Canals Act Amendment Act 1979 (Qld)

180 Quamlnbr ANNO VICESIMO OCTAVO ELIZABETHAE SECUNDAE REGIN AE No. 16 of 1979 An Act to amend The Canals Acts, 1958 to 1960 in certain particulars [ASSENTED TO 15TH MAY, 1979] BE IT ENACTED by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of Queensland in Parliament assembled, and by the authority of the same, as follows:- 1. Short title and citation . (1) This Act may be cited as the Canals Act Amendment Act 1979. (2) In this Act The Canals Act of 1958 as amended from time to time is referred to as the Principal Act. (3) The Principal Act as amended by this Act may be cited as the Canals Act1958-1979.

Canals Act Amendment Act 1979, No. 16 181 2. Amendment of s. 2 . Section 2 of the Principal Act is amended by, in subsection (1)- (a) inserting before the term " Area " and its meaning the following term and meaning:- " " Access channel "-Any artificial channel constructed in tidal water in association with the construction of a canal and connected or intended to be connected to such canal, and any training wall or other works associated with, such artificial channel: The term includes any addition to or alteration to any such artificial channel, training wall or other works; "; (b) in the meaning of the term "Canal ", omitting the words The term includes " and substituting the words " so that the water of such artificial channel or lake becomes or, on such connexion, will become tidal water: The term includes any access channel,"; (c) omitting the terms " Harbour Board " and " Harbours- Trust " and their meanings. 3. Amendment of s. 3 . Section 3 of the Principal Act is amended by- (a) in subsection (1), omitting all words after the word " Penalty: " and substituting the words " Not exceeding $100 000 and daily penalty not exceeding $2 000 for each day during which the offence continues."; (b) in subsection (2), omitting the words " One hundred pounds " and substituting the words " Not exceeding $2 000 ". 4. Amendment of s. 5 . Section 5 of the Principal Act is amended by inserting after subsection (5) the following subsection:- " (6) Where an application relates in part to the construction of an access channel in connexion with the construction of a canal, it shall be a condition upon which the application is granted,- if the Governor in Council specifies training walls and other works to be provided in respect of the access channel, that training walls and other works as so specified shall be provided to the satisfaction of the Governor in Council.". 5. Amendment of s. 6. Section 6 of the Principal Act is amended by-.inserting after subsection (3) the following subsection:- " (4) (a) The Governor in Council may approve the transfer to another person of provisional approval of a proposal to construct a canal granted by him to an applicant. (b) Application in writing for such approval shall- (i) be made by the proposed transferor and the proposed transferee; (ii) be in the prescribed form; and (iii) be accompanied by the prescribed fee. (c) Where the Governor in Council approves the transfer, the transferee shall- (i) be deemed to have applied for and obtained the provisional approval; , (ii) be deemed to have taken and done all such prescribed steps and things (if any) that have up to the time of such approval been taken and done or deemed to have been taken and done by the transferor for the purpose of obtaining the final approval of the Governor in Council to the construction of the canal; and

182 Canals Act Amendment Act 1979, No. 16 (iii) subject to any further transfer, be the applicant for the final approval.". 6. Amendment of s. 7. Section 7 of the Principal Act is amended by inserting after subsection (3) the following subsection:- " (4) (a) The Governor in Council may approve the transfer to another person of final approval given by him under this section to an applicant in respect of the construction of a canal. (b) Application in writing for such approval shall- (i) be made by the proposed transferor and the proposed transferee; (ii) be in the prescribed form; and (iii) be accompanied by the prescribed fee. (c) Where the Governor in Council approves the transfer, the transferee shall be deemed to have applied for and obtained the provisional approval and to have obtained the final approval.". 7. Amendment of s. 8. Section 8 of the Principal Act is amended by, in subsection (2), omitting all words after the word " Penalty: " and substituting the words " Not exceeding $5 000.". 8. Amendment of s. 10 . Section 10 of the Principal Act is amended by omitting all words commencing with the words " " The Harbours Acts, 1955 to 1956," " and ending with the words " comes into operation) " and substituting the words " the Harbours Act 1955-1978 and the Queensland Marine Act 1958-1975 ". 9. New s. 10A. The Principal Act is amended by inserting after section 10 the following section:- " 10A. Consequences of connexion of access channel with canal. (1) On and from the time- when an access channel is connected with any canal- (a) if the tidal water within the access channel is within the limits of a harbour, that access channel shall remain as part of that harbour; (b) if that tidal water is not within the limits of a harbour, that access channel shall remain as part of that tidal water, and all of the provisions of the Harbours Act 1955-1978 and the Queensland Marine Act 1958-1975 shall apply to the access channel subject, however, to all such modifications and adaptations thereof as are necessary to give operation and effect to this Act. (2) Any right of navigation belonging to or enjoyed by the public over tidal water applies, subject to this Act and the other Acts hereinbefore mentioned in this section, in respect of the tidal wafer in an access channel.". 10. Repeal of and new s. 11 . Section 11 of the Principal Act is repealed and the following section is substituted:- "11. Maintenance of canals. (1) A Local Authority shall preserve, maintain and keep clean any canal within its Area, whether constructed- (a) before or after the commencement of the Canals Act Amendment Act 1979; (b) under the authority or sanction of this Act or any other Act.

Canals Act Amendment Act 1979, No. 16 183 (2) It is hereby declared that- (a) such preserving, maintaining and keeping clean as aforesaid is a function of Local Government; (b) for the purposes of this section and for the purposes of the Local Government Act 1936-1978, the expression " canal within its Area " occurring in subsection (1) includes any access channel constructed in association with the construction of a canal although such access channel is not within the Area of the Local Authority in question; (c) the term " canal " occurring in subsection (1) includes any access channel, whether constructed before or after the commencement of the Canals Act Amendment Act 1979, approval or sanction for the construction of which has been granted according to law prior to the commencement of that Act. (3) Where a Local Authority pursuant to the provisions of the Local Government Act 1936-1978 makes and levies a special rate or a separate rate for the function of Local Government referred to in subsection (2), the whole or part of the moneys received in respect of the special rate or separate rate may, at the discretion of the Local Authority and notwithstanding the provisions of the said Act, be transferred from the special fund or separate fund established by the Local Authority under the said Act in respect of the special rate or separate rate levied to a Canal Maintenance Reserve Fund referred to in subsection (4) for the purpose of equalizing expenditure necessarily incurred in the exercise and performance of the function of Local Government as aforesaid. (4) The Local Authority shall establish a Canal Maintenance Reserve Fund where, pursuant to subsection (3), moneys are transferred from the special fund or separate fund for the purpose of equalizing expenditure necessarily incurred in the exercise and performance of the function of Local Government as aforesaid. (5) A Canal Maintenance Reserve Fund shall consist of the moneys transferred from the special fund or separate fund. pursuant to subsection (3), and shall be applied to expenditure necessarily incurred in the exercise and performance of the function of Local Government as aforesaid. (6) The provisions of the Local Government Act 1936-1978 in respect of reserve funds kept by a Local Authority under that Act shall apply and extend to a Canal Maintenance Reserve Fund kept by a Local Authority pursuant to this Act.". 11. Repeal of and new s. 12. Section 12 of the Principal Act is repealed and the following section is substituted:- " 12. Protection in respect of Construction of access channel. A person, being an applicant under this Act to construct a canal the application in respect of which relates in part to the construction of an access channel in connexion with the construction of the canal, who receives from the Governor in Council final approval to the construction pursuant to subsection (3) or (4) of section 7 and who, in relation to such construction,

184 Canals Act Amendment Act 1979, No. 16 acts in accordance with such approval is not liable to action or indictment or process of law for nuisance, encroachment or obstruction or other like cause on account of the commencement, construction or placement of the access channel as aforesaid.". 12. Amendment of s. 14 . Section 14 of the Principal Act is amended by- (a) omitting the words " the Harbours Trust, a Harbour Board " and substituting the words " the Marine Board "; (b) omitting all words occurring after the words " state and condition of the canal," and substituting the words " or the doing of or omission to do anything by a Local Authority under section 11 of this Act or the manner in which any such thing is done.". 13. Amendment of s. 15. Section 15 of the Principal Act is amended by- (a) in subsection (5), omitting the words " one hundred pounds " and substituting the expression " $1 000 "; (b) omitting subsection (6). 14. Amendment of s. 17. Section 17 of the Principal Act is amended by, in paragraph (i) of subsection (1)- (a) omitting the words " one hundred pounds " and substituting the expression " $1000 "; $10(0b)tto. mitting the words " ten pounds " and substituting the expression 15. Repeal of s. 20. Section 20 of the Principal Act is repealed.