New South Wales Consolidated Acts

SOIL CONSERVATION ACT 1938 - SECT 22

22 Preservation of proclaimed works

(1) Where the Minister is satisfied:

(a) that any act or thing done or proposed to be done:

(i) on or in relation to any land has caused or is likely to cause damage to or has interfered or is likely to interfere with the utility of any proclaimed work, or

(ii) on or in relation to any land within a catchment area has caused or is likely to cause soil erosion, siltation or land degradation, and

(b) that that damage, interference, soil erosion, siltation or land degradation can be mitigated or avoided,

the Minister may by notice in writing served personally or by post on the owner and the occupier of, and on the holder or grantee of any timber rights over, such land require such owner, occupier, holder or grantee to abstain from doing or to do or permit to be done such acts and things as may be specified in the notice.
The acts and things to be specified in the notice shall be such acts and things as the Minister considers necessary to mitigate or avoid damage to, or interference with the utility of, the proclaimed work or to mitigate or avoid soil erosion, siltation or land degradation.
A copy of the notice served on the owner and the occupier of, and on the holder or grantee of any timber rights over, any such land shall be served personally or by post on the mortgagee (if any) of such land.

(2) A person upon whom a notice or a copy of a notice is served may appeal to the Land and Environment Court against the requirements of the notice.

(2A) The Court shall have jurisdiction to hear and determine an appeal.

(2B) The Court shall not make an order against the appellant in respect of costs unless the Court decides that the appeal is frivolous or vexatious.

(2C) If the Court so determines, the Minister shall amend the requirements of the notice or revoke the notice.

(3) Where the doing of any act or thing specified in a notice under subsection (1) or an amended notice as the case may be involves the expenditure of money, such act or thing may be done by the Minister and the cost thereof met out of moneys provided by Parliament.

(4) Where the Minister is of opinion that, having regard to all the circumstances, it is just and equitable that the owner of any land upon which any act or thing has been done pursuant to subsection (3), should pay or contribute towards the cost of doing such act or thing the Minister may notify the owner accordingly and shall in such notification, specify the amount of the payment or contribution to be made by such owner and the manner in which and time within which the same is to be made.
A copy of the notification given to such owner shall be given personally or by post to the mortgagee (if any) of the land upon which such act or thing has been done.
Such owner or mortgagee may appeal to the Land and Environment Court in accordance with rules of court of that Court against the amount specified in the notification.
The Land and Environment Court shall have jurisdiction to hear and determine the appeal.
The Land and Environment Court in making a determination on any such appeal shall have regard to:

(a) the cost of the work and the area affected by the work,

(b) the present and prospective amounts by which the value of the land of which the appellant is the owner or mortgagee will be enhanced by reason of the work,

(c) the extent to which the value of the land of which the appellant is the owner or mortgagee will be maintained by the work, and

(d) the depreciation of the present value of the land of which the appellant is the owner or mortgagee which would be likely to occur had the work not been executed.

In any proceedings before the Land and Environment Court no order shall be made against the appellant in respect of costs unless the court decides that the appeal is either frivolous or vexatious.
Unless the appellant and the Minister otherwise agree any appeal under this section shall (subject to the concurrence of the Land and Environment Court) be heard at such venue as in the opinion of that Court is as near as conveniently may be to the land on which the act or thing has been done.
The amount specified in the notification or determined by the Land and Environment Court, as the case may be, as the amount of the payment or contribution to be made by any owner shall be paid in the manner and within the time mentioned in the notification by the owner to the Minister and, if not so paid, may be recovered by the Minister from such owner as a debt due to the Crown.
The notification shall confer on the owner a right to elect, within a period of three months from the date thereof, to make the payment or contribution:

(e) in any case where the amount of the payment or contribution does not exceed $1,000-by equal annual instalments over such period, not being more than ten years, as may be specified in the notification together with interest at a rate to be determined by the Minister,

(f) in any case where the amount of the payment or contribution exceeds $1,000-by equal annual instalments over such period, not being more than 15 years, as may be specified in the notification together with interest at a rate to be determined by the Minister.

The notification shall specify the date upon which the amount, or the first and subsequent instalments, as the case may be, shall be paid.

(5)

(a) Every amount which becomes payable by an owner under subsection (4), and any costs awarded to the Minister in proceedings for the recovery of that amount, shall be a charge on the land upon which the act or thing has been done pursuant to subsection (3) in priority to all sales, conveyances, transfers, mortgages, charges, liens and incumbrances whatsoever made or given after the date of registration of such charge.
Every such charge shall be registered in the Register of Causes, Writs and Orders affecting land kept in accordance with the provisions of the Conveyancing Act 1919 .
Where any such charge is so registered any person dealing or proposing to deal with the owner, occupier or mortgagee of the land subject to the charge may obtain, on application made in a manner approved by the Minister, a certificate as to the sum (if any) then due (whether or not being presently payable) in respect of the amount charged on the land.
Such certificate shall, in favour of any such person, be conclusive evidence of the sum due at the date of the certificate, or, as the case may be, that no sum is due, in respect of the amount charged on the land.

(b) The charge under this subsection shall rank pari passu with any charge on land under section 18.

(6) Any person who fails to comply with any of the requirements of a notice under subsection (1) or an amended notice as the case may be shall be guilty of an offence and shall be liable for each such offence to a penalty of not more than 500 penalty units.

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