Soil Conservation Act 1938 (NSW)

Soil Conservation Act 1938 No 10 An Act to make provision for the conservation of soil resources and farm water resources and for the mitigation of erosion; for these and other purposes to amend the Crown Lands Consolidation Act 1913 and certain other Acts; and for purposes connected therewith. Part 1 Preliminary 1 Name of Act and commencement (1) This Act may be cited as the Soil Conservation Act 1938. (2) This Act shall commence upon a day to be appointed by the Governor and notified by proclamation published in the Gazette. 2 (Repealed) 3 Definitions (1) In this Act, unless the context or subject matter otherwise indicates or requires: Bed, in relation to a river or lake, means the whole of: (a) the soil or other matter forming the channel in which the river flows, or (b) the soil or other matter forming the bottom of the lake, and includes so much of the sides and bottom of the channel or of the shores and bottom of the lake as contain the river or lake at its mean level (whether or not the river or lake is for the time being at its mean level), but does not include any part of the sides or bottom of the channel or of the shores or bottom of the lake covered by water in times of flooding only. Catchment area means an area in respect of which a notification under section 20 is, or is deemed to be, in force. Catchment committee means a soil conservation catchment committee constituted in accordance with section 23A. Commissioner means the person employed in the Public Service as the Soil Conservation Commissioner. Corporation means the corporation constituted by section 4B (1). Crown land means Crown land within the meaning of the Crown Land Management Act 2016. Deputy Commissioner means the person employed in the Public Service as the Deputy Soil Conservation Commissioner. Farming lands means: (a) lands used for farming, agricultural, horticultural, viticultural, vegetable-growing, market gardening, pastoral, grazing, poultry farming, silvicultural, floricultural or piscicultural purposes, and (b) any other lands declared by the regulations to be farming lands for the purposes of this Act. Lake includes a lagoon, swamp or other collection of still water, whether permanent or temporary, not being water contained in an artificial work. Occupier, in relation to land, includes a person having the control or management of the land, whether residing thereon or not. Owner, in relation to land, includes every person who jointly or severally, whether at law or in equity: (a) is entitled to the land for any estate of freehold in possession, or (b) is a person to whom the Crown has lawfully contracted to sell the land under the Crown Land Acts or any other Act relating to the alienation of lands of the Crown, or (c) is entitled to receive, or is in receipt of, or if the land were let to a tenant would be entitled to receive, the rents and profits thereof, whether as beneficial owner, trustee, mortgagee in possession or otherwise, or (d) is the holder of any lease granted under the Crown Land Acts or any other Act relating to the disposition of lands of the Crown. Regulations means regulations made under this Act. River includes: (a) a stream of water (whether or not consisting of or including saline water), whether perennial or intermittent, flowing in a natural channel, or in a natural channel artificially improved, or in an artificial channel which has changed the course of the stream, and (b) an affluent, confluent, branch or other stream of water (whether or not consisting of or including saline water) into or from which a stream referred to in paragraph (a) flows. Service means the Soil Conservation Service of New South Wales. Tree includes sapling, shrub and scrub. Works, other than in Part 4, means: (a) works necessary for the conservation of soil or the mitigation of erosion and any operations incidental thereto, or (b) works necessary for the conservation of water resources or the provision or improvement of the water supply to farming lands for domestic or stock purposes, and any operations incidental thereto, not being the construction or improvement of a bore (within the meaning of the Farm Water Supplies Act 1946). (2) In this Act, a reference to the conservation of water resources is a reference to the conservation of water resources on farming lands, not being water resources concerned primarily with irrigation and not being sub-surface water resources. Part 2 Appointment and functions of Commissioner 4 Soil Conservation Commissioner (1) The Commissioner shall subject to the control and direction of the Minister exercise and discharge the powers, authorities, duties and functions conferred and imposed upon the Commissioner under this Act. (1A)–(5) (Repealed) (6) (a) In the case of the absence from duty of the Commissioner the Governor may appoint a person to act in place of the Commissioner during the Commissioner's absence. (b) While so acting the person shall have the immunities and may exercise and discharge all the powers, authorities, duties and functions of the Commissioner. (c) A person appointed under this subsection may if the Minister thinks fit be paid such remuneration for the person's services, including travelling and subsistence allowances, as the Minister may determine. (d) No body shall be concerned to inquire whether or not any occasion has arisen requiring or authorising a person to act in the place of the Commissioner, or as to the necessity or propriety of any appointment of a person under this subsection, and all acts or things done or omitted by a person when so acting as aforesaid shall be as valid and effectual and shall have the same consequences as if the same had been done or omitted by the Commissioner for whom the person is acting. (7)–(8) (Repealed) 4A Deputy Commissioners (1), (2) (Repealed) (3) A Deputy Commissioner: (a) shall assist the Commissioner in the exercise or discharge of the Commissioner's powers, authorities, duties and functions, (b) may, with the approval of the Minister, act in the place of the Commissioner or, if a person has been appointed under section 4 (6) to act in the place of the Commissioner, in the place of the person if the Commissioner or the person, as the case may be: (i) is absent from duty, or (ii) though not absent from duty, is not available to exercise or discharge his or her powers, authorities, duties and functions, and while so acting shall have the immunities and may exercise or discharge all the powers, authorities, duties and functions of the Commissioner, and (c) shall exercise or discharge such other powers, authorities, duties and functions as are conferred or imposed upon a Deputy Commissioner by or under this or any other Act. (4) An approval under subsection (3) (b), in relation to a Deputy Commissioner acting in the place of the Commissioner, shall not have effect while a person is acting in the place of the Commissioner under section 4 (6). (5) No person shall be concerned to inquire whether or not any occasion has arisen requiring or authorising a Deputy Commissioner to act in the place of the Commissioner, or as to the necessity or propriety of any approval for a Deputy Commissioner so to act and all things done or omitted by a Deputy Commissioner while so acting shall be as valid and effectual and shall have the same consequences as if they had been done or omitted by the Commissioner. 4B Commissioner to be corporation sole for certain purposes (1) The Commissioner is, for the purpose of exercising or performing those powers, authorities, duties or functions expressed to be conferred or imposed on the Corporation by or under this Act, hereby incorporated as a corporation sole with the corporate name "Soil Conservation Commission of New South Wales". (2) The Corporation: (a) has perpetual succession, (b) shall have an official seal, (c) may take proceedings, and be proceeded against, in its corporate name, (d) may do and suffer all other things that a body corporate generally may, by law, do and suffer and that are necessary for or incidental to the purposes for which the Corporation is constituted, and (e) is, for the purposes of any Act, a statutory body representing the Crown. (3) The seal of the Corporation shall be kept by the Commissioner and shall be affixed to an instrument or document only in the presence of the Commissioner, or a person for the time being authorised by the Commissioner for the purpose, who shall attest by his or her signature the fact and date of the affixing of the seal. (4) All courts and persons acting judicially: (a) shall take judicial notice of the seal of the Corporation that has been affixed to any instrument or document, and (b) shall, until the contrary is proved, presume that the seal was properly affixed. 4C Powers, authorities, duties and functions of Commissioner With the aim of ensuring the conservation of the soil resources of the State, the mitigation of soil erosion and land degradation and the conservation of water resources, the Commissioner shall have and may exercise and perform the powers, authorities, duties and functions conferred or imposed on the Commissioner by or under this or any other Act and, in particular, the Commissioner shall have and may exercise and perform the following powers, authorities, duties and functions: (a) the encouragement and guidance of experimental and research work for or in connection with any purpose contemplated by this Act, the publication of the results of experimental and research work and the establishment of research centres, (b) the collection, collation, interpretation, publication and promulgation of data concerning the physical capability of lands, (c) the evaluation of the present condition of the State's soil resources, and the future requirements for the mitigation of soil erosion and land degradation, (d) the maintenance of a repository of relevant data on soils and on methods of protecting soils, (e) the carrying out of surveys and investigations, (f) the mapping of catchment areas, protected lands and areas of erosion hazard, (g) the protection of any proclaimed works, notified catchment areas, rivers, lakes, dams, ports, harbours, bays, lagoons, creeks, swamps and marshes from the effects of soil erosion, land degradation, siltation and sedimentation, (h) the administration of areas of erosion hazard, (i) the preparation of schemes of operations, (j) the carrying into effect and administration of projects, (k) the preparation of designs for and the estimation of the costs of any works proposed to be carried out on any lands, (k1) the supervision of the carrying out of any works, (l) the stimulation of interest in soil conservation, land management and improved land use practices, (m) the initiation, arrangement and conduct of field days and demonstrations, (n) the formulation, co-ordination and implementation of plans for the assessment, conservation, protection and utilisation of the State's soil resources, (o) the provision of advice and assistance in connection with any works to persons whose lands have been or are liable to be affected by soil erosion or land degradation, (p) the instruction and supervision of landholders, contractors and constructing authorities in matters pertaining to soil conservation and reclamation, (q) the training and education of persons engaged in soil conservation, (r) having regard to the objects of this Act, the co-ordination, in relation to soil conservation and the mitigation of soil erosion and land degradation, of the policies and activities of government departments, statutory authorities, local authorities and other public bodies, (s) the management, by arrangement with the Water Resources Commission or any other water supply authority, of acquired foreshore land within the catchment of any dam for public water supply under the control of the Commission or the other authority, and (t) the making of inquiries and recommendations in respect of matters referred to the Commissioner by the Minister. 5 Staff of Commissioner Persons may be employed in the Public Service under the Government Sector Employment Act 2013 to enable the Commissioner to exercise his or her functions. 6 Experimental and research work (1) With a view to conserving the soil resources and water resources of the State and protecting catchment areas and proclaimed works the Commissioner may of the Commissioner's own motion, and shall, if so directed by the Minister, conduct experimental and research work in connection with soil conservation and erosion mitigation, in connection with the conservation of water resources and in connection with any other purpose contemplated by this Act. (2) (Repealed) 7 Power of Minister to direct special investigations The Commissioner shall conduct such investigations relative to any special aspect of erosion or conservation of water resources as may be required by the Minister. 8 Power of Minister to direct or authorise the making of surveys etc The Minister may authorise or direct the making of any survey or the carrying out of any investigation or other operations which the Minister considers necessary or desirable for giving effect to any of the purposes of this Act. 9 (Repealed) 10 Projects (1) The Commissioner shall prepare and forward to the Minister a scheme or schemes of operations for the purpose of soil conservation or erosion mitigation, for the purpose of the conservation of water resources or for any other purpose contemplated by this Act: (a) (Repealed) (b) in respect of any catchment area notified under this Act—as soon as practicable after the notification of such catchment area, (c) in respect of the area of erosion hazard constituted under this Act—as soon as practicable after the commencement of this Act, (d) in respect of any area of erosion hazard notified under this Act—as soon as practicable after the notification of such area of erosion hazard. (2) The Commissioner may prepare and forward to the Minister a scheme or schemes of operations for the purpose of soil conservation or erosion mitigation, for the purpose of the conservation of water resources or for any other purpose contemplated by this Act in respect of any land not being an area mentioned in subsection (1). (3) Each scheme of operations shall: (a) indicate the lands proposed to be dealt with under the scheme, (b) indicate generally the nature and class of operations to be carried out on those lands. (4) The Minister may submit a scheme of operations to the Governor for the Governor's approval. (5) A scheme of operations which has been approved by the Governor in accordance with this section is in this Act referred to as a project. (6) Unless the Minister otherwise directs, subsection (1) (b) need not be complied with in respect of the notification of a catchment area which substantially replaces an existing catchment area. 11 Agreements relative to projects (1) Where a project has been instituted the Minister may, on behalf of the Crown, enter into such agreements with all or any of the respective owners, occupiers or mortgagees of the lands proposed to be dealt with under the project as may be necessary to ensure the carrying into effect of the project. (1A) The covenants, conditions and provisions of any agreement entered into under subsection (1) may include covenants, conditions and provisions relating to: (a) the limitation of the total number of livestock or the numbers of livestock of specified classes which may from time to time be carried on the land which is the subject of the agreement, (b) the methods and practices of land utilisation or land management to be adopted on such land, (c) the assistance the Minister will provide towards the execution of any works or measures required to be undertaken upon such land. (2) The instrument evidencing any such agreement may be executed by the Commissioner for the Minister. (3) Where an owner who has entered into an agreement under this section is the holder of land of any tenure under any Act relating to the disposition of lands of the Crown, no act, matter or thing which such owner, under or in conformity with such agreement, does or abstains from doing upon or in relation to the land, shall render the land liable to forfeiture under any such Act merely by reason of the fact that the doing or abstaining from the doing of such act, matter or thing constitutes a breach or non-performance of any covenant, condition or provision applicable to the land under any such Act. (4) An agreement under this section, whether entered into before or after the commencement of the Soil Conservation (Amendment) Act 1985, may be terminated by the Minister at any time by the serving of a notice of termination of the agreement personally or by post on the other party or parties to the agreement. 12 Advances and payments The Minister may, out of moneys provided by Parliament: (a) make an advance, upon such security and at such rate of interest and subject to such covenants, conditions and provisions as the Minister may think fit, to any owner or occupier of land proposed to be dealt with under a project who has, pursuant to this Act, entered into an agreement, for the purpose of enabling such owner or occupier to carry out his or her obligations under such agreement, (b) pay any costs or expenses incurred: (i) in carrying any project into effect, (ii) under any arrangement made pursuant to section 13, (iii) in carrying out any works under section 14 (1) or 18 or under Part 4A. Any advance to an owner or occupier under the provisions of this section shall be made only upon the application of the owner or occupier under and in accordance with the provisions of Part 4A and the provisions of the said Part shall apply, mutatis mutandis, to and in respect of any such advance. 13 Carrying out of works by Government departments and statutory bodies The Minister may arrange with the Minister of any Government department or with any statutory corporation for the carrying out by such department or statutory corporation of any works required or authorised by or under this Act to be carried out by the Minister or the Commissioner. 14 Carrying out of works by Minister or Commissioner (1) The Minister may carry out or authorise the Commissioner to carry out any works, whether or not the works are for the purpose of giving effect to a project. (2) The Minister shall be deemed to have authorised the carrying out of any works required or authorised to be done by an owner, occupier or mortgagee of any land under any agreement made pursuant to this Act. (3) Where any works referred to in this section or in section 13 or section 18 or Part 4A are constructed or used or are proposed to be constructed or used for the purpose of: (a) water conservation, irrigation, water supply or drainage, or (b) the prevention of inundation of land and overflow of water thereon, or (c) changing the course of a river, such works shall be carried out under the authority of an approval under the Water Management Act 2000: Provided that the Water Administration Ministerial Corporation may, in any case where, in its opinion, the circumstances so warrant, authorise the carrying out of such works without any such approval. Where any such authority is given the provisions of the Water Management Act 2000 relating to approvals, shall not apply to or in respect of the construction or use of the works referred to in any such authority. 14A Minister may let machinery etc The Minister may: (a) let on hire any machinery, plant or equipment, or (b) provide labour, materials or services, to any person for the purpose of the carrying out of works, subject to payment of such charge or cost as may be agreed upon. 15 Power of entry (1) The Commissioner or any officer or employee of the Service may, in the exercise of any power, authority, duty or function conferred or imposed on the Commissioner or the officer or employee by or under this Act, enter any land, and make such surveys, place such marks and carry out such investigations (including the taking of specimens of soil) as the Commissioner or the officer or employee may deem necessary. (2) Where the exercise or performance of any power, authority, duty or function conferred or imposed upon the Commissioner or any officer or employee of the Service by or under this Act requires the making of an entry upon any land by the Commissioner or by that officer or employee, the Commissioner or that officer or employee shall be furnished with an authority card in a form approved by the Minister. Any such authority card may be general or may be limited to specified land or to land in any specified part of the State. Production of any such authority card shall be evidence of the authority of the bearer thereof to enter any land to which such authority card relates and to make surveys, place marks and carry out investigations thereon. (2A) Any such authority card must contain the following information: • a statement to the effect that the authority has been granted under this Act • the name of the person to whom the authority has been granted • the nature of the powers that the authority confers • the period for which the authority has effect. (3) Any person who: (a) obstructs or hinders the Commissioner or any officer or employee of the Service from making any survey, placing any mark, or carrying out any investigation authorised by this section, or (b) removes or interferes with any mark placed on land under the authority of this section, shall be liable to a penalty not exceeding 50 penalty units. Part 2A Soil conservation notices 15A Issue of notices (1) If the Commissioner is of the opinion that: (a) any act or thing done or proposed to be done on or in relation to any land, or (b) the failure to do any act or thing on or in relation to any land, has caused or is likely to cause soil erosion or land degradation on that land or on other land and that the erosion or degradation or its effects can be mitigated or avoided, the Commissioner may by notice served on the owner or occupier of, or on the holder or grantee of any timber rights over, the firstmentioned land require that owner, occupier, holder or grantee, within the time specified in the notice, to: (c) abstain from doing, or (d) do or permit to be done, such acts and things as may be specified in the notice. (2) A notice under this section does not have any effect in respect of land while a notice under section 18 or 22 is in force in respect of that land. (3) Notices may, in relation to the same area of land, be served on one or more of the persons referred to in subsection (1). (4) A notice may be revoked, varied or amended by a like notice. (5) A notice under this section may be served on a person: (a) personally or by post, or (b) by email to an email address specified by the person for the service of notices of that kind, or (c) by any other method authorised by the regulations for the service of notices of that kind. 15B Objections (1) A person on whom a notice under section 15A has been served may, within 30 days after service of the notice, lodge with the Minister an objection in writing to the requirements of the notice. (2) An objector shall specify the grounds of objection. (3) The Minister shall, within 30 days of the receipt of an objection, determine the objection and may direct that: (a) the notice be complied with, (b) the notice be revoked, or (c) the notice as varied or amended by the Minister be complied with. (4) Notice of the determination shall be served on the objector personally or by post. 15C Appeals (1) An objector may within 30 days of the service of the notice of a determination of the Minister under section 15B appeal against the determination to the Land and Environment Court. (2) The Court shall have jurisdiction to hear and determine the appeal, the determination shall be final and the Minister shall give effect to the determination. 15D Compliance with notices (1) If a notice under section 15A requires a person to abstain from doing any act or thing, the person shall comply with that notice notwithstanding that an objection or appeal is lodged unless that requirement is dispensed with by the Minister or the Land and Environment Court. (2) If an objection or appeal is lodged in respect of a notice requiring a person to do or permit to be done any act or thing, the requirement is suspended until the objection or appeal is determined. 15E Prosecution (1) A person who fails to comply with the requirements of a notice under section 15A within the time specified in the notice is guilty of an offence against this Act and liable to a penalty not exceeding 500 penalty units. (2) It is a defence to a prosecution of a person if the court is satisfied that the person had no legal right to enter the land in respect of which the notice was given and comply with the requirements of the notice. 15F Commissioner may carry out work (1) If a person does not comply with the requirements of a notice under section 15A within the time specified in the notice (whether that person has been convicted of an offence in respect of the notice or not), the Commissioner or an officer or employee of the Service authorised by the Commissioner may, where the notice required the doing of any act or thing on any land, enter upon the land and do the act or thing. (2) Any costs incurred by the Commissioner under subsection (1) may be recovered in a court of competent jurisdiction from the person served with the notice as a debt due to the Crown. (3) If the person is the owner of the land on which the act or thing is done, the costs incurred shall, until paid, be a charge on the land. (4) A person who obstructs or hinders the Commissioner or an officer or employee of the Service in the exercise of powers under subsection (1) shall be liable to a penalty not exceeding 50 penalty units. 15G Civil actions (1) If a person fails to comply with a requirement of a notice under section 15A and damage is caused to the land of any other person, being damage which would not have been caused if the requirement had been complied with, the owner or occupier of the land damaged has a right of action against the person for the damage. (2) Subsection (1) does not apply and shall be deemed never to have applied in respect of a requirement which, as a result of an objection or appeal, is not required to be complied with. (3) No person shall be entitled to claim from or be paid by the Minister, the Commissioner or any officer or employee of the Service any compensation by reason of or arising out of the service of a notice under section 15A. 15H Western lands leases (1) Nothing in this Part authorises the service of a notice on the lessee or occupier of, or the holder or grantee of any timber rights over, a Western lands lease (within the meaning of Schedule 3 to the Crown Land Management Act 2016). (2) If the Commissioner is of the opinion that a notice under section 15A would have been served in respect of an area of land leased under a Western lands lease if the land were not so leased, the Commissioner may notify the Minister administering the Crown Land Management Act 2016 of the requirements that would have been included in such a notice. (3) The Minister administering the Crown Land Management Act 2016 may, under the authority of that Act, attach conditions to, or give directions under a condition attaching to, a Western lands lease for the purpose of achieving compliance with such of the requirements notified to the Minister administering the Crown Land Management Act 2016 in respect of the land leased as have been agreed to by the Minister administering the Crown Land Management Act 2016. Part 3 Areas of erosion hazard 16 Snowy River catchment to be an area of erosion hazard That part of the State of New South Wales which forms the catchment area of the Snowy River and its tributaries shall be an area of erosion hazard. The area referred to in this section is in this Act referred to as the area of erosion hazard constituted under this Act. 17 Areas of erosion hazard (1) The Minister may give notice of a proposal that a tract of land should be notified as an area of erosion hazard if the Minister is of the opinion that the tract of land is subject to, or liable or likely to become liable to, erosion. Notice of the proposal is to be given: (a) by publishing the notice in the Gazette, and (b) in such other manner as the Minister is satisfied is likely to bring the notice to the attention of members of the public in the locality in which the land is situated to whom the proposal may be of interest. (2) Every notification under subsection (1) shall: (a) define by reference to a map or plan the tract of land to which the proposal relates, (b) appoint a date, not being earlier than thirty days after the publication of the notification in the Gazette, on or before which objections may be lodged against the proposal, (c) contain such other particulars as may be approved by the Minister. (3) A copy of or a reference to the map or plan shall be served upon every owner and occupier of land which is wholly or partly within the boundaries of the tract of land to which the proposal relates and, where such land is subject to mortgage, upon the mortgagee. (3A) A copy of or a reference to a map or plan that is required to be served on a person under this section may be served: (a) personally or by post, or (b) by email to an email address specified by the person for the service of documents of that kind, or (c) by any other method authorised by the regulations for the service of documents of that kind. (4) Any owner, occupier or mortgagee of land which is wholly or partly within the boundaries of the tract of land to which the proposal relates may, not later than the date appointed therefor, lodge an objection in writing to the proposal. Any such objection shall state the ground upon which the same is based, and shall be lodged in a manner approved by the Minister. (5) The Minister shall give consideration to all objections against the proposal which may have been lodged within the time appointed therefor, and may, in order to meet any such objection, make such alteration of the proposals as the Minister may think fit. The Minister shall notify this decision in respect of each such objection to the owner, occupier or mortgagee who lodged the same. (6) (Repealed) (7) (a) If no objection against the proposal is lodged within the time appointed therefor the Minister may, upon the expiration of that time, submit the proposal to the Governor. (b) If any objection against the proposal is lodged within the time appointed therefor the Minister may, when all such objections have been disposed of, submit the proposal to the Governor wi