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Water Amendment (Flood Mitigation) Act 2014 No. 53 of 2014

TABLE OF PROVISIONSSection Page

PART 1—PRELIMINARY 1

1 Purposes 12 Commencement 2

PART 2—AMENDMENT OF WATER ACT 1989 3

3 Definitions 34 New Part 5AA inserted 3

PART 5AA—LEVEE MAINTENANCE ON CROWN LAND 3

Division 1—Definitions 3

84AAA Definitions 3

Division 2—Authority conferred by permits 5

84AAB What a levee maintenance permit authorises 5

Division 3—Application for permit 5

84AAC Application 584AAD Referral of application to land manager 6

Division 4—Dealing with application for permit 7

84AAE Determination of application 784AAF Matters to be set out in permit 784AAG Conditions of levee maintenance permit 884AAH Period a levee maintenance permit is in effect 8

Division 5—Variation of conditions or revocation of permit 9

Subdivision 1—Variation of conditions on application by permit holder 9

84AAI Application 984AAJ Referral of application to land manager 984AAK Determination of application 10

1

Subdivision 2—Variation of conditions on Minister's initiative 11

84AAL Variation of conditions on Minister's initiative 1184AAM Referral of proposal to land manager in certain

circumstances 12

Subdivision 3—Revocation 13

84AAN Revocation of permit 13

Division 6—Apportionment of application fee 14

84AAO Payment to land manager of portion of application fee 14

5 Control of works and structures 146 Drainage courses 157 Regulations 15

PART 3—AMENDMENT OF OTHER ACTS 16

Division 1—Amendment of Conservation, Forests and Lands Act 1987 16

8 Delegation of powers and functions 16

Division 2—Amendment of Crown Land (Reserves) Act 1978 16

9 New section 21AA inserted 1621AA Offence to construct, remove, alter, or carry out

maintenance on, a levee on reserved land 16

Division 3—Amendment of Forests Act 1958 18

10 New sections 96E and 96F inserted 1896E Certain offences not to apply if acting under and in

accordance with levee maintenance permit 1896F Offence to construct, remove, alter, or carry out

maintenance on, a levee within reserved forest 19

Division 4—Amendment of Land Act 1958 20

11 New section 190A inserted 20190A Offence to construct, remove, alter, or carry out

maintenance on, a levee on certain Crown land 2012 Penalty for depositing rubbish on Crown lands 21

Division 5—Amendment of National Parks Act 1975 22

13 New section 44B inserted 2244B Offence to construct, remove, alter, or carry out

maintenance on, a levee within specified areas 22

Division 6—Amendment of Wildlife Act 1975 23

14 New section 21AAA inserted 2321AAA Offence to construct, remove, alter, or carry out

maintenance on, a levee within a State Wildlife Reserve or Nature Reserve 23

15 Removing sand etc. from State Wildlife Reserve or Nature Reserve 24

PART 4—REPEAL OF AMENDING ACT 25

16 Repeal of amending Act 25═══════════════

ENDNOTES 26

Water Amendment (Flood Mitigation) Act 2014†

No. 53 of 2014

[Assented to 12 August 2014]

The Parliament of Victoria enacts:

PART 1—PRELIMINARY

1 Purposes

The main purposes of this Act are—

(a) to amend the Water Act 1989 to provide for the regulation of the maintenance of certain levees on certain Crown land; and

Victoria

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(b) to amend the following Acts to insert offences relating to the unauthorised construction, removal, alteration or maintenance of levees—

(i) the Crown Land (Reserves) Act 1978;

(ii) the Forests Act 1958;

(iii) the Land Act 1958;

(iv) the National Parks Act 1975;

(v) the Wildlife Act 1975; and

(c) to amend the Conservation, Forests and Lands 1987 to allow for the delegation of certain functions under new Part 5AA of the Water Act 1989.

2 Commencement

(1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

(2) If a provision of this Act does not come into operation before 1 March 2015, it comes into operation on that day.

__________________

s. 2 Section Page

2

PART 2—AMENDMENT OF WATER ACT 1989

3 Definitionss. 3

See:Act No.80/1989.Reprint No. 11as at1 December 2013and amendingAct Nos22/2013, 17/2014 and 28/2014.LawToday:www.legislation.vic.gov.au

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

"levee maintenance permit means a permit issued under section 84AAE;".

4 New Part 5AA inserted

After Part 5 of the Water Act 1989 insert—

"PART 5AA—LEVEE MAINTENANCE ON CROWN LAND

Division 1—Definitions

84AAA Definitions

In this Part—

land manager, in relation to specified Crown land, means—

Part 4—Repeal of Amending Act

Water Amendment (Flood Mitigation) Act 2014No. 53 of 2014

3

(a) if responsibility for the management of the land is given by an Act to a person, that person; or

(b) if responsibility for the management of the land is not given by an Act to a person, the Minister administering the Act under which the land is managed;

levee means a mound or bank (whether or not on a waterway) constructed primarily of earth, stone or gravel, the purpose of which is to obstruct or deflect the flow of water over the surface of land;

maintenance, in relation to a levee, includes reconstruction of a part of the levee;

specified Crown land means land that is—

(a) reserved under the Crown Land (Reserves) Act 1978; or

(b) reserved forest within the meaning of the Forests Act 1958; or

(c) unreserved Crown land under the Land Act 1958; or

(d) described in Schedule Two, Two B, Three or Four to the National Parks Act 1975 other than—

(i) a wilderness zone (within the meaning of that Act); or

(ii) a remote and natural area (within the meaning of that Act); or

s. 4Part 4—Repeal of Amending Act


4

(iii) a designated water supply catchment area (within the meaning of that Act); or

(e) a State Wildlife Reserve or a Nature Reserve within the meaning of the Wildlife Act 1975—

but does not include—

(f) a natural catchment area within the meaning of the Heritage Rivers Act 1992; or

(g) an area proclaimed to be a reference area under the Reference Areas Act 1978.

Division 2—Authority conferred by permits

84AAB What a levee maintenance permit authorises

(1) A levee maintenance permit authorises the holder to—

(a) carry out maintenance on a levee that is located on specified Crown land; and

(b) enter or pass over any specified Crown land for that purpose.

(2) A levee maintenance permit does not authorise the use of machinery or the introduction of soil or other material to the land to carry out the maintenance after the first 12 months of the period the permit is in effect.

Note

It is an offence to construct, remove, alter or carry out maintenance on a levee on specified Crown land other than under and in accordance with a levee maintenance permit or other authority. See—Crown Land (Reserves) Act 1978,



5

Forests Act 1958, Land Act 1958, National Parks Act 1975 and Wildlife Act 1975.

Division 3—Application for permit

84AAC Application

(1) A person may apply to the Minister for a levee maintenance permit.

(2) An application must—

(a) be made in a form and manner approved by the Minister; and

(b) contain any information that is required by the Minister; and

(c) be accompanied by—

(i) any application fee fixed by the Minister; and

(ii) the written consent of any lessee of—

(A) the land on which the levee is located; and

(B) the land over which access is required by the applicant.

84AAD Referral of application to land manager

(1) The Minister must refer a copy of an application under section 84AAC to the land manager.

(2) Within 28 days (or any longer period that the Minister allows) after receiving a copy of the application, the land manager—

(a) must consider the application; and

(b) may—



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(i) advise the Minister that the land manager does not require the permit to be subject to any condition; or

(ii) specify any condition (which must be a reasonable condition) to which the land manager requires the permit to be subject.

(3) If a land manager makes no response to the Minister within 28 days (or any longer period that the Minister allowed) after receipt of a copy of the application, the Minister may proceed to determine the application.

Division 4—Dealing with application for permit

84AAE Determination of application

On receiving an application under section 84AAC, the Minister, subject to this Part, may—

(a) approve the application and issue a levee maintenance permit; or

(b) refuse the application.

84AAF Matters to be set out in permit

A levee maintenance permit must set out the following—

(a) the name and address of the holder;

(b) a description of the specified Crown land on which the levee is located;

(c) a description of the location of the levee;

(d) any condition to which the permit is subject;



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(e) the period the permit is in effect;

(f) any other information that the Minister considers necessary.

84AAG Conditions of levee maintenance permit

(1) A levee maintenance permit is subject to—

(a) any prescribed condition; and

(b) any condition specified by the land manager under section 84AAD(2)(b)(ii); and

(c) any other condition that the Minister thinks fit and specifies in the permit.

(2) Without limiting subsection (1)(c), the Minister may specify a condition about any one or more of the following—

(a) the dimensions that the levee must not exceed;

(b) the maintenance authorised by the permit.

(3) In specifying the dimensions of a levee for the purpose of a condition referred to in subsection (2)(a), the Minister may have regard to—

(a) the past or present condition of the whole or any part of the levee; or

(b) the past or present height or width of any part of the levee.

84AAH Period a levee maintenance permit is in effect



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Unless sooner revoked, a levee maintenance permit remains in effect for the period (not exceeding 5 years) specified in the permit.

Division 5—Variation of conditions or revocation of permit

Subdivision 1—Variation of conditions on application by permit holder

84AAI Application

(1) The holder of a levee maintenance permit may apply to the Minister for the variation or removal of a condition (other than a prescribed condition) to which the permit is subject.

(2) An application must—

(a) be made in a form and manner approved by the Minister; and

(b) contain any information that is required by the Minister; and

(c) be accompanied by—

(i) any application fee fixed by the Minister; and

(ii) the written consent of any lessee of—

(A) the land on which the levee is located; and

(B) the land over which access is required by the applicant who is likely to be affected

s. 4s. 4Part 4—Repeal of Amending Act


9

by the variation or removal of the condition.

84AAJ Referral of application to land manager

(1) The Minister must refer a copy of an application under section 84AAI to the land manager.

(2) Within 28 days (or any longer period that the Minister allows) after receiving a copy of the application, the land manager—

(a) must consider the application; and

(b) may—

(i) advise the Minister that the land manager does not object to the variation or removal of the condition; or

(ii) advise the Minister that the land manager objects to the variation or removal of the condition on the ground specified by the land manager (which must be a reasonable ground); or

(iii) specify any variation (which must be a reasonable variation) to the condition that the land manager requires.

(3) If a land manager makes no response to the Minister within 28 days (or any longer period that the Minister allowed) after receipt of a copy of the application, the Minister may proceed to determine the application.

84AAK Determination of application



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(1) On receiving an application under section 84AAI, the Minister, subject to this Part, may—

(a) approve the application and vary or remove the condition; or

(b) refuse the application.

(2) A variation or removal of a condition takes effect—

(a) on the day on which written notice of it is given to the permit holder; or

(b) on a later day specified in the notice.

Subdivision 2—Variation of conditions on Minister's initiative

84AAL Variation of conditions on Minister's initiative

(1) The Minister, on the Minister's initiative, may—

(a) vary a condition to which a levee maintenance permit is subject; or

(b) remove a condition to which a levee maintenance permit is subject; or

(c) impose a new condition on a levee maintenance permit.

(2) The Minister may only act under subsection (1) after obtaining the written consent of any lessee of—

(a) the land on which the levee is located; or

(b) the land over which access is required by the applicant who is likely to be

s. 4s. 4Part 4—Repeal of Amending Act


11

affected by the variation or removal of the condition or the new condition.

(3) The Minister must give at least 28 days' written notice of the variation or removal of the condition, or the new condition, to the permit holder before it takes effect. However, a variation may take effect earlier if the permit holder agrees.

(4) A notice under subsection (3) must specify the reasons for the variation or

removal of the condition or the new condition.

84AAM Referral of proposal to land manager in certain circumstances

(1) This section applies if—

(a) the Minister proposes to vary or remove a condition to which a levee maintenance permit is subject, or to impose a new condition on a levee maintenance permit, under section 84AAL; and

(b) the Minister is of the opinion that the land manager is likely to be affected by the variation or removal of the condition or the new condition.

(2) The Minister must refer a copy of the permit, together with details of the proposed variation or removal of the condition, or the proposed new condition, to the land manager.

(3) Within 28 days (or any longer period that the Minister allows) after receiving a copy of the permit and details of the proposed variation or removal of the condition, or the proposed new condition, the land manager—



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(a) must consider the proposed variation or removal of the condition or the proposed new condition; and

(b) may—

(i) advise the Minister that the land manager does not object to the variation or removal of the condition or the new condition; or

(ii) advise the Minister that the land manager objects to the variation or removal of the condition, or the new condition, on the ground specified by the land manager (which must be a reasonable ground); or

(iii) specify any variation (which must be a reasonable variation) to the condition that the land manager requires.

(4) If the land manager makes no response to the Minister within 28 days after receipt of the copy of the permit and the details of the proposed variation or removal of the condition, or the new condition, the Minister may proceed to vary or remove the condition or impose the new condition.

Subdivision 3—Revocation

84AAN Revocation of permit

(1) The Minister, by written notice served on the holder of a levee maintenance permit, may revoke the permit.

(2) The Minister may only act under subsection (1)—



13

(a) following a request to do so by the holder of the permit; or

(b) if the Minister is of the opinion that there has been a failure to comply with any term or condition of the permit.

(3) A notice served under subsection (1) must specify the reasons for the revocation.

(4) A revocation takes effect—

(a) on the day on which written notice of the revocation is served on the permit holder; or

(b) on a later day specified in the notice.

Division 6—Apportionment of application fee

84AAO Payment to land manager of portion of application fee

(1) The Minister must pay to a land manager that considers an application in accordance with this Part, a proportion (determined by the Minister) of the application fee paid to the Minister for that application.

(2) The proportion must represent a land manager's reasonable costs in considering an application of that kind.

(3) A land manager must provide to the Minister any information that the Minister requests for the purposes of subsection (2).

__________________".

5 Control of works and structures

After section 208(1) of the Water Act 1989 insert—



14

"(1A) Subsection (1) does not apply to a person who is acting under and in accordance with a levee maintenance permit.".

6 Drainage courses

After section 218(12) of the Water Act 1989 insert—

"(12A) Subsections (11) and (12) do not apply to a person who is acting under and in accordance with a levee maintenance permit.".

7 Regulations

After section 324(1)(t) of the Water Act 1989 insert—

"(ta) prescribing conditions to which levee maintenance permits are subject; and".

__________________



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PART 3—AMENDMENT OF OTHER ACTS

Division 1—Amendment of Conservation, Forests and Lands Act 1987

8 Delegation of powers and functionss. 8

See:Act No.41/1987.Reprint No. 8as at21 July 2011and amendingAct Nos65/2011, 43/2012, 67/2013 and 24/2014.LawToday:www.legislation.vic.gov.au

In section 11(3A) and (3B) of the Conservation, Forests and Lands Act 1987, after "National Parks Act 1975" insert ", Part 5AA of the Water Act 1989".

Division 2—Amendment of Crown Land (Reserves) Act 1978

9 New section 21AA inserted

After section 21 of the Crown Land (Reserves) Act 1978 insert—

"21AA Offence to construct, remove, alter, or carry out maintenance on, a levee on reserved land

See:Act No.9212.Reprint No. 10as at1 July 2011and amendingAct Nos64/2004, 65/2010, 7/2012, 17/2012, 46/2012, 31/2013 and 79/2013.LawToday:www.legislation.vic.gov.au



16

(1) A person must not—

(a) construct, remove or alter a levee on land reserved under this Act; or

(b) carry out maintenance on a levee on land reserved under this Act.

Penalty: Level 8 imprisonment (12 months maximum) or a level 8 fine (120 penalty units maximum) or both.

(2) Subsection (1)(a) and (b) do not apply to a person if the person constructs, removes, alters, or carries out maintenance on, a levee—

(a) in the performance of a function under this Act or the regulations; or

(b) that the person is authorised under this Act or the regulations to construct, remove, alter or carry out maintenance on in the performance of a function under another Act or regulations made under another Act.

(3) Subsection (1)(b) does not apply to a person if the person carries out maintenance on a levee under and in accordance with a levee maintenance permit.

(4) In this section—

levee has the same meaning as in Part 5AA of the Water Act 1989;

levee maintenance permit has the same meaning as in the Water Act 1989;

maintenance has the same meaning as in Part 5AA of the Water Act 1989.".



17

Division 3—Amendment of Forests Act 1958

10 New sections 96E and 96F inserteds. 10

See:Act No.6254.Reprint No. 11as at8 March 2013and amendingAct Nos70/2013 and 73/2013.LawToday:www.legislation.vic.gov.au

After section 96D of the Forests Act 1958 insert—

"96E Certain offences not to apply if acting under and in accordance with levee maintenance permit

(1) Section 96(h) does not apply to a person if the person cuts or digs forest produce without a licence issued under section 52 for the purpose referred to in subsection (1A)(e) or (f) or (1B)(a) or (b) of that section while acting under and in accordance with a levee maintenance permit within the meaning of the Water Act 1989.



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(2) Section 96(j) does not apply to a person in respect of the cutting, splitting or felling of forest produce by that person without a licence issued under section 52 for the purpose referred to in subsection (1A)(e) or (1B)(a) of that section while acting under and in accordance with a levee maintenance permit within the meaning of the Water Act 1989.

(3) Section 96(o) does not apply to a person in respect of the cutting of forest produce by that person if the person cuts forest produce under and in accordance with a levee maintenance permit within the meaning of the Water Act 1989.

96F Offence to construct, remove, alter, or carry out maintenance on, a levee within reserved forest


(a) construct, remove or alter a levee within reserved forest; or

(b) carry out maintenance on a levee within reserved forest.


(2) Subsection (1)(a) and (b) do not apply to a person if the person constructs, removes,



19

alters, or carries out maintenance on, a levee—








Division 4—Amendment of Land Act 1958

11 New section 190A inserteds. 11

See:Act No.6284.Reprint No. 12as at27 April 2012and amendingAct Nos43/2012, 46/2012 and 26/2014.LawToday:www.legislation.vic.gov.au

After section 190 of the Land Act 1958 insert—



20

"190A Offence to construct, remove, alter, or carry out maintenance on, a levee on certain Crown land


(a) construct, remove or alter a levee on Crown land; or

(b) carry out maintenance on a levee on Crown land.







Crown land does not include—

(a) land reserved under the Crown Land (Reserves) Act 1978; or



21

(b) reserved forest within the meaning of the Forests Act 1958; or

(c) a park within the meaning of the National Parks Act 1975 or any land that is described in Schedule Four to that Act; or

(d) a State Wildlife Reserve or a Nature Reserve within the meaning of the Wildlife Act 1975;




12 Penalty for depositing rubbish on Crown lands

At the end of section 191 of the Land Act 1958 insert—

"(2) Subsection (1) does not apply to a person who is acting under and in accordance with a levee maintenance permit within the meaning of the Water Act 1989.".

Division 5—Amendment of National Parks Act 1975

13 New section 44B inserteds. 13



22

See:Act No.8702.Reprint No. 14as at14 November 2012and amendingAct Nos38/1989, 17/2013, 45/2013 and 79/2013.LawToday:www.legislation.vic.gov.au

After section 44A of the National Parks Act 1975 insert—

"44B Offence to construct, remove, alter, or carry out maintenance on, a levee within specified areas


(a) construct, remove or alter a levee within a specified area; or

(b) carry out maintenance on a levee within a specified area.







23





maintenance has the same meaning as in Part 5AA of the Water Act 1989;

specified area means a park or any land that is described in Schedule Four.".

Division 6—Amendment of Wildlife Act 1975

14 New section 21AAA inserteds. 14

See:Act No.8699.Reprint No. 9as at27 April 2012and amendingAct Nos65/2010, 46/2012, 82/2012, 4/2013, 11/2014, 17/2014 and 24/2014.LawToday:www.legislation.vic.gov.au

After section 21 of the Wildlife Act 1975 insert—

"21AAA Offence to construct, remove, alter, or carry out maintenance on, a levee within a State Wildlife Reserve or Nature Reserve




24

(a) construct, remove or alter a levee within a State Wildlife Reserve or a Nature Reserve; or

(b) carry out maintenance on a levee within a State Wildlife Reserve or a Nature Reserve.












25

15 Removing sand etc. from State Wildlife Reserve or Nature Reserve

After section 21(1) of the Wildlife Act 1975 insert—

"(1A) Subsection (1) does not apply to a person if the person is acting under and in accordance with a levee maintenance permit within the meaning of the Water Act 1989.".

__________________



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PART 4—REPEAL OF AMENDING ACT

16 Repeal of amending Act

This Act is repealed on 1 March 2016.Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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ENDNOTES

Endnotes


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† Minister's second reading speech—

Legislative Assembly:

Legislative Council:

The long title for the Bill for this Act was "A Bill for an Act to amend the Water Act 1989, the Conservation, Forests and Lands Act 1987, the Crown Land (Reserves) Act 1978, the Forests Act 1958, the Land Act 1958, the National Parks Act 1975 and the Wildlife Act 1975 and for other purposes."

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