Untitled document

Water Acts (Amendment) Act 1996

Act No. 12/1996

TABLE OF PROVISIONS

Section	Page
PART 1—PRELIMINARY	1

1.	Purpose	1
2.	Commencement	2

PART 2—AMENDMENT OF WATER ACT 3

3.	Definitions	3
4.	Serviced properties	3
5.	Bulk entitlement orders	3
6.	Amendment of section 101(3)	4
7.	New sections 101A and 101B inserted	4
101A. Interests in land	4
101B. Amendment of Register	5
8.	Floodplain management	6
9.	Declaration of floodway	8
10.	Water management schemes	8
11.	Implementation of water management scheme	9
12.	Interference with Authority's property	10

PART 3—AMENDMENT OF WATER INDUSTRY ACT 11

13.	New section 21A inserted	11
21A. Power of Governor in Council to regulate pricing	11
14.	Removal of power for licence to regulate fees and charges	13
15.	Removal of power to prescribe certain fees	14
16.	New section 58 substituted	14
58. Power to enter land	14
17.	Serviced properties	15
18.	Power to enter land	15
19.	New sections 135A and 135B inserted	16
135A. Grant of licences for jetties, etc.	16
135B. MPW may lease waterway	19
20.	Rates	21
21.	Amendment of allocation statements	21
22.	Treasurer may give guarantee	21

i

Section	Page
PART 4—AMENDMENT OF MMBW ACT	22

23.	Receipt of trade waste in an emergency	22
24.	Rates	22
25.	Rates recoverable from mortgagee in possession	22
26.	Power of MWC to make and levy rates for floodplain
management purposes	23

═══════════════

NOTES 24

ii

Victoria

No. 12 of 1996

Water Acts (Amendment) Act 1996†

[Assented to 25 June 1996]

The Parliament of Victoria enacts as follows:

PART 1—PRELIMINARY

1. Purpose

The purpose of this Act is to make miscellaneous
amendments to the Water Act 1989, the Water
Industry Act 1994 and the Melbourne and
Metropolitan Board of Works Act 1958.

Water Acts (Amendment) Act 1996

Act No. 12/1996 s. 2

2. Commencement

(1) This Act (except section 15) comes into operation
on the day on which it receives the Royal Assent.

(2) Subject to sub-section (3), section 15 comes into

operation on a day to be proclaimed.

(3) If section 15 does not come into operation within

including, the day on which this Act receives the

the period of 12 months beginning on, and day after the end of that period.

_______________
Water Acts (Amendment) Act 1996

s. 3 Act No. 12/1996

PART 2—AMENDMENT OF WATER ACT

3. Definitions

In section 3(1) of the Water Act 1989—

(a) after the definition of "flood level" insert— '"floodway area" means an area of land that

is declared by the Minister under

section 205 to be a floodway area;';

(b)

for the definition of "irrigation period" '"irrigation period" means any period fixed

by by-law or (if the period does not newspaper circulating generally in the area concerned, in respect of which an irrigation charge is made;'.

exceed 12 months) fixed by the

4. Serviced properties

(1) In section 3(1) of the Water Act 1989, in the

definition of "serviced property", paragraph (b) is

repealed.

(2) In section 144(2)(a) of the Water Act 1989,

before "served" insert "except in the case of land
within the Authority's waterway management

district;".

5. Bulk entitlement orders

(1) In section 34(2) of the Water Act 1989, after "the

Order" (where secondly occurring) insert
", or a notice stating the place where copies of the
order can be obtained,".

(2) In section 34 of the Water Act 1989, after

sub-section (4) insert—

Water Acts (Amendment) Act 1996

Act No. 12/1996 s. 6

"(5) It is sufficient compliance with the

requirements of sections 42(1)(c), 42(5)(b),
44(1), 47(4)(b), 47C(10)(b)(i) and (ii) and
64C(1)(b)(i) and (ii) for an Order to be
published in the Government Gazette if a
notice is published in the Government
Gazette stating the place where copies of the

Order can be obtained.".

6. Amendment of section 101(3)

In section 101(3) of the Water Act 1989, after "section 98" insert "(whether or not the Authority from which the property is taken over is abolished by the Order)".

7. New sections 101A and 101B inserted

After section 101 of the Water Act 1989 insert—

"101A. Interests in land

(1) Without prejudice to the generality of this Act and despite anything to the contrary in any other Act or law, if, immediately before

the coming into operation of an Order under section 98 (whether made before or after the commencement of section 7 of the Water

Acts (Amendment) Act 1996), an Authority, in relation to property affected by the Order, was the registered proprietor of, or entitled to be registered as the proprietor of, an interest in land under the Transfer of Land Act 1958 or had claimed an interest in land under the Transfer of Land Act 1958 by lodging a caveat under that Act, then on and after that coming into operation—

(a) the body taking over that property by virtue of the Order is to be taken to be the registered proprietor of that interest

Water Acts (Amendment) Act 1996

s. 7	Act No. 12/1996
in land or to be the caveator, as the case requires; and

(b) that body has the same rights and remedies in respect of that interest as the Authority from which that property was taken over had.

(2) The chief executive officer (by whatever

name called) of a body taking over property by virtue of an Order under section 98 must, at the request of the Registrar of Titles or the Registrar-General, give to him or her a
certificate signed by the chief executive
officer certifying that property specified in
the certificate is property that has been taken
over by that body by virtue of an Order
under section 98 with effect from the coming

into operation of that Order.

(3) This section has effect whether or not the

Authority from which the property is taken
over is abolished by the Order under section

98.

101B. Amendment of Register

(1) The Registrar of Titles, on being requested to

do so and on delivery of any relevant
certificate of title or instrument, must make
any amendments in the Register that are
necessary because of the operation of an
Order under section 98.

(2) The Registrar-General, on being requested to

required under Part I of the Property Law

do so and on delivery of any memorial records of enrolment of any Crown grant and on any memorial relating to land that are necessary because of the operation of an Order under section 98.

Water Acts (Amendment) Act 1996

Act No. 12/1996 s. 8

(3) Without limiting sub-section (2), a certificate

given under section 101A(2) in respect of
land not under the operation of the Transfer
of Land Act 1958 may be registered under
Part I of the Property Law Act 1958 by the
delivery of a memorial of it to the
Registrar-General.".

8. Floodplain management

(1) In section 201(1)(b) of the Water Act 1989, for

sub-paragraph (ii) substitute—
"(ii) that the Minister, by Order, declares to have

the functions, or any specified functions, of

an Authority under this Division—".

(2) In section 202 of the Water Act 1989, after

"functions" insert "or such of those functions as
are specified in the Order under section

201(1)(b)(ii), as the case requires".

(3) In section 203(1) of the Water Act 1989, after

"Authority" insert "that has the functions referred
to in section 202(b) and (c)".

(4) In section 205(2)(a) of the Water Act 1989, after

"applies" insert "and that has the functions
referred to in section 202(a), (b) and (c)".

(5) In section 208(1) of the Water Act 1989, for "an

Authority's consent" substitute "the Authority's consent (being an Authority to which this Division applies and that has the function referred to in section 202(d) or (e))".

(6) In section 208(2) of the Water Act 1989, after

"the Authority" (where first occurring) insert
"(being an Authority to which this Division
applies and that has the function referred to in
section 202(d) or (e))".

Water Acts (Amendment) Act 1996

s. 8 Act No. 12/1996

(7) In section 209(1) of the Water Act 1989, after

"Authority" (where first occurring) insert "to
which this Division applies and that has the

function referred to in section 202(d) or (e)".

(8) In section 306 of the Water Act 1989—

(a) before "The" insert "(1)";

(b) in paragraph (a) before "this" insert "subject to sub-section (2),".

(9) In section 306 of the Water Act 1989, at the end

of the section insert—
"(2) If any power, discretion, function, authority

or duty of the Minister as an Authority to
which Division 4 of Part 10 applies is
delegated under this section, the Minister
may also delegate to the delegate the power
of delegation conferred by this section in
relation to the power, discretion, function,
authority or duty so delegated.

(3) A delegate to whom a power of delegation is

delegated under this section may, subject to
the terms of the instrument of delegation,
sub-delegate, by instrument, to any person or
class of persons any power, discretion,
function, authority or duty delegated to the
delegate under this section, other than the
power of sub-delegation.

(4) Sections 42 and 42A of the Interpretation

of Legislation Act 1984 apply in relation to a sub-delegation in the same manner as they apply in relation to a delegation.".

Water Acts (Amendment) Act 1996

Act No. 12/1996 s. 9

9. Declaration of floodway

(1) In section 205(1) of the Water Act 1989, after
"flooding" insert "or to be a floodway area". (2) In section 205(2)(b) of the Water Act 1989, before "on the basis" (where first occurring) insert "in the case of a declaration of an area to be

an area of land liable to flooding,".

(3) In section 205(2) of the Water Act 1989, at the

end of paragraph (b) insert—

"; and

(c) in the case of a declaration of an area to be a floodway area, on the basis of the Authority's best estimate of the area constituting the high hazard area of the floodplain comprising

active flow paths or storage areas or both.".

(4) In section 208(1)(a) of the Water Act 1989, after

"flooding" insert "or declared to be a floodway
area".

(5) In section 209(1)(a) of the Water Act 1989, after "flooding" insert "or a floodway area".

(6) In section 209(1)(b) of the Water Act 1989, after
"flooding" insert "or of the floodway area".
(7) In section 212 of the Water Act 1989, after

"flooding" insert "or to be floodway areas".

10. Water management schemes

(1) In section 215(2)(d) of the Water Act 1989, for "Minister" substitute "committee".

(2) In section 215(3) of the Water Act 1989, for

"Minister" substitute "committee".

(3) In section 215 of the Water Act 1989, after

sub-section (3) insert—

Water Acts (Amendment) Act 1996

s. 11 Act No. 12/1996

"(3A) The committee may submit the scheme to the Minister for his or her acceptance.

(3B) The Minister may—

(a) accept the scheme as submitted by the committee; or

(b) reject the scheme; or

(c) modify the scheme and accept the scheme as so modified.".

(4) In section 215(4) of the Water Act 1989—

(a)

for "After any submissions received have "The Minister";

(b) before paragraph (a) insert— "(aa) that states whether the scheme has been

accepted or rejected;";

(c) in paragraph (a), before "that" insert "if the scheme has been accepted,".

(5) In section 215(5) of the Water Act 1989, for "to make, or not to make, modifications to a scheme" substitute "under sub-section (3B)".

(6) The amendments of section 215 of the Water Act

1989 made by this section do not apply with
respect to a water management scheme in relation
to which the notice required by section 215(2) of
that Act was published before the commencement
of this section.

11. Implementation of water management scheme

(1) In section 216(1)(b) of the Water Act 1989, after

"Authorities" insert "or, with its or their
agreement, the council or councils".

(2) In section 216(2) of the Water Act 1989, after

"Authority" insert "or council".
Water Acts (Amendment) Act 1996

Act No. 12/1996 s. 12

(3) In section 217 of the Water Act 1989, after

"Authority" (where twice occurring) insert "or

council".

12. Interference with Authority's property

(1) In section 288(1) of the Water Act 1989, after

"damage," insert "remove,".

(2) In section 288(3) of the Water Act 1989—

(a) after "damaged," insert "removed,";

(b) after "damage," insert "removal,".

_______________
Water Acts (Amendment) Act 1996

s. 13 Act No. 12/1996

PART 3—AMENDMENT OF WATER INDUSTRY ACT

13. New section 21A inserted

In Division 3 of Part 2 of the Water Industry Act

1994, before section 22 insert—

"21A. Power of Governor in Council to regulate

pricing

(1) The Governor in Council, by Order

published in the Government Gazette, may
regulate, in any manner that the Governor in

Council thinks fit—

(a)	the imposition of fees or charges (including payments under section 27, 28 or 29), or any specified class of fees or charges, by a licensee;
(b)	the imposition of fees or charges for the supply of water under an agreement between Melbourne Water Corporation and a licensee;
(c)	collection, treatment or disposal of sewage under an agreement between

the imposition of fees or charges for the licensee;

(d) the making and levying of any rate by Melbourne Water Corporation under the MMBW Act.

(2) Without limiting sub-section (1), the manner of regulation may include—

(a)	fixing the fee, charge or price or the rate of increase or decrease in the fee, charge or price;
(b)	fixing a maximum fee, charge or price or maximum rate of increase or

Water Acts (Amendment) Act 1996

Act No. 12/1996	s. 13
minimum rate of decrease in the maximum fee, charge or price;

(c)	fixing an average fee, charge or price for specified goods or services or an average rate of increase or decrease in the average fee, charge or price;
(d)	specifying policies or principles to be applied in determining fees, charges or prices;
(e)	specifying an amount determined by reference to a general price index, the cost of supplying the service, a rate of return on assets employed or any other specified factor;
(f)

specifying an amount determined by or other specified factor relevant to the supply of the goods or services;

(g)

fixing a maximum revenue or rate of decrease in the maximum revenue in relation to specified goods or services;

(h) specifying fees and charges that must not be imposed or that must cease to be imposed after a specified date.

(3) An Order under sub-section (1)—

(a)	has effect despite the conditions of any licence or any other provision to the contrary made by or under this or any other Act;
(b)	has effect as from the date specified in the Order as if the fees, charges, prices and other matters to which the Order

applies had been determined by the

Water Acts (Amendment) Act 1996

s. 14	Act No. 12/1996
Office of the Regulator-General under the Office of the Regulator-General Act 1994 except that sections 37 and 38
of that Act do not apply in respect of the Order;

(c) ceases to have effect, in respect of a fee, charge, price or other matter—

(i)  on the date specified in the Order; or

(ii) on the making by the Office of the Regulator-General, on or after a date specified in the Order for this purpose, of a determination relating to that fee, charge, price or other matter in accordance with this Act and the Office of the Regulator-General Act 1994;

(d)

may contain directions regarding the Regulator-General of its powers under the Office of the Regulator-General Act 1994 in relation to the regulated industry.

(4) An Order cannot be made under sub-section (1) in relation to a fee, charge, price or other matter if the Office of the Regulator-General has made a determination under the Office

of the Regulator-General Act 1994 relating
to that fee, charge, price or other matter.".

14.  Removal of power for licence to regulate fees and charges

(1) In section 22 of the Water Industry Act 1994,

sub-sections (3), (4) and (5) are repealed.

(2) The repeal of section 22(3), (4) and (5) of the
Water Industry Act 1994 does not affect the

Water Acts (Amendment) Act 1996

Act No. 12/1996 s. 15

conditions of a licence issued before the

commencement of this section.

15. Removal of power to prescribe certain fees

(1) In section 50(c) of the Water Industry Act 1994,

omit the words and expressions commencing ",

including" and ending "testing of the works".

(2) Section 52(1)(c) of the Water Industry Act 1994

is repealed.

16. New section 58 substituted

For section 58 of the Water Industry Act 1994
substitute—
"58. Power to enter land

(1) An employee of a licensee or an authorised

person may, subject to sub-section (3), enter
any land for the purpose of reading a meter
installed to measure the quantity of water
supplied to the land.

(2) An employee of a licensee or an authorised person may, subject to sub-sections (3), (4) and (5) and after the licensee has given 7

days notice in writing to the occupier, enter

any land for the purpose of—

(a)	carrying out on that land or on any land adjoining that land any works that the licensee is empowered to carry out; or
(b)	inspecting any works, or making any test, to find out whether this Act or the regulations are being complied with.

(3) If the land is used primarily for residential purposes entry under sub-section (1) or (2) may only be made between 7.30 a.m. and

6.00 p.m. unless the occupier consents to the
entry being made at some other time.

Water Acts (Amendment) Act 1996

s. 17

s. 18 Act No. 12/1996

(4) An employee of a licensee or an authorised person need not give the notice required by sub-section (2) to enter any land for the

purpose referred to in sub-section (2)(a)—

(a) if the occupier consents to the entry being made sooner; or

(b) there is an emergency.

(5) An employee of a licensee or an authorised person need not give the notice required by sub-section (2) to enter any land (other than a building or structure occupied as a

residence) for a purpose referred to in sub- section (2)(b) if the licensee has reasonable grounds for believing that this Act or the
regulations are not being complied with by

the occupier.".

17. Serviced properties

In section 64 of the Water Industry Act 1994,
after sub-section (4) insert—

"(5) Despite anything to the contrary in this or

any other Act—

(a)	a property to which a notice under section 69 of the MMBW Act applies must be taken to have been declared under this section to be a serviced property for the purposes of the supply of water supply services; and
(b)	a sewered property for the purposes of Part III of the MMBW Act must be taken to have been declared under this section to be a serviced property for the purposes of the supply of sewerage services.".

18. Power to enter land

Water Acts (Amendment) Act 1996
Act No. 12/1996

In section 82(2) of the Water Industry Act 1994, after "section 58" insert "for the purpose referred to in section 58(2)(a)".

19. New sections 135A and 135B inserted

After section 135 of the Water Industry Act

1994 insert—

"135A. Grant of licences for jetties, etc.

(1) Despite anything to the contrary in the Land Act 1958 or any other Act and without limiting its other powers under this Division, Melbourne Parks and Waterways may grant to an applicant a licence—

(a) in respect of any land (including any Crown land and land forming part of a waterway but excluding any land temporarily or permanently reserved under section 4(1) of the Crown Land (Reserves) Act 1978)—

(i) management and control of

vested in or under the and

(ii) management district of Melbourne

situated within the waterway Division 2 of Part 10 of the Water Act 1989—

for the purposes of a jetty or mooring
or, with the approval of the relevant

Minister, for any other purpose; or

(b) in respect of a vessel using a waterway to which paragraph (a) applies that has been let for hire or chartered for the

Water Acts (Amendment) Act 1996

s. 19	Act No. 12/1996
purposes of recreation, leisure or tourism.

(2) The approval of the relevant Minister may be

given for the purposes of sub-section (1)(a) either generally or in relation to a specified case or class of case.

(3) For the purposes of sub-section (1)(a) the

relevant Minister is—

(a)	in relation to any Crown land or land forming part of a waterway, the Minister administering the Crown Land (Reserves) Act 1978;
(b)	in relation to any other land, the Minister.

(4) An application for a licence must be made in

writing.

(5) A licence shall—

(a)	specify the purpose for which it is granted; and
(b)	be for a term not exceeding 10 years but may be renewed by Melbourne Parks and Waterways; and
(c)

be subject to such covenants, as are specified in it; and

(d) be subject to the payment of a licence fee of such amount as is fixed by Melbourne Parks and Waterways.

(6) A licensee must not transfer or assign their

interest in the licence without the prior
consent in writing of Melbourne Parks and
Waterways.

Water Acts (Amendment) Act 1996

s. 19
s. 19

Act No. 12/1996

(7) If Melbourne Parks and Waterways is

satisfied, after giving a licensee a reasonable
opportunity to be heard, that the licensee

has—

(a)	failed during the term of the licence to use the land or vessel for the purpose for which the licence was granted; or
(b)	used the land or vessel for any purpose other than the purpose for which the licence was granted; or
(c)	failed to comply with any of the terms or conditions of the licence—

it may, by notice published in the is cancelled.

(8) On the declaration under sub-section (7) that a licence is cancelled—

(a)

any interest, right or privilege created by the licence ceases to exist; and

(b)

all money paid under the licence is forfeited.

(9) On or before the expiry or cancellation of a

structure or improvement erected by the
licensee on licensed land making good to the
satisfaction of Melbourne Parks and

licence, the licensee may remove any the land.

(10) Any structure or improvement not removed from land before the expiry or cancellation of a licence or within any further period

allowed by Melbourne Parks and Waterways demolished as it may direct.

is the property of Melbourne Parks and

Water Acts (Amendment) Act 1996

Act No. 12/1996

(11) The costs and expenses incidental to the

removal or demolition of any structure or
improvement in accordance with sub-section
(10) and of making good any injury to land
is a debt due to Melbourne Parks and

Waterways by the former licensee.

135B. MPW may lease waterway

(1) Despite anything to the contrary in the Land

Act 1958 or any other Act and without
limiting its other powers under this Division,
Melbourne Parks and Waterways may, with
the approval of the Minister administering
the Crown Land (Reserves) Act 1978, grant
to an applicant a lease for any purpose of any
land forming part of a waterway placed
under its management and control by an
Order made under section 133(1).

(2) An application for a lease must be made in

writing.

(3) A lease must—

(a)	specify the purpose for which it is granted; and
(b)	be for a term not exceeding 21 years but may be renewed by Melbourne Parks and Waterways; and
(c)	conditions, reservations, restrictions

be subject to such covenants, and

(d) require payment of rent of such amount as is fixed by Melbourne Parks and Waterways payable at such time or times as the lease specifies.

Water Acts (Amendment) Act 1996

Act No. 12/1996 s. 19

(4) A lease may provide for rent review not

more frequently than once in each period of

12 months during the term of the lease.

(5) A lease may contain—

(a)	options for the lessee to renew the lease for a further term or terms provided that the aggregate of the original term and
the further term or terms does not exceed 21 years; and
(b)	provision for the lessee to remain in occupation of the land under the same terms and conditions as existed under the lease, at the discretion of the lessor, for a period not exceeding 3 months from the expiry of the lease.

(6) Melbourne Parks and Waterways may grant

to a lessee a replacement lease in substitution
for their existing lease and, on the grant of a
replacement lease, the lease for which it is
substituted shall be cancelled.

(7) A lessee must not transfer or assign their

interest under the lease or sub-let or
encumber the land without obtaining the
written consent of Melbourne Parks and

Waterways.

(8) If Melbourne Parks and Waterways is

satisfied, after giving a lessee a reasonable opportunity to be heard, that the lessee has failed to comply with any of the covenants or
conditions of the lease, it may, by notice
published in the Government Gazette,
declare that the lease is forfeited.

(9) On the declaration under sub-section (8) that a lease is forfeited—

Water Acts (Amendment) Act 1996

s. 20 Act No. 12/1996

(a)	any interest, right or privilege created by the lease ceases to exist; and
(b)	all money paid under the lease is forfeited.".

20. Rates

In section 140(4) of the Water Industry Act

1994, for "28" substitute "14".

21. Amendment of allocation statements

In section 155 of the Water Industry Act 1994, after sub-section (6) insert—

"(6A) An amendment under sub-section (6) of an allocation statement for which the relevant date is 1 January 1995 may be made with

effect from 1 January 1995 if the Treasurer company licensee.".

and the Minister are satisfied that the
amendment does not adversely affect any
property, rights or liabilities of a person
other than Melbourne Water Corporation,

22. Treasurer may give guarantee

In section 182(1) of the Water Industry Act 1994, after "due satisfaction" insert "of amounts that become payable by a company licensee within the meaning of Part 5 under section 170(1) or".

_______________
Water Acts (Amendment) Act 1996

Act No. 12/1996 s. 23

PART 4—AMENDMENT OF MMBW ACT

23. Receipt of trade waste in an emergency

In section 4 of the Melbourne and Metropolitan

Board of Works Act 1958—

(a) before "Despite" insert "(1)";

(b)	after "any other Act" (where first occurring) insert "but subject to sub-section (2)";
(c)	at the end of the section insert— "(2) This section does not have the effect of

removing any function or power of the waste in an emergency.".

24. Rates

In section 98 of the Melbourne and sub-section (2) insert—

"(2A) The occupier or owner of each tenement declared under section 64 of the Water Industry Act 1994 to be a serviced property

for the purposes of the supply of water supply services must, unless the retail licensee refuses to supply that occupier or
owner with water, be liable to pay the rates and charges for the supply of water within that tenement even if no pipe and
stop-cocks are laid to convey that supply or

no water is used in that tenement.".

25. Rates recoverable from mortgagee in possession

In section 106 of the Melbourne and
Metropolitan Board of Works Act 1958, after
"occupier of" insert ", or mortgagee in possession
of,".

Water Acts (Amendment) Act 1996

s. 26 Act No. 12/1996

26.  Power of MWC to make and levy rates for floodplain management purposes

In section 280(1) of the Melbourne and
Metropolitan Board of Works Act 1958, after
"Part" insert "and of the exercise by the Board of
any functions and powers as a delegate of the
Minister under Division 4 of Part 10 of the Water

Act 1989".

═══════════════
Water Acts (Amendment) Act 1996

Act No. 12/1996 Notes

NOTES

†

Minister's second reading speech—

Legislative Assembly: 16 May 1996

Legislative Council: 5 June 1996

The long title for the Bill for this Act was "to amend the Water Act
1989, the Water Industry Act 1994 and the Melbourne and
Metropolitan Board of Works Act 1958 and for other purposes."