South Australia: Landscape South Australia Act 2019 (SA)

South Australia Landscape South Australia Act 2019 An Act to promote sustainable and integrated management of the State's landscapes, to make provision for the protection of the State's natural resources, and for other purposes. Contents Part 1—Preliminary Division 1—Preliminary 1 Short title 3 Interpretation 4 Interaction with other Acts 5 Territorial and extra-territorial operation of Act 6 Act binds Crown Division 2—Objects, principles and general statutory duties 7 Objects and principles 8 General statutory duties Part 2—Administration Division 1—The Minister 9 Functions of Minister 10 Powers of delegation Division 2—Landscape regions and boards Subdivision 1—Establishment of regions 11 Establishment of regions 12 Green Adelaide Subdivision 2—Establishment of regional landscape boards 13 Establishment of boards 14 Corporate nature Subdivision 3—Membership of boards 15 Composition of boards 16 Qualifications for membership 17 Board elections 18 Conditions of membership 19 Allowances and expenses 20 Validity of acts 21 Conflict of interest under Public Sector (Honesty and Accountability) Act Subdivision 4—Procedures at meetings 22 Procedures at meetings 23 Meetings of boards to be held in public 24 Agenda and minutes of meetings open to public to be made available Subdivision 5—Functions of boards (general) 25 Functions of boards (general) Subdivision 6—Functions of Green Adelaide Board (additional provisions) 26 Green Adelaide Board (priority areas) Subdivision 7—Funding and grants 27 Funding support 28 Grassroots Grants Programs Subdivision 8—Powers of boards 29 General powers 30 Special powers to carry out works 31 Entry and occupation of land 32 Special vesting of infrastructure 33 Landscapes affecting activities control policies Subdivision 9—Staff 34 General manager 35 Staff Subdivision 10—Committees and other bodies 36 Committees and other bodies Subdivision 11—Power of delegation 37 Power of delegation Subdivision 12—Accounts, audit and reports 38 Accounts and audit 39 Annual reports 40 Specific reports Subdivision 13—Related matters 41 Use of facilities 42 Assignment of responsibility for infrastructure to another person or body 43 Appointment of administrator Part 3—State Landscape Strategy 44 State Landscape Strategy 45 Related provisions Part 4—Regional and water allocation plans Division 1—Regional landscape plans and business plans 46 Preparation of regional landscape plans 47 Key features of plan 48 Review of plan 49 Consultation associated with preparation of a plan or amendment 50 Approval of Minister 51 Annual business plan Division 2—Water allocation plans 52 Preparation of water allocation plans 53 Key features of plan 54 Review of plan 55 Consultation associated with preparation of a plan or amendment 56 Approval of Minister 57 Early adoption of plan Division 3—Related matters 58 Application of Division 59 Validity of plans 60 Promotion of River Murray legislation and IGA 61 Associated Ministerial consents 62 Amendment of plans without formal procedures 63 Plans may confer discretionary powers 64 Effect of invalidity 65 Time for preparation and review of plans Part 5—Landscape and water levies Division 1—Levies in respect of land Subdivision 1—Council areas 66 Contributions by constituent councils 67 Payment of contributions by councils 68 Funds may be expended in subsequent years 69 Imposition of levy by councils 70 Costs of councils Subdivision 2—Outside council areas 71 Board may declare a levy 72 Liability and payment of levy Subdivision 3—Related provisions 73 Land across boundaries 74 Application of levy Division 2—Levies in respect of water 75 Interpretation 76 Declaration of levies 77 Liability for levy 78 Notice of liability for levy 79 Determination of quantity of water taken 80 Cancellation etc of entitlement for non‑payment of levy 81 Costs associated with collection Division 3—Special provisions 82 Application of Division 83 Interest 84 Discounting levies 85 Recovery rights with respect to unpaid levy 86 Sale of land for non-payment of a levy Division 4—Related matters 87 Refund of levies 88 Declaration of penalty in relation to unauthorised or unlawful taking of water 89 Appropriation of levies, penalties and interest Part 6—Statutory funds Division 1—The Landscape Administration Fund 90 The Landscape Administration Fund 91 Accounts 92 Audit Division 2—The Landscape Priorities Fund 93 The Landscape Priorities Fund 94 Accounts 95 Audit Division 3—Regional landscape board funds 96 Regional landscape board funds Part 7—Management and protection of land 97 Interpretation 98 Special provisions relating to land 99 Requirement to implement action plan Part 8—Management and protection of water resources Division 1—General rights in relation to water 100 Right to take water subject to certain requirements 101 Declaration of prescribed water resources Division 2—Control of activities affecting water Subdivision 1—Water affecting activities control policies 102 Water affecting activities control policies Subdivision 2—Determination of relevant authority 103 Determination of relevant authority Subdivision 3—Control of activities 104 Water affecting activities 105 Certain uses of water authorised 106 Activities not requiring a permit 107 Notice to rectify unauthorised activity 108 Notice to maintain watercourse or lake 109 Restrictions in case of inadequate supply or overuse of water 110 Specific duty with respect to damage to a watercourse or lake 111 Minister may direct removal of dam etc Subdivision 4—Permits 112 Permits 113 Requirement for notice of certain applications 114 Refusal of permit to drill well Subdivision 5—Provisions relating to wells 115 Well drillers' licences 116 Renewal of licence 117 Non-application of certain provisions 118 Defences 119 Obligation to maintain well 120 Requirement for remedial or other work Division 3—Licensing and associated rights and entitlements Subdivision 1—Water licences 121 Nature of water licences 122 Water licences—applications and matters to be considered 123 Issuing of water licences 124 Variation of water licences 125 Transfer of water licences 126 Surrender of water licences Subdivision 2—Allocation of water 127 Allocation of water 128 Issuing of water allocation 129 Water allocations—matters to be considered 130 Reduction of water allocation 131 Variation of water allocations 132 Transfer of water allocations 133 Surrender of water allocations Subdivision 3—Water resource works approvals 134 Water resource works approvals—applications and matters to be considered 135 Issuing of approvals 136 Variation of approvals 137 Notice provisions 138 Cancellation if works not constructed or used 139 Nature of approval 140 Expiry Subdivision 4—Site use approval 141 Site use approvals—applications and matters to be considered 142 Issuing of approvals 143 Variation of approvals 144 Notice provisions 145 Cancellation 146 Nature of approval 147 Expiry Subdivision 5—Delivery capacity entitlements 148 Delivery capacity entitlements—applications and matters to be considered 149 Issuing of delivery capacity entitlements 150 Delivery capacity entitlements to relate to point of extraction 151 Variation of delivery capacity entitlements 152 Transfer of delivery capacity entitlements 153 Surrender of delivery capacity entitlements Subdivision 6—Interstate agreements 154 Interstate agreements Subdivision 7—Related matters 155 Allocation on declaration of prescribed water resource 156 Schemes to promote the transfer or surrender of certain entitlements 157 Consequences of breach of water management authorisations 158 Effect of cancellation of water management authorisations Division 4—Reservation of excess water by Minister 159 Interpretation 160 Reservation of excess water in a water resource 161 Allocation of reserved water 162 Public notice of allocation of reserved water Division 5—Water conservation measures 163 Water conservation measures Division 6—Commercial forestry Subdivision 1—Preliminary 164 Interpretation 165 Declaration of forestry areas Subdivision 2—Licences 166 Forest water licences 167 Allocation of water 168 Variations—allocations 169 Transfer of allocations 170 Conditions 171 Variations—conditions 172 Establishment of licence on declaration of areas 173 Surrender of licences 174 Cancellation of licences Subdivision 3—Offences 175 Offences Division 7—Interaction with Irrigation Acts 176 Interaction with Irrigation Act 2009 177 Interaction with Renmark Irrigation Trust Act 2009 Division 8—Related matters 178 Effect of water use on ecosystems 179 Activities relating to Murray‑Darling Basin 180 Consultation with Minister responsible for River Murray Act 2003 181 Representations by SA Water 182 Water recovery and other rights subject to board's functions and powers 183 Water management authorisation is not personal property for the purposes of Commonwealth Act 184 Law governing decisions under this Part Part 9—Control of animals and plants Division 1—Preliminary 185 Preliminary Division 2—Control provisions Subdivision 1—Specific controls 186 Movement of animals or plants 187 Possession etc of animals or plants 188 Sale of animals, plants etc 189 Offence to release animals or plants 190 Notification of presence of animals or plants 191 Requirement in respect of keeping or management of certain animals or plants 192 Owner of land to take action to destroy or control animals or plants 193 Action orders 194 Boards may recover certain costs from owners of land adjoining road reserves 195 Destruction or control of animals outside the dog fence by poison and traps 196 Ability of Minister to control or quarantine any animal or plant Subdivision 2—Permits 197 Permits Subdivision 3—Related matters 198 Animal-proof fences 199 Offence to interfere with certain fences 200 Offence to leave gates open 201 Protection of certain vegetation and habitats Part 10—Enforcement Division 1—Authorised officers 202 Authorised officers 203 Identity cards 204 Powers of authorised officers 205 Provisions relating to seizure 206 Hindering etc persons engaged in the administration of this Act Division 2—Civil remedies Subdivision 1—Orders issued by landscape boards 207 Protection orders 208 Action on non-compliance with a protection order 209 Reparation orders 210 Action on non-compliance with a reparation order 211 Reparation authorisations 212 Related matter 213 Registration 214 Effect of charge Subdivision 2—Orders made by ERD Court 215 Orders made by ERD Court Part 11—Appeals 216 Right of appeal 217 Operation and implementation of decisions or orders subject to appeal 218 Powers of Court on determination of appeals Part 12—Management agreements 219 Management agreements Part 13—Miscellaneous 220 Avoidance of duplication of procedures etc 221 Native title 222 Service of notices or other documents 223 Publication of notices by Minister 224 Money due to Minister 225 Compulsory acquisition of land 226 Compensation 227 Immunity from liability 228 Vicarious liability 229 False or misleading information 230 Interference with works or other property 231 Criminal jurisdiction of Court 232 Proceedings for offences 233 General defence 234 Offences by bodies corporate 235 Additional orders on conviction 236 Continuing offence 237 Constitution of Environment, Resources and Development Court 238 Evidentiary 239 Determination of costs and expenses 240 Minister may apply assumptions and other information 241 Landscape Scheme Register 242 Confidentiality 243 Damage caused by non-compliance with a notice etc 244 Recovery of technical costs associated with contraventions 245 Delegation by Chief Executive 246 Incorporation of codes and standards 247 Exemption from Act 248 Regulations 249 Review of Act Schedule 1—Regulations Schedule 2—Activities control policies 1 Preliminary 2 Review of policies 3 Preparation of a policy or amendment 4 Approval of Minister Schedule 3—Classes of wells in relation to which a permit is not required Schedule 4—The Water Register Part 1—Preliminary 1 Interpretation 2 Applications 3 Minister's power to require information 4 Form of record and management of register 5 Authentication of searches Part 2—Registration of entitlements issued under Part 8 6 Registration of entitlements 7 Special arrangement as to transfers Part 3—Registration of security interests 8 Creation of security interests 9 Priority of interests 11 Transfers 12 Discharge of registered interests 13 Enforcement of security interests Part 4—Caveats 14 Caveats Part 5—Miscellaneous 15 Devolution 16 Recording monetary consideration 17 Registration and correction of instruments 18 Cancellation of registration 19 Address for service of notices 20 ERD Court Schedule 5—Transitional provisions Part 30—Transitional and other provisions Division 1—Preliminary 88 Interpretation Division 2—Regions and boards 89 Establishment of regions and boards 90 Regional NRM boards Division 3—NRM entities 91 Vesting of property etc 92 References Division 4—Plans 93 Regional NRM plans 94 Business plans Division 5—Levies, penalties, interest and other fees 95 Levies 96 Outstanding levies, penalties, interest or other fees Division 6—Funds 97 Funds Division 7—Water 98 Prescribed water resources 99 Water allocation plans 100 Water affecting activities 101 Continuation of authorisations, notices and other measures 102 Bundled water allocation plans and water licences 103 Security interests Division 8—Miscellaneous 104 Ministerial policies 105 State NRM Plan 106 Minister may make provision for assignment of responsibilities and modifications of plans 107 Adopting acts or decisions 108 Registration authorities 109 General saving provision 110 Continuation of other plans, notices, permits and orders 111 Authorised officers 112 Constitution of Environment, Resources and Development Court 113 References to Planning and Design Code 114 NRM Register and The Water Register 115 Other provisions Legislative history The Parliament of South Australia enacts as follows: Part 1—Preliminary Division 1—Preliminary 1—Short title This Act may be cited as the Landscape South Australia Act 2019. 3—Interpretation (1) In this Act, unless the contrary intention appears— animal means a live vertebrate or invertebrate animal and includes the eggs or semen of such an animal, but does not include any animal of a class excluded from the ambit of this definition by the regulations; animal‑proof fence means a fence that complies with the prescribed requirements for an animal‑proof fence; annual business plan means the annual business plan of a regional landscape board under section 51; annual value means annual value as defined in the Valuation of Land Act 1971; appointed member, of a regional landscape board, means a person appointed to the board by the Minister under section 15; approved account means an account designated by the Minister as an approved account for the purposes of this Act, or a specified provision of this Act; authorised officer means a person appointed as an authorised officer under Part 10; biological diversity or biodiversity means the variety of life forms represented by plants, animals and other organisms and micro-organisms, the genes that they contain, and the ecosystems and ecosystem processes of which they form a part; business day means any day except— (a) a Saturday, Sunday or public holiday; or (b) a day which falls between 25 December and 1 January in the following year; capital value means capital value as defined in the Valuation of Land Act 1971; channel includes— (a) a drain, gutter or pipe; and (b) part of a channel; Chief Executive means the Chief Executive of the Department and includes a person for the time being acting in that position; commercial forest means a forest plantation where the forest vegetation is grown or maintained so that it can be harvested or used for commercial purposes (including through the commercial exploitation of the carbon absorption capacity of the forest vegetation); constituent council means, in relation to a regional landscape board, or the region of a regional landscape board, a council whose area, or part of whose area, comprises or is included in the region of the regional landscape board; construct includes erect, alter, reduce, enlarge, repair or excavate; consumptive pool means the water that will from time to time be taken to constitute the resource within a particular part of a prescribed water resource for the purposes of Part 8, as determined— (a) by or under a water allocation plan for that water resource; or (b) in prescribed circumstances—by the Minister; control means— (a) in relation to a particular class of animals, any of the following: (i) destroy the animals and their warrens, burrows, nests or harbours (whether occupied or not); (ii) reduce the extent to which land is inhabited or subject to infestation by the animals; (iii) undertake any other prescribed action, as far as is reasonably achievable; (b) in relation to a particular class of plants, any of the following: (i) destroy the plants; (ii) reduce and inhibit the propagation of the plants; (iii) prevent the spread of the plants; (iv) undertake any other prescribed action, as far as is reasonably achievable; council means a council within the meaning of the Local Government Act 1999; council subsidiary means a subsidiary established under Schedule 2 of the Local Government Act 1999; CPI means the Consumer Price Index (All groups index for Adelaide); declared forestry area means a declared forestry area under section 165; delivery capacity entitlement means a delivery capacity entitlement issued under Part 8 Division 3 Subdivision 5; Department means the administrative unit designated from time to time by the Minister by notice in the Gazette as being the Department primarily responsible for assisting a Minister in the administration of this Act; designated entity for Part 4 Division 2 or Division 3, or Part 8—see section 52; dingo includes an animal that is a cross of a dingo; dog fence means the primary dog fence established under the Dog Fence Act 1946; domestic activity means an activity undertaken for a domestic purpose; 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; domestic purpose in relation to the taking of water does not include— (a) taking water for the purpose of watering or irrigating land, other than land used solely in connection with a dwelling; or (b) without limiting paragraph (a)—taking water for the purpose of watering or irrigating more than 0.4 of a hectare of land; or (c) taking water to be used in carrying on a business (except for the personal use of persons employed in the business); domestic wastewater means— (a) water used in the disposal of human waste; and (b) water used for personal washing; and (c) water used for washing clothes or dishes; and (d) water used in a swimming pool; to drill in relation to a well means to drill the well or to excavate the well in any other manner and includes to deepen or widen an existing well; ecosystem means a dynamic complex of plant, animal and micro-organism communities and their non-living environment interacting as a functional unit; effluent means domestic wastewater or industrial wastewater; elected member, of a regional landscape board, means a person elected to the board under section 15(1)(b); eligible elector, in relation to an election of members of a regional landscape board, means a person who, according to the scheme prescribed by the regulations under section 17, is recognised as an eligible elector for the purposes of the election; ERD Court means the Environment, Resources and Development Court established under the Environment, Resources and Development Court Act 1993; estuary means a partially enclosed coastal body of water that is permanently, periodically, intermittently or occasionally open to the sea within which there is a measurable variation in salinity due to the mixture of seawater with water derived from or under the land; floodplain means any area of land adjacent to a watercourse, lake or estuary that is periodically inundated with water and includes any other area designated as a floodplain— (a) by a regional landscape plan, a water allocation plan or a water affecting activities control policy; or (b) by the Planning and Design Code under the Planning, Development and Infrastructure Act 2016; forest vegetation means trees and other forms of forest vegetation including— (a) roots or other parts of the trees or other forest vegetation that lie beneath the soil; and (b) leaves, branches or other parts or products of trees or other forest vegetation; forest water licence means a licence granted by the Minister under Part 8 Division 6; general manager means the general manager of a regional landscape board and includes a person acting in the office of general manager; general rate means a general rate under section 152 of the Local Government Act 1999; general statutory duty means the duty under section 8; industrial wastewater means water (not being domestic wastewater) that has been used in the course of carrying on a business (including water used in the watering or irrigation of plants) that has been allowed to run to waste or has been disposed of or has been collected for disposal; infrastructure includes— (a) artificial lakes; and (b) dams or reservoirs; and (c) embankments, walls, channels or other works or earthworks; and (d) bridges and culverts; and (e) buildings or structures; and (f) roads; and (g) pipes, machinery or other plant or equipment; and (h) any device; and (i) any item or thing used in connection with— (i) testing, monitoring, protecting, enhancing or re-establishing any natural resource, or any aspect of a natural resource; or (ii) any other program or initiative associated with the management of a natural resource; and (j) other items brought within the ambit of this definition by the regulations; intensive farming means a method of keeping animals in the course of carrying on the business of primary production in which the animals are usually confined to a small space or area and usually fed by hand or by a mechanical means; Interstate Water Entitlements Transfer Scheme or IWETS means— (a) a scheme for the transfer of entitlements between 2 or more States under the Murray‑Darling Basin Agreement; or (b) an agreement between South Australia and 1 or more other States or a Territory entered into under section 154; keep in captivity—an animal is kept in captivity if it is held in a building or enclosure with security measures designed to ensure that the animal cannot escape (other than in circumstances that cannot be reasonably foreseen and guarded against); lake means a natural lake, pond, lagoon, wetland or spring (whether modified or not) and includes— (a) part of a lake; and (b) a body of water designated as a lake— (i) by a regional landscape plan, a water allocation plan or a water affecting activities control policy; or (ii) by the Planning and Design Code under the Planning, Development and Infrastructure Act 2016; land means, according to the context— (a) land as a physical entity, including land under water; or (b) any legal estate or interest in, or right in respect of, land, and includes any building or structure fixed to land; landscape or landscapes—see subsection (2); Landscape Administration Fund means the Landscape Administration Fund established under Part 6 Division 1; landscape management region or region means a landscape management region established under Part 2 Division 2 Subdivision 1; Landscape Priorities Fund means the Landscape Priorities Fund established under Part 6 Division 2; landscapes affecting activities control policy means a landscapes affecting activities control policy prepared by a regional landscapes board under section 33; LGA means the Local Government Association of South Australia; licensed well driller means a person who holds a licence under Part 8 to drill wells; management agreement means an agreement under Part 12; management zone means an area identified in a water allocation plan as a management zone for the purpose of managing resource conditions and impacts associated with the take, extraction or use of water in, or in association with, that area; Mining Act means any of the following: (a) the Mining Act 1971, the Opal Mining Act 1995, the Petroleum and Geothermal Energy Act 2000 or the Petroleum (Submerged Lands) Act 1982; (b) the Cooper Basin (Ratification) Act 1975, the Roxby Downs (Indenture Ratification) Act 1982 or the Stony Point (Liquids Project) Ratification Act 1981; (c) any other Act relating to the production, recovery, management, conveyance or delivery of minerals brought within the ambit of this definition by the regulations; Mount Lofty Ranges Watershed means the area prescribed by regulation for the purposes of this definition; Murray‑Darling Basin has the same meaning as in the Water Act 2007 of the Commonwealth; 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; native animal means a protected animal within the meaning of the National Parks and Wildlife Act 1972 and any species included in Schedule 10 of that Act, but does not include a dingo or any other animal of a class excluded from the ambit of this definition by the regulations; native vegetation has the same meaning as in the Native Vegetation Act 1991; natural resources includes— (a) land and soil; and (b) water resources; and (c) geological features; and (d) native vegetation, native animals and other native organisms; and (e) ecosystems; occupier of land means a person who has, or is entitled to, possession or control of the land (other than a mortgagee in possession unless the mortgagee has assumed active management of the land), or who is entitled to use the land as the holder of native title in the land; OC levy means a levy declared under section 71; owner of land means— (a) if the land is unalienated from the Crown—the Crown; or (b) if the land is alienated from the Crown by grant in fee simple—the owner (at law or in equity) of the estate in fee simple; or (c) if the land is held from the Crown by lease or licence—the lessee or licensee, or a person who has entered into an agreement to acquire the interest of the lessee or licensee; or (d) if the land is held from the Crown under an agreement to purchase—the person who has the right to purchase; or (e) a person who holds native title in the land; or (f) a person who has arrogated to themselves (lawfully or unlawfully) the rights of an owner of the land, and includes an occupier of the land and any other person of a prescribed class included within the ambit of this definition by the regulations; pastoral land means land of the Crown that is subject to a pastoral lease; peak body means— (a) the LGA; and (b) Primary Producers SA Incorporated; and (c) Conservation Council of South Australia Incorporated; plant means vegetation of any species and includes the seeds and any part of any such vegetation, or any other form of plant material, but does not include any vegetation or material excluded from the ambit of this definition by the regulations; prescribed lake means a lake declared to be a prescribed lake under section 101; prescribed watercourse means a watercourse declared to be a prescribed watercourse under section 101; prescribed water resource includes underground water to which access is obtained by prescribed wells; prescribed well means a well declared to be a prescribed well under section 101; private land means land that is not— (a) dedicated land within the meaning of the Crown Land Management Act 2009; or (b) unalienated land of the Crown; or (c) vested in or under the care, control or management of an agency or instrumentality of the Crown; or (d) vested in or under the care, control or management of a council; public authority means— (a) a Minister; or (b) an agency or instrumentality of the Crown; or (c) a council or council subsidiary; rateable land means rateable land under the Local Government Act 1999; record means— (a) a documentary record; or (b) a record made by an electronic, electro-magnetic, photographic or optical process; or (c) any other kind of record; regional landscape board means a body established under Part 2 Division 2; regional landscape levy means a levy imposed by a council under section 69; regional landscape plan means a regional landscape plan prepared by a regional landscape board under Part 4 Division 1; repealed Act means the Natural Resources Management Act 2004; River Murray has the same meaning as in the River Murray Act 2003; River Murray Protection Area means a River Murray Protection Area under the River Murray Act 2003; road reserve means land set aside for the purposes of a public road, whether or not it is being used for that purpose; SA Water means the South Australian Water Corporation; Schedule 4 entitlement means— (a) a water licence; or (b) a water access entitlement (or part of a water access entitlement); or (c) a forest water licence; or (d) a water allocation (or part of a water allocation); or (e) a delivery capacity entitlement; security interest means a mortgage or charge over, or other arrangement of a kind prescribed by the regulations in respect of, a water management authorisation or a forest water licence that secures the payment of a debt or the performance of some other obligation under a contract or other legally enforceable arrangement; sell includes— (a) barter, offer or attempt to sell; and (b) receive for sale; and (c) have in possession for sale; and (d) cause or permit to be sold or offered for sale; and (e) send, forward or deliver for sale; and (f) dispose of by any method for valuable consideration; and (g) dispose of to an agent for sale on consignment; and (h) sell for the purposes of resale; site use approval means a site use approval issued under Part 8 Division 3 Subdivision 4; site value means site value as defined in the Valuation of Land Act 1971; spouse—a person is the spouse of another if they are legally married; State includes any part of the sea— (a) that is within the limits of the State; or (b) that is from time to time included in the coastal waters of the State by virtue of the Coastal Waters (State Powers) Act 1980 of the Commonwealth; State Landscape Strategy means the strategy prepared under Part 3; stormwater infrastructure means infrastructure established for the purposes of stormwater management; surface water means— (a) water flowing over land (except in a watercourse)— (i) after having fallen as rain or hail or having precipitated in any other manner; or (ii) after rising to the surface naturally from underground; or (b) water of the kind referred to in paragraph (a) that has been collected in a dam or reservoir; or (c) water of the kind referred to in paragraph (a) that is contained in any stormwater infrastructure; or (d) in relation to a surface water prescribed area—water in a prescribed watercourse if the watercourse, or a particular part of a watercourse, is declared by a water allocation plan as forming part of the surface water prescribed area; surface water prescribed area means a part of the State declared to be a surface water prescribed area under section 101 (including, if relevant, any stormwater infrastructure within that area); to take water from a water resource includes— (a) to take water by pumping or syphoning the water; and (b) to stop, impede or divert the flow of water over land (whether in a watercourse or not) for the purpose of collecting the water; and (c) to stop, impede or direct the flow of water in any stormwater infrastructure for the purpose of collecting the water, or to extract any water from stormwater infrastructure; and (d) to divert the flow of water in a watercourse from the watercourse; and (e) to release water from a lake; and (f) to permit water to flow under natural pressure from a well; and (g) to permit stock to drink from a watercourse, a natural or artificial lake, a dam or reservoir; and (h) to cause, permit or suffer any activity referred to in a preceding paragraph; underground water means— (a) water occurring naturally below ground level; or (b) water pumped, diverted or released into a well for storage underground; vehicle includes any— (a) vessel or craft; and (b) plant or equipment designed to be moved or operated by a driver; water access entitlement—see section 121(2); water affecting activities control policy means a water affecting activities control policy prepared by a regional landscape board under section 102; water allocation— (a) in respect of a water licence, means an allocation of water under the terms of the licence in accordance with Part 8 Division 3 Subdivision 2 and includes, if the context so requires, a component or part of such an allocation, or the water available in connection with the entitlement; and (b) in respect of an Interstate Water Entitlements Transfer Scheme, means an allocation of water under the terms of that scheme and the provisions of Part 8 Division 3 Subdivision 2 and includes, if the context so requires, a component or part of such an allocation, or the water available in connection with the entitlement; and (c) in respect of water taken pursuant to an authorisation under section 105 means the maximum quantity of water that can be taken and used pursuant to the authorisation; and (d) in respect of a forest water licence means the water allocation attached to the licence; water allocation plan means a water allocation plan prepared under Part 4 Division 2; watercourse means a river, creek or other natural watercourse (whether modified or not) in which water is contained or flows whether permanently or from time to time and includes— (a) a dam or reservoir that collects water flowing in a watercourse; and (b) a lake through which water flows; and (c) a channel (but not a channel declared by regulation to be excluded from the ambit of this definition) into which the water of a watercourse has been diverted; and (d) part of a watercourse; and (e) an estuary through which water flows; and (f) any other natural resource, or class of natural resource, designated as a watercourse for the purposes of this Act by a regional landscape plan, a water allocation plan or a water affecting activities control policy; water levy means a levy declared under section 76; water licence means a licence granted by the Minister under section 121; water management authorisation means— (a) a water licence; or (b) a water allocation; or (c) a site use approval; or (d) a water resource works approval; or (e) a delivery capacity entitlement; The Water Register—see section 241; water resource means a watercourse or lake, surface water, underground water, stormwater (to the extent that it is not within a preceding item) and effluent; water resource works approval means a water resource works approval issued under Part 8 Division 3 Subdivision 3; well means— (a) an opening in the ground excavated for the purpose of obtaining access to underground water; or (b) an opening in the ground excavated for some other purpose but that gives access to underground water; or (c) a natural opening in the ground that gives access to underground water; wetland means an area that comprises land that is permanently or periodically inundated with water (whether through a natural or artificial process) where the water may be static or flowing and may range from fresh water to saline water and where the inundation with water influences the biota or ecological processes (whether permanently or from time to time) and includes any other area designated as a wetland— (a) by a regional landscape plan, a water allocation plan or a water affecting activities control policy; or (b) by the Planning and Design Code under the Planning, Development and Infrastructure Act 2016, but does not include— (c) a dam or reservoir that has been constructed by a person wholly or predominantly for the provision of water for primary production or human consumption; or (d) an area within an estuary or within any part of the sea; or (e) an area excluded from the ambit of this definition by the regulations; works means— (a) dams or reservoirs; (b) wells or channels; (c) pumps, pumping stations, pipes or tanks; (d) drains, machinery or other plant or equipment; (e) other forms of structures or apparatus; (f) other items brought within the ambit of this definition by the regulations, whether on, above or under land, but does not include any items excluded from the ambit of this definition by the regulations. (2) For the purposes of this Act, a landscape or landscapes comprise— (a) natural and physical features, including coasts and seas; and (b) natural resources; and (c) human values and uses related to interaction with the environment, including environmental, social, cultural and economic values. (3) For the purposes of this Act— (a) a reference to land in the context of the physical entity includes all aspects of land, including the soil, organisms and other components and ecosystems that contribute to the physical state and environmental, social, cultural and economic value of land; and (b) a reference to a water resource includes all aspects of a water resource, including the water, organisms and other components and ecosystems that contribute to the physical state and environmental, social, cultural and economic value of a water resource. (4) For the purposes of this Act— (a) a reference to a watercourse is a reference to either— (i) the bed and banks of the watercourse (as they may exist from time to time); or (ii) the water for the time being within the bed and banks of the watercourse (as they may exist from time to time), or both, depending on the context; (b) a reference to a lake is a reference to either— (i) the bed, banks and shores of the lake (as they may exist from time to time); or (ii) the water for the time being held by the bed, banks and shores of the lake (as they may exist from time to time), or both, depending on the context. (5) For the purposes of this Act, a reference to an estuary may include, according to the context, a reference to— (a) any ecosystem processes or biodiversity associated with an estuary; and (b) estuarine habitats adjacent to an estuary. (6) A reference in this Act to varying a water management authorisation (in any of its forms) includes a reference to varying the conditions attached to the particular water management authorisation. (7) The conditions of an authorisation or permit under this Act may be varied by the addition, substitution or deletion of 1 or more conditions. (8) For the purposes of this Act, native vegetation is cleared (or would be cleared) if the relevant activity constitutes (or would constitute) clearance of the native vegetation under the Native Vegetation Act 1991. (9) A regulation, regional landscape plan, water allocation plan or water affecting activities control policy, or the Planning and Design Code under the Planning, Development and Infrastructure Act 2016, may make a designation for the purposes of a definition under this section by the use of a map or maps prescribed by the regulation or included in the plan (as the case may be). (10) For the purposes of this Act, a person is an associate of another if— (a) they are partners; or (b) one is a spouse, domestic partner, parent or child of another; or (c) they are both trustees or beneficiaries of the same trust, or one is a trustee and the other is a beneficiary of the same trust; or (d) one is a body corporate or other entity (whether inside or outside Australia) and the other is a director or member of the governing body of the body corporate or other entity; or (e) one is a body corporate or other entity (whether inside or outside Australia) and the other is a person who has a legal or equitable interest in 5% or more of the share capital of the body corporate or other entity; or (f) they are related bodies corporate within the meaning of the Corporations Act 2001 of the Commonwealth; or (g) a chain of relationships can be traced between them under any one or more of the preceding paragraphs. (11) For the purposes of subsection (10), a beneficiary of a trust includes an object of a discretionary trust. 4—Interaction with other Acts (1) Except where the contrary intention is expressed in this or any other Act, this Act is in addition to and does not limit or derogate from the provisions of any other Act. (2) This Act is subject to the following Acts and agreements: (a) the Murray‑Darling Basin Agreement; (b) the Border Groundwater Agreement (as amended from time to time) approved by the Groundwater (Border Agreement) Act 1985; (c) the Lake Eyre Basin Intergovernmental Agreement (as amended from time to time) ratified and approved under the Lake Eyre Basin (Intergovernmental Agreement) Act 2001; (d) the indenture (as amended from time to time) ratified and approved by the Roxby Downs (Indenture Ratification) Act 1982. (3) Section 8 and Part 7 do not apply in relation to any minerals or other substances or facilities administered under a Mining Act, or any activity conducted under a tenement granted under a Mining Act. 5—Territorial and extra-territorial operation of Act (1) Subject to this section, this Act applies to the whole of the State. (2) The Governor may, by regulation, exclude a part of the State from the operation of this Act, or specified provisions of this Act. (3) This Act extends to an activity or circumstance undertaken or existing outside the State that may affect the natural resources of the State. (4) This Act may also apply so as to give effect within the State or outside the State to any intergovernmental agreement relevant to the operation of this Act to which the State is a party. 6—Act binds Crown (1) This Act binds the Crown in right of this State and also, so far as the legislative power of the State extends, the Crown in all its other capacities, but not so as to impose any criminal liability on the Crown. (2) Without limiting or derogating from subsection (1), all agencies and instrumentalities of the Crown must endeavour, as far as practicable, to act consistently with the State Landscape Strategy and other relevant plans under this Act. Division 2—Objects, principles and general statutory duties 7—Objects and principles (1) The objects of this Act include to support and enhance ecologically sustainable development by establishing an integrated scheme to promote the use and management of the natural resources that make up or contribute to our State's landscape in an integrated manner that— (a) recognises and protects the intrinsic values of landscapes and recognises the interconnection between different elements of landscapes, including in relation to various aspects of the State's natural resources; and (b) supports the State's primary production and other industries and a sustainable State economy, supports resilient communities and natural and built environments, and supports the interests of Aboriginal peoples; and (c) provides for the protection, enhancement, restoration and sustainable management of— (i) land, soil and water resources; and (ii) native fauna and flora, especially so that they are resilient in the face of change; and (d) promotes, protects and conserves biodiversity, and insofar as is reasonably practicable, supports and encourages the restoration or rehabilitation of ecological systems and processes that have been lost or degraded, and promotes the health of ecosystems so that they are resilient in the face of change; and (e) recognises that climate change is a significant factor in our environment (including a recognition of the need for mitigation and adaptation); and (f) provides for the prevention or control of impacts caused by pest species of animals and plants that may have an adverse effect on the environment, primary production or the community; and (g) promotes the collaborative management of native animals that adversely affect the natural or built environments, people or primary production or other industries; and (h) provides educational initiatives and provides support mechanisms to strengthen the skills, knowledge and capacity of people to sustainably manage natural resources; and (i) supports initiatives or action to facilitate the increased capacity of people to engage in processes under this Act, including through the provision of information relevant to the protection, enhancement or management of landscapes. (2) For the purposes of subsection (1), ecologically sustainable development comprises the use, reuse, conservation, development and enhancement of natural resources and landscapes in a way, and at a rate, that will enable people and communities to provide for their economic, social, cultural and physical well-being while— (a) sustaining the potential of landscapes, including natural resources, to meet the reasonably foreseeable needs of future generations; and (b) safeguarding the life-supporting capacities of natural resources and landscapes; and (c) avoiding, remedying or mitigating any adverse effects of activities on natural resources and landscapes. (3) The following principles should be taken into account in connection with achieving ecologically sustainable development for the purposes of this Act: (a) recognition should be given to the spiritual, social, customary and economic significance of landscapes, and especially natural resources, to Aboriginal people; (b) the responsibility to achieve ecologically sustainable development should be seen as a shared responsibility between local, State and the Commonwealth governments, the private sector, and the community more generally, and enduring and effective partnerships should be promoted and supported; (c) the costs associated with managing natural resources and landscapes should be allocated or shared equitably and in a manner that encourages the responsible use of natural resources; (d) environmental factors should be taken into account when valuing or assessing assets or services; (e) decision-making should be informed by local knowledge and expertise, and traditional Aboriginal knowledge, together with the best available science, to achieve a functioning, resilient and productive landscape and avoiding, where practicable, serious or irreversible damage to the environment; (f) consideration should be given to the conservation of biological diversity and ecological integrity; (g) if there are threats of serious or irreversible damage to natural resources or landscapes, lack of full scientific knowledge should not be used as a reason for postponing measures to prevent environmental degradation or damage; (h) decision-making should be informed by long term and short term environmental, social, cultural, economic, equity (including intergenerational equity so that our natural resources and landscapes are maintained or enhanced for the benefit of future generations) and practical considerations, recognising that trade-offs may be necessary; (i) if the management of natural resources associated with the State's landscape requires the taking of remedial action, the first step should, insofar as is reasonably practicable and appropriate, be to encourage those responsible to take such action before resorting to more formal processes and procedures; (j) risk management and regulatory approaches should be proportionate to the risk involved and the feasibility of managing the risk. (4) The Minister, the Court and all other persons or bodies involved in the administration of this Act, or performing, exercising or discharging a function, power or duty under this Act, must have regard to, and seek to further, the objects of this Act. 8—General statutory duties (1) A person must act reasonably in relation to the management of natural resources within the State. (2) In determining what is reasonable for the purposes of subsection (1), regard must be had, amongst other things, to the objects of this Act, and to— (a) the need to act responsibly in relation to the management of natural resources, including the protection of biodiversity, and the potential impact of a failure to comply with the relevant duty; and (b) any environmental, social, cultural, economic or practical implications, including in relation to the state of matters regarding biodiversity and any relevant assessment of costs and benefits associated with a particular course of action, the financial implications of various measures or options, and the current state of technical and scientific knowledge; and (c) any degrees of risk that may be involved; and (d) the nature, extent and duration of any harm; and (e) the extent to which a person is responsible for the management of the natural resources including in relation to the environment and its biodiversity; and (f) the significance of the natural resources, including in relation to the environment and its biodiversity and to the economy of the State (if relevant); and (g) the extent to which an act or activity may have a cumulative effect on any natural resources including the environment and its biodiversity; and (h) any pre-existing circumstance, and the state or condition of the natural resources; and (i) any local circumstances as described in subsection (8). (3) A person will be taken not to be in breach of subsection (1) if the person is acting— (a) in pursuance of a requirement under this or any other Act; or (b) in a manner consistent with the relevant regional landscape plan, a water allocation plan, a landscapes affecting activities control policy, a water affecting activities control policy, or any other policy approved by the relevant regional landscape board for the purposes of this section; or (c) in circumstances prescribed by the regulations. (4) Subject to subsections (5) and (6), a person who breaches subsection (1) is not, on account of the breach alone, liable to any civil or criminal action. (5) If a person breaches subsection (1)— (a) the person may be required to prepare and implement an action plan in the circumstances contemplated by Part 7; and (b) compliance with the subsection may be enforced by the issuing of a protection order under Part 10; and (c) a reparation order or reparation authorisation may be issued under Part 10; and (d) an order may be made by the ERD Court under Part 10 in respect of the non-compliance. (6) Subsection (4) does not limit or derogate from any other provision of this Act. (7) In addition, if a person can demonstrate that the person has acted in a manner consistent with any best practice methods or standards, or any guidelines, in the relevant industry or sphere of activity that are recognised as being acceptable for the purposes of subsection (1) by the relevant regional landscape board after taking into account any local circumstances as described in subsection (8), then, to the extent of the consistency, no action can be taken against the person in connection with the operation of this section. (8) For the purposes of subsections (2)(i) and (7), local circumstances are constituted by the local situation, conditions and surrounding circumstances, with regard being given to contributing factors such as climate, the condition of land, land and water use, and degrees of risk and impact. (9) To avoid doubt, a person cannot, in relation to the operation of this section, be held responsible for any condition or circumstance existing before 2 September 2004. Note— 2 September 2004 is the day on which the Natural Resources Management Act 2004 commenced. Part 2—Administration Division 1—The Minister 9—Functions of Minister (1) The functions of the Minister under this Act are— (a) to monitor, evaluate and audit the state and condition of the State's natural resources, coasts and seas; and (b) to report on the state and condition of the State's natural resources, coasts and seas; and (c) to prepare and maintain the State Landscape Strategy; and (d) to develop, implement, apply or co-ordinate policies relating to natural resources management, and to promote sound management programs and practices for the use, development or protection of the natural resources of the State; and (e) to conduct and support research into the preservation, protection, management, enhancement, restoration or rehabilitation of the State's natural resources; and (f) to compile, maintain and update data and other information in relation to the State's natural resources, coasts and seas; and (g) to promote the integration or co-ordination of policies, programs, plans and projects insofar as they are relevant to the proper management, use or protection of the State's natural resources; and (h) to promote public awareness of the importance of the State's natural resources and to encourage conservation of those resources; and (i) as the Minister thinks fit, to take any other action that may promote the preservation, protection, management, enhancement, restoration or rehabilitation of the State's landscapes; and (j) such other functions assigned to the Minister by or under this Act. (2) The regulations may— (a) prescribe the kinds of information to which subsection (1)(f) applies; and (b) require persons or bodies referred to in the regulations to provide the Minister with information of that kind that is in their possession; and (c) specify the kind or kinds of information to which subsection (3) applies. (3) If a person has provided information of a kind to which this subsection applies under subsection (2)(b), the Minister— (a) must seek the consent of the person who provided the information to make it publicly available and must make it publicly available if consent is given; and (b) must not disclose that information to another person without the consent of the person who provided it. 10—Powers of delegation (1) The Minister may delegate to a body or person (including a person for the time being holding or acting in a specified office or position) a function or power of the Minister under this Act, or under any other Act that, in the opinion of the Minister, is relevant to the operation or administration of this Act. (2) A delegation under this section— (a) must be by instrument in writing; and (b) may be absolute or conditional; and (c) does not derogate from the ability of the Minister to act in any matter; and (d) is revocable at will. (3) A function or power delegated under this section may, if the instrument of delegation so provides, be further delegated. (4) The Minister cannot delegate the function of making recommendations to the Governor. (5) A person to whom functions or powers have been delegated under subsection (1) who has a direct or indirect personal or pecuniary interest in any matter in relation to which the person proposes to perform those functions or exercise those powers must disclose the nature of the interest in writing to the Minister. Maximum penalty: $20 000. (6) It is a defence to a charge of an offence against subsection (5) to prove that the defendant was not, at the time of the alleged offence, aware of their interest in the matter. Division 2—Landscape regions and boards Subdivision 1—Establishment of regions 11—Establishment of regions (1) The Governor may, by proclamation made on the recommendation of the Minister, divide the State into landscape management regions. (2) The Minister must, in formulating a recommendation for the purposes of subsection (1)— (a) give attention to the nature and form of the natural environment; and (b) take into account relevant economic, social, cultural and local government boundaries or areas, (and may take into account such other matters as the Minister thinks fit). (3) The Governor may, by subsequent proclamation made on the recommendation of the Minister— (a) vary the boundaries of any landscape management region; (b) abolish a landscape management region (on the basis that a new division is to occur). (4) If a proclamation is being made under subsection (3), the Governor may, by the same or a subsequent proclamation, make provision for any transitional or consequential matter, including for the transfer, apportionment or adjustment of property, assets, rights, liabilities or expenses as between any relevant regional landscape boards or the alteration or revision of any plan under this Act (and any such proclamation will have effect according to its terms and despite any other provision of this or any other Act, or any law, agreement or arrangement). (5) The Minister must, before a proclamation is made under subsection (3), give each peak body notice of the proposed proclamation under that subsection and give consideration to any submission made by any peak body within a period (being at least 21 days) specified in the notice. (6) This section applies subject to section 12. 12—Green Adelaide (1) A landscape management region known as Green Adelaide or the Green Adelaide Region must be established as one of the landscape management regions under section 11. (2) The area of Green Adelaide must be based (wholly or predominantly) on the urban areas of metropolitan Adelaide, as considered appropriate by the Governor on the recommendation of the Minister. (3) The Governor may, by proclamation made on the recommendation of the Minister, vary the boundaries of Green Adelaide from time to time. Subdivision 2—Establishment of regional landscape boards 13—Establishment of boards (1) The Minister must, by notice in the Gazette, establish a regional landscape board for each landscape management region (other than for Green Adelaide). (2) A notice under subsection (1) must— (a) identify the region in relation to which the regional landscape board is established; and (b) assign a distinctive name to the regional landscape board; and (c) set out functions of the regional landscape board (if any) that are additional to the functions prescribed by this Act. (3) The Minister may, by subsequent notice in the Gazette— (a) vary a notice under this section (including by making a variation to the functions of the regional landscape board under subsection (2)(c)); (b) abolish a regional landscape board (on the basis that the relevant region is being abolished under Subdivision 1). (4) A notice relating to a regional landscape board under subsection (3) may provide for any transitional or consequential matter, including— (a) by providing that the property, assets, rights or liabilities of the board will vest in or attach to— (i) the Crown; or (ii) a Minister; or (iii) another body established under this Act; or (iv) any other agency or instrumentality of the Crown; or (v) with the agreement of the relevant person or body, a person or body specified in the notice; and (b) by making provision with respect to any relevant regional landscape plan, water allocation plan, landscapes affecting activities control policy or water affecting activities control policy, (and any such notice will have effect according to its terms and despite any other provision of this or any other Act, or any law, agreement or arrangement). (5) The Minister must, before publishing a notice under subsection (3), give each peak body notice of the Minister's intention to publish a notice under that subsection and give consideration to any submission made by any peak body within a period (being at least 21 days) specified in the notice. (6) In relation to Green Adelaide— (a) the regional landscape board is established by force of this subsection; and (b) the name of the board is Green Adelaide Board; and (c) the Minister may, by notice in the Gazette, set out functions of the Green Adelaide Board (if any) that are additional to the functions prescribed by this Act. 14—Corporate nature (1) A regional landscape board— (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) is an instrumentality of the Crown and holds its property on behalf of the Crown; and (e) has the functions and powers assigned or conferred by or under this or any other Act. (2) If a document appears to bear the common seal of a regional landscape board, it will be presumed, in the absence of proof to the contrary, that the common seal of the regional landscape board was duly fixed to the document. (3) A regional landscape board is subject to the direction and control of the Minister. Subdivision 3—Membership of boards 15—Composition of boards (1) Subject to subsections (2) and (3) (and to the other provisions of this Act), a regional landscape board consists of— (a) 4 members appointed by the Minister; and (b) 3 members elected by eligible electors. (2) The Green Adelaide Board consists of at least 6 and not more than 10 members appointed by the Minister. (3) A regional landscape board (other than Green Adelaide) may consist of at least 5 and not more than 9 members, all appointed by the Minister, if the Minister considers that a board wholly constituted by appointed members is preferable to a board constituted with some elected members due to special circumstances applying in the relevant region. (4) Of the members of a regional landscape board that are to be appointed by the Minister under subsection (1)(a), (2) or (3), at least 1 must be a member or officer of a council at the time of the member's appointment unless— (a) the board's region does not include any part of the area of a council; or (b) the Minister cannot, after taking reasonable steps, find a member or officer of a council who— (i) in the opinion of the Minister, is suitable to be appointed as a member of the board; or (ii) is willing and available to be a member of the board. (5) Before appointing a person or persons under subsection (1)(a), (2) or (3), the Minister must give each peak body notice of the fact that an appointment or appointments are to be made and give consideration to any submission made by any such body within a period (of at least 21 days) specified by the Minister. (6) At least 1 member of a regional landscape board must be a woman and at least 1 member must be a man. (7) The Minister must appoint a suitable member of a regional landscape board to be the presiding member of the board (and may from time to time revoke any such appointment and make a new appointment in the Minister's absolute discretion). (8) The Minister may appoint a suitable person to be the deputy of a member of a regional landscape board (and a person may be appointed as a deputy of more than 1 member). (9) A deputy may act as a member of a regional landscape board during any period of absence of the member in relation to whom the deputy has been appointed. (10) In the event of a vacancy in an office under subsection (1) (including on account of an insufficient number of members being elected to a regional landscape board under subsection (1)(b)), the Minister may appoint a suitable person to fill the vacancy. (11) A member who is filling a casual vacancy for an office that has been held by an elected member will be appointed for the balance of the term of that elected member. 16—Qualifications for membership (1) A regional landscape board must consist of persons who collectively have the knowledge, skills and experience necessary to enable the board to carry out its functions, including, so far as is reasonably practicable, knowledge, skills and experience across the following areas: (a) community affairs at the regional level; (b) primary production or pastoral land management; (c) soil conservation and land management; (d) conservation and biodiversity management; (e) water resources management; (f) business management; (g) local government or local government administration; (h) urban or regional planning; (i) Aboriginal interest in the land and water, and Aboriginal heritage; (j) pest animal and plant control; (k) natural and social science; (l) if relevant—coast, estuarine and marine management, fisheries or aquaculture. (2) In connection with subsection (1), a prospective member of a regional landscape board— (a) must demonstrate that they have any skills, qualifications, knowledge or experience referred to in subsection (1) (and the Minister must put in place processes to ensure, so far as is reasonably practicable