Transferable water allocations - Property right or shimmering mirage?

Environmental and Planning Law Journal

Volumn 13, Issue 3, 1996, Pages 213-224

  Bond, Margaret ^a   Farrier, David ^a  

^a UNIVERSITY OF WOLLONGONG   (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 33747059721     PISSN: 0813300X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (68)

1. S A Clark and I A Renard, "The Riparian Doctrine and Australian Legislation" (1970) 7 MULR 475
2. S A Clark and I A Renard, The Law of Allocation of Water for Private Use (Australian Water Resources Commission, 1972).
3. Environmental Defender's Office, Inland Rivers: Regulatory Strategies for Ecologically Sustainable Management (edited Conference Proceedings, November 1994).
4. L A Feclaff, Water Law in Historical Perspective (1985), Ch 1. 4 60 Vic No 20.
5. See ss I and 2 of the Water Rights Act 1896
6. Beaudesert Shire Council v Smith (1969) 120 CLR 145 at 151
7. Van Son v Forestry Commission (NSW) (1995) 86 LGERA 108 at 120 et seq
8. Lawrence v Kempsey Shire Council (1995) 87 LGERA 49 at 53
9. Z Lipman, "Strengthening Controls on Hazardous Waste: Export and Import of Hazardous Waste Reform Proposals" (1996) 13 EPLJ 62.
10. Halsbury s Laws of England (4th ed), vol 49, pars 388,390, 399
11. Some discussion of riparian rights and rights under licences issued pursuant to the legislative regime can be found in the judgment of Bryson J in Elders Rural Finance Ltdv Westpac Banking Corp (unreported, NSW Supreme Court, 6 November 1989), p 11 et seq.
12. The Water Rights Act 1896 was consolidated in the Water Act 1902 which, in turn, was consolidated with a number of other Acts relating to water and drainage in the Water Act 1912.
13. P Millington, The Water Market-A NSW Case Study, paper presented to the conference on New Environmentalism (NSW Cabinet Office, Sydney, March 1991), p 2.
14. Water Act 1912, ss 20y and 22ba
15. D Farrier, The Environmental Law Handbook: Land Use and Planning in New South Wales (1993), pp 333-334.
16. J J Pigram et al. Transferable Water Entitlements in Australia, Report to the Land and Water Resources Research and Development Corporation (Centre for Water Policy Research, University of New England, 1992), p xi.
17. J J Pigram et al. Transferable Water Entitlements in Australia, Report to the Land and Water Resources Research and Development Corporation (Centre for Water Policy Research, University of New England, 1992), p xi.
18. EDO, Inland Rivers: Regulatory Strategies for Ecologically Sustainable Development (1994), pp 124-125.
19. See Pt 2, Div 4b.
20. NSW Government Gazette, 28 July 1989, p 4759.
21. see E de Wit, "Enforcement Rights of Individual Citizens in Australian Environmental & Planning Legislation" in Defending the Environment, conference papers (1995), p 145.
22. Water (Part 2) Regulations, cl 48.
23. see E de Wit, "Enforcement Rights of Individual Citizens in Australian Environmental & Planning Legislation" in Defending the Environment, conference papers (1995), p 145.
24. Water (Part 2) Regulations, cl 47(2).
25. See Water Act 1912, s 20ai, in relation to water subject to volumetric schemes, and Water (Part 2) Regulations, cl 53(1), where there is no volumetric scheme in place.
26. See also Environmental Planning and Assessment Act 1979, sill.
27. Water (Part 2) Regulations, cl 53(1)(b).
28. See Water Act 1912, ss 20ai(1) and 20ak, in relation to volumetric water allocations schemes. Note that in the case of an authority or group licence the holder may apply for an amended entitlement. In relation to water courses not subject to volumetric water allocation schemes
29. See Water Act 1912, ss 20ai, 20xa, in relation to water subject to volumetric schemes and Water (Part 2) Regulations, cl 50, where there is no volumetric scheme in place.
30. See Water Act 1912, ss 11 and 12.
31. Water Act 1912, s 11(5).
32. Water Act 1912, s 11(2).
33. Water Act 1912, s 11(5).
34. Water Act 1912, ss 11 (2a); 11(5).
35. Legislative Assembly, Hansard, 13 November 1986, p6397.
36. EDO, Inland Rivers: Regulatory Strategies for Ecologically Sustainable Development (1994), p 123.
37. (1995) 88 LGERA 278.
38. The imposition of a series of embargoes by the then Department of Water Resources on the issue of new entitlements (apart from 10 hectare "drought proofing" entitlements) on the section of the Barwon-Darling which was not subject to a volumetric scheme made it necessary for those seeking to increase their access to water to find an entitlement holder willing to transfer his or her rights.
39. Decision of Local Land Board, Administrative District of Wilcannia, 28 February 1995, pp 3, 7-8.
40. Decision of Local Land Board, Administrative District of Wilcannia, 28 February 1995, pp 3, 7-8.
41. Department of Water Resources, A Water Licensing Policy for the Barwon-Darling River Mungindi to Menindee (including Boomi River), July 1991, p 6.
42. Department of Water Resources, A Water Licensing Policy for the Barwon-Darling River Mungindi to Menindee (including Boomi River), July 1991, p 6.
43. Decision of Local Land Board, Administrative District of Wilcannia, 28 February 1995, p 7.
44. Decision of Local Land Board, Administrative District of Wilcannia, 28 February 1995, p 7.
45. Decision of Local Land Board, Administrative District of Wilcannia, 28 February 1995, p 7.
46. Water (Part 2) Regulations, cl 48.
47. Water (Part 2) Regulations, cl 46.
48. (1995) 88 LGERA 278 at 284.
49. (1995) 88 LGERA 278 at 284.
50. (1995) 88 LGERA 278 at 284.
51. Unreported, NSW Supreme Court, 6 November 1989. This case involved a number of complex issues including whether permissions to take water could be the subject of a mortgage separate to the land itself. In the course of determining the case, Bryson J considered whether rights under entitlements to take water were assignable in the absence of any statutory scheme permitting such assignment.
52. (1995) 88 LGERA 278 at 286.
53. Unreported, NSW Supreme Court, 6 November 1989, p 17.
54. Unreported, NSW Supreme Court, 6 November 1989, p 17.
55. Unreported, NSW Supreme Court, 6 November 1989, p 17.
56. Commissioner of Stamps v Telegraph Investment Co Pty Ltd (1995) 133 ALR 130 at 135 per Brennan CJ, Dawson and Toohey JJ; and see at 147 per McHugh and Gummow JJ.
57. See Interpretation Act 1987 (NSW), ss 33 and 34 which also apply to the interpretation of delegated legislation. Note, however, the form of expression of object (d) of the Water (Amendment) Bill 1986 in the explanatory note to that Bill.
58. J J Pigram et al. Transferable Water Entitlements in Australia, Report to the Land and Water Resources Research and Development Corporation (Centre for Water Policy Research, University of New England, 1992), p xi.
59. J J Pigram et al. Transferable Water Entitlements in Australia, Report to the Land and Water Resources Research and Development Corporation (Centre for Water Policy Research, University of New England, 1992), p xi.
60. (1995) 88 LGERA 278 at 288.
61. Water (Part 2) Regulations, cl 47(2).
62. See Water Act, s 17a(2).
63. see E de Wit, "Enforcement Rights of Individual Citizens in Australian Environmental & Planning Legislation" in Defending the Environment, conference papers (1995), p 145.
64. Because of the operation of Water Act 1912, s 5(1), which defines occupier to mean the holder of any tenure of the land where nobody is in actual occupation, the owner does not need to physically occupy the land provided they allow no other person to occupy it.
65. See Leatch v National Parks and Wildlife Service (1993) 81 LGERA 271
66. Greenpeace Australia Ltd v Redbank Power Co Pty Ltd (1995) 86 LGERA 143.
67. Water Administration Act 1986, s 12(1).
68. In September 1995, the New South Wales Minister for Land and Water Conservation announced an environmental flows policy, which included a moratorium on the transfer of unused portions of water entitlements on a number of rivers, including the Barwon-Darling.