Water Act 1957
An Act to provide for the best use of the natural waters of the State and to that end to establish an authority to initiate and control the use of those waters, to codify the statute law affecting their use, to provide for the establishment of local river and water-supply authorities, to repeal the Water, Sewerage, and Drainage Board Act 1944 and to repeal or amend other Acts
[Royal Assent 1 November 1957]
Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:
PART I - Preliminary
1. Short title and commencement
(1) This Act may be cited as the Water Act 1957 .(2) This Act shall commence on a date to be fixed by proclamation.
(1) [Section 2 Subsection (1) omitted by No. 36 of 1958, s. 2 and Sched. 2 ]. . . . . . . .(2) The Acts specified in Schedule 2 are repealed so far as they are or may be in force in Tasmania.(3) The Acts specified in Schedule 3 are repealed so far as they are applicable to Tasmania, but section 16 of the Acts Interpretation Act 1931 does not apply to their repeal.(4) [Section 2 Subsection (4) omitted by No. 46 of 1991, s. 5 and Sched. 3 ]. . . . . . . .
[Section 3 Amended by No. 23 of 1960, s. 5 and Sched. 1 ][Section 3 Amended by No. 85 of 1985, s. 4 ][Section 3 Amended by No. 24 of 1993, s. 3 and Sched. 1 ][Section 3 Amended by No. 25 of 1994, s. 45 and Sched. 3 ][Section 3 Amended by No. 30 of 1995, s. 3 and Sched. 1 ][Section 3 Amended by No. 52 of 1995, s. 3 and Sched. 1 ]In this Act, unless the contrary intention appears –Acquisition Act means the Land Acquisition Act 1993 ;Commission means the Rivers and Water Supply Commission constituted under this Act;director has the same meaning as in the Government Business Enterprises Act 1995 ;employee has the same meaning as in the Government Business Enterprises Act 1995 ;Forestry corporation means the Forestry corporation established under section 6 of the Forestry Act 1920 ;groundwater means any water contained in, or occurring in, a geological formation that is capable of yielding to a well;irrigation includes any mode of watering fields, gardens, and orchards;lake includes any pond, swamp, or marsh;Minister for Health means the Minister administering the Public Health Act 1962 ;municipality means a council;Portfolio Minister has the same meaning as in the Government Business Enterprises Act 1995 ;river includes any waterfall, rivulet, or stream, whether perennial or intermittent;take, used in respect of water, includes divert and hold back;well means an excavation or borehole that is deeper than 3 metres below the surface of the earth and made or used for the purpose of extracting groundwater, but does not include a storage works where the surface area of the water is more than 100 square metres and the depth of the water is less than 5 metres.
PART II - The Rivers and Water Supply Commission
4. The Rivers and Water Supply Commission
(1) For the purposes of this Act there shall be a commission, to be called the Rivers and Water Supply Commission.(2) [Section 4 Subsection (2) omitted by No. 52 of 1995, s. 3 and Sched. 1 ]. . . . . . . .(3) [Section 4 Subsection (3) omitted by No. 52 of 1995, s. 3 and Sched. 1 ]. . . . . . . .
[Section 5 Substituted by No. 52 of 1995, s. 3 and Sched. 1 ](1) The Commission may appoint an employee or other person as a water bailiff.(2) A water bailiff must act honestly and justly in the performance and exercise of his or her functions and powers.
[Section 6 Substituted by No. 52 of 1995, s. 3 and Sched. 1 ]The Commission may arrange with the Secretary of the Department for the services of persons employed in the Department to be made available to enable the Commission to perform and exercise its functions and powers.[Section 7 Repealed by No. 52 of 1995, s. 3 and Sched. 1 ]. . . . . . . . [Section 8 Repealed by No. 52 of 1995, s. 3 and Sched. 1 ]. . . . . . . . [Section 9 Repealed by No. 52 of 1995, s. 3 and Sched. 1 ]. . . . . . . . [Section 10 Repealed by No. 52 of 1995, s. 3 and Sched. 1 ]. . . . . . . . [Section 11 Repealed by No. 52 of 1995, s. 3 and Sched. 1 ]. . . . . . . . [Section 12 Repealed by No. 52 of 1995, s. 3 and Sched. 1 ]. . . . . . . . [Section 13 Repealed by No. 5 of 1990, s. 3 and Sched. 1 ]. . . . . . . . [Section 14 Repealed by No. 52 of 1995, s. 3 and Sched. 1 ]. . . . . . . . [Section 14A Repealed by No. 52 of 1995, s. 3 and Sched. 1 ]. . . . . . . . [Section 15 Repealed by No. 52 of 1995, s. 3 and Sched. 1 ]. . . . . . . .
16. Functions, powers, and duties of the Commission
[Section 16 Subsection (4) amended by No. 25 of 1994, s. 45 and Sched. 3 ][Section 16 Subsection (4) amended by No. 52 of 1995, s. 3 and Sched. 1 ][Section 16 Subsection (4) amended by No. 75 of 1995, s. 3 and Sched. 1 ](1) [Section 16 Subsection (1) amended by No. 38 of 1973, s. 3 ]The Commission shall, as provided by this Act –(a) as it thinks fit, establish and maintain waterworks for the supply of water for domestic, industrial, agricultural, and for other purposes;(ab) carry out the functions of a trust under Part VI ;(b) subject to Division 3 of Part III and otherwise as it thinks fit, promote or assist the establishment and maintenance of such waterworks by other authorities and persons;(c) allow other persons to take water from rivers and lakes that but for this Act they may not take;(d) prevent in such cases as it thinks proper any unlawful taking, use, or pollution of water of rivers and lakes; and(e) take, when it thinks fit, proper steps to maintain the natural drainage systems of the State and to prevent or reduce flooding, silting up, erosion, of river beds, and blocking of river channels by vegetation, fallen trees, illegal weirs, or other causes.(2) The Commission shall tender advice to the Governor, when required by him, and may tender advice to any authority, on the use of the natural waters of the State.(3) [Section 16 Subsection (3) amended by No. 61 of 1996, s. 12 ]The Commission –(a) shall give the Hydro-Electric Corporation any information that it may require concerning the acts of the Commission under this section and any information gained by it with respect thereto, and shall supply the Hydro-Electric Corporation, at the Hydro-Electric Corporation's own cost, with copies of all plans, records, and other writings made by it in connection with the exercise of the powers contained in this section; and(b) shall give to any statutory authority concerned any information gained by it with respect to the flow, levels, and intake of rivers and lakes.(4) [Section 16 Subsection (4) amended by No. 5 of 1990, s. 3 and Sched. 1 ]In the exercise of its powers under this Act or the Government Business Enterprises Act 1995 the Commission shall avoid unnecessary damage to –(a) cultivated, meadow, and pasture lands;(b) navigation;(c) forests;(d) fisheries; and(e) the natural beauty of the countryside –and to that end shall consult with the Minister administering the Animal Health Act 1995 , the marine board or harbour trust, the Forestry corporation, the Inland Fisheries Commission, the National Parks and Wildlife Advisory Council, and the local authority, as the case may require, and shall have regard to the following matters, so far as they are relevant, along with any other proper consideration:(f) the character, catchment, and flow or level of the stream or lake;(g) the extent to which any source of water is or may in the future be used for agriculture, forestry, water supply, fisheries, navigation, transport, industrial purposes, or sanitation;(h) the effect of proposed works on land drainage, the productivity of land, and the water-table under lands affected.
[Section 17 Subsection (1) amended by No. 30 of 1995, s. 3 and Sched. 1 ][Section 17 Amended by No. 52 of 1995, s. 3 and Sched. 1 ][Section 17 Amended by No. 10 of 1985, s. 3 and Sched. 1 ][Section 17 Subsection (2) amended by No. 82 of 1993, s. 4 ][Section 18 Repealed by No. 52 of 1995, s. 3 and Sched. 1 ]. . . . . . . . [Section 19 Repealed by No. 52 of 1995, s. 3 and Sched. 1 ]. . . . . . . . [Section 20 Repealed by No. 52 of 1995, s. 3 and Sched. 1 ]. . . . . . . .(1) [Section 17 Subsection (1) amended by No. 10 of 1985, s. 3 and Sched. 1 ]Where the Commission operates and maintains the waterworks (including the reticulation system) supplying water to consumers in a water district –(a) it may make rates and charges at any time in respect of its works as if it were a municipality; and(b) the provisions of Part 9 of the Local Government Act 1993 and Part 6 of the Local Government (Building and Miscellaneous Provisions) Act 1993 apply as if –(i) the council means the Commission; and(ii) the municipal area means the water district; and(iii) the mayor means the chairman of the Commission; and(iv) the general manager means the secretary of the Commission.(1A) [Section 17 Subsection (1A) inserted by No. 38 of 1973, s. 4 ] Subsection (1) applies to and in respect of irrigation water districts in the same way as it does to and in respect of water districts, as ifwater district in Part 6 of the Local Government (Building and Miscellaneous Provisions) Act 1993 meant irrigation water district.(1B) [Section 17 Subsection (1B) inserted by No. 38 of 1973, s. 4 ]Where the Commission exercises the powers of a municipality under Division 5 of Part III in respect of a river improvement district proclaimed under Division 1 of that Part, it has all the powers of a municipality under the Local Government Act 1962 to make and levy rates in respect of the sealed scheme for the district and with the same consequences as under that Act and subsection (1) applies to and in respect of such rates with all necessary changes.(2) [Section 17 Subsection (2) amended by No. 38 of 1973, s. 4 ]The powers conferred by this section shall be subject to the following provisions, namely:(a) . . . . . . . .(b) rates levied under this section may be used only for –(i) the operation and maintenance of the waterworks supplying, or the scheme of river improvement for, the district in which they are levied;(ii) repaying, with interest in the meantime, moneys borrowed by the Commission to construct or acquire such works or carry out such a scheme; and(iii) meeting any liabilities undertaken on the acquisition of such works.(3) For the purposes of subsection (2) (b) the Commission may, as it thinks proper, apportion and attribute to any works or district its administrative expenses and any other expenses relating to those works or that district that are not obviously referable thereto.
[Section 21 Amended by No. 29 of 1969, s. 2 ]Subject to section 22 the Commission may, as it thinks fit –(aa) make enquiries and surveys and prepare designs and plans for possible or proposed schemes for the supply of water;(a) make surveys for, design, construct, lay, install, and maintain the waterworks and all works, engines, or pipes and other accessories connected therewith required for the supply of water to any water district or irrigation water district proclaimed under this Act;(b) exercise all the powers of a municipality under Division 5 of Part III of this Act in respect of a river improvement district proclaimed under Division 1 of that Part; and(c) with the approval of the Governor construct, operate, and maintain any works which the Crown might construct, operate, or maintain under this Act.
21A. Sources of supply for Commission's works
[Section 21A Inserted by No. 29 of 1969, s. 3 ](1) [Section 21A Subsection (1) amended by No. 38 of 1973, s. 5 ]The Governor may on the request of the Commission, by proclamation, appoint any place to be the source of supply for any works to which section 21 (a) applies.(2) Before making a request under this section, the Commission shall cause the intended request to be published in the Gazette and at least once in a newspaper, and no proclamation may be made thereon within the 21 days after the publication of the intended request.(3) [Section 21A Subsection (3) added by No. 38 of 1973, s. 5 ]A source of supply for the purposes of this section may be a river, lake, well, or bore, or a pipe, channel, or conduit.
22. Powers and restrictions in connection with works
[Section 22 Substituted by No. 38 of 1973, s. 6 ][Section 23 Repealed by No. 52 of 1995, s. 3 and Sched. 1 ]. . . . . . . . [Section 24 Repealed by No. 52 of 1995, s. 3 and Sched. 1 ]. . . . . . . .(1) In respect only of waterworks established or maintained by the Commission under section 21 for the supply of water to –(a) a water district, the Waterworks Clauses Act 1952 , so far as it is not inconsistent with section 17 and this section, is incorporated in this Act; or(b) an irrigation water district, the Irrigation Clauses Act 1973 , so far as it is not inconsistent with section 17 and this section, is incorporated in this Act.(2) For the purposes of this section the Governor may, on the recommendation of the Commission, exclude or modify the application of any provisions of –(a) Part III , other than sections 30 , 31 , and 32 , and Part IV of the Waterworks Clauses Act 1952 ; and(b) Part III , other than section 24 , of the Irrigation Clauses Act 1973 .(3) Any act of the Governor under subsection (2) shall be by order-in-council which shall be published by proclamation and shall be deemed a statutory rule within the meaning of the Rules Publication Act 1953 .(4) Wherever in the Waterworks Clauses Act 1952 or in the Irrigation Clauses Act 1973 a power that is given the Commission by the operation of this section or section 48 is expressed to require the approval of the Commission, that requirement shall be deemed not to exist.(5) [Section 22 Subsection (5) omitted by No. 52 of 1995, s. 3 and Sched. 1 ]. . . . . . . .(6) The Commission may from any waterworks established by it under section 21 or otherwise under its control sell water in bulk to any water authority.
[Section 25 Substituted by No. 40 of 1991, s. 60 ][Section 25A Repealed by No. 52 of 1995, s. 3 and Sched. 1 ]. . . . . . . . [Section 25B Repealed by No. 52 of 1995, s. 3 and Sched. 1 ]. . . . . . . . [Section 25C Repealed by No. 52 of 1995, s. 3 and Sched. 1 ]. . . . . . . .(1) In this section –undertaking means an undertaking in respect of which the Commission may levy rates or make charges.(2) [Section 25 Subsection (2) amended by No. 52 of 1995, s. 3 and Sched. 1 ]In addition to complying with the requirements of the Government Business Enterprises Act 1995 in relation to accounting practices, the Commission shall keep such accounts as will make clear its revenue and expenditure in respect of each separate undertaking.
[Section 25D Inserted by No. 63 of 1970, s. 4 ][Section 25D Renumbered by No. 40 of 1991, s. 61 ](1) The Governor may by order-in-council establish advisory committees, to be known as district advisory committees, and appoint and name districts in respect of which they shall act, and such committees shall be called by the name of their district and the words "district advisory committee".(2) The boundaries of districts appointed for the purposes of this section may be based on river catchments, municipal boundaries, or any other legal boundaries or natural features.(3) The powers of the Governor under subsection (1) shall be exercised only upon the petition of –presented through the Minister.(a) an association representing more than 50 producers;(b) a municipality; or(c) ten persons owning land in the district to which the petition relates –(4) On receipt of a petition under subsection (3) the Minister shall advertise it in a newspaper circulating in the district to which the petition relates and wait till the expiration of 28 days from the date of the advertisement before submitting the petition to the Governor.(5) If in that time the Minister has received a petition for an advisory committee for a different district comprising part of the district to which the first petition relates or a petition against the exercise of the Governor's powers under this section in respect of the district to which the first petition relates the Governor may appoint such committees and districts as he thinks proper or none at all.(6) The boundaries of districts appointed for the purposes of this section shall be defined as the Minister may recommend.(7) If the Governor is of opinion that a proposed district is too large or too small for administrative convenience he may reject the petition therefor without prejudice to any fresh petition for a district that is smaller or larger, as the case requires.(8) District advisory committees shall consist of 3 persons appointed by the Minister from among such persons as are nominated to him by 10 persons owning land in the district.(9) Each member of a district advisory committee shall hold office for 3 years from the date of his appointment, unless he dies, resigns, or is removed by the Governor, in any of which events a successor shall be appointed similarly by the Minister, who shall hold office for the unexpired period of his predecessor's term of office.(10) When an appointment is to be made by the Minister under this section, he shall by advertisement in a newspaper call for nominations within a period of not less than 14 days.(11) Each district advisory committee shall have a convenor chosen by the members.(12) At meetings of a district advisory committee –(a) two shall be the quorum;(b) the convenor shall have a deliberative vote only;(c) where there is an equal division of votes on a question, it shall pass in the negative; and(d) in other respects the committee may regulate its own procedure.(13) A district advisory committee may act notwithstanding one vacancy in its number.(14) [Section 25D Subsection (14) amended by No. 69 of 1975, s. 4 and Sched. 1 ]The Commission shall keep a district advisory committee informed of –in reasonable time, not exceeding 14 days, for the committee to make recommendations under subsection (15) (b) before the Commission acts.(a) all proposed and actual issues and renewals of, and refusals to renew, commissional water rights in or affecting its district;(b) all proposed and actual variations of water rights on such a renewal, whether under section 94A or otherwise, or by order under that section; and(c) all proposed action under section 100K within its district –(15) A district advisory committee –(a) shall report on any matters connected with the administration of this Act referred to it by the Commission; and(b) may make recommendations to the Commission on –(i) the issue and renewal of commissional water rights; and(ii) the carrying out of section 100K .(16) For the purposes of subsection (15) (b) (ii) , water bailiffs shall maintain liaison with any relevant district advisory committee and give the convenor thereof such information as the latter desires and the former can give about directions given or proposed to be given under section 100K , to the end that if the water bailiff and the committee disagree on the water bailiff's policy the committee may forthwith make recommendations as provided in that subsection.(17) In an emergency the Commission may act under section 100K without first complying with subsection (14) , but if it does it shall at the first opportunity inform the district advisory committee concerned of what it has done and is doing and of its reasons for not so complying.(18) The Governor may revoke an order-in-council made under subsection (1) .(19) In this sectionproducer means a person engaged in agriculture, animal husbandry, dairying, horticulture, orcharding, hop-growing, poultry-farming, or forestry for the purpose of selling the produce, as a landholder, share-farmer, or otherwise than as an employee or a contractor for work only or for works.
PART III - Powers of the Crown and Other Authorities
Division 1 - The Crown
(1) The Governor may by proclamation on the recommendation of the Commission appoint, name, and define –(a) water districts;(b) irrigation water districts;(c) river improvement districts; and(d) protected catchment districts.(2) [Section 26 Subsection (2) amended by No. 61 of 1996, s. 12 ]The Governor may by proclamation on the recommendation of the Hydro-Electric Corporation appoint, name, and define such hydro-electric water districts as are required in connection with any works of that Corporation existing or authorized by an Act at the commencement of this Act.(3) [Section 26 Subsection (3) amended by No. 61 of 1996, s. 15 ]The Governor may by proclamation on the joint recommendation of the Commission and the Hydro-Electric Corporation appoint, name, and define such hydro-electric water districts as the Hydro-Electric Corporation requires in connection with works which it proposes constructing.(4) [Section 26 Subsection (4) amended by No. 61 of 1996, s. 15 ]A hydro-electric water district shall not be altered or abolished except on the joint recommendation of the Commission and the Hydro-Electric Corporation.(5) [Section 26 Subsection (5) amended by No. 61 of 1996, s. 15 ]No district may be appointed under subsection (1) within a hydro-electric water district except on the recommendation of the Hydro-Electric Corporation.(6) A river improvement district, protected catchment district, or hydro-electric water district may be defined as the whole catchment area of a certain river above a certain point or of a certain lake.(7) [Section 26 Subsection (7) amended by No. 25 of 1994, s. 45 and Sched. 3 ]River improvement districts and protected catchment districts shall be deemed not to include any –unless on the recommendation of the Forestry corporation expressly mentioned as part of the district in the proclamation creating it.(a) State forest;(b) . . . . . . . .(c) Crown land subject to a forest permit under the Forestry Act 1920 ;(d) land acquired by the Crown for the purposes of forestry; and(e) land from which any person has a right to take forest products within the meaning of the Forestry Act 1920 directly conferred by any Act –
27. Flood prevention, inland navigation, and drainage
[Section 27 Subsection (3) amended by No. 24 of 1993, s. 3 and Sched. 1 ][Section 27 Subsection (5) amended by No. 10 of 1985, s. 3 and Sched. 1 ][Section 27 Subsection (5) amended by No. 30 of 1995, s. 3 and Sched. 1 ](1) The Crown may make, keep up, and repair works –and may remove from rivers and lakes and from the flood-plains and flood-channels of rivers obstructions to navigation or which cause or increase flooding.(a) to protect land from flooding by rivers and lakes and from incursions of the sea;(b) to improve navigation in rivers and lakes; and(c) to drain land –(2) For the purposes of this section, the Crown may –(a) make walls, banks, dikes, weirs, dams, sewers, drains, ditches, culverts, penstocks, locks, flood-gates, sluices, and other such works;(b) enter and pass over lands with men, animals, vehicles, both wheeled and tracked, sledges, and machinery;(c) cut, dig, and carry away timber, brushwood, turf, stone, shingle, gravel, sand, and earth;(d) divert rivers and fill up the old beds;(e) where flooding can be reduced by using land only in ways that will hold back rain water rather than let it run off, by order-in-council, add to the grant of the land conditions for its use only in those ways and against its use in other ways;(f) notwithstanding anything contained in any Act include in any grant of land of the Crown whether freehold or leasehold –(i) such conditions as might be imposed under paragraph (e) ; or(ii) an obligation to maintain any work constructed for the purposes of this section or to keep any river or artificial water-courses flowing through, by, or near the land free from obstructions; and(g) issue commissions for keeping in good order and repair works of the kind which can be made under this section, whether now or hereafter made, natural defences against flooding by rivers and lakes and incursions of the sea, and natural drainage systems.(3) [Section 27 Subsection (3) amended by No. 19 of 1980, s. 171 and Sched. 1 ]An order-in-council under subsection (2) (e) shall have effect in the case of land not under the Land Titles Act 1980 , when a memorial thereof is registered as a deed in the Registry of Deeds, and, in the case of land under that Act, when a memorial thereof is lodged with the Recorder of Titles, who shall enter a memorandum thereof in the Register kept under that Act and on the certificate of title or grant of the land, as the case requires, when next produced to him for any purpose; and compensation shall be payable for the diminution of the value of the land by reason of the conditions, and in default of agreement shall be determined in the same manner as a disputed claim for compensation under the Acquisition Act .(4) [Section 27 Subsection (4) amended by No. 24 of 1993, s. 3 and Sched. 1 ]Full compensation shall be made for any damage done in the exercise of the powers conferred by this section, the amount to be determined by agreement or, in default of agreement, in the same manner as a disputed claim for compensation under the Acquisition Act .(5) [Section 27 Subsection (5) amended by No. 63 of 1970, s. 5 ]If at least two-thirds of the owners of land in the appointed district of any commissioners for the upkeep and repair of any works, defences, or systems mentioned in subsection (2) (g) , including the owners of lands of a total assessed annual value of at least two-thirds of the total assessed annual value of all lands in that district, vote, at a poll taken as nearly as possible like a poll under section 60 of the Local Government Act 1993 , in favour of a rate on that district not exceeding a certain amount specified in the proposal on which they vote, the commissioners may make annual rates not exceeding that amount on all lands in the districts for the purposes of their commission, with power to differentiate between lands differently benefiting from the purposes of the commission, which rates shall be levied as provided in section 17 (2) (a) .(6) The powers conferred by this section are in addition to and not in derogation from the royal prerogative and the powers conferred by any other Act.
28. Water, sewerage, and drainage works by State departments and instrumentalities
(1) [Section 28 Subsection (1) amended by No. 61 of 1996, s. 15 ]No proposal by, or on account of, any department of government or any authority on behalf of the Crown, other than the Commission and the Hydro-Electric Corporation, for the construction of any works or installations for the purpose of supplying water or providing sewerage or drainage facilities as defined in section 32 , other than kerbs and gutters constructed in connection with drainage facilities, may be dealt with under section 16 (2) of the Public Works Committee Act 1914 or put into execution until it has been referred by the Minister to the Commission and reported on by it as provided in this section.(2) The Commission shall examine every proposal referred to it by the Minister under this section and shall report to the Minister thereon, and shall in its report make such recommendations or observations as it thinks fit.(3) The execution of all proposals referred to and reported on under this section shall, unless the Minister otherwise directs, be by or under the direction or supervision of the Department of Public Works.(4) If any works are executed in contravention of this section any expenditure thereon shall be deemed to have been made without lawful authority unless subsequently ratified by order-in-council.(5) Subsection (4) excludes all other consequences of contravening this section.
Division 2 - [Part III, Div. 2 Heading amended by No. 61 of 1996, s. 15 ]The Hydro-Electric Corporation
[Section 29 Subsection (2) amended by No. 61 of 1996, s. 15 ](1) [Section 29 Subsection (1) substituted by No. 61 of 1996, s. 12 ]For the purposes of the Hydro-Electric Corporation Act 1995 , the Hydro-Electric Corporation may –(a) in any hydro-electric water district and, by leave of the Commission, in any other part of the State take water that the Commission may take under section 83 ; and(b) take any water in accordance with the provisions of the Waterworks Clauses Act 1952 as if for the purposes of that Act –(i) the Hydro-Electric Corporation Act 1995 were the special Act; and(ii) all rivers and lakes in any hydro-electric water district were a source of supply; and(iii) its electricity infrastructure, within the meaning of the Electricity Supply Industry Restructuring (Savings and Transitional Provisions) Act 1995 , were the undertaking; and(iv) it were the undertakers.(2) [Section 29 Subsection (2) amended by No. 75 of 1973, s. 2 and Sched. 1 ]Notwithstanding anything contained in subsection (1) , the Hydro-Electric Corporation shall not in the construction and operation of any works reduce the flow of water in the South Esk River below 0·42 cubic metres per second.(3) [Section 29 Subsection (3) amended by No. 61 of 1996, s. 17 ]To the extent to which the right to take water in rivers and lakes is vested in the Hydro-Electric Corporation, that Corporation shall, if the Governor so directs and subject to such conditions as the Governor may determine, permit the Commission to take such water for any purpose other than the generation of electrical energy.(4) For the purposes of this section the whole State shall be deemed to be a hydro-electric water district until 31st July 1958.
30. Power of Hydro-Electric Corporation in respect of rivers and lakes
[Section 30 Subsection (1) amended by No. 61 of 1996, s. 15 ](1) [Section 30 Subsection (1) amended by No. 61 of 1996, s. 12 ]For the purposes of the Hydro-Electric Corporation Act 1995 the Hydro-Electric Corporation may enter upon and survey any land and take such measures as it may think fit or as may be prescribed for –(a) the measurement of the flow or levels of water in, or the quantity of water taken by any person from, any river or lake;(b) the conservation and regulation of water in rivers and lakes and its purification and preservation from pollution;(c) the protection of the bed and banks of rivers and lakes and the removal of obstructions therefrom; and(d) clearing and deepening the channels of rivers.(2) This section does not affect the rights of any person under the Mining Act 1929 .(3) [Section 30 Subsection (3) omitted by No. 61 of 1996, s. 12 ]. . . . . . . .(4) [Section 30 Subsection (4) amended by No. 61 of 1996, s. 15 ]The Hydro-Electric Corporation shall give the Commission any information that it may require concerning the acts of the Hydro-Electric Corporation under this section and the information so gained by it, and shall supply the Commission at the Commission's own cost with copies of all plans, records, and other writings made by it in connection with the exercise of the powers contained in this section.
31. Hydro-Electric Corporation to make used water available
[Section 31 Subsection (1) amended by No. 61 of 1996, s. 15 ](1) [Section 31 Subsection (1) amended by No. 61 of 1996, s. 12 ]The Hydro-Electric Corporation shall make available to the Commission all water that it has taken and used and for which it has no further use under the Hydro-Electric Corporation Act 1995 at such places and in such manner as may be mutually agreed or ordered under this section.(2) [Section 31 Subsection (2) substituted by No. 61 of 1996, s. 12 ]In default of agreement under subsection (1) either the Commission or the Hydro-Electric Corporation may refer the matter to the appropriate Minister and the Governor may, after considering any submissions made by the Commission and the Corporation, order where and how the relevant water is to be made available to the Commission and to what extent the Commission and the Corporation are to bear the relevant costs, having regard to the extra expense which the Corporation will incur by disposing of the water as ordered by the Governor.
31A. Hydro-Electric Corporation may sell water to water authorities
[Section 31A Inserted by No. 29 of 1969, s. 4 ][Section 31A Subsection (2) amended by No. 61 of 1996, s. 15 ](1) [Section 31A Subsection (1) amended by No. 61 of 1996, s. 15 ]The Hydro-Electric Corporation may sell water taken by it to the Commission or to any authority that supplies water to a water district or an irrigation water district at such prices as may be mutually agreed or ordered under this section.(2) [Section 31A Subsection (2) amended by No. 46 of 1991, s. 4 and Sched. 2 ]In default of mutual agreement on prices under subsection (1) between the Hydro-Electric Corporation and the Commission or other authority, either may refer the matter to its Minister, or, in the case of an authority not under a Minister, the Minister administering the Crown Lands Act 1976 , and thereupon the Governor-in-Council, upon reading or hearing what is submitted on behalf of the 2 parties, may order at what prices the water concerned in the dispute shall be sold.
Division 3 - Local water, sewerage, and drainage works
In this Division, unless the contrary intention appears –construct used in relation to any local works includes alter and add to;drainage facilities means any scheme or system making provision for general drainage but does not include alterations of, or casual additions to, any existing scheme or system;local works means any works or installations constructed by a municipality for the purpose of supplying water or of providing sewerage or drainage facilities to, or in, any area or place except in a city, but does not include any kerbs or gutters constructed in connection with drainage facilities;municipality includes any trustees appointed or body established under any Act relating to the supply of water or the provision of sewerage or drainage facilities, but except as provided in section 38 does not include a city;rate, except in the expression "special rate", includes all moneys levied or to be levied in respect of local works, whether in respect of property owned or occupied, premises affected, or services or supplies received.
33. Functions of the Commission
(1) The Commission shall, in accordance with this Division, regulate, control, and supervise the preparation of schemes for, and the construction of, local works.(2) [Section 33 Subsection (2) amended by No. 5 of 1990, s. 3 and Sched. 1 ]Subject to this Division, the Commission may –(a) examine any scheme for the construction of local works submitted for its approval as required by section 34 and may in its discretion approve, or refuse to approve, a scheme, or may approve the scheme with such modifications and variations as it thinks necessary or desirable;(b) make such recommendations to the Minister as it thinks proper in relation to –(i) the amount which any municipality may be permitted to borrow for the purpose of constructing any local works in pursuance of a scheme approved by the Commission, and the terms and conditions of repayment of any amount so borrowed; and(ii) the minimum revenue which should be raised by a municipality for the purpose of defraying the costs of maintenance and management of any local works that the municipality proposes to construct, and for making provision for depreciation and for interest and sinking fund charges accruing, or liable to accrue, due in respect of any money borrowed by the municipality in connection with the construction of the works;(c) supervise the employment of engineers in connection with the construction by municipalities of any local works, and in the preparation of schemes for the construction of those works, and ensure that any engineer so employed possesses the prescribed qualifications;(d) conduct examinations for the purpose of ascertaining the qualifications of, and issue certificates of competency to, engineers for the purposes of this Division;(e) when requested by any municipality, or jointly by 2 or more municipalities, so to do, carry out, on behalf and at the expense of the municipality or municipalities concerned, such investigations and surveys as may be necessary for the preparation of any scheme for the construction of any local works, and for that purpose –(i) carry out stream gaugings;(ii) conduct sanitary surveys; and(iii) generally, do all such acts and things and perform such functions as might be done or performed by the municipality or municipalities in the preparation of any such scheme;(f) at the expense of the municipalities concerned, prepare a scheme for the supply of water to the combined districts of any 2 or more municipalities, and determine the proportions in which the municipalities shall defray the cost of the preparation of the scheme;(g) where the Commission considers it to be in the public interest so to do, direct any municipality, including a city, to make such provision as may be necessary for the supply of water to the whole or any part of the municipal district of another municipality, and subject to subsection (3) and in default of agreement thereon between the municipalities concerned, determine the rate which may be levied for water so supplied by the municipality supplying it;(h) direct any municipality, including a city, to take such action and execute such works as the Commission may direct for the purification, or the improvement of the quality, of any water supplied by that municipality to persons residing within any part of its municipal district;(i) with the prior consent of the Minister, require that any local works that a municipality proposes to construct shall be constructed, on behalf and at the expense of the municipality, by or under the direction or supervision of the responsible Department in relation to the Public Works Construction Act 1880 ;(j) in any case where the Commission considers it necessary or desirable so to do, or when directed by the Minister so to do, inquire into and report to the Minister upon any matter relating to any existing work under the control of any municipality for the supply of water or the provision of sewerage or drainage facilities in any area or place;(k) make such investigations, and conduct such experiments and tests, as the Commission considers desirable for the purpose of effecting economies or technical improvements in the methods of constructing, operating, and maintaining local works; and(l) generally, do all such acts and things as may be necessary for the regulation, control, and supervision of local works, and for carrying out and giving effect to the provisions of this Division.(3) A rate determined by the Commission under subsection (2) (g) shall be such as may, in the opinion of the Commission, be reasonably expected to enable the municipality by which the water is supplied to supply the water without loss and be repaid any expenditure incurred by it in providing the supply.(4) The Commission may give such notices and directions, and enter into such contracts, as appear to it to be necessary or desirable for giving effect to this section or for the execution of the powers conferred on the Commission by this Division, and may require municipalities to furnish it with such particulars and information as the Commission may consider necessary for the proper exercise and performance of its powers, functions, and duties under this Division.(5) Every municipality shall comply in all respects with any direction given to it by the Commission, and shall furnish the Commission with all particulars and information required by it under this section.(6) If any municipality fails or refuses to comply with any direction of the Commission under this section, the Commission may, at the expense of that municipality, take such action and carry out, or cause to be carried out, such works as may be necessary for giving effect to the direction of the Commission.
34. Municipalities to prepare and submit schemes to the Commission
(1) Except as provided by subsection (2) every municipality that proposes to construct any local works shall, before proceeding with the construction thereof, prepare and submit to the Commission in accordance with the regulations a scheme for the construction of those works.(2) [Section 34 Subsection (2) amended by No. 55 of 1965, s. 5 ]This section does not apply to any alteration of, or addition to, any existing work in any case where the estimated cost of the alteration or addition does not exceed –whichever is the greater.(a) an amount equal to 10 per cent of the gross revenue received in the immediately preceding financial year by the municipality from or in relation to that work; or(b) $600 –(3) Subject to this Act a municipality shall not proceed with the construction of any local works until the Commission has signified its approval of the scheme for the construction thereof.(4) A municipality, in submitting a scheme for approval by the Commission, shall lodge with the secretary to the Commission –(a) a statement setting out –(i) a general description of the works proposed to be constructed;(ii) the estimated cost of the works;(iii) in the case of a scheme for supplying water, what water rights are to be affected and how the proprietors of them are to be dealt with, whether by payment in money, compensation water, agreement to supply, or otherwise, and the estimated cost of the necessary water rights, if purchased or taken;(iv) the total amount of the annual values of all rateable property within the district to be served by the proposed works;(v) the rate proposed to be levied by the municipality for the purpose of defraying the cost of the proposed works and the net amount it expects to receive therefrom; and(b) such plan or plans as may be necessary, in the opinion of the Commission, for the purpose of indicating the essential features of the scheme.(5) Before approving any scheme submitted to the Commission under this section, the Commission may require the municipality by which the scheme is submitted to –and the municipality shall comply with and observe every requirement of the Commission under this subsection.(a) modify or alter the scheme in such manner as the Commission may determine; or(b) supply such information in relation thereto as the Commission may require –(6) [Section 34 Subsection (6) amended by No. 61 of 1996, s. 15 ]The Commission shall not, without the consent of the Hydro-Electric Corporation, approve any scheme which involves the taking of water from any river or lake within a hydro-electric water district.(7) Upon approving any scheme submitted to the Commission under this section, the Commission shall signify its approval by affixing its common seal to the statement submitted under subsection (4) with such alterations therein as the circumstances may require, and shall forward to the municipality by which the scheme was submitted a notice, in writing, notifying the Commission's approval of the scheme.
(1) When a municipality submits a scheme for supplying water for the approval of the Commission, it shall within 14 days before or after the submission thereof give public notice in a newspaper circulating throughout the area to be affected by the scheme, stating that the scheme may be inspected at the office of the municipality.(2) A copy of every such scheme shall be made available by the municipality at its office for inspection for the next month after the publication of the notice.(3) Any person claiming to be affected by the scheme otherwise than as a ratepayer of the municipality may, within 40 days after the publication of the notice, object to the scheme in writing to the Commission which shall, before approving of the scheme, notify the objector how it has treated his objection, but the Commission may refuse to approve a scheme without waiting for objections to be made.(4) If the Commission –may, within one month, demand a public hearing by the Commission, which shall appoint, and give public notice of, a place and a day for commencing the hearing, accordingly.(a) requires the municipality to modify or alter the scheme or refuses or threatens to refuse to approve the scheme, the municipality; or(b) substantially overrules his objection, the objector –(5) Before any scheme for supplying water is approved by the Commission it shall state clearly how the relevant water rights are to be dealt with, and if the Commission intends to approve the sending down of compensation water it shall first determine the compensation water.(6) For the purposes of this section, compensation water is water to be sent down the stream bed by the undertakers from a particular point, at particular rates, and for particular times, which place, rates, and times shall be determined by the Commission which shall have regard to all the circumstances of the particular case including –and shall secure, as far as practicable, that the flow of the stream does not fall below the minimum quantity necessary to secure the interests of public health, and that all persons who have a material interest in the use and flow of the stream will, if the compensation water is sent down, suffer no material loss.(a) the character and flow of the stream;(b) the extent to which the stream is or may in the future be used for agriculture, water supply by other authorities, fisheries, navigation, transport, industrial purposes, or sanitation; and(c) the effect on land drainage or on the productivity of land of any alterations in the flow of the stream and consequent raising or lowering of the water-table –(7) In determining the compensation water the Commission shall first give public notice in a newspaper circulating throughout the area to be affected of the effect of the scheme on lower riparian owners and of its proposed determination with respect to compensation water and that it will hold a public hearing at a specified place in that area beginning on a specified day of all persons who desire to make a submission relevant to its determination of the compensation water, and shall hold the public hearing and thereupon shall draw up and seal a decree stating what shall be the compensation water.(8) All such decrees shall be deemed to be legislative acts, and not judicial acts and shall be published in the Gazette and filed by the secretary to the Commission.(9) Where a stream has been dammed it may be decreed that when the daily rate of flow into the reservoir thereby formed is less than the daily rate for compensation water, the compensation water shall be lessened by the same amount.(10) At any public hearing under this section any person (including the Crown) wishing to make a relevant submission to the Commission may appear in person or by an agent and tender evidence and may, by leave of the Commission, answer the submissions of other persons before the Commission and cross-examine their witnesses.(11) For the purposes of any such public hearing the Commission shall be deemed to hold letters patent issued by the Governor under the seal of the State directing it to inquire into all matters relevant to its decision to approve the scheme or not, or its determination of compensation water, as the case may be.(12) The public hearings on approval and compensation water for any one scheme may be combined.
36. Preparation of schemes by the Commission at the request of a municipality
(1) If a municipality requests the Commission to prepare for it a scheme for the construction by it of any local works, the Commission may require the municipality to undertake to pay the cost of preparing the scheme.(2) Where such a scheme is prepared by the Commission at the joint request of 2 or more municipalities which have undertaken to pay the cost, the Commission may apportion the cost between them and each shall then be severally liable for the amount so apportioned to it.
37. Municipalities not to borrow moneys or construct works except when approved
Except in relation to works excluded from the application of section 34 by subsection (2) of that section, a municipality may only –(a) proceed with the construction of local works if the scheme for the construction thereof has been approved by the Commission under section 34 , or is part of a scheme promoted by the Commission; and(b) borrow moneys for the purpose of defraying the cost of any local works if it may proceed with the construction of those works in accordance with this section and the Minister has, on the recommendation of the Commission, assented to the borrowing.
38. Application to cities by agreement
(1) The municipal corporation of a city may enter into an agreement with the Commission for the application to the city of all or any of the provisions of this Division in respect of any work or proposed work specified in the agreement.(2) During the continuance of any such agreement, and to the extent therein limited, the provisions of this Division shall apply to the city to which the agreement relates and shall be construed accordingly.(3) Every agreement under this section shall be deemed to be a statutory rule within the meaning of the Rules Publication Act 1953 .
39. Directions as to rating, &c., by municipality
(1) In any case where the Commission, after an inquiry under paragraph (j) of section 33 (2) , reports to the Minister, in respect of any works to which that paragraph relates, that a municipality has not made, or is not making, sufficient provision to ensure the financial stability of the account in relation to the work or to meet all present and future commitments or liabilities of the municipality in relation thereto, the Minister may, by notice in writing, addressed to the municipality, direct it to take such action as theMinister, on the recommendation of the Commission, thinks necessary (including, but without prejudice to the generality of this subsection, the making and levying of an increased rate by the municipality).(2) The Minister may at any time, by notice in writing addressed to a municipality, direct the municipality to make and levy any rate, the levying of which has been recommended by the Commission under section 33 (2) (b) (ii) .(3) A municipality shall comply with any direction of the Minister given under this section.
40. Subsidies to municipalities
[Section 40 Substituted by No. 4 of 1984, s. 3 ][Section 40 Amended by No. 51 of 1985, s. 4 and Sched. 2, Pt. II ](1) The Minister may, if so requested by a municipality, pay to that municipality a subsidy of such amount as he may determine in accordance with this section.(2) [Section 40 Subsection (2) substituted by No. 4 of 1984, s. 3 ]Where, in pursuance of a scheme for the supply of water or the provision of sewerage or drainage facilities that is approved for a municipality under this Act or any other Act, the municipality proposes to construct any local works, a subsidy may be paid under this section for the purpose of assisting it –(a) in the construction of those works;(b) in the operation of those works; or(c) for both those purposes.(3) [Section 40 Subsection (3) substituted by No. 4 of 1984, s. 3 ]A subsidy may be paid under this section for the purpose of assisting a municipality to pay for –or for some or all of those purposes.(a) water supplied to it pursuant to any law of the State;(b) the operating cost of its water reticulation system in its water district or water districts;(c) the operating cost of any local works;(d) municipal revenue payable to the Commission, the Hobart Regional Water Board, or the North West Regional Water Authority with respect to the supply of water; or(e) administration charges incurred by the municipality that are attributable to any of its functions referred to in paragraph (a) , (b) , (c) , or (d) –(4) [Section 40 Subsection (4) substituted by No. 4 of 1984, s. 3 ]If a municipality has carried out investigations or surveys for the purpose of enabling it to proceed with the preparation of a scheme for the construction of any local works, or has prepared any such scheme, and for any reason has not proceeded with the preparation of that scheme, a subsidy may be paid under this section for the purpose of paying the whole or any part of the expenses incurred by the municipality in, or in connection with, the carrying out of those investigations or surveys or that preparation.(5) [Section 40 Subsection (5) substituted by No. 4 of 1984, s. 3 ]The payment of a subsidy under this section may be subject to the observance by the municipality of such terms and conditions as the Minister thinks necessary or desirable.(6) [Section 40 Subsection (6) substituted by No. 4 of 1984, s. 3 ]For the purposes of this section –and any such request or direction may be in respect of municipalities generally or a particular municipality.(a) the Commission shall provide the Minister with such information and recommendations as he may request; and(b) the Minister may direct the Commission to carry out such investigations, and to make recommendations to him on such questions, as he may determine –(7) [Section 40 Subsection (7) substituted by No. 4 of 1984, s. 3 ]The Commission shall comply with a direction given to it by the Minister under subsection (6) .(8) [Section 40 Subsection (8) substituted by No. 4 of 1984, s. 3 ]In the performance of its duties under this section, the Commission may have regard to the financial position and circumstances generally of the municipality seeking a subsidy under this section and in particular may have regard to –(a) the cost of the supply of water in, or to, its water district or water districts;(b) its rates and charges relating to the local works for which the subsidy is sought; and(c) the cost or proposed cost arising from the construction or operation by the municipality of that local works.(9) [Section 40 Subsection (9) substituted by No. 4 of 1984, s. 3 ]A subsidy under this section shall be paid out of money to be provided by Parliament for that purpose.
41. Expenses of municipalities
[Section 41 Subsection (3) amended by No. 30 of 1995, s. 3 and Sched. 1 ][Section 41 Subsection (4) amended by No. 10 of 1985, s. 3 and Sched. 1 ](1) Any expenditure by a municipality under section 34 , 35 , or 36 may be defrayed by the municipality out of –(a) its municipal fund; or(b) the proceeds of any rate levied by the municipality for the purpose of defraying the cost of the construction by the municipality of any local works.(2) [Section 41 Subsection (2) amended by No. 10 of 1985, s. 3 and Sched. 1 ]Any expenses incurred by a municipality in or in connection with the carrying out of any investigations, surveys, or preparation referred to in section 40 (7) may be defrayed out of any separate rate levied by the municipality for that purpose under the authority of subsection (3) of this section.(3) [Section 41 Subsection (3) amended by No. 10 of 1985, s. 3 and Sched. 1 ]Notwithstanding anything contained in the Local Government Act 1993 , a municipality shall, subject to subsection (4) , be deemed to have power to levy such separate rates as it may consider necessary for the purpose of defraying any expenses incurred by it in or in connection with the carrying out of any investigations, surveys, or preparation referred to in section 40 (7) ; but no such separate rate shall be reimposed after the expiration of the seventh year after the first year in respect of which it is levied.(4) [Section 41 Subsection (4) amended by No. 69 of 1975, s. 4 and Sched. 1 ]A separate rate levied under the authority of subsection (3) shall not exceed –(a) two cents in the dollar of the annual value of the rateable property in the district in the case of proposed works for the supply of water; or(b) three cents in the dollar of the annual value of the rateable property in the district in the case of proposed works for the provision of sewerage facilities.(5) Any expenses incurred by a municipality in connection with any survey or investigations made or carried out for the purpose of preparing a scheme for any alteration of or addition to any local works or the preparation of any such scheme may, if the municipality so determines, be defrayed out of the general account of the municipality.(6) [Section 41 Subsection (6) amended by No. 46 of 1991, s. 4 and Sched. 2 ]Where any local works have been constructed on behalf of any municipality by or under the direction or supervision of the responsible department in relation to the Public Works Construction Act 1880 , the expenses incurred by the municipality in or in connection with the construction of those works, including any expenses incurred in relation to borrowing moneys therefor, may be defrayed out of any moneys borrowed by the municipality for the purpose of defraying the cost thereof.
42. Rights of ratepayers and municipal electors preserved
[Section 42 Amended by No. 38 of 1973, s. 7 ]This Division does not deprive the ratepayers or municipal electors of any district or place of any right under any other enactment to reject any scheme or proposal submitted to them in respect of that district or place.
43. Succession to the Water, Sewerage, and Drainage Board
(1) The Commission shall be the universal successor to the Water, Sewerage, and Drainage Board.(2) The Commission may carry on and complete any business pending before the Water, Sewerage, and Drainage Board as if it had been in existence and was identical with that Board, and this Act had been in operation, at all earlier stages of each respective matter of business.(3) Subsection (2) does not limit the universality of the Commission's succession under subsection (1) .
Division 4 - Irrigation
44. Establishment of waterworks for irrigation
(1) On receipt of –the Governor shall cause the petition to be published in the Gazette and at least once in a newspaper and posted up at the office, or principal office, if more than one, of the municipality.(a) a petition under the common seal of a municipality, or of the common seals of each of 2 or more municipalities, constituted to be capable of taking advantage collectively of some common water system or catchment area, praying that any tract of land within the limits set out in the petition and being within the boundaries of the petitioning municipality or municipalities may be constituted an irrigation water district; or(b) a petition by the owners of two-thirds of the land comprised in any area set out in the petition which can be irrigated or watered from a common source of supply praying that that area may be constituted an irrigation water district –(2) At any time not being less than 3 months after the publication of the petition the Governor may appoint, name, and define an irrigation water district in accordance with section 26 .(3) A petition shall not be presented under this section without the consent of the Commission.
45. Creation of irrigation trusts
(1) Where a petition has been presented under section 44 by landowners, it shall either be based on some recited agreement to create an irrigation trust or contain a prayer for the establishment of an incorporated trust.(2) Any agreement for the purposes of this section shall provide for the appointment of trustees and the vesting in them of all water rights of the parties thereto in trust for the purposes of the scheme being established, which agreement shall operate from the proclamation of the irrigation water district.(3) If the petition contains a prayer for an incorporated trust the Governor may by letters patent create a body corporate of trustees to be an irrigation trust and the authority to undertake, operate, and control the scheme and may make regulations to provide for the election of trustees and other matters necessary or convenient for the successful operation of the scheme.
46. Irrigation trusts created by agreement
Where an irrigation trust has been created by agreement, every owner of land within the irrigation water district, then or thereafter, shall be bound by the agreement as if he were a party thereto, and in all proceedings with respect to water rights by or against any person not as an owner of land within the irrigation water district the trustees shall be deemed to be the owners of the whole district.
[Section 47 Substituted by No. 38 of 1973, s. 8 ](1) Where the petitioner for an irrigation water district is the municipality, a source of supply therefor may be obtained therefor by one of the following methods:(a) the corporation may by public notice appoint to be the source of supply therefor any river or lake within the irrigation water district the use of which has been approved by the Commission as part of a scheme approved by it under Division 3 of this Part;(b) the Governor may by proclamation appoint any place to be the source of supply therefor, but, where that place is outside the municipal district of the petitioner, only with the consent of the municipality in whose municipal district it lies.(2) Where the petitioners for an irrigation water district are landowners therein, the Governor may on the recommendation of the Commission appoint a source of supply therefor.(3) [Section 47 Subsection (3) amended by No. 61 of 1996, s. 15 ]A source of supply shall not be appointed under this section in a hydro-electric water district without the consent of the Hydro-Electric Corporation.
48. Application of Irrigation Clauses Act 1973
[Section 48 Substituted by No. 38 of 1973, s. 8 ](1) [Section 48 Subsection (1) amended by No. 61 of 1997, s. 4, Applied:12 Dec 1997] The provisions of the Irrigation Clauses Act 1973 apply in respect of the scheme of every irrigation water district proclaimed under section 26 –(a) on a petition under this Division, as if the petitioners had obtained a special Act creating and defining the irrigation water district, appointing a source of supply, empowering them or the irrigation water trust created on their petition to undertake the supply of water to that district, and incorporating the Irrigation Clauses Act 1973 therein; or(b) of which the Governor has by proclamation appointed the Commission to be the irrigation water authority, as if the Commission had obtained a special Act creating and defining the irrigation water district, appointing the source of supply appointed therefor under section 21A , empowering the supply of water to that district, and incorporating the Irrigation Clauses Act 1973 therein.(2) When the provisions of the Irrigation Clauses Act 1973 so apply the Commission shall in its by-laws for the scheme provide for an appeal board to review the rates levied and the scale of charges used by the Commission and section 56 of that Act shall apply as if –(a) every reference therein to the Commission were a reference to the appeal board; and(b) every reference therein to the undertakers were a reference to the Commission.
48A. Rivers may be made supply channels
[Section 48A Inserted by No. 38 of 1973, s. 8 ](1) [Section 48A Subsection (1) amended by No. 61 of 1996, s. 15 ]Subject to section 48B , the Governor may, on the recommendation of the Commission made with the concurrence of the municipality affected and, where a hydro-electric water district is affected, of the Hydro-Electric Corporation, by proclamation declare a specified part of a river to be a water supply channel for a specified water district or irrigation water district.(2) [Section 48A Subsection (2) amended by No. 24 of 1993, s. 3 and Sched. 1 ]On the making of such a proclamation –(a) the specified part of a river shall be deemed to be what it is declared to be and to be no longer a river except as provided in subsection (3) ; and(b) all riparian rights in that part, including the rights to drain into and receive water out of that part are converted into claims for compensation which are to be determined in the same manner as a disputed claim for compensation under the Acquisition Act .(3) Where part of a river has become a water supply channel –(a) the authority whose channel it has become shall –(i) receive into it all water coming into it from the upper part of the river or from side rivers; or(ii) divert that water into the lower part or another river by appropriate works; and(b) the flow of water out of the channel into the lower part of the river so far as it does not exceed the flow into the channel from the upper part and side rivers, if any, shall be deemed to be the natural flow of the river.(4) The Governor may by order-in-council create rights in lieu of those affected by paragraph (b) of subsection (2) and the value of those rights shall be taken into account in assessing compensation to be paid in consequence of that paragraph.
48B. Reconstitution of Lawrenny Water Trust
[Section 48B Substituted by No. 82 of 1993, s. 5 ](1) [Section 48B Subsection (1) amended by No. 68 of 1994, s. 3 and Sched. 1 ]In this section –letters patent means the letters patent published in the Gazette on 16 March 1960 under which the Trust was constituted as a body corporate;liability includes any liability, duty and obligation, whether actual, contingent or prospective;property means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property and includes money, documents, securities, choses in action and other rights;right includes any right, power, privilege and immunity, whether actual, contingent or prospective;security means a mortgage or charge, whether legal or equitable, or a debenture, bill of exchange, promissory note, guarantee, lien or pledge or any other property or transaction representing security for the payment of money or for the discharge of an actual or contingent liability;Trust means the Lawrenny Water Trust.(2) The Trust continues in existence under the name Lawrenny Irrigation Water Trust as the authority to undertake, operate and control the scheme provided for by the letters patent as if it had been created under this Division.(3) For the purposes of this section, the Governor may –(a) amend the letters patent by other letters patent published in the Gazette; and(b) appoint, name and define the Trust's irrigation water district in accordance with section 26 ; and(c) appoint, by proclamation, a place to be the source of supply for the scheme; and(d) make regulations to provide for –(i) the election of trustees; and(ii) other matters necessary or convenient for the successful operation of the scheme; and(iii) the rescission of the by-laws of the Trust published as the Third Schedule to the letters patent.(4) Nothing in this section affects –(a) the tenure or term of office of a person who was a trustee of the Trust immediately before the commencement of this section; or(b) any right or liability of the Trust that was subsisting immediately before that commencement or any property that was vested in the Trust at that time.(5) [Section 48B Subsection (5) inserted by No. 61 of 1997, s. 5, Applied:12 Dec 1997] The Irrigation Clauses Act 1973 applies in relation to the Trust's irrigation water scheme.
48C. Reconstitution of Brittons Swamp Water District Board
[Section 48C Inserted by No. 61 of 1997, s. 6, Applied:12 Dec 1997](1) In this section –(a) "Board" means the Brittons Swamp Water District Board; and(b) other terms have the same meaning as in section 48B .(2) The Board continues in existence as the authority to undertake, operate and control the Brittons Swamp Water Scheme as if it were an irrigation trust created under this Division.(3) The Governor may appoint, name and define the Board's irrigation water district in accordance with section 26 .(4) The Irrigation Clauses Act 1973 applies in relation to the Board's irrigation water district.(5) This section does not affect –(a) the tenure or term of office of a person who was a member of the Board immediately before the commencement of the Water Amendment Act 1997 ; or(b) any right or liability of the Board subsisting immediately before that commencement or any property vested in the Board at that time.
Division 5 - River improvement
49. Powers of municipalities to improve rivers
In the execution of a sealed scheme of river improvement as provided in section 53 a municipality may exercise the powers conferred by this Part.
50. River improvement proposal by municipality
To obtain a sealed scheme as provided by section 53 the municipality shall submit a proposal to the Commission giving an outline of the scheme desired.
(1) Upon receipt of a proposal under section 50 the Commission may reject it or accept it with or without such amendments as may be agreed on between the commission and the municipality.(2) The Commission shall notify its acceptance of the proposal to the municipality in writing and thereupon the municipality shall be liable to the Crown for the cost of preparing the scheme as provided in this section, including the cost of any surveys, maps, plans, and tests required for the purpose, and of any similar work required by the Commission in deciding whether to accept or reject the proposal.(3) Upon its acceptance of the proposal the Commission shall cause a scheme to be prepared for giving effect to the proposal as accepted.(4) A scheme under this section shall include plans and specifications of the works to be constructed or carried out with directions for their use, if required, and an estimate of the cost of the works and their maintenance, including compensation payable under section 57 .(5) On its completion the Commission shall send a copy of the scheme with a brief explanation thereof to the municipality.
(1) On receipt of the scheme and explanation the municipality shall –(a) make the scheme available for public inspection in some convenient place;(b) publish the explanation in a daily newspaper and in the local newspaper, if any, with a statement of where the scheme may be inspected; and(c) make provision for the cost of the scheme.(2) The execution of the scheme shall be deemed to be a purpose, duty, or function of the municipality for the purposes of the Acts relating to local authorities and their borrowing.(3) [Section 52 Subsection (3) amended by No. 10 of 1985, s. 3 and Sched. 1 ]In making and levying separate rates for the purposes of the scheme the municipality may impose different rates on different areas according as it thinks they benefit differently from the scheme.(4) The municipality may not give effect to its provision for the scheme by receiving or collecting any money until the scheme is sealed as provided in section 53 except to meet its liability to the Crown under section 51 .
Upon proof of the publication required by section 52 and if it improves the municipality's provision for the cost of the scheme, the Commission, at any time more than 30 days after that publication is completed, may set its seal to the scheme, subject however to the provisions of section 54 .
54. Objections and amendment or abandonment of the scheme
(1) At any time within the 30 days mentioned in section 53 –may object to the scheme by letter to the Commission.(a) any person who may be affected by the scheme otherwise than by being rated for it;(b) any other municipality through or by whose district a river to be affected flows or in whose district part of a lake to be affected lies; and(c) any public authority that may be affected in the exercise of its functions by the scheme –(2) On consideration of any such objection or of any request by the municipality the Commission may cause the scheme to be amended, and the scheme as amended shall become the scheme for the purposes of section 53 .(3) If the Commission thinks the amendment substantial it shall so notify the municipality, giving a brief explanation of it, and thereupon the procedure required by section 52 and this section shall be gone through again so far as is necessary.(4) The municipality may abandon the scheme at any time between the receipt by the Commission and its sealing it.
Schemes under this Division may provide for –(a) removing snags, rushes, reeds, weeds, and other obstructions from the beds and banks of rivers and lakes;(b) removing, cutting, and trimming trees, shrubs, and bushes growing in and on the bed and banks of rivers and lakes or overhanging them or likely to fall therein;(c) deepening and widening the beds of rivers and lakes;(d) pitching, piling, or otherwise protecting the banks of rivers and lakes;(e) removing obstructions to the flow of floodwaters from the flood-plains and flood-channels of rivers;(f) diverting and straightening rivers;(g) making walls, banks, dikes, weirs, dams, sewers, drains, ditches, culverts, penstocks, locks, floodgates, sluices, and other works;(h) controlling and regulating the flow of water in rivers by weirs, dams, locks, and other works;(j) raising or lowering the level of lakes;(k) planting trees, shrubs, bushes, sedges, grasses, and other plants for the purpose of slowing down water running into rivers and lakes and of protecting banks of rivers and lakes and artificial walls, banks, dikes, weirs, and dams;(l) other works and means, whether similar to any of the foregoing or not, for the improvement of rivers and lakes; and(m) the maintenance, repair, control, and management of rivers and lakes and of any works abovementioned and of the places where they are or have been done.
In the execution of a sealed scheme as provided in section 53 the municipality may, in addition to its powers under any other Act –(a) enter and pass over land with men, animals, vehicles, both wheeled and tracked, sledges, and machinery, upon reasonable notice to the occupier;(b) upon 14 days' notice by post to –execute any part of the scheme on private land;(i) the person shown in the valuation list or assessment roll of the municipality as the owner at his address shown therein; and(ii) unless the land appears to be unoccupied, to the occupier –(c) with the consent of the authority controlling it, break up any State highway or subsidiary road within the meaning of the Roads and Jetties Act 1935 ; and(d) carry away and appropriate any trees, shrubs, bushes, turf, stone, shingle, gravel, sand, or earth displaced in the execution of the scheme.
(1) In the execution of a sealed scheme as provided in section 53 the municipality shall do as little damage as possible and shall pay compensation therefor.(2) If the parties are unable to agree on the amount of compensation payable under this section, it shall be determined as a disputed claim for compensation under the Acquisition Act , regard being had to any benefit caused by the scheme and to the mode of provision by the municipality for its cost.
58. Joint scheme of river improvement
[Section 58 Substituted by No. 68 of 1962, s. 47 ](1) [Section 58 Subsection (1) substituted by No. 30 of 1995, s. 3 and Sched. 1 ]The execution of a scheme under this Division may be an undertaking carried out by a joint authority or controlling authority under Division 5 of Part 3 of the Local Government Act 1993 .(2) The Commission may require a municipality to join with other municipalities through whose districts the same river flows in a way mentioned in subsection (1) , if it desires its proposal to be accepted.
(1) If the Commission in considering whether to approve the municipality's provision for the cost of a scheme thinks fit, it may recommend to the Minister the payment to the municipality of a subsidy of such amount as the Commission may determine.(2) The Commission may recommend that the payment of any subsidy under this section shall be subject to the observance by the municipality of such terms and conditions as the Commission thinks necessary or desirable.(3) In making any recommendation under subsection (1) , the Commission shall have regard to –and shall, subject to subsection (4) , recommend, as nearly as may be, a subsidy of such amount as, allowing for the largest amount which can reasonably and lawfully be raised by the municipality and the other available resources (if any) of the municipality, will, in the opinion of the Commission, enable the municipality to undertake the proposed works.(a) the capital cost of the proposed works, and the estimated annual cost of the maintenance thereof;(b) the municipality's provision for the cost of the scheme; and(c) the financial position and circumstances of the municipality generally –(4) No subsidy shall be paid by or on behalf of the State to any municipality in respect of a sealed scheme except upon the recommendation of the Commission pursuant to this section.(5) Any subsidy recommended by the Commission pursuant to this section shall be paid to the municipality out of money to be provided by Parliament for that purpose.
In respect of a river improvement district proclaimed under section 26 the Commission may subject to this Division with all necessary modifications exercise all the powers of a municipality under this Division, but shall not set its common seal to its own scheme without the approval of the Minister.
[Section 61 Amended by No. 55 of 1965, s. 5 ][Section 61 Amended by No. 63 of 1988, s. 8 and Sched. 1 ]No person shall –(a) destroy, injure, or tamper with any dam, weir, bank, groyne, reservoir, plantation, structure, appliance, or other work or installation under the control of, or constructed, managed, or maintained by, a municipality or the Commission pursuant to this Division;(b) without the consent of the municipality or the Commission, as the case may require, make any drain which empties, either directly or indirectly, into any river where it is subject to a sealed scheme;(c) stop, divert, or obstruct any river where it is subject to a sealed scheme;(d) without the consent of the municipality or the Commission, as the case may require, erect any work in the bed or on the bank of any river where it is subject to a sealed scheme;(e) fell any tree, or suffer any tree to fall, into any river where it is subject to a sealed scheme; or(f) cut down or destroy trees or undergrowth in any area along a river which a sealed scheme provides shall be left in its natural state for the protection of the river bank.Penalty: Fine not exceeding 10 penalty units.
Division 6 - Control of authorities by the Crown
62. Control of authority by Governor on complaint of person outside its district
(1) [Section 62 Subsection (1) amended by No. 62 of 1976, s. 2 ]Where any authority has statutory powers in respect of rivers and lakes limited to some defined part of the State the owner of any land lying outside that part and injuriously affected by the lawful exercise of those statutory powers may complain in writing to the Minister.(2) Upon a complaint under this section, the Governor, after such inquiry as he thinks fit, may by order-in-council forbid that authority to exercise its powers in a particular way, if it appears to him that such an exercise will cause unnecessary or unreasonable harm.(3) Any action by any authority to which this section relates contrary to an order-in-council under this section shall be deemed to have no statutory authority.
63. Control of authority by Governor on complaint of another authority
(1) [Section 63 Subsection (1) amended by No. 62 of 1976, s. 2 ]Where –it may complain to the Minister.(a) any statutory authority finds that by the lawful exercise of its powers in respect of rivers and lakes by another statutory authority –(i) it will be impeded in the performance of its statutory duties, if any, in respect of rivers and lakes;(ii) it will be caused loss or put to additional expense in the performance of any of its statutory duties; or(iii) it will be required to nullify the effects of such exercise in the area, if any, that it administers; or(b) a statutory authority with powers in respect of rivers and lakes finds that by the lawful exercise of its powers by any other statutory authority –(i) it will be impeded in the performance of its statutory duties in respect of rivers and lakes; or(ii) it will be caused loss or put to additional expense in the performance of any of its statutory powers in connection with which it has powers in respect of rivers and lakes –(2) Upon a complaint under this section, the Governor, after such inquiry as he thinks fit, may by order-in-council –(a) forbid the other authority to exercise its powers in a particular way;(b) direct a scheme for the exercise of the powers of the authorities concerned that will best serve the public; or(c) vest in such commissioners as he may by letters patent appoint such of the powers of the authorities concerned as will enable them to exercise the disputed powers and related duties over the whole river, lake, or catchment concerned.(3) The giving or refusing of any consent required by this Act shall be deemed to be the exercise of a power for the purposes of this section.(4) The members of any authority to which this section relates who procure or vote for the disobedience of that authority to any order-in-council under this section shall be liable to prosecution upon indictment.(5) This section does not render any statutory authority liable to undertake any unreasonable expense.
PART IV - Rights in Rivers and Lakes
Division 1 - The beds and banks of rivers and lakes
64. Abolition of powers not included in this Part
(1) Except as provided in this Part or in a local or private Act no statutory authority has any power over the bed and banks of any river or lake except as incidental to some estate vested in it.(2) [Section 64 Subsection (2) amended by No. 61 of 1996, s. 15 ]For the purposes of this section the Crown, the Commission, the Hydro-Electric Corporation, and as provided in Division 5 of Part III a municipality, have the powers, rights, and duties mentioned elsewhere in this Act.
65. General powers of authorities
(1) Any authority having any power mentioned in this Part to do works on or in the bed and banks of any river or lake may –(a) enter upon the bed and banks with draught or pack animals, vehicles wheeled or tracked, sledges, prime movers, tractors, bulldozers, scoops, grabs, dredges, barges, timber, cement, stone, gravel, and all other things required for the work in hand;(b) with those animals and things pass over, along, or through any field, meadow, garden, plantation, wood, road, track, fence, hedge, or other place or thing for the purpose of reaching the place of the works; and(c) enter any land for the purpose of surveying any work or for any proposed work and do the required surveying.(2) [Section 65 Subsection (2) amended by No. 24 of 1993, s. 3 and Sched. 1 ]In the exercise of the powers conferred on it by this section the authority shall do as little damage as possible and shall make compensation therefor in accordance with the provisions of the Acquisition Act .
66. Hydro-metric and water power surveys
[Section 66 Amended by No. 68 of 1964, s. 8 and Sched. 1 ][Section 66 Amended by No. 61 of 1996, s. 15 ]For the purposes of its hydro-metric and water power survey, the Hydro-Electric Corporation, for the purposes of section 83 (3) (c) , the Commission, and, for the purposes of river-gauging and obtaining other data for water-supply, drainage, sewerage, and flood prevention schemes, any municipality, marine board, harbour trust, drainage trust, irrigation trust, and water authority, may enter upon the bed and banks of any river or lake and take such measures as may be thought fit for that purpose.
67. Powers of highway, &c., authorities
Subject to Division 4 of this Part any person authorized by or under any Act to construct or repair a highway, ferry, railway, aqueduct, pipeline, underground cable, aerial wire or cable or road to which section 70 (2) applies, may carry out all necessary work on or in the bed and banks of any river for the construction or repair of a bridge, ford, landing place, or crossing in connection therewith, and may for that purpose temporarily dam, divert, or obstruct the river or lake.
(1) [Section 68 Subsection (1) omitted by No. 82 of 1993, s. 6 ]. . . . . . . .(2) [Section 68 Subsection (2) omitted by No. 82 of 1993, s. 6 ]. . . . . . . .(3) A drainage trust may construct new works or extend existing works only –(a) upon land owned by the trust;(b) upon and under highways;(c) by agreement with or permission of the owner of the land concerned; and(d) in any other case subject to payment of compensation for injurious affection in accordance with the Acquisition Act .
69. Application of the Inland Fisheries Act 1995
[Section 69 Amended by No. 63 of 1970, s. 6 ][Section 69 Amended by No. 18 of 1995, s. 3 and Sched. 1 ]The Inland Fisheries Commission may continue to exercise the powers conferred under the Inland Fisheries Act 1995 .
(1) Nothing in this Part affects –(a) any rights granted by or under the Forestry Act 1920 ; or(b) any rights to take forest products within the meaning of that Act or rights ancillary thereto directly granted by any Act.(2) [Section 70 Subsection (2) amended by No. 25 of 1994, s. 45 and Sched. 3 ]No power mentioned in this Division may be used to affect any road or bridge on any –and used for winning forest products within the meaning of that Act without the consent of the Forestry corporation.(a) State forest;(b) . . . . . . . .(c) Crown land subject to a forest permit under the Forestry Act 1920 ;(d) land acquired by the Crown for the purposes of forestry; and(e) land from which any person has a right to take forest products within the meaning of the Forestry Act 1920 directly conferred by any Act –
71. Saving of all rights under the Mining Act 1929
Except as provided by section 74 nothing in this Part affects the rights of any person under the Mining Act 1929 .[Section 72 Repealed by No. 16 of 1997, Sched. 1, Applied:30 Jul 1997] . . . . . . . .
(1) Entry shall not be made upon any land in the exercise of a power mentioned in this Division without at least 7 days' notice to the occupier thereof, except in case of urgent necessity, in which case as much notice as possible shall be given, or with the occupier's consent.(2) For the purposes of this section notice to any person for the time being in charge of the land, or of the principal building thereon, on behalf of the occupier shall be deemed to be notice to the occupier.
[Section 74 Amended by No. 16 of 1997, Sched. 1, Applied:30 Jul 1997] No power mentioned in this Division or liberty arising therefrom may be exercised within the jurisdiction of the Marine and Safety Authority under the Marine and Safety Authority Act 1997 without its consent.
75. Protection of bridges, fords, and ferries
(1) No power mentioned in this Division may be used to affect –except with the permission of the authority or corporation controlling the bridge or ford or the owner of the ferry or of some officer authorized by it or him in that behalf.(a) any bridge carrying –(i) a highway;(ii) a railway of any corporation with statutory powers to operate a railway; or(iii) an aqueduct belonging to any statutory authority;(b) any ford which is part of a highway; or(c) any public ferry –(2) In any case of emergency where it is impracticable to obtain permission in accordance with subsection (1) the person exercising the power shall notify the relevant authority, corporation, or owner forthwith after commencing to exercise the power and shall furnish it or him with such particulars as will explain the necessity for commencing without permission.
75A. Protection from private works
[Section 75A Inserted by No. 63 of 1970, s. 7 ][Section 75A Subsection (3) amended by No. 52 of 1995, s. 3 and Sched. 1 ][Section 75A Subsection (8) amended by No. 46 of 1991, s. 5 and Sched. 3 ][Section 75A Subsection (8) amended by No. 52 of 1995, s. 3 and Sched. 1 ](1) Where the Commission is of opinion that any work being carried on or about to be carried on by a person, other than a public or local authority, in the bed of, on the banks of, or near a river or lake will or may cause damage to persons having rights, powers, or duties in, over, or in respect of the river or lake, it may by order under its common seal forbid, absolutely or conditionally, that person from carrying on or commencing those works and ordering him to restore anything thereby removed or affected or to mitigate the consequences thereof.(2) Where it appears to the Commission that any works being carried on or about to be carried on by a public or local authority in the bed of, on the banks of, or near, a river or lake are likely to cause damage to persons having rights, powers, or duties in, over, or in respect of the river or lake, it may investigate what the authority is doing and report thereon to the Minister.(3) [Section 75A Subsection (3) amended by No. 29 of 1984, s. 3 and Sched. 1 ]In an investigation under subsection (2) employees authorized by the Commission may enter on any land and inspect, take measurements and specimens, install and maintain gauges, inspect and copy plans and specifications of works, and question officers and servants of the authority concerned.(4) Upon a report under subsection (2) the Governor may by order under the seal of the State forbid, absolutely or conditionally, the authority concerned from carrying on or commencing the works concerned and ordering it to restore anything thereby removed or affected or to mitigate the consequences thereof.(5) An order made under subsection (1) or (4) shall be –as if it were an injunction made by that Court.(a) served on the person to be bound thereby; and(b) if it is filed in the Supreme Court, enforced by the Court –(6) Where works have been carried out which could at an earlier stage have been forbidden by an order under subsection (1) or (4) , the Commission or the Governor may make such an order under that subsection for restoration or mitigation as it might make if the works were still being carried out.(7) Except in an emergency the Commission shall not make an order under subsection (1) until it has notified the person to be bound thereby of what sort of order it proposes to make and has considered any representations he may make to it within 7 days after he is so notified.(8) [Section 75A Subsection (8) amended by No. 29 of 1984, s. 3 and Sched. 1 ]In an emergency as mentioned in subsection (7) , the Commission –(a) may make an order under subsection (1) to last only 24 hours from the service thereof and may, so long as it is doing its part with due diligence, extend that order from day to day until either –(i) it has complied with subsection (7) and can therefore make a final order; or(ii) it is satisfied that the person against whom the order is made is not presenting his case to it with reasonable diligence, in which case it can make a final order as if he did not wish to make any representations to it; and(b) where it could make an order under subsection (1) to restore or mitigate, may carry out such works as it might so order, using the powers set forth in section 65 (1) (a) , (b) and (c) and recover its expenses of so doing from the person it could have ordered to carry out those works.
[Section 75B Inserted by No. 63 of 1970, s. 7 ](1) A person against whom an order has been made by the Commission under section 75A may appeal to the Supreme Court.(2) On an appeal under this section, the Supreme Court may –(a) in addition to the appellant and the Commission, make any other interested person a party to the appeal;(b) determine the relevant facts by oral evidence, affidavit, inspection, or as provided in subsection (3) ;(c) quash, vary, or confirm the order;(d) award compensation, to be paid by the Commission, for any loss incurred by reason of the order by the appellant, wherever it is just to do so; and(e) provide for the costs of the appeal.(3) For the purposes of subsection (2) (b) the Court may empower any person to hear evidence and inspect and report to the Court, and may act on his report.(4) For the purposes of subsection (2) (c) , the Court shall act on the same principles as the full Court acts on an appeal from an order for an injunction.(5) This section applies to orders made by the Governor under section 75A with the substitution of the word "Attorney-General" for the word "Commission" in subsection (2) (a) and of the word "Crown" for the word "Commission" in subsection (2) (d) .
76. Rivulets and ponds in cities and towns
[Section 76 Subsection (4) amended by No. 30 of 1995, s. 3 and Sched. 1 ](1) In any city or town where any pond, swamp, marsh, or rivulet is in the opinion of the council offensive or dirty or used by the inhabitants as a rubbish dump the municipality may –(a) in the case of a pond, swamp, or marsh, drain it or fill it up or do both; and(b) in the case of a rivulet, divert it or cover it over or do both.(2) For the purposes of this section a municipality may –(a) purchase or take the land to be affected, in accordance with the provisions of the Acquisition Act ; or(b) do the work subject to paying compensation for all damage, which compensation if not agreed upon shall be determined in the same manner as a disputed claim for compensation under the Acquisition Act .(3) Before undertaking any work under this section, a municipality may, if a magistrate certifies that the place on which the work is to be done is a pond or a rivulet, as the case may be, present a petition to the Governor exhibiting that certificate, and thereupon the Governor may, by proclamation, declare that the place is a pond or rivulet, as the case may be, and thereafter it shall be so deemed for all purposes.(4) [Section 76 Subsection (4) amended by No. 63 of 1970, s. 8 ]This section does not limit the operation of Division 9 of Part 12 of the Local Government Act 1993 .(5) In assessing compensation under this section regard shall be had to all expenses to which the owner of the pond, swamp, marsh, or rivulet would probably be put to keep it in proper condition.
77. Power of municipality to require culverting of watercourses and ditches where building operations in prospect
[Section 77 Subsection (3) amended by No. 67 of 1994, s. 3 and Sched. 1 ](1) If a municipality considers that any watercourse or ditch, situated upon land laid out for building, or on which any land laid out for building abuts, should be wholly or partially filled up or covered, it may by notice require the owner of the land laid out for building, before any building operations are begun or while any such operations are in progress, wholly or partially to fill up the watercourse or ditch, or to substitute therefor a pipe, drain, or culvert with all necessary gullies and other means of conveying surface water into and through it.(2) Any question arising under this section between a municipality and an owner as to the reasonableness of any works which the municipality requires to be executed may, on the application of either party, be determined by 2 or more justices in petty sessions.(3) [Section 77 Subsection (3) amended by No. 55 of 1965, s. 5 ]Any person who, on any land to which a notice given by a municipality under this section applies, begins or proceeds with any building operations before executing the works required by the notice, shall be liable to a fine not exceeding 0·1 penalty unit and a daily fine not exceeding 0·04 penalty unit.(4) Nothing in this section empowers a municipality to require the execution of works upon the land of any person other than the owner of the land laid out for building, without the consent of that person, or prejudicially to affect the rights of any person not being the owner of the land so laid out.
78. Watercourses in city or town not to be culverted except in accordance with approved plans
[Section 78 Subsection (4) amended by No. 63 of 1988, s. 8 and Sched. 1 ](1) No person shall, within a city or town, culvert or cover over any stream or watercourse except in accordance with plans and sections to be submitted to and approved by the municipality, but such approval shall not be withheld unreasonably, and, if the municipality within 6 weeks after plans and sections have been submitted to it, fails to notify its determination to the person by whom the plans and sections were submitted, it shall be deemed to have approved them.(2) Any question arising under this section between a municipality and an owner as to the reasonableness of any works which the municipality requires to be executed as a condition of its approval, or as to the reasonableness of its refusal to give approval, may, on the application of either party, be determined by 2 or more justices in petty sessions.(3) A municipality shall not, as a condition of approving plans or sections under this section, require an owner to receive upon his land, or to make provision for the passage of, a greater quantity of water than he is otherwise obliged to receive or to permit to pass, and, if the owner at the request of the municipality makes provision for the passage of a larger quantity of water than he is obliged to permit to pass at the time of the commencement of any work under this section, any additional cost reasonably incurred by him in complying with the request of the municipality shall be borne by it.(4) [Section 78 Subsection (4) amended by No. 55 of 1965, s. 5 ]Any person who contravenes this section shall be liable to a fine not exceeding 1 penalty unit and a daily fine not exceeding 0·5 penalty unit.
79. Power of municipalities to cleanse rivers and lakes
(1) [Section 79 Subsection (1) amended by No. 23 of 1960, s. 5 and Sched. 1 ]Where any river or lake is foul or offensive or out of repair or otherwise defective so as to be injurious to the neighbourhood, the municipality may, and shall whenever the Minister for Health so recommends, cleanse the river or lake, amend all defects in it, and make any requisite structural or nonstructural improvement in it.(2) If any other person would be liable to cleanse the river or lake or keep it in repair or would be responsible for the defects, the municipality executing any work under this section may recover from that person the whole or a proportionate part of the costs incurred by it under this section.(3) [Section 79 Subsection (3) amended by No. 23 of 1960, s. 5 and Sched. 1 ]Where any river or lake lying on the boundaries of 2 or more municipalities, or running into 2 or more municipalities, is foul or offensive, or out of repair, or otherwise defective so as to be injurious to the neighbourhood, the Minister for Health may recommend joint action to the municipalities concerned to cleanse the river, or lake, and remedy all defects affecting it, and those municipalities shall take joint action accordingly.
80. Protection of the Hydro-Electric Corporation's turbines
[Section 80 Subsection (1) amended by No. 67 of 1994, s. 3 and Sched. 1 ](1) [Section 80 Subsection (1) amended by No. 55 of 1965, s. 5 ]A person who wilfully does any act on or in the bed or banks of a river or lake by reason whereof sand, gravel, shingle, or other deleterious material is or may be carried from the bed or banks into a water turbine of the Hydro-Electric Corporation is liable to a fine not exceeding 2 penalty units in addition to any civil liability.(2) Subject to section 63 , an authority having a power mentioned in this Part to do works on or in the bed and banks of any river or lake shall not exercise that power without the consent of the Hydro-Electric Corporation on any land of that Commission declared by it by notice in the Gazette to be required for slowing down or preventing erosion.
81. Protected catchment districts
(1) The Governor may, on the recommendation of the Commission, make regulations applying to all or any specified protected catchment districts regulating or prohibiting –(a) the lighting of fires;(b) burning off;(c) the destruction of trees, undergrowth, herbage, and other vegetation;(d) grazing;(e) ploughing;(f) the use of land; or(g) any other act capable of causing the erosion of the soil or increasing the amount of water that will run off after rain instead of soaking in.(2) [Section 81 Subsection (2) amended by No. 61 of 1996, s. 15 ]Where a protected catchment district lies within a hydro-electric water district the power conferred by subsection (1) may be exercised on the recommendation of the Hydro-Electric Corporation.(3) [Section 81 Subsection (3) amended by No. 19 of 1980, s. 171 and Sched. 1 ]Where regulations may be made applicable to any land under this section the Governor on the like recommendation may by order-in-council make any provision that might be the subject of a regulation a condition of the tenure of that land and on the registration of a memorial of the order-in-council in the Land Titles Office or as a deed in the Registry of Deeds, according to whether the land is or is not under the Land Titles Act 1980 , the condition shall be enforceable as if it were a condition of the Crown grant of the land.(4) When any regulations or orders are made under this section a landowner whose land is thereby made less valuable may obtain compensation from the Commission on whose recommendation they are made in accordance with the provisions of the Acquisition Act either by a lump sum or an annual payment.(5) When any provision in respect of which compensation is payable under this section is rescinded –(a) any annual payment payable, or so far as it is payable, in respect of that provision shall cease to be made; and(b) where a lump sum or part of a lump sum has been paid in respect of that provision, the Commission that paid it is entitled to recover from the owner of the land any enhancement in its value by reason of the rescission, the amount of which shall in default of agreement be determined as a disputed claim for compensation under the Acquisition Act , but the owner may elect whether to pay a lump sum or by instalments over 20 years secured by a rent-charge or by granting the Commission a rent-charge in fee, interest in the latter 2 cases being calculated at the State rate at the time of election.
Division 2 - The use and flow of water
In this Divisionthe said day means 18th January 1930, the commencement of the Hydro-Electric Commission Act 1929 .
83. Water rights of the Commission
[Section 83 Subsection (2) amended by No. 38 of 1973, s. 9 ][Section 83 Subsection (2) amended by No. 30 of 1995, s. 3 and Sched. 1 ][Section 83 Subsection (3) amended by No. 69 of 1975, s. 4 and Sched. 1 ](1) Subject to this section the Commission may take the water of every river and lake.(2) [Section 83 Subsection (2) amended by No. 63 of 1970, s. 9 ]The rights of the Commission under subsection (1) shall be subject to –and to no other right or restriction.(a) the rights confirmed in section 88 ;(b) rights depending on section 89 ;(c) quasi-riparian rights depending on section 93 ;(d) the rights validated by section 7 of the Local Government Act 1952 ;(e) the rights related to any source of supply created under Part XV of the Local Government Act 1906 , Division 24 of Part XVI of the Local Government Act 1962 , Part 6 of the Local Government (Building and Miscellaneous Provisions) Act 1993 or any special Act within the meaning of the Waterworks Clauses Act 1952 or the Irrigation Clauses Act 1973 ;(f) any right arising under the Mining Act 1929 ;(g) the effect of the exercise of any power mentioned in this Part upon the use and flow of the water in any river or lake; and(h) section 104 –(2A) [Section 83 Subsection (2A) inserted by No. 85 of 1985, s. 5 ]Where, pursuant to a permit or well order in force under the Groundwater Act 1985 , a person –the Commission may take any such water that is, or is apparently, being so diverted.(a) has taken groundwater; and(b) diverts water into a river or lake –(3) [Section 83 Subsection (3) amended by No. 38 of 1973, s. 9 ]For the purposes of this Act the Commission may –(a) purchase or take water rights in accordance with the provisions of the Acquisition Act as if such rights were incorporeal hereditaments requiring entry for their enjoyment;(b) take water from any river or lake, but shall if it requires more water than it may take by virtue of subsection (1) or of the ownership of land, including water rights, do so in accordance with section 17 of the Waterworks Clauses Act 1952 or section 21 of the Irrigation Clauses Act 1973 ; and(c) gauge the level and flow in rivers and lakes and obtain other data required by it in respect of the natural waters of the State.(4) [Section 83 Subsection (4) amended by No. 61 of 1996, s. 15 ]The powers conferred in subsection (3) (a) and (b) shall not be used in a hydro-electric water district without the consent of the Hydro-Electric Corporation.(5) [Section 83 Subsection (5) amended by No. 61 of 1996, s. 15 ]Notwithstanding any other provision of this Act, all travellers, tourists, campers, and picnickers shall, except where expressly forbidden by notice, sign-board, advertisement, or otherwise, have the right as against the Commission and the Hydro-Electric Corporation to take a reasonable quantity of water from rivers and lakes for their own personal use (including their riding, pack, or draught animals and vehicles).
84. Power of Commission to sue to protect other riparian owners
The Commission may sue upon the rights conferred upon it by section 83 (1) not only to protect its own material interest but also in the public interest or to protect other riparian owners, and the fact that the Commission is subject to no material loss shall be no bar to relief in equity where there is a detriment to the public or to other riparian owners.
85. Right of eminent domain over rivers and lakes
[Section 85 Subsection (5) amended by No. 61 of 1996, s. 15 ](1) Subject to the provisions of this section the Crown may for any public purpose take water from any river or lake, notwithstanding the right of the Commission or any other person therein.(2) Where the rights of the Crown under this section are exercised the Minister responsible therefor may cause notice of the place at which the taking is to be done and the maximum daily quantity to be taken, together with some later date on which the taking will begin, to be given in the Gazette and in a newspaper.(3) From and after the date so notified every lower riparian right or right of a similar kind shall be subject to the exercise of the Crown's rights as notified.(4) Rights to take greater daily quantities of water may from time to time be acquired on behalf of the Crown by similar notices, and from the date so notified every lower riparian right or right of a similar kind shall be subject to the increased exercise of the Crown's rights as notified.(5) [Section 85 Subsection (5) amended by No. 24 of 1993, s. 3 and Sched. 1 ]Every person, other than the Commission, and the Hydro-Electric Corporation, whose land is injuriously affected by the operation of subsections (3) and (4) shall be entitled to compensation which is to be determined in the same manner as a disputed claim for compensation under the Acquisition Act subject to the following provisions:(a) section 44 of the Acquisition Act is to be construed as if the period of 3 months specified in that section were a period of 4 months commencing on the day on which the notice referred to in subsection (2) of this Act is published in the Gazette;(b) those Commissions shall be entitled likewise to compensation for consequential loss where any expenditure by them on land (including water rights) or works is rendered unproductive.(6) In lieu of paying compensation the Minister responsible may on behalf of the Crown –(a) agree with the person to be compensated that he shall have an equivalent supply of water upon such terms and conditions as may be agreed and for a sum to equal the difference between the rights lost and the rights gained by the agreement; or(b) arrange to send down compensation water in accordance with section 35 .(7) Where no notice is given under subsection (2) any person may obtain damages, but not an injunction, as if this section had not been enacted.
86. Validation of existing Crown water supplies
[Section 86 Subsection (1) amended by No. 61 of 1996, s. 15 ](1) [Section 86 Subsection (1) amended by No. 24 of 1993, s. 3 and Sched. 1 ]Where at the commencement of this Act the Crown is taking water from any river or lake for any public purpose that taking shall be deemed to be of right and any person other than the Hydro-Electric Corporation whose rights are injuriously affected by the operation of this subsection only shall have a right to compensation in accordance with the Acquisition Act .(2) Neither section 50 of the Hydro-Electric Commission Act 1929 nor section 66 of the Hydro-Electric Commission Act 1944 has ever bound the Crown.
87. Water for public hospitals
(1) Water may be obtained under section 85 for the purposes of a public hospital vested in a Public Hospitals Board, and the right thereto may be granted to the Board.(2) [Section 87 Subsection (2) amended by No. 19 of 1980, s. 171 and Sched. 1 ]Grants under this section shall not be enrolled in the Supreme Court, but shall be registered in the Registry of Deeds or under the Land Titles Act 1980 , wherever the grant of the land to which the water right will be accessory is registered, and when so registered shall be deemed to be duly enrolled, but where the grant has been registered in the Registry of Deeds, and the land has since been brought under that Act, the grant of the water right shall be registered under that Act only.
88. Confirmation of existing rights
Subject to this Part, section 83 (1) excepted –are confirmed.(a) all riparian rights to the use and flow of water in rivers and lakes;(b) all rights to take or use the water from or in any river or lake arising from the enjoyment thereof or from any presumption of a lost grant based on such enjoyment lawfully held on the said day; and(c) all rights to take or use the water from or in any river or lake arising –(i) from any local or private Act; or(ii) from the grant of any person lawfully entitled before the said day to grant the same –
89. Validation of existing public waterworks
Without prejudice to any other rights it may have an authority that for the 2 years last before the commencement of this Act has been taking water as of right from any river or lake for the purpose of a public supply of water may continue to take water therefrom for that purpose in the same manner and to the same extent as it took water during those 2 years.
90. Prescription in the use of water to cease against Crown and certain public authorities
(1) [Section 90 Subsection (1) amended by No. 61 of 1996, s. 15 ]As against the Crown, the Commission, the Hydro-Electric Corporation, municipalities, marine boards, harbour trusts, and any similar authority designated for the purpose by proclamation, and whether in respect of a riparian tenement (whenever acquired) or not, no right to take or use the water in any river or lake is capable of coming into existence after the said day by reason only of the enjoyment thereof for any period or any presumption of a lost grant based on such enjoyment.(2) In any action to declare the existence of any such right on the said day or to perpetuate testimony in respect thereof brought against the Crown, it shall not be necessary to join the Commission or any other such authority, unless the court or a judge so orders, but every such authority not a party shall be bound as if represented by the Attorney-General.(3) In cases to which subsection (1) applies section 3 of the Prescription Act 1934 shall be read as if the periods of 20 and 40 years therein mentioned were greater by the period that has elapsed between the said day and the relevant proceeding wherein the claim or matter to which the period of 20 or 40 years relates is brought into question.
91. Modification of riparian rights
(1) The right of a riparian owner to have the water of a river flow to him in its natural state in flow and quantity neither sensibly increased nor sensibly diminished shall be deemed to include the rights –(a) to have the water-table under his riparian tenement thereby maintained in its natural state neither sensibly raised nor sensibly lowered;(b) to have the natural facilities of his riparian tenement for access to the water, navigation thereon, and fishing therein not sensibly altered; and(c) to have the use of the water as a fence so far as through such flow it may serve as a fence.(2) An injunction shall not be granted to protect the right first-mentioned in this section unless –(a) the plaintiff can show some expected material loss to himself or his successors in title in respect of one or more of the other rights therein mentioned; or(b) the defendant could by unopposed continuance of the acts sought to be stopped acquire the right as against the plaintiff to continue those acts.(3) [Section 91 Subsection (3) amended by No. 36 of 1958, s. 4 and Sched. 3 ] Subsection (2) (b) does not apply to acts licensed under section 94 , which cannot by any period of exercise give rise to a right independent of the Commission's licence against persons not protected by section 90 (1) .(3A) [Section 91 Subsection (3A) inserted by No. 68 of 1964, s. 2 ]In an action for damages for infringement of the right first-mentioned in this section, only the plaintiff's pecuniary loss may be awarded.(4) This section applies by analogy in respect of lakes.
92. Division of, or addition to, riparian tenement
(1) When after the said day any riparian tenement is divided in fee into riparian and non-riparian parts, all riparian rights to the use and flow of water in rivers and lakes in respect of the land in the non-riparian part shall be extinguished.(2) When after the said day any non-riparian tenement is united in fee simple or in any less estate or interest with a riparian tenement no right to the use and flow of water in any river or lake shall arise in respect of the land which was formerly non-riparian.
(1) [Section 93 Subsection (1) amended by No. 75 of 1973, s. 2 and Sched. 1 ]Where any land would be a riparian tenement but for the existence of a Crown reserve not exceeding 20 metres in width between it and a river or lake, a right shall exist in respect of that land, to be called a quasi-riparian right, to take from that river or lake water for household and sanitary purposes in connection with dwellings on that land, and for watering stock depastured on that land.(2) This section does not give any rights over the riparian Crown reserve but an easement or licence may be granted thereover for getting the water to the land to which the quasi-riparian right attaches.(3) Grants of easements under subsection (2) shall be subject to section 87 (2) as if they were grants of water rights accessory to the quasi-riparian tenement.
[Section 94 Substituted by No. 68 of 1964, s. 3 ](1) The Commission may grant under its common seal rights to take water from rivers and lakes at such places for such purposes, at such times, in such quantities and subject to such conditions as it thinks fit.(2) [Section 94 Subsection (2) amended by No. 61 of 1996, s. 15 ]Such rights shall –(a) be known as commissional water rights;(b) be annexed to specified land or a specified estate or interest therein by being granted to a named person and his heirs or his assigns or as the case may be while holding the specified land or the specified estate or interest;(c) unless the Hydro-Electric Corporation has given written approval to omit it, be subject to a condition that the water taken thereunder shall not be used to generate electricity; and(d) normally be for 5 years but may be –(i) for a lesser term; or(ii) for a longer term or in fee, if the Commission considers that the land in respect of which the right is granted will not otherwise be developed properly and that such development is in the public interest.(2A) [Section 94 Subsection (2A) inserted by No. 69 of 1975, s. 2 ]A commissional water right may be extended in identical terms from time to time for a period not exceeding 5 years at any one time by notice in writing signed by a person authorized to do so by the Commission.(3) Non-riparian land to which a commissional water right is annexed shall be deemed, for the purpose only of exercising that right, to be riparian land at the place from which water may be taken by virtue of that right.(4) The Commission shall do its best not to grant commissional water rights in excess of the quantity which it may lawfully take, but if it does grant in excess it is under no legal liability therefor.(5) [Section 94 Subsection (5) amended by No. 61 of 1996, s. 15 ]For the purpose of ensuring that water which the Hydro-Electric Corporation is or will be entitled to take for generating electricity reaches the generating station, that Commission may request the Commission so to use its powers under this section that the flow at the intake of the generating station is reduced by no more than a specified quantity, and the Commission shall use its powers to grant or renew commissional water rights in accordance with every such request.(6) [Section 94 Subsection (6) amended by No. 61 of 1996, s. 15 ]Where a request under subsection (5) relates to a generating station not yet existing or an increase of water for an existing generating station, a date on which it is to take effect shall be specified therein, and then, while the Commission is not affected by the request in granting or renewing commissional water rights expiring before that date, it –(a) shall put on the grants of such rights not intended to be renewed beyond that date, a note to that effect; and(b) may within 5 years of that date grant or renew such rights –(i) for a shorter period than 5 years; or(ii) determinable at the will of the Hydro-Electric Corporation.(7) Every request under subsection (5) shall be transmitted to the Minister forthwith and by him published in the Gazette.(8) The Commission shall charge for commissional water rights by a lump sum or periodical payments at the rates set forth in the regulations, which –(a) for that purpose shall be made only on the recommendation of the Commission; and(b) may differentiate between grantees in respect of the place from which, the use for which, and the quantity in which, water is to be taken.
94A. Variation of commissional water rights
[Section 94A Inserted by No. 68 of 1964, s. 3 ][Section 95 Repealed by No. 21 of 1978, s. 2 ]. . . . . . . .(1) Where in the opinion of the Commission, there is not enough water in a river or lake to satisfy all persons entitled thereto, whether by commissional water rights or otherwise, the Commission to secure the rights of persons otherwise entitled may –(a) refuse to renew commissional water rights or renew them in a less favourable form; or(b) by order authenticated as prescribed, forbid the holder of a commissional water right to take –that the right entitles him to take, during a specified period, or to take water except at specified times, or otherwise cut down the right.(i) more than a specified quantity of water, being less than the quantity; or(ii) any water –(2) If the Commission acts under subsection (1) (a) , it shall, subject to any considerations of fairness that seem good to it, give preference in renewal to uses of longer duration.(3) If the Commission acts under subsection (1) (b) , it may differentiate between holders as it thinks just.(4) While an order under subsection (1) (b) is in force the right to which it applies shall be deemed to be varied in accordance with the order.
[Section 96 Amended by No. 32 of 1967, s. 2 ][Section 96 Amended by No. 37 of 1996, s. 3 and Sched. 1 ](1) [Section 96 Subsection (1) amended by No. 61 of 1996, s. 15 ]In the exercise of their statutory powers the Commission, the Hydro-Electric Corporation, any water supply, drainage, or river improvement authority and any person thereto authorized by the Mining Act 1929 may raise or lower the level of any river or lake, permanently, occasionally, or temporarily, and subject to making compensation in accordance with the provisions of the Acquisition Act for all damage thereby done to any land.(2) [Section 96 Subsection (2) amended by No. 61 of 1996, s. 15 ]In the exercise of their powers under this section the Commission, the Hydro-Electric Corporation, and every such authority shall take steps, so far as possible, to preserve and protect the natural beauty of rivers and lakes and shall consult with and take into consideration the views of the National Parks and Wildlife Advisory Council in respect of any proposed works which appear to be likely to affect that natural beauty.(3) The powers hereby conferred to raise the level of rivers and lakes include the power to flood permanently, occasionally, or temporarily, any neighbouring land.(4) [Section 96 Subsection (4) inserted by No. 35 of 1973, s. 18 ]The Minister administering the Environmental Management and Pollution Control Act 1994 may by order under his official seal served on the person concerned forbid any person to exercise in specified circumstances a statutory power referred to in subsection (1) and then anything done in contravention of the order shall be deemed to have been done without any statutory authority.
97. Notification of use of water
[Section 97 Subsection (1) amended by No. 75 of 1973, s. 2 and Sched. 1 ][Section 97 Subsection (1) amended by No. 61 of 1996, s. 15 ](1) [Section 97 Subsection (1) amended by No. 68 of 1964, s. 8 and Sched. 1 ]Any person other than the Hydro-Electric Corporation who at any time takes from any river or lake more than 12 cubic metres of water a day for any purpose other than –shall give notice to the Commission, in the prescribed manner, of what water is so taken, and shall, in the notice, specify the place from which it is taken and the purpose for which it is used.(a) a scheme approved under the Water, Sewerage, and Drainage Board Act 1944 , or under Division 3 of Part III ;(b) a water supply or sewerage scheme authorized by or under any Act;(c) one within a right registered under section 100C ;(ca) one within a commissional water right; or(d) one for which quasi-riparian rights may be used –(2) A person who has given such a notice shall likewise give notice of any variation in the purpose for which the water is used and of any variation in the quantity taken exceeding by a quarter the amount of the maximum amount previously notified.
[Section 98 Amended by No. 55 of 1965, s. 5 ][Section 98 Amended by No. 63 of 1988, s. 8 and Sched. 1 ]Any person who fails to comply within the prescribed time, with any of the provisions of section 97 which apply to him shall be guilty of an offence.Penalty: Fine not exceeding 5 penalty units.
99. Malicious abstraction of groundwater
[Section 99 Amended by No. 85 of 1985, s. 6 ][Section 99 Amended by No. 63 of 1988, s. 8 and Sched. 1 ]No person may with intent merely to injure some other landowner, including any statutory authority requiring water for the purposes of its Act, draw off any groundwater not flowing in a defined channel.Penalty: Fine not exceeding 10 penalty units.
100. Non-application to tidal waters
Nothing in this Division affects the taking of tidal water.
Division 2A - Irrigation[Part IV, Div. 2A Inserted by No. 68 of 1964, s. 4 ]
[Section 100A Inserted by No. 68 of 1964, s. 4 ]In this Division –the appointed day means 1st January 1965.
[Section 100B Inserted by No. 68 of 1964, s. 4 ]For the purposes of this Division –(a) a riparian owner has only a liberty to take water from a river or lake for irrigation, which liberty becomes a right only by express grant, prescription, or presumption of a lost grant from enjoyment of the liberty; and(b) there is a conclusive presumption that water taken from a river or lake and used in irrigation does not return to that river or lake.
[Section 100C Inserted by No. 68 of 1964, s. 4 ](1) Subject to this section, but notwithstanding any other provision of this Act or any other Act or rule of law to the contrary, on and after the appointed day no person may take water from a river or lake for irrigation except as provided in this section.(2) A person who as against the Commission has a right to take water from a river or lake for irrigation may continue to do so for 2 years commencing on the appointed day, and thereafter his right to do so shall cease and be extinguished unless he has registered it as provided in section 100D .(3) The Supreme Court or a judge in chambers may extend the time for applying for registration under that section at any time within or after the 2 years commencing on the appointed day.(4) While an application for registration under that section is pending or if it has been refused while proceedings are pending to establish the applicant's right to registration by an action for a declaration, mandamus, or otherwise, while an appeal may be commenced of right from a judgment or order in such proceedings, and until such an appeal having been commenced of right or by leave is determined, the right claimed by the applicant shall not be interfered with under this Division without the leave of the Supreme Court or of the court in which such an appeal is pending.(5) An authority taking water from a river or lake for a public supply of water, including an irrigation trust under Division 4 of Part III and the corporation created under section 10A of the War Service Land Settlement Act 1950 , may take such water for irrigation as if this section had not been enacted.(6) The occupier of land to which a commissional water right expressed to permit irrigation is annexed is entitled to take water for irrigation in accordance with that right so far as the Commission has the right to grant it.(7) This section does not prejudice or affect any duty, obligation, or right to supply, make available, or take, water that is imposed or created by an enactment in relation to a river or lake specified in that enactment or in relation to any irrigation works so specified.
[Section 100D Inserted by No. 68 of 1964, s. 4 ](1) A person who as against the Commission has a right to take water from a river or lake for irrigation may register that right in the office of the Commission free of charge.(2) To obtain registration a person shall apply in writing setting forth the right claimed and stating where, when, and in what quantity it may be exercised, and shall accompany it –(a) with evidence by way of statutory declaration that he has the right claimed; and(b) with a map or sketch plan showing –(i) the land for which the right is claimed;(ii) the place whence the water is taken; and(iii) any permanent waterworks used to irrigate the land.(3) [Section 100D Subsection (3) inserted by No. 63 of 1970, s. 10 ]On receipt of an application in accordance with subsection (2) , the Commission shall consider it and the evidence in support of it, and may –(a) by written notice to the applicant –(i) accept the application and register the right claimed; or(ii) reject the application, giving its reasons for so doing; and(b) investigate the claim further, for which purpose it may –(i) inform the applicant of the matters on which he has failed to satisfy it;(ii) receive further evidence either orally, on oath or otherwise, or in writing, on affidavit, statutory declaration, or otherwise;(iii) appoint an advocate for the public interest and hear oral submissions from him, the applicant, and other persons concerned, or receive those submissions in writing; and(iv) where 2 or more applicants have conflicting interests or cannot both or all be right, deal with all their claims in the one investigation.(4) [Section 100D Subsection (4) inserted by No. 63 of 1970, s. 10 ]The Commission shall register a right under this section when, and to the extent that, it is satisfied by evidence of its existence.(5) [Section 100D Subsection (5) added by No. 63 of 1970, s. 10 ]Nothing contained in subsection (4) bars proceedings by an applicant by way of action for a declaration, mandamus, or otherwise to establish his right to registration otherwise than as the Commission has acted or proposes to act under that subsection.
[Section 100E Inserted by No. 68 of 1964, s. 4 ][Section 100E Amended by No. 52 of 1995, s. 3 and Sched. 1 ]An employee authorised by the Commission or a water bailiff may, without any previous notice, enter upon any land for the purposes of –(a) inspecting any waterworks or use of water;(b) gauging the level or flow of a river or lake; or(c) ascertaining whether or in what quantity water is being taken from a river or lake.
100EA. Power to restrict unlawful taking of water
[Section 100EA Inserted by No. 63 of 1988, s. 4 ](1) [Section 100EA Subsection (1) amended by No. 52 of 1995, s. 3 and Sched. 1 ]Where –(a) water is taken from a river or lake for irrigation of land in respect of which there is in force a commissional water right or a right in force pursuant to section 100C or 100D that expressly permits irrigation of that land; and(b) the quantity of that water exceeds the amount that may for the time being be taken pursuant to that right, having regard to any order or direction that may be in force for the time being under this Act –or in any other circumstances water is taken from a river or lake for irrigation without lawful authority, an employee authorised by the Commission or a water bailiff may, without any previous notice, enter on any land and direct the owner or occupier of the land –(c) to cease forthwith the taking of water from the river or lake for irrigation on that land; or(d) to modify forthwith the valves, pipes, or other equipment used for the taking of that water or carry out such other works as may be so directed to ensure that any water so taken will be restricted to such amount as may be permitted having regard to any order or direction in force under this Act.(2) [Section 100EA Subsection (2) amended by No. 52 of 1995, s. 3 and Sched. 1 ]Where an owner or occupier of land who has been given a direction as provided by subsection (1) fails to comply with the terms of the direction as required by that subsection –(a) an employee authorised under subsection (1) or a water bailiff may, without any previous notice, enter on any land for the purposes of seizing a pump used in the taking of water to which the direction relates or any part of such a pump so as to make the pump inoperable; and(b) if such an employee or a water bailiff considers it necessary for the exercise of his powers under paragraph (a) , he may be accompanied by a tradesman who shall, for the purposes of this section, have the same powers to enter on land and may exercise those powers accordingly.(3) Where a pump or part of a pump has been seized under subsection (2) as a result of the failure of an owner or occupier of land to comply with a direction given to him under subsection (1) (d) , that owner or occupier is not entitled to the return of that pump or part of a pump until he has complied with that direction.(4) [Section 100EA Subsection (4) amended by No. 52 of 1995, s. 3 and Sched. 1 ]Where an owner or occupier of land has been given a direction as provided by subsection (1) , an employee authorised under that subsection or a water bailiff may affix a seal to any valves, pipes, or other equipment used for the taking of water or, as the case may be, any works carried out pursuant to that subsection.(5) On the conviction of a person for an offence against this Part, the court by which he is convicted may, in addition to any other penalty that may be imposed, order that that person shall pay to the Commission the amount of any expense reasonably incurred by it in carrying out any works pursuant to subsection (2) .(6) An amount ordered to be paid to the Commission under subsection (5) is recoverable in any court of competent jurisdiction as a debt due to the Commission by the person against whom the order is made.(7) Nothing in this section shall be construed as affecting any liability for an offence under section 100G .
100F. Police to render assistance
[Section 100F Inserted by No. 68 of 1964, s. 4 ][Section 100F Amended by No. 63 of 1988, s. 5 ]When required so to do by the Commission or a person authorized for the purposes of section 100E or 100EA , all constables shall –(a) obtain and furnish information as required;(b) serve any notices or documents; and(c) accompany such a person entering land for the purposes of either of those sections.
100G. Penalty for illegal irrigation
[Section 100G Inserted by No. 68 of 1964, s. 4 ][Section 100G Amended by No. 55 of 1965, s. 5 ][Section 100G Amended by No. 63 of 1988, s. 8 and Sched. 1 ]A person who takes water from a river or lake for irrigation contrary to section 100C –(a) without any right so to do as provided in that section is liable to –(i) a fine not exceeding 10 penalty units for a first offence; and(ii) a fine not exceeding 20 penalty units, or imprisonment for a term not exceeding 12 months, for a second or subsequent offence;(b) in excess of any such right is liable to –(i) a fine not exceeding 5 penalty units for a first offence; and(ii) a fine not exceeding 10 penalty units or imprisonment for a term not exceeding 6 months, for a second or subsequent offence;(c) contrary to an order under section 94A , is liable to –(i) a fine not exceeding 10 penalty units for a first offence; and(ii) a fine not exceeding 20 penalty units, or imprisonment for a term not exceeding 12 months, for a second or subsequent offence.
100GA. Presumption that water taken by holder of commissional water right, &c.
[Section 100GA Inserted by No. 63 of 1988, s. 6 ]For the purposes of section 100G , where water is taken for use on any land to which, or to an estate in which, a commissional water right is annexed, it shall be presumed, unless the holder of that right can show that the water was taken without his authority and in circumstances beyond his control, that the water was taken by that holder.
Division 2B - Registration and control of private water rights[Part IV, Div. 2B Inserted by No. 63 of 1970, s. 11 ]
100H. Compulsory registration of certain water rights: Abolition of unregistered rights
[Section 100H Inserted by No. 63 of 1970, s. 11 ](1) This section applies to the rights confirmed by section 88 not being –(a) ordinary riparian rights;(b) rights to take water from a river or lake for irrigation; or(c) rights to take or use water from or in any river or lake arising from any local or private Act.(2) After 31st December 1971 the rights to which this section applies are abolished except in so far as they are registered under this Division.(3) Notwithstanding anything in subsection (2) , where an application has been made under this section for the registration of a right that right may be exercised until that application is finally determined.(4) A person who holds or is entitled to hold a right to which this section applies may register that right in the office of the Commission free of charge.(5) An application for the registration of a right under this section shall be lodged with the Commission before 1st January 1972 or within such further time as the Supreme Court or a judge in chambers at any time, whether before or after that date, may allow.(6) Subject to this section, section 100D (2) , (3) , (4) , and (5) apply in respect of the registration of a right under this section as they apply in respect of the registration of a right under that section.(7) Nothing in this section affects the duty imposed and the rights created by section 6 of the Loan (Hydro-Electric Commission) Act 1957 .
100J. Ordinary riparian rights
[Section 100J Inserted by No. 63 of 1970, s. 11 ](1) For the purposes of this Division, ordinary riparian rights –(a) are declared to be, so far as they relate to the taking of water from a river or lake, the right to take water for –(i) drinking, cooking, and washing by persons living on the land; and(ii) drinking by animals ordinarily on the land; and(b) shall be deemed to include the right to take water for watering a domestic garden.(2) Ordinary riparian rights may be defined and quantified by regulations made under section 118 .(3) No regulations shall be made for the purposes of subsection (2) until the expiration of 3 months after the publication of a notice in the Gazette of the intention to make them.(4) Where a notice published under subsection (3) does not set out the regulations proposed to be made the Commission shall –(a) during the 3 months following the publication of the notice, keep available at its office for public inspection copies of the regulations proposed to be made; and(b) on payment of such charge (if any) as the Minister may fix, furnish such a copy to any person requesting it.
[Section 100K Inserted by No. 63 of 1970, s. 11 ](1) When, at any time on or after 31st December 1970, there is not enough water in a river or lake to satisfy all rights in or over that river or lake and the requirements of persons having a liberty to take water therefrom a water bailiff may, subject to the orders of the Commission, direct all or any of the persons holding those rights or having those liberties at what times, in what manner, and in what quantity they may take water from that river or lake; but no directions shall be given under this section that would have the effect of restricting the exercise of any rights that, by subsection (2) , are not subject to this section.(2) Except as otherwise provided by an order-in-council made under subsection (5) , any such rights as are referred to in section 83 (2) (b) , (d) , (e) , (f) , (g) , or (h) or as are conferred by a local or private Act are not subject to this section.(3) In the exercise of their powers under subsection (1) the Commission and water bailiffs shall strive to ensure –(a) in the first place, that by regulation of the taking of water all persons affected may obtain their reasonable requirements; and(b) that, if there is still not enough water, the loss of it is suffered fairly by all, and for that purpose may –(i) discriminate between different kinds of use;(ii) take account of individual hardship; and(iii) allow nothing for unfair or unreasonable use.(4) In applying subsection (3) , the Commission and water bailiffs shall –(a) have regard to –(i) the length of time for which the person concerned has himself used the right to take water, without regard to use by any predecessor in title;(ii) the degree of productivity achieved by that person's use of the right to take water; and(iii) the efficiency of that person's use of water taken by him; and(b) give absolute preference to ordinary riparian rights (other than the right to water a domestic garden) over commissional water rights.(5) The Governor may, if it appears to him expedient, by order-in-council make subject to this section any rights referred to in subsection (2) except rights arising under the Mining Act 1929 , the Macquarie Water Act 1892 , or the Clyde Water Act 1898 .
100L. Enforcement of water bailiff's directions
[Section 100L Inserted by No. 63 of 1970, s. 11 ](1) A water bailiff's directions under section 100K may be given individually or to the public at large and in writing or orally and, if orally, face to face, by telephone or radio telephony (including television) and, if in writing, in a newspaper, by notices posted up in public places, or by letter.(2) A person who receives an oral direction shall be given the direction in writing forthwith.(3) Where a direction under section 100K has been advertised in a newspaper and by radio telephony so that it will have come to the notice of most persons in the area affected by the direction, it shall be deemed, in the absence of proof to the contrary, to have come to the notice of all.
100M. Appeal against direction
[Section 100M Inserted by No. 63 of 1970, s. 11 ](1) A person who is aggrieved by a water bailiff's direction under section 100K may appeal to a magistrate by notice of appeal given to the Commission which, and not the water bailiff, shall be the respondent to the appeal, and to a designated clerk of petty sessions.(2) If the appellant shows the magistrate that –the magistrate may quash the direction and may, whether he quashes the direction or not, order that fresh directions be given in the matter to which the appeal relates.(a) the water bailiff had not power under section 100K (1) to give the relevant direction; or(b) in framing the relevant direction the water bailiff or the Commission acted so maliciously or regardlessly of subsection (3) or subsection (4) of that section that the direction ought not to have any effect –(3) Where a magistrate orders that fresh directions be given in any matter and those directions, being directions approved by him, are not given within such time as he may allow, he may, after consultation with the district advisory committee for the district, if the matter arises wholly or partly in a district appointed under section 25A , give such directions as he thinks fit and any directions so given have the like effect as directions given by a water bailiff under section 100K (1) .(4) References in subsection (2) to the matter to which an appeal relates shall be construed as including references not only to the right or liability affected by the direction against which the appeal is brought but all other rights and liberties the exercise of which the magistrate is of the opinion were or should have been taken into consideration when the direction was made.(5) Before making any decision under this section on any appeal the magistrate shall give each person having an interest in the matter to which the appeal relates an opportunity of being heard by him; and for the purposes of affording any such person any such opportunity he may give such directions as he thinks fit.(6) [Section 100M Subsection (6) amended by No. 69 of 1975, s. 4 and Sched. 1 ]Where a direction under subsection (5) is a direction for the service of a notice on any person that notice may be served on that person by delivering it to him personally or by sending it by certified mail addressed to him at his usual or last-known place of abode or business, or in such other manner as the magistrate may approve.(7) Where a person takes the opportunity to be heard as provided in subsection (5) , the magistrate shall order him to be made a party to the appeal as an appellant or a respondent.(8) On an appeal under this section the magistrate shall sit in the county or municipality in which are situated the lands affected by the direction against which the appeal is brought.(9) [Section 100M Subsection (9) amended by No. 69 of 1975, s. 4 and Sched. 1 ]On an appeal under this section the magistrate may –(a) make any inquiry or survey that appears to him necessary or expedient for the purposes of the appeal;(b) use his own knowledge however gained;(c) rely on, and adjourn proceedings to obtain, reports of tests of competent persons; and(d) if the expenses of a party to the appeal in respect of the appeal have in his opinion been caused or increased by unreasonable or improper conduct of another party to the appeal, order the latter to pay the former such sum by way of costs as he may fix.(10) The bringing of an appeal under this section shall not affect the operation or enforcement of a direction under section 100K .(11) Until rules are made for the same purpose under section 144 of the Justices Act 1959 , the Attorney-General may make rules with respect to the procedure on appeals under this section, including rules requiring deposits to be made by appellants and making provision for the disposal of any such deposits.(12) The Governor may, by order, declare the districts the clerks of petty sessions of which are to be designated clerks of petty sessions for the purposes of this section, and the clerk of petty sessions for any district so declared is a designated clerk of petty sessions for the purposes of this section.(13) The function of a magistrate under this section may be performed by a stipendiary magistrate.
[Section 100N Inserted by No. 63 of 1970, s. 11 ]Any person may with the written permission of a water bailiff take from a river or lake water that he might not otherwise take, which permission the water bailiff may, subject to the orders of the Commission, give where he believes that that taking will be to no-one's detriment.
100P. Defence of water bailiff's directions
[Section 100P Inserted by No. 63 of 1970, s. 11 ]On and after 31st December 1970 it is a defence to any action for the taking of water from a river or lake that the water was taken in accordance with the directions of a water bailiff in accordance with this Division.
Division 2C - Augmentation of flow[Part IV, Div. 2C Inserted by No. 38 of 1973, s. 10 ]
100Q. Creation of augmented flow district
[Section 100Q Inserted by No. 38 of 1973, s. 10 ](1) The Governor may –by proclamation, appoint, define, and name augmented flow districts.(a) on the recommendation of the Minister; or(b) on the petition of –to be affected –(i) the municipality; or(ii) the owners of at least two-thirds of the land –(2) Before a proclamation is made under this section –(a) the Minister shall have given notice of his recommendation or the petition, as the case may be, in a newspaper and to the municipality, if it is not the petitioner;(b) the municipality shall have posted up, and kept posted up, the notice at its municipal office for 3 months;(c) three months shall have elapsed after the publication of the notice in the newspaper.(3) During the 3 months referred to in subsection (2) any person owning or occupying land in the proposed district may petition the Governor against the issue of a proclamation pursuant to the notice.(4) For the purposes of this section an augmented flow district comprises all lands for the time being capable of receiving benefit from the flow of a specified part of a river and shall be defined by the specification of that part.
100R. Flow augmentation committee
[Section 100R Inserted by No. 38 of 1973, s. 10 ](1) In every augmented flow district there shall be a flow augmentation committee consisting of 3 electors for the purposes of this section.(2) For the purposes of this section every occupier of lands in an augmented flow district is an elector for the flow augmentation committee thereof.(3) On the proclamation of an augmented flow district the Minister shall cause an election to be held for the flow augmentation committee thereof.(4) For the purposes of an election under subsection (3) the Minister shall –(a) arrange for a meeting of electors in or near the district and appoint a chairman thereof; and(b) give notice of that meeting by post to each elector and by advertisement in a newspaper circulating in the district.(5) At the meeting so called –(a) an elector may attend and vote by proxy;(b) a proxy may not be another elector nor a proxy for another elector;(c) the chairman shall call for nominations from the members of the meeting and may allow discussion of the merits of the persons nominated;(d) the chairman shall obtain the election of 2 scrutineers by open voting;(e) the electors shall vote on paper for the candidates;(f) the scrutineers shall examine the voting papers and report openly to the chairman the result of the election; and(g) the system of counting votes at elections for members of the Legislative Council shall be used.(6) The chairman at such a meeting shall certify the result of the election to the Minister and his certificate published in the Gazette is sufficient evidence of the result.(7) Members of a flow augmentation committee –(a) shall hold office for 3 years;(b) are eligible for re-election; and(c) may resign to, or be removed by, the Minister.(8) As often as an election is required to fill ordinary vacancies or a casual vacancy, the flow augmentation committee shall –(a) by advertisement in a newspaper circulating in the district –(i) appoint a day and place for the election and call for nominations and candidates for elections; and(ii) notify the names and addresses of the candidates for election; and(b) on the day and at the place appointed for the election have 2 persons who have been approved by the warden of the municipality in which the augmented flow district lies, or the wardens if it lies in more municipalities than one, and who are not candidates for election to receive votes in writing, in a ballot box from noon until 3 p.m. and then to count them as at elections for the Legislative Council.(9) When the 2 persons have counted the votes as provided in subsection (8) they shall –and their certificate published in the Gazette is sufficient evidence of the result.(a) announce the result of the election outside the place appointed for the election; and(b) certify it to the Minister –
100S. Arrangements for augmentation of flow
[Section 100S Inserted by No. 38 of 1973, s. 10 ](1) In respect of any period between the end of September and the beginning of June next following the Commission and the flow augmentation committee of an augmented flow district may agree that –(a) the Commission will let specified quantities of water at specified times into the part of the river specified in the definition of the district; and(b) the water shall be paid for as provided in this Division.(2) An agreement for the purposes of this section –(a) shall provide for a date on which water shall first be let in and a date after which the last water let in shall not be paid for;(b) may provide for any matter to be left to subsequent agreement; and(c) may be varied at any time before the last letting in of water under it.
[Section 100T Inserted by No. 38 of 1973, s. 10 ](1) Nothing in this Division affects ordinary riparian rights in an augmented flow district.(2) Between the date on which water shall first be let in and the date after which the last water let in shall not be paid for under an agreement under section 100S –but only if the water taken is measured as prescribed.(a) a person having a commissional water right in the augmented flow district may take water from the river thereof to the extent of that right; and(b) any person may in the augmented flow district take water from the river to the extent permitted by a water bailiff –(3) A water bailiff shall, for the purposes of subsection (2) (b) , act in accordance with the instructions of the Commission, which shall have regard to the recommendations of the flow augmentation committee for the district.
[Section 100U Inserted by No. 38 of 1973, s. 10 ](1) In respect of water let into a river by the Commission under an agreement under section 100S the Commission and the flow augmentation committee may make an agreement for payment for the water.(2) Such an agreement may provide for –(a) measurement or estimation of the natural flow of the river;(b) measurement or estimation of the augmentation of its flow;(c) measurement of water taken by individuals;(d) apportionment of water so taken between natural flow and augmented flow, in accordance with principles or rules to be specified in the agreement;(e) quantities of the augmented flow deemed to be taken by individuals in accordance with the apportionment;(f) rates of payments for such quantities; and(g) computation of individuals' liabilities for such quantities.(3) An agreement under this section –(a) may be varied by an agreement between the same parties; and(b) may provide for its variation in specified respects.(4) When the Commission has computed individual liability under this section it shall demand from each individual, by a notice sent by certified mail, payment of the amount for which he is liable within a period not less than 30 days from the day of posting.(5) An amount demanded under this section and not paid within the time specified in the notice is recoverable as a debt.(6) If there is a change of occupier between the beginning of a period referred to in section 100S (2) (a) and the end of a related period referred to in subsection (5) of this section, the occupier at the end of the latter period shall for the purposes of this section be deemed to have been the occupier and taker of water from the beginning of the former period.(7) The Commission has a charge on the land of any person who has taken water for that land as mentioned in section 100T (2) for any money payable under this section in respect of that taking, which charge is enforceable as if it were a charge on land under the Local Government Act 1962 and the Commission were the municipality.
Division 3 - Fisheries
101. Municipalities' fisheries
(1) A municipality may by a special resolution –any several fishery held by that municipality.(a) dedicate to the public; or(b) grant a common of fishery to all the inhabitants of the municipality in –(2) A resolution under this section shall create a trust in favour of the public or the inhabitants, as the case may be.
(1) [Section 102 Subsection (1) amended by No. 19 of 1980, s. 171 and Sched. 1 ]Where in consequence of the construction of any work in a river above the flow and reflow of the tide or in a lake it is or becomes unlawful to fish within a particular distance of that work, the fishery in the waters so affected shall, so far as the soil thereunder is not vested in the owner of that work, vest in him and be appurtenant to that work.(2) The vesting of any fishery under subsection (1) does not affect the property in the soil thereunder.(3) Compensation shall be payable in accordance with the Acquisition Act by the owner of a work for the loss of a fishery under this section to the person so divested of it if the latter makes his claim within 30 days of his learning that fishing is unlawful there.(4) Where the soil under a fishery hereby transferred is land subject to the Land Titles Act 1980 the person in whom it is vested shall apply to the Recorder of Titles –and the Recorder may rectify the register or record the appurtenant fishery accordingly.(a) for recording of the appurtenant fishery on the folio of the Register kept under that Act containing the title to that work; and(b) if he has a registered title to the relevant work, for entry of a memorandum of the appurtenant fishery on the folio of that Register containing the title to that work and endorsement of a copy thereof on the certificate of title or grant thereof –(5) [Section 102 Subsection (5) amended by No. 19 of 1980, s. 171 and Sched. 1 ]Where the soil under a fishery hereby transferred is land not subject to the Land Titles Act 1980 , the person in whom it is vested shall –(a) in respect of every title in fee thereby affected lodge a memorial in the Registry of Deeds setting out his estate and title; and(b) if the land on which stands the relevant work is subject to that Act, apply to have his title thereto dealt with in accordance with subsection (4) .(6) Failure to comply with this section within a reasonable time shall render the owner of a work liable –(a) to damages at the suit of any person thereby injured; and(b) to an action for mandamus by the Recorder of Titles.(7) This section shall operate both in favour of and against the Crown, and where the Crown thus acquires a fishery the Secretary for Lands shall take the necessary steps under subsections (4) and (5) .
Every enactment conveying the bed of a river or lake shall be deemed to convey the fishery therein as well, unless a contrary intention appears in the statute containing that enactment.
Division 4 - Navigation
104. Protection of public rights of navigation
(1) No power granted by or mentioned in this Part entitles any person by any act other than a lawful exercise of riparian rights to obstruct, restrict, or otherwise injuriously affect any public right of navigation.(2) No power under any other Act whether passed before or after this Act entitles any person so to act in the absence of express words to that effect.
105. Temporary closing of public navigation
The Governor may by proclamation close or limit any public right of navigation during the time necessary for laying a cable or pipe or building or repairing a bridge or doing any other public work.
106. Compensation for statutory interference with private navigation
Where any person by virtue of any statutory power interferes with any private right of navigation the owner of the right of navigation may obtain compensation for injurious affection thereof in accordance with the provisions of the Acquisition Act .
[Section 107 Subsection (4) amended by No. 67 of 1994, s. 3 and Sched. 1 ](1) The enactment in the Great Charter that all weirs from thenceforth should be utterly put down except by the sea coast applies to weirs across navigable rivers only, and may be enforced by indictment or by complaint under the Justices Act 1959 .(2) Where any weir made contrary to that enactment –shall enforce its removal.(a) is within the jurisdiction of a marine board or harbour trust, that board or trust;(b) is not within any such jurisdiction, the municipality –(3) Where on an indictment under this section a writ of abatement issues out of the Supreme Court the sheriff may issue his warrant to the board, trust, or municipality bound to enforce the removal of the weir to do instead of himself all things that he is by the writ commanded to do in respect of the weir and the authority so ordered –(a) shall do those things accordingly;(b) may exercise all the powers of the sheriff in that behalf;(c) may recover its costs and expenses therein from the defendant; and(d) shall inform the sheriff how it has obeyed the warrant as therein directed.(4) [Section 107 Subsection (4) amended by No. 55 of 1965, s. 5 ]Where a complaint is made under this section the justices may on conviction impose a fine not exceeding 0·4 penalty unit and if the complainant is the board, trust, or municipality bound to enforce the removal of the weir, may by their warrant empower the complainant to remove the weir, and then the complainant shall have the same rights, powers, and duties as if the warrant were issued under subsection (3) , except the duty set out in paragraph (d) of that subsection.
Division 4A - Obstruction, &c. of rivers[Part IV, Div. 4A Inserted by No. 37 of 1989, s. 4 ]
107A. Prohibition of putting matter into river so as to interfere with natural flow
[Section 107A Inserted by No. 37 of 1989, s. 4 ]Except as may be permitted by this or any other Act, a person who puts or causes to be put, to fall, or to be carried, into a river any article or thing so as to cause an obstruction in the river, to interfere with its natural flow, or to tend to bring about any such obstruction or interference is guilty of an offence and is liable on summary conviction to a fine not exceeding 40 penalty units and a daily fine not exceeding 10 penalty units.
Division 5 - Pollution of rivers and lakes
[Section 108 Subsection (3) amended by No. 37 of 1996, s. 3 and Sched. 1 ](1) Except as provided in this Division every municipality shall ensure that every river and lake within its municipal district is kept clean and free of pollution or defilement.(2) [Section 108 Subsection (2) amended by No. 23 of 1960, s. 5 and Sched. 1 ]For the purposes of this section the municipality may, and shall whenever the Minister for Health so recommends, make by-laws.(3) [Section 108 Subsection (3) amended by No. 37 of 1989, s. 5 ]Every municipality shall enforce the provisions of the Environmental Management and Pollution Control Act 1994 relating to the pollution of rivers and lakes and of section 107A of this Act, and shall be entitled to all pecuniary penalties inflicted at its suit, but nothing contained in this section affects the power to prosecute of the Crown or any other person.
[Section 109 Amended by No. 23 of 1960, s. 5 and Sched. 1 ]In any case where, on the report of the Minister for Health, the Governor thinks it expedient in the interest of the public health so to do, he may, by proclamation, place any specified river or lake or any specified part thereof under the control, for the purposes of section 108 , of another municipality, and the municipality in whose district it lies shall have no further control in respect thereof for the purposes of that section.
110. Municipalities, &c., to take steps to purify, &c., water when directed by the Commission
(1) The Commission may, by notice in writing served upon any person, direct that person or authority to take such action and execute such works as may be specified in the notice and as are in his legal competence for the purpose of purifying, or preventing the pollution of, any water required for the purposes of any local works within the meaning of Division 3 of Part III , or for the purpose of preventing the pollution of any river, or lake.(2) Every person directed by the Commission to take any action or execute any works in pursuance of this section shall, within 6 months after the service of the notice referred to in subsection (1) , comply with all directions of the Commission set out in the notice, and, in default of compliance therewith, the Commission may, at the expense of that person execute or cause to be executed such works as may be necessary for giving effect to the direction of the Commission.
111. Rivers may be made public sullage, &c., drains
[Section 111 Subsection (2) amended by No. 61 of 1996, s. 15 ][Section 111 Subsection (5) amended by No. 37 of 1996, s. 3 and Sched. 1 ](1) Where a municipality considers it expedient to use a river or part of a river within its district to carry off sullage and other things which may not lawfully be put into a river it may apply to the Commission for permission to declare the river or part of a river a common drain.(2) [Section 111 Subsection (2) amended by No. 23 of 1960, s. 5 and Sched. 1 ]The Commission shall not give such permission without the concurrence of the Minister for Health and the Town and Country Planning Commissioner, and, where the river or part of a river is within a hydro-electric water district, of the Hydro-Electric Corporation.(3) After receiving such permission the municipality may acquire any portion of the bed of the proposed common drain and so much adjoining land as is required for the proposed common drain or any works in connection with it.(4) The municipality may by resolution published in the Gazette declare the river or part of a river –to be a common drain.(a) to which the Commission's permission relates; and(b) the bed of which is owned by the municipality –(5) [Section 111 Subsection (5) amended by No. 37 of 1989, s. 6 ]Upon the gazettal of a resolution under subsection (4) , the discharge of substances referred to in subsection (1) is taken not to cause environmental harm within the meaning of the Environmental Management and Pollution Control Act 1994 and all persons whose land adjoins the land of the municipality in and along the declared common drain may obtain compensation in accordance with the Acquisition Act for any injurious affection of that land by the pollution thus made lawful.(6) No compensation shall be made to any person under subsection (5) if for more than 12 months before the declaration of the common drain there was any apparent pollution of the river where it passed his land.
112. Rivers may be made private sullage, &c., drains
[Section 112 Subsection (2) amended by No. 37 of 1996, s. 3 and Sched. 1 ][Section 112 Subsection (3) amended by No. 61 of 1996, s. 15 ](1) On the application of the person owning or the persons severally between them owning all the land in and along any river or part of a river the municipality in whose district the land lies may with the approval of the Commission declare by resolution published in the Gazette that river or part of a river to be a drain for sullage or such other matter as is specified in the resolution.(2) [Section 112 Subsection (2) amended by No. 37 of 1989, s. 7 ]Thereafter no prosecution shall lie under the Environmental Management and Pollution Control Act 1994 in respect of environmental harm, within the meaning of that Act, by the specified matter not extending beyond the river or part of a river so declared a drain.(3) [Section 112 Subsection (3) amended by No. 23 of 1960, s. 5 and Sched. 1 ]The Commission shall not give its approval under this section without the concurrence of the Minister for Health, and the Town and Country Planning Commissioner, and, where the river or part of a river is within a hydro-electric water district, of the Hydro-Electric Corporation.
[Section 113 Subsection (3) amended by No. 61 of 1996, s. 15 ][Section 113 Subsection (4) amended by No. 63 of 1988, s. 8 and Sched. 1 ](1) Any sewerage authority may obtain the right to discharge sewage into a river or lake in accordance with this section.(2) The sewerage authority shall apply through the Commission for approval of a scheme of sewage disposal requiring such a discharge.(3) [Section 113 Subsection (3) amended by No. 23 of 1960, s. 5 and Sched. 1 ]If the Commission and the Minister for Health, and, if any river or lake within a hydro-electric water district is affected, the Hydro-Electric Corporation, approve the scheme, it shall be transmitted to the Governor.(4) [Section 113 Subsection (4) amended by No. 55 of 1965, s. 5 ]Thereupon the Governor may, by proclamation –(a) appoint a place on or in the river or lake to be a sewer outfall;(b) fix the quantity, minimum degree of purity, and other conditions upon which sewerage matter may be discharged at that outfall; and(c) prohibit on penalty of a fine not exceeding 2 penalty units any fishing, swimming, or abstraction of water for specified purposes within specified distances of that outfall.(5) The sewerage authority shall not be liable to any indictment, action, or other proceedings for nuisance or to the exercise of any statutory powers in respect of the purity and pollution of water in respect of its use of its outfall so long as it complies with the proclamation appointing that outfall.(6) Any person whose rights are affected by any such proclamation may obtain compensation therefor from the sewerage authority in the form of a lump sum or an annual payment, to be determined in accordance with the provisions of the Acquisition Act .(7) [Section 113 Subsection (7) amended by No. 23 of 1960, s. 5 and Sched. 1 ]The Governor may on the recommendation of the Minister for Health and with the approval of the Commission and, if the case requires, of the Hydro-Electric Corporation, amend or revoke any proclamation under this section.
114. Other drain and sewer outfalls
[Section 114 Subsection (1) amended by No. 37 of 1996, s. 3 and Sched. 1 ][Section 114 Subsection (2) amended by No. 37 of 1989, s. 8 ][Section 114 Subsection (3) amended by No. 37 of 1996, s. 3 and Sched. 1 ](1) [Section 114 Subsection (1) amended by No. 37 of 1989, s. 8 ]A person is not liable to conviction under the Environmental Management and Pollution Control Act 1994 where he has made or used a drain or sewer in accordance with an authority under this section.(2) [Section 114 Subsection (2) amended by No. 23 of 1960, s. 5 and Sched. 1 ]Every person wishing to obtain an authority under this section for a drain or sewer to discharge into any river may with the consent of the municipality having jurisdiction over the proposed point of discharge and, if any river or lake within a hydro-electric water district is affected, of the Hydro-Electric Corporation, apply to the Minister for Health in the prescribed manner, and the Minister for Health may by writing under his hand authorize the discharge upon such conditions as to the works to be constructed and their maintenance and as to quality of the effluent as he thinks fit.(3) [Section 114 Subsection (3) amended by No. 37 of 1989, s. 8 ]If the person receiving an authority under this section is convicted under the Environmental Management and Pollution Control Act 1994 by reason of failure to comply with the conditions of his authority the authority shall become void and of no effect, but he may apply for and receive a fresh authority in a proper case.
[Section 114A Inserted by No. 63 of 1970, s. 12 ](1) [Section 114A Subsection (1) amended by No. 29 of 1984, s. 3 and Sched. 1 ]A person, including an employee of the Crown, and a statutory authority whose powers are referred to in section 64 , who wishes to carry out works in or on the bed or banks of a river that may muddy the waters thereof, may obtain a licence from the Commission under this section, which licence the Commission may grant or refuse at its discretion.(2) A licence under this section shall be under the common seal of the Commission and allow the licensee to do such works at such times and subject to such conditions as the Commission may specify therein.(3) Before issuing a licence under this section the Commission shall –(a) give such warning of the resultant pollution as it thinks fit by individual or public notice and in writing or orally and, if orally, face to face, by telephone, or by radio telephony (including television); and(b) consider any representation made to it by any person within 7 days after the giving of such a notice.(4) A licence under this section is a defence to the licensee –(a) if sued by any person, as good as if it had been given him by that person; and(b) in any criminal proceedings for nuisance.(5) The Commission may grant licences under this section to its officers, servants, and agents to do work for its own purposes.(6) The Supreme Court may by injunction restrain the Commission from issuing a licence under this section where it appears that serious and unavoidable damage will be caused to the applicant for the injunction.(7) This section is for the benefit of such persons as choose to seek licences under it and does not make those licences conditions precedent to the exercise of any power or liberty.(8) A licence under this section does not authorize anything forbidden by section 89 (2) of the Mining Act 1929 .
114B. Co-ordination with environmental control
[Section 114B Inserted by No. 35 of 1973, s. 18 ](1) [Section 114B Subsection (1) amended by No. 37 of 1996, s. 3 and Sched. 1 ]Before exercising any power or authority under this Division the Minister for Health and the Commission shall consult the Director of Environmental Management and if he recommends against the exercise shall not do so.(2) [Section 114B Subsection (2) amended by No. 37 of 1996, s. 3 and Sched. 1 ]Where –the Governor may order the Commission to take the recommended action and the Commission shall comply.(a) the Minister administering the Environmental Management and Pollution Control Act 1994 recommends to the Governor that the Commission should take specified action under section 110 ; and(b) the Governor is of opinion that satisfactory financial arrangements have been or can be made to meet the costs of compliance with an order under this subsection –
PART V - Dams[Part V Inserted by No. 68 of 1964, s. 5 ]
[Section 115 Inserted by No. 68 of 1964, s. 5 ][Section 115 Amended by No. 75 of 1973, s. 2 and Sched. 1 ]In this Part, unless the contrary intention appears, storage works means –(a) a dam or weir across a river;(b) any other dam to hold back water that is more than 2·5 metres high, measuring from the lowest part of the foot or toe of the dam on the side away from the water held back to the top of the dam above that part; or(c) any works to hold back more than 2 500 cubic metres of water.
116. Construction of storage works
[Section 116 Inserted by No. 68 of 1964, s. 5 ][Section 116 Subsection (3) amended by No. 63 of 1988, s. 8 and Sched. 1 ][Section 116 Subsection (4) amended by No. 69 of 1975, s. 3 ][Section 116 Subsection (4) amended by No. 29 of 1984, s. 3 and Sched. 1 ][Section 116 Subsection (4) amended by No. 52 of 1995, s. 3 and Sched. 1 ](1) An owner or occupier of land shall not make storage works thereon –(a) without the permission in writing of the Commission; and(b) without such valves, compensation pipes, spillways, and surface protection as the Commission may require.(2) [Section 116 Subsection (2) substituted by No. 69 of 1975, s. 3 ]Before commencing any works for the making or altering of any storage works a person shall give to the Commission –(a) at least 60 days' notice in writing of his intention to carry out those works; and(b) at least 7 days' notice in writing of the actual date on which the works are to commence.(2A) [Section 116 Subsection (2A) inserted by No. 69 of 1975, s. 3 ]In proceedings for a contravention of subsection (2) it is a defence to prove that the works were urgently necessary because of an emergency and that notice in writing of the need for the works was given to the Commission as soon as reasonably practicable.(2B) [Section 116 Subsection (2B) inserted by No. 69 of 1975, s. 3 ]A person making or altering any storage works shall do so to the satisfaction of the Commission.(3) [Section 116 Subsection (3) amended by No. 55 of 1965, s. 5 ]A person who contravenes any provision of this section is liable to a fine not exceeding 20 penalty units or to imprisonment for a term not exceeding 12 months.(3A) [Section 116 Subsection (3A) inserted by No. 69 of 1975, s. 3 ]Nothing in this section shall be construed as requiring the Commission to supervise the making or alteration of any storage works.(4) [Section 116 Subsection (4) amended by No. 63 of 1970, s. 13 ]Nothing done by the Commission or its employees under this section makes it or those employees liable for damage caused by the making or breaking of storage works or by water escaping therefrom and neither the Commission nor those employees are liable for any damage by reason of a failure to supervise the making or alteration of any storage works.
116A. Powers of the Commission
[Section 116A Inserted by No. 68 of 1964, s. 5 ][Section 116A Subsection (1) amended by No. 52 of 1995, s. 3 and Sched. 1 ](1) [Section 116A Subsection (1) amended by No. 29 of 1984, s. 3 and Sched. 1 ]If storage works are made in contravention of section 116 , the Commission may order the owner or occupier of the land whereon they are to empty or modify them or to break down the dam thereof, and may if default is made for such time as may be specified in the order enter, do what was ordered, and recover its expenses of so doing from the person in default as a debt.(2) If any storage works are –the Commission may exercise the powers conferred by subsection (1) but any person aggrieved by the order may have the order removed into the Supreme Court by certiorari if the Court or a judge thinks fit and the Court if it thinks that the order should not have been made may quash it.(a) dangerous; or(b) used to take water which the owner or occupier of the works is not entitled to take –
116B. Exclusion of certain storage works
[Section 116B Inserted by No. 68 of 1964, s. 5 ][Section 116B Amended by No. 14 of 1995, s. 3 and Sched. 1 ][Section 116B Amended by No. 61 of 1996, s. 15 ]Nothing in this Part applies to –(a) any storage works of the Crown or the Hydro-Electric Corporation;(b) any storage works approved under the Water, Sewerage, and Drainage Board Act 1944 or under Division 3 of Part III ; or(c) any dam or reservoir to which regulations made under the Workplace Health and Safety Act 1995 apply.
PART VI - Drainage areas[Part VI Inserted by No. 38 of 1973, s. 11 ]
Division 1 - Preliminary
[Section 117 Inserted by No. 38 of 1973, s. 11 ][Section 117 Amended by No. 82 of 1993, s. 7 ]In this Part, unless the contrary intention appears –area means a drainage area constituted under the Drainage Act 1934 at the commencement of this Part or declared under section 119 or section 120 ;trust means a board of trustees –(a) holding office under this Part; or(b) that was holding office under the Drainage Act 1934 immediately before the commencement of this Part;trustee means a member of a trust;works means a drain, watercourse, outfall, bridge, culvert, defence, or other work of a trust, and includes, where necessary, all machinery and appliances used or intended to be used for or relative to any such matter; but does not include a bridge over a natural watercourse where that bridge is upon, or forms part of, a highway.
Division 2 - Drainage trusts
118. Petition for proclamation of drainage area
[Section 118 Inserted by No. 38 of 1973, s. 11 ](1) Where any considerable area of land is so situated that, owing to any permanent or recurrent cause, water accumulates and lies thereon to the detriment thereof by reason of insufficient drainage, an owner of land in that area may present a petition to the Governor praying that the area may be proclaimed as an area under this Part.(2) Every such petition shall set forth –(a) full particulars of the area affected and of the particular parts thereof which are subject to such detriment;(b) the names and descriptions of all owners of land in the area;(c) the nature and extent of their holdings; and(d) the proposed arrangement for the administration or control of the area.
[Section 119 Inserted by No. 38 of 1973, s. 11 ](1) If, in the opinion of the Governor, the area described in a petition under section 118 is of sufficient extent and importance to warrant proclamation as an area under this Part, the Minister shall cause a copy of the petition to be published in the Gazette, and in any other case the Governor may refuse to grant the petition.(2) At any time within 2 months after publication of the petition owners of land in the area comprising not less than one-third of the number of holdings therein may present to the Governor a counter-petition against the proclamation.(3) If, in the opinion of the Governor, it is desirable so to do, the Minister shall direct some competent person to inspect and furnish a report upon the area, and to investigate and report as to any facts alleged for or against the proclamation.(4) After the expiration of the period of 2 months the Governor, if he thinks fit so to do, may issue a proclamation declaring the area, or any part thereof specified in his proclamation, to be a drainage area under a name to be therein specified, and allot it a name in the form, "The ____ Drainage Area".
120. Proclamation of area without petition
[Section 120 Inserted by No. 38 of 1973, s. 11 ]Where the Governor is of opinion that it is desirable that an area should be constituted and no petition therefor has been presented as provided by this Part, the Governor, upon the report of the Commission that the area is suitable for the purpose, may, by proclamation, declare an area specified in the proclamation to be a drainage area, and provide for its administration and control.
[Section 121 Inserted by No. 38 of 1973, s. 11 ]The Governor, on the recommendation of the trust for an area, may, by proclamation, alter the boundaries of an area, and may extend the area or exclude therefrom lands previously included therein.
[Section 122 Inserted by No. 38 of 1973, s. 11 ](1) Except as provided in subsection (6) and in section 123 , an area shall be administered and controlled by a board of 9, 7, 5, or 3 trustees.(2) The number of trustees shall be –unless that number is varied by an order under subsection (3) or under section 123 .(a) in the case of a trust in existence at the commencement of this Part, the number by which it should be constituted immediately before the commencement of this Part; and(b) in the case of a trust not then in existence, the number provided in the proclamation of the area under section 119 –(3) Where in an area there is Crown land capable of benefit from the trust's works the Governor may appoint one of the trustees but may if he considers the amount of such land too small by any proclamation under section 119 or order under this section or section 123 , waive the Crown's right under this subsection in respect of that area.(4) Subject to section 123 , where the Governor is satisfied that the number of persons resident in an area is insufficient to provide the full number of trustees for the time being constituting the trust, he may order a reduction of that number to any less odd number.(5) By an order under subsection (4) the Governor may give such directions as are necessary to reconstitute the trust and in particular may provide for the retirement, election and term of office of trustees, and the dates on which provisions of the order shall take effect.(6) Where a petition under section 118 contains a prayer that the area be administered and controlled by the Commission, the Governor may in the proclamation under section 119 provide accordingly.
[Section 123 Inserted by No. 38 of 1973, s. 11 ]On –that the area be divided into electoral regions each electing a specified number of trustees, the Governor may so order in the proclamation under section 119 or in an order for the purposes of this section.(a) a prayer in a petition under section 118 ; or(b) a petition of the trust –
[Section 124 Inserted by No. 38 of 1973, s. 11 ]Every board of trustees constituted under this Part shall be a body corporate, under the name of "The ____ Drainage Trust" (with the name assigned by the Governor inserted), with perpetual succession and a common seal.
[Section 125 Inserted by No. 38 of 1973, s. 11 ](1) [Section 125 Subsection (1) substituted by No. 37 of 1977, s. 50 ]A person who is entitled to vote at a municipal election in a municipality of which an area forms part is entitled to vote at elections and polls under this Part in respect of that area.(2) A person who is entitled to vote at an election under this Part is eligible as a trustee.(3) Where an area is divided into electoral regions a separate election shall be held in each electoral region as if those regions were each an undivided area.
[Section 126 Inserted by No. 38 of 1973, s. 11 ](1) Where a new area is proclaimed under this Part the Governor shall appoint a time and a place for holding the first election of trustees for the area and a person to conduct it, and shall cause a notice of the appointments to be published in the Gazette and twice in a newspaper between the twenty-second and fourteenth days before the day appointed for the election.(2) For the purposes of a first election the electoral index of the municipality shall be used in preparing the list of voters.(3) All elections under this Part, other than a first election, shall be held on the first Wednesday in the month of July in each year.(4) All elections under this Part shall be conducted as prescribed.(5) The expenses of and incidental to the holding of a first election and any preliminary expenses in connection with the establishment of a trust not exceeding in any case the sum of $250 shall be paid in the first place by the municipality in which the area is situate, and shall be repaid by the trust to the municipality within 6 months after the date of the election; and in all other cases such expenses shall be paid by the trust out of its revenues.(6) Where an area is situate in more than one municipality, the payment mentioned in subsection (5) shall be contributed in equal shares by the municipalities in which it is situate.
[Section 127 Inserted by No. 38 of 1973, s. 11 ](1) A trustee appointed by the Governor shall hold office during the Governor's pleasure.(2) Elected trustees shall hold office for 3 years except in the case of a first election, in which case the Governor shall in the notice therefor under section 126 appoint how the trustees shall retire so that there will be a trustee or trustees to retire every year.(3) In any case where from any cause an election is delayed, the retiring trustees shall hold office until the election of their successors.(4) A trustee elected to fill a casual vacancy shall retire at the same time as the trustee whose place he fills would have retired had he not vacated his office.
[Section 128 Inserted by No. 38 of 1973, s. 11 ](1) The office of a trustee becomes vacant if he –and the vacancy so caused is a casual vacancy.(a) dies;(b) becomes bankrupt;(c) resigns his office by writing addressed to the trust, and such resignation is accepted by the trust;(d) accepts an office of profit under the trust; or(e) is absent without leave of the trust from 3 consecutive meetings of the trust of which he had due notice, and the trust passes a resolution declaring his seat vacant –(2) Every casual vacancy shall be filled by a special election held for that purpose, unless the vacancy occurs within 6 months before the day appointed for the next annual election, when that vacancy may be filled at that election.
[Section 129 Inserted by No. 38 of 1973, s. 11 ](1) Every trust, at its first meeting after a first or annual election, shall appoint one of its members as chairman for the ensuing year.(2) The chairman, if present, shall preside at all meetings of the trust, and if the chairman is absent from any meeting the members present shall appoint a chairman for that meeting.(3) If the office of chairman becomes vacant the trust shall elect one of their number to fill his office for the remainder of the current year of office.(4) The quorum of a trust shall be –(a) where there are 9 trustees, 5;(b) where there are 7 trustees, 4;(c) where there are 5 trustees, 3; and(d) where there are 3 trustees, 2.(5) The trust may function, notwithstanding any vacancy thereon, if not less than a quorum remains.(6) At meetings of the trust all members have one vote, and if on any question the votes are even, the question shall be deemed to be decided in the negative, but may at the request of any trustee be put on the agenda for the next meeting to be reconsidered.(7) Subject to this Part, a trust may regulate its own procedure.
130. Trustee not to vote if interested
[Section 130 Inserted by No. 38 of 1973, s. 11 ]A trustee shall not vote on any question arising before the trust in which he, directly or indirectly, has any pecuniary interest otherwise than as an owner or occupier of land in the area.Penalty: $500.
131. Proceedings of trusts to be recorded
[Section 131 Inserted by No. 38 of 1973, s. 11 ](1) All orders and proceedings of the trust, together with the names of the trustees present at every meeting, shall be entered in a minute book to be kept by the trust for that purpose, and be signed by the chairman of the meeting at which those orders or proceedings are from time to time confirmed; and those orders and proceedings so entered and signed by the chairman of that meeting shall be deemed to be original orders and proceedings.(2) Any elector of the trust, at any reasonable time, on payment of 50 cents, may inspect the minute book of the trust.
[Section 132 Inserted by No. 38 of 1973, s. 11 ](1) Every trust shall prepare and submit to the Minister, not later than 31st October in each year, a report on the exercise and performance by the trust of its powers, functions, and duties under this Part during the 12 months ended on the previous 30th June and of any new works that it proposes to initiate and has not mentioned in a previous report under this section.(2) [Section 132 Subsection (2) added by No. 58 of 1982, s. 3 ]A trust shall include in each of its annual reports referred to in subsection (1) a statement of the accounts of the trust for the same period as the period to which that annual report relates.
Division 3 - Powers and duties of trusts
[Section 133 Inserted by No. 38 of 1973, s. 11 ]The trust has the charge, management, and control of all works within its area and may –(a) deepen, widen, straighten, divert, or otherwise improve any existing drain or outfall for water, either within or beyond its drainage area, and remove obstructions to drains or outfalls for water, and raise, widen, or otherwise alter any existing defence against water;(b) make any new drain, or new outfall for water, erect any new defence against water, erect any machinery, and do any other act required for the drainage of the drainage area;(c) make, maintain, alter, or discontinue all such works of any kind or description, and erect such buildings and machinery within the drainage area as it thinks proper for the purposes of this Part;(d) erect and maintain fences on the boundaries of any drain, and provide, construct, and maintain bridges over any drain; and(e) erect, construct, and maintain dams, tanks, and other means of storing and conserving water for the purposes of this Part.
[Section 134 Inserted by No. 38 of 1973, s. 11 ](1) Subject to subsection (2) , a trust may, after 14 days' notice to the owner or occupier, enter upon any land within its area, and cut down, quarry, dig, and carry away all such indigenous timber, stone, clay, or the like material as may be required for the purpose of constructing or completing, repairing, or maintaining the works, making full compensation for such timber, stone, clay, or material to the party entitled thereto.(2) A trust shall not under subsection (1) cut down any timber which has been reserved and used by the owner or occupier of the land for the purpose of ornament or shelter.(3) A trust may make and open such ditches, gutters, tunnels, drains, or watercourses in, through, or along any highway as the trust thinks advisable for or in connection with its works, and may scour, cleanse, and keep open all such ditches, gutters, tunnels, drains, or watercourses.(4) A trust, before exercising the power conferred upon it by subsection (3) to break or open up a highway, shall give to the municipality controlling the highway, or to the Minister in the case of a State highway, 7 days' notice in writing of its intention so to do, and shall cause the work to be executed under the supervision of an inspector or other officer appointed by the municipality or by the Minister, as the case may be, for that purpose; but in default of any such appointment, or if the person so appointed fails to attend for the purpose, the trust may proceed therein as if this subsection had not been enacted.(5) Upon receipt of the notice prescribed by subsection (4) , the municipality or the Minister, as the case may be, may require the observance and provision of such conditions and safeguards as it or he may think necessary for ensuring public safety or for the protection of the highway, and the trust shall, in exercising the powers conferred on it in relation thereto, comply with any such requirement to the satisfaction of the municipality or the Minister, as the case may be.(6) A trust shall pay compensation to the municipality, or to the Minister in case of a State highway, for any damage suffered by the municipality or by the Minister by reason of any work executed by the trust under this section; and if a dispute arises as to the amount of any damage so suffered, it may be determined by a stipendiary magistrate, upon complaint by the municipality or by some person acting on behalf of the Minister, under the Justices Act 1959 .(7) If a dispute arises between the municipality concerned and a trust over –a highway repairable by the municipality, either party to the dispute may refer it to the Minister whose decision is final and binding on the parties.(a) the construction or maintenance of bridges or culverts under; or(b) the responsibility for the maintenance of works of or used by a trust along or under –
[Section 135 Inserted by No. 38 of 1973, s. 11 ](1) [Section 135 Subsection (1) substituted by No. 24 of 1993, s. 3 and Sched. 1 ]With the consent of the Governor, the trust may acquire land for the purposes of this Part.(1A) [Section 135 Subsection (1A) inserted by No. 24 of 1993, s. 3 and Sched. 1 ]The Acquisition Act applies in relation to the acquisition of land, and land acquired, by the trust under subsection (1) .(2) With the approval of the Governor, the trust may sell any land belonging to it that is no longer required for the purposes of this Part.
[Section 136 Inserted by No. 38 of 1973, s. 11 ](1) A trust may borrow any sums of money not exceeding the estimated revenue of the trust for 10 years, on the security of all the rates, funds, revenues, and property of, or at the disposal of, the trust, for the purpose of constructing, executing, and carrying out such works as the Governor may expressly authorize and approve, and any sum so borrowed may be applied and expended by the trust accordingly; but no money so borrowed may be used or expended upon any work which, on the opinion of the Commission, should be charged to maintenance.(2) All such money shall be borrowed by the trust under the provisions of Part III of the Statutory Authorities Act 1962 .
[Section 137 Inserted by No. 38 of 1973, s. 11 ](1) Before proceeding to borrow money, a trust shall take a poll of electors as provided in this section.(2) Before taking such a poll the trust shall give public notice thereof twice in a newspaper, and the later advertisement shall be published not more than one week before the taking of the poll.(3) The notice shall contain the following particulars:(a) the hours during which, and the place at which, the poll will be taken;(b) the amount proposed to be borrowed;(c) the purposes for which the loan is to be applied.(4) The proceedings at the taking of the poll shall be as prescribed.
[Section 138 Inserted by No. 38 of 1973, s. 11 ]The trust shall not proceed to borrow the money in respect of which a poll is taken unless at the poll the votes cast in favour of the proposal comprise two-thirds of the total number of valid votes recorded thereat, but where the votes cast comprise less than that proportion the trust may take another poll after the expiration of 12 months from the date of the previous poll on the proposal.
[Section 139 Inserted by No. 38 of 1973, s. 11 ](1) Subject to this section, a trust may, for the purposes of temporary accommodation, obtain advances from any bank by overdraft on the current account of the trust.(2) An advance obtained by a trust under this section shall not at any time exceed one-half of the revenue of the trust for the financial year preceding that in which the trust obtains the advance.
[Section 140 Inserted by No. 38 of 1973, s. 11 ][Section 140 Amended by No. 21 of 1978, s. 3 ](1) Subject to this section, a trust may make and levy –of all land within the area as shown in the valuation list in force for the time being under section 42 of that Act .(a) until the expiry of section 11 of the Land Valuation Act 1971 , a rate not exceeding 4 cents in the dollar on the unimproved value; and(b) after the expiry of that section, a rate not exceeding 2 cents in the dollar on the land value –(1A) [Section 140 Subsection (1A) inserted by No. 21 of 1978, s. 3 ]Where, on the making by a trust of a rate under subsection (1) , the amount of the rate payable in respect of a property in the trust's area is less than the amount prescribed by or under subsection (1B) as the minimum amount of rate payable in respect of any one property, that minimum amount is leviable by the trust, and is payable, in respect of the property instead of the first-mentioned amount.(1B) [Section 140 Subsection (1B) inserted by No. 21 of 1978, s. 3 ]For the purposes of subsection (1A) , the minimum amount of a rate referred to in that subsection as payable in respect of any one property is –(a) the amount of $5; or(b) such greater amount, as the Minister may, by written notice served on a trust, fix as the minimum amount for those purposes.(1C) [Section 140 Subsection (1C) inserted by No. 21 of 1978, s. 3 ]The Minister shall exercise the power of fixing a minimum amount conferred on him by subsection (1B) (b) only on the written request of a trust and on the written recommendation by the Commission that the Minister should exercise that power in relation to the trust.(2) The proceeds of such rates shall be applied by the trust in payment of interest and sinking fund payments payable by the trust in respect of any money borrowed by it under this Part, and for providing for the carrying out of its powers and duties under this Part.(3) For the purposes of rating, the trust shall classify the properties comprised in the area according to the benefit derived by each property, or any particular portion thereof, from any works carried out under this Part or which are under the control of the trust.(4) The classification shall be made in 2 or 4 classes, according to the proportions in which the respective properties, or portions thereof respectively, derive benefit.(5) Where the classification is made in 2 classes, the rate shall be made on a graduated scale, and apportioned in such manner as the trust may determine, so that there is payable –from those works.(a) a higher rate in respect of a property, or portion thereof, deriving direct benefit;(b) a lower rate in respect of a property, or portion thereof, receiving only an indirect benefit –(6) For the purposes of classification in 2 classes land within the area shall be deemed to be property deriving direct benefit if, in the opinion of the trust, that land can reasonably be drained into any drain maintained by the trust, without provision for conveying the drainage through or across the land of any other person; and all other land within the area shall be classed as property deriving an indirect benefit.(7) Where the classification is made in 4 classes, the rate shall be made on a graduated scale, and apportioned in such manner as the trust may determine, so that there is payable –(a) the highest rate in respect of a property or portion thereof that is or can be drained directly into the trust's works without conveying the drainage through or across another property;(b) a lower rate in respect of a property or portion thereof that is or can be drained into those works only by means of an artificial drain through or across another property;(c) the lowest rate in respect of a property or portion thereof that is or can be drained into those works otherwise than as mentioned in paragraphs (a) and (b) ; and(d) no rate in respect of a property or portion thereof that cannot be drained into those works.(8) If an owner or occupier disputes the classification of his property under this section the trust shall refer the dispute to the Minister whose decision is final and binding.
[Section 141 Inserted by No. 38 of 1973, s. 11 ](1) On –that an area be divided into rating districts, the Governor may so order in the proclamation under section 119 or in a separate proclamation.(a) a prayer in a petition under section 118 ; or(b) a petition of the trust concerned –(2) Where an area is so divided into rating districts, rates shall be made under section 140 as if each rating district were the trust's only area.(3) Nothing in subsection (2) prevents the use of a single instrument or document to deal with all the rating districts in an area.
[Section 142 Inserted by No. 38 of 1973, s. 11 ]For the purposes of section 42 of the Land Valuation Act 1971 –(a) the trust shall, where it classifies portions of a property differently under section 140 , notify the Valuer-General of the division of the property into portions accordingly;(b) the Valuer-General shall in the relevant valuation list show the respective unimproved values of the portions; and(c) the trust shall inform the Valuer-General of the names of occupiers of property.
[Section 143 Inserted by No. 38 of 1973, s. 11 ]All rates made in respect of unoccupied Crown land within the area shall be paid to the trust by the Treasurer out of the Consolidated Revenue without further appropriation than this Part.
[Section 144 Inserted by No. 38 of 1973, s. 11 ](1) The amount of rate shall be determined by the trust annually, and shall be made and levied annually, if required by the trust.(2) [Section 144 Subsection (2) amended by No. 30 of 1995, s. 3 and Sched. 1 ]Every rate shall be made upon and be payable by the occupiers of properties within the area, and shall be levied by the trust in the same manner as any general rate in respect of such properties under the Local Government Act 1993 .(3) No occupier of land within the area is exempt from the payment of rates under this Part on the ground that the land is Crown land.(4) Where any land in respect of which any rate under this Part is payable is unoccupied, the rate may be recovered from the owner of that land.(5) The trust may, with the Minister's approval, remit any rate, wholly or in part, where it is of opinion that to levy it would cause serious financial hardship to the person liable to pay.
145. Appointment of officers, &c.
[Section 145 Inserted by No. 38 of 1973, s. 11 ](1) Every trust may appoint such officers, servants, and workmen as it may think necessary for the purposes of this Part, at such salary, remuneration, or wages, if any, as it may think fit.(2) The same person shall not, without the consent of the Minister, be appointed as treasurer and also collector of rates at the same time.(3) The trust, with the approval of the Governor, may pay to the chairman such honorarium or remuneration as it may think desirable, and such a payment shall not be deemed to constitute his office an office of profit.
[Section 146 Inserted by No. 38 of 1973, s. 11 ](1) Before a person, whether secretary, clerk, collector, or other officer, who is entrusted by a trust with the custody or control of money by virtue of his office enters upon his office he shall give to the trust sufficient security for the faithful performance thereof.(2) Every officer or person employed by the trust shall enter, in books to be kept for that purpose, true accounts of all sums of money by him received and paid, and of the several matters for which such sums have been received and paid, and all acts done by him by direction of the trust, which books shall at all times be open to the inspection of any trustee, and any trustee may take extracts therefrom.(3) Every collector or other officer shall, within 7 days after he has received any money on behalf of the trust, pay it to the bankers of the trust to its credit, and the receipt of the bankers for the money so paid is sufficient discharge to that collector or officer.(4) Every collector or other officer shall, at such time and in such manner as the trust directs, deliver to the trust true and perfect accounts, in writing under his hand, of all money paid by him to the trust's bankers, and also a list of all persons who have neglected or refused to pay any money owing by them, with a statement of the money due from them respectively.
[Section 147 Inserted by No. 38 of 1973, s. 11 ](1) Every trust shall cause books to be provided and kept, and true and regular accounts to be entered therein of all sums of money received and paid under the authority of this Part, and of the several purposes for which sums of money have been received and paid, which books shall at all reasonable times be open to the inspection of any trustee or any creditor of the trust without fee, and those persons or any of them, may take copies or extracts from any of those books without payment.(2) [Section 147 Subsection (2) amended by No. 63 of 1988, s. 8 and Sched. 1 ]A person having the custody of those books on the reasonable demand of a person entitled to inspect them shall permit him to inspect the books and to take copies of or extracts from them, or any of them.Penalty: Fine not exceeding 2 penalty units.
[Section 148 Inserted by No. 38 of 1973, s. 11 ][Section 148 Amended by No. 68 of 1994, s. 3 and Sched. 1 ](1) The officers and the accounts of a trust are subject to the Financial Management and Audit Act 1990 , in the same manner in all respects as if those officers and accounts had been specifically mentioned therein, and those officers shall at all times comply with the requirements of the Auditor-General in respect to those accounts.(2) [Section 148 Subsection (2) omitted by No. 58 of 1982, s. 4 ]. . . . . . . .
148A. Validation of acts of drainage trusts
[Section 148A Inserted by No. 82 of 1993, s. 8 ](1) Where a trust has, in purported exercise of any power conferred by this Act, done or omitted to do any act, that act or omission is taken to be as valid as it would have been if the trust had at the relevant time been constituted under this Part.(2) Where a trust has, in purported exercise of any power conferred by the Drainage Act 1934 , done or omitted to do any act after the commencement of this Part, that act or omission is taken to be as valid as it would have been if that Act had been in force at the relevant time.
Division 4 - Supersession of trusts
149. Power of Governor to substitute Commission for trust
[Section 149 Inserted by No. 38 of 1973, s. 11 ]Where –the Governor may, subject to this Division, by proclamation dissolve the trust and vest its property, works, powers, functions, and obligations in the Commission.(a) the Governor has power under section 6 of the Statutory Authorities Act 1962 to appoint a commission to take over the powers and functions of a trust; or(b) a trust has petitioned the Governor to be dissolved and for its powers and functions to be vested in the Commission –
[Section 150 Inserted by No. 38 of 1973, s. 11 ](1) When a petition has been received by the Governor under section 149 , the Minister shall give notice of its receipt and purport in the Gazette and at least twice, at an interval of at least a fortnight, in a newspaper circulating in the area of the petitioning trust.(2) Any owner or occupier of land in that area has 2 months from the last notification under subsection (1) in which to petition the Governor not to give effect to the trust's petition.(3) The Governor shall not give effect to the trust's petition till the time for petitioning against it has run out.
151. Revocation of proclamation
[Section 151 Inserted by No. 38 of 1973, s. 11 ][Section 151 Amended by No. 69 of 1975, s. 4 and Sched. 1 ]Unless both Houses of Parliament have agreed to a resolution approving the dissolution of a trust pursuant to section 149 (b) within 12 months after the issue of the proclamation dissolving it, the Governor shall, by proclamation, revoke the former proclamation, reconstitute the trust, and restore to it its property, works, powers, functions, and obligations.
Division 5 - Miscellaneous
[Section 152 Inserted by No. 38 of 1973, s. 11 ](1) [Section 152 Subsection (1) amended by No. 63 of 1988, s. 8 and Sched. 1 ]A person shall not –(a) destroy, injure, or tamper with any work of a trust;(b) permit an animal to cause injury to a drain or watercourse of a trust;(c) draw any log, tree, or timber, or drive any vehicle, across a drain of a trust, except over a bridge provided for the purpose; or(d) water a horse or an ox at a drain or watercourse of the trust, except at a watering-place provided for that purpose as prescribed.Penalty: Fine not exceeding 10 penalty units.(2) [Section 152 Subsection (2) amended by No. 63 of 1988, s. 8 and Sched. 1 ]A person shall not remove soil, sand, gravel, or shingle from land owned or occupied by a trust.Penalty: Fine not exceeding 10 penalty units.(3) The justices before whom a person is convicted of a contravention of subsection (1) (a) , (b) , or (c) may, where the complaint of the contravention contains a claim for damages arising therefrom adjudge the defendant to pay the trust damages measured by the actual or expected cost of restoring its works, and the trust shall be deemed to be the complainant for the purposes of the claim.
[Section 153 Inserted by No. 38 of 1973, s. 11 ](1) The Governor may make regulations for the purposes of this Part.(2) Any such regulations may apply generally to all areas or in respect of a particular area only.(3) Regulations for the purposes of section 126 (4) may provide for –(a) the preparation, inspection, correction, issue, and use of lists of voters;(b) the appointment of –(i) persons to conduct elections;(ii) polling places;(iii) presiding officers and clerks for polling places; and(iv) scrutineers;(c) nominations;(d) ballot-papers and the method of marking and counting them;(e) arrangements for voting;(f) declaration of the results of voting;(g) declarations to be required of candidates on nomination and on election; and(h) any other matter necessary or convenient for holding an orderly and effective election.
PART VII - . . . . . . . .[Part VII Repealed by No. 21 of 1978, s. 4 ][Section 154 Repealed by No. 21 of 1978, s. 4 ]. . . . . . . . [Section 155 Repealed by No. 21 of 1978, s. 4 ]. . . . . . . . [Section 156 Repealed by No. 21 of 1978, s. 4 ]. . . . . . . . [Section 157 Repealed by No. 21 of 1978, s. 4 ]. . . . . . . . [Section 158 Repealed by No. 21 of 1978, s. 4 ]. . . . . . . . [Section 159 Repealed by No. 21 of 1978, s. 4 ]. . . . . . . . [Section 160 Repealed by No. 21 of 1978, s. 4 ]. . . . . . . . [Section 161 Repealed by No. 21 of 1978, s. 4 ]. . . . . . . . [Section 162 Repealed by No. 21 of 1978, s. 4 ]. . . . . . . . [Section 163 Repealed by No. 21 of 1978, s. 4 ]. . . . . . . . [Section 164 Repealed by No. 21 of 1978, s. 4 ]. . . . . . . . [Section 165 Repealed by No. 21 of 1978, s. 4 ]. . . . . . . . [Section 166 Repealed by No. 21 of 1978, s. 4 ]. . . . . . . . [Section 167 Repealed by No. 21 of 1978, s. 4 ]. . . . . . . . [Section 168 Repealed by No. 21 of 1978, s. 4 ]. . . . . . . . [Section 169 Repealed by No. 21 of 1978, s. 4 ]. . . . . . . .
PART VIII - Miscellaneous[Part VIII Renumbered by No. 38 of 1973, s. 12 ]
[Section 170 Renumbered by No. 38 of 1973, s. 12 ][Section 170 Subsection (1) amended by No. 63 of 1988, s. 7 ][Section 170 Amended by No. 29 of 1984, s. 3 and Sched. 1 ][Section 170 Amended by No. 63 of 1988, s. 7 ][Section 170 Amended by No. 52 of 1995, s. 3 and Sched. 1 ][Section 170 Amended by No. 63 of 1988, s. 7 ](1) [Section 170 Subsection (1) amended by No. 55 of 1965, s. 5 ]A person who interferes with –for the purposes of this Act is guilty of an offence and is liable on summary conviction to a fine not exceeding 10 penalty units.(a) any instrument or device for measuring the flow or height of water;(b) any peg or other survey mark; or(c) the setting out of any work –(2) [Section 170 Subsection (2) amended by No. 63 of 1970, s. 14 ]The imposition of a penalty in respect of an offence against subsection (1) does not deprive any person of any right or remedy by civil process that he would have had, or relieve the offender from any criminal liability to which he would have been subject, if that subsection had not been enacted or that penalty had not been imposed.(3) [Section 170 Subsection (3) inserted by No. 63 of 1970, s. 14 ]A person who –is guilty of an offence and is liable on summary conviction to a fine not exceeding 10 penalty units.(a) obstructs a duly authorized employee acting under subsection (3) of section 75A ;(b) refuses to produce to such an employee plans or specifications required by that employee for inspection or copying under that subsection; or(c) refuses to answer, or answers untruthfully, a question that –(i) is asked of him under that subsection; and(ii) might lawfully be asked of him in an action against the authority concerned in respect of the matter under investigation –(3A) [Section 170 Subsection (3A) inserted by No. 63 of 1988, s. 7 ]A person who obstructs, harasses, or otherwise interferes with a person authorized under section 100EA in the exercise of his powers under that section is guilty of an offence and is liable on summary conviction to a fine not exceeding 10 penalty units or imprisonment for a term not exceeding 6 months.(3B) [Section 170 Subsection (3B) inserted by No. 63 of 1988, s. 7 ]A person who –is guilty of an offence and is liable on summary conviction to a fine not exceeding 10 penalty units or imprisonment for a term not exceeding 6 months.(a) breaks a seal affixed by a person authorized for the purposes of section 100EA in the exercise of his powers under that section; or(b) interferes with any modifications or other works carried out by any such person in the exercise of those powers –(4) [Section 170 Subsection (4) added by No. 63 of 1970, s. 14 ]A person who disobeys a direction of a water bailiff given under section 100K is guilty of an offence and is liable on summary conviction to a fine not exceeding 10 penalty units and a daily fine not exceeding 2 penalty units.
[Section 171 Inserted by No. 68 of 1964, s. 6 ][Section 171 Renumbered by No. 38 of 1973, s. 12 ](1) If on a complaint under section 100G (a) or (b) or under a regulation made under section 118 (3), title to land (including water rights) is in issue either party is entitled to have the complaint removed by certiorari into the Supreme Court and determined therein, for which purpose the Court may use any of its powers on a motion to review.(2) In any proceedings, criminal or civil, a person who relies on a right alleged to be kept in existence by subsection (2) of section 100C or to be protected by subsection (4) of that section has the burden of proving that right.(3) [Section 171 Subsection (3) added by No. 63 of 1970, s. 15 ]For the purposes of sections 100L and 114A evidence by an officer of the Commission that he believed that a person to whom he spoke by telephone was a certain person is prima facie evidence that he did then speak to that person.
[Section 172 Renumbered by No. 38 of 1973, s. 12 ][Section 172 Amended by No. 55 of 1965, s. 5 ][Section 172 Amended by No. 63 of 1988, s. 8 and Sched. 1 ](1) The Governor may make regulations for the purposes of this Act.(2) Regulations may be made for the purposes of Division 3 of Part III –(a) prescribing the limits of accuracy to be observed in surveys made or carried out for the purpose of preparing any scheme for the construction of any local works;(b) prescribing the minimum and maximum grades to be adopted for sewers and drains;(c) regulating the standards of materials and workmanship to be observed in connection with the construction by municipalities of local works;(d) regulating and prescribing the qualifications of engineers who may be employed by a municipality in or in connection with the construction of any local works, and prohibiting the employment of engineers who are not possessed of the prescribed qualifications; and(e) providing for and regulating the holding of examinations for the purpose of ascertaining the qualification of engineers for the purposes of that Division, and prescribing the courses of study for those examinations and the fees payable by candidates.(3) [Section 172 Subsection (3) added by No. 68 of 1964, s. 7 ]The regulations may prohibit, generally, from specified rivers or lakes, or in specified places, the taking of water without any right or liberty or any taking of water against which the Commission might obtain an injunction, under a penalty of a fine not exceeding 10 penalty units or a daily fine not exceeding 2 penalty units.
SCHEDULE 1[Schedule 1 Repealed by No. 36 of 1958, s. 2 and Sched. 2 ]
SCHEDULE 2 - ENACTMENTS REPEALED[Schedule 2 Amended by No. 36 of 1958, s. 4 and Sched. 3 ]
Session and chapter | Title of Act | 9 Hen. 3, c. 16* | "Nulle riparie". | 13 Edw. 1, stat. 1, c. 47 | A Penalty for taking of Salmons at certain Times of the Year. | 25 Edw. 3, stat. 4, c. 4* | "New Wears shall be pulled down and not repaired". | 45 Edw. 3, c. 2 | For confirming and amending Stat. 25 Edw. 3, stat. 4, c. 4, touching Wears. | 13 Ric. 2, stat. 1, c. 19 | A Confirmation of Stat. 13 Edw. 3, stat. 1, c. 47. | 17 Ric. 2, c. 9 | Justices of the Peace shall be Conservators of the Statutes made touching Salmon. | 1 Hen. 4, c. 12 | A confirmation of former Statutes touching pulling down of Wears. | 4 Hen. 4, c. 11 | Commissions shall be awarded to Justices, &c., to inquire of Wears and Kidels, &c. | 2 Hen. 6, c. 15* | No man shall fasten Nets to anything over Rivers. | 12 Edw. 4, c. 7 | An Act for the taking away Wears and Fishgarthes. | 1 Eliz., c. 17 | An Act for the Preservation of Spawn and Fry of Fish. | 3 Jac. 1, c. 12 | An Act for the better Preservation of Sea-fish. | *Ruffhead. |
SCHEDULE 3 - ENACTMENTS REPEALED[Schedule 3 Amended by No. 36 of 1958, s. 4 and Sched. 3 ]
Session and chapter | Title or short title | 23 Hen. 8, c. 5 | A general Act concerning Commissions of Sewers to be directed in all parts within the Realm. | 25 Hen. 8, c. 10 | An Act concerning the acceptance of the oath to the Act of Sewers. | 3 & 4 Edw. 6, c. 8 | An Act for the continuance of the Statute of Sewers. | 13 Eliz., c. 9 | An Act for the Commission of Sewers. | 3 Jac. 1, c. 14 | An Act for the explanation of the Statutes of Sewers. | 7 Ann., c. 33 | Commission of Sewers Act 1708. |
SCHEDULE 4[Schedule 4 Repealed by No. 38 of 1973, s. 13 ]
SCHEDULE 5[Schedule 5 Repealed by No. 38 of 1973, s. 13 ]