South Australia: Ground Water (Qualco-Sunlands) Control Act 2000 (SA)

South Australia Ground Water (Qualco-Sunlands) Control Act 2000 An Act to reduce the risk of waterlogging and salinisation of land and increased levels of salinity in the River Murray caused by the irrigation of land in the Qualco-Sunlands irrigation area; and for other purposes. Contents Part 1—Preliminary 1 Short title 3 Interpretation 4 Provisions relating to irrigation districts Part 2—The Qualco-Sunlands Ground Water Control Trust Division 1—Establishment of the Trust 5 Establishment of the Trust 6 Transfer of assets etc of Qualco-Sunlands District Drainage Incorporated to Trust 7 Presiding officer and deputy presiding officer of the Trust Division 2—Meetings of the Trust 8 Calling of meetings 9 Procedure at meetings of Trust 10 Notice of meetings where ownership of property changes 11 Voting Division 3—Board of management, committees and delegation 12 Board of management 13 Delegation 14 Notice of resolution Division 4—Accounts and audit 15 Accounting records to be kept 16 Preparation of financial statements 17 Accounts etc to be laid before annual general meeting Division 5—Appointment of administrator 18 Appointment of administrator Part 3—Functions and powers of the Trust Division 1—Construction and maintenance of the Scheme infrastructure 19 Construction of the Scheme infrastructure 20 Infrastructure for reuse of underground water 21 Maintenance and repair of infrastructure 22 Vesting of Scheme infrastructure 23 Insurance of Scheme infrastructure Division 2—Disposal basins 24 Provision of disposal basins Division 3—Operation of the Scheme 25 Operation of the Scheme 26 Amendment of salinity credits by Trust Division 4—Powers of the Trust 27 Powers of Trust Part 4—Water disposal easement 28 Acquisition of easement 29 Rights conferred by easement 30 Minimisation of damage etc 31 Issue of certificate of title for water disposal easement 32 Dealing with easement Part 5—Impact of irrigation on waterlogging and salinisation Division 1—Classification of land 33 Classification of land in the Scheme Area 34 Members of the Trust to be consulted Division 2—Categories of land 35 Categories of land Division 3—Certificate of zero impact 36 Certificate of zero impact 37 Variation or termination of certificate 38 Appeal to the ERD Court Division 4—Reducing the impact of irrigation 39 Rewards for reducing the impact of irrigation Part 6—Allocation of the Scheme's risk management capacity 40 Waterlogging and salinity risk management allocation 41 Application for initial risk management allocation 42 Determination of excess capacity 43 Request for increase in, or for a new, risk management allocation 44 Transfer of risk management allocations 45 Agreement with landowner to increase risk management capacity Part 7—Funding the operation and maintenance of the Scheme Division 1—Funding the Scheme 46 Money required for operation and maintenance 47 Payment by the Treasurer 48 Recovery of money paid by Treasurer to Trust 49 Adjustment of contributions 50 Payment in respect of the unauthorised use of water 51 Computing overuse of water 52 Rules for computing water used where certificate of zero impact applies 53 Dry year declarations 54 Irrigation declarations Division 2—Recovery of money from owners and occupiers 55 Liability to pay Minister 56 Notice to persons liable of amount payable 57 Interest 58 Amount first charge on land 59 Sale of land for non-payment 60 Money recovered to be paid to Treasurer Part 8—Wells 61 Activities relating to wells 62 Permits 63 Defences 64 Notice to rectify unauthorised activity 65 Right of appeal Part 9—Operation of Part 8 of the Landscape South Australia Act 2019 in the Scheme Area 66 Exclusion of section 102 of the Landscape South Australia Act 2019 67 Problem of disposal of water not to be considered on application for water licence etc 68 Lower levy for certain irrigated properties 69 Scheme to be acknowledged for levy refund purposes Part 10—Miscellaneous 70 Inspection of infrastructure etc by Minister 71 Entry onto land 72 Property in water 73 Measurement of water usage 74 Testing of meters 75 Estimation by Trust of water usage 76 Owners and occupiers of land to provide information 77 False or misleading information 78 Service of notices 79 Expiry of Act 80 Regulations Schedule 1—The Scheme Area Schedule 2—Waterlogging and salinity risk management allocations Schedule 3—Classes of well in relation to which a permit is not required Schedule 4—Transitional provisions Part 1—Transitional provisions 1 Membership of the Trust 2 Permits in respect of wells Legislative history The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Ground Water (Qualco-Sunlands) Control Act 2000. 3—Interpretation (1) In this Act, unless the contrary intention appears— category in relation to land means the category of the land prescribed by regulation; contribution year means the period of 12 months from 1 October to the following 30 September; 2000/2001 contribution year means the period— (a) commencing on a date (whether falling in the year 2000 or 2001) to be fixed by the Minister, by notice in the Gazette; and (b) ending on 30 September 2001; disposal basins means basins used, or intended to be used, to hold water pumped from the ground water mound and from underground water lying above the layer of Blanchetown Clay in the Scheme Area for the purpose of disposal by evaporation and seepage; disposal capacity of the Scheme means the capacity of the Scheme infrastructure to pump water into the disposal basins and the capacity of the disposal basins to hold water; domestic partner means a person who is a domestic partner within the meaning of the Family Relationships Act 1975, whether declared as such under that Act or not; electricity transmission lines includes— (a) cables for the transmission of electricity; and (b) posts, pylons, pipes and equipment for carrying or laying electricity cables over or under land; and (c) transformers and other equipment required for the transmission and use of electricity; ERD Court means the Environment, Resources and Development Court; the ground water mound means the underground water in the Loxton Sands and the Murray Group Limestone aquifers the upper level of which has been raised to the shape of a mound by irrigation; irrigated land means land that— (a) is within the Scheme Area and comprises the whole or part of an irrigated property; and (b) is, or has in the past been, subject to irrigation with water taken pursuant to a water licence or water allocation under the Landscape South Australia Act 2019; irrigated property means a property the whole or part of which is situated in the Scheme Area and— (a) is, or has in the past been, irrigated wholly or partly with water taken pursuant to a water licence or water allocation under the Landscape South Australia Act 2019; and (b) is, or has in the past been, used to carry on the business of primary production or some other enterprise and is, or has in the past been, managed as a single unit for that purpose (whether the land comprising the property is a single parcel or is made up of a number of parcels physically separated from each other); irrigation authority means— (a) in the case of a private irrigation district under the Irrigation Act 1994—the irrigation trust for that district; (b) in the case of a government irrigation district under that Act—the Minister for the time being administering that Act; irrigation declaration means a declaration by the owner of an irrigated property under section 54; member of the Trust—see section 5; Murray‑Darling Basin Agreement means the Murray‑Darling Basin Agreement, a copy of which is set out in Schedule 1 of the Water Act 2007 of the Commonwealth, as in force from time to time; owner of land means— (a) where the land has been granted in fee simple— (i) in the case of land that is subject to a life estate—the holder of the life estate; (ii) in any other case—the holder of the estate in fee simple in the land; (b) where the land is held from the Crown under lease or licence—the lessee or the licensee; (c) where the land is held from the Crown under an agreement to purchase—the person who has the right to purchase; relative in relation to a person means the spouse, domestic partner, parent or remoter lineal ancestor, son, daughter or remoter issue or brother or sister of the person; risk in relation to land means the risk of waterlogging or salinisation of that land or other land resulting from irrigation of the firstmentioned land; risk management allocation—see section 40; the Scheme means the scheme established by this Act— (a) to pump water into the disposal basins from the ground water mound and from underground water lying above the layer of Blanchetown Clay in the Scheme Area; and (b) to drain water from the underground water lying above the layer of Blanchetown Clay in the Scheme Area into the ground water mound; and (c) to pump water from the underground water lying above the layer of Blanchetown Clay in the Scheme Area to land on which it will be used for irrigation; Scheme Area means the area shown in Schedule 1; Scheme infrastructure means the system of wells, pipes, pumps, tanks and other infrastructure (including electricity transmission lines) used, or to be used, for the purposes of the Scheme (but does not include disposal basins); spouse—a person is the spouse of another if they are legally married; the Trust means the Qualco-Sunlands Ground Water Control Trust established by this Act; water disposal easement—see Part 4; water licence means a water licence granted under the Landscape South Australia Act 2019; waterlogging and salinity risk management allocation—see section 40; water usage year means the period of 12 months from 1 July to the following 30 June; well means— (a) an opening in the ground excavated for the purpose of obtaining access to underground water; (b) an opening in the ground excavated for some other purpose that gives access to underground water; (c) a natural opening in the ground that gives access to underground water. (2) Subject to subsection (3), where two or more irrigated properties are managed by the same person or by different persons who are associates (see subsection (4)), the properties will be taken to constitute a single irrigated property for the purposes of this Act. (3) If, on the application of one or more of the persons referred to in subsection (2), the Trust is satisfied that one or more of the properties referred to in that subsection is managed as a single unit separately from the other or others, the Trust must declare the property to be an irrigated property separate from the other or others for the purposes of this Act. (4) A person is an associate of another person if— (a) a relationship of a kind referred to in subsection (5) exists between them; or (b) they are linked by a series of relationships of a kind or kinds referred to in subsection (5) through one or more other persons. (5) Subsection (4) applies in relation to the following kinds of relationships: (a) the relationship between relatives; (b) the relationship between a guardian and a child or a guardian and a protected person; (c) the relationship between partners; (d) the relationship between employer and employee; (e) the relationship where one person is bound to, or usually does, act in accordance with the directions, instructions or wishes of another person; (f) the relationship between a body corporate and an executive officer of the body corporate; (g) the relationship between a body corporate and a person who is in a position to control or influence the activities of the body corporate; (h) fiduciary relationships. (6) Where— (a) land in the Scheme Area is irrigated with underground water supplied by the Trust under a scheme to reuse underground water for irrigation; and (b) at times when underground water is scarce the Trust uses water taken pursuant to a water licence or water allocation under the Landscape South Australia Act 2019 to meet its obligations to supply water to the land, the use of water taken pursuant to a water licence or water allocation for that purpose will not be taken into account in determining whether the land is an irrigated property for the purposes of this Act. (7) For the purposes of this Act— (a) a water usage year corresponds to the contribution year that commences during the water usage year; and (b) a contribution year corresponds to the water usage year that ends during the contribution year. (8) In this Act, a reference to contribution year includes a reference to the 2000/2001 contribution year. (9) The first water usage year for the purposes of this Act is the period of 12 months from 1 July 2000 to 30 June 2001. 4—Provisions relating to irrigation districts (1) Where the whole or part of an irrigation district under the Irrigation Act 1994 comprises part of the Scheme Area and there are no water allocations under that Act in respect of any of the irrigated properties (within the meaning of that Act) comprising the district (or the part of it that is within the Scheme Area) or water allocations do exist in respect of some of those properties but not all of them, the following provisions apply— (a) the irrigation authority for the irrigation district is a member of the Trust if a waterlogging and salinity risk management allocation is attached to the irrigated land of the district; and (b) the irrigation district (or the part of it within the Scheme Area) will be taken to be an irrigated property owned by the irrigation authority; and (c) the irrigated properties (within the meaning of the Irrigation Act 1994) comprising the irrigation district (or the part of it within the Scheme Area) are not irrigated properties for the purposes of this Act; and (d) each of the owners of the irrigated properties (within the meaning of the Irrigation Act 1994) comprising the irrigation district (or the relevant part of it) will be taken not to own their respective properties but to be an occupier of the property concerned in addition to any other person in actual occupation of the property. (2) Subject to subsection (3), where the whole or part of an irrigation district under the Irrigation Act 1994 comprises part of the Scheme Area and water allocations exist under that Act in respect of all of the irrigated properties (within the meaning of that Act) comprising the district (or that part of the district that is within the Scheme Area), the following provisions apply— (a) the irrigation authority for the irrigation district is not a member of the Trust; and (b) the irrigated properties comprising the irrigation district (or the relevant part of it) are irrigated properties for the purposes of this Act as though the irrigation district did not exist; and (c) the owners of those properties to which, or to part of which, a waterlogging and salinity risk management allocation is attached under this Act are members of the Trust. (3) Where subsection (1) applies in relation to an irrigation district under the Irrigation Act 1994 and water allocations are subsequently fixed under that Act so that water allocations exist under that Act in respect of all of the irrigated properties under that Act comprising the district (or the relevant part of it), subsection (1) will continue to apply in relation to the district until the expiration of three months (or such longer period as is fixed in the notice) after the irrigation authority for the district has served written notice on the Trust that subsection (2) will apply to the irrigation district instead of subsection (1). (4) Where subsection (2) applies to an irrigation district in pursuance of a notice under subsection (3), the waterlogging and salinity risk management allocation attached to each of the categories of irrigated land comprising the district will be divided between the irrigated properties (comprising the district) that include the relevant category of land in proportion to the water allocations under the Irrigation Act 1994 of the properties concerned. (5) For the purposes of this Act, land may comprise an irrigated property within the meaning of the Irrigation Act 1994 despite the fact that a water allocation does not apply to the property under that Act (see the definition of irrigated property in section 4(1) of the Irrigation Act 1994). Part 2—The Qualco-Sunlands Ground Water Control Trust Division 1—Establishment of the Trust 5—Establishment of the Trust (1) The Qualco-Sunlands Ground Water Control Trust is established. (2) The members of the Trust are the owners for the time being of irrigated properties to which, or to a part of which, a waterlogging and salinity risk management allocation is attached under this Act (if section 4(1) applies to an irrigation authority, the authority is a member of the Trust). (3) The Trust— (a) is a body corporate; and (b) has perpetual succession and a common seal; and (c) can sue and be sued in its corporate name; and (d) holds its property on behalf of the Crown; and (e) has the functions assigned to, or conferred on, it by or under this or any other Act; and (f) has all the powers of a natural person in addition to the powers conferred on it by this or any other Act. (4) Where a document appears to bear the common seal of the Trust, it will be presumed, in the absence of proof to the contrary, that the document was duly executed by the Trust. (5) The following matters are declared to be excluded matters for the purposes of section 5F of the Corporations Act 2001 of the Commonwealth in relation to the whole of the Corporations legislation to which Part 1.1A of that Act applies: (a) the Trust; (b) an act or omission of any person, body or other entity in relation to the Trust. 6—Transfer of assets etc of Qualco-Sunlands District Drainage Incorporated to Trust (1) On the commencement of this section, the property and rights of Qualco-Sunlands District Drainage Incorporated comprising or related to the Scheme infrastructure are divested from that body and vest in the Trust. (2) On the commencement of this section, the liabilities of Qualco-Sunlands District Drainage Incorporated incurred under contracts for or in relation to the construction of the Scheme infrastructure cease to be liabilities of that body and become liabilities of the Trust. (3) The persons who were, immediately before the commencement of this section, employed by Qualco-Sunlands District Drainage Incorporated will, at the commencement of this section, be taken to be employed (and to have been employed since the commencement of their employment with Qualco-Sunlands District Drainage Incorporated) by the Trust on the terms and conditions of their employment by Qualco-Sunlands District Drainage Incorporated. 7—Presiding officer and deputy presiding officer of the Trust (1) Subject to subsections (2) and (3), the first presiding officer and deputy presiding officer of the Trust will be the persons who were, immediately before the commencement of this section, the chairman and deputy chairman of Qualco-Sunlands District Drainage Incorporated. (2) The presiding officer and deputy presiding officer of the Trust must be members of the Trust. (3) A resolution passed at a general meeting of the Trust— (a) may remove a person from the office of presiding officer or deputy presiding officer of the Trust; and (b) may appoint to the office of presiding officer or deputy presiding officer any member of the Trust. (4) The deputy presiding officer may act in the absence of the presiding officer or during a vacancy in the office of presiding officer. Division 2—Meetings of the Trust 8—Calling of meetings (1) A meeting of the Trust may be called at any time by the presiding officer or by a group of members who would constitute a quorum at a meeting of the Trust. (2) The presiding officer must call a meeting of the Trust (the annual general meeting) at least once in each year. (3) At least 14 days written notice specifying the time and place of each meeting must be given to every member of the Trust. (4) The time and place of a meeting of the Trust must, as far as practicable, be convenient to the members of the Trust. 9—Procedure at meetings of Trust (1) The presiding officer will preside at meetings of the Trust or, in his or her absence, the deputy presiding officer will preside or, in the absence of both of them, a member chosen by the members present will preside. (2) Members at a meeting of the Trust form a quorum if— (a) their number is equal to or greater than one third of the number of members of the Trust; and (b) the aggregate of the waterlogging and salinity risk management allocations attached to the land owned by those members is at least one third of the aggregate of all risk management allocations attached to land in the Scheme Area. (3) The following provisions apply when determining whether a quorum is present at a meeting— (a) if one third of the number of members of the Trust include a fraction, the fraction will be ignored; and (b) two or more persons who are members of the Trust in respect of the same irrigated property will be counted as one member of the Trust; and (c) a non-member who has been nominated to represent a member at the meeting will be counted (but if the non-member is representing two or more members, he or she will only be counted once). (4) Subject to this Act, a resolution will be carried if— (a) the number of votes supporting it exceeds the number of the votes against it; and (b) the value of the votes supporting the resolution exceeds the value of the votes against it, (if the number or value of the votes are equal under paragraph (a) or (b), the deadlock in each case will be resolved by the casting vote of the person presiding at the meeting). (5) A resolution of the Trust to make a recommendation to the Governor to vary the regulations that determine the shares in which members contribute to the cost of the Scheme can only be carried if— (a) twenty one days notice of the proposed resolution has been given to the members; and (b) the number of votes supporting the resolution exceeds one half of the number of members who are entitled to attend and vote on the resolution; and (c) the value of the votes supporting the resolution exceeds one half of the total value of the votes that could be cast at the meeting if all members of the Trust had attended and voted on the resolution. (6) Twenty one days notice must be given of a resolution that varies or revokes a decision made by resolution of the Trust within the preceding 12 months. (7) Subject to this Act, the Trust may determine its own procedures. (8) The Trust must keep minutes of its proceedings. 10—Notice of meetings where ownership of property changes Where the ownership of an irrigated property has changed, notice of a proposed meeting or resolution will be taken to have been given to the new owner if it had been given to the previous owner. 11—Voting (1) Subject to this section, each member of the Trust is entitled to vote at meetings of the Trust. (2) A member may nominate another person to attend a meeting instead of the member and to vote at the meeting on his or her behalf. (3) Where two or more persons are members of the Trust by reason of their ownership of the same irrigated property, a person must be nominated by both or all of them to vote on their behalf. (4) A nomination referred to in subsections (2) and (3) must be made by written notice to the Trust and may be revoked by the member, or all of the members, concerned by subsequent written notice to the Trust. (5) Where a person who is not a member of the Trust has been nominated by a member or members to attend and vote at a meeting of the Trust, that person must be regarded as a member of the Trust for the purposes of proceedings at the meeting. (6) Subject to subsection (7), the values of votes at meetings of the Trust will be in proportion to the amount of the respective waterlogging and salinity risk management allocations attached to the land owned by the members voting. (7) The basis for determining the values of votes can be changed by a resolution of the Trust if the following requirements are complied with: (a) twenty one days notice of the proposed resolution must have been given to the members; and (b) the number of votes supporting the resolution must exceed one half of the number of members who are entitled to attend and vote on the resolution; and (c) the value of votes supporting the resolution must exceed one half of the total value of the votes that could be cast at the meeting if all members of the Trust had attended and voted on the resolution. (8) Where an irrigation authority is a member of the Trust, a person who is the owner of an irrigated property within the meaning of the Irrigation Act 1994 that comprises part of the authority's irrigation district under that Act is entitled to attend meetings of the Trust but is not entitled to notice of meetings or to vote at meetings of the Trust. Division 3—Board of management, committees and delegation 12—Board of management (1) The Trust may appoint a board of management to carry out the day to day operations of the Trust. (2) The Trust may appoint committees for specific purposes. 13—Delegation (1) Subject to subsection (2), the Trust may delegate any of its functions or powers under this Act to its board of management, a committee or to any other person. (2) The Trust cannot delegate its power of delegation or the power to make decisions that are required by this Act to be made by a resolution of which 21 days notice has been given. (3) A delegation must be in writing and may be conditional or unconditional. (4) The Trust may vary or revoke a delegation at will and a delegation does not prevent the carrying out of any function or the exercise of any power by the Trust. 14—Notice of resolution The decision of the Trust— (a) to appoint a board of management; or (b) to delegate functions or powers to a board of management, a committee or to any other person, must be made by resolution of which 21 days notice has been given. Division 4—Accounts and audit 15—Accounting records to be kept (1) The Trust must keep accounting records that correctly record and explain its financial transactions and financial position. (2) The records must be kept in a form— (a) that facilitates the convenient and proper auditing of the records; and (b) that facilitates the preparation of true and fair financial statements in a form that facilitates the convenient and proper auditing of the statements. 16—Preparation of financial statements (1) The Trust must, as soon as practicable after the end of each contribution year, cause financial statements in respect of that contribution year to be prepared in accordance with recognised accounting standards and cause the statements to be audited. (2) An audit must be carried out by— (a) a registered company auditor; or (b) a firm of registered company auditors; or (c) a member of the Australian Society of Certified Practising Accountants; or (d) a member of The Institute of Chartered Accountants in Australia. (3) The following persons must not be appointed as auditor of the accounts of the Trust: (a) a member of the Trust; or (b) the owner of an irrigated property who is not a member of the Trust; or (c) the owner of an irrigated property within the meaning of the Irrigation Act 1994 who is not a member of the Trust (see section 4(1)). (4) An auditor of the Trust has a right of access at all reasonable times to the accounting records and other records of the Trust and is entitled to require from any officer or employee of the Trust or any other person such information and explanations as he or she requires for the purposes of the audit. (5) An officer or employee of the Trust or other person must not, without lawful excuse— (a) refuse or fail to allow an auditor access, for the purposes of an audit, to any accounting records and other records of the Trust in his or her custody or control; or (b) refuse or fail to give any information or explanation as and when required by an auditor; or (c) otherwise hinder, obstruct or delay an auditor in the exercise or performance of a power or function of the auditor. Maximum penalty: $5 000. (6) An auditor must, on the completion of the audit, prepare a report on the audit. 17—Accounts etc to be laid before annual general meeting (1) At each annual general meeting of the Trust, the Trust must lay before the meeting— (a) a copy of the audited financial statements of the Trust for the previous contribution year and a copy of the auditor's report; and (b) a report prepared by the Trust on the operations of the Trust in the previous contribution year. (2) At the request of the Minister or any member of the Trust, the Trust must provide the Minister or member with a copy of the audited financial statements, the auditor's report and the report prepared by the Trust in respect of the contribution year to which the request relates. (3) The Trust must make the minutes of meetings of the Trust available for inspection by its members and must, on payment of the prescribed fee, provide a member with a copy of the minutes of one or more of its meetings. Division 5—Appointment of administrator 18—Appointment of administrator (1) The Minister may appoint an administrator of the Trust and may remove or replace an administrator previously appointed. (2) Before appointing an administrator of the Trust, the Minister must be satisfied that the Trust— (a) has persistently failed to perform its functions properly; or (b) has contravened, or failed to comply with, a provision of this Act; or (c) has been guilty of financial mismanagement. (3) The function of an administrator is to reorganise the management and operations of the Trust to the extent necessary to enable it to perform its function and duties and exercise its powers efficiently on a continuing basis in accordance with this Act. (4) An administrator has, while the appointment remains in force, full and exclusive power to perform the functions and duties and exercise the powers of the Trust. (5) An administrator must comply with any directions that the Minister may give from time to time. (6) If an administrator has a direct or indirect personal or pecuniary interest in any matter in relation to which he or she proposes to act as administrator under this section, he or she must disclose the nature of the interest to the Minister before acting. Maximum penalty: $10 000. (7) The remuneration of an administrator will be fixed by the Minister and is payable from the Trust's funds. (8) The administrator may, by written instrument, delegate any of his or her powers except this power of delegation. (9) A delegation under subsection (8)— (a) may be made on such conditions as the administrator thinks fit; and (b) is revocable at will; and (c) does not derogate from the power of the administrator to act in any matter personally. (10) A person to whom powers have been delegated under subsection (8) who has a direct or indirect personal or pecuniary interest in any matter in relation to which he or she proposes to exercise those powers must disclose the nature of the interest in writing to the administrator. Maximum penalty: $10 000. (11) It is a defence to a charge of an offence against subsection (6) or (10) to prove that the defendant was not, at the time of the alleged offence, aware of his or her interest in the matter. Part 3—Functions and powers of the Trust Division 1—Construction and maintenance of the Scheme infrastructure 19—Construction of the Scheme infrastructure (1) Subject to subsection (3), the Trust must construct such infrastructure (that is not already in existence) as is required for the purpose of pumping water into the disposal basins. (2) The infrastructure must be constructed in accordance with specifications determined or approved by the Minister as to— (a) depth, size and capacity; and (b) quality of materials and equipment; and (c) design and method of construction; and (d) such other matters as the Minister thinks fit. (3) The Trust is only required to comply with this section if it receives adequate Government funding to do so. (4) The Minister and the Trust may agree to increase the capacity of the Scheme infrastructure under this section at any time by increasing the capacity of the existing wells, pipes, pumps, tanks or other infrastructure or adding new wells, pipes, pumps, tanks or other infrastructure to the Scheme. 20—Infrastructure for reuse of underground water The Trust may purchase or construct such infrastructure as it requires to enable the reuse of underground water for irrigation. 21—Maintenance and repair of infrastructure The Trust must maintain and repair the Scheme infrastructure so that it is capable of operating efficiently at all times. 22—Vesting of Scheme infrastructure (1) The Scheme infrastructure is vested in the Trust. (2) Subsection (1) does not preclude the Trust from transferring or otherwise dealing in the Scheme infrastructure. 23—Insurance of Scheme infrastructure (1) The Trust must, to the extent that it is reasonably practicable to do so, insure the Scheme infrastructure against— (a) risks that a normally prudent person would insure against; and (b) risks that are prescribed by regulation. (2) The insurance must, if possible, be for the full cost of replacing the Scheme infrastructure with new materials and equipment. (3) The Trust must, to the extent that it is reasonably practicable to do so, insure itself against— (a) risks that a normally prudent person would insure against; and (b) risks that are prescribed by regulation. Division 2—Disposal basins 24—Provision of disposal basins The Minister will provide, or arrange for the provision of, one or more disposal basins connected to the Scheme infrastructure having a collective capacity— (a) to accept water from the Scheme infrastructure at the rate of 100 litres per second; and (b) that ensures that there will be no period of 12 months during which the disposal basins are unable to accept at least 2840 megalitres of water. Division 3—Operation of the Scheme 25—Operation of the Scheme (1) The Trust must operate the Scheme in a manner that achieves a Government cost/benefit ratio that is equal (as far as practicable) to the Trust's cost/benefit ratio. (2) The Governments' cost/benefit ratio is the ratio of the money contributed to, or in relation to, the Scheme by the Commonwealth Government and the State Government to the benefits (expressed in monetary terms) derived by the State Government and the South Australian community generally as a result of reduction in salinity levels in the River Murray from the operation of the Scheme. (3) Except for the first $300,000 dollars expended by the Minister in providing disposal basins as required by Division 2, the cost of providing disposal basins in compliance with that Division will not be taken into account when determining the Governments' cost/benefit ratio. (4) Any cost to the Government in increasing the number or capacity of the disposal basins above the requirements of Division 2 will be taken into account when determining the Governments' cost/benefit ratio. (5) The Trust's cost/benefit ratio is the ratio of the money contributed by the owners and occupiers of those irrigated properties that are owned by members of the Trust to the operation and maintenance of the Scheme to the benefits (expressed in monetary terms) derived by the owners and occupiers of those irrigated properties from the operation of the Scheme. (6) The methodologies to be used to determine the Governments' and the Trust's cost/benefit ratios must be designed by an expert appointed by the Minister and the Trust. (7) The Trust must keep (and make available to the Minister) such records as are necessary or desirable for the application of the methodologies referred to in subsection (6). (8) The methodologies must be reviewed from time to time at the request of the Minister or the Trust by an expert appointed by them. (9) If the Minister and the Trust cannot agree on the appointment of an expert under this section, the appointment will be made by the Governor. (10) The cost of, or relating to, designing the methodologies for the purposes of this section will be paid by the Minister and the Trust in equal shares. (11) The cost of, or relating to, reviewing the methodologies will be paid by the party requesting the review and must be taken into account when determining cost/benefit ratios under this section. 26—Amendment of salinity credits by Trust (1) Subject to subsection (2), the Trust may enter into an agreement with another person to produce salinity credits recognised under the Murray-Darling Basin Agreement on behalf of that person by pumping additional water from the ground water mound in the Scheme Area. (2) An agreement under subsection (1) can not be made without the approval of the Minister. (3) The costs incurred by the Trust in producing salinity credits under an agreement referred to in subsection (1) and the consideration received by the Trust under the agreement must be taken into account when determining the Trust's cost/benefit ratio under section 25. Division 4—Powers of the Trust 27—Powers of Trust (1) The Trust has all powers necessary for or incidental to the construction, maintenance, purchase and operation of the Scheme infrastructure in accordance with this Act. (2) Without limiting subsection (1), the Trust may— (a) enter or occupy any land or authorise any other person to enter or occupy any land if, in the Trust's opinion, it is necessary or desirable for the Trust or other person to do so for the purpose of planning, designing, constructing, maintaining or operating the Scheme infrastructure or carrying out any other function or exercising any other power of the Trust under this Act (this power is in addition to the rights of the Trust under the water disposal easement); (b) drill wells; (c) lay pipes above or below ground; (d) construct pumping stations and install and operate pumps and other equipment; (e) construct or erect embankments, roads, buildings, structures or any other works; (f) construct electricity transmission lines; (g) excavate trenches; (h) inspect, clean, maintain, repair, alter, renew or replace any well, pipe, pumping station or other component forming part of the Scheme infrastructure; (i) clear any well, pipe, pumping station, or other component forming part of the Scheme infrastructure; (j) inspect, examine or survey land in connection with the planning, design or construction of the Scheme infrastructure and for that purpose the Trust may— (i) fix posts, stakes or other markers on the land; (ii) dig trenches or sink test holes on the land to determine the nature of the top soil and underlying strata; (iii) remove samples of any material from the land for analysis; (k) with the written approval of the Minister, purchase, sell or deal in any other manner with salinity credits recognised under the Murray-Darling Basin Agreement; (l) with the written approval of the Minister, transfer, mortgage, lease or otherwise deal with the Scheme infrastructure and the other property of the Trust; (m) with the written approval of the Treasurer, borrow money or obtain any other form of financial accommodation. (3) A person entering land under this section must comply with the requirements of section 71. (4) The written approval of the Minister under subsection (2)(l) may be to a transaction identified in the approval or may be to unidentified future transactions of a class identified in the approval. Part 4—Water disposal easement 28—Acquisition of easement (1) The Minister is authorised to acquire an easement (the water disposal easement) for the purpose of the construction, operation and maintenance of the Scheme infrastructure as initially constructed or subsequently extended under this Act. (2) The easement will be an easement in gross and does not depend on the existence of a dominant tenement. (3) The Minister may acquire the easement pursuant to a contract with the owners of the land concerned or pursuant to the Land Acquisition Act 1969. (4) The Minister must, as soon as reasonably practicable after the easement is vested in the Minister, transfer the easement to the Trust. (5) No duty is payable under the Stamp Duties Act 1923 in respect of the transfer. 29—Rights conferred by easement (1) The easement entitles the person in whom it is vested and any person authorised by that person to use the land subject to the easement (the servient land) for the purpose of, or relating to— (a) drilling wells; and (b) laying pipes so that the uppermost surface of the pipe is at least 600 millimetres below ground level; and (c) constructing pumping stations and installing pumps and other equipment; and (d) constructing roads, buildings, structures and other works; and (e) constructing electricity transmission lines; and (f) excavating trenches; and (g) using the Scheme infrastructure to pump water in accordance with this Act and using the electricity transmission lines for the transmission of electricity; and (h) monitoring the operation of the Scheme infrastructure; and (i) inspecting, cleaning, clearing, maintaining, repairing, altering, renewing and replacing any part of the Scheme infrastructure; and (j) any other activity that is necessary or desirable for the purposes of this Act. (2) For the purposes of carrying out the Trust's functions, the Trust, or a person authorised by the Trust, may temporarily enter and occupy land adjacent to the servient land. (3) The Trust, or a person authorised by the Trust, may, for the purpose of exercising rights conferred by the easement, enter, pass over and occupy the servient land or the land referred to in subsection (2) at any time (with or without motor vehicles and other equipment). (4) A person entering land under this section must comply with the requirements of section 71. 30—Minimisation of damage etc (1) A person exercising rights under the water disposal easement must take reasonable steps— (a) to minimise damage to land or other property (including damage to pastures and native vegetation) from work or activities carried out in the exercise of rights conferred by the easement; and (b) to avoid unnecessary interference with land or other property, or the use or enjoyment of land or other property, caused by the exercise of rights under the easement. (2) A person exercising rights under the water disposal easement must not engage in activities involving substantial destruction of vegetation on the servient land unless— (a) there is no feasible way of avoiding clearance of the vegetation if rights conferred by the easement are to be effectively exercised; or (b) the Minister gives written approval for clearance of the vegetation. 31—Issue of certificate of title for water disposal easement The Registrar-General must, on application by the Trust, issue a certificate for the water disposal easement or a particular part of the easement. 32—Dealing with easement (1) The Trust must not enter into an agreement or other transaction affecting the water disposal easement without the written approval of the Minister. (2) The Registrar-General must not register any dealing with the easement without the written approval of the Minister. Part 5—Impact of irrigation on waterlogging and salinisation Division 1—Classification of land 33—Classification of land in the Scheme Area (1) The Minister and the Trust must classify all irrigated land as land the irrigation of which creates a high, medium or low risk of waterlogging or salinisation of that land or other land. (2) The land must be classified twice under this section in respect of the risk of waterlogging or salinisation caused by— (a) firstly—the rising level of the ground water mound; and (b) secondly—the rising level of underground water accumulating above the layer of Blanchetown Clay in the Scheme Area. (3) If the regulations prescribe degrees of risk other than high, medium and low for the purposes of classification under this section, the Minister and the Trust must, as soon as practicable after the regulations come into operation, classify all irrigated land in accordance with those degrees of risk. (4) The Minister and the Trust, on the application of— (a) the owner of an irrigated property who proposes irrigating part of the property that is unclassified; or (b) the owner of unclassified land in the Scheme Area who proposes developing the land as an irrigated property or adding the land to an existing property, must classify in accordance with this section that part of the land that will be irrigated. (5) The classification of land under this section must be— (a) based on such information as the Minister and the Trust (or the Governor acting under subsection (9)) thinks is relevant; and (b) in accordance with a hydrogeological model approved by the Minister and the Trust. (6) The Minister and the Trust may require the owner of land to provide (at the owner's expense) the Minister and the Trust with information in relation to the land for the purposes of subsection (5)(a). (7) If a landowner fails to provide information required under subsection (6), the Minister and the Trust (or the Governor acting under subsection (9)) may classify the land at the highest degree of risk. (8) The Minister and the Trust— (a) may approve variations to the hydrogeological model referred to in subsection (5), or may approve a different model in substitution for the previous model, at any time; and (b) must, if the Minister considers that it is necessary to do so, review the classification of all, or any part, of the land classified under this section; and (c) must review the classification of all land classified under this section at intervals of not more than 5 years; and (d) may vary the classification of land under this section following a review under paragraph (b) or (c). (9) If the Minister and the Trust cannot reach agreement as to— (a) the approval of a variation to the hydrogeological model or the approval of a different model in substitution for the previous model; or (b) the classification, or variation of the classification, of land under this section, the Minister may refer the matter to the Governor for determination. (10) On— (a) the initial classification of land under this section; or (b) the classification of land following the prescription of degrees of risk by regulation under subsection (3); or (c) the classification of previously unclassified land under subsection (4); or (d) the variation of the classification of land under subsection (8)(d), the Minister and the Trust must cause to be published in the Gazette a map showing all the classified land in the Scheme Area and the classification of that land. 34—Members of the Trust to be consulted (1) Before the Minister and the Trust vary the classification of land under section 33 or before the Minister refers a question of the variation of classifications to the Governor under that section, the Trust must serve notice on the owner of each irrigated property that will be involved in, or affected by, the reclassification, inviting the owner to make written submissions as to the impact of irrigation on his or her land or neighbouring land. (2) The notice must provide a period of at least 28 days within which the owner may make submissions. (3) Before varying the classification of land under section 33, the Minister and the Trust (or, where the Governor is making a determination under section 33(9), the Governor) must have regard to all submissions made in accordance with the notice. (4) Where two or more persons are members of the Trust by virtue of ownership of the same irrigated property, service of the notice under subsection (1) on one of them will be taken to be service on all of them. Division 2—Categories of land 35—Categories of land (1) The regulations may prescribe categories of irrigated land based on the classification of that land under Division 1. (2) The category of the land may be a factor specified by regulations under section 48 for determining the shares in which the owners and occupiers of irrigated properties are liable for the costs of the Scheme. Division 3—Certificate of zero impact 36—Certificate of zero impact (1) Subject to subsection (2), an owner of an irrigated property may apply to the Minister for a certificate that the irrigation of land comprising the whole or part of the property will have no impact on both— (a) waterlogging or salinisation of the land or any neighbouring land; and (b) the salinity levels in the River Murray. (2) Where— (a) the land comprises part of an irrigation district under the Irrigation Act 1994; and (b) the irrigation authority for the district under that Act is not a member of the Trust under this Act, the application can only be made with the written approval of the irrigation authority. (3) The application must— (a) be made in the manner, and be accompanied by the information, required by the Minister; and (b) be accompanied by the fee prescribed by regulation. (4) The Minister may grant a certificate of zero impact if he or she is satisfied— (a) that irrigation of the land will have no impact on either waterlogging or salinisation of the applicant's land or any other land or on salinity levels in the River Murray— (i) because the land is adequately drained by a system that is independent of the Scheme infrastructure; or (ii) because the only water used for irrigation is taken from underground water accumulated above the layer of Blanchetown Clay in the Scheme Area; or (iii) for any other reason; and (b) that the Scheme does not improve the use of the land for the purposes of primary production in any way. (5) Before granting a certificate, the Minister must consult the Trust and take into account the Trust's views. (6) The Minister may grant a certificate— (a) for such term as he or she thinks fit; and (b) subject to such terms, conditions and limitations as he or she thinks fit. (7) Without limiting subsection (6), a certificate may— (a) limit the quantity of water that may be used to irrigate the land; and (b) specify the method or methods that may be used to irrigate the land; and (c) include requirements relating to the maintenance, repair and replacement of the drainage system for the land; and (d) require the owner or occupier of the land to periodically provide the Minister with such declarations or other evidence as the Minister requires to satisfy the Minister that the terms, conditions and limitations of the certificate have been complied with; and (e) require the owner and occupier of the land to permit the Minister, or a person authorised by the Minister, to— (i) inspect the land; and (ii) inspect the irrigation and drainage systems on the land; and (iii) read meters; and (iv) do anything else that is reasonably required to ensure that the irrigation of the land continues to have no impact on waterlogging or salinisation of land and salinity levels in the River Murray; and (f) require the owner or occupier of the land to pay the reasonable costs of the Minister (to be fixed by the Minister) for the supervision required under paragraphs (d) and (e). 37—Variation or termination of certificate (1) The Minister may vary or terminate a certificate of zero impact at any time if— (a) the owner or occupier, or a person acting on behalf of the owner or occupier, contravenes or fails to comply with the terms, conditions or limitations of the certificate; or (b) the Minister is satisfied that irrigation on the land is having an impact on waterlogging or salinisation of land or salinity levels in the River Murray. (2) The Minister must serve notice of the variation or termination of the certificate on the owner and occupier of the land concerned and, subject to section 38(6), the variation or termination will take effect at the expiration of 30 days, or such longer period as is specified in the notice, after the time of service. (3) The notice must set out detailed particulars of the Minister's reasons for the variation or termination of the certificate. 38—Appeal to the ERD Court (1) Where on an application for a certificate under section 36— (a) the Minister refuses the application; or (b) the applicant is dissatisfied with the terms, conditions or limitations of the certificate, the applicant may appeal to the ERD Court within 30 days after receiving notice of the decision. (2) The owner or occupier of land may appeal to the ERD Court against the termination or variation under section 37 of a certificate of zero impact in relation to the land at any time before the termination or variation takes effect. (3) An appeal under this section must be instituted in a manner and form determined by the Court. (4) An appeal must be referred in the first instance to a conference under section 16 of the Environment, Resources and Development Court Act 1993 (and the provisions of that Act will then apply in relation to the appeal). (5) On hearing an appeal, the Court may— (a) affirm or vary the decision appealed against or substitute any decision that should have been made in the first instance; or (b) remit the subject matter of the appeal to the Minister for further consideration. (6) If an appeal has been instituted under subsection (2), the Court may suspend the operation of the decision appealed against until the determination of the appeal. (7) The Court may terminate a suspension under subsection (6) at any time. Division 4—Reducing the impact of irrigation 39—Rewards for reducing the impact of irrigation (1) The Governor may, by regulation made on the recommendation of the Trust, establish a scheme under which the owner or occupier of an irrigated property is rewarded for reducing the impact of irrigation on the property on— (a) waterlogging or salinisation of the land comprising the property or any other land; or (b) salinity levels in the River Murray; or (c) both of those problems. (2) Without limiting the power to make regulations establishing a scheme under subsection (1), regulations made for that purpose may— (a) exempt a person entitled to rewards under the scheme from any provision of this Act or may modify the operation of any provision of this Act in relation to such a person; (b) provide for appeals to the ERD Court in relation to the operation of the scheme. Part 6—Allocation of the Scheme's risk management capacity 40—Waterlogging and salinity risk management allocation (1) A waterlogging and salinity risk management allocation (or risk management allocation) is an allocation to the irrigated land of an irrigated property of part of the capacity of the Scheme to manage the risk of waterlogging and salinisation of land and increasing levels of salinity in the River Murray resulting from irrigation of land in the Scheme Area. (2) The risk management allocation of an irrigated property is attached to the irrigated land comprising the whole or part of the property. (3) A risk management allocation, or part of a risk management allocation, may be transferred in accordance with section 44 from one category of irrigated land to another. (4) The risk management allocation attached to a category of irrigated land authorises (for the purposes of this Act but not for the purposes of any other Act) the person in occupation of the land to use a quantity of water taken pursuant to a water licence or a water allocation under the Landscape South Australia Act 2019 equivalent to the allocation to irrigate the land in each water usage year. (5) Subject to this Part, a risk management allocation— (a) cannot be dealt with separately from the land to which it is attached; and (b) is attached proportionally to all parts of that land so that if part of the land is transferred (or dealt with in any other manner) an equivalent part of the allocation is transferred with it. (6) Although a risk management allocation is attached proportionally to the land for the purpose of transfer or other dealings with the land, the quantity of water authorised by an allocation for the irrigation of a particular category of land comprising the whole or part of an irrigated property can be used on any part of that land. (7) The owner of land may, in an irrigation declaration, surrender the whole or part of the risk management allocation attached to the land. 41—Application for initial risk management allocation (1) The owner of an irrigated property to which a water licence referred to in Schedule 2 was applicable on 10 April 2000 is entitled, in his or her irrigation declaration for the 2000/2001 contribution year, to apply for and be granted a waterlogging and salinity risk management allocation for the quantity of water appearing opposite the water licence in that Schedule. (2) An owner of an irrigated property who applies under subsection (1) for a risk management allocation in the irrigation declaration referred to in that subsection may also apply under section 43 in the same declaration for an additional risk management allocation from the excess risk management capacity of the Scheme. 42—Determination of excess capacity (1) The excess capacity (if any) of the Scheme infrastructure to manage the waterlogging and salinisation of land and increasing levels of salinity in the River Murray must be determined and redetermined by the Minister and the Trust in accordance with this section. (2) The first determination of risk management capacity operates in relation to the contribution year in which the pumping of water into the disposal basins commences and in relation to subsequent contribution years. (3) The excess capacity of the Scheme infrastructure must be redetermined by the Minister and the Trust at intervals of not more than 5 years. (4) Redeterminations of the excess risk management capacity operate in relation to the contribution year commencing in the calendar year following the calendar year in which they are made and in relation to subsequent contribution years. (5) The Scheme infrastructure may only be determined to have excess capacity to the extent that its capacity exceeds— (a) the capacity accounted for by existing risk management allocations; and (b) the capacity needed to fulfil the requirements of section 25; and (c) the capacity needed to meet the Trust's obligations under an agreement under section 26. (6) If the Minister and the Trust cannot agree on the initial determination or on a redetermination of the excess capacity of the Scheme, the determination or redetermination must be made by the Minister. (7) The Trust must on or before 30 September in each year, adjust the excess capacity as determined or redetermined under this section or previously adjusted under this subsection in respect of the following contribution year to take account of any increase or reduction in risk management allocations of irrigated properties or any other relevant factor not previously taken into account. 43—Request for increase in, or for a new, risk management allocation (1) The owner of an irrigated property who is a member of the Trust may, in his or her annual irrigation declaration, apply to the Trust for an increase in the risk management allocation attached to the whole or part of his or her irrigated land or for a risk management allocation to be attached to other land that has been classified under section 33. (2) An owner of land that has been classified under section 33 but who is not a member of the Trust may apply in writing to the Trust to be granted a risk management allocation in relation to the land. (3) An application under subsection (1) or (2)— (a) cannot (unless the regulations provide otherwise) be made in respect of the category of land under this Act having the highest risk; (b) may be made in respect of land of any other category; (c) in respect of an irrigated property, may, subject to paragraph (a), be made in respect of any part of the land comprising the property. (4) An application must be justified by demonstrating— (a) — (i) the need to use more water to irrigate existing plants; or (ii) the need to irrigate proposed new planting to be undertaken on land that is suitable for the purpose; and (b) that the quantity of the risk management allocation requested is not excessive when the species of plants and the area involved are taken into account. (5) An application must include such information as is required by the regulations and such further information as is required by the Trust. (6) The Trust may refuse an application if the applicant fails to convince the Trust that his or her application is justified under subsection (4). (7) If the application is refused, the applicant may apply to the Minister responsible for the administration of the Landscape South Australia Act 2019 and, if the Minister is satisfied that the application is justified, he or she may direct the Trust to accept it. (8) Subject to subsections (9) and (10), those persons who have applied successfully in accordance with this section for an increase in their risk management allocation or for a new allocation are entitled to have the excess risk management capacity of the Scheme divided equally between them (regardless of any differences in the amounts they have applied for) until their respective applications are satisfied. (9) An applicant whose application is only partially satisfied— (a) is entitled to have it satisfied in a subsequent year or years before any new applications are satisfied; but (b) is not entitled to make a further application until the previous application is satisfied or is withdrawn. (10) Where— (a) the capacity of the Scheme infrastructure is increased pursuant to an agreement between the Minister and the Trust under section 19(4); and (b) it is a term of the agreement that the resulting increase in the capacity of the Scheme is to be divided between the irrigated properties to which a water licence was applicable on 10 April 2000 but to which a risk management allocation has never previously been attached, the owner of an irrigated property referred to in paragraph (b) may apply to the Trust for a risk management allocation proportional to, but not exceeding, the risk management allocation appearing opposite the number of the water licence applicable to that property in Schedule 2. 44—Transfer of risk management allocations (1) Subject to subsection (2), the owner of an irrigated property may transfer a waterlogging and salinity risk management allocation, or a part of such an allocation, attached to part of his or her irrigated land to another part of his or her irrigated land if the land to which the allocation is transferred is of the same category as, or a category having a lower degree of risk than, the land from which the allocation is transferred. (2) A risk management allocation or part of an allocation can only be transferred to land— (a) that formed part of the risk management allocation's irrigated property when the allocation first became attached to land comprising part of the property; or (b) that is contiguous to land referred to in paragraph (a) and has subsequently become part of that irrigated property. (3) For the purposes of subsection (2), one parcel of land will be taken to be contiguous with another parcel of land if they abut one another at any point or if they are separated only by— (a) a street, road, railway, thoroughfare, watercourse or channel; or (b) a reserve or other similar open space dedicated for public purposes. (4) For the purposes of subsection (3) parcels of land will be taken to be separated by intervening land if a line projected at right angles from any point on the boundary of one of the parcels with the intervening land would intersect a boundary of the other parcel with the intervening land. (5) The means of transferring a risk management allocation, or part of an allocation, under this section is by informing the Trust of the transfer in an annual irrigation declaration. 45—Agreement with landowner to increase risk management capacity (1) The following persons may enter into an agreement with the Trust under which the person pays for, or contributes towards, an increase in the capacity of the Scheme infrastruc