Victorian Current Acts Victorian Current ActsSchedule 15—Transitional arrangements—Water (Resource Management) Act 2005
Part 1—General
1 Definitions
(1) In this Schedule—
"appointed day", in relation to a water system means the day on which a water system becomes a declared water system under a declaration under section 6A;
"combined parcel" in relation to land, means more than one parcel of land, each of which is, in accordance with the conversion rules, contiguous with the others;
"conversion rules", in relation to a water system, mean the rules determined for that water system by the Minister under Part 8;
"entitled person", in relation to a holding in a water system, means any person who is—
(a) an owner of; or
(b) the holder of a mortgage over; or
(c) a person who is entitled to a limited term transfer of—
the land that comprised the holding, immediately before the appointed day for the water system;
"holder", in relation to—
(a) a prior domestic and stock right, prior joint right or prior water right; or
(b) a prior 222(1)(c) sales water agreement or 222(1)(d) sales water agreement—
in a declared water system, means the owner of the holding to which the right applied or in respect of which the agreement was in force (as the case requires) immediately before the appointed day for the water system;
"holding" means the lands shown in any single entry in the prior holdings register immediately before the appointed day;
Sch. 15 cl. 1(1) def. of
owner amended by No. 85/2006 s. 138.
"owner"—
(a) in the case of land that is under the Transfer of Land Act 1958 means the registered proprietor of an estate in fee simple in the land, or, if the registered proprietor is a life tenant, the holder of the remainder interest;
(b) in the case of land that is not under the Transfer of Land Act 1958 , means—
(i) where there is a mortgage over an estate in fee simple in the land under which the mortgagee is the owner of the legal estate, the holder of the equity of redemption; or
(ii) in the case of any other estate in fee simple, the owner of the legal estate;
"parcel", in relation to—
(a) land under the Transfer of Land Act 1958 , means land that comprises an individual folio of the Register under the Transfer of Land Act 1958 ; and
(b) land not under the Transfer of Land Act 1958 , means land that, under section 8A of the Sale of Land Act 1962 , can be disposed of separately, without subdivision;
"prior domestic and stock right" means an obligation owed by an Authority under section 222(1)(a) to make quantities of water available for supply in an irrigation district of the Authority from a water system to a holding in that district, being an obligation that was in force immediately before the appointed day for that water system;
"prior holdings register" means the register kept under section 230 , as in force in the relevant declared water system, immediately before the appointed day for the water system;
"prior joint right" means a prior water right and a prior domestic and stock right, where each right applies to the same holding;
"prior water right" means an obligation owed by an Authority under section 222(1)(b) to make an amount of water available for supply in an irrigation district of the Authority from a water system to a holding in that district, being an obligation that was in force immediately before the appointed day for that water system;
prior 222(1)(c) sales water agreement means an agreement under section 222(1)(c) for the sale of water by an Authority from a water system that supplies an irrigation district with water to the owner or occupier of a holding within that irrigation district being an agreement that was in force immediately before the appointed day for the water system;
prior 222(1)(d) sales water agreement means an agreement under section 222(1)(d) between an Authority and the owner or occupier of land, for the supply of water by the Authority from a water system, being an agreement that was in force immediately before the appointed day;
"purchaser" has the same meaning as in the Sale of Land Act 1962 ;
Registrar of Title s has the same meaning as Registrar has in the Transfer of Land Act 1958 ;
"take and use licence" means a licence to take and use water issued under section 51(1);
"terms contract" has the same meaning as in the Sale of Land Act 1962 ;
"unconfirmed water share" means a water share in respect of which there is in force a qualification under clause 31;
vendor has the same meaning as in the Sale of Land Act 1962 .
(2) In this Schedule (unless otherwise specified in the Schedule) a reference—
(a) to section 222(1)(a), in relation to a declared water system, is a reference to section 222(1)(a) as in force immediately before the appointed day for that water system; and
(b) to section 222(1)(b), in relation to a declared water system, is a reference to section 222(1)(b) as in force immediately before the appointed day for that water system; and
(c) to section 222(1)(c), in relation to a declared water system, is a reference to section 222(1)(c) as in force immediately before the appointed day for that water system; and
(d) to section 222(1)(d), in relation to a declared water system, is a reference to section 222(1)(d) as in force immediately before the appointed day for that water system.
(3) For the purposes of Part 3, where the holder of a take and use licence is recorded to be—
(a) a partnership, each partner in the partnership is deemed to be a holder of the licence; or
(b) an unincorporated body (however described), each member of the body is deemed to be a holder of the licence.
2 Non-application of certain provisions to non‑declared water systems
The amendment of this Act by sections 38(2), 61 and 62 of the Water (Resource Management) Act 2005 does not apply to a water system until the water system becomes a declared water system under a declaration under section 6A.
Part 2—Conversion of Part 11 rights
3 Definition
In this Part—
"managing Authority", in relation to a holding, means the Authority responsible for managing the irrigation district in which the holding is situated.
4 Conversion of water right and domestic and stock right (prior joint right)
Sch. 15 cl. 4(1) amended by No. 85/2006 s. 139.
(1) On and from the appointed day for a water system, the following subclauses apply to each prior joint right within the water system, that does not relate to Crown land.
Entitlement to water share
(2) The holder of each prior joint right is deemed to be the owner of a water share, deemed to be issued under section 33F—
(a) that authorises water to be taken at the maximum volume that is the sum of—
(i) the volume for the part of the prior joint right that is the prior water right; and
(ii) the volume for the part of the prior joint right that is the prior domestic and stock right—
as shown in the relevant prior holdings register (immediately before the appointed day); and
(b) that has a class of reliability that is determined in accordance with the conversion rules.
Entitlement to water-use licence
(3) The holder of each prior joint right is deemed to be, the holder of a water-use licence, deemed to be granted under section 64L, for each combined parcel of land that comprised the holding and for each other parcel of land that comprised the holding, that authorises water to be used—
(a) on that land; and
(b) subject to the same conditions as those that applied to the use of water immediately before the appointed day; and
(c) subject to an annual use limit determined in accordance with the conversion rules.
Delivery entitlement
(4) The holder of each prior joint right is deemed to be entitled to the service of having water delivered by the managing Authority under section 222(1) (as in force on and from the appointed day)—
(a) to the place or places determined by the Authority in accordance with the conversion rules;
(b) at the volume that is the proportion (as specified in the conversion rules) of the volume that is the sum of the volume of the prior water right and prior domestic and stock right immediately before the appointed day, or any other method that is set out in the conversion rules; and
(c) during the periods determined by the Authority in accordance with the conversion rules—
and for the purposes of Part 11, the matters determined under paragraphs (b) and (c) are deemed to have been determined under section 223.
Ownership of water share
(5) If a prior joint right is held by more than one person, the proportions of ownership of the water share by each holder of the right are to be determined in the manner set out in clause 17.
5 Conversion of water right only (prior water right)
Sch. 15 cl. 5(1) amended by No. 85/2006 s. 140.
(1) On and from the appointed day for a water system, the following subclauses apply to each prior water right within the water system, that does not relate to Crown land.
Entitlement to water share
(2) The holder of each prior water right is deemed to be the owner of a water share, deemed to be issued under section 33F—
(a) that authorises water to be
taken at the maximum volume that is the same as that shown for the prior water
right in the relevant prior holdings register (immediately before the
appointed day);
and
(b) that has a class of reliability that is determined in accordance with the conversion rules.
Entitlement to water-use licence
(3) The holder of each prior water right is deemed to be, the holder of a water-use licence, deemed to be granted under section 64L, for each combined parcel of land that comprised the holding and for each other parcel of land that comprised the holding, that authorises water to be used—
(a) on that land; and
(b) subject to the same conditions as those that applied to the use of water immediately before the appointed day; and
(c) subject to an annual use limit determined in accordance with the conversion rules.
Delivery entitlement
Sch. 15 cl. 5(4) amended by No. 85/2006 s. 141.
(4) The holder of each prior water right is deemed to be entitled to the service of having water delivered by the managing Authority under section 222(1) (as in force on and from the appointed day)—
(a) to the place or places determined by the Authority in accordance with the conversion rules;
(b) at the volume that is the proportion (as specified in the conversion rules) of the prior water right immediately before the appointed day, or that is determined in accordance with any other method that is set out in the conversion rules; and
(c) during the periods determined by the Authority in accordance with the conversion rules—
and for the purposes of Part 11 of this Act, the matters determined under paragraphs (b) and (c) are deemed to have been determined under section 223.
Ownership of water share
(5) If a prior water right is held by more than one person, the proportions of ownership of the water share by each holder of the right are to be determined in the manner set out in clause 17.
6 Conversion of domestic and stock allowance (prior domestic and stock right)
Sch. 15 cl. 6(1) amended by No. 85/2006 s. 142.
(1) On and from the appointed day for a declared water system, the following subclauses apply to each prior domestic and stock right within the water system, that does not relate to Crown land.
Entitlement to water share
(2) The holder of each prior domestic and stock right is deemed to be the owner of a water share, deemed to be issued under section 33F—
(a) that authorises water to be taken at the maximum volume that is the same as that shown for the prior domestic and stock right in the relevant prior holdings register (immediately before the appointed day); and
(b) that has a class of reliability that is determined in accordance with the conversion rules.
Entitlement to water-use registration
(3) The holder of each prior domestic and stock right is deemed to be, the holder of a water-use registration, deemed to be granted under section 64AP, for each combined parcel of land that comprised the holding and for each other parcel of land that comprised the holding, that authorises water to be used—
(a) on that land; and
(b) subject to the same conditions as those that applied to the use of water immediately before the appointed day; and
(c) subject to an annual use limit determined in accordance with the conversion rules.
Delivery entitlement
Sch. 15 cl. 6(4) amended by No. 85/2006 s. 143.
(4) The holder of each prior domestic and stock right is deemed to be entitled to the service of having water delivered by the managing Authority under section 222(1) (as in force on and from the appointed day)—
(a) to the place or places determined by the Authority in accordance with the conversion rules;
(b) at the volume that is the proportion (as specified in the conversion rules) of the prior domestic and stock right immediately before the appointed day, or that is determined in accordance with any other method that is set out in the conversion rules; and
(c) during the periods determined by the Authority in accordance with the conversion rules—
and for the purposes of Part 11, the matters determined under paragraphs (b) and (c) are deemed to have been determined under section 223.
Ownership of water share
(5) If a prior domestic and stock right is held by more than one person, the proportions of ownership of the water share by each holder of the right are to be determined in the manner set out in clause 17.
7 Prior 222(1)(c) sales water agreements
(1) On and from the appointed day for a water system, the following subclauses apply to each prior 222(1)(c) sales water agreement entered into by the Authority responsible for managing the water system.
Entitlement to water share
(2) The owner of the holding in respect of which the agreement was entered into is deemed to be the owner of a water share, deemed to be issued under section 33F—
(a) that authorises water to be taken at the maximum volume that is the proportion (as specified in the conversion rules) of the volume of the prior water right shown in the prior holdings register (immediately before the appointed day); and
(b) that has a class of reliability that is determined in accordance with the conversion rules.
Ownership of water share
(3) If a prior 222(1)(c) sales water agreement has been entered into in respect of a holding owned by more than one person, the proportions of ownership of the water share by each owner of the holding are to be the same as the proportions determined for each such owner for the prior joint right or prior water right (as the case requires) applying to the holding.
8 Holdings to which no rights apply
(1) A managing Authority must provide to an applicant under subclause (2), the service of delivering to the land specified under subclause (2), the volumes of water during the periods determined in accordance with the conversion rules applying to the water system.
Sch. 15 cl. 8(2) amended by No. 85/2006 s. 144.
(2) A person who was, immediately before the appointed day for a declared water system, the owner of a holding that was serviced by the water system, being a holding in respect of which there was no prior water right or prior joint right, may, within 6 months or any other period (not being more than 12 months) specified in the conversion rules of the appointed day for the water system, apply to the managing Authority for the provision of a service under subclause (1) to the land that comprised the holding immediately before the appointed day.
9 Other interest holders
(1) On the appointed day for a water system, if the registered proprietor of land in a holding in the water system is a life tenant, the life tenant is deemed to be the holder of a limited term transfer of the water share, in respect of the land, that the owner of the land is deemed to be the holder of under this Schedule.
(2) A limited term transfer under subclause (1) continues in force, despite any other provision of this Act, until the cessation of the life tenancy.
Sch. 15 cl. 9(2A) inserted by No. 32/2010 s. 75.
(2A) Section 33AV(4) does not apply to a limited term transfer under subclause (1).
(3) If, immediately before the appointed day for a water system—
(a) a purchaser under a terms contract of a holding in the water system is—
(i) in occupation of the holding; and
(ii) entitled to water, on or after that day under the terms of the contract; and
(b) the vendor under the contract is on and from the appointed day deemed to be the holder of a water share in respect of the holding under this Schedule—
on and from the appointed day, the purchaser is deemed to be the holder of a limited term transfer, if the Minister, on application, so approves before the appointed day.
(4) A limited term transfer under subsection (3) continues in force for so long as the purchaser is entitled to receive water under the contract.
(5) The vendor or purchaser under a terms contract of a holding in a water system may apply to the Minister for approval under subsection (3), before the appointed day, in the form approved by the Minister.
10 Water share deemed to be associated water share
On and from the appointed day for a water system, a water share in the system that is deemed to be owned by a person—
(a) under clause 4, 5 or 6, is deemed to be determined to be an associated water share under Division 10, that is associated with the land specified in the water-use licence or water-use registration (as the case requires) that that person is deemed to be the holder of under that section; and
(b) under clause 7 is deemed to be determined to be an associated water share under Division 10, that is associated with the land specified in the water-use licence that that person is deemed to be the holder of under clause 4, 5 or 6, as the case requires.
11 Application of section 64AE
For the purposes of Division 6 of Part 4B, a condition that a water-use licence is deemed to be subject to by clause 4, 5 or 6—
(a) is deemed to be a particular condition imposed under Division 5 of Part 4B; and
(b) is deemed to have been imposed before any standard water-use condition applying to that licence.
Sch. 15 cl. 12 amended by No. 85/2006 s. 145.
12 Properties deemed to be serviced properties
Where, under this Part, an owner of a parcel of land is deemed to be entitled to the service of having water delivered to a place or places determined by a managing Authority for the purposes of use on the parcel of land, the parcel of land is deemed to be serviced property within the meaning of section 220.
Part 3—Conversion of other rights
13 Conversion of take and use licences
Sch. 15 cl. 13(1) amended by No. 29/2007 s. 23.
(1) On and from the appointed day for a water system, the following subclauses apply to each take and use licence in force immediately before the appointed day within the water system that is not a licence under which—
Sch. 15 cl. 13(1)(a) inserted by No. 29/2007 s. 23.
(a) the water to be taken and used is subject to a condition that a proportion of the water so taken and used is returned to the water system; or
Sch. 15 cl. 13(1)(b) inserted by No. 29/2007 s. 23.
(b) the water is to be taken and
used for a purpose prescribed for the purposes of section 51(1AA).
Entitlement to water share
(2) The holder of each take and use licence is deemed to be the owner of a water share, deemed to be issued under section 33—
(a) that authorises water to be taken at the maximum volume that is the same as the volume shown on the take and use licence immediately before the appointed day; and
(b) that has a class of reliability that is determined in accordance with the conversion rules.
Entitlement to water-use licence
(3) The owner of the land to which each take and use licence relates is deemed to be the holder of a water-use licence, deemed to be granted under section 64L, that authorises water to be used—
(a) on that land; and
(b) subject to the same conditions as those that applied to the use or drainage of water under the take and use licence immediately before the appointed day; and
(c) subject to an annual use limit determined in accordance with the conversion rules.
Entitlements to works licences
(4) The holder of each take and use licence that, immediately before the appointed day, authorised the construction, alteration or operation of works, is deemed to be the holder of a licence under section 67 that authorises the construction, alteration or operation of any such works, subject to—
(a) any conditions as to the maximum amounts of water which may be taken in any particular periods or circumstances—
(i) that applied under the licence immediately before the appointed day; or
(ii) as determined in accordance with the conversion rules—
whichever is the greater; and
(b) any conditions of the take and use licence as to—
(i) the installation and use of measuring devices and pumps; and
(ii) the operation of any bores or works for extracting water from waterways.
Ownership of water share
(5) If a take and use licence is held by more than one person, the proportions of ownership of the water share by each holder of the licence are to be determined in the manner set out in clause 18.
14 Prior 222(1)(d) sales water agreements
(1) On and from the appointed day for a declared water system, the following subclauses apply to each prior 222(1)(d) sales water agreement entered into by an Authority to supply water to land from the water system.
Entitlement to water share
(2) The owner or occupier of the land with whom the agreement was entered into is deemed to be the owner of a water share, deemed to be issued under section 33F—
(a) that authorises water to be taken at the maximum volume that is the proportion (as specified in the conversion rules) of the volume that is the same as that shown in the licence, immediately before the appointed day; and
(b) that has a class of reliability that is determined in accordance with the conversion rules.
Ownership of water share
(3) If the prior 222(1)(d) right is held by more than one person, the proportions of ownership of the water share by each holder of the right are to be determined in the manner set out in clause 17.
15 Water share deemed to be associated water share
On and from the appointed day for a water system—
(a) if a water share is deemed to be issued under clause 13 in relation to a take and use licence, the water share is deemed to be determined to be an associated water share under Division 10, that is associated with the land to which the take and use licence applied, in so far as a water-use licence is deemed to be issued under clause 13 in respect of that land;
(b) if a water share is deemed to be issued under clause 14 in relation to a prior 222(1)(d) sales water agreement, the water share is deemed to be determined to be an associated water share under Division 10, that is associated with the land to which the agreement applied, in so far as a water-use licence is deemed to be issued under clause 13 in respect of that land.
16 Conversion of temporary transfers
(1) On and from the appointed day for a declared water system, the following subclauses apply where a prior water right has been transferred (whether in whole or in part) under section 224 (as in force before the appointed day) for a consecutive period of 3 years immediately preceding the appointed day, where the owner of the land to which the right has been transferred is not the holder of—
(a) a prior joint right or prior water right; or
(b) a take and use licence.
Entitlement to water-use licence
(2) The owner of the land to which such a right has been transferred is deemed to be the holder of a water-use licence that authorises water to be used—
(a) on the land to which the right had been transferred; and
(b) subject to the same terms and conditions relating to the use of water as those that applied to the use of the water under the transferred rights, immediately before the appointed day; and
(c) subject to an annual use limit determined in accordance with the conversion rules.
Part 4—Determination of portions of ownership of water shares
17 Determination of portions generally
(1) For the purposes of Part 2, the ownership of the persons' water share is deemed to be the same as the ownership of the land that comprised the holding unless—
(a) parcels of land in the holding are owned by different persons or in a different manner; or
(b) different mortgages apply to different parcels of land in the holding; or
(c) in the opinion of the Minister, ownership of the whole or a part of the water share cannot be clearly established.
(2) Subject to Part 2, where subclause (1)(a) or (b) applies, the ownership of the water share is to be determined as agreed between all entitled persons.
(3) If—
(a) an agreement has not been reached under subclause (2); and
(b) 18 calendar months have expired since the appointed day for the water system and an application for arbitration under clause 19 has not been made—
ownership of the water share is to be determined as follows—
(c) the owner of each parcel of land that comprised the holding—
(i) is deemed, in respect of the ownership of that parcel, to hold the water share as a tenant in common, in equal undivided portions with the owner of each other parcel of the land that comprised the holding; and
(ii) if there is more than one owner for a portion of the water share those persons own that portion in the same manner as that in which, they hold the parcel of land that entitles them to ownership of that portion of the share.
(4) Where subclause (1)(c) applies ownership of the water share is to be determined—
(a) as agreed between all entitled parties; or
(b) if agreement cannot be reached under paragraph (a), in accordance with the conversion rules.
(5) For the purposes of this section, "mortgage" in relation to land under the Transfer of Land Act 1958 , means a recorded mortgage under that Act.
18 Determination of portions on conversion of take and use licences
(1) If a take and use licence to which clause 13 applies is held by more than one person, the holders of the licence are deemed to own the water share as tenants in common in equal undivided portions (unless subclause (2) applies).
(2) If a take and use licence to which clause 13 applies is held by an unincorporated association, the ownership of the share is to be determined as agreed between all persons who are members of the association.
19 Arbitration
Sch. 15 cl. 19(1) amended by No. 50/2011 s. 46(Sch. item 15.1).
(1) If, within—
(a) a period of 6 calendar months from the appointed day for a water system; or
(b) where the conversion rules so provide, any later date determined in accordance with the rules—
the entitled persons have not reached agreement under clause 17 on the proportions of ownership, any of the entitled persons may refer the matter to arbitration in accordance with the Commercial Arbitration Act 2011 .
Sch. 15 cl. 19(2) amended by No. 50/2011 s. 46(Sch. item 15.2).
(2) If—
(a) within a period of 6 calendar months from the appointed day for a water system; or
(b) where the conversion rules so provide, any later date determined in accordance with the rules—
the members of an unincorporated association have not reached agreement under clause 18(2), any member of the association may refer the matter to arbitration in accordance with the Commercial Arbitration Act 2011 .
Sch. 15 cl. 19(3) amended by No. 50/2011 s. 46(Sch. item 15.3).
(3) An arbitration under this section must be conducted before a sole arbitrator selected by agreement by all the entitled persons, or, in the absence of such an agreement, by the Secretary-General of the Australian Centre for International Commercial Arbitration Limited ACN 006 404 664.
(4) The costs of the arbitration are to be borne by all the entitled persons equally, unless otherwise awarded by the arbitrator.
20 Procedure and findings of arbitration
(1) The arbitrator must make an award in the matter within 9 calendar months of his or her appointment, unless—
(a) the arbitrator believes there are exceptional circumstances which require a longer period; or
(b) all the entitled persons agree to a longer period.
(2) The arbitrator may determine the procedures that apply to the arbitration, having regard to the commercial value of the subject matter of the dispute.
21 Matters to be taken into account in making finding
In making an award the arbitrator must—
(a) in the case of a dispute under clause 17(3), relating to an amalgamated holding that comprises several parcels of land, have regard to the volume of prior water rights and prior domestic and stock rights of each parcel of land in the holding, before the parcels became part of the holding, and, if the arbitrator considers that the consideration set out above would lead to an unfair or unjust result, have regard to—
(i) any relevant agreements; and
(ii) any transfers under section 226 (as in force before the appointed day), entered into after the parcels of land were amalgamated; and
(iii) any other relevant matters;
(b) in any other case, have regard to—
(i) any relevant agreements; and
(ii) any transfers under section 226 (as in force before the appointed day); and
(iii) any other relevant matters.
22 Notification of award of arbitration
The arbitrator must give a copy of his or her award in the matter to each entitled person and to the Registrar.
23 Registrar to register ownership in accordance with the award of the arbitrator
On receiving a copy of an award under clause 21, the Registrar must record the ownership of the water share in the Water Register in accordance with the award of the arbitrator.
Part 5—Mortgages
24 Application of Part
This Part does not apply to a water share in a declared water system if the volume of water that is to be made available under the water share is 5 megalitres or less.
25 Mortgagee notices and agreements
Sch. 15 cl. 25(1) amended by No. 85/2006 s. 146(1).
(1) In the case of a mortgage over the whole or a part of any parcel of land where the owner of the whole or a part of the parcel is deemed to be the owner of a water share by the operation of Part 2, the Authority, responsible for managing the irrigation district in which the water system from which the water share is derived is situated, must notify the owner, in the form and manner specified in the conversion rules, of the existence of the mortgage over the land and advise the owner that clause 26 will apply to the mortgage.
Sch. 15 cl. 25(1A) inserted by No. 85/2006 s. 146(2).
(1A) A notice under subclause (1) must be given by the Authority before the appointed day for the water system, when it is practicable to do so.
(2) For the purposes of this section, "mortgage" in relation to land under the Transfer of Land Act 1958 , means a recorded mortgage under that Act.
26 Conversion of mortgages
Sch. 15 cl. 26(1AA) inserted by No. 85/2006 s. 146(3).
(1AA) On and from the appointed day for a water system, the following subclauses apply to each mortgage over the whole or a part of any parcel of land where, the owner of the whole or the part of the parcel, by virtue of that ownership, is deemed by the operation of Part 2, to be the owner of a water share in respect of the water system.
Sch. 15 cl. 26(1) amended by No. 85/2006 s. 146(4).
(1) The mortgage is deemed to become, in addition to being a mortgage over the whole or the part of the parcel of land specified in the mortgage, a mortgage over the water share to secure the debt secured by the mortgage, immediately before the appointed day, and amounts that may be advanced under the mortgage on or after that day, subject to the same terms and conditions as those that applied to the mortgage immediately before the appointed day.
(2) For the purposes of subclause (1)—
(a) where the whole or part of the parcel of land is owned by one person only, and that person owns the water share as a tenant in common with other persons, the mortgage is deemed to be over that person's undivided interest in the water share; or
(b) where the whole or the part of the parcel of land is owned by more than one person, and those persons own the water share as tenant in common with other persons, the mortgage is deemed to be over those persons' undivided interest in the water share.
(3) For the purposes of this Act, Schedule 12A applies to a mortgage that, under subclause (1), is deemed to be over a water share.
(4) Mortgages that are deemed to be over a water share under subclause (1) that were previously over the one parcel of land are deemed to rank in the same priority to each other as that in which they were ranked when over the parcel of land.
(5) In the case of land not under the Transfer of Land Act 1958 , over which there is a mortgage where the mortgagee is the owner of the legal estate, where that mortgage is deemed to become (under subclause (1)) (in addition to being a mortgage over the land) a mortgage over a water share, the mortgage over the water share does not take effect as a transfer of the ownership of the mortgage, but takes effect in accordance with the provisions of this Act.
Part 6—Miscellaneous conversion issues
Sch. 15 cl. 27 amended by No. 85/2006 s. 147.
27 Works licences
On and from the appointed day for a declared water system, a licence under section 67 that is in force immediately before the appointed day and that relates to a bore or works for extracting water from a waterway in that system where conditions relating to that bore or those works are set out in a take and use licence, is deemed to be subject to—
(a) any conditions as to the maximum amounts of water which may be taken in any particular periods or circumstances from that bore or through those works—
(i) under the take and use licence, as applying immediately before the appointed day; or
(ii) as determined in accordance with the conversion rules—
whichever is the greater; and
(b) any conditions as to—
(i) the installation and use of measuring devices and pumps; and
(ii) the operation of any bores or works for extracting water from waterways—
under the take and use licence, as applying immediately before the appointed day.
Sch. 15 cl. 28 amended by No. 24/2013 s. 40.
28 Continuing operation of registration licences
Despite a water system becoming a declared water system, any registration licence issued in the declared water system is deemed to continue in force.
29 References to rights
On and from the appointed day for a declared water system, a reference in any document to—
(a) a prior domestic and stock right (however described in the document) in the water system;
(b) a prior water right (however described in the document) in the water system;
(c) a prior joint right (however described in the document) in the water system;
(d) a prior 222(1)(c) sales water agreement (however described in the document) in the water system;
(e) a prior 222(1)(d) sales water agreement (however described in the document) in the water system;
(f) take and use licence (however described in the document) in the water system—
is to be taken to be a reference to the water share the holder of that right is deemed to own by the operation of this Schedule.
30 Amendment of bulk entitlements
(1) The Minister, by notice in writing, may make any amendments to a bulk entitlement that are necessary as a consequence of a water system becoming a declared water system.
(2) A notice under this section must be made before the appointed day for the declared water system and must come into effect on that day.
(3) Notice of the making of a notice under this section must be published in the Government Gazette before or on the appointed day for the water system.
(4) A copy of a notice made under this section must be given to the holder of the bulk entitlement before or on the appointed day for the water system.
Part 7—Unconfirmed water shares
31 Unconfirmed water shares
(1) Where on the appointed day for a declared water system the ownership of a water share is to be determined in accordance with clause 17 or clause 18 and—
(a) agreement has not been reached on the ownership of the share; or
(b) ownership of the whole or a part of the share cannot be clearly established—
the ownership of the share under this Schedule is capable of being registered in the Register, subject to the qualification that the details recorded as to the share are unconfirmed.
(2) A qualification that is in force under subclause (1) remains in force until the ownership is determined—
(a) in accordance with this Schedule; or
(b) in accordance with the conversion rules.
32 Dealings in unconfirmed water shares
(1) The following dealings are the only dealings that may take place in relation to unconfirmed water shares—
(a) transfer of ownership of the share under section 33S;
(b) limited term transfer of the water share;
Sch. 15 cl. 32(1)(c) amended by No. 32/2010 s. 76(1)(a).
(c) discharge of a mortgage over the water share;
Sch. 15 cl. 32(1)(d) inserted by No. 32/2010 s. 76(1)(b).
(d) assignment of a water allocation under the water share under section 33U or 33V;
Sch. 15 cl. 32(1)(e) inserted by No. 32/2010 s. 76(1)(b).
(e) surrender of the water share under section 33AA;
Sch. 15 cl. 32(1)(f) inserted by No. 32/2010 s. 76(1)(b).
(f) surrender of limited term transfer under section 33T(5).
(2) In addition to any requirements applying to the transfer of water shares under Part 3A—
(a) any transfer of ownership of an unconfirmed water share under section 33S does not have effect until the Authority (that is responsible for managing the irrigation district in which the water system in which the water share is issued) approves the transfer, in accordance with any relevant rules made under Part 3A, and notifies the Registrar of that approval; and
(b) any limited term transfer of an unconfirmed water share must not be recorded in the water register until the Authority (that is responsible for managing the irrigation district in which the water system in which the water share is issued) approves the transfer, in accordance with any relevant rules made under Part 3A, and notifies the Registrar of that approval.
Sch. 15 cl. 32(3) inserted by No. 32/2010 s. 76(2).
(3) In the case of an assignment of a water allocation under a water share to which subclause (1)(d) applies, all persons who own the water share, in whole or in part, and all persons who have limited term transfers under the water share, in whole or in part are to be taken to be the holder of the water share.
Part 8—Conversion procedures
33 Conversion Rules
(1) Before the appointed day for a declared water system, the Minister may—
(a) make a determination setting out the rules that are to apply to the conversion of rights in the water system; and
(b) amend any determination made under paragraph (a).
(2) A determination under subclause (1) may provide for—
(a) any procedures that an Authority is required to carry out to identify, verify, apportion and calculate information relating to rights to which Part 2, 3, 4, 5 or 6 applies and any matters that are to be determined under Part 2, 3, 4, 5 or 6; and
(b) any procedures that the Minister is required to carry out to identify, verify, apportion and calculate information relating to rights to which Part 2, 3, 4, 5 or 6 applies and any matters that are to be determined under Part 2, 3, 4, 5 or 6; and
(c) any submission procedures and dispute resolution procedures any Authority, the Minister or the Registrar is required to undertake for the purposes of performing functions under paragraph (a) or (b) (as the case requires); and
(d) any other matters that are required or permitted to be set out by this Schedule.
(3) A determination under subclause (1) comes into operation on the day specified in the determination.
(4) A determination under subclause (1) must be in writing and notice of the making of the declaration and of the day on which it comes into operation must be published in the Government Gazette.
(5) A declaration under subclause (1)—
(a) must not be amended, unless to correct any clerical, factual or other inadvertent mistake in the declaration; and
(b) must not be revoked.
(6) Before making a determination under subclause (1), the Minister must consult with—
(a) the Authority or Authorities responsible for the supply of water from the water system to which the determination relates; and
(b) the Registrar.
34 Disclosure of information for purposes of conversion
(1) The Registrar of Titles must ensure that all records and information for which the Registrar of Titles is responsible which are necessary to enable—
(a) an Authority to carry out its functions under this Schedule or to give effect to this Schedule; or
(b) the Minister to carry out the Minister's functions under this Schedule or to give effect to this Schedule; or
(c) the Registrar to carry out the Registrar's functions under this Schedule or to give effect to this Schedule—
are disclosed to the Authority, Minister or Registrar, as the case requires, for those purposes.
(2) An Authority must ensure that all records and information for which the Authority is responsible which are necessary to disclose to the Registrar of Titles for the purposes of this Schedule are disclosed to the Registrar of Titles, for those purposes.
(3) The Minister must ensure that all records and information for which the Minister is responsible which are necessary to disclose to the Registrar of Titles for the purposes of this Schedule are disclosed to the Registrar of Titles, for those purposes.
(4) The Registrar must ensure that all records and information for which the Registrar is responsible which are necessary to disclose to the Registrar of Titles for the purposes of this Schedule are disclosed to the Registrar of Titles, for those purposes.
35 Offence to provide false or misleading information
A person must not knowingly give false or misleading information to an Authority in the course of claiming that that person has a right to which Part 2 or 3 of this Schedule applies.
Penalty: 60 penalty units or 6 months imprisonment.
Part 9—Tariffs, fees and charges
Division 1—Fees under tariffs
36 Definitions
In this Division—
fee means the fee imposed under a tariff under Part 13 of this Act;
"prior right" means any of the following—
(a) a prior joint right;
(b) prior water right; or
(c) prior domestic and stock right.
37 Power of Authority to require payment after appointed day
The declaration of an appointed day for a water system, is to be taken not to affect the power of an Authority under Part 13 of this Act to obtain payment on or after the appointed day for that part of a fee, imposed by an Authority on a property in respect of a prior right in the water system, that applies to any period before the appointed day.
38 Application of fees by Authorities after the appointed day
(1) If, before the appointed day for a water system, the holder of a prior right in the water system, has made a payment of money to which this section applies to an Authority, the Authority may apply that money, on and after the appointed day, to satisfy any fee imposed for any service provided by the Authority on or after the appointed day to the holder of the prior right in respect of any—
(a) water share; or
(b) water-use licence; or
(c) delivery service under Part 11—
deemed to be issued, granted or provided in respect of that prior right under this Schedule.
(2) In this section, payment of money to which this section applies means a payment in satisfaction of a part of a fee imposed by the Authority under a tariff under Part 13 on a property in respect of the prior right, being that part of the fee that applies to a period on or after the appointed day.
39 Evidentiary provision, fees under Part 13
(1) If, in any proceedings under this Act or regulations or by-laws made under this Act, the amount of water supplied to a property from a water system during the fee period, is relevant, evidence may be given of the amount of water computed by the Authority having regard to—
(a) any quantity of water supplied to the property concerned before the appointed day; and
(b) the total amount of water recorded by a water meter as having been supplied or delivered to that property in that period, both before the appointed day and after the appointed day—
and that evidence, in the absence of evidence to the contrary, is proof of the amount of water supplied or delivered to the property.
(2) In this section, "fee period", in relation to a prior water right, means the period for which a fee is imposed in respect of a property that has water supplied or delivered to it under the prior right and in which the appointed day for the water system from which the water is so supplied or delivered occurs.
Division 2—Charges under section 264
40 Power of Authority to require payment after appointed day
The declaration of an appointed day for a water system, is to be taken not to affect the power of an Authority under section 264 to obtain payment on or after the appointed day for that part of a fee, fixed by the Authority for a take and use licence in the water system, that applies to any period before the appointed day.
41 Application of fees under section 264 by an Authority after the appointed day
(1) If, before the appointed day for a water system, the holder of a take and use licence in the water system, has made a payment of money to which this section applies to an Authority, the Authority may apply that money on and after the appointed day to satisfy any fee—
(a) payable on or after the appointed day in respect of any—
(i) water share; or
(ii) water-use licence—
deemed to be issued or granted in respect of that take and use licence under this Schedule; and
(b) payable under section 74AA in respect of any works licence under section 67.
(2) In this section payment of money to which this section applies means a payment in satisfaction of a part of a fee fixed by an Authority under section 264 for the licence, being that part of the fee that relates to any period on or after the appointed day.
42 Evidentiary provision, fees under section 264
(1) If, in any proceedings under this Act or regulations or by-laws made under this Act, the amount of water taken under a take and use licence in a water system during the fee period for the purposes of the land specified in the licence, is relevant, evidence may be given of the amount of water computed by the Authority having regard to the total amount of water recorded by a water meter as having been taken during the fee period for the purposes of that land, and that evidence, in the absence of evidence to the contrary, is proof of the amount of water taken for the purposes of the land.
(2) In this section, "fee period", in relation to a take and use licence, means the period for which a fee is fixed under section 264 in respect of the licence and in which the appointed day for the water system from which water is taken under the licence occurs.
Division 3—Fees under Part 4 of this Act
43 Power of Authority to require payment after appointed day
The declaration of an appointed day for a water system, is to be taken not to affect the power of the Minister under Part 4 of this Act to obtain payment on or after the appointed day for that part of a fee, fixed by the Minister for a take and use licence in the water system, that applies to any period before the appointed day.
44 Application of fees under Part 4 of this Act by the Minister after the appointed day
(1) If, before the appointed day for a water system, the holder of a take and use licence in the water system, has made a payment of money to which this section applies to the Minister, the Minister may apply that money on and after the appointed day to satisfy any fee—
(a) payable on or after the appointed day in respect of any—
(i) water share; or
(ii) water-use licence—
deemed to be issued or granted in respect of that take and use licence under this Schedule; and
(b) payable under section 74AA in respect of any works licence under section 67.
(2) In this section payment of money to which this section applies means a payment in satisfaction of a part of a fee fixed by the Minister under Part 4 of this Act for the licence, being that part of the fee that relates to any period on or after the appointed day.
45 Evidentiary provision, fees under Part 4 of this Act
(1) If, in any proceedings under this Act or regulations or by‑laws made under this Act, the amount of water taken under a take and use licence in a water system during the fee period for the purposes of the land specified in the licence, is relevant, evidence may be given of the amount of water computed by the Minister having regard to the total amount of water recorded by a water meter as having been taken during the fee period for the purposes of that land, and that evidence, in the absence of evidence to the contrary, is proof of the amount of water taken for the purposes of the land.
(2) In this section, "fee period", in relation to a take and use licence, means the period for which a fee is fixed under Part 4 of this Act in respect of the licence and in which the appointed day for the water system from which water is taken under the licence occurs.
Part 10—Miscellaneous provisions
46 Transitional provisions—Water (Resource Management) Act 2005
Despite the repeal of section 13 by section 7 of the Water (Resource Management) Act 2005 , any qualification made by the Minister under that section before its repeal continues to apply.
Sch. 16 inserted by No. 85/2006 s. 148, repealed by No. 23/2019 s. 116.
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Sch. 17 inserted by No. 17/2012 s. 69, repealed by No. 23/2019 s. 117.
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