Water Management Act 2000 – PID : Broke Fordwich Private Irrigation

This Part applies to all private districts under the former Private Irrigation Districts Act 1973 that were in existence immediately before the repeal of that Act, and also authorises the establishment of further private irrigation districts.

140 Definitions

In this Part:

irrigated holding means a holding in respect of which water is supplied by a private irrigation board for irrigation.

landholder’s water entitlement means the part of the share component of a private irrigation board’s access licence that is available to a landholder of an irrigated holding within the private irrigation district.

new holding means each part of an original holding that, after subdivision, is separately owned.

non-irrigated holding means a holding in respect of which water is supplied by a private irrigation board for domestic and stock use only.

original holding means a holding in a private irrigation district, being a holding:

(a) in existence at the date of constitution of that district, or

(b) comprising lands added to that district under Division 2,

but does not include any holding, or any part of a holding, that has become a new holding or that has been excised from the private irrigation district under Division 2.

private irrigation board, in relation to a private irrigation district, means the board of management for that district elected under Division 3.

private irrigation district means a private water supply district or a private water supply and irrigation district constituted under Division 2.

141 Requirements for access licences and approvals

Nothing in this Part authorises a private irrigation board or landholder to do anything for which this Act requires an access licence or approval unless the private irrigation board or landholder holds an appropriate access licence or approval.

Clause 2 deleted

Division 2 Private irrigation districts

142 Petition

(1) Any persons who are landholders of lands that are being worked as 3 or more holdings may lodge with the Minister a petition for the constitution of those lands:

(a) as a private water supply district, or

(b) as a private water supply and irrigation district.

(2) The petition:

(a) must contain the names, addresses and occupations of all of the petitioners and be signed by all of the petitioners, and

(b) must be accompanied by plans showing:

(i) the location of the lands proposed to be supplied with water, in relation to the river, estuary or lake from which water is proposed to be obtained, and

(ii) the lands on which a water supply work is proposed to be constructed or located in connection with the proposed water supply, and the site on those lands of that proposed water supply work, and

(i) particulars of the title of the lands within the proposed private irrigation district, and

(ii) particulars of the area of land within the proposed private irrigation district owned by each petitioner, and

(iii) an estimate of the quantity of water proposed to be taken annually for the purposes of the proposed private irrigation district, and

(iv) particulars of any water use approval under which any lands within the proposed private irrigation district are, at the date of lodgment of the petition, authorised to be irrigated, and

(d) must contain the names, addresses and occupations of the landholders of the lands referred to in paragraph (b) (ii) and be accompanied by separate particulars of the title of those lands.

(3) The Minister may cause a notice containing particulars of the petition to be published in the Gazette and in an appropriate newspaper.

(4) Such a notice may not be published unless:

(a) the Minister is satisfied that the establishment of a private irrigation district in accordance with the petition would be of benefit to the landholders of land within the proposed private irrigation district, and

(b) the Minister has had regard to the Competition Principles Agreement, and

(5) In this section, Competition Principles Agreement means the agreement of that name between the Commonwealth, the States and the Territories that was entered into, for and on behalf of New South Wales, on 11 April 1995.

143 Constitution of private irrigation districts

(1) If a supplementary petition in relation to, or an objection to, a petition under section 142 is not duly lodged, the Governor may, by proclamation in the Gazette, constitute the lands described in the petition:

(a) as a private water supply district, or

(b) as a private water supply and irrigation district,

whichever was requested in the petition.

(2) If a supplementary petition in relation to, or an objection to, a petition under section 142 is so lodged but the Minister recommends the granting of the petition (whether with respect to all of the lands described in the petition or some only of them), the Governor may, by proclamation in the Gazette, constitute the lands to which the recommendation relates:

(a) as a private water supply district, or

(b) as a private water supply and irrigation district,

whichever was requested in the petition.

(3) A proclamation under this section:

(a) must assign a name to the private irrigation district and a corporate name to the private irrigation board, and

(b) must define the boundaries of the private irrigation district, and

(c) must specify at which office of the Ministerial Corporation a plan of the private irrigation district is exhibited, and

(d) must fix a time and place for the first election of the members of the private irrigation board.

144 Addition of lands to private irrigation districts

(1) A landholder of lands adjacent to or near a private irrigation district may lodge with the Minister a petition for the addition of those lands to the private irrigation district.

(2) The petition:

(a) must specify the name, address and occupation of the petitioner and must be signed by the petitioner, and

(b) must be accompanied by plans showing:

(i) the location of the additional lands proposed to be supplied with water, in relation to the river, estuary or lake from which water is proposed to be obtained, and

(ii) the lands on which any additional water supply work is proposed to be constructed or located in connection with the proposed water supply, and the site on those lands of that proposed additional water supply work, and

(i) particulars of the title and the area of the additional lands, and

(ii) an estimate of the quantity of water proposed to be taken annually by the petitioner for the purposes of those lands, and

(iii) particulars of any water use approval under which those lands are, at the date of lodgment of the petition, authorised to be irrigated, and

(d) if:

(i) the private irrigation district has been constituted as a private water supply and irrigation district, and

(ii) the petitioner seeks a supply of water for irrigation,

must be accompanied by a statement by the private irrigation board as to whether, and to what extent, the landholders within the private irrigation district have agreed to reduced allocations of water so as to permit an allocation of water being made to the additional lands, and

(e) must contain the names, addresses and occupations of the landholders of the lands referred to in paragraph (b) (ii) and be accompanied by separate particulars of the title of those lands.

(3) The Minister must consider any petition lodged under this section and may cause a notice containing particulars of the petition to be published in the Gazette and an appropriate newspaper.

145 Alteration of private irrigation district

(1) If an objection to a petition under section 144 is not duly lodged or an objection is duly lodged but the Minister recommends the granting of the petition, the Governor may, by proclamation in the Gazette, redefine the boundaries of the private irrigation district to which the petition relates by adding to that district the lands referred to in the petition.

(2) If additional lands have been added to a private irrigation board’s district under this section, the board:

(a) must, if an appropriate agreement has been made, redetermine the quantity of water to be allocated for domestic and stock use and for irrigation to each holding (including any holding in the additional lands) that is supplied or to be supplied with water for irrigation, and

(b) must, in respect of the holding in the additional lands, assess the rates and charges for water for the period or year, as the case may be, current at the date of the addition of those additional lands to the private irrigation district.

(3) The assessment of rates and charges referred to in subsection (2) (b) must be made on the basis of the rates and charges fixed in respect of that period or year, the rates and charges so assessed being proportionate to the portion of the period or year during which those additional lands are added to the private irrigation district.

146 Excision of lands from private irrigation districts

(1) A landholder of lands within a private irrigation district may make application to the Land and Environment Court, as prescribed by rules of court, for an order that the landholder’s lands be excised from that district.

(2) Notice, in the prescribed form, of the application must be given by the landholder to the private irrigation board on the lodging of the application in the Land and Environment Court.

(3) A private irrigation board and all persons whose interests appear to the Land and Environment Court to be affected by the application may attend the hearing of, and be heard in support of, or in opposition to, the application.

(4) The Land and Environment Court must hear and determine the application but must not grant the application unless it is satisfied that there are exceptional circumstances that warrant the granting of the application.

(5) The decision of the Land and Environment Court is final and may:

(a) if the decision is in favour of the applicant, include an order that any water supply works that are situated on the excised lands are to be works of which the private irrigation board has the control, use and maintenance, and

(b) embody such terms and conditions as to the Court seem just.

(6) If the decision of the Land and Environment Court is that the application be granted, the private irrigation district is, subject to this Part, taken to have been altered by excising therefrom the lands referred to in the application.

(7) The excision of any lands from a private irrigation district under this section does not affect the liability of any person for any rates or charges levied or leviable in respect of those lands while they were in the private irrigation district.

147 Supplementary petitions and objections

(1) Within a period of 28 days after the publication of the notice of a petition for the constitution of a private irrigation district:

(a) a person who is the landholder of lands that the person desires to be included in the district to which that notice relates may lodge with the Minister a supplementary petition for the inclusion in that district of lands owned by the person that are being worked as a separate property, or

(b) any person may lodge with the Minister an objection in writing to the petition referred to in the notice on the ground that the granting of that petition would adversely affect the person’s interests.

(2) Within a period of 28 days after the publication of the notice of a petition for the addition of lands to a private irrigation district:

(a) the private irrigation board for the district to which that notice relates may lodge with the Minister an objection in writing to the petition referred to in the notice, or

(b) any person may lodge with the Minister an objection in writing to the granting of that petition on the ground that the granting of that petition would adversely affect the person’s interests.

(3) A person may not lodge an objection on the ground that the person’s interests would, if the petition were granted, be adversely affected for reasons relating to the quantity of water available from the river, estuary or lake from which it is proposed to take water for the purposes of the proposed private irrigation district, and any objection lodged on that ground is not to be entertained.

(4) A supplementary petition:

(a) must contain the name, address and occupation of the supplementary petitioner, and

(b) must be accompanied by plans showing:

(i) the location of the lands that the supplementary petitioner desires to be included in the proposed district, and

(ii) the lands on which any additional water supply work to be used for the taking of water for the use of the lands that the petitioner desires to be included in the proposed district is proposed to be constructed or is located and the site on those lands of that water supply work, and

(c) must be accompanied by particulars of the title and area of the lands referred to in paragraph (b) (i) and of any water use approval under which those lands are, at the date of lodgment of the supplementary petition, authorised to be irrigated, and

(d) must contain the names, addresses and occupations of the landholders of the lands referred to in paragraph (b) (ii) and be accompanied by separate particulars of the title of those lands.

(5) An objection must be in writing and must state particulars of the grounds of objection.

(6) If a supplementary petition or an objection has been lodged with the Minister, the Minister must, after consultation with the petitioner or objector, make a recommendation with respect to the petition or objection.

Division 3 Private irrigation boards

148 Private irrigation boards

(1) For each private irrigation district there is to be a board of management.

(2) Each board is a corporation under the corporate name assigned to it by the proclamation by which its private irrigation district is constituted.

(3) A board is to consist of such number of members, being not less than 3 nor more than 10:

(a) in the case of the first board elected for a private irrigation district, as may be determined by the Minister, and

(b) in the case of any subsequent board elected for a private irrigation district, as may be determined before the election by the board for that private irrigation district.

(4) The regulations may make provision for or with respect to:

(a) the conduct of elections for the members of a board, and

(b) other matters concerning the constitution and procedure of a board.

149 Election of members of private irrigation boards

(1) An election of the members of a private irrigation board must be held on the day and at the time fixed by the proclamation by which it is constituted and thereafter:

(a) if the third anniversary of the declaration of the poll for the previous election of members of that board is a Saturday, on that Saturday, or

(b) in any other case, on the Saturday preceding or following the third anniversary of the declaration of the poll for the previous election of members of that board.

(2) A corporation that is a member of a private irrigation board must authorise an individual to represent it as a member of the board.

(3) Subject to this Division, the members of a private irrigation board hold office until the date of the declaration of the poll for the next election.

149A Filling of casual vacancies

The Governor may, by proclamation in the Gazette, appoint a person (being eligible for election) to fill any casual vacancy in the membership of a private irrigation board and to hold office until the date of declaration of the poll for the next election to be held for the board under section 149.

150 Removal of members of private irrigation board from office and appointment of administrator

(1) The Governor may, by proclamation in the Gazette, remove all the members of a private irrigation board from office:

(a) if there are not sufficient members of the board to form a quorum, or

(b) if, in the opinion of the Governor, the board has failed or neglected to make or levy rates or charges required by this Part, or otherwise to exercise its functions under this Part.

(2) (Repealed)

(3) If the Governor has removed the members of a private irrigation board from office, the Governor may, in the proclamation removing the members from office or in a subsequent proclamation in the Gazette, appoint an administrator for the board.

(4) An administrator so appointed has and may exercise all of the functions of a private irrigation board and is entitled to be paid, out of the funds of the board, such remuneration as the Governor may determine.

(5) If the members of a private irrigation board have been removed from office, the Minister may, and if the board’s term of office has more than 12 months to run, must, by notice in the Gazette, order that an election of members be held on a day specified in the order.

(6) The day so specified must be a day not more than 6 months after the date of removal of the members from office and not less than 4 weeks after the date on which the notification is published in the Gazette.

(7) Any member elected at an election held under this section is to hold office until the time when the terms of office of the members of a private irrigation board who have been removed from office would but for their removal have expired and no longer, but is eligible for re-election if otherwise qualified.

(8) On sufficient members of a private irrigation board, by election or appointment under this section, taking office to form a quorum, the functions of the administrator cease.

(9) If the members of a private irrigation board have been removed from office because of the board’s failure or neglect as referred to in subsection (1) (b), each of those members is ineligible for election at an election ordered under this section or, if no such election is ordered, at the next election of members of the board, unless the Minister is satisfied that the failure or neglect took place without the member’s knowledge or consent and, by instrument in writing, declares that the member is eligible for election at any such election.

151 Abolition of private irrigation districts

The Governor may, by proclamation published in the Gazette, abolish any private irrigation district for which a private irrigation board has not been elected.

152 Winding-up of private irrigation boards

(1) If the Governor:

(a) is of the opinion that a private irrigation board has ceased to function satisfactorily, or

(b) is satisfied that a private irrigation board has made a request to the Minister that it be wound up,

the Governor may order that the board be wound up.

(2) An order under subsection (1) must be published in the Gazette and must appoint a liquidator for the private irrigation board.

(3) A winding up of a private irrigation board under this section commences on the publication of the order in the Gazette.

(4) The regulations may make provision for or with respect to the winding up of a private irrigation board and for the disposal of any residual assets of the board.

(5) If the Governor is satisfied that the winding up of a private irrigation board has been completed under this section, the Governor may, by proclamation published in the Gazette, abolish the board.

153 Employees

(1) Each private irrigation board may from time to time employ such persons as may be necessary to assist it in the exercise of its functions.

(2) A person who has ceased to be a member of a private irrigation board is not eligible to be employed by the board until 6 months have elapsed after the person’s so ceasing to be a member.

(3) All employees of a private irrigation board are subject to the control and governance of the board and to the provisions of any by-laws made by the board in that behalf.

(4) A private irrigation board may fix wages and conditions of employment of its employees if they are not fixed in accordance with the provisions of any other Act.

Division 4 Construction and taking over of works

154 Authorised sites

For the purposes of this Division, a site is an authorised site for a water supply work if:

(a) it is the site shown on the plans that accompanied:

(i) the petition for the constitution of the district, or

(ii) any subsequent petition for the addition of lands to the district,

as the site of any work proposed to be constructed as a water supply work, or is that site as varied by the Minister as a consequence of any objection to the petition, or

(b) it is the site on which the Governor has authorised the construction or taking over of a water supply work, or

(c) it is the site of any works of which a private irrigation board has the control, use and maintenance under this Division.

155 Construction, maintenance and operation of water supply works

(1) A private irrigation board may construct, maintain and operate any water supply work that is located on an authorised site for that work.

(2) A private irrigation board must not exercise its powers under this section in respect of any authorised site on which are situated any existing works unless it has taken over the control, use and maintenance of those works under this Division.

(3) For the purpose of exercising its powers under this section, a private irrigation board may enter any authorised site (not being an authorised site situated on lands that belong to, or are under the care, control or management of a public authority) and take or remove, and use, any extractive material.

156 Private irrigation board may apply to take over water supply works

(1) A private irrigation board may apply to the Minister for authority to take over any water supply work that is located on an authorised site for that work.

(2) The application:

(a) must contain the names, addresses and occupations of the landholders of the lands on which the water supply work referred to in the application is or are proposed to be constructed or is or are located, and

(b) must be accompanied by:

(i) a plan showing those lands and the site on those lands of that water supply work, and

(ii) particulars of the title of those lands.

(3) The Minister must consider any such application, and may cause a notice containing particulars of the application to be published in the Gazette and in an appropriate newspaper.

157 Objections to applications

(1) Within 28 days after the publication of the relevant notice, any person may lodge with the Minister an objection in writing to the granting of the application referred to in the notice on the ground that the granting of the application would adversely affect the person’s interests.

(2) A person may not make an objection on the ground that the person’s interests would, if the petition were granted, be adversely affected for reasons relating to the quantity of water available from the river, estuary or lake from which it is proposed to take water by means of the proposed water supply work, and any objection made on that ground is not to be entertained.

(3) An objection must state particulars of the grounds of objection.

(4) If an objection is lodged with the Minister, the Minister must, after consultation with the objector, make a recommendation with respect to the objection.

158 Governor may authorise construction or taking over of water supply work

If an objection to an application is not duly lodged, or is duly lodged but the Minister recommends that the application be granted, the Governor may, by proclamation in the Gazette, authorise the construction or taking over of the water supply work on the site concerned.

159 Taking over works

(1) A private irrigation board may serve a notice in writing on the landholder of any lands on which is situated any water supply work on an authorised site informing the landholder that the board proposes to take over the work.

(2) The control and management of the work specified in the notice vests in the private irrigation board on and from the day specified in the notice.

(3) A private irrigation board must not serve such a notice after the expiration of 12 months after the constitution of the private irrigation district.

(4) A private irrigation board must not serve such a notice on any person in respect of a work that belongs to, or is under the control or management of, a public authority.

160 Transfer of lands

(1) A private irrigation board, by notice in writing served, within 12 months after the constitution of the private irrigation district, on the landholder of any lands:

(a) that, immediately before the constitution of the private irrigation district, were vested in the landholder as a trustee of lands supplied with water under a single water supply work approval, and

(b) that on the constitution of the private irrigation district formed the whole or part of the private irrigation district,

may require the landholder to transfer the lands so vested to the board within such period as may be specified in the notice.

(2) If a notice is served on a landholder under this section in respect of any land, the land is taken to be held by the landholder as a trustee for the private irrigation board by which the notice was served.

161 Power of entry

(1) A private irrigation board may, by its employees or agents, at any reasonable time enter any lands and thereon carry out any investigation or inspection, take levels, drill test bore-holes, make surveys and marks and fix pegs or stakes for the purpose of determining the site of any proposed water supply work.

(2) A private irrigation board may, by its employees or agents, enter any lands on which is situated an authorised site for the purpose of constructing or maintaining water supply works.

Division 5 Compensation

162 No compensation for surveys on land within private irrigation district

(1) A person is not entitled to compensation by reason of:

(a) any water supply works becoming works of which a private irrigation board has the control, use or maintenance, or

(b) the exercise by a private irrigation board of any of the powers of entry conferred on it by this Part on any lands within the private irrigation district of that board.

(2) Subsection (1) (a) has effect subject to any terms and conditions embodied in a decision of the Land and Environment Court.

163 Compensation for surveys on lands outside private irrigation district

Compensation is payable by a private irrigation board for all damage sustained by any person as a result of a board’s exercise of its power to carry out surveys on lands outside its private irrigation district.

164 Compensation where private irrigation board constructs or takes over works

(1) Compensation assessed in accordance with this Division is payable if a private irrigation board exercises its powers to construct or take over any water supply works.

(2) Compensation is not payable by a private irrigation board in respect of the repair, operation or maintenance of any water supply work except in relation to damage caused by negligence and except where, in repairing, operating or maintaining any such work or works, the board causes damage to any lands outside its private irrigation district.

(3) If immediately before the control and management of any water supply work becomes vested in a private irrigation board under this Part there was in force a legally binding agreement or arrangement between the person who then had the control and management of the work and some other landholder of land in the board’s private irrigation district (being an agreement or arrangement under which that other person was entitled to exercise any powers in relation to that work):

(a) that agreement or arrangement is taken to be an agreement or arrangement between that board and that other person, and

(b) any compensation to which that other person may be entitled under this Division must be assessed, having regard to his or her obligations under that agreement or arrangement.

165 Determination of amount of compensation

If compensation is payable under this Division, the amount of compensation must be determined:

(a) by agreement between the private irrigation board and the person entitled to claim compensation, or

(b) if such an agreement has not been reached, by the Land and Environment Court in accordance with the provisions of this Division.

166 Recovery of compensation

Any amount payable to a claimant as compensation in accordance with this Division may be recovered from the private irrigation board as a debt in any court of competent jurisdiction.

Division 6 Rates and charges for water

167 Fixing of rates and charges

(1) As soon as practicable after 1 July in each year, a private irrigation board:

(a) must fix a rate per hectare, for all holdings within its private irrigation district, so as to produce a total amount sufficient to meet the estimated liabilities of that board during that year and any outstanding liabilities of that board, and

(b) must fix a rate per hectare for water, or a charge for the quantity of water, to be supplied during that year for domestic and stock purposes to all holdings within the private irrigation district, and

(i) must determine the total quantity of water that it proposes to supply to all holdings for the purpose of irrigation during that year, and

(ii) must fix the charges in respect of the quantities of water allocated under Division 7 for that purpose in respect of all holdings within the district.

(2) The rates and charges referred to in subsection (1) (b) and (c) must be fixed so as to produce in the year for which they are fixed the amount estimated by the private irrigation board as being required in that year:

(a) to defray the cost of constructing, maintaining and operating its water supply works, and

(b) to pay the interest on and repay the capital of any loans raised by the board, and

(c) to meet any outstanding liabilities of the board and the costs and expenses of administering the private irrigation district and of doing all such things as the board may lawfully do.

168 Special rates and special charges

(1) For the purpose of raising money:

(a) for the fulfilment of any contract, or

(b) for the payment of any debt that may be due or become due by the board, or

a private irrigation board may from time to time fix a special rate per hectare to be paid in respect of all holdings in its private irrigation district.

(2) A private irrigation board may also fix special charges in respect of:

(a) the quantities of water allocated for the purpose of irrigation, or

(b) the quantities of water determined for domestic and stock purposes,

in respect of all holdings in its private irrigation district.

169 Assessment and levying of rates and charges

(1) Rates fixed by a private irrigation board must be assessed, and must be levied as prescribed, in respect of the area of each holding within its private irrigation district.

(2) Charges fixed by a private irrigation board for a private water supply and irrigation district must be assessed, and must be levied as prescribed, in respect of:

(a) the quantity of water allocated for irrigation by the board under Division 7, or

(b) the quantity of water determined by the board for domestic and stock purposes,

in respect of each holding within the district.

170 Assessment of rates and charges

(1) As soon as practicable after fixing any rates and charges, a private irrigation board must assess and levy the rates and charges.

(2) If a private irrigation board at any time finds it has made an error in the assessment of any rates or charges for water in respect of any holding or landholder, the board may re-assess the rates or charges in respect of the holding or landholder affected and if it does so:

(a) must refund any amounts overpaid, and

(b) may levy any additional amount found to be due.

171 Provision for determining areas of holdings

For the purposes of fixing, assessing and levying rates under this Division, a holding that has an area equal to a number of hectares and a remaining fraction of a hectare is taken to have an area in hectares equal to one more than that number.

172 Liability for rates and charges for water

(1) All amounts due and payable under this Division in respect of rates or charges are be payable to the private irrigation board by the landholder of the holding in respect of which they were levied, and must be paid whether water is or is not taken by the landholder.

(2) Rates and charges are due and payable to and recoverable by a private irrigation board on the expiration of one month after service of notice of the rates or charges.

(3) If more than one person is an owner of the land, the rates or charges may be levied on any one or more of those persons, and a private irrigation board may recover the rates or charges from any person on whom they are so levied, but nothing in this subsection entitles the board to recover more than the full amount of the rates or charges.

(4) If the land is owned jointly by two or more landholders, they are jointly and severally liable to the private irrigation board for the rates or charges, but as between themselves they are each liable only for such part of the rates or charges as is proportionate to their interests in the land.

(5) If any such landholder pays to the private irrigation board more than his or her proportionate part, the landholder may recover the excess from the other or others.

(6) If any land in a holding reverts to the Crown during any year for which rates or charges are or are to be assessed, the person who immediately before the reversion was the landholder of the land is liable for payment of only that part of the rates or charges proportionate to the part of the year for which the land was held by the person, and any excess payment by the person must be refunded to the person.

173 Charge on land

(1) Rates and charges under this Division, and any costs awarded to a private irrigation board by any court in proceedings for the recovery of any such rates and charges, are a charge on the land in respect of which the rates and charges have been levied.

(2) A charge created by subsection (1) has no effect as against a purchaser in good faith for value who at the time of purchase made due inquiry but had no notice of the liability.

(3) For the purposes of subsection (2), a purchaser is not taken to have made due inquiry unless the purchaser obtained a certificate from the private irrigation board as to the amount, if any, due in respect of rates, charges or costs.

(4) The provisions of this section have effect despite anything contained in section 42 of the Real Property Act 1900.

174 Abandonment of rates

Rates and charges may be abandoned or written off in accordance with the by-laws made by the private irrigation board but only on the certificate of the auditor of the board that the abandonment or writing off is in accordance with the by-laws and on the unanimous resolution of the board.

175 Assessment book

(1) Each private irrigation board must cause to be kept a book or record (in this Part referred to as the assessment book) in which must be recorded the following:

(a) the name, address and occupation of each landholder of land within the private irrigation district,

(b) particulars of the area of each parcel of land owned by each such landholder,

(d) particulars of the total area of land owned by all landholders,

(e) in the case of a board for a private water supply and irrigation district:

(i) particulars of the quantity of water last allocated by the board to each irrigated holding within the district, and

(ii) particulars of the quantity of water last determined by the board for domestic and stock purposes in respect of each such holding,

(f) such particulars relating to the fixing, assessing and levying of rates and charges as may be prescribed.

(2) A private irrigation board may from time to time rectify any errors or omissions in the assessment book.

Division 7 Supply of water

176 Determination of allocation

As soon as practicable after it is elected, the first board for a private water supply and irrigation district must determine the quantity of water, if any, to be allocated for irrigation to each holding within the private irrigation district.

177 Supply of water

At the times fixed by it, a private irrigation board:

(a) must supply water for domestic and stock purposes (in such quantities as it may determine):

(i) to the boundary of each holding within its private irrigation district, and

(ii) to such other points as may be agreed on by the board and the landholder of the holding, and

(b) in the case of a board for a private water supply and irrigation district, must supply water for irrigation (in the quantities allocated by it under this Division):

(i) to the boundary of each holding within its private irrigation district for which an allocation of water for irrigation has been made by the board, and

(ii) to such other points as may be agreed on by the board and the landholder of the holding.

178 Discontinuance or reduction of supply of water

A private irrigation board may at any time refuse to deliver water to any holding or may discontinue any delivery of water to a holding:

(a) in the case of a holding for which it has made an allocation of water for irrigation:

(i) if the land to be irrigated is not in its opinion properly prepared for irrigation or on which the ditches or channels to be used for the distribution of water within the holding are in the opinion of the board inadequate or in a bad state of repair, or

(ii) if the water is for the irrigation of grasses or pastures that are not sown grasses or improved pastures, or

(b) if any rates or charges for water in respect of the holding are, and have been for a period of 2 months or more after the due date of payment, unpaid, or

(c) if the landholder of the holding does not comply with any requirement specified in a notice given to the landholder under this Division, or

(d) if the water is being used for a purpose that is not authorised by a water use approval.

179 Circumstances in which private irrigation board not obliged to supply water

(1) Nothing in this Part requires a private irrigation board to supply water to any land or landholder if, by reason of drought, accident or otherwise, the board is of the opinion that it is impracticable to do so.

(2) Unless the private irrigation board otherwise determines, any failure to deliver water to a holding does not relieve the landholder of the holding of any liability for payment of rates and charges, and rates and charges continue to be leviable in respect of the holding despite any such failure.

180 Landholders may be required to provide distribution works

A private irrigation board may, by notice in writing given to the landholder of any holding, require the landholder:

(a) to provide on his or her holding:

(i) water delivery systems of such a size and capacity as will enable water to be delivered to his or her land at not less than such rate of delivery as the board may stipulate in the notice, and

(ii) water storage works, in such locations and of such nature and extent as the board may stipulate in the notice, for the water to be supplied by it for domestic and stock purposes, and

(b) to maintain, continuously and effectively, any water delivery systems referred to in paragraph (a) (i) so that water may be carried or passed at not less than the rate so stipulated.

181 Sale of surplus water

If the full quantity of water to be supplied under this Division has been supplied or, despite any sales made under this section, will be supplied, a private irrigation board may, subject to the conditions of any water supply work approval held by it, agree to sell by measure to the landholder of any holding water from the works of the private irrigation district subject to such terms and conditions as may be agreed to by the board and that landholder.

Division 8 Effect of new subdivisions

182 Supply of water for domestic and stock purposes to new holdings resulting from subdivisions

(1) If a holding, whether an irrigated or non-irrigated holding, is subdivided, a new holding resulting from the subdivision is not entitled to a supply of water for domestic and stock purposes from a private irrigation board’s water supply works until a date determined by the board (not being a date earlier than the date on which the board became aware of the disposition of that new holding).

(2) If rates for a period or year ending on 30 June, being the period or year during which the date specified by a private irrigation board under subsection (1) occurred, have not, before the date so specified, been levied in respect of the holding that was subdivided, the board must levy the rates for the whole of that period or year in respect of each of the new holdings that resulted from the subdivision, and that was disposed of.

183 Supply of water for irrigation purposes to a new holding resulting from a subdivision

(1) If an irrigated holding is subdivided and any new holdings are thereby created, the private irrigation board must, subject to subsection (2), allocate to such of the new holdings as the landholder of the subdivided holding nominates the whole of the quantity of water last allocated to the holding that was subdivided.

(2) If the landholder nominates more than one new holding to which the quantity of water is to be allocated, the private irrigation board may allocate the water to those holdings in such proportions as it determines.

(3) A private irrigation board may allocate to such of the new holdings as the board determines the quantity of water last allocated to the subdivided holding if:

(a) the landholder of the subdivided holding fails to make a nomination within the time specified by the board in a notice sent by post to the landholder at the landholder’s last known address, or

(b) a holding nominated by the landholder does not contain land capable of being irrigated from the works of the private irrigation district or to which, in the opinion of the board, it is impracticable to convey water for irrigation from those works, or

(d) the allocation of water in the manner nominated is otherwise detrimental to the administration of the private irrigation district concerned.

(4) If a private irrigation board makes an allocation under subsection (3), it is to notify the landholder of the subdivided holding and the landholder of each new holding of the allocation.

(5) An allocation of water to a new holding made under this section has effect on and from a date to be specified in the instrument by which the allocation is made (not being a date earlier than the date on which the private irrigation board became aware of the first disposition of any of the new holdings resulting from the subdivision).

(6) The landholder of a new holding resulting from a subdivision referred to in subsection (1) is not entitled to an allocation of water by the private irrigation board for irrigation purposes otherwise than in accordance with this section.

(7) If the charges for water have not been levied for the current year for the subdivided holding, the private irrigation board must levy the charges for the whole of that year in respect of the new holding to which the water previously allocated to the subdivided holding has been allocated in accordance with this section.

184 Additional works required as a result of subdivision

(1) The person who, immediately before the disposition of a new holding resulting from a subdivision, was the landholder of the holding (the previous landholder) must construct at his or her own cost such works as are necessary to provide:

(a) means of conveying water to the new holding from the private irrigation board’s water supply works and, if an allocation of water is made to the new holding for irrigation, means of measuring the water so supplied, and

(b) means of access from roads to any works of the private irrigation district or any works provided for the purposes of paragraph (a) if that access would not be available except by crossing a channel of the private irrigation district, and

(c) means of access across a channel of the private irrigation district to the new holding if that means of access is required by reason of the subdivision.

(2) All works to be constructed under subsection (1):

(a) in respect of the supply of water to a new non-irrigated holding, must be constructed before the new holding is disposed of or within such period after the disposition of the new holding as the private irrigation board may in any particular case allow, and

(b) in respect of the supply of water to a new irrigated holding, must be constructed within such period as the private irrigation board may, by notice in writing, have notified to the landholder of the holding that was subdivided.

(3) All works constructed or to be constructed under subsection (1) must be constructed in accordance with the approval in writing of the private irrigation board in respect of location, design, form, dimensions and construction.

(4) At the request of the previous landholder, a private irrigation board may undertake, at the landholder’s cost, the construction of any works required by this section.

(5) A private irrigation board may construct such works as have not been constructed by the previous landholder, and any costs and expenses (including any compensation paid or payable by the board under Division 5 by reason of the construction of the works) are payable to the board either by the previous landholder or by the new landholder, as the board may determine.

(6) If any part of the costs and expenses referred to in subsection (5) is recovered by the private irrigation board from the new landholder, the new landholder may recover from the previous landholder the whole or that part of those costs or expenses, as the case may be.

(7) On their completion, the control and management of any works constructed under this section is vested in the private irrigation board.

Division 9 Meetings of landholders

185 General meeting

(1) The chairperson of a private irrigation board may, at any time, convene a general meeting of landholders of land within the board’s private irrigation district.

(2) A private irrigation board must, within 21 days after the receipt of a requisition signed by not less than one-fifth in number of the landholders of the holdings in the private irrigation district, convene a general meeting of those landholders.

(3) Seven days’ notice of every general meeting must be sent to every landholder at the address shown in the private irrigation board’s assessment book informing the landholder of the time and place of the general meeting.

186 Voting rights

(1) A corporation may, by any person authorised by it in writing, attend general meetings and vote.

(2) If there is more than one landholder of any holding, each landholder may attend general meetings but only one of them may vote.

Division 10 Finance

187 Books of account

Each private irrigation board must cause to be kept, in relation to its funds, proper books of account that must be audited as often as the board considers it advisable so to do, but at least once in every year, by a registered company auditor (within the meaning of the Corporations Act 2001 of the Commonwealth).

188 Accounts to be rendered

Each private irrigation board must as soon as practicable, and in any case before 31 October in each year, forward to the Minister a copy of the income and expenditure account, balance sheet and rate account as last audited, together with a copy of the certificate of audit relating to them.

189 Banking of money

(1) All money received by or on account of a private irrigation board must be paid into a bank or authorised deposit-taking institution chosen by the board.

(2) Every payment of $2.00 or more by or on behalf of a private irrigation board must be by cheque on the bank or authorised deposit-taking institution drawn and countersigned as prescribed by the regulations.

(3) Payments of less than $2.00 may be made out of a petty cash fund, replenished from time to time by cheque drawn and countersigned as prescribed by the regulations.

190 Temporary accommodation

(1) For the temporary accommodation of a private irrigation board it may obtain advances by way of overdraft of current account in any one or more banks or authorised deposit-taking institutions on the security of the income of the board.

(2) The amount of any such overdraft must be limited to:

(a) one-half of the income of the private irrigation board as shown by the last audited accounts, or

(b) if there are no audited accounts, one-half of the income of the private irrigation board estimated by the board in respect of the year commencing on 1 July immediately preceding the date on which the overdraft is proposed to be obtained.

(3) No greater amount may be borrowed under this section than the amount stated in a certificate of the auditor of the private irrigation board as being the sum that may be borrowed within the limits imposed by this section.

Division 10A Transformation of water entitlements

190A Water entitlements of landholders

(1) A private irrigation board must, if requested to do so in writing by a landholder of an irrigated holding to which water is supplied by the board, determine the landholder’s water entitlement.

(2) A board must have regard to the following matters when determining the landholder’s water entitlement:

(a) the nature of agricultural activities on the land,

(b) the amount of water currently supplied to the landholder,

(c) any present or past water sharing arrangements applicable to the landholder,

(d) any other matter it considers relevant,

(e) any other matter prescribed by the regulations.

(3) A determination may specify the different parts of the landholder’s water entitlement that are available to the landholder for different purposes.

(4) A determination must be in writing and comply with the requirements prescribed by the regulations. Notice of a determination must be given in writing by the board to the landholder.

(5) A determination may be varied or redetermined only on a further application made by the landholder within 3 months of the determination or in the circumstances prescribed by the regulations.

(6) A person must not participate in a determination of a landholder’s water entitlement if the person or a member of the person’s immediate family (within the meaning of the regulations) has an interest in the entitlement.

190B Transformation of landholder’s water entitlement

(1) A private irrigation board may make an application under Division 4 of Part 2 of Chapter 3 for the purpose of wholly or partly transforming a landholder’s water entitlement into an access licence under this Act.

(2) On transformation of the whole or part of a landholder’s water entitlement to an access licence:

(a) the landholder is not entitled to vote (as a member of the private irrigation board or as a landholder within the private irrigation district) on any matter relating to the transformation of one or more other landholders’ water entitlements or the supply of water to landholders who have not transformed their water entitlements, and

(b) the board may continue to exercise functions in relation to any works that are located on the landholding for which it exercised functions immediately before the transformation (whether or not the board is to deliver the landholders’ water entitlement under the access licence or the landholding remains in the private irrigation district).

(3) If the whole of a landholder’s water entitlement is transformed and the landholder does not have a right to the delivery of that water by the board:

(a) the landholder is not entitled to vote as a landholder within the private irrigation district, and

(b) the board must not fix rates and charges in respect of the landholder’s landholding for that water (other than termination charges).

(4) The regulations may make provision for or with respect to:

(a) other circumstances in which a landholder whose landholder’s water entitlement has been transformed ceases to be a voting member, and

(b) the voting rights of landholders who have partially transformed their landholders’ water entitlements.

(5) A board may require a landholder to provide security as a condition of consent to transformation of the whole or part of the landholder’s water entitlement, subject to the regulations.

(6) Without limiting subsection (5), the following kinds of security may be required by a board:

(a) a charge over a part of an irrigation right that is not transformed,

(b) a charge over an access licence or other entitlement to water acquired by the person and resulting from the transformation,

(c) a guarantee by an authorised deposit-taking institution,

(d) a deposit lodged with the board.

(7) In addition to any other charges it may fix under this Part, a board may fix the following charges:

(a) termination charges payable by a landholder after transformation of the whole or part of the landholder’s water entitlement,

(b) charges payable by a landholder for the delivery of water after transformation of the whole or part of the landholder’s water entitlement.

Division 11 Miscellaneous

191 Delegation

A private irrigation board may by instrument in writing delegate:

(a) to any member of the board, or

(b) to any employee of the board,

any of its functions, other than this power of delegation.

192 Assessment book admissible as evidence

In any legal proceedings for the recovery of rates or charges:

(a) a private irrigation board’s assessment book, or

(b) any document purporting to contain a copy of any part of a private irrigation board’s assessment book that is certified as a true copy by the chairperson of the private irrigation board, or by a person authorised by the chairperson in that regard,

is admissible in evidence.

193 Service of notice of proceedings on a private irrigation board

Any document required to be served on a private irrigation board may be served:

(a) by leaving it with some person apparently employed by the board at the office of the board, or

(b) by posting it to the board at its office.

194 Recovery of rates

Any rates, charges or money due to a private irrigation board under this Part may be recovered as a debt in a court of competent jurisdiction.

195 Amendment of proclamations

Any proclamation under this Part may be amended by a further proclamation for the purpose of correcting any error in the earlier proclamation.

196 By-laws

(1) A private irrigation board may, with the approval of the Governor, make by-laws not inconsistent with this Act or the regulations for or with respect to the following:

(a) the convening and holding of general meetings of landholders,

(b) the appointment by a landholder of a proxy for voting purposes,

(d) the provision of storages on holdings for water supplied from the water supply works of the board for domestic and stock purposes,

(e) the methods of measuring water supplied,

(f) the sale of water to landholders,

(g) regulating the use of the water supply works of the board,

(h) the prevention of waste of water,

(i) the fixing, assessing and levying of rates and charges for water,

(j) the class of case in which, and the circumstances in which, rates and charges may be abandoned or written off,

(k) the accounts of the board,

(l) the collection and banking of money, and the signing and countersigning of cheques,

(m) the books and records of the board,

(n) the access of members of the board to documents and books of the board,

(o) fees for any service provided by the board,

(p) the form of any notice or other document to be prepared, issued or received in accordance with this Part or any regulations of the board,

(q) any matter that is necessary or convenient to be prescribed for carrying out or giving effect to this Part.

(2) A by-law may create an offence punishable by a penalty not exceeding 0.5 penalty units.

Part 4 Recovery of rates, charges and other money

Division 1 Recovery of rates, charges and other amounts by charging authorities

354 Definition

In this Part, charging authority means the Minister, an irrigation corporation, a private irrigation board, a private drainage board, a private water trust or a water supply authority.

355 Certain rates and charges to be a charge on land

(1) A rate or charge imposed on the owner of any land is a charge on the land to which the charge relates.

(2) A charge imposed for a service or thing supplied or provided in connection with a specific parcel of land is a charge on the land.

(3) The provisions of this section have effect despite anything contained in section 42 of the Real Property Act 1900.

356 Interest on rates and charges

A charging authority may charge interest on overdue rates and charges at a rate not exceeding the rate of interest payable for the time being on an unpaid judgment of the Supreme Court.

357 Recovery of rates, charges and other money

(1) Any rate or charge or other money due to a charging authority under this Act may be recovered in any court of competent jurisdiction as if it were a debt due to the charging authority.

(2) An unsatisfied judgment or order of any court for the recovery of any rate or charge from any person is not a bar to its recovery from any other person who is liable under this Act for its payment.

358 Joint owners

(1) If land is owned or held jointly by two or more persons, such persons are jointly and severally liable to the charging authority for the rate, but as between themselves each are only be liable for such part of the rate as is proportionate to his or her interest in the land.

(2) If any of such persons pays to the charging authority more than his or her proportionate part, he or she may recover the excess by way of contribution from the others.

359 Sale of land for unpaid rates and charges

(1) This section applies to rates and charges imposed under this Act by the Minister or by a water supply authority.

(2) The provisions of Division 5 of Part 2 of Chapter 17 of the Local Government Act 1993 apply to land in respect of which a rate or charge (being a rate or charge that is, by virtue of this Part, a charge on land) remains unpaid in the same way as they apply to land in respect of which rates and charges under that Act remain unpaid.

(3) For the purpose of applying the provisions of Division 5 of Part 2 of Chapter 17 of the Local Government Act 1993 to land in respect of which a rate or charge remains unpaid:

(a) a reference in those provisions to a council is to be read as a reference to the Minister or to a water supply authority, as the case requires, and

(b) a reference to a general manager or public officer is to be read as a reference to the Director-General or to the principal officer of a water supply authority, as the case requires, and

(c) a reference to a member of staff of a council is to be read as a reference to a member of staff of the Department or to an employee of a water supply authority, as the case requires, and

(d) a reference to a rating authority is to be read as including a reference to a council.

360 Certificate as to amount due

(1) A charging authority must, on written application being made to it and payment of the fee determined by it, issue to the applicant a certificate:

(a) containing particulars of any amounts payable to the authority in respect of a parcel of separately assessed land, or

(b) to the effect that there are no such amounts.

(2) An application for a certificate must:

(a) specify the name and address of the applicant, and

(b) identify the land to which the application relates.

(3) Such a certificate is conclusive proof, in favour of a purchaser in good faith and for value of the land to which the certificate relates that, at the date of its issue, no amounts were payable to the charging authority in respect of that land other than such amounts as are specified in the certificate.

361 Liability where an estate or interest is transferred

(1) A person who disposes of his or her estate or interest in any land in respect of which any rates or charges have been or may be levied remains liable for rates or charges to the same extent as if the person had not disposed of his or her estate or interest in the land, if the rates or charges are levied either:

(a) before the person disposed of his or her estate or interest in the land, or

(b) before the person has given to the charging authority the prescribed notice of disposal.

(2) If any person who disposes of land to another person pays any amount to the charging authority in respect of rates or charges levied after the land disposed of but before the prescribed notice is given to the authority, the person by whom the amount was paid may recover the amount from the person to whom the land was disposed.

(3) As between an owner of land and any other person from or to whom the owner derives or disposes of his or her estate or interest in the land, rates or charges under this Act are to be considered as accruing from day to day and are apportionable accordingly.

362 Liability where a person becomes entitled to an estate or interest

(1) An owner of land is liable for all arrears of rates and charges owing by any previous owner of the land, despite the fact that the new owner acquired the land after the rates or charges were levied.

(2) If any person who becomes an owner of land pays to the charging authority any rates or charges in respect of that land that were levied before the person became the owner, the person may recover from the previous owner such part of the rates or charges as was levied in respect of the period during which the previous owner was the owner of the land.

Division 2 Provisions relating to access licences

362A Joint owners

(1) If an access licence is co-held by two or more co-holders, those co-holders are jointly and severally liable to the Minister for the fees, charges and civil penalties relating to the licence, but as between themselves each are only liable for such part of those fees, charges and civil penalties as is proportionate to his or her interest in the licence.

(2) If any of those co-holders pays to the Minister more than his or her proportionate part, he or she may recover the excess by way of contribution from the others.

362B Certificate as to charges outstanding in relation to access licences

(1) The Minister may, in relation to any access licence, issue a certificate to the effect that, as at the date on which the certificate is issued:

(a) a specified amount is payable in relation to the access licence pursuant to fees, charges and civil penalties imposed under this Act, or

(b) no amount is so payable.

(2) Such a certificate is conclusive proof that, as at the date on which it was issued, no amounts were payable in respect of the access licence other than such amounts as are specified in the certificate.

362C Unpaid fees, charges and civil penalties

(1) Any civil penalty imposed by the Minister under this Act that remains unpaid is recoverable in any court of competent jurisdiction as a debt due to the Crown.

(2) If a fee, charge or civil penalty imposed by the Minister under this Act relates to an access licence, the fee, charge or civil penalty may be recovered from the holder of the licence who incurred the fee, charge or penalty or the holder of the licence for the time being.

(3) Despite subsection (2), if a person surrenders an access licence, any fee, charge or civil penalty imposed by the Minister under this Act that relates to the licence may be recovered from that person.

Part 5 Legal proceedings and appeals

Division 1 Legal proceedings

363 Offences by corporations

(1) If a corporation commits an offence against this Act or the regulations:

(a) each person who is a director of the corporation, and

(b) each person who is concerned in the management of the corporation,

is taken to have committed the same offence if the person knowingly authorised or permitted the act or omission constituting the offence.

(2) A person may be proceeded against and convicted under this section whether or not the corporation has been proceeded against or convicted.

(3) Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation.

363A Offences by joint holders of access licence or approval

(1) If an offence against this Act or the regulations arises in relation to an access licence or approval, each co-holder of the licence or approval is taken to have committed the offence.

(2) A co-holder of a licence or approval is not guilty of such an offence if the co-holder establishes that:

(a) the offence was committed by some other person (whether or not another co-holder of the licence or approval), and

(b) the other person was not associated with the co-holder at the time the offence was committed, and

(3) A person is associated with a co-holder of a licence or approval for the purposes of subsection (2) (b) (but without limiting any other circumstances of association) if the person is an employee, agent, licensee, contractor or sub-contractor of the co-holder.

(4) A person may, under this section, be proceeded against and convicted for an offence whether or not any other person has been proceeded against or convicted for the offence.

363B Penalties

For the purposes of this Act:

(a) a Tier 1 penalty corresponds to a maximum penalty of:

(i) in the case of a corporation, 20,000 penalty units and, in the case of a continuing offence, a further penalty of 2,400 penalty units for each day the offence continues, or

(ii) in any other case, imprisonment for 2 years or 10,000 penalty units, or both, and, in the case of a continuing offence, a further penalty of 1,200 penalty units for each day the offence continues, and

(b) a Tier 2 penalty corresponds to a maximum penalty of:

(i) in the case of a corporation, 10,000 penalty units and, in the case of a continuing offence, a further penalty of 1,200 penalty units for each day the offence continues, or

(ii) in any other case, 2,250 penalty units and, in the case of a continuing offence, a further penalty of 600 penalty units for each day the offence continues, and

364 Proceedings for offences

(1) Proceedings for an offence against this Act or the regulations are to be disposed of summarily:

(a) by the Local Court, or

(b) by the Land and Environment Court in its summary jurisdiction.

(2) Proceedings for an offence against this Act or the regulations may be commenced at any time within, but not later than, 3 years after the date on which the offence is alleged to have been committed.

(3) Proceedings for an offence against this Act or the regulations may also be commenced at any time within, but not later than, 3 years after the date on which evidence of the alleged offence first came to the attention of any relevant authorised officer.

(4) If subsection (3) is relied on for the purpose of commencing proceedings for an offence, the process by which the proceedings are commenced must contain particulars of the date on which evidence of the offence first came to the attention of any relevant authorised officer and need not contain particulars of the date on which the offence was committed.

(5) The date on which evidence first came to the attention of any relevant authorised officer is the date specified in the process by which the proceedings are commenced, unless the contrary is established.

(6) The maximum monetary penalty that may be imposed by the Local Court in proceedings for an offence against this Act or the regulations is:

(a) the lesser of the following:

(i) 200 penalty units,

(ii) the maximum monetary penalty specified in respect of the offence, and

(b) in the case of a continuing offence, 10 per cent of the further monetary penalty specified in respect of the offence for each day the offence continues.

(7) The maximum penalty that may be imposed by the Land and Environment Court in proceedings for an offence against this Act or the regulations is the maximum penalty specified in respect of the offence.

(8) In this section, evidence of an offence means evidence of any act or omission constituting the offence.

364A Matters to be considered in imposing penalty

(1) In imposing a penalty on a person for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant):

(a) the impact of the offence on other persons’ rights under this Act,

(b) the market value of any water that has been lost, misused or unlawfully taken as a consequence of the commission of the offence,

(c) the extent of the harm caused or likely to be caused to the environment (including, in particular, any water source or waterfront land) by the commission of the offence,

(d) the practical measures that may be taken to prevent, control, abate or mitigate that harm,

(e) the extent to which the person could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence,

(f) the extent to which the person had control over the causes that gave rise to the offence,

(g) whether the offence was committed during a severe water shortage (that is, in contravention of an order in force under section 49A or 324),

(h) the person’s intentions in committing the offence,

(i) whether, in committing the offence, the person was complying with orders from an employer or supervising employee,

(j) in the case of an offence of taking water in contravention of this Act, whether the water so taken had been released for environmental purposes and, if so, whether the person was aware of that fact,

(k) any civil penalty that has been imposed on the person under section 60G in relation to the conduct from which the offence arises.

(2) The court may take into consideration other matters that it considers relevant.

365 Penalty notices for certain offences

(1) In this section:

penalty notice means a notice to the effect that, if the person served with the notice does not wish to have an alleged offence dealt with by a court, the person may pay, in accordance with the notice, the penalty specified in the notice.

penalty notice offence means an offence against this Act or the regulations that is declared by the regulations to be a penalty notice offence.

(2) An authorised officer may serve a penalty notice on a person who appears to the authorised officer to have committed a penalty notice offence.

(3) The amount of the penalty to be specified in a penalty notice is the amount prescribed by the regulations for the alleged offence, being an amount not exceeding the maximum penalty which could be imposed for the offence by a court.

(4) A penalty notice may be served personally or by post.

(5) If the amount of the penalty prescribed by the regulations for an alleged offence is paid under this section, no person is liable to any further proceedings for the alleged offence.

(6) Payment of a penalty under this section is not to be regarded as an admission of liability for the purposes of, nor is in any way to affect or prejudice, any civil claim, action or proceeding arising out of the same occurrence.

(7) The Ministerial Corporation may withdraw a penalty notice at any time within 28 days after the date on which it was served and, in that event:

(a) the amount payable under the notice ceases to be payable, and

(b) any amount that has been paid under the notice is repayable to the person by whom it was paid, and

(c) further proceedings for the offence in respect of which the notice was served may be taken against any person (including the person on whom the notice was served) as if the notice had never been served.

(8) This section does not limit the operation of any other provision of this or any other Act or law in relation to proceedings that may be taken in respect of offences.

365A Continuing offences

(1) A person who is guilty of an offence because the person contravenes a requirement made by or under this Act or the regulations (whether the requirement is imposed by a notice or otherwise) to do or stop doing something (whether or not within a specified period or before a particular time):

(a) continues, until the requirement is complied with and despite the fact that any specified period has expired or time has passed, to be liable to comply with the requirement, and

(b) is guilty of a continuing offence for each day the contravention continues.

(2) This section does not apply to the extent that a requirement of a notice is revoked.

366 Legal proceedings do not affect, and are unaffected by, other action under this Act

The prosecution of a person for an offence against this Act or the regulations, or the issue of a penalty notice in respect of such an offence, does not affect, and is unaffected by, any other action taken under this Act in relation to the act or omission giving rise to the offence.

367 Evidentiary certificates

(1) A certificate that is issued by the Minister and that states:

(a) that an instrument, a copy of which is set out in or annexed to the certificate, being an instrument purporting:

(i) to be issued, made or given for the purposes of this Act, and

(ii) to have been signed by the person authorised to issue, make or give the instrument, or by another person acting as delegate or on behalf of the person,

was issued, made or given on a specified day, or

(b) that a document, a copy of which is set out in or annexed to the certificate, is a copy of part of, or an extract from, a register or water allocation account kept under this Act, or

(i) is a photograph or other remotely-sensed image of a specified kind, and

(ii) portrays specified land as at a specified date, or

(d) that an amount payable under this Act by a specified person has, or has not, been paid,

is admissible in any legal proceedings and is evidence of the fact or facts so stated.

(2) A certificate that is issued by the Minister and that states that, on a date or during a period specified in the certificate:

(a) a specified person was, or was not, the holder of a specified access licence or approval, or

(b) a specified access licence or approval was, at a specified time, revoked or suspended for a specified period or was revoked or suspended subject to specified conditions, or

(d) specified land was, or was not, the subject of a specified approval, or

(e) specified land was, or was not, within a specified water management area, or

(f) a specified part of a water source was, or was not, within a specified water management area, or

(g) a specified water management work was, or was not, at a specified location within a specified parcel of land, or

(h) a specified water management work was, or was not, the subject of a specified water management work approval, or

(i) the conditions of a specified access licence or approval were, or were not, as so specified, or

(j) the terms of a specified available water determination were, or were not, as so specified, or

(k) a specified person was, or was not, an authorised officer in relation to a specified provision of this Act, or

(l) a specified person was, or was not, an authorised analyst, or

(m) a specified person was, or was not, a member of staff of the Department, or

(n) a specified delegation under this Act was, or was not, in force, or

(o) a specified access licence or approval was, or was not, in force, or

(p) specified matters were, or were not, recorded in the Access Register or were, or were not, recorded in specified terms, or

(q) the water allocations credited to a specified access licence were, or were not, as so specified, or

(r) a specified number of water allocations were, or were not, credited to, or debited or otherwise withdrawn from, a specified access licence, or

(s) a specified quantity of water was, or was not, ordered in relation to a specified access licence, or

(t) information required to be furnished to the Minister or an authorised officer pursuant to this Act was, or was not, received, or

(u) an approved river gauge had, or had not, been maintained in accordance with the requirements (if any) prescribed by the regulations, or

(v) the readings on an approved river gauge were, or were not, as so specified,

is admissible in any legal proceedings and is evidence of the fact or facts so stated.

(3) In any legal proceedings, evidence is not required:

(a) as to the accuracy or reliability of an approved river gauge, or

(b) as to the manner in which an approved river gauge was operated,

unless evidence is adduced that the gauge was not accurate, was not reliable or was not properly operated.

(4) For the purposes of this section, a document purporting to be a certificate under this section is, unless the contrary is proved, to be taken to be such a certificate.

(5) In this section, approved river gauge means a gauge of a type or design approved by the Minister, by order published in the Gazette, for the purpose of measuring the level or flow of water in a river or lake.

(6) In this section:

(a) a reference to a water management work includes a reference to a corresponding kind of work to which Part 2, 5 or 8 of the Water Act 1912 extends, and

(b) a reference to an approval or access licence includes a reference to an entitlement (within the meaning of clause 2 of Schedule 10) that confers a corresponding authority.

367A Evidence of analysts

(1) A certificate of an authorised analyst stating the result of an analysis or examination is admissible in evidence in any legal proceedings as evidence of the facts stated in the certificate and the correctness of the result of the analysis or examination.

(2) A certificate of an authorised analyst that, on receipt of a container containing a sample submitted to the analyst by an authorised officer or any other person, the container was sealed and the seal securing the container was unbroken is admissible in evidence in any legal proceedings as evidence:

(a) of the facts stated in the certificate, and

(b) that the sample was the same sample as the one obtained by the authorised officer or other person, and

(3) For the purposes of this section, a document purporting to be a certificate under this section is, unless the contrary is proved, to be taken to be such a certificate.

367B Rebuttable presumptions

(1) In any proceedings for an offence against this Act or the regulations being taken against a landholder:

(a) the fact that a water management work is or has been located:

(i) on the landholder’s land, or

(ii) in a river or lake within the landholder’s land,

gives rise to a rebuttable presumption that the work was constructed by the landholder, and

(b) the fact that a water management work is being or has been used:

(i) on the landholder’s land, or

(ii) in a river or lake within the landholder’s land,

gives rise to a rebuttable presumption that the work is being or has been used by the landholder, and

(i) on the landholder’s land, or

(ii) in a river or lake within the landholder’s land,

gives rise to a rebuttable presumption that the water is being or has been taken by the landholder, and

(d) the fact that water is being or has been discharged into a water source by means of a drainage work situated on the landholder’s land gives rise to a rebuttable presumption that the water is being or has been discharged by the landholder, and

(e) the fact that water is being or has been used on the landholder’s land gives rise to a rebuttable presumption that the water is being or has been used by the landholder, and

(f) the fact that a controlled activity is being or has been carried out on waterfront land within the landholder’s land gives rise to a rebuttable presumption that the activity is being or has been carried out by the landholder, and

(g) the fact that an aquifer interference activity is being or has been carried out on the landholder’s land gives rise to a rebuttable presumption that the activity is being or has been carried out by the landholder.

(2) In any proceedings for an offence against this Act or the regulations being taken against the holder of an approval for a water supply work, the fact that water is being or has been taken from a water source:

(a) by means of the work, or

(b) through metering equipment installed in connection with the work,

gives rise to a rebuttable presumption that the holder of the approval is or has been using the work to take water from that water source.

(3) In any proceedings for an offence against this Act or the regulations, the fact that a work of the kind referred to in:

(a) the definition of drainage work in the Dictionary, or

(b) paragraph (a), (b) or (c) of the definition of water supply work in the Dictionary,

is capable of being used for the purpose referred to in that provision gives rise to a rebuttable presumption that the work has been constructed or used for that purpose.

(4) This section does not limit the operation of section 60E or 91L.

Division 2 Appeals

368 Appeals to Land and Environment Court

(1) An appeal lies to the Land and Environment Court against any of the following decisions made by the Minister:

(a) a decision refusing to grant an access licence,

(b) a decision granting a designated access licence, if the appellant was an objector to the granting of the licence,

(d) a decision fixing the term of an access licence,

(e) a decision refusing consent to a dealing in an access licence,

(f) a decision suspending or cancelling an access licence,

(fa) a decision:

(i) in relation to the recording of any matter in the Access Register, or

(ii) in relation to the issue of any access licence certificate,

(g) a decision refusing to grant an approval, other than a decision refusing to accept an application for an approval,

(h) a decision granting a designated approval, if the appellant was an objector to the granting of the approval,

(i) a decision imposing a discretionary condition on an approval,

(j) a decision fixing the term of an approval,

(k) a decision refusing to amend an approval in accordance with an application made by its holder,

(l) a decision suspending or cancelling an approval,

(la) a decision ordering an irrigation corporation to pay a civil penalty to the Minister,

(m) a decision ordering a major utility or local water utility to pay a civil penalty to the Minister,

(ma) a decision under section 60G,

(n) a decision to give a direction to a person under Part 1,

(o) a decision as to a person’s entitlement to compensation for damage arising from the exercise of a power of entry under Part 2.

(2) Despite subsection (1):

(a) no appeal lies against any decision made by the Minister on an application to which an objection has been made if:

(i) in the case of the applicant, the Minister has dismissed the application as a consequence of the applicant having failed to participate in mediation or neutral evaluation proceedings, or

(ii) in the case of the objector, the Minister has dismissed the objection as a consequence of the objector having failed to participate in mediation or neutral evaluation proceedings, and

(b) no appeal lies against any decision made by the Minister pursuant to a report from a Commission of Inquiry under section 119 of the Environmental Planning and Assessment Act 1979, and

(c) no appeal lies against a decision of the Minister to grant a licence under section 63A or 63B or to impose a discretionary condition on such a licence.

(3) An appeal is to be made in accordance with rules of court, but may not be made more than 28 days after the date on which the decision was made.

(4) In addition to the appellant and the Minister:

(a) the parties to an appeal made by an applicant for a designated access licence or designated approval against a decision refusing to grant the licence or approval include any objector to the granting of the licence or approval who, in accordance with rules of court, gives notice to the Land and Environment Court of the objector’s wish to become a party to the appeal, and

(b) the parties to an appeal made by an objector to the granting of a designated access licence or designated approval against a decision granting the licence or approval include the applicant for the licence or approval.

(5) The lodging of an appeal does not operate to stay action on the decision appealed against, except to the extent that the Land and Environment Court otherwise directs.

(6) In this section:

designated access licence means an access licence to which a person has a right of objection under section 62.

designated approval means an approval to which a person has a right of objection under section 93.