Western Australian Current Acts Western Australian Current Acts In any case where any
river (whether tidal or otherwise), watercourse, stream, or open ditch or
drain, lying near to or on the boundaries of 2 or more districts, or running
into 2 or more districts, is foul or offensive, or out of repair, or otherwise
defective, the following provisions shall apply —
(1) On the application
of the Chief Health Officer or of any local government of any of the said
districts to the Magistrates Court, the court may summon the local governments
of all the said districts to show cause why an order should not be made
directing them, or any of them, to cleanse the river, watercourse, stream,
ditch, or drain, and remedy all defects affecting the same, and prohibiting
the recurrence of the defect.
(2) After hearing the
parties, or such of them as appear to the summons, and after making such
inquiry as it thinks necessary, the court may, by order —
(a)
specify the works that are necessary in order to effectually cleanse the
watercourse, stream, ditch, or drain, amend all defects in the same, and
effect any requisite structural or non-structural improvements to the same;
(b)
direct one of the local governments to execute the whole of the works, or
apportion the works and the execution thereof between 2 or more of the local
governments;
(c)
direct one of the local governments to pay the whole cost of the works, or
apportion the cost between 2 or more of the local governments;
(d)
prohibit the recurrence of the defect;
(e) give
such other directions in the premises as it thinks fit.
(3) The court’s
order may be varied or amended from time to time by subsequent order made by
it on the application of the Chief Health Officer or any of the local
governments, and after summons to show cause.
(4) Every order made
by the court under this section shall, according to its tenor, bind all the
local governments concerned.
(5) The Chief Health
Officer may appoint an engineer or other competent person to supervise the
execution of the works, and the expenses of such supervision shall be deemed
to be part of the cost of the works.
(6) The works shall be
executed with all reasonable diligence, and to the satisfaction of the Chief
Health Officer or the person appointed to supervise as aforesaid; and if
default is made in so doing, the Chief Health Officer may cause the works or
any portion thereof to be executed at the cost in all things of the local
government in default.
(7) For the purpose of
executing the works, the local government or person executing the same may
enter on land and there do whatever may be reasonably necessary in the
premises.
(8) The jurisdiction
of the court under this section shall not be affected by the fact that,
independently of this section, the watercourse, stream, ditch, or drain would
not be under the control of the local government executing the work, or of any
of the local governments.
(9) If, independently
of this section, any person (other than a local government) would be liable in
law to cleanse the watercourse, stream, ditch, or drain, or to keep the same
in repair, or would be responsible in law for the defects, the local
government executing, or by the court’s order directed to execute, any
work under this section shall be entitled to recover from such person the
whole or a duly proportionate part of the costs incurred by it under this
section.
[Section 122, formerly section 103, renumbered as
section 122: No. 38 of 1933 s. 42; amended: No. 28 of 1984 s. 45; No. 14 of
1996 s. 4; No. 59 of 2004 s. 141; No. 19 of 2016 s. 100.]