Water Resources (Shire of Gayndah) Regulation 1994 (Qld)

Queensland Subordinate Legislation 1994 No. 208 Water Resources Act 1989 WATER RESOURCES (SHIRE OF GAYNDAH) REGULATION 1994 TABLE OF PROVISIONS Section Page 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2 Approval of Corporation supplying water (s 3.20 of the Act) . . . . . . . . . . . . 2 SCHEDULE . . . . . . . . . . . . . . . . . . . . . . . . . 3 AGREEMENT

s1 2 s2 Water Resources (Shire of Gayndah) No. 208, 1994 ˙ Short title 1. This regulation may be cited as the Water Resources (Shire of Gayndah) Regulation 1994 . ˙ Approval of Corporation supplying water (s 3.20 of the Act) 2. The Corporation may supply water to the Council of the Shire of Gayndah under the agreement set out in the Schedule.

3 Water Resources (Shire of Gayndah) No. 208, 1994 ¡ SCHEDULE AGREEMENT section 2 THIS AGREEMENT is made the FIRST day of NOVEMBER 1993 between the PRIMARY INDUSTRIES CORPORATION a corporation constituted under the Primary Industries Corporation Act 1992 (“the Corporation”) and the COUNCIL OF THE SHIRE OF GAYNDAH a local authority constituted under the Local Government Act 1936 (“the Council”) . RECITALS: A. Under the WaterResourcesAct1989 the Corporation, with the approval of the Governor in Council given by order in council, may supply water to a local authority for any purpose upon terms agreed between the parties as specified in the order in council; B. The Corporation owns and operates Wuruma Dam on the Nogo River at 23.0 kilometres from its junction with the Burnett River and releases water to regulate supply along sections of the Burnett River; C. The Council has requested the Corporation, and the Corporation has agreed subject to the following terms and conditions, to make water available to the Council from Water Resource infrastructures including Wuruma Dam, Mundubbera Weir and Claude Wharton Weir for use in the town of Gayndah; D. By agreement dated 19 May 1978 the former Commissioner of Irrigation and Water Supply agreed to supply, and the Council agreed to take, water for use in the town of Gayndah; E. Under the repealed section 1.3(2)(b) of the WaterResourcesAct1989 and section 17(1)(b) of the PrimaryIndustriesCorporationAct 1992 the Corporation was substituted for the Commissioner of Irrigation and Water Supply in the agreement of 19 May 1978;

4 Water Resources (Shire of Gayndah) No. 208, 1994 SCHEDULE (continued) F. The Corporation and the Council have agreed to amend the agreement dated 19 May 1978 concerning supply of water for use in the town of Gayndah. IT IS AGREED AS FOLLOWS: PERIOD OF AGREEMENT 1. This agreement— (a) commences on 1 July 1993; and (b) unless sooner terminated, expires on 30 June 1996. TERM OF SUPPLY OF WATER 2. The Corporation will supply water to the Council, in accordance with the terms and conditions of this agreement, for the period of this agreement. METHOD OF SUPPLY OF WATER 3.(1) The Council will be responsible for the cost of providing, installing, maintaining and operating, to the satisfaction of the Corporation, works necessary for the taking of water under this agreement ( “the Council’s intake works” ). (2) Subject to subclause (3), the location of the Council’s intake works will be in the bank of the Burnett River at the end of Simon Street, in the town of Gayndah. (3) The Council may change the location of the Council’s intake works with the written approval of the Corporation. QUANTITY OF WATER TO BE SUPPLIED 4.(1) In this agreement, “water year” means the period commencing on 1 July in any calendar year and ending on 30 June in the next calendar year. (2) Before the commencement of each water year, the Council will

5 Water Resources (Shire of Gayndah) No. 208, 1994 SCHEDULE (continued) advise the Corporation in writing of the Council’s— (a) water requirement for that water year; and (b) estimates of its water requirements for the 4 water years following that water year. (3) Subject to subclause (4), the Council may take from the Council’s intake works the quantity of water as it may from time to time reasonably require for supply to and use in the town of Gayndah. (4) Except with the Corporation’s prior written approval, the quantity of water that the Council may take in a water year must not exceed the quantity that is allocated to the Council in respect of that water year, as follows— 1993–1994 . . . . . . . . . . . . 850 megalitres 1994–1995 . . . . . . . . . . . . 900 megalitres 1995–1996 . . . . . . . . . . . . 1000 megalitres. SECURITY OF SUPPLY 5. The Corporation will at all times during the period of this agreement take the necessary action to enable the Council to take a continuous supply of water in accordance with its annual allocation as specified in clause 4. MEASUREMENT OF WATER USE 6.(1) The Council, at its expense, will provide, install and maintain in accurate working condition, measuring devices to record the quantity of water taken from the Council’s intake works. (2) The type and proposed location of each measuring device must be approved in writing by the Corporation before installation. (3) As and when requested in writing by the Corporation, the Council will appoint a competent person, approved in writing by the Corporation, to test the accuracy of the measuring devices. (4) The Corporation may, in writing, require the Council to adjust, repair or replace a measuring device as a result of a test of the measuring device.

6 Water Resources (Shire of Gayndah) No. 208, 1994 SCHEDULE (continued) (5) The Council will be responsible for the cost of— (a) the appointment referred to in subclause (3); and (b) any adjustment, repair or replacement of a measuring device referred to in subclause (4). (6) If a measuring device is— (a) under repair; or (b) not registering the intake of water; or (c) incorrectly registering the intake of water the quantity of water taken by the Council during the period of repair or faulty registering may be calculated by— (d) multiplying the estimated pump discharge by the hours of pumping; or (e) a method agreed upon, in writing, between the parties. (7) The estimated pump discharge referred to in subclause (6) is the quantity of water determined by reference to the particulars of the pump characteristics provided by the manufacturer of the pump and confirmed by work tests and the applicable pumping head. STATEMENT OF WATER USE 7.(1) The Council must give to the Department of Primary Industries at its office specified in clause 15 a statement containing particulars of the reading for each month taken from each measuring device referred to in clause 6. (2) The statement must be given in writing within 7 days after the end of each month. PAYMENT OF WATER CHARGES 8.(1) Subject to clause 11, the Council will pay to the Department of Primary Industries at its office specified in clause 15, during the term of this agreement, the water charges specified in clauses 9 and 10.

7 Water Resources (Shire of Gayndah) No. 208, 1994 SCHEDULE (continued) (2) The Council will pay— (a) the annual water charges for a water year in two equal instalments on or before 31 July and 31 January of that water year; and (b) the charges for water taken in excess of its annual allocation, within 30 days of receipt of an appropriate invoice; and (c) interest on overdue payments, at the rate determined in accordance with Section 10.13(2)(e) of the Water Resources Act1989 , within 30 days of receipt of an appropriate invoice. (3) Despite subclause (2)(a)— (a) the Council will pay the first instalment of the annual water charges for the 1993/1994 water year on or before 31 October 1993; and (b) if the annual water charges are revised, under clause 11, after 31 July in any water year, the amount of the instalment due on or before 31 January of that water year will be adjusted in accordance with the revised charges; and (c) if the annual water charges are revised, under clause 11, after 31 January in any water year, the amount of the instalment due on or before 31 July of the next water year will include a component being an adjustment for the revised annual water charges for the previous water year. ANNUAL WATER CHARGES 9.(1) During the period of this agreement, no charge will be applicable for the first 230 megalitres of water taken in each water year by the Council through the Council’s intake works. (2) The minimum quantity of water that is to be paid for by the Council in any water year is the annual allocation for that water year as specified in clause 4, less 230 megalitres. (3) The following charges will apply to the minimum quantity of water referred to in subclause (2)— (a) for the first 570 megalitres—

8 Water Resources (Shire of Gayndah) No. 208, 1994 SCHEDULE (continued) (i) a capital component of $7.25 per megalitre; and (ii) an operation and maintenance component of $9.60 per megalitre; and (b) for the remainder— (i) a capital component of $71.00 per megalitre; and (ii) an operation and maintenance component of $9.60 per megalitre. (4) The capital component referred to in subclause (3) represents— (a) in paragraph (a), interest and redemption charges for the capital cost of Wuruma Dam; and (b) in paragraph (b), interest and redemption charges for the capital cost of the Water Resource infrastructure in the Upper Burnett project. (5) The operation and maintenance component referred to in subclause (3) represents the operation and maintenance costs of the supply of the water. CHARGE FOR WATER TAKEN IN EXCESS OF ANNUAL ALLOCATION 10. The charge for water taken by the Council in any year in excess of the annual allocation specified in clause 4 will be comprised as follows— (a) a capital component, representing interest and redemption charges for the capital cost of the Water Resource infrastructure in the Upper Burnett project, of $71.00 per megalitre of water taken in excess of the annual allocation; and (b) $14.40 per megalitre for the first 100 megalitres of water taken in excess of the annual allocation; and (c) $19.20 per megalitre of water taken in excess of the 100 megalitres referred to in paragraph (b).

9 Water Resources (Shire of Gayndah) No. 208, 1994 SCHEDULE (continued) REVIEW OF WATER CHARGES 11.(1) The Corporation will review the water charges specified in clauses 9(3)(a)(ii), 9(3)(b)(i), 9(3)(b)(ii) and 10 at intervals of not less than 1 year, with the first review to be made during the water year ending 30 June 1994. (2) At the completion of a review, the Corporation must advise the Council in writing of— (a) its determination of the water charges payable as a result of the review; and (b) the date on which any revised water charges become effective. (3) The Council will pay the water charges as revised under this clause from the date specified in the Corporation’s advice in accordance with subclause (2). WATER QUALITY 12.(1) The Corporation will not be responsible for the quality of water available to the Council. (2) The Corporation, in managing the release of water from the Water Resource infrastructures including Wuruma Dam, Mundubbera Weir and Claude Wharton Weir, will have regard to the continuing need of the Council to be able to take potable water of the best practicable quality. ACTION ON DEFAULT BY COUNCIL 13.(1) If the Council breaches any express or implied provision of this agreement, the Corporation may, without prejudice to any other right, power or remedy that may be available to the Corporation, take the action specified in this clause. (2) The Corporation, by giving 1 calendar month’s written notice to the Council, may require the Council to rectify the breach. (3) The notice must specify the— (a) particulars of the breach; and

10 Water Resources (Shire of Gayndah) No. 208, 1994 SCHEDULE (continued) (b) action required for rectification of the breach; and (c) time by which rectification is to effected. (4) If the Council does not rectify the breach as required by the notice, the Corporation may, by written notice to the Council, terminate this agreement. NON-ACTIONABLE DEFAULT 14.(1) Subject to subclause (2), neither party shall be liable to the other for failure to comply with its obligations under this agreement if the failure is due to— (a) war, whether declared or undeclared, revolution or act of public enemy; (b) riot or civil commotion; (c) strike or lock-out or labour dispute; (d) act of God; (e) drought, flood, storm, tempest or washaway; (f) act of restraint of Government; or (g) happenings beyond the control of either party which— (i) could not reasonably have been foreseen by it; and (ii) against which it could not reasonably have been expected to take effective precautions. (2) If a happening referred to in subclause (1) causes a party to fail to comply with its obligations under this agreement, the party must, upon cessation of the happening and with the least possible delay, take all reasonable steps to resume its obligations under this agreement. DISPUTE RESOLUTION 15.(1) Without prejudice to any other right or entitlement under this agreement or otherwise, if a party to this agreement claims that a dispute has arisen in respect of or in connection with the agreement ( “the dispute” ), the party ( “the first party” ) may give written notice to the other

11 Water Resources (Shire of Gayndah) No. 208, 1994 SCHEDULE (continued) party ( “the second party” )— (a) setting out the details of the dispute; and (b) inviting the second party to participate in an alternative dispute resolution procedure; and (c) designating as the first party’s representative in negotiations concerning the dispute, a person with authority to settle the dispute. (2) Within 7 days after receipt of a notice referred to in subclause (1), the second party must give written notice to the first party advising the first party of its acceptance or refusal of the invitation referred to in subclause (1)(b). (3) If the second party accepts the invitation referred to in subclause (1)(b), the second party must, in its notice given under subclause (2), designate a person with authority to settle the dispute as the second party’s representative in negotiations concerning the dispute. (4) Within 10 days of notice being given by the second party, as required by subclause (2), the designated persons must seek to resolve the dispute. (5) If the dispute is not resolved within the 10 day period referred to in subclause (4), the parties, during the next 7 days, must seek to agree on a process for resolving the whole or part of the dispute by ways other than litigation or arbitration (for example, further negotiations, mediation, conciliation, independent expert determination). (6) If the parties agree to mediation of the dispute or part of the dispute, the mediator must be agreed between the parties or failing such agreement, must be appointed by the Principal Executive Officer of LEADR (Lawyers Engaged in Alternative Dispute Resolution), Level 7, 44 Martin Place, Sydney, New South Wales (Telephone: [phone]; Facsimile: (02) 236–2711) or its successor in accordance with the then current procedures adopted by LEADR for the appointment. (7) The rules governing any alternative dispute resolution technique adopted by the parties must be as recommended by LEADR or as otherwise agreed between the parties. (8) The parties to this agreement acknowledge that the purpose, under

12 Water Resources (Shire of Gayndah) No. 208, 1994 SCHEDULE (continued) this clause, of— (a) any exchange of information or documents; or (b) the making of any offer of settlement is to attempt to settle the dispute. (9) Neither party to this agreement may use any information or document obtained through the dispute resolution process established by this clause for any purpose other than in an attempt to settle the dispute. (10) If the dispute is not resolved by agreement within 45 days of the date upon which the notice under subclause (1) was received by the second party, either party may refer the dispute to arbitration or commence court proceedings. COMMUNICATIONS 16.(1) All written notices, certificates, accounts, statements and other communications required or permitted to be given under this agreement must be either left at or sent by post or facsimile transmission to the office of the other party as follows— (a) Gayndah Shire Council Attention: Shire Clerk— 34 Capper Street GAYNDAH Q 4625 PO Box 49 GAYNDAH Q 4625 Facsimile number: 071 611 934

13 Water Resources (Shire of Gayndah) SCHEDULE (continued) (b) Department of Primary Industries Attention: Manager, Water Resources No. 208, 1994 20 Bouverie Street MUNDUBBERA Q 4626 PO Box 11 MUNDUBBERA Q 4626 Facsimile number: 071 654 800 or other address as a party to this agreement may from time to time nominate in writing. (2) Communications will be deemed to have been given— (a) 7 days after deposit in the mail with postage prepaid; (b) when delivered by hand; or (c) if sent by facsimile transmission, upon an apparently successful transmission being noted by the sender’s facsimile machine. ENTIRE AGREEMENT 17. This agreement— (a) is made subject to the provisions of the WaterResourcesAct1989 ; (b) constitutes the entire agreement between the parties; and (c) may only be altered or amended, with the approval of the Governor in Council given under section 3.20 of the WaterResources Act 1989 , by written agreement between the parties.

14 Water Resources (Shire of Gayndah) No. 208, 1994 SCHEDULE (continued) IN WITNESS the parties to this agreement have executed the agreement on the days and year set out below. SIGNED for and on behalf of the ) ) PRIMARY INDUSTRIES CORPORATION ) ) by PETER JOHN CHARLES BEVIN, ) ) EXECUTIVE DIRECTOR, WATER ) RESOURCES (designation) ) ) this 1ST day of NOVEMBER 1993 ) ) in the presence of: JULIE-ANNE ) MACPHERSON ) THE COMMON SEAL of the COUNCIL OF ) ) THE SHIRE OF GAYNDAH was hereto ) ) affixed in accordance with the Bylaws of the ) ) Council this 28th day of October 1993 ) ) in the presence of: SV Bryant JP (QUAL) 5207 ) Steven Victor Bryant (J.P.) P.J.C. Bevin J. MacPherson (Witness) SR Ping (Chairman) RJ Slatter (Shire Clerk) ENDNOTES 1. Made by the Governor in Council on 23 June 1994. 2. Notified in the Gazette on 24 June 1994. 3. Laid before the Legislative Assembly on . . . 4. The administering agency is the Department of Primary Industries.

15 Water Resources (Shire of Gayndah) SCHEDULE (continued) © State of Queensland 1994 No. 208, 1994