SCHEDULE 4 - Savings and transitional provisions

Section 307

1.    Interpretation

In this Schedule, unless the contrary intention appears –

Commission means the Rivers and Water Supply Commission;

Corporation means the Hydro-Electric Corporation;

financial year means a period of 12 months ending on 30 June.

2.    Saving for water districts

(1) A council, authority, body corporate or trust responsible for the administration of a water district immediately before the commencement day is taken to have been appointed under this Act as a water entity for that purpose.

(2) An irrigation water district in force under the repealed Act immediately before the commencement day is taken to be an irrigation district under this Act.

(3) A river improvement district or sealed river improvement scheme in force under the repealed Act immediately before the commencement day is taken to be a riverworks district under this Act.

(4) A water district in force under the repealed Act and administered by a council immediately before the commencement day is taken to be a water district under Division 1 of Part 6 of the Local Government (Building and Miscellaneous Provisions) Act 1993 .

(5) A water district in force under the repealed Act and administered otherwise than by a council immediately before the commencement day is taken to be a water supply district under this Act.

(6) A hydro-electric water district in force under the repealed Act immediately before the commencement day is taken to be a hydro-electric district under this Act and the Corporation is taken to have been appointed as the water entity responsible for the administration of that district.

(7) A drainage area proclaimed under Part VI of the repealed Act is taken to be a drainage district under this Act and the Commission or the relevant trust is taken to have been appointed as a water entity under this Act for the purposes of the administration of that district.

3.    Saving for existing trusts

(1) A trust that, immediately before the commencement day, was established under, or subject to, the repealed Act continues as if it had been established under Part 10 of this Act and the provisions of this Act extend to the trust accordingly.

(2) If the letters patent establishing any such trust or the regulations relating to it are inconsistent with this Act, the letters patent or the regulations prevail.

(3) The amendment to this clause made by the Water Management Amendment Act 2002 is taken to have taken effect on the commencement day.

4.    Saving for orders, licences, &c., under repealed Act

(1) An order in force under section 75A or section 116A of the repealed Act immediately before the commencement day is taken to be an order in force on the same terms and conditions made under this Act.

(2) A licence in force under section 114A of the repealed Act immediately before the commencement day is taken to be a licence in force on the same terms and conditions under this Act.

(3) A permission granted, or requirement imposed, under section 116 of the repealed Act and in force immediately before the commencement day is taken to have been granted or imposed on the same terms and conditions under this Act.

5.    Saving for proposals and petitions under repealed Act

(1) Where –

(a) a proposal has been made under Division 5 of Part 3 of the repealed Act; or

(b) a petition has been made under Division 4 of Part 3 or Division 1 of Part 4 of the repealed Act –

and the Commission has not set its seal to the proposed scheme or the Governor has not appointed the proposed irrigation water district or proclaimed the proposed drainage area, the proposal or petition is taken to be an application under Part 8 of this Act and is to be dealt with accordingly.

(2) For the purposes of this clause, the Minister may exempt the applicant from complying with a provision of this Act if satisfied that the applicant has provided sufficient information or complied with a relevant requirement under the repealed Act.

6.    Saving for orders under Groundwater Act 1985

An order in force under section 16 or 26 of the Groundwater Act 1985 immediately before the commencement day is taken to be an order in force on the same terms and conditions under Division 1 of Part 7 of this Act.

7.    Saving for certain rights of Corporation under repealed Act

(1) A right of the Corporation, as in force under the repealed Act immediately before the commencement day, continues in full force and effect, notwithstanding any other provision of this Act, on the same terms and conditions as were applicable at that time.

(2) The Corporation is taken to hold a special licence under section 115(2) with an endorsement that Division 6 of Part 6 applies to the licence, conferring on the Corporation the rights mentioned in subclause (1) with the conditions applicable to those rights under that subclause and also confers such other rights and is subject to such other conditions as the Minister may agree with the Corporation.

8.    Saving for commissional water rights under repealed Act

(1) A commissional water right in force under the repealed Act immediately before the commencement day continues in force until it is replaced by a licence issued under Part 6 in accordance with this clause.

(2) The rights conferred by a commissional water right as so continued in force are subject to the following provisions of this Act as if they were conferred by a licence issued under Part 6 :

(a) section 55 ;

(b) section 79 ;

(c) section 82 ;

(d) Division 3 of Part 6 ;

(e) section 106(1) , (3) and (4) ;

(f) Division 3 of Part 12 .

(3) 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 authorised by the Minister to do so.

(4) A commissional water right may be replaced by a licence under Part 6 at any time on application by the person holding the commissional water right or on a direction given by the Minister and on that replacement –

(a) the commissional water right ceases to have any force or effect; and

(b) the licence is to be issued for a period not less than the unexpired term of the commissional water right and with not less than the same water allocation; and

(c) the licence is to confer a surety that is not less favourable than that applicable under the commissional water right; and

(d) any fee paid by the holder of the commissional water right for the unexpired term of the right is to be credited towards the fee payable for the licence; and

(e) a fee is not payable under section 85 in respect of a water allocation transferred from the commissional water right to the licence.

(5) A permission to take water in force under section 100N of the repealed Act immediately before the commencement day continues in force on the same terms and conditions until –

(a) it is replaced by a water allocation conferred by a licence under this Act; or

(b) the date on which it would have expired under the repealed Act –

whichever occurs first.

(6) Where a commissional water right in force under the repealed Act immediately before the commencement day was granted in fee –

(a) the right is converted to a licence under this Act for a term of 50 years with no annual fee; and

(b) the right remains annexed to the land to which it was annexed under the repealed Act.

9.    Effect of replacement licence

(1) Where a commissional water right is replaced by a licence, as mentioned in clause 8  –

(a) that right may not be abrogated under section 21 ; and

(b) the water allocation referred to in clause 8(4)(b) may not be reduced under section 88(1) .

(2) Subclause (1) does not apply in a case where the effect of an absolute transfer of a licence or of any such water allocation is that the relevant water is no longer used on any land that was at the time of the replacement subject to a determination under section 58 .

9A.    Savings for Hobart Regional Water Authority

(1) In this clause –

Authority means the Hobart Regional Water Authority;

former Board means the Hobart Regional Water Board as established under section 4 of the repealed Act;

relevant council means a council that was at the relevant time a constituent municipality under the repealed Act;

repealed Act means the Hobart Regional Water Act 1984 .

(2) On and from 1 January 2000, the Authority is taken to hold, and to have held, a licence under Part 6 to take water from the following water resources:

(a) the waters of –

(i) the Bower Creek; and

(ii) all streams flowing between the Bower Creek and the North West Bay River (excepting the streams known as Millhouse's or Falls Creek and Long Creek) –

that flow from Mount Wellington towards the Huon Road and rise or flow above, or at, the intakes or pipelines of the Hobart City Council constructed or laid before 16 December 1925;

(b) the North West Bay River and any additional waters which are diverted into that river;

(c) the River Derwent and its tributaries above the boundary of the town of New Norfolk as established on the commencement of the repealed Act, subject to such conditions, if any, as the Minister may determine, and subject, in respect of the place of taking, to the approval of the Corporation;

(d) Lady Barron Creek, having its source in Lake Fenton, or any other river, rivulet or lake in Mount Field National Park, except the rivulet known as Falls Creek having its source in Lake Nicholls;

(e) all streams arising in or flowing through the areas of land delineated and marked as catchment areas in the maps numbered LD814 and LD827 deposited in the Central Plan Register held in the department;

(f) any other place, except Illabrook Creek and the creek used for the supply of water to the Colebrook township, that immediately before the commencement of the repealed Act was a source of supply of the former Board or a relevant council, but subject to any limitation that was at the time applicable to that Board or council;

(g) any other place that the Minister, by order under subclause (3) , determines to be a source of supply for the Authority.

(3) The Minister may, by order, determine that a place specified in the order is to be, for the purposes of this clause, a source of supply for the Authority.

(3A) The order is a statutory rule.

(4) On and from the commencement of the Water Legislation Amendment Act 2004 , the Authority's licence under subclause (2) is taken to be subject to any terms and conditions determined by the Minister to give effect to the objectives of this Act.

(5) Without limiting the generality of subclause (4) , the Minister is to determine the water allocations of the licence.

(6) Any fees or charges paid by the Authority for water taken from the water resources referred to in subclause (2) since the commencement of this clause are taken to have been properly imposed under section 79 .

10.    Saving for rights under section 100D or 100H of repealed Act

(1) A right registered under section 100D or 100H of the repealed Act that was in force immediately before the commencement day continues in force until it is replaced by a licence issued under Part 6 in accordance with this clause.

(2) A right that is so continued in force is subject to the following provisions of this Act as if it were conferred by a licence issued under Part 6 :

(a) section 55 ;

(b) section 82 ;

(c) Division 3 of Part 6 ;

(d) section 106(1) and (3) ;

(e) Division 3 of Part 12 .

(3) A right that is so continued in force may be replaced by a licence under Part 6 at any time on application by the owner of the land to which the right attaches or on a direction given by the Minister and, on that replacement –

(a) the owner of the land to which the replaced right was attached before its replacement is taken to be the holder of the licence; and

(b) the licence is to be issued for a period of not less than 99 years with a water allocation of not less than the water allocation formerly conferred by the replaced right; and

(c) in respect of that water allocation, the licence is to confer a paramount surety against all persons except for –

(i) rights under Part 5 for the taking of water for domestic purposes, consumption by livestock or firefighting; and

(ii) rights of licensees for the taking of water for domestic purposes or for consumption by livestock where the licence is endorsed with a condition that section 94(2) applies to the licence; and

(iii) the rights mentioned in clause 12(1) ; and

(iv) the essential needs of ecosystems dependent on the water resource; and

(d) a fee is not payable under section 85 in respect of a water allocation conferred by paragraph (b) ; and

(e) in respect of any such water allocation –

(i) the fee payable for the licence under section 79 is to be $50 for the first year when the licence is in force; and

(ii) any increase in that fee in any subsequent year is not to exceed an increase in the Consumer Price Index which relates to that year; and

(f) paragraph (e) does not apply to a licence or a water allocation which is transferred under Division 4 of Part 6 unless the transfer is to the successor in title of a person who held the land to which the replaced right was attached immediately before its replacement; and

(g) the water allocation conferred under paragraph (b) may be used only on the land to which the replaced right was attached immediately before its replacement unless the water allocation is transferred under Division 4 of Part 6 .

(4) For the purposes of subclause (3)(e)(ii) , the Consumer Price Index is taken to be the cumulative effect of each Consumer Price Index (All Groups) - Hobart published by the Australian Bureau of Statistics in respect of the preceding 4 quarters.

(5) If a licence under this clause or a water allocation of the licence is transferred under Division 4 of Part 6 , the surety attaching to the water allocation under subclause (3)(b) continues in force.

(6) A water allocation under subclause (3)(b) may not be reduced under section 21 or 88 until all water allocations of lesser surety have been abrogated.

10A.    Saving for practice of Commission

(1) The Commission is taken to hold a licence under Part 6 to continue to take water from the Cascade River, Coal River, Galeford Creek and Prosser River for the purposes of town water supply, stock and domestic use and irrigation in accordance with its practice since 1 January 1995.

(2) For the purposes of subclause (1) , the Commission's licence is taken to be subject to any conditions determined by the Minister to give effect to the objectives of this Act.

11.    Saving for applications for registration of rights under section 100D or 100H of repealed Act

(1) Where, immediately before the commencement day, an application for the registration of a right under section 100D or 100H of the repealed Act was pending before the Rivers and Water Supply Commission, the Minister must consider the application and any evidence provided in support of it.

(2) For the purposes of subclause (1)  –

(a) Part 4 of the repealed Act continues to apply, notwithstanding the repeal, to an application referred to in that subclause as if references to the Commission were read as references to the Minister; and

(b) in particular, if the Minister is satisfied that the applicant is entitled to the right claimed, the Minister must register it.

(3) This clause expires 6 months after the commencement day.

12.    Saving for rights of councils

(1) This clause applies to a right under Division 1 of Part 6 of the Local Government (Building and Miscellaneous Provisions) Act 1993 to take water for a water district.

(2) Where a council held a right to which this clause applies immediately before the commencement day, that right may, on application by the council at any time or on a direction given by the Minister, be replaced by a licence under Part 6 for a term of not less than 50 years.

(3) The water allocation which may be taken daily under the licence is to be at least 105 per cent of the water allocation taken daily under the right to which this clause applies during the period of 5 years ended on the commencement day.

(4) The surety attaching to the water allocation of the licence is to be determined as follows:

(a) as to two-thirds of the water which may be taken, the surety is to be of the highest class which may be granted under section 59 ;

(b) as to the remaining one-third, the surety is to be the same as that applicable to an allocation of water of a replacement licence under clause 8(4) .

(5) On the replacement of a right to which this clause applies, the Minister may, with the agreement of the Minister having the administration of the Local Government Act 1993 , vary the water allocation referred to in subclause (3) .

(6) A right to which this clause applies continues in force under the same conditions until the right is replaced by a licence in accordance with this clause.

13.    Saving for subsidies

(1) A subsidy payable to a council under section 40 of the repealed Act immediately before the commencement day continues to be payable subject to any terms and conditions to which it was subject at that time.

(2) Subclause (1) does not prevent the Minister from varying any terms or conditions of a subsidy at any time.

14.    Financial interests

(1) Where a person is granted a licence under this Act by way of replacement of a right in force under the repealed Act –

(a) the licensee must, within 2 months, provide the Minister in writing with details of any financial interest of another person in the licence or in land to which the licence relates; and

(b) section 61(3) , (4) , (5) , (7) and (8) applies to, and in respect of, the licensee.

(2) A licensee is not entitled to vary or transfer a licence referred to in subclause (1) until he or she has complied with that subclause.

15.    Compensation not payable

Where any right to take water is replaced under this Act, the holder of the right is not entitled to compensation in respect of that replacement.

16.    Exclusion of appeals to Appeal Tribunal

An appeal to the Appeal Tribunal does not lie in respect of a licence taking effect by way of replacement of a right under this Schedule.

17.    Licences to be non-justiciable

A licence that is conferred or continued in force under this Schedule may not be called in question in any legal proceedings by any person other than the person to whom, or for whose benefit, the licence is conferred or continued in force.