule—
(a) record such other information in the register as the Minister thinks
fit;
(b) hold instruments as part of the register.
(3) The Minister may from time to time, as the Minister thinks fit, make
any amendment or alteration to the register to correct or address any error or
omission, to record more up-to-date or accurate information, or to take such
other action that may appear appropriate in the management of the
register.
The Minister may authenticate—
(a) any information on the register; or
(b) any search of the register,
in such manner as the Minister thinks fit.
Part 2—Registration of entitlements issued
under
Part 8
6—Registration
of entitlements
The Minister must ensure that the following information is recorded on the
register with respect to a Schedule 4 entitlement granted or issued under this
Act—
(a) the name and contact details of the holder or holders of the Schedule
4 entitlement;
(b) the water resource to which the Schedule 4 entitlement relates,
including any zone or other relevant information as to its location;
(c) the date on which the Schedule 4 entitlement was issued and, if
relevant, the date on which the Schedule 4 entitlement will expire under the
terms of the Schedule 4 entitlement;
(d) any of the following in relation to the Schedule 4 entitlement
(insofar as may be relevant):
(i) the date of any variation;
(ii) the date of any transfer;
(iii) the date of any surrender or cancellation;
(e) as to any security interest that relates to a water licence or water
access entitlement that is lodged for registration under this
Schedule—
(i) the date and time of registration;
(ii) the name of the person who has the benefit of the security
interest;
(iii) the nature of the interest (determined according to criteria adopted
by the Minister);
(iv) the date and time of any registration of any variation, transfer,
surrender or cancellation of the security interest;
(f) prescribed information as to any caveat registered under
Part 4
;
(g) any other information prescribed by the regulations.
7—Special
arrangement as to transfers
(1) In this clause—
complying application means an application that complies with
the requirements of this Act and the Minister for the purposes of the
registration of a transfer of a Schedule 4 entitlement;
prescribed period means, in relation to the transfer of a
Schedule 4 entitlement, the period commencing on the day on which the Minister
grants approval to the transfer and expiring on the day fixed or determined by
or under the regulations.
(2) A transfer of a
Schedule 4 entitlement will not have any force or effect unless—
(a) the Minister gives effect to the transfer in accordance with a
procedure recognised by the regulations for the purposes of this paragraph;
or
(b) a complying application for the registration of the transfer is lodged
with the Minister within the prescribed period.
(3) If a transfer of a prescribed kind is not lodged within the prescribed
period that applies under
subclause (2)
, the Minister's approval under
Part 8
in relation to the transfer will, by force of this clause, lapse and have
no further effect.
(4) This clause does not apply to the reversion of an interest in a
prescribed entitlement at the end of a transfer made for a limited
period.
Part 3—Registration of security
interests
8—Creation
of security interests
(1) A security interest recognised for the purposes of this Part may only
relate to—
(a) a water licence; or
(b) a water access entitlement, or part of a water access
entitlement.
(2) A security
interest recognised for the purposes of this Part must be created by the
execution of an instrument evidencing the existence of the security interest
over or in respect of the relevant licence or entitlement.
(3) An instrument under
subclause (2)
—
(a) must be in a form approved by the Minister; and
(b) will not have any force or effect for the purposes of this Act unless
or until it is registered on the register.
(4) In addition, the Minister must not register a security interest under
this clause if to do so—
(a) is prevented by anything already recorded on the register;
or
(b) is prevented by the regulations.
(5) When a security interest is registered under this clause, the security
interest—
(a) has the effect prescribed by the regulations; but
(b) does not operate as a transfer of the licence or entitlement to which
it relates.
(1) Subject to this clause, the priority of security interests registered
under this Part will be determined according to dates and times of registration
(so that a security interest registered at an earlier time will have priority
over a security interest registered at a later time).
(2) The priority between registered security interests may be varied by
application by all interested parties made in accordance with the
regulations.
(3) Subject to this clause, a registered security interest has priority
over an unregistered security interest.
(4) A priority established by a preceding subclause—
(a) has effect subject to any caveat of a prescribed kind; and
(b) has effect despite different dates for the execution of instruments or
the provision of any consents (if relevant); and
(c) has effect subject to any exclusions or exceptions prescribed by the
regulations.
(5) This clause is declared to be a Corporations legislation displacement
provision for the purposes of section 5G of the Corporations
Act 2001 of the Commonwealth in relation to the provisions of
Chapters 2K and 5 of that Act.
10—Variation
of registered security interests
(1) The parties to
a security interest registered under this Part may apply to vary the security
interest.
(2) If the security
interest is subject to another security interest that has been subsequently
recorded on the register, the agreement in writing to the variation must be
obtained from the holder of the subsequent security interest.
(3) Subject to
subclause (2)
, an application under
subclause (1)
must be accompanied by a copy of the instrument that evidences or gives
effect to the variation.
(4) Subject to
subclause (5)
, the Minister must, on receipt of an application in accordance with the
requirements of
subclauses (2)
and
(3)
, register the variation.
(5) The Minister
must not register a variation under
subclause (4)
if to do so is prevented by the regulations.
(6) The instrument furnished under
subclause (3)
will be held as part of the register.
(1) A person
holding a prescribed interest with respect to a security interest registered
under this Part may apply to the Minister for a transfer of the prescribed
interest to another person.
(2) An application
under
subclause (1)
must be accompanied by an instrument that evidences or gives effect to the
transfer.
(3) The Minister must, on receipt of an application in accordance with the
requirements of
subclause (2)
, register the relevant transfer.
12—Discharge
of registered interests
(1) The Minister
will, on application by a person holding a registered prescribed interest in a
security interest under this Part, discharge the registration of the security
interest.
(2) The Minister
may also discharge the registration of a prescribed interest in the
circumstances prescribed by the regulations.
13—Enforcement
of security interests
(1) The regulations
may prescribe a scheme for the enforcement of any security interest registered
under this Part.
(2) Without limiting the generality of
subclause (1)
, a scheme prescribed under this clause may—
(a) allow the exercise of a power of sale in prescribed
circumstances;
(b) provide for the application of purchase money obtained by the exercise
of a power of sale;
(c) provide for the transfer, vesting or discharge of any interest in a
water licence or water access entitlement (or part of a water access
entitlement);
(d) provide for the transfer or vesting of a water licence or water access
entitlement (or part of a water access entitlement).
Part 4—Caveats
The regulations may prescribe a scheme for the registration, operation and
discharge of caveats for the purposes of the register.
Part 5—Miscellaneous
(1) A person to whom an interest in a water licence or water allocation
has devolved by operation of law may apply to the Minister to be recorded in the
register as the holder of the relevant interest.
(2) On the death of a person recorded on the register with another person
as joint owners of an interest in a water licence or water allocation, the
survivor may apply to the Minister for a record of the transmission to the
survivor to be made in the register.
16—Recording
monetary consideration
The Minister may require the monetary consideration for any transfer of a
Schedule 4 entitlement to be stated in connection with an application to
register the transfer under this Schedule.
(1) The Minister may, in the Minister's discretion, register an instrument
under this Schedule despite any error in or omission from the instrument, or in
any other instrument or document that may be provided in connection with the
instrument.
(2) The Minister may, in the Minister's discretion, correct an error in or
omission from an instrument in connection with the administration or operation
of this Act.
18—Cancellation
of registration
The Minister may cancel a registration or recording in the
register—
(a) in a case involving fraud; or
(b) in any other prescribed circumstance.
19—Address
for service of notices
The regulations may establish a scheme for the recording of names and
addresses for the purposes of serving notices in connection with the operation
or administration of the register.
The regulations may confer jurisdiction on the ERD Court with respect to
any matter associated with the operation of this Schedule, or with any
instrument registered or recorded (or sought to be registered or recorded) under
this Schedule.
Schedule 5—Related
amendments, repeals and transitional provisions
Part 1—Preliminary
In this Schedule, a provision under a heading referring to the amendment of
a specified Act amends the Act so specified.
Part 2—Amendment of Adelaide Park Lands
Act 2005
2—Amendment
of section 25—Provisions relating to specific land
Section 25(2)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
Part 3—Amendment of Crown Land Management
Act 2009
3—Amendment
of section 12—Management plans
Section 12(2)(b)—delete "regional NRM plan adopted under the
Natural
Resources Management Act 2004
" and substitute:
regional landscape plan and any water allocation plan approved under the
Landscape
South Australia Act 2019
Part 4—Amendment of Development
Act 1993
4—Amendment
of section 24—Council or Minister may amend a Development
Plan
Section 24(1)(fc)—delete the paragraph and substitute:
(fc) where a regional landscape board has requested a council to proceed
with an amendment on the basis of a regional landscape plan approved under the
Landscape
South Australia Act 2019
by the Minister responsible for the administration of that Act and the
council has not acted under section 25 of this Act in relation to the matter
within a period determined by the Minister responsible for the administration of
this Act to be reasonable in the circumstances—by the Minister;
or
Part 5—Amendment of Dog and Cat Management
Act 1995
5—Amendment
of 63—Power to destroy cats
Section 63(1)(d)(ii) —delete subparagraph (ii) and
substitute:
(ii) the person is an authorised officer under the
Landscape
South Australia Act 2019
and the cat is found while the person is acting in the ordinary course of
the person's duties under that Act;
6—Amendment
of section 64D—Notification to owner of dog or cat destroyed etc under
Part
Section 64D(3), definition of prescribed person, paragraph
(d)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
Part 6—Amendment of Dog Fence
Act 1946
7—Amendment
of section 6—Members of board
Section 6(1)(c)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
Part 7—Amendment of Environment Protection
Act 1993
8—Amendment
of section 39—Notice and submissions in respect of applications for
environmental authorisations
Section 39(1a)—delete "section 129 of the
Natural
Resources Management Act 2004
" and substitute:
section 104 of the
Landscape
South Australia Act 2019
9—Amendment
of section 46—Notice and submissions in respect of proposed variations of
conditions
Section 46(1a)—delete "section 129 of the
Natural
Resources Management Act 2004
" and substitute:
section 104 of the
Landscape
South Australia Act 2019
10—Amendment
of section 47—Criteria for grant and conditions of environmental
authorisations
Section 47(1)(j)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
11—Amendment
of section 61—Interpretation
Section 61(1), definition of Water Resources Minister
—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
12—Amendment
of section 62—Appointment of authorised officers by the Water Resources
Minister
Section 62(1)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
13—Amendment
of section 64—Certain matters to be referred to Water Resources
Minister
(1) Section 64(1a)(a)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
(2) Section 64(1a)(b)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
(3) Section 64(9)—delete "NRM board" and substitute:
landscape board
14—Amendment
of section 93—Environment protection orders
(1) Section 93(2a)—delete "section 129 of the
Natural
Resources Management Act 2004
" and substitute:
section 104 of the
Landscape
South Australia Act 2019
(2) Section 93(2a)—delete "
Natural
Resources Management Act 2004
to whom" and substitute:
Landscape
South Australia Act 2019
to whom
15—Amendment
of section 99—Clean-up orders
(1) Section 99(2a)—delete "section 129 of the
Natural
Resources Management Act 2004
" and substitute:
section 104 of the
Landscape
South Australia Act 2019
(2) Section 99(2a)—delete "
Natural
Resources Management Act 2004
to whom" and substitute:
Landscape
South Australia Act 2019
to whom
16—Amendment
of section 103H—Site contamination assessment orders
(1) Section 103H(4)—delete "section 129 of the
Natural
Resources Management Act 2004
" and substitute:
section 104 of the
Landscape
South Australia Act 2019
(2) Section 103H(4)—delete "
Natural
Resources Management Act 2004
to whom" and substitute:
Landscape
South Australia Act 2019
to whom
17—Amendment
of section 103J—Site remediation orders
(1) Section 103J(4)—delete "section 129 of the
Natural
Resources Management Act 2004
" and substitute:
section 104 of the
Landscape
South Australia Act 2019
(2) Section 103J(4)—delete "
Natural
Resources Management Act 2004
to whom" and substitute:
Landscape
South Australia Act 2019
to whom
Part 8—Amendment of Farm Debt Mediation Act
2018
18—Amendment
of section 4—Interpretation
Section 4(1), definition of farm property, paragraph
(d)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
Part 9—Amendment of Fire and Emergency
Services Act 2005
19—Amendment
of section 71—State Bushfire Coordination Committee
Section 71(2)(b)(ixa)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
20—Amendment
of section 72—Establishment of bushfire management
areas
Section 72(2)(b)—delete "Natural Resources Management regions" and
substitute:
landscape management regions
21—Amendment
of section 73—State Bushfire Management Plan
Section 73(7)(b)(v)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
22—Amendment
of section 73A—Bushfire Management Area Plans
Section 73A(7)(b)(v)—delete "regional NRM board" and
substitute:
regional landscape board
Part 10—Amendment of Groundwater (Border
Agreement) Act 1985
23—Amendment
of section 12—Bores for observation and providing
data
Section 12(2)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
Part 11—Amendment of Ground Water
(Qualco-Sunlands) Control Act 2000
24—Amendment
of section 3—Interpretation
(1) Section 3(1), definition of irrigated land, paragraph
(b)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
(2) Section 3(1), definition of irrigated property,
paragraph (a)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
(3) Section 3(1), definition of Minister for Natural Resources
Management—delete the definition
(4) Section 3(1), definition of water licence—delete
"
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
(5) Section 3(6)(b)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
25—Amendment
of section 40—Waterlogging and salinity risk management
allocation
Section 40(4)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
26—Amendment
of section 43—Request for increase in, or for a new, risk management
allocation
Section 43(7)—delete "Minister for Natural Resources Management" and
substitute:
Minister responsible for the administration of the
Landscape
South Australia Act 2019
27—Amendment
of section 62—Permits
Section 62(11), definition of licensed well
driller—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
28—Substitution
of heading to Part 9
Heading to Part 9—delete the heading to Part 9 and
substitute:
Part 9—Operation of Part 8 of the Landscape
South Australia Act 2019 in the Scheme Area
29—Amendment
of section 66—Exclusion of section 102 of the
Landscape South Australia Act
2019
Section 66—delete "Section 127(3) of the
Natural
Resources Management Act 2004
" and substitute:
Section 102(3) of the
Landscape
South Australia Act 2019
30—Amendment
of section 67—Problem of disposal of water not to be considered on
application for water licence etc
(1) Section 67(1)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
(2) Section 67(2)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
31—Amendment
of section 68—Lower levy for certain irrigated
properties
Section 68—delete "section 101 of the
Natural
Resources Management Act 2004
" and substitute:
section 74 of the
Landscape
South Australia Act 2019
32—Amendment
of section 69—Scheme to be acknowledged for levy refund
purposes
Section 69(a)—delete paragraph (a) and substitute:
(a) the relevant regional landscape board is considering an application
for a refund under section 85 of the
Landscape
South Australia Act 2019
from a person in respect of an irrigated property; and
Part 12—Amendment of Irrigation
Act 2009
33—Amendment
of section 3—Interpretation
Section 3(1), definition of water licence—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
34—Amendment
of section 14—Dissolution on application
(1) Section 14(7)(b)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
(2) Section 14(8)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
35—Amendment
of section 15—Dissolution on Minister's initiative
(1) Section 15(6)(b)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
(2) Section 15(7)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
36—Amendment
of section 23—Functions of trusts
Section 23(6)(d)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
37—Amendment
of section 29—Fixing of irrigation rights
Section 29(5)(a)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
38—Amendment
of section 30—Surrender or transfer of water available under irrigation
rights
Section 30(2)(c)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
39—Amendment
of section 32—Transformation of irrigation rights
(1) Section 32(1)(c)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
(2) Section 32(4)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
40—Amendment
of section 33—Trust may determine to devolve water
licence
(1) Section 33(2)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
(2) Section 33(3)(b)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
(3) Section 33(5)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
(4) Section 33(5)—delete "Chapter 7 Part 3 Division 1" and
substitute:
Part 8 Division 3 Subdivision 1
41—Amendment
of section 35—Power to restrict supply or to reduce water made available
by trust
(1) Section 35(1)(e)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
(2) Section 35(3)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
42—Amendment
of section 40—Protection and facilitation of systems
Section 40(4)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
43—Amendment
of section 59—Protection from liability
Section 59(4)(a)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
44—Amendment
of Schedule 1—Transitional provisions
Schedule 1, clause 10(2)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
Part 13—Amendment of Local Government
Act 1999
45—Amendment
of Schedule 1A—Implementation of Stormwater Management
Agreement
(1) Schedule 1A clause 1(1), definition of regional NRM
board—delete the definition and substitute:
regional landscape board means a regional landscape board
within the meaning of the
Landscape
South Australia Act 2019
;
(2) Schedule 1A clause 16(2)(d)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
(3) Schedule 1A clause 16(3)(b)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
(4) Schedule 1A clause 17(1)(b)—delete "NRM board" and
substitute:
landscape board
(5) Schedule 1A clause 17(2)—delete "NRM board" and
substitute:
landscape board
(6) Schedule 1A clause 18(1)—delete "NRM board" and
substitute:
landscape board
(7) Schedule 1A clause 19(2)(a)—delete "NRM board" and
substitute:
landscape board
(8) Schedule 1A clause 21(3)(b)—delete "NRM boards" and
substitute:
landscape boards
(9) Schedule 1A clause 24(4)—delete subclause (4) and
substitute:
(4) In this clause—
lake has the same meaning as in section 28 of the
Landscape
South Australia Act 2019
;
watercourse has the same meaning as in the
Landscape
South Australia Act 2019
.
Part 14—Amendment of Marine Parks
Act 2007
46—Amendment
of section 13—General nature and content of management
plans
Section 13(2)(c)—delete paragraph (c) and substitute:
(c) the provisions of the State Landscape Strategy and any relevant
regional landscape plan under the
Landscape
South Australia Act 2019
; and
Part 15—Amendment of Mining
Act 1971
47—Amendment
of section 10B—Interaction with other legislation
Section 10B(c)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
48—Amendment
of section 70A—Object of Part
Section 70A(2)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
Part 16—Amendment of National Parks and
Wildlife Act 1972
49—Amendment
of section 75A—Defence
Section 75A(b)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
Part 17—Amendment of Native Vegetation
Act 1991
50—Amendment
of section 3—Interpretation
(1) Section 3(1)—after the definition of land
insert:
Landscape Management Region means a landscape management
region established under the
Landscape
South Australia Act 2019
;
(2) Section 3(1), definition of NRM region—delete the
definition
51—Amendment
of section 8—Membership of the Council
Section 8(1)(d)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
52—Amendment
of section 14—Functions of the Council
Section 14(2)(c)—delete paragraph (c) and substitute:
(c) must take into account the provisions of the State Landscape Strategy,
and any other relevant regional landscape plan, under the
Landscape
South Australia Act 2019
,
53—Amendment
of section 25—Guidelines for the application of assistance and the
management of native vegetation
(1) Section 25(2)(b)—delete paragraph (b) and substitute:
(b) submit the guidelines for comment by the regional landscape board for
the landscape management region to which the guidelines relate; and
(2) Section 25(5c)—delete "NRM region" and substitute:
landscape management region
54—Amendment
of section 29—Provisions relating to consent
Section 29(5)—delete subsection (5) and substitute:
(5) The Council must, before giving its consent, consult the regional
landscape board for the landscape management region where the native vegetation
is situated and have regard to the board's recommendations (if any) in relation
to the application.
55—Amendment
of Schedule 1—Principles of native vegetation
clearance
Schedule 1 clause 1(k)(ii)—delete subparagraph (ii) and
substitute:
(ii) the regional landscape board for the landscape management region
where the land is situated has, as part of its regional landscape plan under the
Landscape
South Australia Act 2019
, assessed—
(A) the capability and preferred uses of the land; and
(B) the condition of the land; and
Part 18—Amendment of Parliamentary
Committees Act 1991
56—Amendment
of section 15L—Functions of Committee
Section 15L(1)(a)(iv)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
Part 19—Amendment of Pastoral Land
Management and Conservation Act 1989
57—Amendment
of section 5—Duty of the Minister and the Board
Section 5(b)—delete "regional NRM boards" and substitute:
regional landscape boards
58—Amendment
of section 22—Conditions of pastoral leases
Section 22(1)(a)(v)(A)—delete subsubparagraph (A) and
substitute:
(A) the
Landscape
South Australia Act 2019
; and
59—Amendment
of section 23—Rent
Section 23(2)(a)(iv)—delete "NRM board" and substitute:
landscape board
60—Amendment
of section 41—Property plans
(1) Section 41(9)—delete "NRM board" and substitute:
landscape board
(2) Section 41(9a)—delete "but for section 129 of the
Natural
Resources Management Act 2004
" and substitute:
but for section 104 of the
Landscape
South Australia Act 2019
61—Amendment
of section 43—Notices to destock or take other action
Section 43(2a)—delete "but for section 129 of the
Natural
Resources Management Act 2004
" and substitute:
but for section 104 of the
Landscape
South Australia Act 2019
62—Amendment
of section 45—Establishment of public access routes and stock
routes
Section 45(5)(c)(ii)—delete "NRM board" and substitute:
landscape board
63—Amendment
of section 59—Right to take water
Section 59(5)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
Part 20—Amendment of Petroleum and
Geothermal Energy Act 2000
64—Amendment
of section 6A—Interaction with other legislation
Section 6A(c)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
65—Amendment
of section 95—Objects
Section 95(2)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
Part 21—Amendment of Renmark Irrigation
Trust Act 2009
66—Amendment
of section 3—Interpretation
Section 3(1), definition of water licence—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
67—Amendment
of section 24—Functions of trust
Section 24(5)(d)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
68—Amendment
of section 30—Fixing of irrigation rights
Section 30(5)(a)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
69—Amendment
of section 31—Surrender or transfer of water available under irrigation
rights
Section 31(2)(c)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
70—Amendment
of section 33—Transformation of irrigation rights
(1) Section 33(1)(c)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
(2) Section 33(4)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
71—Amendment
of section 34—Trust may determine to devolve water
licence
(1) Section 34(2)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
(2) Section 34(3)(b)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
(3) Section 34(5)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
(4) Section 34(5)—delete "Chapter 7 Part 3 Division 1" and
substitute:
Part 8 Division 3 Subdivision 1
72—Amendment
of section 36—Power to restrict supply or to reduce water made
available
(1) Section 36(1)(e)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
(2) Section 36(3)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
73—Amendment
of section 41—Protection and facilitation of systems
Section 41(4)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
74—Amendment
of section 57—Dissolution on application
(1) Section 57(7)(b)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
(2) Section 57(8)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
75—Amendment
of section 58—Dissolution on Minister's initiative
(1) Section 58(6)(b)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
(2) Section 58(7)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
76—Amendment
of section 64—Protection from liability
Section 64(4)(a)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
Part 22—Amendment of Residential Parks
Act 2007
77—Amendment
of section 3—Interpretation
Section 3(1), definition of statutory charges, paragraph
(e)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
Part 23—Amendment of Residential Tenancies
Act 1995
78—Amendment
of section 3—Interpretation
Section 3(1), definition of statutory charges, paragraph
(e)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
Part 24—Amendment of River Murray
Act 2003
79—Amendment
of section 5—Interaction with other Acts
Section 5(2)(o)—delete paragraph (o) and substitute:
(o)
Landscape
South Australia Act 2019
;
80—Amendment
of section 18—Management agreements
Section 18(2)(i)—delete paragraph (i) and substitute:
(i) provide for a remission or exemption in respect of a levy under Part 5
Division 2 of the
Landscape
South Australia Act 2019
81—Amendment
of section 21—Implementation Strategy
Section 21(2)(c)—delete "State Natural Resources Management Plan" and
substitute:
State Landscape Strategy
Part 25—Amendment of Safe Drinking Water
Act 2011
82—Amendment
of section 3—Interpretation
Section 3(1), definition of water resource—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
Part 26—Amendment of South Eastern Water
Conservation and Drainage Act 1992
83—Amendment
of section 17—Functions of Board
Section 17(3)—delete "NRM plan under the
Natural
Resources Management Act 2004
" and substitute:
regional landscape plan or water allocation plan under the
Landscape
South Australia Act 2019
Part 27—Amendment of Subordinate
Legislation Act 1978
84—Amendment
of section 16A—Regulations to which this Part applies
(1) Section 16A(e)—delete "
Natural
Resources Management Act 2004
" and substitute:
Landscape
South Australia Act 2019
(2) Section 16A(ea)—delete paragraph (ea)
Part 28—Amendment of Water Industry
Act 2012
85—Amendment
of section 86P—Principles to be taken into account
Section 86P(3)(c)(i)—delete subparagraph (i) and
substitute:
(i) the
Landscape
South Australia Act 2019
; or
Part 29—Repeal of Natural Resources
Management Act 2004
The
Natural
Resources Management Act 2004
is repealed.
Part 30—Transitional and other
provisions
Division 1—Preliminary
In this Part—
designated day means a day appointed by proclamation as the
designated day for the purposes of the provision in which the term is
used;
NRM authority has the same meaning as in the
Natural
Resources Management Act 2004
.
Division 2—Regions and
boards
88—Establishment
of regions and boards
(1) This clause applies in relation to the first regions and boards
established under this Act.
(2) Subject to this clause, the establishment of the regions and boards,
other than the Green Adelaide Board or a board within the ambit of
section 15(3)
of this Act, will initially take effect so as to allow elections to be
held, for the purposes of
section 15(1)(b)
, under
Part 2 Division 2
Subdivision 3
.
(3) In relation to the
Green Adelaide Region, from the designated day—
(a) the Green Adelaide Region will be taken to have been established under
section 22 of the repealed Act and the area of Green Adelaide will be taken to
have been excised from the NRM region in which the area was located immediately
before the designated day; and
(b) the Green Adelaide Board will be taken to be established as a regional
NRM board under the repealed Act for the Green Adelaide Region (and its members
will take office under the repealed Act without any other processes applying
and, in acting as a regional NRM board, all relevant provisions of the repealed
Act (other than sections 23, 25 and 26, and any section prescribed under
subclause (7)(d)
) will apply),
and, on the repeal of section 22 of the repealed Act, Green Adelaide, and
the Green Adelaide Board, will continue under this Act.
(4) In addition, the Minister may, by notice in the Gazette, assign any
function of the Green Adelaide Board acting as a regional NRM Board under this
clause to any other regional NRM board under the repealed Act (and any such
notice will have effect according to its terms).
(5) In connection with the operation of
subclause (3)
, the Minister may, by notice in the Gazette, make provision for any
transitional or consequential matter, including by providing that any property,
assets, rights or liabilities of any regional NRM board specified in the notice
will vest in or attach to—
(a) the Green Adelaide Board; or
(b) the Crown; or
(c) a Minister; or
(d) any other agency or instrumentality of the Crown; or
(e) with the consent of the authority or person—another authority or
person,
specified in the notice (and any such notice will have effect in accordance
with its terms and despite the provisions of any other law or
instrument).
(6) In relation to a
board within the ambit of
section 15(3)
of this Act and specified by the Minister by notice in the Gazette for the
purposes of this clause, from the designated day—
(a) members of the
board will continue, or will take office, as the case may be, as the members of
a regional NRM board designated by the Minister for the purposes of this
subclause (in relation to a NRM region designated by the Minister), and section
26(1a) of the repealed Act will not apply in relation to any such member (and
its members will take office under the repealed Act without any other processes
applying); and
(b) the terms of office of the persons holding office under section 25 of
the repealed Act immediately before the designated day in relation to the
regional NRM board and not appointed to the board under
section 15(3)
of this Act (and not within the ambit of
paragraph (a)
) will be taken to come to an end under that Act by force of this
provision,
and, on the repeal of section 22 of the repealed Act the board, as
constituted as a regional landscape board, will continue under this
Act.
(7) In connection with
subclauses (3)
and
(6)
—
(a) the presiding member of the regional landscape board (including Green
Adelaide) will be the presiding member of the regional NRM board; and
(b) the term of office of a person appointed as a member of Green
Adelaide, or as a member of a board under
subclause (6)
, will be a term determined by the Minister (which may be a term which
exceeds a term that would otherwise apply under
section 18(2)
or
(3)
of this Act, subject to the operation of
section 18(5)
or
(6)
of this Act); and
(c) the Minister may make any determination as to any other terms or
conditions of appointment that will apply in relation to a member of a board;
and
(d) any other provision
of the repealed Act prescribed by the regulations will not apply in relation to
Green Adelaide or a board under
subclause (6)
; and
(e) the Green Adelaide Board, and any regional landscape board specified
under
subclause (6)
, will not commence full operations under the other provisions of this Act
until the day designated under
subclause (9)
.
(8) In relation to any
other board established under this Act—
(a) subject to
subclause (10)
, a member—
(i) appointed by the Minister under
section 15(1)(a)
; or
(ii) elected by eligible electors,
will take office on a day determined by the Minister (rather than, if
relevant, under
section 17(7)
); and
(b) the term of office of a member will be a term determined by the
Minister (which may be a term that is less than, or which exceeds, a term that
would otherwise apply under
section 18(2)
of this Act, subject to the operation of
section 18(5)
or
(6)
of this Act).
(9) Subject to a
preceding subclause, the first regions established under this Act will take full
effect on the designated day.
(10) Despite a
preceding subclause, the Minister may, in relation to a particular regional
landscape board, appoint a person as the sole member of the regional landscape
board before the day determined by the Minister in relation to that board under
subclause (8)
.
(11) If an appointment is made under
subclause (10)
, until the day determined by the Minister in relation to that board under
subclause (8)
—
(a) the person will constitute the regional landscape board (as if that
the board were constituted as a corporation sole); and
(b)
section 22
of this Act will not apply; and
(c) in the event of a casual vacancy in the appointment, the Minister may
make another appointment under that subclause.
(1) Despite any
provision in the repealed Act, the Minister may, in relation to a particular
regional NRM board, by notice in the Gazette—
(a) appoint a person as the sole member of the board; or
(b) appoint 2 or more persons as the only members of the board.
(2) If an appointment is made under
subclause (1)
, until the designated day—
(a) the person or persons so appointed will constitute the regional NRM
board (with the board being taken, if relevant, as being a board constituted as
a corporation sole); and
(b) section 25, and clause 2 of Schedule 1, of the repealed Act will not
apply; and
(c) any other section of the repealed Act prescribed by the regulations
will not apply in relation to the regional NRM board; and
(d) in the event of a casual vacancy in the appointment, the Minister may
make another appointment under that subclause; and
(e) the Minister may at any time remove from office a person who has been
appointed by the Minister under that subclause (for any reason determined by the
Minister and without adopting any process before taking action under this
provision).
(3) In addition, if or when an appointment or appointments are initially
made under
subclause (1)
, all members of the regional NRM board holding office immediately before
the appointment or appointments take effect will cease to hold office by force
of this provision.
(4) Despite any provision in the repealed Act, the Minister may, by notice
in the Gazette (and without adopting any other process), extend the term of a
member of a regional NRM board on terms and conditions determined by the
Minister (and any such notice will have effect according to its
terms).
Division 3—NRM entities
(1) The Minister may, by notice in the Gazette, provide that any property,
assets, rights or liabilities of any NRM authority specified in the notice will
vest in or attached to—
(a) a regional landscape board; or
(b) the Crown; or
(c) a Minister; or
(d) any other agency or instrumentality of the Crown; or
(e) with the consent of the authority or person—any other authority
or person,
specified in the notice (and any such notice will have effect in accordance
with its terms and despite the provisions of any other law or
instrument).
(2) If an NRM authority is dissolved on account of the repeal of the
repealed Act and no other provision has been made for the vesting of all (or all
remaining) assets, rights or liabilities of the NRM authority, those assets,
rights and liabilities will vest in the Minister.
(3) Nothing in this clause limits the operation of
clause 88
.
The Governor may, by proclamation, declare that a reference in an Act or
instrument (or an instrument of a specified class) to an NRM authority (or an
NRM authority of a specified class) is to be taken to be a reference to the
Minister, a regional landscape board or any other person or body (or any other
person or body of a specified class) specified in the proclamation.
Division 4—Plans
(1) Subject to any
other provision made by or under this Part, a regional NRM plan in operation
immediately before the designated day will continue to apply in relation to the
area to which it relates under the repealed Act, and be taken to be a regional
landscape plan under this Act, until is it replaced by a new regional landscape
plan or plans under this Act.
(2) A regional NRM plan under
subclause (1)
may be adopted and applied by a regional landscape board under this Act to
the extent that the plan applies in relation to the board's region.
A business plan prepared or adopted by a regional NRM board under the
repealed Act (and having effect immediately before the designated day) may be
adopted and applied by a regional landscape board to the extent that the
business plan relates to the region of the regional landscape board (and any
such business plan may then be adjusted by a regional landscape board as the
board thinks fit).
Division 5—Levies, penalties, interest and
other fees
(1) In this clause—
transitional financial year means the 2020/2021 financial
year, the 2021/2022 financial year or the 2022/2023 financial year.
(2) The scheme established by Chapter 5 of the repealed Act (and
accordingly the operation of that Chapter) will continue to apply in relation to
the 2019/2020 financial year, subject to any modifications to that Chapter that
have effect by virtue of the provision of this Part or that may be prescribed by
the regulations (and, subject to any provision made by this Part or the
regulations, the corresponding provisions of this Act will not apply in relation
to that financial year).
(3) In relation to a
transitional financial year—
(a) the annual business plan of a regional landscape board does not need
to be consistent with a regional landscape plan insofar as that plan is a
regional NRM plan that has been applied and adopted under this Part;
and
(b) if a transitional scheme established by the Minister under
subclause (4)
applies to or in respect of the annual business plan of a regional
landscape board,
subsections (4)
to
(10)
of
section 49
of this Act will not apply; and
(c) the annual business
plan for a regional landscape board requires the approval of the Minister if a
transitional scheme established by the Minister under
subclause (4)
applies to or in respect of the plan.
(4) The Minister may,
in relation to 1 or more of the transitional financial years, establish a scheme
that modifies the requirements of
section 49
and
Part 5
of this Act so that any amounts or contributions under those provisions
are adjusted—
(a) to take into account the constitution of new regions under this Act
(to replace the regions under the repealed Act); and
(b) to provide for a staged implementation of the polices reflected in
this Act (when compared to the policies reflected in the repealed Act);
and
(c) to provide for any other related matter of a transitional
nature.
(5) If a scheme under
subclause (4)
modifies the requirements of section 49 and Part 5 in relation to amounts
or contributions (or proposed amounts or contributions) by councils, the
Minister must take reasonable steps to consult with the LGA in connection with
the development of the scheme.
(6) A scheme under
subclause (4)
—
(a) must be published in the Gazette (and may be varied by the Minister
from time to time by a notice published by the Minister in the Gazette);
and
(b) will have effect according to its terms (and despite any other
provision of this Act or the repealed Act).
95—Outstanding
levies, penalties, interest or other fees
Any—
(a) levy or penalty declared under the repealed Act; or
(b) interest payable under the repealed Act (including interest that may
be declared on account of any default under the repealed Act); or
(c) fee payable under the repealed Act; or
(d) other amount or liability under the repealed Act, or the Water
Resources Act 1997, prescribed by the regulations for the purposes of this
clause,
will continue to apply, or be able to be imposed or enforced, under the
repealed Act as if those Acts had not been repealed.
Division 6—Funds
(1) Any money in the
NRM Fund immediately before the designated day will be paid into the Landscape
Administration Fund and may be applied—
(a) for the purposes for which it could be applied before the designated
day; or
(b) for any purpose connected with the operation of this Act.
(2) Subject to
subclause (3)
—
(a) any money payable to the NRM Fund under a provision of the repealed
Act; or
(b) any money payable under, or relating to, the Water Resources Act
1997,
will, on and from the designated day, be payable to the Landscape
Administration Fund (despite any provision made by the repealed Act or the
Water Resources Act 1997), and then applied for a purpose applying under
subclause (1)
.
(3) A percentage of
money that would otherwise be payable to a board in relation to the 2019/2020
financial year for contributions received from constituent councils in respect
of the region that constitutes the Green Adelaide Region, being a percentage
determined by the Minister in respect of a share of those contributions
determined by the Minister, will be payable into the Landscape Priorities Fund
(and applied by the Minister under
section 91
of this Act).
(4)
Section 91(6)
of this Act does not apply until the Minister has prepared the State
Landscape Strategy under
Part 3
.
Division 7—Water
(1) Any regulation in force under section 125 of the repealed Act
immediately before the designated day (including such a regulation in force by
virtue of the operation of clause 54(2) of Schedule 4 of that Act) will continue
to have force and effect as if it were a regulation made under
section 99
of this Act (and may be varied or revoked by the Governor under this
Act).
(2) A notice published by the Minister under section 125(5) of the
repealed Act (and having effect immediately before the designated day) will be
taken to have effect for the purposes of
section 99
of this Act.
(1) Subject to any
other provision made by or under this Part, a water allocation plan in operation
under the repealed Act immediately before the designated day will continue to
apply in relation to the relevant prescribed water resource, and will be taken
to be a water allocation plan under this Act (and may be amended or substituted
under this Act).
(2) A water allocation plan under
subclause (1)
may be adopted or applied by a regional landscape board under this Act to
the extent that the plan applies in relation to the board's region.
(1) A provision in a
regional NRM plan under
clause 92
that has effect for the purposes of section 127 of the repealed Act will
continue to have effect under this Act as if
section 102
of this Act included a reference to such a regional NRM plan.
(2) The Minister may
amend a water allocation plan or approve a water affecting activities control
policy, by notice in the Gazette, without the application or adoption of any
other procedures under this Act for amendment or approval if the Minister
certifies, in the notice, that the amendment or policy (as the case may be) is
making provision in relation to a water affecting activity in the same terms, or
substantially the same terms, as any provision applying under
subclause (1)
.
(3) The Minister may, as part of a notice under
subclause (2)
, make a consequential amendment or amendments to a regional NRM plan under
subclause (1)
to take into account the operation of the notice under
subclause (2)
.
100—Continuation
of authorisations, notices and other measures
(1) An authorisation in force under section 128 of the repealed Act (and
in effect immediately before the designated day) will continue to have effect as
if it had been issued under the corresponding section of this Act.
(2) A notice served on a person before the designated day under section
130, 131 or 145 of the repealed Act (and still having effect immediately before
the designated day) will continue to have effect as if it had been issued under
the corresponding section of this Act.
(3) A notice in force under section 132 of the repealed Act (and still in
effect immediately before the designated day) will continue to have effect as if
it had been issued under the corresponding section of this Act.
(4) A water management authorisation, forest water licence, well driller's
licence or permit in force under Chapter 7 of the repealed Act (and in effect
immediately before the designated day) will continue to have effect as if it had
been issued under the corresponding sections of this Act (and any application or
process made or commenced under the repealed Act before the designated day and
not finally determined before that day, or any action or proceeding brought or
capable of being brought, in relation to such an authorisation, licence or
permit, may be dealt with or completed, or brought, under this Act).
(5) An entitlement that exists under section 164N of the repealed Act
immediately before the designated day will continue to have effect as if it were
an entitlement under the corresponding section of this Act.
(6) A scheme established under section 164O of the repealed Act (and still
in effect immediately before the designated day) will continue to have effect as
if it had been established under the corresponding section of this
Act.
(7) A notice under
section 155
of this Act may be issued in relation to any act or omission that could be
the subject of a notice under section 164P of the repealed Act before the
designated day.
(8) A reservation of water under Chapter 7 Part 4 of the repealed Act and
in effect immediately before the designated day may continue to have effect as
if it had been established under the corresponding section of this
Act.
(9) If a regulation is in force under section 169 of the repealed Act
immediately before the designated day, the Governor may make a regulation in the
same, or substantially the same, terms under
section 161
of this Act without the requirement for the Minister to take any step, or
to consider any matter, referred to in
section 161(5)
.
(10) A declaration under section 169B of the repealed Act, or any other
provision made by the Minister under that section, will continue to have effect
as if had been made under the corresponding section of this Act (and any such
declaration may be varied or revoked under this Act).
101—Bundled
water allocation plans and water licences
(1) Until the designated day for a prescribed water
resource—
(a) a water licence granted in respect of the water resource need not make
express provision for a water access entitlement in the manner contemplated by
section 119(2)
of this Act; and
(b) a water licence granted in respect of the water resource may include a
quantity of water determined under the provisions of the relevant water
allocation plan or
section 153
of this Act; and
(c) the holder of a water licence granted in respect of the water resource
is entitled to obtain an allocation equal to the relevant amount provided in the
licence (subject to the operation of any other provision of this clause);
and
(d) the holder of a water licence granted in respect of the water
resource—
(i) may proceed to construct, maintain or operate any works for the
purposes of taking water or surface water (as the case may be) under the terms
of the licence without the authority of a water resource works approval;
and
(ii) may use water or surface water (as the case may be) under the terms
of the licence without the authority of a site use approval,
but the licence may be subject to conditions that relate to how water is
taken or the purposes for which water is taken; and
(e) a water levy under
section 74
of this Act may be declared with respect to the right to take water, or
with respect to the water taken, or both, rather than with respect to an
allocation of water under the terms of a water access entitlement or the
allocation of water under the terms of a water access entitlement (see
section 74(5)
of this Act); and
(f) a water levy declared with respect to the right to take water will be
a Category A levy for the purposes of
section 75
of this Act and a water levy declared with respect to water taken will be
a Category B levy for the purposes of
section 75
of this Act.
(2) Until the designated day for a prescribed water resource,
section 102(5)
will not apply in respect of the water resource.
(3) For the purposes of this clause, different designated days may be
appointed for different prescribed water resources.
(4) A reference in this clause to a water licence granted in respect of a
water resource will be taken to include a water licence in force under Chapter 7
of the repealed Act that continues to have effect under the provisions of this
Part.
(5) This clause does not apply in relation to—
(a) the River Murray prescribed watercourse; or
(b) the Southern Basins and the Musgrave Prescribed Wells Areas;
or
(c) any other prescribed water resource prescribed by the regulations for
the purposes of this subclause.
(1) The Minister may,
by notice in the Gazette, constitute a mortgage or charge over a water
entitlement registered under this Act immediately before the designated day to a
security interest registered on The Water Register under
Schedule 4
of this Act.
(2) A notice under
subclause (1)
may be expressed to apply to specified classes of interests.
(3) In this clause—
water entitlement means a water licence or a water allocation
(or part of a water allocation).
Division 8—Miscellaneous
A policy applying under section 10(1)(b) of the repealed Act (and in effect
immediately before the designated day) will continue to have effect as if it
were a policy under
section 9(1)(d)
of this Act.
(1) The State
Natural Resources Management Plan, as in force immediately before the
designated day, will continue in force and effect and will be taken to be the
State Landscape Strategy until the Minister prepares the State Landscape
Strategy required under
Part 3
.
(2) The Minister may
amend the State Landscape Strategy, as applying under
subclause (1)
, at any time, and to such extent, as the Minister thinks fit (and without
adopting or applying any process that would otherwise apply under this
Act).
(3) Despite any other provision of this Act, a plan under this Act does
not need to be consistent with the State Landscape Strategy, as applying under
subclause (1)
(or as amended under
subclause (2)
).
105—Minister
may make provision for assignment of responsibilities and modifications of
plans
(1) The Minister may
assign responsibilities in relation to any plan or policy, or other functions,
under this Part, or any other provision of this Act, to a particular regional
landscape board, or to a designated entity under
section 50
, to address any situation that is relevant to the adoption, application,
operation or approval of any plan or policy under this Act.
(2) Without limiting
subclause (1)
(or any other provision of this Part), the Minister may, by notice in the
Gazette, modify 1 or more regional NRM plans or water allocation
plans—
(a) to address a situation where the boundaries of an NRM region under the
repealed Act do not correspond with the boundaries of a landscape management
region under this Act; or
(b) to address any other situation that is, in the opinion of the
Minister—
(i) relevant to the transition to regional landscape boards and landscape
management regions; or
(ii) relevant to the fact that regional NRM plans and water allocation
plans under the repealed Act are to have effect as regional landscape plans and
water allocation plans under this Act.
106—Adopting
acts or decisions
(1) A prescribed authority may, as the prescribed authority thinks
fit—
(a) adopt any decision or determination of an NRM authority under the
repealed Act (including in connection with a matter provided under this Part);
and
(b) deal with any matter arising under the repealed Act that may be, or
may become, relevant to the operation of this Act; and
(c) adopt or continue any process commenced under the repealed Act in
connection with the operation of this Part or for the purposes of this Act;
and
(d) take any other step or make any other determination authorised by the
regulations, or that is reasonably necessary to promote or ensure a smooth
transition on account of the repeal of the
Natural
Resources Management Act 2004
and its substitution by this Act.
(2) In this clause—
prescribed authority means—
(a) a regional landscape board; or
(b) the Chief Executive (including the Chief Executive acting on behalf of
the Green Adelaide Board).
(1) The Registrar-General or another authority required or authorised by a
law of the State to register or record transactions affecting assets, rights or
liabilities, or documents relating to such transactions, must, on application
under this clause, register or record in an appropriate manner a vesting under
this Part.
(2) No fee is payable in respect of a vesting under this Part.
Nothing done under this Part—
(a) constitutes a breach of, or default under, an Act or other law;
or
(b) constitutes a breach of, or default under, a contract, agreement,
understanding or undertaking; or
(c) constitutes a breach of a duty of confidence (whether arising by
contract, in equity or by custom or in any other way); or
(d) constitutes a civil or criminal wrong; or
(e) terminates an agreement or obligation or fulfils any condition that
allows a person to terminate an agreement or obligation, or gives rise to any
other right or remedy; or
(f) releases a surety or other obligee wholly or in part from an
obligation.
109—Continuation
of other plans, notices, permits and orders
(1) A requirement to prepare an action plan—
(a) imposed by the Minister under section 123 of the repealed Act before
the designated day; or
(b) imposed by an authorised officer under section 183 of the repealed Act
before the designated day,
will operate and have effect, and may be enforced, under the repealed Act
as if this Act had not been enacted.
(2) An action plan under section 123 or 183 of the repealed Act will
continue to operate and have effect, and must be implemented, under the repealed
Act as if this Act had not been enacted.
(3) An approved proposal under section 186 of the repealed Act (and in
effect immediately before the designated day) will continue to have effect as if
it had been issued under the corresponding section of this Act.
(4) A permit issued under section 188 of the repealed Act (and in effect
immediately before the designated day) will continue to have effect under the
corresponding section of this Act.
(5) An order or authorisation issued under Chapter 9 Part 1 Division 1 of
the repealed Act (and still having effect immediately before the designated day)
will continue to have effect as if it had been issued under the corresponding
section of this Act.
(6) Any action commenced under section 194 or 196 of the repealed Act (and
still being undertaken immediately before the designated day) may continue under
the repealed Act as if this Act had not been enacted.
(7) A registration under section 199 of the repealed Act (and in effect
immediately before the designated day) will continue to have effect under the
corresponding section of this Act.
(8) If an authorised officer is holding an animal under the repealed Act
immediately before the designated day, the authorised officer may continue to
hold that animal, and may take any action in relation to that animal, as if this
Act had not been enacted.
(1) A person who was an authorised officer under the repealed Act
immediately before the designated day will be taken to have been appointed as an
authorised officer under this Act.
(2) Subject to
subclause (3)
, any condition applying under the repealed Act with respect to an
authorised officer immediately before the designated day will apply as a
condition under this Act.
(3) The Minister may,
by instrument in writing, vary or revoke a condition that would otherwise apply
by virtue of the operation of
subclause (2)
, or apply new conditions.
111—Constitution
of Environment, Resources and Development Court
A commissioner of the ERD Court who, before the designated day, had been
designated by the Governor under the repealed Act as a person who has expertise
in a field that is relevant to the jurisdiction conferred on the Court by the
repealed Act will be taken to be a commissioner who has been specifically
designated by the Governor under this Act as a person who has expertise in a
field that is relevant to the jurisdiction conferred on the Court by this
Act.
112—References
to Planning and Design Code
A reference in this Act to the Planning and Design Code will be taken to
include a reference to a Development Plan under the
Development
Act 1993
.
113—NRM
Register and The Water Register
(1) The NRM Register under the repealed Act (as constituted immediately
before the designated day) continues as the Landscape Scheme Register under this
Act.
(2) The Water Register (as constituted immediately before the designated
day) continues under this Act.
(1) The Governor may,
by regulation, make additional provisions of a saving or transitional nature
consequent on the enactment of this Act.
(2) A provision of a
regulation made under
subclause (1)
may, if the regulation so provides, take effect from the commencement of
this Act or from a later day.
(3) To the extent to which a provision takes effect under
subclause (2)
from a day earlier than the day of the regulation's publication in the
Gazette, the provision does not operate to the disadvantage of a person
by—
(a) decreasing the person's rights; or
(b) imposing liabilities on the person.