Water Amendment (Entitlements) Act 2010

Water Amendment (Entitlements) Act 2010

No. 32 of 2010

table of provisions

SectionPage

Part 1—Preliminary

1Purposes

2Commencement

Part 2—Amendments to the Water Act 1989

3Definitions

4Private rights to water

5Authority rights to water

6New section 33AAD inserted

33AADConditions on certain qualifications

7Nature of water shares

8Transfer of ownership of water share

9Effect of transfer of limited term transfer

10Assignment of water allocation

11Further assignment of water allocation

12Ministerial approval for transfers and assignments of water shares

13Application of limited term transfer to division of water share

14Water allocations for water shares

15Section 33AD substituted

33ADDeclaration for taking of water allocation under water share in subsequent water season

16Application for determination of cessation as associated water share

17Effect of death of mortgagee

18Definitions in Division 1 of Part 4

19New sections inserted after section 34

34AGrant of bulk entitlement

34BAuthorisation of entitlement

20Conversion of pre-existing entitlements

21Application for bulk entitlement

22Repeal of referral of bulk entitlement to Governor in Council

23Advertisement of application

24Appointment of panel

25Matters to be taken into account in determining application

26Deferral of applications for bulk entitlements

27Determination of application for bulk entitlement

28Order granting bulk entitlement

29Amendment of bulk entitlement by Order

30Section 45 substituted

45Minor amendment of bulk entitlement by notice

31Transfers or assignments of bulk entitlements

32Transfers or assignments of bulk entitlements to irrigators

33Assignments of water allocations to persons outside Victoria

34Compliance with terms of bulk entitlement

35Conversion of licences, water shares or water rights to bulk entitlements

36Minister may sell unallocated water

37New section inserted after section 47D

47DADeclaration for taking of water allocation under bulk entitlement in subsequent water season

38Repeal of redundant requirement to keep register

39Authorisation of entitlement

40New section inserted after section 48M

48MADeclaration for taking of water allocation under environmental entitlement in subsequent water season

41Power of environment Minister to delegate

42Amendment of licence on motion of Minister

43New sections inserted after section 59

59AAmendment of licence issued under section 51 on application of licence holder

59BProcedure applying to application

59CMinisterial consideration of application

44New section 62A inserted

62ADeclaration for taking of water under a licence in subsequent water season

45Review of decisions

46Repeal of provision as to periodic amendment of bulk
entitlement

47Seasonal determinations

48Notification of determination

49Notification of determination as to standard water use
conditions

50Variation of conditions of water-use applications

51Responsibilities for water register

52Form and manner of keeping water register

53Disclosure of information

54New Division 1A of Part 5A inserted

Division 1A—Minister's functions

84EAFunctions of Minister as to water register

55Registrar's functions

56Registrar's power of delegation

57Recording of transfers

58Substitution of section 84K

84KRecording of legal personal representatives

59Substitution of section 84L

84LRecording of survivor of joint ownership or holding

60Priority of recordings

61Information available from water register

62Consideration for transfer

63Giving of notices

64Corporate plans of water corporations

65Application of proceeds of sale of water share

66Sale or transfer of water share cancels encumbrances

67Power to incorporate documents in certain instruments

68Minister's power of delegation

69Power of Minister to give directions

70Regulation making powers

71Repeal of spent provisions

72Repeal of savings and transitional provisions

73Insertion of new section 334

334Certificate as to land taken over by another body

74Recording of discharge of mortgage

75Section 33AV(4) not to apply to converted life tenancies

76Dealings in unconfirmed water shares

77Amendments to the Water Act 1989 in the Schedule

Part 3—Amendments to the Residential TenanciesAct 1997

78Amendment of the definition section in the Residential TenanciesAct 1997

79Substitution of references to A rating in Residential Tenancies Act 1997

Part 4—Repeal

80Repeal of Act

______

SCHEDULE—Minor and Consequential Amendments to the WaterAct1989

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Endnotes

SectionPage

Victoria

SectionPage

Water Amendment (Entitlements) Act 2010[†]

No. 32 of 2010

[Assented to 8 June 2010]

Water Amendment (Entitlements) Act 2010
No. 32 of 2010

The Parliament of Victoriaenacts:

Water Amendment (Entitlements) Act 2010
No. 32 of 2010

Part 1—Preliminary

1Purposes

The purposes of this Act are—

(a)to amend the Water Act 1989—

(i)to make further provision as to rights to water in publicly accessible waterways; and

(ii)to make provision as to the assignment of water allocations under bulk entitlements and make other amendments to the provisions as to bulk entitlements; and

(iii)to alter the meaning of water allocation; and

(iv)to provide for various matters relating to environmental entitlements; and

(v)to provide for various matters relating to the provisions for water shares and the water register; and

(vi)to provide for other minor mattersrelating to the operation of the Act; and

(b)to amend the Residential Tenancies Act 1997, to make further provision for rating standards for water appliances in premises to which the Act applies.

2Commencement

s. 2

(1) This Act comes into operation on a day or days to be proclaimed.

(2)If a provision of this Act does not come into operation before 1 January 2011, it comes into operation on that day.

______

Part 2—Amendments to the Water Act 1989

3Definitions

s. 3

See:
Act No.
80/1989.
Reprint No. 9
as at
24 April 2008
and amending
Act Nos
4/2008, 12/2008, 46/2008, 61/2008, 75/2008, 4/2009 and 54/2009.
LawToday:
www.
legislation.
vic.gov.au

(1)For the definition of bulk entitlement in section 3(1) of the Water Act 1989substitute—

"bulk entitlement means an entitlement granted under Division 1 of Part 4;".

(2)For the definition of person in section 3(1) of the Water Act 1989substitute—

"person—

(a)in Part 3A, Division 1A of Part 4, Part4B, Part 5A and Schedule 12A, means an individual or an incorporated body;

(b)in any other part of the Act, means an individual, a body oran association (incorporated or unincorporated) or a partnership;".

(3) For the definition of water allocation in section 3(1) of the Water Act 1989substitute—

"water allocation—

(a)in relation to an environmental entitlement means—

(i)the volume of water determined under a seasonal determination to be available for the entitlement; or

(ii)if no seasonal determination is made for the entitlement, the water thatis available to be takenin any water season, under the terms of the entitlement; or

(b)in relation to a bulk entitlement means—

(i)the volume of water determined under a seasonal determination to be available for the entitlement; or

(ii)if no seasonal determination is made for the entitlement, the water that is available to be takenin any water season, under the terms of the entitlement; or

(c)in relation to a water share, means the amount of water allocated to the water share at any particular time, in accordance with Division 7 of Part3A;".

4Private rights to water

s. 4

For section 8(3) of the Water Act 1989substitute—

"(3)A person has the right to use water taken by that person from a waterway under subsection (1)(a), if the water is being used at the place at which it is taken.

(3A)A person has the right to use water taken by that person from a waterway under subsection (1)(b), (c) or(d).

(3B)A person has the right to use water taken by that person from a bore under subsection (1).

(3C) A person has the right to use, while it iswithin the waterway or bore, water which that person has the right to take under subsection(1).".

5Authority rights to water

s. 5

(1)For section 9(1)(a) of the Water Act 1989substitute—

"(a)under a bulk entitlement; or".

(2)For section 9(2)(b) of the Water Act 1989substitute—

"(b)in the case of a generation company within the meaning of the Electricity Industry Act 2000, for any purpose connected with the exercise of its functions or powers;".

(3)Sections 9(2)(c) and 9(2)(e) of the Water Act 1989 are repealed.

(4)In section 9(2)(d) of the Water Act 1989—

(a)for "paragraph (e) or (f)" substitute "paragraph (d)";

(b)for "public purpose;" substitute "public purpose.".

6New section 33AAD inserted

After section 33AAC of the Water Act 1989 insert—

"33AAD Conditions on certain qualifications

(1)If a bulk entitlement has been qualified under this Division, the Minister may impose conditions or duties as to one or more of the following matters on the holder of the bulk entitlement—

(a)monitoring the impacts of the qualification and advising the Minister of the outcomes of the monitoring;

(b)requiring any program of works or actions to be carried out by the holder of the bulk entitlement for the purpose of mitigating any adverse effect or the risk of any adverse effect—

(i)on the maintenance of the environmental water reserve in accordance with the environmental water reserve objective; or

(ii)on the holder of any other entitlement, licence or right under this Act;

(c) requiring payments to be made to other Authorities for the purposes specified in the notice of qualification under section 33AAC, including conditions as to—

s. 6

(i)if any program of works is carried out by another Authority for a purpose specified in paragraph (b), payments that areto be made to reimburse the cost of the carrying out of the program; and

(ii)the manner in which any payments are to be made;

(d) operating arrangements that are required as a result of the qualification.

(2)A condition or duty imposed on the holder of a bulk entitlement under subsection (1) must be set out in the notice of the qualification under section 33AAC.".

7Nature of water shares

s. 7

(1)In section 33F(2) of the Water Act 1989—

(a)for "A water share" substitute "Subject to this Act, a water share";

(b)omit"or, with the approval of the Minister, in a subsequent season".

(2) At the foot of section 33F(2) of the Water Act 1989 insert—

"Note

The operation of some provisions of this Act affects the taking or use of water under a water share. Section 33AD is an example of such a provision.".

8Transfer of ownership of water share

In section 33S(1) of the Water Act 1989, for "another"substitute "a".

9Effect of transfer of limited term transfer

For section 33T(3) of the Water Act 1989substitute—

"(3)A transfer under this section entitles the holder of the transfer to take water under future water allocations under the water share—

(a) from the date on which the transfer is recorded in the water register; or

(b) if a later date is specified in the transfer,that date.".

10Assignment of water allocation

(1)In section 33U(3) of the Water Act 1989, for "receive" substitute "take".

(2) In section 33U(4) of the Water Act 1989, for "received" substitute "taken".

11Further assignment of water allocation

In section 33V(3) of the Water Act 1989, for "receive" substitute "take".

12Ministerial approval for transfers and assignments of water shares

For section 33X(3) of the Water Act 1989substitute—

"(3)The Minister must not—

(a)give an approval under subsection (1)(a)—

(i)if any fee under Division 9 that is payable in relation to the share is outstanding; or

(ii)for any other prescribed reason; or

(b)give an approval under subsection (1)(b) or (c) for any prescribed reason.".

13Application of limited term transfer to division of water share

s. 11

After section 33Y(3) of the Water Act 1989insert—

"(4)On the division of a water share under subsection (1), any limited term transfer that applied to the water share immediately before that division is, on and from that division, deemed to apply—

(a)in the case of the cancellation of the old share under subsection (1)(a), to each new share that is issued; or

(b)in the case of the variation of one share and the issue of one or more new shares under subsection (1)(b), to the share that is varied and to each new share that is issued.".

14Water allocations for water shares

s. 14

In section 33AC(2) of the Water Act 1989, after "the water allocation" insert " that may be taken in a water season".

15Section 33ADsubstituted

For section 33AD of the Water Act 1989substitute—

"33AD Declaration for taking of water allocation under water share in subsequent water season

(1)The Minister may make a declaration in respect of water shares, authorising the taking of water that is entitled to be taken under any water allocation for the water shares in a subsequent water season.

(2)A declaration under subsection (1) may apply to—

(a)water shares in a water system or part of a water system; or

(b)a class or classes of water shares in a water system or part of a water system.

(3) Any taking of water under a declaration under subsection (1) is subject to any terms and conditions specified by the Minister in the declaration.

(4) The Minister must cause notice of the making of a declaration under subsection (1) to be published—

(a)in the Government Gazette; and

(b)in a newspaper circulating generally in the area to which the declaration applies.

(5) A declaration under subsection (1) has effect on the publication of notice of the making of the declaration in the Government Gazette.".

16Application for determination of cessation as associated water share

s. 16

After section 33AQ(2) of the Water Act 1989insert—

"(2A)The owner of an associated water share may apply to the Minister for a determination under section 33AN.".

17Effect of death of mortgagee

(1)For the heading to section 33AV of the Water Act 1989substitute—

"Effect of death of owner or holder of certain other interests".

(2)After section 33AV(6) of the Water Act 1989insert—

"(7)On the death of a person who holds a mortgage over a water share, the mortgage forms part of the estate of that person.

(8)On the death of a person who holds a mortgage over a water share as a joint tenant with other persons, the remaining holders of the mortgage become the joint holders of the mortgage.

(9)On the death of a person who holds a mortgage over a water share as tenant in common with other persons, that person's portion of the mortgage becomes part of the estate of that person.".

18Definitions in Division 1 of Part 4

s. 18

(1)For section 34(1) of the Water Act 1989substitute—

"(1)In this Division Authority means—

(a)any water corporation empowered to carry out any function under this Act in relation to water supply or irrigation; or

(b)a person holding—

(i)a water licence; or

(ii)a water and sewerage licence—

issued under Division 1 of Part 2 of the Water Industry Act 1994; or

(d) the Minister administering the Conservation, Forests and Lands Act 1987.".

(2)In section 34(2) of the Water Act 1989, omit "orDivision 3".

19New sections inserted after section 34

After section 34 of the Water Act 1989insert—

"34A Grant of bulk entitlement

The Minister may by Order published in the Government Gazette grant a bulk entitlement to water to an Authority, on approving an application under section 42(1)(c).

34B Authorisation of entitlement

Subject to this Act, a bulk entitlement authorises the holder to take anduse water in accordance with the terms of the entitlement.

Note

The operation of some provisions of this Act affects the taking and use of water under a bulk entitlement. Section 47DA is an example of such a provision.".

20Conversion of pre-existing entitlements

(1)Insert the following heading to section 35 of the Water Act 1989—

"Applications for conversion of pre-existing entitlements".

(2)Section 35(1)of the Water Act 1989 is repealed.

21Application for bulk entitlement

Section 36(2)(b) of the Water Act 1989 is repealed.

22Repeal of referral of bulk entitlement to Governor in Council

Section 37 of the Water Act 1989 is repealed.

23Advertisement of application

s. 20

In section 38(2) of the Water Act 1989omit "orGovernor in Council (as the case requires)" (wherever occurring).

24Appointment of panel

(1)In section 39(1) of the Water Act 1989omit "orGovernor in Council (as the case requires)".

(2) In section 39(2) of the Water Act 1989omit "orGovernor in Council".

(3) In section 39(4) of the Water Act 1989, omit"orGovernor in Council (as the case requires)".

(4) For section 39(5) of the Water Act 1989substitute—

"(5)In considering the matter before it, a panel must have regard to—

(a)all submissions referred to it that were made in accordance with a noticeunder section 38(1)(a) in the manner and within the period specified in the notice; and

(b)all submissions made to the panel in the manner and within the period specified by the panel; and

(c)any further information provided to the Minister under section 38(2)(b)(i); and

(d)the results of any investigation carried out by the Minister under section 38(2)(b)(ii).

(5A) The panel must report its findings to the Minister within the period specified by the Minister.".

(5) In section 39(7) of the Water Act 1989 for "Governor in Council" substitute "Minister".

25Matters to be taken into account in determining application

s. 25

(1)In section 40(1) of the Water Act 1989—

(a)omit "or Governor in Council (as the case requires)";

(b)after paragraph (a) insert—

"(ab)all submissions received by the Minister that were made in accordance with a notice under section 38(2)(a) in the manner and within the period specified in the notice;";

(c)paragraph (f) is repealed;

(d)in paragraphs (n) and (o), omit "or Governor in Council".

(2)In section 40(2) of the Water Act 1989, omit "orGovernor in Council (as the case requires)".

26Deferral of applications for bulk entitlements

In section 41 of the Water Act 1989, omit "orGovernor in Council (as the case requires)".

27Determination of application for bulk entitlement

(1)In section 42(1) of the Water Act 1989—

(a)omit "or Governor in Council (as the case requires)";

(b)paragraph (b) is repealed;

(2)In section 42(2) of the Water Act 1989, omit "orGovernor in Council (as the case requires)".

(3) Sections 42(3), 42(4), 42(5) and 42(6) of the Water Act 1989 are repealed.

28Order granting bulk entitlement

s. 26

In section 43 of the Water Act 1989—

(a)paragraph (bb) is repealed;

(b)in paragraph (e), omit "or to the holder of a licence issued under section 51 or 52".

29Amendment of bulk entitlement by Order

(1)For section 44(1) of the Water Act 1989substitute—

"(1)The Minister may amend a bulk entitlement, or an entitlement to which section 35(2) applies by Order published in the Government Gazette.".

(2)After section 44(3) of the Water Act 1989insert—

"(4)In this section amend, in relation to an entitlement to which this section applies, includes the consolidation of the entitlement with another such entitlement.".

30Section 45 substituted

s. 30

For section 45 of the Water Act 1989substitute—

"45 Minor amendment of bulk entitlement by notice

(1)The Minister may amend a bulk entitlement by notice given to the holder of the entitlement.

(2)The Minister must not amend a bulk entitlement under subsection (1) unless—

(a)the Authority holding the entitlement has applied to the Minister for the amendment; or

(b) the Minister has consulted with the Authority holding the entitlement about the amendment before making the amendment.

(3)In making an amendment under subsection (1), the Minister must be of the opinion that the amendment is necessary—

(a)to correct a mistake in the description of any element of the entitlement; or

(b)to make a minor variation arising from practical operations (including any dealing in a right or entitlement under this Act); or

(c)to vary an obligation or impose a new obligation on a resource manager, storage manager or environmental manager; or

(d)to make any other amendment to the entitlement that does not impact on another person's entitlement to water and does not adversely affect the environmental water reserve.

(4)An amendment to a bulk entitlement that is made by notice under subsection (1) does not have effect until notice of the making of the amendment has been published in the Government Gazette.".

31Transfers or assignments of bulk entitlements

s. 31

(1)Insert the following heading to section 46 of the Water Act 1989—

"Transfers or assignments of bulk entitlements".

(2)In section 46(1) of the Water Act 1989, after "betransferred" insert ",or a water allocation under the entitlement may be assigned,".

(3) For section 46(2) of the Water Act 1989substitute—

"(2)An assignment of water allocation under this section authorises the person to whom the water allocation has been assigned to take water under the water allocation under the bulk entitlement from the date specified in the assignment.".

(4)In section 46(3) of the Water Act 1989, for "ofthe transfer" substitute "to transfer the entitlement or assign a water allocation under the entitlement".