City of Brisbane (Flood Mitigation Works Approval) Act Amendment Act 1974 (Qld)

379 OlulTsInOr DROi^^ ' ANNO VICESIMO TERTIO ELIZABETHAE SECUNDAE REGINAE No. 38 of 1974 An Act to amend The City of Brisbane (Flood Mitigation Works Approval) Act of 1952 in certain particulars [ASSENTED TO 2ND MAY, 1974] 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 City of Brisbane (Flood Mitigation Works Approral) Act Amendment Act 1974. (2) In this Act The City of Brisbane (Flood Mitigation Works Approval) Act of 1952 is referred to as the Principal Act. (3) The Principal Act as amended by this Act may be cited as the City of Brisbane (Flood Mitigation Works Approval) Act 1952-1974.

380. Cit r of Brisbane (Flood Mitigation, Etc.), Act Amdt Act 1974, No. 38 2. Amendment of s. 2. Section 2 of the Principal Act is amended by- (a) omitting the definition " creek " and substituting the following definition:- " creek " or " river "-Any watercourse within or contiguous to the Area of the City of Brisbane in which water flows permanently, intermittently or occasionally whether in a natural channel or a natural channel artifically improved or an artificial channel that has changed the course of a natural channel or otherwise and all parts of such a watercourse, whether or not subject to tidal influence: the term includes all land lying below high water mark on both banks of such a watercourse and the bed of such watercourse;"; (b) inserting after the definition " Marine Board " or " Board the following definitions:- Minister "-The Minister for Local Government and Electricity or other Minister of the Crown for the time being charged with the administration of this Act: the term includes any person temporarily performing the duties of the Minister; " watercourse "-Includes land on which rainwater or stormwater runoff concentrates, and land on or over which rainwater or stormwater runoff usually or occasionally flows in concentration in a defined channel, whether a natural channel or a natural channel artificially improved or an artificial channel that has changed the course of a natural channel or otherwise; "; (c) in the definition " works ", (i) omitting the words " and subject therefrom to tidal influence " wherever they occur; (ii) inserting before the word " creek " wherever it occurs the words river or ". 3. Amendment of s. 5 . Section 5 of the Principal Act is amended by omitting subsection (2) and substituting the following subsections:- " (2) Every application made under this section- (a) shall be made to the Minister; and (b) shall contain or be accompanied by full and complete information with respect to the work to which the application relates; and (c) shall be referred to the Marine Board, Harbour Board or to the Commissioner of Irrigation and Water Supply in accordance with subsection (2A). (2A) An application made under this section shall be referred as follows:- (a) where it relates to works to be performed in a part of a river or creek, which part is subject to tidal influence, the application shall be referred- (i) to the Marine Board, which shall cause the matter of the application to be investigated and shall make a report and recommendation for submission by the Minister to the Governor in Council on the desirability

City of Brisbane (Flood Mitigation, Etc.), Act Anidt Act 1974, No. 38 381 of the works, having regard to the freedom of navigation in that part of the river or creek in question; and (ii) to the Harbour Board having jurisdiction over the part of the river or creek in question, which shall cause the matter of the application to be investigated and shall make a report and recommendation for submission by the Minister to the Governor in Council on the desirability of the works, having regard to the effect the carrying out of such works would have on the use of the Harbour in question; and (b) where it relates to works to be performed in a part of a river or creek, which part is not subject to tidal influence, the application shall be referred to the Commissioner of Irrigation and Water Supply, who shall cause the matter of the application to be investigated and shall make a report and recommendation for submission by the Minister to the Governor in Council on the desirability of the works, having regard to diversion of water (if any) from the river or creek in question. (2B) Upon the request of the Minister, Brisbane City Council shall furnish to him all such further or other information as he may require with respect to works to which an application made under this section relates.". 4. New ss . 5A, 5B, 5C. The Principal Act is amended by inserting after section 5 the following sections:- " 5A. Minister ' s power to undertake works. (1) Where the Minister is satisfied that particular works in any river or creek are necessary and should be performed without undue delay and that Brisbane City Council- (a) has failed to make an application under section 5 that relates to those works: or (b) has made such an application that is inadequate; or (c) having obtained the approval of the Governor in Council to the performance of those works has failed to perform those works, he shall cause notice to be given to Brisbane City Council calling on the council to show cause to him, within a period specified by him, why he should not proceed as prescribed by this section. (2) If cause is not duly shown to the satisfaction of the Minister pursuant to a notice given under subsection (I)- (a) in a case where the approval of the Governor in Council has not been given to the performance of the works, the Minister shall refer the proposal to perform the works in question, in accordance with section 5 (2A), to the Marine Board, Harbour Board or, as the case may be, the Commissioner of Irrigation and Water Supply for performance by it or him of the function prescribed by section 5 (2A);

382 .City of Brisbane (Flood Mitigation, Etc.), Act Amdt Act 1974. N o. 38 (b) in a case where the approval of the Governor in Council has been given to the performance of the works by Brisbane City Council, the Minister may cause the performance of the works to be undertaken and, if he does so, it shall be deemed that the authority conferred by such approval on Brisbane City Council was and is conferred on the Minister. (3) Upon receipt of the material reports and recommendations prescribed by section 5 (2A) the Minister may submit to the Governor in Council for his approval the proposal that the Minister perform the works in question and, if the approval is given, may perform the works accordingly. (4) For the purpose of performing works under this section the Minister shall have and may exercise, and shall be subject to the powers, authorities, protection, duties and responsibilities of Brisbane City Council conferred and imposed by this Act in respect of works approved by the Governor in Council to be performed by it. 5B. Costs of Minister undertaking works. (1) The costs of and incidental to the Minister's performance of works under section 5A shall be payable by Brisbane City Council and, if those costs or any part thereof are not paid in accordance with the demand of the Minister, the same may be recovered as a debt due and owing to the Minister by the council by action in a court of competent jurisdiction. (2) Without prejudice to the rights conferred by subsection (1) in relation to the recovery of costs referred to therein- (a) the Treasurer shall have and may exercise in respect of such costs or any part thereof the rights and remedies conferred on him by the Local Government Act 1936-1973 with respect to the failure of a Local Authority to duly repay a loan as if Brisbane City Council were a Local Authority subject to that Act: (b) the Treasurer may direct that such costs or any part thereof be defrayed out of moneys borrowed by Brisbane City Council for flood mitigation works and may therein specify conditions to be met in the payment of such costs and the council and all other persons concerned shall obey and give effect to the Treasurer's direction. 5C. Contribution in aid of works . (1) Brisbane City Council may make with any Local Authority constituted under the Local Government Act 1936-1973 an arrangement whereby such authority undertakes to contribute in aid of the performance or maintenance by the council of works that are or will be to the benefit of such authority.'

City of Brisbane (Flood Mitigation, Etc.), Act Amdt Act 1974, No. 38 383 (2) If the council and any such authority cannot agree on an arrangement under this section the Governor in Council may determine all matters respecting the proposed arrangement in dispute (including, if it is in dispute, the question as to whether the works in question are or will be to the benefit of the authority, or the extent of such benefit) and the arrangement shall be made in accordance with the determination of the Governor in Council. (3) If the council and any such authority fail to make an arrangement in relation to which the Governor in Council has made a determination under subsection (2) the Governor in Council may proceed to determine all such further matters as he considers necessary or desirable to effect the arrangement and the council and the authority in question shall be deemed to have made the arrangement in terms of the determinations made by the Governor in Council and such arrangement shall be binding on both the council and the authority. (4) Any amount payable by a Local Authority pursuant to an arrangement that is binding upon it and not duly paid may be recovered by Brisbane City Council as a debt due and owing to it by action in a court of competent jurisdiction.". 5. Amendment of s. 6 . Section 6 of the Principal Act is amended by inserting before the word " creek ", wherever it occurs, the words " river or ". 6. Amendment of s. 7. Section 7 of the Principal Act is amended by- (a) omitting the expression The Land Acts, 1910 to 1951 " ", wherever it occurs, and substituting in each case the expression " the Land Act 1962-1974 "; (b) omitting from subsection (5) the words " one hundred and seventy-five ", wherever they occur, and substituting in each case the expression " 208 ". 7. New s. 9. The Principal Act is amended by adding after section 8 the following section:- " 9. Council liable only in negligence for damage caused by works. Notwithstanding a provision of any Act or any rule of law Brisbane City Council shall not be liable, absolutely or vicariously, in damages for flooding or sending water upon any lands by reason of works performed by it under this Act, or for the escape of water from any such works unless it be shown that such flooding, sending of water or escape was due to or arose out of the negligence of the council or its officers, servants or agents in the construction, maintenance, control or management of the works in question or of the flow of water therein.".

384 City ofBrisbane (Flood Mitigation, Etc.), Act Amdt Act 1974, No. 38 8. New s. 10. The Principal Act is amended by adding after section 9 the following section:- " 10. Authority to perform works in other Area . Where any part of a river or creek is contiguous to the Area of the City of Brisbane and is within the Area of any other Local Authority the authority conferred under this Act by an approval of the Governor in Council on Brisbane City Council or on the Minister to perform works on or in that part of the river or creek includes authority to perform all necessary parts of those works on or in that part of the river or creek and on or in land adjacent to that part notwithstanding that that part of the river or creek or that land is within the Area of such other Local Authority and the performance of such necessary parts of those works and the doing of any act and the taking of any step incidental therein or in connexion therewith shall be taken to be a function of Local Government authorized by the City of Brisbane Act1924-1973 and the Local Government Act 1936-1973.". 9. New s. 11. The Principal Act is amended by adding after section 10 the following section:- " 11. Application of Act to other Local Authority Areas. (1) The Governor in Council may. by Order in Council, declare that the provisions of this Act shall apply to and in respect of the Area of any Local Authority constituted under the Local Government Act 1936-1973 that is specified in the order whereupon the provisions of this Act (other than provisions pertaining to Breakfast Creek or to " constructed works ") shall apply to and in respect of rivers and creeks within or contiguous to the Area of the Local Authority so specified until such order is revoked. (2) For the purpose of the application of this Act to and in respect of an Area of a Local Authority pursuant to an Order in Council made under subsection (I)- (a) a reference to Brisbane City Council shall be read and construed as a reference to the Local Authority having jurisdiction within the Area to and in respect of which the Act is to be applied; (b) a reference to the Area of the City of Brisbane shall be read and construed as a reference to the Area to and in respect of which the Act is to be applied: (c) a reference to " The City of Brisbane Acts, 1924 to 1951 " or to the City of Brisbane Act1924-1973 shall be disregarded; (d) the term " creek " or " river " means any watercourse within or contiguous to the Area to and in respect of which the Act is to be applied but otherwise shall

City of Brisbane (Flood Mitigation, Etc.), Act Arndt Act 1974, No. 38 385 have the meaning assigned to those terms by section 2 and the term " watercourse " shall have the meaning assigned to that term by that section; (e) a reference in section 5c to a Local Authority constituted under the Local Government Act 1936-1973 shall be taken to include Brisbane City Council.". 13