Land and Environment Court

Water overview 

 

See also:

This part of the Court’s website is designed to provide information to court users, legal practitioners, experts, students and the general public on water and the law.

This page is intended to act as a guide to the Court’s approach to water issues, however it does not constitute legal advice or offer any guarantee as to how a particular dispute will be decided by the Court.

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Issues about water

Issues about water arise in a variety of civil and criminal proceedings in the Court.

Civil matters

Civil matters which the Court has jurisdiction to hear and make determinations on include :

  • under the Fisheries Management Act 1994, actions to remedy or restrain breaches of the Act, including the prohibitions on damaging the habitats of threatened fish or marine vegetation species, populations or ecological communities; appeals over compensation given for cancelled shares in fisheries; appeals concerning decisions relating to dredging of land submerged by water; and appeals against decisions of the Director-General relating to stop work orders made in relation to dredging, or harm to mangroves or other marine vegetation, that causes harm to fish habitat or blockage of fish passage
  • under the Mining Act 1992, disputes arising between the holder of a mining authority or a mineral claim and a landholder concerning the landholder’s right of access to water in any stream, lagoon or swamp on, or adjacent to, the land for stock watering or water drainage purposes
  • under the National Parks and Wildlife Act 1974, applications for orders to restrain or remedy breaches of the Act, including the prohibition on the removal of water from reserved land without authorisation other than for personal use
  • under the Protection of the Environment Operations Act 1997, actions to remedy or restrain breaches of the Act, including prohibitions on water pollution and causing harm to waters through leaks, spillages, escapes and disposal of waste to waters
  • under the Swimming Pools Act 1992, appeals relating to the grant of a certificate of compliance and exemptions for swimming pools from barrier requirements
  • under the Water Management Act 2000, actions to remedy or restrain breaches of the Act, including the recovery of a monetary penalty from an irrigation corporation for the continued contravention of an operating licence following the issue of a letter of reprimand or notice requiring rectification of the contravention; appeals relating to the granting of a water access licence or approval; appeals against a water supply authority’s failure or refusal to grant a certificate of compliance for development; and claims for compensation for damage sustained by any person as a result of a private irrigation board’s exercise of its power to carry out surveys on lands outside its private irrigation district or where a private irrigation board exercises its powers to construct or take over any water supply works.

Additionally, the Court has jurisdiction to hear and dispose of proceedings to enforce any right, obligation or duty conferred or imposed by a planning or environmental law; review or command the exercise of a function conferred or imposed by a planning or environmental law; and make declarations in relation to any right, obligation or duty or the exercise of any function.

This jurisdiction includes environmental and planning laws relating to water, including the Acts referred to earlier, as well as the Coastal Protection Act 1979, provisions of which regulate development in coastal waters.

Criminal matters

Criminal matters which the Court has jurisdiction to hear and make determinations on include:

  • under the Fisheries Management Act 1994, carrying out any activity in contravention of an aquatic reserve notification prohibiting the taking of fish or any other specified activity in the aquatic reserve; possessing any animal, plant, rock, sand or other thing that has been taken in contravention of an aquatic reserve notification, harming threatened species, populations or ecological communities; buying, selling or possessing fish or marine vegetation of a threatened species; damaging critical habitat or the habitat of a threatened species, population or ecological community; interfering with fish of a threatened species (including harassing, marking or chasing such fish); and breaching a ministerial order in relation to permitting harm to a threatened species, population or ecological community or the habitat of a threatened species, population or ecological community;
  • under the Marine Estate Management Act 2014, charges for the offences of contravening a provision of the management regulations made under the Act; carrying out an activity in contravention of a marine park closure; possessing any animal, plant, rock, sand or other thing taken in contravention of a marine park closure; and failing to comply with a notice to remove a sunken or wrecked vessel, abandoned property or anything unlawfully erected or placed in a marine park. A marine park can include sea waters subject to tidal influence, land within such waters or land covered by such waters;
  • under the Marine Pollution Act 2012, charges for the offences of discharging oil, oily mixture, liquid substance or mixture containing liquid substance from a ship into State waters; not retaining oil residues on board a ship in State waters; failing to notify the relevant Minister if there is a discharge or a probable discharge of oil, oily mixture, liquid substance or mixture containing liquid substance from a ship into State waters; failing to carry and retain oil record books or, for trading ships on intra-state voyages, cargo record books; being without adequate insurance against damage caused by the discharge of oil or oily mixture, or being without evidence of that insurance; transferring oil, oily mixture, liquid substances or mixture containing liquid substance to or from a ship between sunset and sunrise in State waters;
  • under the Protection of the Environment Operations Act 1997, charges for the offence of polluting water and causing harm to water through leaks, spillages, escapes and disposing of waste to water;
  • under the Water NSW Act 2014, charges for the offences of failing to comply with a catchment correction or protection notice issued to, or for failing to pay a fee imposed on, a person who has, or is likely to have, caused damage to, or detrimentally affected, the quality of any water; and for unlawfully taking, using or diverting water or altering the index of a water meter and for discharging any substance into catchment infrastructure works without the agreement of Water NSW;
  • under the Sydney Water Act 1994, charges for offences of wrongfully taking, using or diverting any water available for supply by the Sydney Water Corporation; altering the index of a meter or preventing a meter from registering the quantity of water supplied by the Corporation; discharging any substance into a work owned by the Corporation without authorisation; and carrying out work for water supply, sewerage or stormwater drainage intended for direct or indirect connection with the pipes, sewers or drains of the Corporation without authorisation;
  • under the Water Management Act 2000, taking water from a water source without, or otherwise than authorised by, an access licence or in a manner contravening the conditions of an access licence; taking water from public or private water supply works; taking water from a water source otherwise than by means of a nominated water supply work for that water source; constructing a water supply work, drainage work or flood work, carrying out aquifer interference activity, or using water without, or otherwise than as authorised by, an approval; failing to install or maintain metering equipment or keep metering records; taking water when metering equipment is not working; tampering with metering equipment; carrying out unauthorised activity that affects the quantity or flow of water in a water source; fraudulently obtaining the issue of an access licence certificate, a recording in the Access Register or any alteration of any instrument issued by the Minister under the Act; fraudulently using an approved form issued by the Minister; harming an aquifer or waterfront land; bore drilling without a licence; and destroying, damaging or interfering with, or depositing any substance into, any work owned by or under the control and management of the Minister, the Ministerial Corporation, a water supply authority, an irrigation corporation, a private irrigation board, a private drainage board or a private water trust.

Other information

NSW

Office of Environment and Heritage: Water

Office of Water:

Commonwealth

Department of Environment :

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