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Legislation Amendment Bill 1997
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.*
*
to provide a scheme for interstate water allocation transfers that is
similar to the existing scheme for the intra-state transfer of water
allocations,
*
to enable conditions relating to environmental protection to be
included in the conditions to which licences (and other entitlements)
under the Water Act 1912 are subject,
*
to provide for relevant governmental policies and certain other matters
to be taken into account by the Land and Environment Court, and by
local land boards, when carrying out inquiry and appeal functions
under the Water Act,
* Amended in committee--see table at end of volume.
*
to enable a Commission of Inquiry under the Environmental Planning
and Assessment Act 1979 to consider applications for approvals (under
the Water Act) for the carrying out of certain water-related works in
the same way as a Commission of Inquiry may presently consider
applications for water licences and, in so doing, co-ordinate the
consideration of such applications for approvals and the consideration
of the proposed activities or development in respect of which such
applications are made,
to make other amendments of an administrative and machinery nature.
Clause 2 provides for the commencement of the proposed Act. Most of the
provisions commence on the date of assent, while others (ie the amendments
relating to the scheme for the interstate transfer of water, and the amendments
enabling a Commission of Inquiry to consider applications for water
approvals) commence on a day or days to be appointed by proclamation.
Clause 3 is a formal provision giving effect to the amendments to the Water
Act 1912 set out in Schedule 1.
Clause 4 is a formal provision giving effect to the amendments to the Water
Administration Act 1986 set out in Schedule 2.
Clause 5 is a formal provision giving effect to the amendments to the
Environmental Planning and Assessment Act 1979 set out in Schedule 3.
Schedule 1
Amendment of Water Act 1912
Schedule 1 [2] provides that the Land and Environment Court and local land
boards are required to take into account, and have due regard to, certain
matters when conducting inquiries and appeals under the Water Act. These
matters include State-wide water resource management objectives and the
actual state of water resources at local, regional and State-wide levels. The
court and the boards will also be required to consider the impact that their
decisions might have in relation to these matters.
The new section 4A is designed to ensure that any decision under the Water
Act by a judicial-type body should not be based solely on the particular
circumstances of the case, and that any such decision should not be
considered in isolation of relevant matters and policies or in isolation from
the wider implications of the decision.
Explanatory note page 2
Schedule l
[3][5] and [9] qualify the general rule that an entitlement under
the Water Act runs with the land to which the entitlement relates (eg the rule
provides that the benefit of a water licence lies with the occupier for the time
being of the land that is supplied with water by means of the licensed work).
This general rule has, in cases involving the transfer of water allocations,
resulted in the anomalous situation where the entitlement holder is prevented
from being able to complete the transfer of the holder's water allocation if the
land to which the entitlement relates has been sold to another party.
The new section 22D provides that if the land to which an entitlement relates
is sold before the completion of the transfer of the water allocation for the
entitlement, the sale does not operate to pass the benefit of the entitlement to
the new occupier of the land. This provision will enable the scheme for the
transfer of water allocations to operate independently of the general rule
described above.
The new section also applies in respect of the scheme under the Water (Part
2) Regulations which makes provision for the transfer of water rights from
water sources other than those that are covered by the transfer scheme under
the Water Act.
Schedule 1 [8] provides a scheme for the interstate transfer of water to, and
from, other States. Under the new Division 4E (which is based on the
existing Division 4C applying to intra-State water transfers) the Ministerial
Corporation (ie the Water Administration Ministerial Corporation established
under the Water Administration Act 1986 and which is the corporate "arm"
of the Department of Land and Water Conservation) will be able to approve
the following:
*
the transfer, by a NSW entitlement holder, of the holder's water
allocation to a person outside NSW,
*
the transfer, by a person from another State, of that person's water
rights to a person in NSW.
The Ministerial Corporation will be able to determine the water sources and
the types of transfers (ie permanent and temporary) to which the new
Division 4E applies. If it approves the transfer of a NSW entitlement holder's
water allocation to an interstate licensee, the Ministerial Corporation may
give effect to the transfer by making the necessary adjustments and
modifications to the holder's NSW water allocation (or by cancelling the
entitlement if the transfer is permanent). The Ministerial Corporation's
approval will be subject to advice being given by the relevant interstate
licensing authority that it also approves the transfer and has granted the
interstate transferee an interstate licence in respect of the transferred water.
Explanatory note page 3
In the case of the transfer of water rights into NSW from interstate, the
Ministerial Corporation may approve a NSW transferee obtaining an
interstate transferor's water rights, but again only if the Ministerial
Corporation is advised by the interstate licensing authority that it also
approves the transfer. The transfer to NSW will be effected by the Ministerial
Corporation adjusting or modifying the NSW transferee's existing
entitlement, or by granting a new entitlement.
In both cases, the Ministerial Corporation will be able to make arrangements
with the relevant interstate licensing authority to jointly assess and process
the application for the interstate transfer, and to liaise with that authority to
determine the administrative arrangements that are to apply with respect to
the transfer. A transfer under the new Division will be subject to such
conditions as the Ministerial Corporation thinks fit to impose when
approving the transfer.
Schedule 1 [6] and [7] are consequential on the amendment made by
Schedule 1 [8], and make it clear that the existing scheme under the Water
Act for the transfer of water allocations is an intra-State scheme (ie it applies
to water transfers within NSW only).
Schedule 1 [11] enables regulations to be made with respect to any matter
that is relevant to the scheme for the interstate transfer of water.
Schedule 1 [10], [12] and [ 17] provide that the conditions to which the
various types of entitlements (eg water licences) and approvals under the
Water Act are subject may include conditions relating to the protection of the
environment. These amendments remove any doubt that the conditions
relating to those entitlements and approvals can only be "water-related"
conditions. The term environment is defined widely (see Schedule 1 [ l ] ) .
Schedule 1 [13] enables the Ministerial Corporation to fix an annual charge
with respect to licences under Part 5 of the Water Act (ie bore licences). At
present, the charge payable under section 117B of the Water Act is on the
basis of the quantity of the water taken from the licensed bore. As a result of
this amendment, the charge will be payable on the basis of a fixed charge
determined by the Ministerial Corporation or on the basis of the quantity of
water taken (or a combination of both). This will bring bore water licence
charges into line with the charges payable under section 22C of the Water Act
in relation to other entitlements such as water licences.
Schedule 1 [15] inserts a new section 171A which will apply to applications
for approvals under Part 8 of the Water Act that relate to a controlled work in
respect of which the Ministerial Corporation receives a notice under section
120A of the Environmental Planning and Assessment Act 1979 (see
Schedule 4).
Explanatory note page 4
The new section requires the Ministerial Corporation to refer an application
for an approval under Part 8 of the Water Act, and any objections relating to
the application, to the Commission of Inquiry by which the notice was given,
and to defer making a decision on the application until it receives the
Commission of Inquiry's report on the application. The Ministerial
Corporation will be required to have regard to the Commission of Inquiry's
report in making its decision on the application. The provisions of Part 8 of
the Water Act relating to public inquiries by local land boards, and for
appeals to the Land and Environment Court, will not apply to decisions made
by the Ministerial Corporation on an application to which the proposed
section applies.
Schedule
l [14] and [16] are consequential amendments that ensure that the
provisions of Part 8 of the Water Act are construed subject to the provisions
of the proposed section 171A.
Schedule 1 [18][20] deal with matters of a savings and transitional nature.
Schedule 2
Amendment of Water Administration Act
1986
Schedule 2 [ l ] expressly enables the Ministerial Corporation to implement,
and give effect to, any scheme for the interstate transfer of water.
Schedule 2 [2] provides for water management charges to be payable to the
Ministerial Corporation by Sydney Water Corporation and Hunter Water
Corporation.
Schedule 3
Amendment of Environmental Planning and
Assessment Act 1979
The amendments made by Schedule 3 extend the current operation of section
120A of the Environmental Planning and Assessment Act 1979 so that it will
apply with respect to approvals under Part 8 of the Water Act (ie approvals to
carry out certain works on river banks and flood plains) and not just to water
licences.
As a result of the amendments, a Commission of Inquiry that is investigating
a development application under Part 4, or an activity the subject of
environmental assessment under Part 5, of the EP&A Act will be required to
notify the Ministerial Corporation if it becomes aware that the development
or activity involves a work that may require an approval under Part 8 of the
Water Act. The Commission of Inquiry will be required to advise the
applicant or proponent to make prompt application for such an approval, and
must defer concluding its inquiry for so long as is necessary to enable such
an application to be made. As soon as practicable after an application for an
Explanatory note page 5
approval is referred to it under proposed section 17 1 A of the Water Act (see
Schedule 1 [15]), the Commission of Inquiry will be required to hold a
public hearing into the application before making its report on the
development or activity. To the extent to which the report relates to the
application for an approval under Part 8 of the Water Act, a copy of the report
must be given to the Ministerial Corporation.
Explanatory note page 6