New South Wales Consolidated Acts

WATER ACT 1912 - SECT 13A

13A Application for licence by person who does not occupy land on which works are to be constructed

(1A) This section does not apply to or in respect of an existing work.

(1) Any occupier of land who desires to construct and use a work to which this Part extends (hereinafter in this section referred to as the
"supply work" ) for the purpose of domestic water supply, stock water supply or irrigation but does not occupy:

(a) the land on which the occupier desires to construct the supply work, or

(b) the whole of the land on which the occupier desires to construct works (hereinafter in this section referred to as the
"conveying works" ) to convey the water from the supply work to the land on which the occupier desires to use the water,

and who cannot obtain occupation of the land required for the supply work or conveying works may apply to the Ministerial Corporation in the form prescribed for a licence to construct the supply work and to take and use for the purpose or purposes specified in the application the water, if any, obtained thereby.

(2) The application shall be accompanied by:

(a) the prescribed deposit as security for the cost of investigation and inquiry in connection with the application, and such deposit may be applied by the Ministerial Corporation in payment or part payment of the licence fee payable by the applicant. In the event of the applicant withdrawing or abandoning the application, such deposit or any part thereof may in the discretion of the Ministerial Corporation be retained by it,

(b) the particulars set out in section 10 (3),

(c) plans showing:

(i) the location of the lands to be supplied with water in relation to the river or lake from which the water supply is to be obtained, and

(ii) the lands on which the supply work is proposed to be constructed, including the location of that work and the lands on which the conveying works are proposed to be constructed, including the location of those works,

(d) particulars of the supply work and the conveying works including all pipes, channels, regulators, flumes and other structures proposed to be constructed and used, and

(e) particulars of the extent of the areas of lands, not occupied by the applicant, which are proposed to be used for the construction of the supply work and the conveying works (hereinafter in this section referred to as the intervening lands) and the names and addresses of the owners and occupiers of those lands.

(3) The provisions of section 11 (1), (2), (2A), (2B), (2C), (3) (a) and (4) shall mutatis mutandis apply to an application under this section and to any appeal against the decision of the Ministerial Corporation that the application should be refused.
Upon any such appeal the owners and occupiers of the intervening lands shall be permitted to attend and be heard in support of, or in opposition to, the granting of the application.

(4) In any case where the decision of the Ministerial Corporation is that the application should be granted the Ministerial Corporation shall direct the Secretary or a Magistrate to hold a public inquiry as to the desirability of granting the application.
The Ministerial Corporation shall notify the owners and occupiers of the intervening lands of the application and of the reference thereof to the Secretary or the Magistrate.
The holding of the inquiry shall be notified in the Gazette and in such other manner as the Ministerial Corporation is satisfied is likely to bring the holding of the inquiry to the attention of members of the public in the district where the supply work is or is proposed to be situated.
The Ministerial Corporation, the owners and occupiers of the intervening lands and:

(a) where, at the time the application is made, the supply or conveying works are, or are proposed to be, situated within a declared local area, any:

(i) local occupier, or

(ii) statutory authority,

whose interests may be affected by the granting of the application, or

(b) where, at the time the application is made, the supply or conveying works are not, or are not proposed to be, situated within a declared local area, any person whose interests may be affected by the granting of the application,

shall be permitted to attend at the inquiry and be heard in support of, or in opposition to, the granting of the application.
The Secretary or Magistrate, as the case may be, holding the inquiry shall announce its or his or her decision in open court and shall thereupon report in writing upon the inquiry to the Ministerial Corporation.
Where the decision of the Secretary or Magistrate is in favour of the granting of the application the Secretary or Magistrate, as the case may be, shall also make recommendations to the Ministerial Corporation with respect to the terms, limitations and conditions which should be applied to the licence including the occupancy and use by the licensee of the intervening lands, the payments (if any) to be made in respect of such occupancy and use, and the construction, use and maintenance of the supply work and conveying works.
On receipt of the report of the Secretary or Magistrate the Ministerial Corporation, shall determine the terms, limitations and conditions to be applied to the licence.
The decision of the Secretary or Magistrate as to the desirability or otherwise of granting the application shall be notified by the Ministerial Corporation to the applicant and to the owners and occupiers of the intervening lands and to any person who attended at the inquiry by the Secretary or Magistrate and was heard in support of or in opposition to the granting of the application. Where such decision is in favour of the granting of the application the Ministerial Corporation shall in such notification include the terms, limitations and conditions to be applied to the licence.
The applicant or any owner or occupier of the intervening lands or any person who attended at the inquiry and was heard as aforesaid may, within twenty-eight days after the posting to the applicant, owner or occupier of the Ministerial Corporation's notification, appeal to the Land and Environment Court against the decision of the Secretary or Magistrate or the determination of the Ministerial Corporation of the terms, limitations and conditions to be applied to the licence.
The decision of the Court shall be final.
The appeal shall be made as prescribed by rules of court of the Land and Environment Court and be accompanied by a fee of ten dollars as security for the costs of the appeal. Notice of appeal in the prescribed form shall be given by the appellant to the Ministerial Corporation upon the lodging of the appeal in the Land and Environment Court.

(5) An application for a licence under this section shall not be granted unless the Secretary, Magistrate, Land and Environment Court or Ministerial Corporation, as the case may be, is satisfied that:

(a) it is not reasonably practicable for the applicant to obtain or make provision for a supply of water on the land on which the applicant desires to use the water adequate for the purpose or purposes specified in such application otherwise than in pursuance of a licence granted under this section, and

(b) the land on which it is desired to use the water is reasonably fitted for such purpose or purposes, and

(c) the interests of riparian occupiers will not be unreasonably affected by the granting of such application.

(6) The Ministerial Corporation shall in compliance with any decision of the Secretary or Magistrate upon an inquiry held under subsection (4) or of the Land and Environment Court upon appeal favouring the granting of an application for a licence issue a licence to the applicant in the prescribed form for the period set out in the decision of the Secretary or Magistrate or the Land and Environment Court, as the case may be, and subject to the terms, limitations and conditions determined by the Ministerial Corporation or set out in the decision of the Land and Environment Court, as the case may be.
No licence shall be issued under this subsection pending any appeal.
A licence under this section shall be issued only upon payment of a fee calculated in the manner and according to the scale prescribed by regulations under this Act.
If the applicant fails to pay to the Ministerial Corporation within the time prescribed the fee payable upon the issue of the licence, the Ministerial Corporation may at any time thereafter reject the application.
Where an application is rejected under this subsection the deposit accompanying such application or any part of such deposit may, in the discretion of the Ministerial Corporation, be retained by it.

(7) Upon the issue of a licence under this section the licensee may, during the currency of the licence, enter, occupy and use, subject to the terms, limitations and conditions applied to the licence, the intervening lands set out in the licence for the purpose of constructing, using and maintaining the supply work and the conveying works.
In the event of the licence lapsing or being cancelled, the licensee's right thereunder to enter, occupy and use the intervening lands shall, subject to the provisions of subsection (9), terminate.

(8) In the event of the licensee failing to comply with any of the terms, limitations or conditions of the licence relating to entry upon, occupancy or use of the intervening lands, the Ministerial Corporation shall, on being satisfied as to such failure, cancel the licence.

(8A) For the purpose of subsections (7) and (8)
"licensee" includes servants and agents of the licensee.

(9) For the purposes of sections 21B and 22 any person who was, immediately before the lapse or cancellation of the licence, the holder of a licence issued under this section shall be deemed to be the occupier of the intervening lands set out in such licence.