Western Australian Consolidated Acts Western Australian Consolidated Acts[s. 5C(1)(d) and (3)]
[Heading inserted by No. 49 of 2000
s. 52.]
[Heading inserted by No. 49 of 2000
s. 52.]
1 . Terms used in this Schedule
In this Schedule,
unless the contrary intention appears —
licence means a licence under section 5C;
public interest means public interest having
regard to any economic, social or recreational benefits to the public, or to a
section of the public.
[Clause 1 inserted by No. 49 of 2000
s. 52.]
2 . Licences for different purposes
(1) Licences of
different descriptions may be granted under section 5C to authorise the
doing of different things that come within that section.
(2) Licences to
authorise the doing of different things that come within section 5C may
be contained in a single instrument.
(3) Where a person is
granted —
(a) a
licence under section 5C; and
(b) a
licence under section 26D,
in respect of a well
the licences may be combined in a single instrument.
[Clause 2 inserted by No. 49 of 2000
s. 52.]
3 . Persons who are eligible to hold licences
A person is eligible
to hold a licence if —
(a) the
person is an owner or occupier of the land to which the licence relates;
(b) the
person does not come within paragraph (a) but satisfies the
Minister —
(i)
that the owner and any occupier of the land to which the
licence relates have agreed in writing to the person —
(I) being on the land; and
(II) doing there the
things that may be done under the licence;
and
(ii)
that the agreement is likely to have effect for a
sufficient period to enable the licence concerned to operate;
(c) the
person is a public utility that has powers under a written law in relation to
water on or under any land, but those powers are exercisable in accordance
with a licence;
(d) the
person —
(i)
is authorised by or under a written law to engage in
an activity in relation to land or water; and
(ii)
satisfies the Minister that the doing of the things that
may be done under the licence is recognised by that written law as being
related or incidental to that activity;
or
(e) the
person is within a class or description of persons that is prescribed by local
by-laws for the purposes of this clause.
[Clause 3 inserted by No. 49 of 2000
s. 52; amended by No. 38 of 2007 s. 87 and 101(3).]
Division 2 — Applications and licensing decisions
[Heading inserted by No. 49 of 2000
s. 52.]
(1) An application for
a licence —
(a) may
only be made by a person who is eligible to hold the licence, or who satisfies
the Minister that he or she is interested in being such a person and is likely
to do so;
(b) must
be made in the form specified for the purpose by the Minister;
(c) must
include, or be accompanied by, any plans or other information that are stated
in the form to be required; and
(d) must
be accompanied by the prescribed fee.
(2) An applicant for a
licence must provide the Minister with any further information that the
Minister may require.
(3) Paragraph (a)
of subclause (1) does not prevent an agent from signing an application
made by a person referred to in that paragraph.
[Clause 4 inserted by No. 49 of 2000
s. 52; amended by No. 38 of 2007 s. 101(3).]
5 . Advertising of application
The regulations may
provide for and in relation to —
(a) the
public notification of —
(i)
applications, or specified kinds of applications,
for the grant or renewal of a licence; or
(ii)
applications that the Minister determines are to be
publicly notified;
(b) a
right to make submissions to the Minister on applications mentioned in
paragraph (a); and
(c) the
persons who are to have that right.
[Clause 5 inserted by No. 49 of 2000
s. 52; amended by No. 38 of 2007 s. 101(3).]
6 . Applicant may make submissions
(1) This clause
applies where the Minister proposes —
(a) to
refuse an application for a licence; or
(b) to
grant, or undertake to grant, a licence subject to the inclusion of a term,
condition or restriction that the Minister considers is inconsistent with the
terms of the application.
(2) The Minister is to
notify the applicant —
(a) of
the Minister’s proposal; and
(b) that
the applicant has a right to make written submissions to the Minister, or be
heard by a person designated by the Minister for that purpose, before the
Minister makes a decision on the application.
(3) Written
submissions may be made by the applicant, as mentioned in
subclause (2)(b), within 30 days after the applicant is given notice
under that subclause.
(4) The Minister is to
have regard to any submissions made by the applicant under subclause (3)
before the Minister makes a final decision.
[Clause 6 inserted by No. 49 of 2000
s. 52; amended by No. 38 of 2007 s. 88, 101(2) and (3).]
7 . Grant or refusal at Minister’s
discretion
(1) The grant or
refusal of an application for a licence and the terms, conditions and
restrictions to be included in the licence are, subject to clause 8, at
the discretion of the Minister.
(2) In exercising that
discretion, the Minister is to have regard to all matters that the Minister
considers relevant, including whether the proposed taking and use of
water —
(a) are
in the public interest;
(b) are
ecologically sustainable;
(c) are
environmentally acceptable;
(d) may
prejudice other current and future needs for water;
(e)
would, in the opinion of the Minister, have a detrimental effect on another
person;
(f)
could be provided for by another source;
(g) are
in keeping with —
(i)
local practices;
(ii)
a relevant local by-law;
(iii)
a plan approved under Part III Division 3D
Subdivision 2; or
(iv)
relevant previous decisions of the Minister;
or
(h) are
consistent with —
(i)
land use planning instruments;
(ii)
the requirements and policies of other government
agencies; or
(iii)
any intergovernmental agreement or arrangement.
(3) The Minister may
refuse to grant a licence to a person on the ground that the person has been
convicted of an offence against this Act.
(4) The Minister may
refuse to grant a licence to a person if the Minister is not satisfied that
the person has the resources, including the financial resources, to carry out
the activities to which the licence relates.
(5) Without limiting
subclause (1), terms, conditions and restrictions prescribed or imposed
for the purposes of that subclause may relate to any matter provided for by
the Appendix to this Schedule.
[Clause 7 inserted by No. 49 of 2000
s. 52; amended by No. 38 of 2007 s. 101(2) and (3).]
8 . When Minister must refuse licence
The Minister must
refuse to grant a licence to a person if the Minister considers that the
person would not be willing or able to comply with the terms, conditions and
restrictions that would be included in the licence.
[Clause 8 inserted by No. 49 of 2000
s. 52; amended by No. 38 of 2007 s. 101(2) and (3).]
9 . Where applicant is not eligible to hold
licence
(1) The Minister may
only grant a licence to a person who is eligible in terms of clause 3 to
hold the licence.
(2) If the Minister
would grant a licence to an applicant but for the fact that the applicant is
not a person who is eligible in terms of clause 3 to hold the licence,
the Minister may undertake to grant the licence to the person if the person
becomes eligible to hold the licence within the period of time specified in
the undertaking.
[Clause 9 inserted by No. 49 of 2000
s. 52; amended by No. 38 of 2007 s. 101(3).]
10 . Minister to give certain information
(1) The Minister is to
notify the outcome of the application, including details of any undertaking
given under clause 9 and the terms, conditions and restrictions to be
included in the licence —
(a) to
the applicant for a licence; and
(b) if
the application was required to be publicly notified under regulations
referred to in clause 5, to any person who made a submission under those
regulations.
(2) If the
Minister —
(a)
refuses the application; or
(b)
grants, or undertakes to grant, the application subject to the inclusion of a
term, condition or restriction that the Minister considers is inconsistent
with the terms of the application,
the Minister is to
notify the applicant of the reasons for the decision.
[Clause 10 inserted by No. 49 of 2000
s. 52; amended by No. 38 of 2007 s. 101(3).]
A licence may relate
to more than one place, facility or well at or from which water may be taken.
[Clause 11 inserted by No. 49 of 2000
s. 52.]
(1) A licence may be
granted or renewed for —
(a) a
fixed period; or
(b) an
indefinite duration,
as stated in the
licence or the renewal.
(2) A licence for an
indefinite duration continues in force until it is —
(a)
terminated under clause 13(1);
(b)
suspended or cancelled under clause 25; or
(c)
surrendered under clause 27.
(3) If a licence is
granted to an owner or occupier of land —
(a)
authorising the continued taking of water —
(i)
from a water resource which is below the land, or runs
through, is contiguous to or partly situated within the land; and
(ii)
which, before, and at the time of, the application of
section 5C to that water resource, was taken periodically or continually
from the water resource;
and
(b) the
application for the licence is made within 12 months after the day on
which section 5C became applicable to the water resource,
the licence is to be
granted for a period of 10 years from the day on which section 5C
became applicable to the water resource.
(4) In
subclause (3) —
water resource means a watercourse, wetland or
underground water source to which section 5C applies.
(5) Sufficient details
to identify a licence granted for a period exceeding —
(a) a
period specified in a relevant plan approved under Part III
Division 3D Subdivision 2 in respect of that type of licence; or
(b) if a
period is not specified in such a plan in respect of that type of licence,
10 years or such period as is prescribed in respect of that type of
licence,
are to be included in
the annual report submitted by the accountable authority of the Department
under Part 5 of the Financial Management Act 2006 .
[Clause 12 inserted by No. 49 of 2000
s. 52; amended by No. 77 of 2006 s. 17; No. 38 of 2007
s. 89.]
13 . Licensee becoming ineligible
(1) Subject to
subclause (2) and clause 14, a licence is terminated if the licensee
ceases to be eligible in terms of clause 3 to hold the licence.
(2) The regulations
may make provision applicable to cases other than those referred to in
clause 14 —
(a) for
the time at which termination under subclause (1) has effect; and
(b) in
relation to the transfer of the licence, or a water entitlement under the
licence, under Division 7 where the licensee ceases to be eligible in
terms of clause 3 to hold the licence.
[Clause 13 inserted by No. 49 of 2000
s. 52.]
14 . Licensee ceasing to be owner or occupier of
land
(1)
Where —
(a) the
licensee is the owner or occupier of all of the land to which the licence
relates; and
(b)
another person becomes the owner or occupier of that land in place of the
licensee,
clause 13(1)
applies subject to the following provisions —
(c) the
licensee and the new owner or occupier are allowed a period of 30 days
from the day of change of ownership or occupancy to make an application under
Division 7 for approval of the transfer of the licence to the new owner
or occupier;
(d) the
new owner or occupier is taken to be the licensee —
(i)
during that period; and
(ii)
if an application referred to in paragraph (c) is
made within that period, until the Minister has determined the application;
and
(e) the
Minister must approve the application for the transfer of the licence to the
new owner or occupier if all of the terms, conditions and restrictions
included in the licence have been complied with.
(2)
Clause 14(1)(d) does not apply if the new owner or occupier has informed
the Minister in writing that an application will not be made under
clause 14(1)(c) to transfer the licence to him or her.
[Clause 14 inserted by No. 49 of 2000
s. 52; amended by No. 38 of 2007 s. 101(3).]
Division 3 — Terms, conditions and restrictions
[Heading inserted by No. 49 of 2000
s. 52.]
15 . Inclusion of terms, conditions and
restrictions in licence
(1) The regulations
may prescribe terms, conditions and restrictions that are to be taken to be
included in —
(a) all
licences;
(b)
licences of a particular kind;
(c)
licences relating to a particular area; or
(d)
licences of a particular kind relating to a particular area.
(2) The Minister may,
at the Minister’s discretion, include in a licence any term, condition
or restriction additional to those referred to in subclause (1), but
clause 7(2) applies to the exercise of that discretion.
(3) Without limiting
subclause (1) or (2), terms, conditions and restrictions prescribed or
imposed for the purposes of those subclauses may relate to any matter provided
for by the Appendix to this Schedule.
[Clause 15 inserted by No. 49 of 2000
s. 52; amended by No. 38 of 2007 s. 90 and 101(3).]
16 . Compliance with condition when licence
inoperative
A licence may require
that a term, condition or restriction included in the licence must be complied
with, or must continue to be complied with, even though the acts or series of
acts authorised to be done under the licence have been completed.
[Clause 16 inserted by No. 49 of 2000
s. 52.]
17 . Condition for payment of money to person
affected by licence
(1) This clause
applies if —
(a) the
grant of a licence to a person; or
(b) the
amendment of a licence held by a person,
will, in the opinion
of the Minister, result in the quantity of water that any other licensee or
person ( an affected person ) will be able to take being reduced to less than
the water entitlement of that person.
(2) Where this clause
applies, the Minister may, if the Minister considers that equity so requires,
include in the licence referred to in paragraph (a) or (b) of
subclause (1) a condition that the person referred to in that
paragraph ( the benefiting licensee ) pay an amount of money, or
periodical amounts of money, to an affected person for or
towards —
(a)
direct pecuniary loss; or
(b) loss
of profits,
or both (if any),
suffered by that person as a result of the reduction.
(3) A condition may be
in terms that an amount is to be —
(a) as
agreed between an affected person and the benefiting licensee; or
(b)
failing agreement within a specified period, as determined —
(i)
by the Minister; or
(ii)
by arbitration under the Commercial Arbitration
Act 1985 .
(4) In this
clause —
water entitlement means the quantity of water that
a person is entitled to take under this Act or under a licence.
[Clause 17 inserted by No. 49 of 2000
s. 52; amended by No. 38 of 2007 s. 101(2) and (3).]
18 . Minister may direct compliance with licence
condition
(1) If a licensee
fails to comply with any term, condition or restriction included in a licence,
the Minister may direct the licensee to comply with that term, condition or
restriction.
(2) A direction under
subclause (1) must —
(a) be
given by notice in writing served on the licensee; and
(b)
specify the time within which the direction is to be complied with.
(3) If a licensee to
whom a direction has been given does not comply with the direction within the
specified time, or any additional time allowed by the
Minister —
(a) the
licensee commits an offence and is liable to a fine of $2 500 and a daily
penalty of $250; and
(b) the
Minister may —
(i)
do all or part of whatever the direction requires to be
done; and
(ii)
recover the costs and expenses incurred by the Minister
as a debt due by the licensee.
(4) In this
clause —
licensee , in relation to a licence, includes a
person whose name is endorsed on the licence as a person with whom the holder
of the licence has an agreement referred to in clause 30 relating to the
taking of water under the licence by that person.
(5) The Minister may
give a direction to a person included as a licensee due to subclause (4)
only if the Minister —
(a) is
of the opinion that it is the responsibility, and within the power, of that
person to comply with the term, condition or restriction included in the
licence; and
(b) gave
that person sufficient written notice of that term, condition or restriction
for the person to comply with it.
[Clause 18 inserted by No. 49 of 2000
s. 52; amended by No. 38 of 2007 s. 101(2) and (3).]
Division 4 — Notation on licence of interest of third
party
[Heading inserted by No. 49 of 2000
s. 52.]
Clause 20 applies
where —
(a) the
Minister is satisfied that —
(i)
a licensee is obliged by an agreement with any person (
the third party ) in relation to the whole or a part of the water taken under
the licence or in relation to the taking of water under the licence by that
person; and
(ii)
it is appropriate for the Minister to recognise that
obligation;
and
(b) the
licence has been endorsed by the Minister with a notation showing that the
licence is subject to clause 20.
[Clause 19 inserted by No. 49 of 2000
s. 52; amended by No. 38 of 2007 s. 101(3).]
20 . Restrictions on dealing with licence
If this clause
applies, the following things cannot be done without the consent in writing of
the third party —
(a) an
application which, if granted, will affect matters to which the agreement
relates cannot be made under —
(i)
clause 23 to amend the licence; or
(ii)
clause 32 for approval of the transfer of the
licence;
and
(b) the
licence cannot be surrendered under clause 27.
[Clause 20 inserted by No. 49 of 2000
s. 52.]
21 . Further provisions as to notation
A notation referred to
in clause 19(b) —
(a) must
identify the agreement and the third party concerned; and
(b) does
not give the agreement to which it relates any force it would not otherwise
have had.
[Clause 21 inserted by No. 49 of 2000
s. 52.]
Division 5 — Renewal of licences
[Heading inserted by No. 49 of 2000
s. 52.]
(1) An application for
the renewal of a licence that is in force for a fixed
period —
(a) must
be made in the form specified for the purpose by the Minister; and
(b) must
be accompanied by the prescribed fee.
(2) On an application
for renewal of a licence, the licence is to be renewed unless —
(a) the
renewal would be inconsistent with —
(i)
a relevant local by-law; or
(ii)
a plan approved under Part III Division 3D
Subdivision 2;
(b) the
Minister is of the opinion that, if the application for renewal was an
application for the grant of a licence, the Minister would exercise the
discretion under clause 7(2) to refuse to grant the licence;
(c) it
is a term of the licence that it is not renewable;
(d) a
term, condition or restriction included in the licence has not been complied
with; or
(e) in
the opinion of the Minister there are sufficient grounds for the exercise of
the power to cancel the licence under clause 25.
(3) Clause 6(2),
(3) and (4) apply where the Minister proposes —
(a) to
refuse an application for renewal of a licence; or
(b) to
renew a licence subject to the inclusion of a term, restriction or
condition that the Minister considers is inconsistent with the terms of the
application for renewal,
in the same way as
they apply to an application for a licence.
(4) Clauses 8 and
10(2) apply to an application for renewal in the same way as they apply to an
application for a licence.
(5) A licence which
would otherwise expire after application has been made for its renewal but
before the Minister has made a decision as to that renewal remains in force
until that decision is made.
[Clause 22 inserted by No. 49 of 2000
s. 52; amended by No. 38 of 2007 s. 91, 101(2) and (3).]
Division 6 — Amendment, suspension, cancellation and
surrender of licences
[Heading inserted by No. 49 of 2000
s. 52.]
23 . Application by licensee for amendment of
licence
(1) A licensee may
apply to the Minister at any time for amendment of the licence.
(2) Clauses 4, 6,
7, 10 and 12 and Division 3 apply, with all necessary modifications, to
an application under subclause (1) as if it were an application for the
grant of a licence.
(3) Despite
subclause (2), a fee may be prescribed for an application under
subclause (1) that is different from that prescribed for the purposes of
clause 4(1)(d).
[Clause 23 inserted by No. 49 of 2000
s. 52; amended by No. 38 of 2007 s. 101(3).]
24 . Minister may amend licence
(1) The Minister may,
subject to this clause and clause 26, by notice in writing given to the
licensee —
(a) vary
the duration of a licence;
(b)
vary, add to or remove any term, condition or restriction included in the
licence; or
(c)
include any new term, condition or restriction in the licence.
(2) The Minister may
only exercise a power described in subclause (1) in relation to a licence
if —
(a) the
licensee consents to the Minister doing so;
(b) in
the opinion of the Minister, the exercise of the power is necessary or
desirable —
(i)
due to the detrimental effect of actions authorised by
the licence on another person;
(ii)
to protect the water resource to which the licence
relates from unacceptable damage; or
(iii)
to protect the associated environment from unacceptable
damage;
(c) in
the opinion of the Minister, the exercise of the power is necessary to prevent
serious damage to life or property;
(d) in
the opinion of the Minister, the quantity of water that may be taken under the
licence has consistently not been taken;
(e) in
the opinion of the Minister, the exercise of the power is necessary or
desirable —
(i)
in the public interest;
(ii)
because the water resource to which the licence relates
is insufficient to meet demand or expected demand; or
(iii)
otherwise to more effectively regulate the use of that
water resource;
(f) in
the opinion of the Minister, the exercise of the power is necessary to prevent
a serious inconsistency arising as a result of —
(i)
the approval of a plan, or the alteration, revocation or
substitution of a plan, under Part III Division 3D Subdivision 2; or
(ii)
the making, amendment or repeal of relevant local
by-laws;
(g) the
licensee, or a person whose name is endorsed on the licence as a person with
whom the licensee has an agreement referred to in clause 30, is convicted
of an offence against this Act;
(h) in
the opinion of the Minister, the exercise of the power is necessary to comply
with another written law of the State or a law of the Commonwealth;
(i)
the licensee has applied under clause 32 for
approval of the transfer of the licence or a water entitlement under the
licence or of an agreement referred to in clause 30, and the exercise of
the power is necessary or desirable to give effect to the transfer or
agreement; or
(j) the
licence confers authority for the Minister to do so.
[Clause 24 inserted by No. 49 of 2000
s. 52; amended by No. 38 of 2007 s. 101(3).]
25 . Minister may suspend or cancel licence
(1) The Minister may,
subject to this clause and clause 26, by notice in writing given to the
licensee —
(a)
suspend a licence —
(i)
for a fixed period specified in the notice; or
(ii)
until such time as the licensee is notified by the
Minister that the suspension no longer applies;
or
(b)
cancel a licence.
(2) The Minister may
only exercise a power described in subclause (1) in relation to a licence
if —
(a) in
the opinion of the Minister, the exercise of the power is necessary or
desirable —
(i)
due to the detrimental effect of actions authorised by
the licence on another person;
(ii)
to protect the water resource to which the licence
relates from unacceptable damage; or
(iii)
to protect the associated environment from unacceptable
damage;
(b) in
the opinion of the Minister, the exercise of the power is necessary due to a
serious inconsistency, which cannot be resolved by an amendment under
clause 24, arising as a result of —
(i)
the approval of a plan, or the alteration, revocation or
substitution of a plan, under Part III Division 3D Subdivision 2; or
(ii)
the making, amendment or repeal of relevant local
by-laws;
(c) the
licensee or a person whose name is endorsed on the licence as a person with
whom the licensee has an agreement referred to in
clause 30 —
(i)
is convicted of an offence against this Act; or
(ii)
has contravened or failed to comply with any term,
condition or restriction included in the licence;
(d) in
the opinion of the Minister, the exercise of the power is necessary to comply
with another written law of the State or a law of the Commonwealth;
(e) in
the opinion of the Minister, the exercise of the power is necessary or
desirable in the public interest;
(f) the
licence confers authority for the Minister to do so; or
(g)
prescribed circumstances apply.
(3) The suspension or
cancellation of a licence has effect to suspend or cancel the rights and
privileges conferred by the licence but does not affect the duties imposed by
the licence.
[Clause 25 inserted by No. 49 of 2000
s. 52; amended by No. 38 of 2007 s. 101(3).]
26 . Licensee’s rights before licence
amended, suspended or cancelled
(1) Except as provided
by subclauses (2) and (3), this clause applies where the Minister
proposes to exercise a power conferred by clause 24 or 25.
(2) This clause does
not apply to the proposed exercise of a power conferred by clause 24 or
25 —
(a) if
the Minister is of the opinion that the exercise of the power is necessary to
prevent loss of life or property or serious injury to persons or property; or
(b) if
the power is to be exercised in circumstances prescribed by the regulations.
(3) This clause does
not apply to the proposed exercise of a power conferred by —
(a)
clause 24 in the circumstances mentioned in subclause (2)(a) of that
clause; or
(b)
clause 25 in the circumstances mentioned in subclause (2)(c)(i) of
that clause.
(4) Where this clause
applies, the Minister is to notify the licensee —
(a) of
the Minister’s proposal; and
(b) that
the licensee has a right to make written submissions to the Minister, or be
heard by a person designated by the Minister for that purpose, before the
Minister makes a decision to exercise the power.
(5) Written
submissions may be made by the licensee, as mentioned in
subclause (4)(b), within such period after the licensee is given notice
under that subclause as is specified in the notice.
(6) The Minister is to
have regard to any submissions made by the licensee under subclause (5)
before the Minister makes a final decision.
[Clause 26 inserted by No. 49 of 2000
s. 52; amended by No. 38 of 2007 s. 92 and 101(3).]
A licence may be
surrendered at any time to the Minister if the licensee has complied with any
terms, conditions or restrictions included in the licence relating to its
surrender.
[Clause 27 inserted by No. 49 of 2000
s. 52; amended by No. 38 of 2007 s. 101(3).]
Division 7 — Transfers of licences and water
entitlements and agreements with licensees to take water
[Heading inserted by No. 49 of 2000
s. 52.]
28 . Meaning of “water entitlement”
In this
Division —
water entitlement , in relation to a licence,
means the quantity of water that the licensee is entitled to take under the
licence, and includes part of a water entitlement.
[Clause 28 inserted by No. 49 of 2000
s. 52.]
29 . Transfers of licences and entitlements
(1) Subject to this
Division, the holder of a licence may transfer —
(a) the
licence; or
(b) the
licensee’s water entitlement under the licence
to a person who holds,
or is eligible in terms of clause 3 to hold, a licence of the same kind.
(2) Subclause (1)
does not apply to a licence of a particular kind to the extent that a relevant
local by-law prohibits the transfer of licences, or water entitlements under
licences, of that kind.
(3) A transfer of a
water entitlement under a licence between licensees may be made by the
Minister amending the transferring and receiving licences.
[Clause 29 inserted by No. 49 of 2000
s. 52; amended by No. 38 of 2007 s. 101(3).]
29A . Transfers of licence — death of
licence holder
(1) If —
(a) a
holder of a licence (the deceased holder ) dies; and
(b)
probate of the will, or letters of administration of the estate, of the
deceased holder is granted before the end of the 12 months immediately
following the death of the deceased holder or that period as extended under
subclause (5) in relation to the deceased holder,
the executor or
administrator becomes, on the grant of probate or letters of administration,
the holder of the deceased holder’s interest in the licence to deal with
as executor or administrator.
(2) If the death of a
holder of a licence (the deceased holder ) means that no person holds the
licence, the licence does not cease but continues, under this subclause, until
the earlier of —
(a) the
end of the 12 months immediately following the death of the deceased
holder or that period as extended under subclause (5) in relation to the
deceased holder; or
(b) the
time at which probate of the will, or letters of administration of the estate,
of the deceased holder, or any other person who was a holder of the licence at
the time of his or her death, is granted.
(3) Any thing done or
omitted to be done under the licence, while it continues under
subclause (2), on behalf of the deceased holder, or any other person who
was a holder of the licence at the time of his or her death, is as valid and
as lawful as it would have been if done, or omitted to be done, by the
deceased holder or that other person.
(4) This clause does
not apply so as to extend the term of a licence that is for a fixed term.
(5) The Minister may,
on application, extend the period referred to in subclause (1)(b) or
(2)(a) in relation to a particular deceased holder if the circumstances of the
case warrant it.
[Clause 29A inserted by No. 38 of 2007
s. 93.]
30 . Agreements with licensees to take water
(1) Subject to this
Division, the holder of a licence may enter into an agreement with another
person ( the third party ) relating to the taking of water under the licence
by the third party for a limited period of time.
(2) An agreement
referred to in subclause (1) is of no effect to the extent that a
relevant local by-law prohibits such agreements in relation to licences,
licences of a particular kind or in particular circumstances.
(3) An agreement
referred to in subclause (1) is of no effect unless —
(a) it
is entered into with a person who holds, or is eligible in terms of
clause 3 to hold, a licence of the same kind;
(b) it
has been approved by the Minister; and
(c) the
licence is endorsed in accordance with clause 36(d).
(4) Subject to
subclauses (2) and (3)(a), the grant or undertaking to grant approval
under subclause (3)(b) is at the discretion of the Minister.
(5) In exercising that
discretion, the Minister is to have regard to all matters the Minister
considers relevant, including those set out in clause 7(2).
(6) If the Minister
would approve an agreement referred to in subclause (1) but for the fact
that the third party is not a person who is eligible in terms of clause 3
to hold such a licence, the Minister may undertake to approve the agreement if
the third party becomes a person who is eligible to hold the licence within
the period of time specified in the undertaking.
(7) Without limiting
subclause (4), the Minister may refuse to approve an agreement, or to
undertake to approve an agreement, if the third party is a person who has
committed an offence against this Act.
[Clause 30 inserted by No. 49 of 2000
s. 52; amended by No. 38 of 2007 s. 94, 101(2) and (3).]
31 . Approval of Minister required
(1) A transfer of a
licence or a water entitlement cannot be made without the approval of the
Minister.
(2) The Minister must
refuse to approve the transfer of a licence to a person who is not eligible
under clause 3 to hold the licence.
(3) If the Minister
would approve the transfer of a licence to a person but for the fact that the
person is not a person who is eligible in terms of clause 3 to hold the
licence, the Minister may undertake to approve the transfer of the licence to
the person if the person becomes eligible to hold the licence within the
period of time specified in the undertaking.
(4) Subject to
subclause (2), the grant, or undertaking to grant, approval to the
transfer of a licence or water entitlement or the refusal to do so is at the
discretion of the Minister.
(5) In exercising that
discretion, the Minister is to have regard to all matters that the Minister
considers relevant, including those set out in clause 7(2).
(6) Without limiting
subclause (4), the Minister may refuse to approve the transfer of a water
licence or a water entitlement, or to undertake to approve any such transfer,
to a person who has committed an offence against this Act.
[Clause 31 inserted by No. 49 of 2000
s. 52; amended by No. 38 of 2007 s. 101(2) and (3).]
32 . Application for Minister’s approval
(1) An application for
approval of the transfer of a licence or a water entitlement or of an
agreement referred to in clause 30 —
(a) must
be made in the form specified for the purpose by the Minister;
(b) must
include information that is stated in the form to be required; and
(c) must
be accompanied by the prescribed fee.
(2) An applicant must
provide the Minister with any further information that the Minister may
require.
[Clause 32 inserted by No. 49 of 2000
s. 52; amended by No. 38 of 2007 s. 101(3).]
33 . Minister may direct that assessment be made
Before determining an
application made under clause 32, the Minister may direct that an
assessment of the effect of granting the application be made, at the expense
of the applicant, by an expert appointed or approved by the Minister.
[Clause 33 inserted by No. 49 of 2000
s. 52; amended by No. 38 of 2007 s. 101(3).]
34 . Consent of person having security interest
Where a person is
noted on the register referred to in section 26GZI as having a security
interest (as defined in Part III Division 3E) in a licence, the
Minister must not approve the transfer of the licence or the water entitlement
under the licence, or of an agreement referred to in clause 30, without
the written consent of that person.
[Clause 34 inserted by No. 49 of 2000
s. 52; amended by No. 38 of 2007 s. 101(3).]
35 . Requirement for notice of application in
certain cases
(1) This clause
applies to applications under clause 32 of a kind prescribed by local
by-laws for the purposes of this clause.
(2) Notice of the
application must be given by the Minister to any person required by local
by-laws to be notified.
(3) A person to whom
notice has been given may, in accordance with the regulations, make
submissions in writing to the Minister in relation to the grant or refusal of
the application.
(4) The Minister must
give the applicant a copy of any submissions made and allow the applicant an
opportunity to respond in writing to the submissions.
(5) The response
referred to in subclause (4) must be made within the number of days
prescribed by the regulations after the relevant material is given to the
applicant.
(6) The Minister may
allow a person, who, in submissions made, requested that the person be heard,
a reasonable opportunity to appear personally or by representative before and
make submissions to —
(a) a
person designated by the Minister for that purpose; or
(b) a
water resources management committee established for the area under Part III
Division 3C.
(7) If a person so
appears, the Minister must also allow the applicant a reasonable opportunity,
on request, to appear personally or by representative in order to respond to
any relevant matter.
(8) The Minister must
give to each person who made submissions notice of —
(a) the
Minister’s decision on the application; and
(b) the
date of the decision.
(9) A notice under
subclause (8) must be given not later than 7 days after the date of
the decision.
[Clause 35 inserted by No. 49 of 2000
s. 52; amended by No. 38 of 2007 s. 95 and 101(3).]
36 . Endorsement and record of dealings
The Minister
must —
(a) in
the case of the transfer of a licence, endorse on the licence as licensee the
name of the person to whom the licence has been transferred;
(b) in
the case of the transfer of a water entitlement under a licence to a person
who does not hold a licence of the same kind, issue a licence to the person to
whom a water entitlement has been transferred endorsed with such particulars
as the Minister thinks fit relating to the transfer;
(c) in
the case of the transfer of a water entitlement under a licence to a person
who holds a licence of the same kind, endorse on the licences affected such
particulars as the Minister thinks fit relating to the transfer; and
(d) in
the case of an agreement referred to in clause 30 between the holder of a
licence and a third party relating to the taking of water under the licence by
the third party, endorse on the licence the name of the third party, the
period of the agreement and any other particulars the Minister thinks fit
relating to the agreement.
[Clause 36 inserted by No. 49 of 2000
s. 52; amended by No. 38 of 2007 s. 101(2) and (3).]
Division 8 — Transfer of licences and water entitlements
to the Minister
[Heading inserted by No. 49 of 2000
s. 52; amended by No. 38 of 2007 s. 96.]
37 . Meaning of “water entitlement”
In this
Division —
water entitlement , in relation to a licence,
means the quantity of water that the licensee is entitled to take under the
licence, and includes part of a water entitlement.
[Clause 37 inserted by No. 49 of 2000
s. 52.]
38 . Authority of Minister to receive transfers
(1) This clause
applies in relation to a licence if —
(a) the
regulations authorise the Minister to enter into an agreement under this
clause in relation to licences of the class to which the licence belongs;
(b) the
Minister considers that the water entitlement under the licence is not being
used in whole or in part;
(c) the
purpose for which water taken under the licence is being used is no longer a
purpose for which a licence would be granted by the Minister; or
(d) the
Minister considers that it would be in the public interest for the Minister to
enter into an agreement under this clause in relation to the licence.
(2) Where this clause
applies in relation to a licence, the Minister may enter into and give effect
to an agreement with the licensee under which —
(a) the
licensee is to transfer —
(i)
the licence; or
(ii)
a water entitlement,
to the Minister; and
(b) the
Minister is to pay an agreed amount to the licensee as consideration for the
transfer.
(3) An agreement under
subclause (2) may also contain provisions incidental and supplementary to
the matters mentioned in that subclause.
(4) Where a person is
noted on the register referred to in section 26GZI as having a security
interest (as defined in Part III Division 3E) in a licence, the Minister
must not enter into an agreement under subclause (2) in respect of the
licence without the written consent of that person.
[Clause 38 inse r ted by No. 49 of 2000
s. 52; amended by No. 38 of 2007 s. 97 and 101(3).]
[Heading inserted by No. 49 of 2000
s. 52.]
39 . Compensation for damage due to exercise of
Minister’s powers
(1) If a person
suffers damage, including loss of profit —
(a) due
to the exercise of a power under clause 24(2)(e)(i) in relation to a
licence held by the person;
(b) due
to the exercise of a power under clause 25(2)(e) in relation to a licence
held by the person;
(c) due
to the exercise of a power —
(i)
under clause 24(2)(b), (e)(ii) or (iii), (f) or (h); or
(ii)
under clause 25(2)(a), (b) or (d); or
(iii)
if so prescribed for the purposes of this paragraph, in
particular circumstances prescribed under clause 25(2)(g) in relation to
a licence held by the person;
(d) due
to the exercise of a power under clause 7(1) to refuse an application for
a licence, as a result of which the continued taking of water from a water
resource to which section 5C applies is not authorised, where, before,
and at the time of, the application of section 5C to that water resource,
water was taken periodically or continually from the water resource; or
(e) in
circumstances prescribed by a local by-law,
the Minister is, in
accordance with this clause, to compensate that person for the damage, to the
extent that it was due solely to the exercise of a power referred to in
paragraph (a), (b), (c) or (d) or is in a circumstance prescribed under
paragraph (e), if the person requests compensation.
(2) Damage may be
compensated for only if —
(a) it
is due to the loss of a use which was —
(i)
reasonable;
(ii)
authorised by the relevant licence, or not inconsistent
with this Act; and
(iii)
consistent with the objects of Part III;
and
(b) the
person requesting compensation is not responsible for the damage and has
attempted to offset or mitigate the damage as far as is practicable.
(3) Local by-laws may
prescribe —
(a) the
time within which compensation may be claimed and the procedures for making
claims;
(b) the
types of damage for which compensation is to be made; and
(c) how
compensation is to be assessed.
(4) The Minister may
require the person requesting compensation to provide information to the
Minister to enable the Minister to make a decision with respect to
compensation, and may require that person to verify that information by
statutory declaration.
(5) Compensation is
not payable in respect of an exercise of power referred to in
subclause (1)(c) to a person who has requested compensation,
unless —
(a) the
effect of the exercise of the power on the person is permanent; and
(b) the
Minister is of the opinion that the effect of the exercise of the power on the
person is not fair and reasonable having regard to the exercise of the power
in respect of other licence holders in the surrounding area.
(6) Compensation is
not payable in respect of an exercise of power referred to in
subclause (1)(d) to a person who has requested compensation,
unless —
(a) the
effect of the exercise of the power on the person is permanent;
(b) the
Minister is of the opinion that the effect of the exercise of the power on the
person is not fair and reasonable having regard to the exercise of the power
in respect of other applications for a licence in the surrounding area; and
(c) the
Minister is of the opinion that the damage suffered by the person is in
respect of the lawful taking and use of water by that person since
1 July 1999 or before.
(7) The Minister is to
notify the person who made the request for compensation of the outcome of the
request and, if the request is refused, the Minister is to notify that person
of the reasons for that decision.
(8) A dispute about
the amount of compensation is to be determined by arbitration under the
provisions of the Commercial Arbitration Act 1985 , unless the parties
agree on some other method of determination.
(9) Compensation under
this clause, and any costs incurred by the Minister under subclause (8),
are to be charged to the Consolidated Account, which this section appropriates
to the necessary extent.
[Clause 39 inserted by No. 49 of 2000
s. 52; amended by No. 77 of 2006 s. 4; No. 38 of 2007
s. 101(2) and (3); No. 46 of 2009 s. 14(3).]
Division 10 — Issue of licences and transfer of licences
and water entitlements by the Minister for a premium
[Heading inserted by No. 49 of 2000
s. 52; amended by No. 38 of 2007 s. 98.]
40 . Authority of Minister to issue licences at
premium
(1) This clause
applies in relation to the grant of a licence if —
(a) the
regulations authorise the Minister to enter into an agreement under this
clause in relation to the grant of licences of the class to which the licence
belongs; or
(b) the
Crown has established the facilities by the use of which water may be taken
under the licence.
(2) Where this clause
applies in relation to the grant of a licence, the Minister may enter into and
give effect to an agreement with a person under which —
(a) the
Minister is to grant a licence to the person; and
(b) the
person is to pay an agreed amount to the Minister as a premium for the grant
of the licence.
(3) An agreement under
subclause (2) may also contain provisions incidental and supplementary to
the matters mentioned in that subclause.
[Clause 40 inserted by No. 49 of 2000
s. 52; amended by No. 38 of 2007 s. 99 and 101(3).]
41 . Authority of Minister to transfer licences
etc. for premium
(1) This clause
applies in relation to a licence or a water entitlement if —
(a) the
regulations authorise the Minister to enter into an agreement under this
clause in relation to licences or water entitlements of the class to which the
licence belongs; or
(b) the
licence or water entitlement has been transferred to the Minister by an
agreement made under clause 38.
(2) Where this clause
applies in relation to a licence or a water entitlement, the Minister may
enter into and give effect to an agreement with a person who is eligible to
hold a licence under which —
(a) the
Minister is to transfer —
(i)
the licence; or
(ii)
the water entitlement,
to the person; and
(b) the
person is to pay an agreed amount to the Minister as consideration for the
transfer.
(3) The amount to be
paid as consideration may be established by public auction or tender or by
private treaty.
(4) An agreement under
subclause (2) may also contain provisions incidental and supplementary to
the matters mentioned in that subclause.
[Clause 41 inserted by No. 49 of 2000
s. 52; amended by No. 38 of 2007 s. 101(3).]
[Heading inserted by No. 49 of 2000
s. 52.]
42 . Notification to be given to Registrars
(1) If —
(a) a
licence under section 5C is —
(i)
granted;
(ii)
renewed under clause 22;
(iii)
amended under clause 24;
(iv)
suspended or cancelled under clause 25;
(v)
surrendered under clause 27; or
(vi)
transferred under clause 29, 38 or 41;
or
(b) a
security interest (as defined in Part III Division 3E) in a licence is
noted on the register referred to in section 26GZI; or
(c) the
notation referring to such a security interest is removed from the register or
any details of the notation in the register are varied, under
section 26GZQ,
the Minister is to
give notice of the event to the Registrar in the form approved by the
Registrar.
(2) The Registrar is
to record the notification, or remove a record relating to the notification,
as is appropriate, in the relevant documents relating to the land in the
appropriate manner.
(3) In this
clause —
Registrar means the Registrar of Titles under the
Transfer of Land Act 1893 or the Registrar of Deeds and Transfers under
the Registration of Deeds Act 1856 , as the case requires.
[Clause 42 inserted by No. 49 of 2000
s. 52; amended by No. 38 of 2007 s. 101(3); No. 46 of 2009
s. 14(4).]
43 . Licensee to maintain facilities
A licensee and a
person whose name is endorsed on a licence as a person with whom the licensee
has an agreement referred to in clause 30 must, to the extent that it is
under his or her power to do so, maintain works, facilities and equipment to
which the licence refers in good order and condition.
Penalty: $2 000.
[Clause 43 inserted by No. 49 of 2000
s. 52.]
44 . Licensee to notify change of circumstances
A licensee must
without delay inform the Minister in writing of any material change to the
facts or circumstances stated by the licensee in an application for the grant
or renewal of the licence.
Penalty: $2 000.
[Clause 44 inserted by No. 49 of 2000
s. 52; amended by No. 38 of 2007 s. 101(3).]
If the CEO is
satisfied that a licence has been lost or destroyed the CEO may issue a
duplicate licence on payment of the prescribed fee.
[Clause 45 inserted by No. 49 of 2000
s. 52; amended by No. 38 of 2007 s. 100.]
(1) The Minister
may —
(a)
cause a meter or meters to be placed or otherwise installed; or
(b)
require a licensee, or a person whose name is endorsed on a licence as a
person with whom a licensee has an agreement referred to in clause 30, to
provide and place or otherwise install a meter or meters,
on any well or other
facility that is the subject of a licence for taking water.
(2) A person who is
required to provide a meter under subclause (1) must —
(a)
maintain the meter in good condition; and
(b) use
every reasonable endeavour to ensure that the meter is operating accurately.
Penalty: $2 000.
(3) The Minister may
at any time —
(a)
cause a meter placed or installed by a person under subclause (1) to be
tested; or
(b)
require the testing of such a meter by a person approved by the Minister.
(4) The regulations
may prescribe fees —
(a) for
the cost and installation of a meter by the Minister;
(b) for
the maintenance, testing and replacement of a meter provided by the Minister;
or
(c) for
the reading of a meter,
and may combine a fee
authorised under this subclause with the fee under clause 4(1)(d).
(5) In this
clause —
meter means any device for measuring or estimating
the volume or flow of water that is approved, or is of a description that is
approved, by the Minister by order published in the Gazette .
[Clause 46 inserted by No. 49 of 2000
s. 52; amended by No. 38 of 2007 s. 101(3).]
47 . Meter reading to be presumed correct
The quantity of water
shown by a meter placed or installed under clause 46 as having passed
through the meter is to be presumed, in the absence of evidence to the
contrary, to be the amount of water that has actually been taken by the
licensee.
[Clause 47 inserted by No. 49 of 2000
s. 52.]
Matters to which licence terms, conditions or
restrictions may relate
[cl. 7(5) and 15(3) of Sch. 1]
[Heading inserted by No. 49 of 2000
s. 52.]
1. The taking, use or disposal of water,
including —
(a)
arrangements for water, whether from one source or different sources, to be
shared by a licensee with, or supplied by a licensee to, other persons; and
(b)
requirements to be met in relation to the taking, use or disposal of water by
a licensee who is the holder of an operating licence under the Water Services
Licensing Act 1995 .
2. The use, management, protection and enhancement
of —
(a) any
water resource and its ecosystem; or
(b) the
environment in which the water resource is situated.
3. The amendment, renewal or surrender of a
licence.
4. The transfer of a licence or water entitlement
(as defined in Division 7) by the licensee to another person, including a
prohibition or restriction on any such transfer of a licence or water
entitlement.
5. The transfer of a licence or water entitlement
(as defined in Division 7) that relates to any place so that it relates
to another place of the same kind, including a prohibition or restriction on
any such transfer of a licence or water entitlement.
6. An agreement referred to in clause 30,
including a prohibition or restriction on any such agreement.
7. The construction, alteration, maintenance or
operation of works, structures and equipment, including the qualifications of
persons who are responsible for any of those things.
8. The removal of works, structures and equipment,
the making good of land or premises, or the condition in which works,
structures, equipment, land or premises are to be left.
9. The monitoring of —
(a) any
water resource and its ecosystem; or
(b) the
environment in which the water resource is situated.
10. The provision of information to the
Commission, including information by way of periodical returns at specified
times.
[Appendix to Schedule 1 inserted by
No. 49 of 2000 s. 52; amended by No. 67 of 2003 s. 62.]
[Schedule 2 deleted by No. 55 of 2004 s. 1060.]