ANNO VICESIMO NONO
| V I C T O R I A E | REGINAE. |
No. I.
An Act to promote the better Drainage of Lands.
[20th June, 1865.]
| W H E R E A S | i t is expedient to provide for t he be t te r | Dra inage | of |
| cer ta in | Lands | Be i t | therefore enacted by t h e Queen ' s Most |
Exce l len t Majesty by and wi th t he advice and consent of t he Legis lat ive Council and Legislat ive Assembly of N e w South Wales in Pa r l i amen t assembled and by the au thor i ty of t he same as follows :—
1. The following words in inver ted commas shall for t he pur poses of th i s Ac t unless t h e context otherwise indicate bear the mean ings set agains t t h e m respectively :—
| " W a t e r s " — A n y | r iver | creek | s t ream | lagoon | lake | or | other |
| r u n n i n g or s t and ing waters t h e level of which | is | l iable to |
| var ia t ion | A n d t h e sea where t he t ide ebbs a n d | flows. |
| " F l o o d " — A n y flood flush fresh watershed fall t ide or | other |
cause of a rise in t h e level of any waters above t h e bo t tom
| of any dra in n e x t hereinafter | ment ioned . |
| " Dra in " — A n y drain channel watercourse or o ther | artificial |
out le t for t h e purpose of dra ining any land in to any waters .
" Owner " — T h e owner for t he t ime be ing of any l and for any
| cont r ibut ion | under | th i s | Act . |
freehold es ta te inc lud ing t h e Crown or any leasehold
estate whe the r such owner be or no t in ac tua l occupat ion—
| or t h e agent of such | owner. |
| " T e n a n t " — T h e person in ac tua l occupat ion | of any | land | no t |
| 2. W h e n e v e r any t rac t of | l and is | so c i rcumstanced | t h a t | from |
| any | p e r m a n e n t | or occasional | cause considerable | quant i t ies of | water |
| a c c u m u l a t e and for | default | of | sufficient | n a t u r a l or artificial | dra inage |
| lie t h e r e o n to t h e | in jury | of such l and | any one or more of t h e owners |
| thereof m a y present a pet i t ion to t h e Governor and Execu t ive | Council |
unde r his or t he i r hands s ta t ing there in t he facts as they exist a n d — describing as accura te ly as m a y be t h e l and so unde r water or l iable to be u n d e r water and the locality and boundar ies thereof—the n a t u r e and cause of t h e accumula t ion—the n a m e and description of every other owner of t h e t r ac t ( including t h e Crown) and t h e n u m b e r of acres held by such Owners respectively—and p ray ing t h a t all owners of the t r ac t except t he Crown m a y bo cons t i tu ted a U n i o n — b y some n a m e to be specified—for t he purpose of compulsory dra inage and
| 3. U p o n receipt of any such pe t i t ion t h e Governor wi th | t he |
| advice of | t h e Execu t ive Council may publ i sh t he same in t he | Gazette |
| a n d after t h e lapse of two m o n t h s from | t h e | day of | such | publ icat ion |
| m a y subject to t he following provisoes issue and publish in t h e | Gazette |
a proclamat ion declar ing t h e t h e n owners of such t rac t of l and and the i r successors owners for t he t ime being t h e Crown excepted to be a " Dra inage U n i o n " for t he purpose of dra in ing and keep ing drained the said t r ac t of land A n d by v i r tue of such proc lamat ion so p u b l ished all such owners a n d other owners for t he t ime being except t h e Crown shall become and be a Dra inage U n i o n for such purpose only a n d compellable by m a n d a m u s at t he ins tance of any such owners or of t h e Crown if hold ing l and wi th in t he t r ac t or of any person in teres ted in t h e l and or any p a r t thereof to dra in a n d from t ime to t ime there after to keep drained such land accordingly.
4. Provided t h a t before t h e issuing of such proclamation if any o ther owners of such t rac t of l and not inc lud ing the Crown being no t less t h a n one-fifth in n u m b e r of holdings shall present a counter -pet i t ion to t h e Governor shewing reasonable objections to cons t i tu t ing such U n i o n or if for any other reason the Governor wi th t h e advice aforesaid shall so t h i n k fit he m a y employ some competen t person to
| examine | such t r ac t of | l and a n d repor t respect ing t he s ta tements con |
| ta ined in b o t h pet i t ions and t h e sufficiency of t he reasons | alleged | in |
t h e la t t e r and also to m a k e a survey a n d levels if deemed necessary and to repor t on t h e best mode of effecting t he dra inage of such t rac t for which purposes t he person so employed shall have full power to
| en te r upon any l and wi th in t h e l imits of t h e proposed | Union . |
5. Provided also t h a t before t he issuing of any such proclama t ion and in t h e event of an examina t ion repor t a n d survey be ing deemed necessary to be m a d e and before t h e same shall be made t h e original pe t i t ioner or pe t i t ioners shall pay in to t h e Colonial Treasury to t he account of a separate fund to be called t he " D r a i n a g e U n i o n of A or B F u n d " such sum as shall in t h e opinion of t he Surveyor General be sufficient to re imburse all expenses l ikely to be incur red by t h e Government in t h e m a t t e r and out of which separate fund sufficient sums m a y for t h a t purpose be from t ime to t ime drawn a n d t ransferred to t h e Consolidated Revenue F u n d by war ran t of t h e Governor Provided t h a t if t h e p rayer of t he original pet i t ion be refused the money so paid by such pet i t ioner or pe t i t ioners or t h e
| balance thereof | shall be r e t u r n e d | to | t h e m . |
| 6. A sworn appraiser shall be appointed by t h e Governor | w i t h |
| t he advice aforesaid to be r emune ra t ed according to a scale of fees | fixed |
in l ike m a n n e r and publ ished in t h e Gazette for t he purpose of assess ing t h e increased value to accrue to t h e several holdings inc luding those of t h e Crown by reason of dra inage unde r th i s A c t Provided t h a t if any owner object t o such mode of assessment in wr i t ing addressed to t h e Min is te r for Lands t he Reg i s t r a r of t h e nearest Dis t r ic t Cour t shall by direction of such Minis te r s u m m o n a j u r y of t en persons no t be ing members of such U n i o n five of whom shall be chosen by lot and who shall on a day to be fixed by the Dis t r ic t Cour t J u d g e unde r his direct ion assess such increased value and the verdic t of t h e majori ty of such j u r y shall be final and t h e cost of such mode of assessment shall be borne by such owner A n d according to such increased value t he las t -ment ioned
| contr ibut ions towards t he expenses of t h e | Government | a n d also | t h e |
general cont r ibut ions of t h e members of t h e U n i o n and of t h e Crown if a holder towards t h e expenses of such dra inage and also t h e propor t ions of votes hereinafter ment ioned shall be apport ioned.
7. Directors of such U n i o n not fewer in n u m b e r t h a n th ree nor
more t h a n seven and two audi tors shall be annua l ly elected by a
majority
majori ty of t h e votes of members present a t a general mee t ing duly convened by not ice publ ished by the Minis te r for Lands in t he Gazette and in the nearest local newspaper and such Directors shall from t ime to t ime u n d e r such by-laws as m a y be made by v i r tue of th i s A c t choose one of themselves to be Cha i rman and shall as a Board manage all t he affairs of such Union .
| 8. A t a l ike general mee t ing by-laws m a y be m a d e | no t | incon |
| sistent wi th th i s A c t and such by-laws w h e n confirmed by | t h e |
| Governor wi th t h e advice aforesaid and publ ished in t h e Gazette | shall |
| have t he force of law. |
9. I n vot ing a t any such mee t ing for e lect ing Directors or m a k i n g by-laws every m e m b e r of t h e U n i o n shall be ent i t led to one or more votes according to t he assessed increased value to accrue to t h e several holdings as aforesaid t h a t is to say—If such increased va lue amoun t to less t h a n fifty pounds t h e m e m b e r shall be ent i t led to one vote—if fifty pounds and below one hund red pounds two votes —if one hund red pounds and below two hund red and fifty pounds three votes—if two hund red and fifty pounds and below five h u n d r e d pounds four vo tes—and if five h u n d r e d pounds and upwards five votes A n d every voter shall before vot ing m a k e and subscribe a declarat ion in t he t e rms of t he first Schedule hereto before some Jus t i ce of t he Peace Provided t h a t if t he Crown holds land wi th in
| t he U n i o n the Governor and Execu t ive Counci l | shall be | ent i t led | to |
| appoint one of such Directors . |
10 . The Board of Directors m a y appoint such officers and servants as they m a y deem necessary and m a y in t he n a m e of thei r Cha i rman m a k e valid contracts and sue and be sued on t h e behalf of t he U n i o n and every Director and also every other officer of t he Union shall before en te r ing upon business m a k e and subscribe in l ike m a n n e r a declaration in t he t e rms of t he second Schedule hereto.
| 1 1 . The Board of Directors of | every U n i o n | u n d e r th is | Ac t |
shal l wi th in three mon ths after election to office and a t a correspon ding period in every subsequent year cause an es t imate to be made of t he probable a m o u n t which will be required for t he cur ren t year com m e n c i n g on t h e first day of J a n u a r y and ending on the thirty-first day of December towards m a k i n g clearing and keep ing open drains by sufficient means inc lud ing s team-engines where found to be requisi te in uphold ing e m b a n k m e n t s and in doing o ther necessary works for the purpose of fully car ry ing out th is A c t and shall raise t h e a m o u n t so
| increased value accru ing to t he several holdings inc luding those of the | es t imated by an assessment no t exceeding t e n per cen tum on the |
| Crown if any from such works | A n d the occupier of t h e lands | |
| assessed shall p r imar i ly pay the rates hereinafter ment ioned Provided t h a t if the re be no sufficient provision in t he lease or in some other wr i t t en i n s t rumen t w i th reference there to t he t enan t m a y recover from his landlord a fair propor t ion of such ra tes to be sett led by arbi |
| t ra t ion in case of | dispute . | |
12 . I n each and every year there shall be paid by every person
| inc lud ing t h e Crown hold ing | land | wi th in the U n i o n and towards t he |
| revenues of such U n i o n for every por t ion of land so held a ra te | not |
exceeding twenty pe r c e n t u m of t h e increased annua l va lue thereof to be set t led as here in ment ioned and all such ra tes for t he first year shall be paid in to t he hands of t he Cha i rman wi th in twO m o n t h s after not ice in wr i t ing s igned by h im and for every succeeding year in such t ime and manne r as m a y be required by any by-law made unde r th is Ac t A n d in default of paymen t of such rates or of such amended ra tes as m a y be determined on appeal as hereinafter provided such rates or amended ra tes may be levied by w a r r a n t unde r t he h a n d of such Cha i rman by distress and sale of t he goods and chat te ls of the person by w h o m the
same
same m a y be due a n d in the event of such goods a n d chat te ls n o t be ing found of sufficient va lue to satisfy such ra tes or amended ra tes t h e n by sale of t he l and or a sufficient por t ion thereof Provided t h a t t h e surp lus if a n y shall be repaid to t h e owner of such goods and
| 13 . | I f | any person shall t h i n k himself | aggrieved by the | a m o u n t |
of any such r a t e he m a y appeal agains t t h e same to t h e neares t P e t t y Sessions which Cour t shall have power to hear and determine t h e same a n d to award such relief in t h e premises as t h e jus t ice of t he case m a y requ i re and the decision thereof shall be final Provided t h a t t he appe l lan t shall give notice in wr i t ing unde r his h a n d to such Cha i rman of his in ten t ion to appeal seven days at least before t he hold ing of t h e Cour t for hea r ing such appeal Provided also t h a t no Jus t i ce be ing a
| m e m b e r of the U n i o n interes ted in such appeal shall adjudicate | there in . |
| 14. Every Dra inage | U n i o n | unde r | th i s Ac t | shall w i th in | one |
| year | after i ts es tab l i shment publ i sh in t he | Gazette | a p lan of | t h e |
| dra inage contempla ted wi th in | t h e l imits of | such | U n i o n | shewing |
| accurately | t h e | posi t ion and | direction wid th | dep th a n d other mate r ia l |
par t icu lars of such dra inage and dis t inguishing the pa r t s if a n y t h e n completed and shal l cause t rac ings of such p lan to be lodged wi th t h e Surveyor Genera l to be recorded by h i m for publ ic refer ence a t convenient hours and a l ike t rac ing to be lodged for l ike reference wi th t h e Regis t ra r of t h e Dis t r ic t Cour t of the Dis t r ic t
| A n d such U n i o n shall thereafter in every successive | half-year |
| publ i sh a n d t ransmi t | in l ike | m a n n e r l ike plans and | t rac ings | as | to |
all t h e n in tended addi t ional dra inage Provided t h a t no a l tera t ion affecting any navigable water shal l be made wi thou t t h e sanct ion of
| t h e Governor and Execu t ive | Council . |
15 . Every such U n i o n shall also once in every half-year a t
| equa l distances of t ime publ i sh twice in t he Gazette | a correct debtor |
| a n d credi tor account | certified | u n d e r t h e h a n d of the i r Cha i rman | and |
| b y the audi tors of all receipts and paymen t s | unde r th i s A c t for t h e |
| last half-year | and shall t r ansmi t t h e same to t he Min is te r | for | L a n d s |
if t h e Crown be a holder of lands wi th in t he Un ion .
16 . Al l members of every such U n i o n and also t he Minis ter for L a n d s or any person duly author ized by h i m if t he Crown be a holder of land in t he U n i o n shall have the r igh t a t all seasonable t imes to examine any dra in cons t ruc ted by the U n i o n Provided t h a t if a n y damage or in jury to any proper ty be done b y or by reason of such examina t ion t he p a r t y causing such damage or injury shall be answer
| 17. Eve ry such U n i o n m a y borrow by mor tgage or | otherwise |
on the credit of any p roper ty or revenue belonging the re to for or towards or inc identa l to t he m a k i n g or comple t ing of any such dra ins or any works wi th in t h e purposes of th i s A c t any money not exceeding t h e es t imated revenue of such U n i o n for five years Provided t h a t n o money shall be so borrowed wi thou t t he sanct ion of t he Governor w i th t h e advice aforesaid.
18 . N o act ion or o ther proceeding whe ther civil or cr iminal or pena l shal l be commenced by any such U n i o n aga ins t any person u n d e r th i s A c t after t h e expi ra t ion of twelve m o n t h s from the day on which t h e cause of such act ion or proceeding shall have arisen. Provided t h a t w h e n such person shall be absent from t h e Colony service of any not ice or process in any civil proceeding aga ins t such person may be m a d e u p o n t h e l and in l ike m a n n e r as in cases of e jectment .
| 19. On t h e receipt of a pet i t ion | u n d e r t he h a n d | of no t | less |
| t h a n one- third pa r t | of t h e | m e m b e r s | of any | such | U n i o n | in | n u m b e r |
| a n d va lue of holdings and after publ ica t ion of such pe t i t ion in | the |
Gazette
Gazette and a t least one local newspaper for two m o n t h s and no
sufficient cause aga ins t i t shewn by o ther such m e m b e r s more in n u m b e r and grea te r in value t h e Governor m a y wi th t h e advice aforesaid dissolve such U n i o n if t hen free from all debt as aforesaid from and after a day to be named in a proc lamat ion published in l ike
| m a n n e r and t h e U n i o n shall be so dissolved | accordingly. |
| 20. A n y owner who shal l after t h e passing of t h i s Ac t cu t | or |
make a n y dra in t he bo t tom of which a t i ts opening in to any wate r s shall be so low as to injure or endanger any other p roper ty and shall omit to cons t ruc t and fix in a n d to every such dra in a floodgate sufficient w h e n closed to prevent t h e flow from such waters t h r o u g h such dra in of any wa te r over or upon t h e l and of any o ther owner shal l be l iable to a pena l ty not exceeding one h u n d r e d pounds and to a fur ther pena l ty not exceeding twen ty pounds for every week after t h e imposit ion of t h e first pena l ty du r ing which he m a y fail to
| cons t ruc t such | floodgate. |
| 2 1 . | W h e n e v e r any dra in cu t for t he benefit and a t t h e | expense |
of two or more owners b u t not be ing wi th in a U n i o n in t e rms of th i s Ac t shal l in t h e opinion of any such owner r equ i re c leansing or repai r so as to r ender i t effective i t shall be competent to such owner to give wr i t t en not ice to each of t he o ther owners r equ i r ing t h e m to t ake measures for such c leans ing and repai r a n d a t t h e lapse of fourteen days from the service of such not ice i t shall be lawful for t h e owner serving t h e said not ice failing t he agreement of all t he o ther owners or for t h e owners consent ing if more t h a n one consent to enter upon any lands t h r o u g h which such dra in m a y pass a n d to cause such cleansing a n d repairs to be effected a n d the owners decl ining to effect such c leansing a n d repairs or failing to consent to t h e same shall be liable to the i r ra table share of t h e cost of such cleansing and repairs to be de te rmined and recovered in a summary way before any Bench of Magis t ra tes assembled in P e t t y Sessions Provided t h a t t he Bench shall be satisfied t h a t such cleansing and repai r were necessary.
22. N o t h i n g here in shall affect any remedy a t law by which t h e Crown or any person m a y recover compensa t ion in damages for any loss or in jury to any l and stock crops or other p roper ty by reason of any b reach or neglect by t he Crown or any o ther person of any
| provis ion of | th i s | Ac t . |
23 . E v e r y person who shall wilfully in jure or damage any drain
| floodgate | or o ther work connected wi th dra inage u n d e r th i s A c t or who |
| shall wilfully encroach or t respass upon damage or injure any proper ty |
u n d e r colour or p re tence of car ry ing out th i s A c t shall in addi t ion to a n y liabil i ty a t law to compensate for such injury or damage be liable for every such offence to a pena l ty no t exceeding twen ty pounds nor less t h a n one pound .
| 24. Al l penal t ies u n d e r th i s A c t m a y | be recovered | i n | a | sum |
| m a r y m a n n e r | before any two Jus t i ces of t he | Peace . |
25 . I t shall be lawful for any U n i o n unde r th i s A c t or any
| owner of land for t h e purpose of dra in ing land u n d e r th i s Ac t to | m a k e |
| and cu t dra ins t h r o u g h any adjacent | or ne ighbour ing | l and | in to any |
waters Provided t h a t such U n i o n or owner cons t ruc t ing such drain shall be l iable a t law to m a k e full compensat ion for any damage the reby occasioned to t h e propr ie tor of such adjacent or ne ighbour ing land and be subject to all o ther t h e provisions of th i s A c t in respect of drains Prov ided also t h a t t h e a m o u n t of such compensa t ion shall be settled by arb i t ra t ion in m a n n e r hereinafter enacted Provided also t ha t such compensat ion shall be es t imated a t one fifth p a r t above t h e value of t he p roper ty affected a t t h e t ime such loss or damage accrues.