Water Resources (Penrice Exemption) Regulations 1997 (SA)
South Australia
Water Resources (Penrice Exemption) Regulations 1997
under the Water Resources Act 1997
Contents
Part 1—Preliminary
1 Short title
2 Commencement
3 Revocation
4 Interpretation
Part 2—The exemption
5 Extent of the exemption
6 Termination of exemption
7 Suspension of exemption
Part 3—The conditions
Division 1—Conditions
8 Conditions
Division 2—Monitoring
9 Monitoring
Division 3—Annual report
10 Annual report
Division 4—Agreement limiting the taking of water
11 Agreement between the Minister and Penrice
Division 5—Restrictions
12 Restrictions
Part 4—Non-application of section 81(1)
13 Non-application of section 81(1)
Schedule 1—The Dry Creek Prescribed Wells Area
Schedule 2—Transitional provisions
Legislative history
Part 1—Preliminary
1—Short title
These regulations may be cited as the Water Resources (Penrice Exemption) Regulations 1997.
2—Commencement
These regulations come into operation on 2 July 1997.
3—Revocation
The Water Resources (Penrice Exemption) Regulations 1996 are revoked.
4—Interpretation
In these regulations, unless the contrary intention appears—
the Act means the Water Resources Act 1997;
annual report means a report prepared under Part 3 Division 3;
brine means a solution of salt in water;
Chapmans Creek Intake means that part of Chapmans Creek between lines at right angles to the creek through latitude 34°41′30″ longitude 138°27′10″ and latitude 34°41′20″ longitude 138°27′32″;
the conditions means the limitations and conditions to which the exemption is subject under Part 3 and includes the conditions under the revoked regulations;
Dry Creek aquifers means the first, second and third tertiary aquifers beneath the Dry Creek Prescribed Wells Area;
Dry Creek Prescribed Wells Area means the area defined in Schedule 1;
the exemption means the exemption granted to Penrice by these regulations and includes the exemption under the revoked regulations;
Middle Beach Intakes means—
(a)that part of Salt Creek at Middle Beach between lines at right angles to the creek through latitude 34°36′45″ longitude 138°24′45″ and latitude 34°36′36″ longitude 138°25′00″; and
(b)that part of an unnamed creek at Middle Beach between lines at right angles to the creek through latitude 34°36′56″ longitude 138°24′25″ and latitude 34°36′46″ longitude 138°25′04″;
Northern Adelaide Plains aquifers means the first, second and third tertiary aquifers beneath the Northern Adelaide Plains Prescribed Wells Area;
Northern Adelaide Plains Prescribed Wells Area means the Northern Adelaide Plains Prescribed Region declared under section 41 of the Water Resources Act 1976 (see Gazette 13.5.1976 p2459) and continued in force by clause 2 of Schedule 3 of the Water Resources Act 1990 and by clause 2 of Schedule 3 of the Water Resources Act 1997;
Northern Intake means that part of Swan Creek between lines at right angles to the creek through latitude 34°34′23″ longitude 138°21′42″ and latitude 34°34′02″ longitude 138°21′52″;
Penrice means Penrice Soda Products Pty Ltd;
the revoked regulations means the Water Resources (Penrice Exemption) Regulations 1996 revoked by these regulations;
salt means sodium chloride;
T1 means the first tertiary aquifer beneath the Northern Adelaide Plains Prescribed Wells Area or the Dry Creek Prescribed Wells Area depending on the context;
T2 means the second tertiary aquifer beneath the Northern Adelaide Plains Prescribed Wells Area or the Dry Creek Prescribed Wells Area depending on the context;
T3 means the third tertiary aquifer beneath the Northern Adelaide Plains Prescribed Wells Area or the Dry Creek Prescribed Wells Area depending on the context.
Part 2—The exemption
5—Extent of the exemption
Subject to these regulations, Penrice is exempted from the operation of the following provisions of the Act:
section 7(3)
section 7(8)
section 9(1)
section 16
section 72(a)
Part 8 Division 1.
The exemption only applies in relation to water taken from the following watercourses and wells:
(a)Chapmans Creek Intake;
(b)Middle Beach Intakes;
(c)Northern Intake;
(d)wells situated in the Dry Creek Prescribed Wells Area;
(e)wells situated in the Northern Adelaide Plains Prescribed Wells Area that provide access to T3, but not to T1 or T2;
(f)the following wells in the Northern Adelaide Plains Prescribed Wells Area that provide access to T1 or T2 where the water is taken through the meters specified below:
Well No.
Meter No.
662831WW4356,
09;
662831WW4370,
122;
662831WW4371,
109;
662830WW13020,
108;
662831WW14027,
13,
such other wells and meters as are determined by the Minister.
The exemption only applies in relation to water taken for the purpose of producing brine or salt or for a purpose related to the production of brine or salt.
6—Termination of exemption
Subject to this regulation, the Minister may terminate the exemption—
(a)if an agreement that is required by the conditions to be in force is not in force; or
(b)if Penrice is contravening or failing to comply, or has at any time in the past contravened or failed to comply, with any provision of the conditions or of an agreement that is required by the conditions to be in force.
Termination under subregulation (1)(a) must be by at least three months written notice served on Penrice.
Before terminating the exemption under subregulation (1)(b) the Minister must, subject to subregulation (4), serve on Penrice at least three months written notice of his or her intention to terminate the exemption to give Penrice the opportunity to remedy the breach.
Notice is not required under subregulation (3) if—
(a)the breach is a breach of regulation 8(1)(b) (or the corresponding provision of the revoked regulations) (taking excess water in a financial year) or any other breach of a kind that cannot be remedied; or
(b)Penrice has been guilty of a breach of the same kind on another occasion within the previous two years.
Termination under subregulation (1)(b) must be by notice served on Penrice which—
(a)may take effect immediately if notice served on Penrice under subregulation (3) (or the corresponding provision of the revoked regulations) in relation to the breach has expired; or
(b)must be of three months duration if notice is not required under subregulation (3) (or the corresponding provision of the revoked regulations).
A notice terminating the exemption cannot be served under subregulation (5) if—
(a)Penrice has remedied the breach to the satisfaction of the Minister and had not been guilty of a breach of the same kind on another occasion in the previous two years; or
(b)the prescribed period has elapsed since the time at which the Minister first knew, or could reasonably be expected to have first known, of the breach.
Without limiting the generality of the expression "a breach of the same kind", a breach of the conditions or of an agreement that is required by the conditions to be in force will be taken to be of the same kind as an earlier breach if—
(a)in the case of a breach of the conditions—both are breaches of the same paragraph of regulation 8(1) or regulation 7(1) of the revoked regulations or one is a breach of a paragraph of regulations 7(1) of the revoked regulations and the other is a breach of the corresponding paragraph of regulation 8(1);
(b)in the case of a breach of an agreement—both are breaches of the same clause of the agreement.
In this regulation—
the prescribed period is 12 months plus the period of the notice (if any) served on Penrice under subregulation (3) (or the corresponding provision of the revoked regulations) in relation to the breach.
7—Suspension of exemption
Subject to this regulation, the exemption is suspended—
(a)if there is a contravention of, or failure to comply with, any provision of the conditions (excluding the conditions in regulation 8(1)(a) and 8(1)(g)) or an agreement that is required by the conditions to be in force; or
(b)if an agreement that is required by the conditions to be in force is not in force.
A suspension under subregulation (1)(a) commences at the expiration of 14 days after the breach of the conditions or agreement first occurred and continues until—
(a)in the case of a breach that can be remedied—the Minister has served on Penrice a notice stating that Penrice has remedied the breach to the satisfaction of the Minister;
(b)in the case of a breach that cannot be remedied—the Minister has served notice on Penrice terminating the suspension.
A suspension under subregulation (1)(b) commences when the agreement ceases to be in force and continues until the making of a new agreement that satisfies the condition.
Where a breach of the conditions or an agreement has occurred, the Minister may serve notice on Penrice under subregulation (2)(a) or (b) before the period of 14 days referred to in that subregulation has expired and, in that event, the exemption will not be suspended in respect of that breach.
Part 3—The conditions
Division 1—Conditions
8—Conditions
The exemption is subject to the following limitations and conditions:
(a)that an agreement ratified by the Governor under Part 8A of the Mining Act 1971 between Penrice and the Minister administering that Act is in force; and
(b)the total volume of water taken by Penrice from T1 and T2 pursuant to the exemption in any financial year from wells in the Northern Adelaide Plains Prescribed Wells Area must not exceed 1 177 255 kilolitres or such lesser volume resulting from a reduction under subregulation (3); and
(c)Penrice must, in relation to taking water from wells—
(i)comply with the requirements of Part 3 of the Water Resources Regulations 1997 relating to meters as in force from time to time; and
(ii)comply with a notice served on Penrice by the Minister under Part 3 of those regulations or under the corresponding provision of the Water Resources Regulations 1990; and
(iii)permit the Minister to exercise powers under Part 3 of those regulations,
as though Penrice held a licence under Part 5 of the Act and the water taken by Penrice pursuant to the exemption was taken pursuant to the licence; and
(d)if the Minister has declared a levy under Part 8 Division 1 of the Act or Part 4 Division 3A of the Water Resources Act 1990 in respect of wells generally in the Northern Adelaide Plains Prescribed Wells Area or an area that includes but extends beyond the Dry Creek Prescribed Wells Area, Penrice must pay to the Minister the amount determined in accordance with subregulation (6) within one month after notice is served on Penrice by the Minister demanding payment of the amount; and
(e)Penrice must comply with directions served on it by the Minister under Division 2; and
(f)Penrice must within three months after the expiration of the 1996/1997 financial year and after the expiration of each succeeding financial year provide the Minister with a report prepared in accordance with Division 3; and
(g)that an agreement complying with Division 4 between Penrice and the Minister is in force; and
(h)Penrice must comply with a notice (if any) served on Penrice by the Minister under regulation 12(1).
Penrice is not in breach of subregulation (1)(b) (or the corresponding provision of the revoked regulations) if—
(a)it inadvertently exceeds the volume specified in that paragraph by less than 500 kilolitres; and
(b)it serves written notice on the Minister as soon as practicable after becoming aware of the mistake stating the volume of excess water taken.
The volume of water specified in subregulation (1)(b) is reduced in relation to a financial year that follows a year in which Penrice inadvertently exceeds the volume specified in that subregulation by the volume of excess water taken in the previous year.
A meter supplied by the Minister under subregulation (1)(c) (or the corresponding provision of the revoked regulations) remains the property of the Minister unless the cost of supply and installation is paid by Penrice or the Minister transfers property in the meter to Penrice.
The Minister may, on application by Penrice for the extension of the period referred to in subregulation (1)(d) or (1)(f) (or the corresponding provisions of the revoked regulations) made before the expiration of the period, extend it in relation to a particular financial year.
The amount referred to in subregulation (1)(d) is the amount of the levy that Penrice would be liable for in respect of the water taken by Penrice from T1 and T2 by means of wells in the Northern Adelaide Plains Prescribed Wells Area or the Dry Creek Prescribed Wells Area on the assumption that—
(a)the water taken by Penrice had been taken pursuant to a licence under Part 5 of the Act or Part 4 Division 3 of the Water Resources Act 1990; and
(b)the quantity of water taken was within the water allocation of the licence.
The condition referred to in paragraph (g) of subregulation (1) does not apply until the expiration of six months after an agreement of the kind referred to in paragraph (a) of subregulation (1) comes into force (or such longer period as the Minister determines).
Division 2—Monitoring
9—Monitoring
The Minister may serve written directions on Penrice requiring Penrice to undertake investigations (including the taking of measurements and the conducting of tests) and to record information of the kind specified in the directions in relation to—
(a)the quantity and quality of water taken from each well used by Penrice (and from each aquifer in the case of a well that provides access to more than one aquifer); and
(b)the effect that the taking of water by Penrice has on each of the aquifers from which the water is taken; and
(c)whether Penrice has complied with the agreement referred to in Division 4 (or the corresponding provision of the revoked regulations).
The Minister may, by subsequent directions served on Penrice under subregulation (1), vary or revoke previous directions under this regulation.
Before serving directions on Penrice under subregulation (1), the Minister must consult with Penrice and endeavour to reach agreement with Penrice as to the nature and content of the directions.
Division 3—Annual report
10—Annual report
An annual report must be prepared in respect of the 1996/1997 financial year and each succeeding financial year at the direction, on behalf, and at the expense, of Penrice by a person selected by the Minister who has qualifications and experience in hydrology or hydrogeology.
The report must—
(a)state the quantity and quality of the water taken by Penrice during the financial year from each well (and from each aquifer in the case of a well that provides access to more than one aquifer); and
(b)include all information recorded by Penrice under Division 2 or the corresponding provision of the revoked regulations; and
(c)assess the effect that the taking of the water has had on each of the aquifers concerned; and
(d)provide details of the failure of Penrice (if any) to comply with the agreement referred to in Division 4 or the corresponding provision of the revoked regulations during the financial year; and
(e)provide an assessment of the quantity of water that will be taken by Penrice during the succeeding financial year from each well (and from each aquifer in the case of a well that provides access to more than one aquifer).
Penrice must provide the person selected to prepare the report with all the information recorded by Penrice under Division 2 or the corresponding provision of the revoked regulations and all other information available to Penrice that is reasonably required by the person.
If Penrice refuses or fails to provide information required under subregulation (3), the person preparing the report must refuse to complete it.
Before selecting a person to prepare the report, the Minister must consult with Penrice and endeavour to reach agreement with Penrice as to the person to be selected.
Division 4—Agreement limiting the taking of water
11—Agreement between the Minister and Penrice
The Minister and Penrice may enter into a written agreement setting out limitations, restrictions or other requirements in relation to the taking of water to be complied with by Penrice to prevent, or reduce the likelihood of, the occurrence of the following contingencies:
(a)that the rate at which water is taken by Penrice and all other users from the Northern Adelaide Plains aquifers or the Dry Creek aquifers is such that the aquifers, or any one of them, can no longer meet the demand or there is a likelihood that they, or one or more of them, will not be able to meet future demand;
(b)that further reduction of the quantity of water in any of the Northern Adelaide Plains aquifers or the Dry Creek aquifers would be detrimental to the quality of the water in that aquifer.
The Minister and Penrice may from time to time vary the agreement referred to in subregulation (1) by subsequent written agreement.
Division 5—Restrictions
12—Restrictions
If the Minister is satisfied by reference to an annual report or to an assessment made pursuant to subregulation (6) that one or both of the contingencies referred to in regulation 11(1) have occurred, or are likely to occur within the next four years, the Minister may serve notice on Penrice pursuant to subregulation (2).
The notice—
(a)may restrict—
(i)the rate; or
(ii)the times; or
(iii)both the rate and the times,
at which Penrice may take water from any of the Northern Adelaide Plains aquifers or the Dry Creek aquifers; and
(b)may prohibit Penrice from taking water from all or any of the Northern Adelaide Plains aquifers or the Dry Creek aquifers; and
(c)in relation to the taking of water from Northern Adelaide Plains aquifer T1 or T2 or from Dry Creek aquifer T1 or T2 may—
(i)reduce the volume of water that may be taken in any financial year by means of all or any one or more of the wells by which Penrice is entitled to take the water; or
(ii)attach conditions to the taking of the water; or
(iii)reduce the volume of water under subparagraph (i) and attach conditions under subparagraph (ii); and
(d)must specify the date on which it comes into operation being at least ten months after it was served on Penrice or, if the only contingency on which the notice is based is that an aquifer is unlikely to be able to meet future demand, being at least 22 months after it was served on Penrice; and
(e)must not operate for a period extending beyond the fourth anniversary of the date on which it comes into operation.
The Minister may vary or revoke a notice under subregulation (1).
The Minister may only serve notice on Penrice under subregulation (1) if he or she has consulted, and has endeavoured to reach agreement, with Penrice as to the need for the notice and, if the Minister decides that the notice is needed, the terms of the notice.
The Minister may only vary a notice under subregulation (3) if he or she has consulted with Penrice on the terms of the variation and has endeavoured to reach agreement with Penrice on those terms.
If the Minister believes on reasonable grounds that one or both of the contingencies referred to in regulation 11(1) have occurred in the current, or the immediately preceding financial year or are likely to occur before he or she receives the annual report for the current financial year, the Minister may appoint a person who has qualifications and experience in hydrology or hydrogeology to make an assessment as to whether the Minister should serve notice on Penrice under subregulation (1) in relation to that or those contingencies.
Before appointing a person under subregulation (4), the Minister must consult with Penrice and endeavour to reach agreement with Penrice as to the person to be appointed.
An assessment under subregulation (6) must not exceed the scope of a report under Division 3.
The Minister may recover his or her costs relating to the preparation of the assessment from Penrice as a debt.
Part 4—Non-application of section 81(1)
13—Non-application of section 81(1)
Section 81(1) of the Act does not apply to, or in relation to Chapmans Creek Intake, Middle Beach Intakes or Northern Intake.
Schedule 1—The Dry Creek Prescribed Wells Area
Commencing at latitude 34°50′02″ longitude 138°34′47″ then in a straight line to latitude 34°50′07″ longitude 138°34′47″ then in a straight line to latitude 34°50′07″ longitude 138°34′23″ then in a straight line to latitude 34°50′05″ longitude 138°34′23″ then in a straight line to the point of commencement.
Dry Creek prescribed wells area
Chapmans creek intake
Middle beach intake
Northern intake
Schedule 2—Transitional provisions
A notice or directions served, or an application made, under a provision of the revoked regulations will be taken to have been served or made under the corresponding provision of these regulations.
Legislative history
Notes
•For further information relating to the Act and subordinate legislation made under the Act see the Index of South Australian Statutes or of regulations
The Water Resources (Penrice Exemption) Regulations 1997 expired on 1.9.2011: see Subordinate Legislation Act 1978.
Principal regulations
Year No Reference Commencement 1997 167 Gazette 26.6.1997 p3237 2.7.1997: r 2
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