Victorian Current Acts Victorian Current ActsS. 218(1) amended by No. 62/1995 s. 36(1).
(1) Subject to subsection (2), the Minister may declare any area of land along which water flows (whether continuously, intermittently or occasionally) or any designated works referred to in section 188(1) to be a drainage course.
(2) The Minister must not make a declaration unless—
(a) an application has been made to the Minister by—
(i) any Authority or public statutory body that is responsible for any drainage or related functions in that vicinity; or
S. 218(2)(a)(ii) amended by No. 50/1992 s. 10(Sch. item 11.27), repealed by No. 65/1995 s. 22(k).
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(b) the applicant has—
(i) published, in the Government Gazette and in a newspaper circulating generally in the area concerned, a notice stating the terms of the application and advising that submissions are invited within 6 weeks after the publication of the notice; and
(ii) sent a copy of the notice to any relevant council, to the owner or occupier of any land in the vicinity and to the Minister for the time being administering the Conservation, Forests and Lands Act 1987 ; and
(c) the Minister has considered any submissions received within 6 weeks after publication of the notice.
(3) A declaration under subsection (1) must be made by notice in writing which—
(a) is published in the Government Gazette; and
(b) is published in a newspaper circulating generally in the area in which the drainage course is located; and
(c) adequately describes the drainage course; and
(d) specifies the Authority or public statutory body having the management and control of the drainage course.
(4) The Minister must—
S. 218(4)(a) amended by No. 62/1995 s. 36(2).
(a) send a copy of the notice to every Authority or public statutory body that may have an interest in the land or works declared to be a drainage course; and
S. 218(4)(b) amended by Nos 46/1998
s. 7(Sch. 1), 85/2006 s. 93.
(b) notify the Secretary to the Department and all responsible authorities under the Planning and Environment Act 1987 that are likely to be affected by the declaration.
(5) The Minister may, by notice in writing in accordance with subsection (3), revoke a declaration, wholly or in part—
(a) on application by any person or body referred to in subsection (2)(a); and
(b) if the Minister is satisfied that the whole or any part of the area subject to the declaration should no longer be subject to it.
(6) Section 207 applies to a declaration under subsection (1) or a revocation under subsection (5) as if it were a declaration under section 203.
(7) The Authority or public statutory body must
act in accordance with a management plan for the drainage course that is
approved by the Minister, and a responsible authority referred to
in subsection (4) must, in relation to any planning scheme, have regard
to the particulars of the declaration.
(8) The Authority or public statutory body having the management and control of the drainage course may at any time by notice in writing to the owner or occupier of any land in the drainage course (or, with the consent of the Minister, to any other public statutory body) require the owner or occupier or the other public statutory body—
(a) to remove anything obstructing or interfering with the flow of water in the drainage course; or
(b) to carry out any works that are reasonably necessary to control that flow; or
(c) to maintain any structure or works in the drainage course in such a condition so as not to obstruct or interfere with that flow.
S. 218(9) substituted by No.
52/1998
s. 311(Sch. 1 item 105.29).
(9) A person whose interests are affected by a decision of the Authority or public statutory body to make a requirement under subsection (8) may apply to the Tribunal for review of the decision.
S. 218(9A) inserted by No.
52/1998
s. 311(Sch. 1 item 105.29).
(9A) An application for review must be made within 28 days after the later of—
(a) the day on which the requirement is made;
(b) if, under the Victorian Civil and Administrative Tribunal Act 1998 , the person requests a statement of reasons for the decision to make the requirement, the day on which the statement of reasons is given to the person or the person is informed under section 46(5) of that Act that a statement of reasons will not be given.
(10) A public statutory body must—
(a) comply with a requirement of the kind referred to in subsection (8)(a) or (b) within 1 month after the making of the requirement, or any longer period that the Authority or public statutory body making the requirement allows; and
(b) comply with a requirement of the kind referred to in subsection (8)(c).
Penalty: 20 penalty units.
(11) An owner or occupier of land in a drainage course must—
(a) comply with a requirement of the kind referred to in subsection (8)(a) or (b)—
(i) if there has been no application for review under subsection (9)—within one month after the expiry of the time during which the person is entitled to apply, or any further period that the Authority or public statutory body allows; and
(ii) if there has been an unsuccessful application—within one month after the disallowance of the application, or any further period that the Authority or public statutory body allows; and
(b) comply with a requirement of the kind referred to in subsection (8)(c)—
(i) if there has been no application for review under subsection (9)—as from the expiry of the time during which the person is entitled to apply; and
(ii) if there has been an unsuccessful application—as from the disallowance of the application.
Penalty: 20 penalty units.
(12) A person must not, except in accordance with a requirement made under subsection (8) or with the consent of the Authority or public statutory body in any manner interfere with or obstruct the flow of water in a drainage course.
Penalty: For a first offence, 20 penalty units or imprisonment for 3 months.
For a subsequent offence, 40 penalty units or imprisonment for 6 months.
For a continuing offence, an additional penalty of 5 penalty units for each day on which the offence continues—
(a) after service of a notice of contravention on the person under section 151 ; or
(b) if no notice of contravention is served, after conviction of the person for the offence.
S. 218(12A) inserted by No. 53/2014 s. 6.
(12A) Subsections (11) and (12) do not apply to a person who is acting under and in accordance with a levee maintenance permit.
S. 218(13) amended by No.
52/1998
s. 311(Sch. 1 item 105.30).
(13) If an Authority or a public statutory body has refused to consent to an interference with or obstruction of the flow of water in a drainage course, the person seeking the consent may, within 60 days after being notified of the refusal, apply to the Tribunal for review.
(14) An Authority or a public statutory body may, subject to the expiry of any relevant period referred to in subsection (10) or subsection (11), enter into and remain on the drainage course for the purpose of doing anything that an owner or occupier of land in the drainage course or a public statutory body has failed to do in compliance with a notice under subsection (8).
(15) Any costs or expenses incurred by an Authority or a public statutory body in exercising the powers conferred on it by subsection (14) are a civil debt recoverable summarily from the owner or occupier of the land on which the powers are exercised, or the other public statutory body concerned, in any court of competent jurisdiction.
Division 7—By-laws
S. 219 amended by No. 121/1994 s. 190(21)(a).