New South Wales: Sydney Water Act 1994 (NSW)

Sydney Water Act 1994 No 88 An Act to establish a State owned corporation in relation to the supply of water, the provision of sewerage and stormwater drainage systems and the disposal of waste water in Sydney and other regions and certain other matters; to provide for the transfer of assets, rights and liabilities of the Water Board; to amend the State Owned Corporations Act 1989; to amend the Government Pricing Tribunal Act 1992 in relation to the fixing of maximum prices for government monopoly services; to amend certain other Acts; to repeal the Water Board Act 1987; and for other purposes. Part 1 Preliminary 1 Name of Act This Act may be cited as the Sydney Water Act 1994. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Definitions (1) Words and expressions used in this Act have the same meanings as they have in the State Owned Corporations Act 1989. (2) In this Act— area of operations means the area of operations referred to in Part 4. availability charge means a charge of a kind referred to in section 64. business undertaking means all assets, rights and liabilities of Sydney Water Corporation Limited, but does not include any excluded undertaking. contract charge means any fee or charge payable under a customer contract. controlled area means an area of land declared by an order in force under section 88 to be a controlled area. Corporation means Sydney Water Corporation. customer contract means a contract of a kind referred to in section 55 (1). excluded undertaking means any assets, rights or liabilities of Sydney Water Corporation Limited that the Minister has directed to be excluded under section 8. exercise of a function includes the performance of a duty. function includes a power, authority or duty. instrument means an instrument (other than this Act) that creates, modifies or extinguishes rights or liabilities (or would do so if lodged, filed or registered in accordance with any law), and includes any judgment, order or process of a court. lease includes a licence or permit. meter includes any measuring device. Ministerial Holding Corporation means the Ministerial Holding Corporation constituted by section 37B of the State Owned Corporations Act 1989. operating licence means an operating licence granted under section 12 or any renewal of it. operational audit means an operational audit of the Corporation that is required to be prepared under the operating licence. owner, in relation to land, includes every person who jointly or severally at law or in equity— (a) is entitled to the land for an estate of freehold in possession, or (b) is a person to whom the Crown has contracted to sell the land under the Crown Land Management Act 2016 or any other Act relating to alienation of land of the Crown, or (c) is entitled to receive, or receives, or if the land were let to a tenant would receive, the rents and profits of the land, whether as beneficial owner, trustee, mortgagee in possession or otherwise, and, in relation to land of the Crown, means the Crown, but does not include a person who, or a class of persons that, is declared by the regulations not to be within this definition, either generally or in a particular case or class of cases. public reserve has the same meaning as it has in the Local Government Act 1993. public road means— (a) any road that is opened or dedicated as a public road, whether under the Roads Act 1993 or any other Act or law, or (b) any road that is declared to be a public road for the purposes of the Roads Act 1993. statutory body means a corporation that is incorporated by or under an Act, but does not include— (a) a company within the meaning of the Corporations Act 2001 of the Commonwealth, or (a1) a co-operative within the meaning of the Co-operatives National Law (NSW), or (b) a society within the meaning of the Friendly Societies Act 1989, or (b1) a society registered under the Financial Institutions (NSW) Code or the Co-operative Housing and Starr-Bowkett Societies Act 1998, or (c) an association incorporated under the Associations Incorporation Act 2009, or (d) a body prescribed by the regulations as not being a statutory body for the purposes of this definition. storages means dam walls, pumps and other works used for or with respect to the extraction, and storage, of— (a) water in rivers and lakes, and (b) water occurring naturally on the surface of the ground, and (c) sub-surface waters. stormwater drainage area charge means a charge of a kind referred to in section 65. stormwater drainage channel means any artificial channel by which surface water is carried off. Tribunal means the Independent Pricing and Regulatory Tribunal established under the Independent Pricing and Regulatory Tribunal Act 1992. Water Administration Ministerial Corporation means the Water Administration Ministerial Corporation constituted by the Water Management Act 2000. Water Board means the Water Board constituted under the Water Board Act 1987. works means— (a) storages, water mains, sewer mains, water and sewage treatment plants, waste water treatment plants, or stormwater drainage channels, or (b) monitoring devices in, under, over or near— (i) any works referred to in paragraph (a), or (ii) any rivers or oceans, or (c) any works ancillary or antecedent to any works referred to in paragraph (a) or (b). 3A (Repealed) Part 2 Sydney Water Corporation 4 Establishment of Corporation as a statutory SOC (1) There is constituted by this Act a corporation with the corporate name of the Sydney Water Corporation. (2) The State Owned Corporations Act 1989 is amended by inserting in Schedule 5, in alphabetical order, the words "Sydney Water Corporation". 5 Functions of Corporation (1) The Corporation has the functions conferred or imposed on it by or under this or any other Act. (2) The principal functions of the Corporation are those that are referred to in section 12 and that are the subject of one or more operating licences. (3) Subject to the terms of any operating licence, the Corporation may— (a) provide facilities or services that are necessary, ancillary or incidental to its principal functions, and (b) conduct any business or activity (whether or not related to its principal functions) that it considers will further its objectives. (4) This section does not limit the functions of the Corporation apart from this section, but is subject to the provisions of this Act, the State Owned Corporations Act 1989 and any other Act or law. 5A Board of Corporation (1) The board of the Corporation is to consist of the following— (a) a chairperson, appointed by the voting shareholders of the Corporation, (b) 9 directors appointed by the voting shareholders, who are to have appropriate expertise, to the intent that the board includes directors with separate expertise in at least the following areas— (i) business management, (ii) protection of the environment, (iii) public health. (2) The Minister is to advertise publicly for nominations for selection for the board. (3) Subsection (1) has effect despite the provisions of section 20J (2), (3) and (4) of, and clauses 2 (1) and 4 of Schedule 8 to, the State Owned Corporations Act 1989. 6 Role of certain Ministers (1) The Premier may not nominate— (a) the portfolio Minister of the Corporation, or (b) a Minister administering the Environmental Planning and Assessment Act 1979, the Water Management Act 2000, the Protection of the Environment Administration Act 1991 or the Public Health Act 2010, as a voting shareholder of the Corporation. (2) However, the portfolio Minister of the Corporation is authorised to attend meetings of the shareholders of the Corporation. (3) If a Minister nominated by the Premier as a voting shareholder of the Corporation becomes the portfolio Minister of the Corporation or the Minister who is responsible for the administration of any of the Acts referred to in subsection (1) (b), the Premier must, as soon as practicable, revoke the nomination of the Minister as a voting shareholder and nominate another Minister in the Minister's place. (4) The portfolio Minister is to answer all questions directed to the Minister in Parliament in relation to the administration of this Act. Part 3 Transfer of assets, rights and liabilities 7 Direction to transfer business undertaking (1) The Minister may, by order in writing, direct that the business undertaking of Sydney Water Corporation Limited be transferred to the Corporation, in exchange for the issue of shares or on any other basis. (2) The transfer of assets, rights and liabilities under this section is to take place at a value or values specified in the order. (3) On the date specified in the order, the following provisions have effect (subject to the order)— (a) the assets of Sydney Water Corporation Limited comprised in its business undertaking vest in the Corporation by virtue of this section and without the need for any conveyance, transfer, assignment or assurance, (b) the rights and liabilities of Sydney Water Corporation Limited comprised in its business undertaking become by virtue of this section the rights and liabilities of the Corporation, (c) all proceedings relating to the business undertaking commenced before the transfer by or against Sydney Water Corporation Limited or a predecessor of Sydney Water Corporation Limited and pending immediately before the transfer are taken to be proceedings pending by or against the Corporation, (d) any act, matter or thing done or omitted to be done in relation to the business undertaking before the transfer by, to or in respect of Sydney Water Corporation Limited is (to the extent that that act, matter or thing has any force or effect) taken to have been done or omitted by, to or in respect of the Corporation, (e) a reference in any Act, in any instrument made under any Act or in any document of any kind to Sydney Water Corporation Limited or a predecessor of Sydney Water Corporation Limited is, subject to regulations under clause 1 (1) of Schedule 9, to be read as, or as including, a reference to the Corporation. (4) The operation of this section is not to be regarded— (a) as a breach of contract or confidence or otherwise as a civil wrong, or (b) as a breach of any contractual provision prohibiting, restricting or regulating the assignment or transfer of assets, rights or liabilities, or (c) as giving rise to any remedy by a party to an instrument, or as causing or permitting the termination of any instrument, because of a change in the beneficial or legal ownership of any asset, right or liability. (5) The operation of this section is not to be regarded as an event of default under any contract or other instrument. (6) No attornment to the Corporation by a lessee from Sydney Water Corporation Limited is required. (7) Assets, rights or liabilities may not be transferred under this section to the Corporation unless the Corporation is a State owned corporation. 8 Excluded undertakings (1) The Minister may direct, by order in writing, that such assets, rights or liabilities of Sydney Water Corporation Limited as are specified or referred to in the order be excluded from Sydney Water Corporation Limited's business undertaking. (2) On the date specified in the order, the excluded undertaking concerned is transferred to the Ministerial Holding Corporation or such other person on behalf of the Crown as is so specified. (3) The functions of the Ministerial Holding Corporation include the following— (a) to hold and dispose of assets, rights and liabilities transferred to it under this Act, (b) to carry on any activities or business that relate to the assets, rights and liabilities transferred to it or that are incidental or ancillary to the assets, rights and liabilities transferred to it, including demanding, collecting and receiving charges, levies, rates and fees. (4) Section 7 applies to the transfer of the excluded undertaking under this section in the same way as it applies to the transfer of Sydney Water Corporation Limited's business undertaking to the Corporation. (5) Different parts of any excluded undertaking may be transferred under subsection (2) to different persons. (6) The Ministerial Holding Corporation or other person is authorised to dispose of any excluded undertaking transferred under subsection (2) or to retain it and conduct any business to which it relates. 9 Transfer of other assets, rights or liabilities (1) The Minister may direct, by order in writing, and on such terms and conditions as are set out or referred to in the order, that such other assets, rights or liabilities used by or attaching to Sydney Water Corporation Limited for the supply of water, the provision of sewerage and stormwater drainage systems, the disposal of waste water and associated purposes, and belonging to the State or an authority of the State, as are specified in the order, be transferred to the Corporation or to a subsidiary of the Corporation. (2) Section 7 applies to that transfer in the same way as it applies to the transfer of Sydney Water Corporation Limited's business undertaking to the Corporation. Part 4 Area of operations 10 Area of operations (1) The Corporation has, subject to this section, the same area of operations that Sydney Water Corporation Limited had immediately before it ceased to be a company State owned corporation. Each operating licence is to contain a schedule that details the area of operations or the part of the area of operations to which the operating licence applies. (2) The Governor may, by order published on the NSW legislation website, vary the area of operations and may, by that order, specify which systems and services the Corporation may provide in the whole or a part or parts of the area of operations as so varied. (3) An order under subsection (2) may expand or reduce the area of operations. However, an order must not reduce the area of operations unless the Minister is satisfied that, after the order takes effect, similar services to those provided by the Corporation in the area to be excised from the area of operations are able to, and will, be provided by any one or more of the following— (a) a council of an area, or (b) Hunter Water Corporation, (c) a public authority within the meaning of the Water Management Act 2000, or (d) a water supply authority within the meaning of the Water Management Act 2000. (4) Despite subsections (2) and (3), the area of operations must not be— (a) reduced, or (b) expanded to include the whole or part of the area within which any of the bodies referred to in subsection (3) (a)–(d) provides services that are the same services the Corporation is authorised to provide under the operating licence, unless consultations, regarding the proposed reduction or expansion and the implications of the proposed reduction or expansion, have taken place between the Corporation and the council, Hunter Water Corporation, public authority or Water Supply Authority before the order reducing or expanding the area of operations is made. (5) It does not matter if a reduction or expansion of the area of operations results in parts of the area of operations covered by an operating licence not being contiguous. (6) An order to vary the area of operations does not take effect until written notice of the order, accompanied by a copy of the order, is laid before each House of Parliament and either— (a) 15 sitting days of each House of Parliament has passed after the order was tabled and notice of a motion to disallow the order has not been given, or (b) if notice of a motion to disallow the order has been given, the motion has lapsed or has been withdrawn or defeated. 11 Facilitating provisions of orders (1) An order of the Governor for the purposes of this Part may include such provisions as are necessary or convenient for giving effect to the order, including provisions for or with respect to— (a) the transfer or apportionment of assets, rights and liabilities, (b) the transfer of staff, (c) the delivery or retention of records, (d) the termination, cessation, dissolution or abolition of anything existing before the order takes effect, (e) the preservation or continuance of anything existing before the order takes effect, (f) the imposition of fees and charges, (g) the recovery of fees and charges. (2) Such an order may— (a) apply generally or be limited in its application by reference to specified exceptions or factors, or (b) apply differently according to different factors of a specified kind, or (c) authorise any matter or thing to be from time to time determined, applied or regulated by any specified person or body, or may do any combination of those things. Part 5 Operating licences 12 Grant of operating licences (1) The Governor may grant one or more operating licences to enable the Corporation in accordance with this Act, in the area of operations, to provide, construct, operate, manage or maintain systems or services for— (a) storing or supplying water, or (b) providing sewerage services, or (c) providing stormwater drainage systems, or (d) disposing of waste water. (2) Operating licences may be granted to enable the Corporation to provide all or any of the systems or services in the same or different parts of the area of operations. (3) Except to the extent to which this Act expressly provides, nothing in an operating licence limits the requirements imposed by or under any other Act or law with respect to the provision, construction, operation, management or maintenance of any system or service referred to in subsection (1). (4)–(6) (Repealed) 13 (Repealed) 14 Terms and conditions of operating licences (1) An operating licence is subject to the terms and conditions determined by the Governor, but (so far only as is relevant to the ambit of the operating licence) must include terms or conditions under which the Corporation is required— (a) to provide, construct, operate, manage and maintain efficient, co-ordinated and commercially viable systems and services for supplying water, providing sewerage services and disposing of waste water, and (b) to provide, operate, manage and maintain a stormwater drainage system within the capacity of the stormwater drainage system included in the business undertaking transferred under Part 3 from the Water Board to the Corporation as at the date of the transfer of the business undertaking, and (c) to ensure that the systems and services meet the quality and performance standards specified in the operating licence in relation to water quality, service interruptions, pricing and other matters determined by the Governor and set out in the operating licence, and (d) to compile indicators of the direct impact on the environment of the Corporation's activities— (i) to enable preparation of an annual report on the Corporation's performance, and (ii) to provide information for a year to year comparison in relation to the Corporation's performance in this area. (2) The operating licence granted to the Corporation is to provide for the preparation of an operational audit in accordance with Division 2 of Part 6. (3) The operating licence granted to the Corporation is to provide, or (if there is more than one such licence) the operating licences granted to the Corporation are to provide collectively, for the provision of the systems and services referred to in subsection (1) (a) and (b) in the area of operations or the relevant part of the area of operations, except to the extent that— (a) the Governor has, by order made under section 10 (2), restricted the systems and services that the Corporation may provide in the area of operations or the relevant part of the area of operations, or (b) this Act otherwise provides. (4) Despite this section, the provision, operation, management or maintenance of the stormwater drainage system described in subsection (1) (b) need not be required as a term or condition of an operating licence if the Minister is satisfied that satisfactory arrangements have been made for the service to be provided by another appropriate body. (5) If it is proposed to transfer responsibility for the provision, operation, management or maintenance of the stormwater drainage system to a council or councils (within the meaning of the Local Government Act 1993), in order to be satisfied that satisfactory arrangements have been made for the purposes of subsection (4), the Minister— (a) is to cause written notice of the proposed transfer and details of the proposed new arrangements to be served on the council or councils concerned and is to invite them, by that notice, to comment on the proposal within 40 days after service of the notice, and (b) is to be satisfied that at least the same standard of services will be provided under the new arrangements as had been provided by the Corporation. (6) If new arrangements are entered into in pursuance of subsections (4) and (5), the Corporation must, within 14 days after the arrangements are entered into, give notice of the terms of the arrangements by notification published in the Gazette. 15 Customer Councils (1) An operating licence must also include terms or conditions that require the Corporation to establish and regularly consult with one or more Customer Councils, each consisting of persons appointed from time to time by the Corporation. (2) The Corporation is to consult with the Customer Councils from time to time, as the Corporation thinks fit, in relation to the provision of the systems and services referred to in this Part. 16 Amendment of operating licences (1) An operating licence may only be amended in the manner specified in the operating licence. (2) However, a proposed amendment to an operating licence will not take effect until written notice of the proposed amendment, accompanied by a copy of the proposed amendment, is laid before each House of Parliament and either— (a) 15 sitting days of each House of Parliament has passed after the proposed amendment was tabled and notice of a motion to disallow the proposed amendment has not been given, or (b) if notice of a motion to disallow the proposed amendment has been given, the motion has lapsed or has been withdrawn or defeated. (3) This section applies to the substitution of an operating licence in the same way as it applies to the amendment of an operating licence. (4) The other provisions of this section do not apply to the amendment or substitution of an operating licence under section 3A. 17 Term of operating licences (1) The initial term of an operating licence is to be for a maximum of 5 years, as determined by the Governor. (2) After the initial term, the Governor may renew an operating licence for a maximum of 5 years at a time. (3) An operating licence may be renewed even if its term has expired. 18 Area covered by operating licences An operating licence applies to the whole or a part of the area of operations, as specified in the operating licence. 19 Contravention of operating licences (1) If, in the opinion of the Minister, the Corporation contravenes an operating licence, the Minister may cause a notice to be served on the Corporation requiring it to rectify the contravention within a specified period. (2) If, in the opinion of the Minister, the Corporation contravenes an operating licence, and whether or not a notice has been served under subsection (1) or the period specified in the notice has ended, the Governor may direct that either of the following is to apply— (a) a letter of reprimand by the Minister is to be served on the Corporation, (b) the Corporation is to pay a monetary penalty (not exceeding $1 million) in an amount to be determined by the Governor. (3) The fact that the Governor has directed that action be taken under this section does not prevent the Governor directing that the same or other action under the section be taken if the contravention continues or a fresh contravention occurs. (4) An operating licence may make provision for advice to be furnished to the Minister in connection with the exercise of the Minister's functions under this section. (5) A penalty imposed under this section may be recovered in any court of competent jurisdiction as if it were a debt due to the Crown. 19A Enforcement of operating licences: action by Tribunal (1) The Tribunal may impose a monetary penalty on the Corporation. (2) The Tribunal may, instead of imposing a monetary penalty, require the Corporation to take such action as the Tribunal considers appropriate in the circumstances, including (for example) requiring the sending of information to customers or the publication of notices in newspapers. (3) The Tribunal may not require action to be taken under subsection (2) by the Corporation if the cost of that action would exceed the monetary penalty that the Tribunal could impose under this section on the Corporation. (4) If the Tribunal requires information to be sent to a customer under subsection (2), the Corporation may satisfy that requirement by sending the information to the customer with the next account or bill to be sent to the customer by the Corporation or, if the Corporation is sending other information to that customer before the next account or bill, with that other information. (5) Action may be taken under this section only if the Corporation has knowingly contravened an operating licence. (6) The monetary penalty that the Tribunal may impose under this section must not exceed $10,000 for the first day on which the contravention occurs and a further $1,000 for each subsequent day (not exceeding 30 days) on which the contravention continues. (7) The Tribunal must not take action under this section unless— (a) the Tribunal has considered whether the contravention has been or is likely to be the subject of any other penalty or action or any claim for compensation, and is satisfied that it is nevertheless appropriate to take action under this section, and (b) the Tribunal has considered the action that the Corporation has taken or is likely to take in respect of the contravention and the cost to the Corporation in taking that action, and is satisfied that it is nevertheless appropriate to take action under this section. (8) The Tribunal is required to consider the seriousness of the contravention concerned in determining to impose a monetary penalty under this section. (9) The Tribunal must not take action under this section unless— (a) notice of the proposed action has been given to the Corporation, and (b) the Corporation has been given a reasonable opportunity to make submissions with respect to the proposed action, and (c) the Tribunal has given due consideration to any such submissions. (10) The Tribunal must not take action under this section in respect of a contravention if any action has already been taken under section 19 in respect of the contravention. (11) Nothing in this section affects any powers under section 19 in respect of a contravention, whether or not the Tribunal has already taken action under this section in respect of the contravention. (12) A penalty imposed under this section may be recovered in any court of competent jurisdiction as if it were a debt due to the Crown. 19B Administrative reviews of certain decisions of Tribunal concerning operating licences (1) The Corporation, if aggrieved by a decision of the Tribunal to take action under section 19A in relation to the Corporation, may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision. (2) Section 53 (Internal reviews) of the Administrative Decisions Review Act 1997 does not apply to such a decision of the Tribunal. 20 Cancellation of operating licences (1) An operating licence may be cancelled by the Governor, but only if— (a) the Corporation ceases, otherwise than as authorised by the operating licence or as permitted in accordance with an order made under section 10 (2), to do the things referred to in section 14 (1) or any of them in the area of operations for any reason, or (b) the Corporation— (i) is, in the opinion of the Minister, in material default in compliance with the operating licence, viewed in terms of the operation of the operating licence as a whole, and (ii) has not, within the time specified by the Minister in a notice to the Corporation, either rectified the default or shown cause, to the satisfaction of the Minister, why the operating licence should not be cancelled, or (c) the Corporation is an externally administered corporation within the meaning of the Corporations Act 2001 of the Commonwealth, or (d) the Corporation has been convicted on more than 3 occasions within a period of 12 months of criminal offences that are punishable by a fine of at least $10,000 or, if the Corporation were a natural person, imprisonment for 12 months or more. (2) A notice under section 19 can be regarded also as a notice for the purposes of subsection (1) (b). (3) If an operating licence is cancelled under this section, the Governor may, by order published in the Gazette, vest in the Crown or in another person specified in the order, from the date specified in the order, the assets and rights of the Corporation that are specified in the order and that, in the opinion of the Minister, are necessary to enable the Crown or other person to do immediately the things referred to in section 14 (1), or any of them, for the benefit of existing recipients of the Corporation's systems and services. (4) An order under this section may provide for— (a) the Crown or other person specified in the order to assume those liabilities of the Corporation that the Governor considers appropriate and specifies in the order, or (b) the Crown to pay the whole or any part of the liabilities of the Corporation. Part 6 Provisions relating to the Corporation Division 1 Objectives of Corporation 21 Objectives of Corporation (1) The principal objectives of the Corporation are— (a) to be a successful business and, to this end— (i) to operate at least as efficiently as any comparable businesses, and (ii) to maximise the net worth of the State's investment in the Corporation, and (iii) to exhibit a sense of social responsibility by having regard to the interests of the community in which it operates, and (b) to protect the environment by conducting its operations in compliance with the principles of ecologically sustainable development contained in section 6 (2) of the Protection of the Environment Administration Act 1991, and (c) to protect public health by supplying safe drinking water to its customers and other members of the public in compliance with the requirements of any operating licence. (2) Despite section 8 of the State Owned Corporations Act 1989, each of the Corporation's principal objectives is of equal importance. 22 Implementation of principal objectives (1) In implementing the principal objectives set out in section 21, the Corporation has the following special objectives— (a) to reduce risks to human health, (b) to prevent the degradation of the environment. (2) Those special objectives are to be interpreted by reference to the objectives referred to in section 6 (1) (b) of the Protection of the Environment Administration Act 1991, so far as they are relevant to the Corporation. (3) In implementing those special objectives, regard is to be had to the means referred to in section 6 (1) (b) of the Protection of the Environment Administration Act 1991, so far as they are relevant to the Corporation, and (in particular) to the following means— (a) reducing the environmental impact of its discharges into or onto the air, water or land of substances likely to cause harm to the environment, (b) minimising its creation of waste by the use of appropriate technology, practices and procedures, (c) reducing its use of energy, water and other materials and substances, (d) re-using and recovering energy, water and other materials and substances, used or discharged by it, by the use of appropriate technology, practices and procedures, (e) reducing significantly, by 30 June 2000, the combined environmental impact of the per capita amount of energy and water used by the Corporation and other materials and substances discharged by the Corporation, compared with that impact in the year ending 30 June 1994. (4) The Corporation is to have regard to the levels of energy that would be necessary to implement its special objectives and may adjust its implementation of those objectives if the levels of energy would be excessive. (5) However, the Corporation is to have regard to its statutory functions, and may adjust its implementation of its special objectives but only if it is necessary in order to act responsibly. (6) The Corporation must publish in the annual report on the Corporation's performance prepared for the purposes of section 14 (1) (d) (i), a statement as to the implementation of its special objectives and annual adjustments made under subsections (4) and (5). (7) The Environment Protection Authority must review the statement referred to in subsection (6) as soon as practicable after it is published and must, within 3 months after the publication date, make its evaluation of the statement available for public inspection. The evaluation is to include an opinion as to whether the best environmental outcome has been achieved. 23 Pollution reduction targets (1) The Corporation must adopt targets (as developed and determined in accordance with this section) to effect significant reductions, by 30 June 2000, of Schedule 10 substances present in waters as a result of the conduct of the Corporation's sewerage services under an operating licence. (2) The targets are to be developed as follows— (a) The Corporation is to publish in the Gazette a statement, in a form approved by the Environment Protection Authority, showing— (i) the range of concentrations and total load of those Schedule 10 substances that were monitored at the Corporation's sewage treatment plants, and (ii) the total volumes of sewage discharged from its sewage treatment plants to waters as monitored by the Corporation, for the year ended 30 June 1994. (b) The statement is to be published within 14 days after the initial operating licence is granted to the Corporation. (c) The Corporation is to conduct ecological risk assessments in relation to Schedule 10 substances discharged into waters from each of the Corporation's sewage treatment plants. (d) Ecological risk assessments are to be carried out in accordance with a methodology for the time being approved by the Environment Protection Authority in accordance with section 24. (e) Reports on ecological risk assessments are to be provided to the Environment Protection Authority as follows— (i) reports on assessments for the ocean are to be provided by 31 December 1995, and (ii) reports on assessments for the Hawkesbury–Nepean catchment are to be provided by 30 June 1996, and (iii) reports on the remaining assessments are to be provided by 30 June 1997. (f) Copies of the reports on ecological risk assessments are to be placed on display for public comment by the Corporation in accordance with section 25. (3) The Environment Protection Authority is, within 3 months after the expiration of the period for public comment referred to in section 25 (2), to determine the targets for the Corporation that are referred to in subsections (1) and (2), having regard to the following— (a) the reports on ecological risk assessments, (b) any public comments on the reports that have been provided to the Authority by the Corporation in accordance with section 25 (3), (c) such other factors as appear relevant to the Authority, taking into account the statutory obligations of the Authority under any Act. (4) The Corporation must adopt the targets as determined by the Environment Protection Authority. (5) The Environment Protection Authority must ensure that the licence conditions imposed by it on the Corporation, and any directions given by it to the Corporation under section 12 of the Protection of the Environment Administration Act 1991, are consistent with and are conducive to the meeting, or exceeding, by the Corporation of its targets, as determined in accordance with this section, by 30 June 2000. (6) As and when the targets, licence conditions and directions are determined, imposed or given and take effect, the Corporation and the Environment Protection Authority are each to enter details of the targets, licence conditions and directions in a register kept at their respective principal offices and are to make the register available for public inspection, free of charge. (7) The Corporation is to monitor its performance against the targets and publish the results on an annual basis in accordance with the requirements of an operating licence. (8) By 30 June 1999, the Corporation is to determine the bases for setting targets to effect further reductions, after 30 June 2000, of Schedule 10 substances present in waters as a result of the conduct of the Corporation's sewerage services under an operating licence. However, the targets are not to be set until the Environment Protection Authority approves of the bases determined. (9) In this section, Schedule 10 substances means the substances listed in Schedule 10. 24 Approval of methodology for ecological risk assessment (1) Before the Corporation submits a proposed methodology to the Environment Protection Authority for approval for the purposes of section 23 (2) (d), the Corporation must— (a) place the proposed methodology on display for public comment for a period of 30 days after the date of publication of the notice referred to in paragraph (b), and (b) by notice published in a newspaper circulating throughout New South Wales, specify the place or places at which copies of the proposed methodology may be inspected and the address to which public comments concerning the methodology may be directed. (2) Any person may, within the period of 30 days referred to in subsection (1) (a), or such longer period as may be specified in the notice, direct comments concerning the proposed methodology to the Corporation. (3) A methodology must be approved by the Environment Protection Authority within 30 days after the Corporation has provided the Authority with the proposed methodology that has been placed on display and copies of any public comments received on that methodology. (4) In approving a methodology, the Environment Protection Authority is to have regard to any public comments concerning the proposed methodology that have been provided to it and made in accordance with this section. 25 Public display of reports on ecological risk assessments (1) As soon as practicable after providing the reports on ecological risk assessments to the Environment Protection Authority in accordance with section 23 (2) (e), the Corporation must— (a) place copies of those reports on display for public comment for a period of 30 days after the date of publication of the notice referred to in paragraph (b), and (b) by notice published in a newspaper circulating throughout New South Wales, specify the place or places at which copies of the reports may be inspected and the address to which public comments concerning the reports may be directed. (2) Any person may, within the period of 30 days referred to in subsection (1) (a), or such longer period as may be specified in the notice, direct comments concerning the reports to the Corporation. (3) The Corporation must provide the Environment Protection Authority with copies of any such public comments. 26 Amendment of pollution reduction targets (1) After the Corporation has adopted a target under section 23 (4), the Environment Protection Authority may, from time to time, re-determine the target. (2) The Corporation is to adopt a target as re-determined by the Environment Protection Authority. Subsections (5)–(7) of section 23 then apply to the re-determined target. (3) The Environment Protection Authority may, for the purpose of assessing whether to re-determine a target under this section, require the Corporation to carry out a further ecological risk assessment and provide a report on that assessment to the Environment Protection Authority by a specified date. Sections 23–25 apply, with necessary modifications, to any such further ecological risk assessment and report. (4) Any target re-determined in accordance with this section is to be re-determined by the Environment Protection Authority having regard to the following— (a) the report on any further ecological risk assessment or, if no further assessment is made, the report on the previous assessment, (b) any public comments on the report on the further assessment that has been provided to the Authority by the Corporation in accordance with section 25 (3) (as applied by this section) or, if no further assessment is made, any such public comments on the previous report, (c) such other factors as appear relevant to the Authority, taking into account the statutory obligations of the Authority under any Act. (5) The Corporation and the Environment Protection Authority are to enter the reasons for the re-determination of a target in the registers kept by the Corporation and the Authority under section 23 (6). 27 Re-use of sewage effluent (1) Without limiting sections 21 and 22, the Corporation is to adopt as an ultimate aim the prevention of all dry weather discharges of sewage to waters, including from ocean outfalls, except to the extent that this is necessary to safeguard public health or prevent environmental degradation, or both. (2) The Corporation is to publish in the Gazette by 30 June 1995 a statement specifying the projected amount of sewage or effluent that it proposes will be re-used, intercepted or otherwise prevented from discharge, by 30 June 2000, into the ocean, waterways and other waters. (3) In respect of years after 30 June 2000, the Corporation is, on a 5 yearly basis, to review an increase in the projected amount applying under subsection (2) in the light of the aim referred to in subsection (1). (4) In reviewing the projected amounts, the Corporation is to have regard to reductions in the amount of sewage discharged by the Corporation due to any demand management provision in an operating licence. (5) Before specifying projections in accordance with this section, the Corporation must— (a) place the proposed projections on display for public comment for a period of 30 days after the date of publication of the notice referred to in paragraph (b), and (b) by notice published in a newspaper circulating throughout New South Wales (or in a manner that the Corporation is satisfied is likely to bring the notice to the attention of members of the public), specify the place or places at which copies of the proposed projections may be inspected and the address to which public comments concerning the projections may be directed. (6) Any person may, within the period of 30 days referred to in subsection (5) (a), or such longer period as may be specified in the notice, direct comments concerning the proposed projections to the Corporation. (7) The Corporation must, when specifying projections, have regard to any public comments concerning the proposed projections that have been directed to it. Division 1A Regulatory functions of Tribunal 28 Regulatory functions of Tribunal (1) The regulatory functions of the Tribunal under this Act are— (a) the function of making recommendations under subsection (2), and (b) the function of informing, monitoring and reporting under section 31 (2) (a) and (b), and (c) the function of advising about penalties or remedial action under section 31 (2) (c), and (d) the function of imposing monetary penalties, or requiring other action to be taken, under section 19A, and (e) such other functions of the Tribunal under this Act as are specified by the regulations for the purposes of this section. (2) The Tribunal has the function of making recommendations to the Minister for or with respect to— (a) the granting, amendment or cancellation of the operating licence, and (b) the imposition, amendment or cancellation of conditions in relation to the operating licence. (3) Part 4B of the Independent Pricing and Regulatory Tribunal Act 1992 applies in relation to the Tribunal's regulatory functions under this Act. Division 2 Licence auditing functions of Tribunal 29, 30 (Repealed) 31 Functions of Tribunal (1) The function of the Tribunal under this Division is to ensure that the operational audit is prepared in accordance with the operating licence. (2) The Tribunal must— (a) inform the Minister about any failure of the Corporation to meet operational standards or any other requirements imposed on the Corporation under the operating licence, and (b) monitor, and report to the Minister on, compliance by the Corporation with the operating licence, and (c) provide advice to the Minister about any penalties or remedial action required as a result of the Corporation's performance under the operating licence. (3) The Tribunal has such other functions under this Division as may be conferred or imposed on it by the operating licence. (4) The Tribunal is to report annually to the Minister in accordance with the requirements of this Division. (5) (Repealed) 32 Operational report The Tribunal is to present to the Minister a report on each operational audit within one month after its receipt of the audit. 33 Presentation of report to Parliament (1) The Minister is to lay the report (or cause it to be laid) before both Houses of Parliament within one month after the Minister receives the report. (2) If a House of Parliament is not sitting when the Minister seeks to furnish a report to it, the Minister may present copies of the report to the Clerk of the House concerned. (3) The report— (a) on presentation and for all purposes is taken to have been laid before the House, and (b) may be printed by authority of the Clerk of the House, and (c) if printed by authority of the Clerk, is for all purposes taken to be a document published by or under the authority of the House, and (d) is to be recorded— (i) in the case of the Legislative Council—in the Minutes of the Proceedings of the Legislative Council, and (ii) in the case of the Legislative Assembly—in the Votes and Proceedings of the Legislative Assembly, on the first sitting day of the House after receipt of the report by the Clerk. 33A Cost of audit (1) The Corporation is required to pay to the Treasurer the cost (as certified by the Tribunal) involved in and in connection with carrying out the operational audit of the Corporation. (2) Without limitation, an operating licence may include terms and conditions relating to the determination of the cost of carrying out the operational audit. Division 3 Memoranda of understanding 34 Definitions In this Division— memorandum of understanding means a memorandum of understanding referred to in the operating licence. regulatory agencies means the Water Administration Ministerial Corporation, the Director-General of the Department of Health and the Environment Protection Authority. 35 Corporation to enter into memoranda of understanding (1) The Corporation is to enter into a separate memorandum of understanding with each of the regulatory agencies. (2) Subject to section 36, the Corporation is to enter into the memoranda of understanding as soon as practicable after it is granted an operating licence. (3) If the Corporation and a regulatory agency are not able to agree on a term of a memorandum of understanding, the view of the regulatory agency is to prevail. 36 Public exhibition of memoranda of understanding (1) Each regulatory agency must give notice of the preparation of the memorandum of understanding to which it is a party. (2) The notice is to be given in a newspaper circulating in the Corporation's area of operations (or in a manner that the regulatory agency concerned is satisfied is likely to bring the notice to the attention of members of the public in the area of operations) and must— (a) specify the address of the place at which copies of the memorandum of understanding may be inspected, and (b) specify the address to which representations concerning the memorandum of understanding may be forwarded. (3) Any person may, within 30 days or such longer period as may be specified in the notice, make representations to the regulatory agency concerning the memorandum of understanding. (4) Each regulatory agency must, on the expiration of the period referred to in subsection (3), and before entering into the memorandum of understanding, consider any representations made under this section. (5) Notice of the execution of a memorandum of understanding is to be published in the Gazette and in a newspaper circulating in the area of operations (or in a manner that the regulatory agency that is a party to the memorandum of understanding is satisfied is likely to bring the notice to the attention of members of the public in the area of operations) within 14 days after the execution. (6) The requirements of this section apply to an amendment to a memorandum of understanding in the same way as they apply to a memorandum of understanding. Division 4 Provisions relating to works 37 Ownership of works (1) The Corporation is the owner of all works installed in or on land, at sea, in or on the seabed, in rivers and other waterways and in or on the beds of rivers and waterways by the Corporation and of all works in or on land or in water vested in or transferred to the Corporation (whether or not the land is owned by the Corporation). (2) The Corporation may, subject to this Act, operate, repair, replace, maintain, remove, extend, expand, connect, disconnect, improve or do any other things that are necessary or appropriate to any of its works to ensure that, in the opinion of the Corporation, the works are used in an efficient manner for the purposes for which they were installed. (3) The Corporation may sell or otherwise deal with works that it owns. (4) The provisions of this section have effect despite anything contained in section 42 of the Real Property Act 1900. 38 Entry on to land (1) The Corporation may, by persons issued with certificates of authority under section 39, enter and occupy land or a building in accordance with this Division for any one or more of the following purposes— (a) to operate, repair, replace, maintain, remove, extend, expand, connect, disconnect, improve or do any other things that the Corporation considers are necessary or appropriate to any of its works or to construct new works and, for these purposes, to carry out any work on, below or above the surface of the land, (b) to read a meter that measures water supplied by the Corporation or material discharged into the Corporation's sewers, (c) to make a valuation or assessment of the usage of the land or of any building on the land, (d) to find the source of pollution of water supplied by the Corporation and, for this purpose, to dig up and remove material from the land, (e) to ascertain whether a customer contract or other contract for the provision of services by the Corporation is being breached in relation to the connection to or use of works and, for this purpose, to dig up and remove material from the land, (f) to cut off or restrict the supply of water or other services to the land if any contract charges relating to the supply of water or those services to the land by the Corporation are unpaid, (g) to rectify defective or improper work that has not been rectified in accordance with a notice served by the Corporation under a customer contract or other contract, (h) to ascertain the character and condition of the land or a building to enable the Corporation to operate, repair, replace, maintain, remove, extend, expand, connect, disconnect or improve, or do any other thing to, the Corporation's systems and services for the purposes of carrying out the terms and conditions of an operating licence, (i) to ascertain the condition and location of any pipe, sewer, drain, channel or fitting or other work used in connection with the land or a building to enable the Corporation to operate, repair, replace, maintain, remove, extend, expand, connect, disconnect or improve, or do any other thing to, the Corporation's systems and services for the purposes of carrying out the terms and conditions of an operating licence. (2) Material that has been excavated from land for the purposes of this section may only be removed from the land by the Corporation— (a) if this is necessary for the purpose of ascertaining whether an offence has been committed against this Act, or (b) if the owner of the land has consented to its removal. 39 Certificates of authority (1) The board of the Corporation may authorise an officer of the Corporation or the holder for the time being of an office in the Corporation's establishment to issue certificates of authority for the purposes of this Act. (2) Such an officer or holder of an office may issue certificates of authority. (3) A certificate of authority must— (a) state that it is issued under this Act, and (b) specify the person or class of persons who are authorised to exercise the power of entry under this Act, and (c) describe the nature of the powers proposed to be exercised, and (d) state the date (if any) on which it expires, and (e) bear the signature of the person by whom it is issued. (4) The Minister may, if the Minister thinks fit, by order published in the Gazette, impose conditions or restrictions on certificates of authority issued under this Act, either generally or in particular cases, including restrictions on the purposes for which and the circumstances in which a power of entry may be exercised. 40 Exercise of powers of entry (1) Before a person enters any land or building under a power conferred by this Division, the Corporation or a person must serve on the owner or occupier of the land or building notice in writing of the intention to enter the land or building on a day or days specified in the notice unless— (a) entry to the land or building is made with the consent of the owner or occupier of the land or building, or (b) entry is required urgently and the case is one in which the board of the Corporation has authorised in writing (either generally or in the particular case) entry without notice, or (c) entry is made solely for the purpose of reading a meter that measures water supplied by the Corporation or material discharged into the Corporation's sewers if the meter is not in a dwelling-house or building, or (d) the giving of notice would defeat the purpose for which the power is to be exercised. (2) A power conferred by this Division to enter any land or building may not be exercised unless the person proposing to exercise the power— (a) is in possession of a certificate of authority issued under section 39, and (b) exercises the power at a reasonable time during daylight, unless this would defeat the purpose for which the power is to be exercised or the power is exercised in an emergency, and (c) produces the certificate of authority if required to do so by the occupier of the land, and (d) uses no more force than is reasonably necessary to effect the entry. (3) Nothing in this section authorises the use of force to enter a dwelling-house or any enclosed part of a building occupied as a dwelling or authorises the entry of such premises at night without the consent of the owner or occupier of the premises unless entry is required urgently and the case is one in which the board of the Corporation has authorised in writing (either generally or in the particular case) entry without notice. 41 Compensation (1) The Corporation, in exercising its functions under this Division, is to do as little damage as practicable and is, subject to this Division, to compensate all persons who suffer damage by the exercise of the functions. (2) Compensation may be made by reinstatement, repair, construction of works or payment. (3) If the Corporation installs a sewer on land in exercise of powers under this Division, the Corporation is required to pay compensation only if the sewer damages, or interferes with, a building or other structure on the land or causes other physical damage to property or if an access chamber or main ventilator is constructed on the land. 42 Power to open roads (1) The Corporation may, for the purpose of exercising its functions in relation to systems or services in accordance with an operating licence and after giving reasonable notice to persons likely to be affected, including the appropriate roads authority under the Roads Act 1993, open and break up— (a) the soil and pavement of a public road or public reserve, and (b) any pipe, sewer, drain or tunnel in or under or any ground under a public road or public reserve. (2) The person having the control and management of a public road or public reserve may require the Corporation to comply with conditions in exercising its powers under this section, including conditions for restoration of the surface and removal of rubbish. (3) If a public road or public reserve is damaged by a malfunction of a main of the Corporation, the person having the control and management of the public road or public reserve may require the Corporation to make good the damage without delay. (4) If the Corporation fails to comply with a condition under subsection (2) or a requirement under subsection (3), the person affected by the failure may remedy it and recover the cost of doing so as a debt owed to the person by the Corporation. (5) A person desiring to connect premises with a water main or sewer main of the Corporation that is available for connection may (subject to such conditions as may be imposed by or under any Act or law) open and break up the soil and pavement of a public or private road or way or a footpath or public reserve to the extent required to make the connection. 43 Altering position of conduit (1) The Corporation may serve a written notice on a person if— (a) the Corporation, in order to comply with an operating licence, needs an alteration to be made in the position of a conduit owned by the person, and (b) the alteration would not permanently damage the conduit or adversely affect its operation. (2) The notice must— (a) specify the alteration needed, and (b) require the alteration to be made within a reasonable time stated in the notice, and (c) include an undertaking by the Corporation to pay the reasonable cost of the alteration. (3) If the alteration is not made as required by the notice, the Corporation may make the alteration in a manner that does not damage the conduit permanently or adversely affect its operation on completion of the alteration. (4) The Corporation may, for the purposes of subsection (3), exercise any powers of the person on whom the notice was served, in addition to or instead of any powers of the Corporation. (5) Except as provided by subsection (4), this section does not confer on the Corporation or the owner of the conduit any additional powers of entry or powers to carry out works than would be available apart from this section. (6) In this section, conduit means anything that is in or under a public road (or any other land on which no building or other structure is located) and is used for the conveyance of a substance, energy or signals. 44 Protection of works (1) Land in or on which a work of the Corporation is installed is taken to be the subject of a covenant in favour of the Corporation pursuant to which the owner from time to time of land in or on which the work is installed must ensure that— (a) the work or any structure owned by, or under the control or management of, the Corporation is not wilfully or negligently destroyed, damaged or interfered with, and (b) the Corporation and persons issued with certificates of authority under section 39 are not delayed or obstructed in and about the taking, in relation to the work, of any of the steps referred to in section 37 (2), and (c) no structure is placed in, on or near the work in a manner that interferes with the operation of the work, and (d) ground is not opened to expose any pipe or other work of the Corporation without reasonable excuse, or the consent of the Corporation, and without giving the Corporation at least 2 days' written notice of intention to open the ground unless that requirement is waived by the Corporation. (2) A lease, including a residential tenancy agreement within the meaning of the Residential Tenancies Act 2010, is taken to include a term requiring the lessee of land referred to in subsection (1) or any part of it to comply with the same obligations, in relation to land, as are imposed by that subsection on the owner who has leased the land to the lessee. (3) A covenant to which subsection (1) relates is enforceable as a duly created