Water Rights Act 1902 (NSW)

Act No. 51, 1902. 395

Water Bights.

Act No. 51, 1902. .

A ll Act to consolidate the enactments relating

to AVater Itiglits. [26//̂ Amiust, 1902.]

T ) E it enacted by the King’s Most Excellent Majesty, by and with •

tlic advice and consent of the Legislative Council and Legislative Assembly of New South Wales in Parliament assembled, and by the authority of the same, as follows :—

y

PAKT I.

Bepeal and interpretation.

1. This Act may bo cited as the “ Water Eights Act, 1 9 0 2 ,” and is divided into Parts, as follows :— tiiU'ami

c Iimmom .

PARjT I.—Bepeal and interpretation—ss. 1-3.

PART I I .—Bights o f the Crown and o f riparian proprietors—

ss. 4-7.

PART I I I .— Works for dams, locks, Sfc.-r-ss. 8, 9.

PART IV.—Licenses—ss. 10-19.

PART V.—Boiocrs o f Minister and Governor—ss. 20, 21.

PART VI.— General penalties and procedure—ss. 22-24.

PART V II.—Miscellaneous provisions—ss. 25, 26.

2. (1) The Act sixtieth Victoria number twenty is hereby Eopca..

repealed.

(2) All proclamations and regulations duly made, and licenses SaTinf; dauso.

duly granted, and any matter or tiling duly done under the authority of the Act hereby repealed and being in force at the time of the passing of this Act shall be deemed to be and to have been made or granted or done under the corresponding provisions of this Act, and as if this Act bad been in force when the same were made, granted, or done I’cspectively.

3. In this Act and in any regulations made thereunder, unless interjirotaiion.

the context or subject-matter otherwise indicates or requires,— go vi<'. No. 62,9. 22.

“ Crown lands ” has the meaning given to that expression in the

Crown Lands Act of 1884 ;

“ drainage ” includes the draining of flood or other waters of rivers

or lakes by means of any work; and “ drainage work”

• includes a work constructed or used for the above purpose;

“ lake ” includes a lagoon, swamp, or other collection of still Avater,

Avbetbcr permanent or temporary, not being AÂ ater contained in an artificial Avork ;

“ land

396   Act No. 51, 1902.

Water Rights.

land district ” means land district proclaimed under the Crown

Lands Acts of 1884 or any Act amending the same ;

local land board ” means the land board for the district in which a work is situated, or if the work be situated in more than one land board district, such land board as the Minister may name;

licensed work ” means a work in respect of which a license is

held under this A ct;

occupier” means person in actual occupation;

prescribed ” means prescribed by this Act, or by any regulations

under this A ct;

river ” includes any stream of water, whether perennial or inter­ mittent, flowing in a natural channel, and any affluent, confluent, branch, or other stream into or from which the river flows;

water supply ” includes a supply for the carrying on of any

industrial operation;

work ” includes any dam, lock, reservoir, weir, flume, race, channel (whether an artificial channel or a natural channel artificially improved), any cutting, tunnel, pipe, sewer, and any machinery and appliances ;

work to which this Act extends ” means ŵ ork connected with any river or lake flowing through or past or situate within the land of two or more occupiers, or with any water flowing in, to, or from, or being in any river or lake flowing or situate as aforesaid, whether such work he for water conservatioji, irrigation, water supply, or drainage.

PART II.

Rights o f the Crown and o f riparian proprietors.

Bights to certain	4.	(1) The right to the use and flow and to the control of the
waters vested in the

Crown.

water in all rivers and lakes which flow through or past or are situate

60 Vic. No. 20, s. 1.

within the land of two or more occupiers, and of the water contained in or conserved by any works to which this Act extends, shall, subject only to the restrictions hereinafter mentioned, vest in the Crown. And in the exercise of that right, the Crown, by its officers and servants, may enter any land and take such measures as may be thought fit or as may be prescribed for the conservation and supply of such water as aforesaid and its more equal distribution and beneficial use and its protection from pollution, and for preventing the unauthorised obstruction of rivers.

Por the purposes of this subsection “ occupier ” includes the

Crown. (2)

Act No. 51. 1902. 397

Water Rights.

(2) The said right sliall be subject to the following rcstric-Ecsirictionof

t i o i l S ■___ Crown’s rights.

(«) it shall not be exercised in contravention of any right conferred on and lawfully exercisable by any person or board by or under the authority of any Act dealing with mining, or of any public or private statute or of any license granted by the Crown;

(Jj) it shall be subject to tlie rights hereinafter mentioned of the

occupiers of land on the banks of rivers or lakes ;

(c) it sliall be subject to the rights of the holders of licenses under this Act.

6 .                The occupier of land on the bank of a river or lake shall uights of riparian

have the right to use the ivatcr then being in the river or lake for I’lopnetors.

domestic purposes and for Avatcring cattle or other stock, or for

gardens not exceeding five acres in extent used in connection with a

dwelling-liouse, and it shall not be necessary for the occupier to apply

for or obtain a license for any Avork used solely in respect of that right.

6 . Where the CroAvn is by its otRcers, servants, or agents in Kights ot Crown in

occupation of a AVOrk to which this Act extends, constructed by the	works.
CroAvn at any time, the CroAvn shall, subject to the provisions of this
Act, have the quiet enjoyment and sole and exclusive use of the said
Avork as against all persons Avhomsoever, and shall be entitled to make
such charges for the supply or use of the Avater conserved thereby as
may be prescribed.

7 . The right of the occupier of any AVork to Avhich this Act Kigtits of occupiers

extends_

C X lC n U S tliis Act eitends.

{ a )

to use the Avork for the purpose of AÂ ater conservation, irrigation, m d . ss. s, e.

or Avater supply, or drainage ; or

[b) to take, use, or dispose of the Avater contained therein, con­

served, or obtained thereby,

shall be subject to the provisions of this Act.

PART II I .

Works fo r dams, locks, î ’c.

8 . (1) The Governor may notify, by proclamation in the Gazette, rroposau for dams,

proi)Osals for dams, locks, Avoirs, channels, or drainage Avorks to be

drainage

constructed by the CroAAm, together Avith an estimate of the cost of the works,

same.

(2) After such notification, the Minister may refer any such iiefcrcnce to land

proposal to tlie land board for tbe land district Avithin Avhich the proposed

works would be, or to a land board for a land district adjacent to the	■
site of the proposed AA’ork; and such land board shall thereupon forward a rc])ort to the Minister describing tlu; land Avhich, in the opinion of the board, should be included in any Avater or drainage district to be

constituted in rtxspect of the said Avork. (3)

898   Act No. 51, 1902.

Water Bights.

Procedure on receipt

of report from land (3) Upon receipt of such report the Minister may, hy

board. notification in the Gazette, declare the land so described to be a district within which water or drainage charges may be levied. If, after such last-mentioned notification, a petition in favour of the proposal of the Minister is presented to the land board signed hy persons—

(ff) who constitute a two-thirds majority of the total number of

those occupying land within the district' and

{h) who occupy an area exceeding two-thirds of the total area

within the district,

the hoard may report to the Minister recommending that the proiiosal he carried out. Thirty days after the receipt of such report to that elfect the Minister may carry out the ivork out of funds legally avail­ able for the purpose unless an appeal to the Land Court affecting the same is pending, in which case all further proceedings shall be stayed until the appeal is decided :

Provided that any such work shall he subject to the provisions of the Public Works Act, 1900. ■

Charges to be	9.	(1) Upon the work being completed the Minister may direct
assessed and levied.

60 Vic. No. 20, 8. 4.	the land board to assess in each and every case the water and drainage charges to be paid, which charges shall not exceed the yearly value to each occupier of the direct benefit accruing to his land from the work :
Provided that the total of such charges shall not exceed six pounds per centum of the cost to the Crown of the construction of such work.
Payment of
contribution.	(2) Every contribution so assessed shall be payable, at the times and in the manner prescribed, into the Consolidated Pevenue Eund.
New assessment.	(3) On the petition of persons liable in the aggregate to pay one-quarter of the total amount of the charges, or at tlic request of the Minister, the land board shall make a fresh assessment of the charges to be paid.

PART IV.

Licenses.

Licenses.	10. Any occupier of land, whereon any work to which this Act extends is constructed or used, or is proposed to bo constructed or used, for the purpose of water conservation, irrigation, water supply, or drainage, may apply to the person and in the form prescribed, for a license to construct and use the said work, and to take, use, and dispose
Hid. s. 7.
of the water contained therein, conserved, or obtained thereby. ’
licenses.
ApplicationB for	11. On application being made for a license under the last section, the Minister shall cause to be advertised, once in the Gazette and once in a public newspaper circulating in the neighbourhood where
Ihid. 8. 8.

the

Act No. 51, 1902. 399

Water Bights.

the land is situate, a notice of the receipt of the application, statin" that on a day therein named, and at a place therein named within the land district in which the land is situate', a public inquiry will he held as to the desirability of "rantiii" the application.

12. (1) Tiic inquiry shall l)c liold hy the local land hoard hy tine I’l-oieiiuic.

direction of the Minister, or hy some person authorised hy the Ministe'r go Viu. Nu. 20, s. s.

in tliat hehalf, and the local land hoard or tlie person so authorised

shall report in writing to the Minister.

(2) All persons whose interests appear to he atfcctcd hy the Peisons intoresi.d

granting of the a])plication shall he permitted to attend at the inquiry,	“I'P'”"'-
and ])(! lu'ard in support of, or in opposition to, the granting of the

a})plication. .

(3) "VVlicre any inquiry is lield under tliis section hy a person Aiipcai.

authorised hy the Minister as aforesaid, the applicant or any person so interested as aforesaid shall have a right of appeal from the rejmrt of such person to the local land hoard. .

13. (1) The report of the person liolding the inquiry hy the rrocecdiiiss uft«

authority of the Minister or of the local land hoard or Land Court on a])pcal shall he puhlishcd in the Gazette witliin the prescribed time after presentation thereof to the Minister, and the Minister shall, after tin; expiration of thirty days from such publication, where the re])ort recommends the issue of a license, issue a license to the applicant in the prescribed form subject to such terms, limitations, and conditions, if any, as may he recommended in such report.

(2) Provided that riovisoos. ■

(a)	no license shall he issued under this section pending any appeal or reference ; and
(h)	a license shall he issued only upon payment of a fee calculated in the manner and according to the scale set forth in the Sclu'-dule to this A ct; and
(c)	before granting a license the Minister may require such altera­ tions to he made in or in connection with the work, or in the plans and specifications of the same, as may he recommended by the said report.

14. If two or more occupiers desire to construct any work to Appiioaiion by two

which this Act extends, they may apply for a license to construct and	o<’'«p'«'‘s-
use the said work in the mcAmer prescribed for a single occupier, and such application will he dealt with as the application of a single occupier.

15. The license, if granted, shall in every case except Class IV, rei-ioG of license,

he granted for a period not exceeding ten years, and shall (subject to	10.
the provisions of this Act with regard to the renewal of licenses, and subject to such limitations and conditions as the ^Minister may think tit to make) he renewed by the Minister from time to time on the

application

400   Act No. 51, 1902.

Water Rights.

application of the person holding the license, on the payment of a fee calculated in the manner and according to the scale set forth in the Schedule to this A c t;

Provided that no renewal shall he for a longer period than ten

years.

Extent of license. 16. Exccpt in cases wliere a single license fee may he paid for

60 Vic. No. 20,8 .1 1 . combined works, as mentioned in the Schedule to this Act, a separate

application for a license may be required in respect of each ivork; and the determination as to what work may he included in each license shall rest with the Minister.

BeneOt of license.

17. A license shall be deemed to be held by and shall operate and enure for the benefit of the lawful occupier for the time being of the land whereon the work is constructed or is proposed to be

Ibid. 8. 13.

constructed. .

Bights of holder of

18. Subject to the provisions of this Act, or the regulations

hereunder, the person holding a license under this Act in respect of

Ibid. 8.14.

shall have absolutely, during his lawful occupation of the work, so far only as the said work is constructed or maintained on the land occupied by him, the quiet enjoyment and the sole and exclusive use of the work as against all other persons whomsoever, including the Crown, and shall be entitled to take, use, and dispose of any water contained therein or conserved thereby.

Alteration of work

19. If, dui’ing the time that a license under this Act is in force work which materially and prejudicially affect the quantity or quality of water flowing in, to, or from, or being in any river or lake, the person who has made the alterations shall be liable to a penalty not exceeding one hundred pounds, and in addition to the imposition of the said penalty, the license may, by notice in the Gazette, be cancelled and annulled :

license	“ iu respcct of a work, alterations have been made in or in connection
Ibid. e. 18.

Prorisocs.	Provided that the holder of any license may during the currency thereof apply for an amended license allowing alterations in the work as originally licensed, and any such application shall be dealt with as hereinafter provided in respect of applications for a license in the first instance:
Provided also that the operations herein referred to shall not apply to any repairs or alterations rendered necessary for maintenance or any sudden or unforseen emergency.

PART

Act No. 51, 1902. 401

Water Rights.

PAllT V.

Powers o f Minister and Governor.

20. ( 1) Eor tlic purposes of this Act the Minister, or any person Power of entry,

authorised hy him, may enter on any land and take levels and make*’'*	8. i7
surveys and marks, and lix pegs and stakes, and inspect any works.

(2) Any person who removes, injures, or interferes with any Penalty,

marks made, or pegs or stakes fixed as aforesaid, shall be liable to a vm. s . 17 (n).

penalty not exceeding fifty pounds, or to imprisonment for a term not

exceeding three months.

21. (1) The Governor may make regulations prescrihing the Resuiations.

forms of licenses and of renewals of the same, and for carrying out the	20.
provisions of this A ct; and may, in such regulations, impose any penalty not exceeding fifty pounds for each hreach of the same, or whore the breach is a continuing one, not exceeding five pounds for every day during which the brcxich continues.

(2) A copy of all such regulations shall he laid before the To be laid before the

Legislative Council and Legislative Assembly without delay.

PART VI.

General penalties and procedure.

22. Any person who maliciously cuts, hreaks or destroys, or injuries to works,

damages with intent to destroy or render less useful any licensed work md- s. 10.

or any work to which this Act extends constructed hy the Crown

shall be liabh; on indictment to imprisonment, with or without hard	.
labour, for a term not exceeding five years.

23. Any person who obstructs or hinders any person while obstructing persone

performing any duty which he is authorised by this Aet, or hy any J,”.

regulation made thereunder, to perform, shall be liable to a penalty not md. s. 17 (n).

exceeding fifty pounds, or to imprisonment for a term not exceeding

three months.

24. Pecs and charges payable under, and penalties imposed by Recovery of fees,

this Act, or any regulations made thereunder, may be recovered before, pc!̂ ,Xcŝ ' and charges in respect of offences under tliis Act (not being offences uid. a. ‘21. made punishable on indictment) may be heard and determined hy a

jiolice or stipendiary magistrate, or any two justices of the peace in

jictty sessions. '

ILUiT

402   Act No. 51, 1902.

Water Rights.

PAET V II.

Miscellaneous 'provisions. '

Appeal to Land 25. Any I’cport, recommeiidation, or decision, of a land board

.ippeai Court. under tliis Act shall be subject to an appeal or reference to the Land

60 Vie. No. 20, s. 15. Coui’t ill tlic manner proscribed by tbe Crown Lands Act of

,	1881, or any Act amending the same, or any regulations made tliere-
under. Tbe decision of the said Court shall be final.

Fees and ciiargcs 26. All fccs and cliargcs payable under this Act shall be paid

lU d . s. 16. iuto the Consolidated Revenue Lund.

SCHEDULE.

F o b the purpose of fixing scales of fees, works shall be divided by the Minister into

the following classes ;—

Class I consists of the following works in or connected with rivers, which, in the opinion of the Minister, flow in the neighbourhood of the works six months or longer in the year, on an average being taken of the ten years immediately preceding the making of the application :—

(o) Dams and weirs for supplying water by gravitation, through natural or artificial channels, for irrigation or other purposes.

(J) Artificial channels or natural channels artificially improved through which, without the aid of a dam or w'eir, water is or may be supplied by gravitation, for irrigation or other purposes.

Glass I I consists of the following works in or connected with rivers, which, in in the opinion of the Minister, flow in the neighbourhood of the works less than six months in the year, on an average being taken of the ten years immediately preceding the making of the application:—

(o) Dams and weirs for supplying water by gravitation through natural or artificial channels for irrigation or other purposes.

(6) Artificial channels or natural channels artificially improved through which, without the aid of a dam or weir, water is or may be supplied by gravitation for irrigation or other purposes.

Class I I I .—Pumping machinery and other water-lifting appliances exclusive of

those where the motive power employed does not exceed one-horse power.

Class IV .—Dams and weirs for storing water and not included in Class 1 or

Class II.

Class V.—^Flood-gates for drainage purposes ou the banks of rivers or lakes, and artificial channels or natural channels artificially improved emptying or draining into a river or lake.

Fees fo r granting or renewing licenses.

The following license fees payable on the granting or renewing of licenses will

in each case cover the period for which the license is granted or renewed.

Class I.—The license fee to be paid in respect of a work included in this class shall be calculated as follows :—The Jlinister, or some person authorised by him in that behalf shall determine the amount of water per minute which can be supplied to the licensee by the work, and the fee payable is hereby fixed at the rate of two pounds for every seven hundred and fifty gallons, or portion of seven hundred and fifty gallons of w'ater per minute so determined as aforesaid up to and including thirty-seven thousand five hundred gallons per minute, and for water which can be supplied as aforesaid above that amount, at the rate of four pounds for every three thousand seven hundred and fifty gallons or portion thereof per minute.

Class

Act No. 52, 1902.	403
JP?nnce A lfred Hospital.

Clans IT .—The license fee to bo paid in respect of a work included in this class shall be calculated as follows :—The amount of water per minute which can be supplied by the work shall be determined in the same way as in the case of works included iu Class I, and the fee payable is hereby fixed at the rate of two pounds for every one thousand live hundred gallons or portion of one thousand fi\e hundred gallons of water per minute so determined as aforesaid U |) to and including thirty-seven thousand five hundred gallons per minute, and for water which can be supplied above that amount as aforesaid, at the rate of two jjounds for every three thousand seven hundred and fifty gallons or ])ortion thereof ])er minute,

Glass I I I .—The license fee to bo paid in respect of a work included in this class

shall be as follows :—•

(a') Where the motive power employed or to bo employed does not exceed one-

horse power no charge for a license shall be made.

(4) AV'hero the pumping machinery or other water-lifting appliance can, in the opinion of the Minister, be used to obtain water from a river or lake for irrigation or other purposes for a period of at least six months annually, with­ out the aid of a dam or weir, the license fee shall bo the same as in Class I.

(c)	Whore the pumping machinery or other water-lifting appliance can, in the opinion of the Minister, be used to obtain water from a river or lake for irrigation nr other purposes for a period of less than six months annuallv, without the aid of a dam or weir, the license fee shall be half that payable under the last preceding paragraph.
(J)	AV̂ here, with the aid of a dam or weir, the pumping machinery or other water­ lifting appliance will, in the opinion of the Minister, deliver water for irrigation or other purposes during at least six months annually, the license foe for the combined works shall be a mean between the fee payable under Class I and that payable under Class II.
('0	AChere, with the aid of a dam or weir, the pumping machinery or other water­lifting appliance uill, in the o])in:on of the Minister, deliver w ater for irrigation

or other purposes for a period of less than six months annually, the license fee for the combined works shall bo half that payable under the last preceding paragraph.

Class I V .—The license fee for a work included in this class shall bo one pound.

Class V.—The license fee for a work included iu this class shall be one pound.