Environmental & Sustainability Law
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Water Rights
The Water Act 2000 vests all rights to the use, flow and control of Queensland's water with the state government.
The Department of Environment and Resource Management manages access to water through a system of water authorisations. This includes water licences, water permits (for short-term use), water allocations and interim water allocations. At Ferguson Cannon Lawyers we have an intact understanding of the Water Act 2000 and how it can impact you and your business.
What is a water licence?
A water licence is an entitlement to take or interfere with water.
A water licence does not allow the physical construction of works such as dams, pumps and weirs to take or interfere with water. These works are authorised by development permits issued under the Integrated Planning Act 1997.
Generally, a water licence is attached to land and the water taken or interfered with may be used only on the land to which the licence is attached.
A water licence that is not attached to land may be granted to the State Government, the water grid manager, a local Government, a water authority, a resource operations licence (ROL) holder, an interim resource operations licence (IROL) holder or another entity prescribed by a regulation.
In what situations will I need a water licence needed
Generally a water licence is for unsupplemented water. Unsupplemented water (historically referred to as ‘unregulated water’) is water that does not come from a water supply scheme.
There are some cases where a water licence is granted for an entitlement to supplemented water. Supplemented water (historically referred to as regulated water) is water that comes from a water supply scheme.
Taking or Interfering with Surface Water
Under the Water Act 2000, a water licence is required for the taking or interfering with water in a watercourse, lake or spring for purposes such as:
• stock or domestic water on lands that do not adjoin a watercourse, lake or spring
• irrigation
• industrial use
• the storage of water behind a weir
• the storage of water in excavations that are within or connected to a watercourse.
The Water Act 2000 also authorises the taking of water without a water licence for domestic purposes and stock watering on the land adjacent to a watercourse, lake or spring.
At Ferguson Cannon Lawyers we can help you understand the different ways of identifying wether you will need a water licence for surface water as identified above.
Taking or Interfering with Overland Flow
In some areas of the state, it is possible that you need a water licence for the taking or interfering with overland flow. Overland flow is defined by legislation generally as water that runs off the land from rainfall or flows over land after breaking from a watercourse, lake or spring. The areas where a licence is required for taking overland flow water are designated in water resource plans. At Ferguson Cannon Lawyers we can help you identify if you are affected by the Governments water resource plans and require a water licence for overland flow.
Taking or Interfering with Artesian Water
A water licence is also required for taking or interfering with artesian water anywhere in Queensland. Artesian water is defined by legislation generally as underground water that, when tapped by a bore, flows naturally to the surface. Ferguson Cannon Lawyers can assist you in obtaining the correct water licence to allow you to utilize your artesian water.
A water licence is also required to take or interfere with subartesian water in declared subartesian areas or in areas defined in a water resource plan. Subartesian water is defined by legislation generally as underground water that has to be pumped to the surface.
Subartesian water can however generally be taken for nonintensive stock and domestic purposes without a licence. Ferguson Cannon Lawyers can assist you in dertiming whether you require a water licence for the useage of your subartesian water.
APPLYING FOR A WATER LICENCE
An application for a water licence must be in the approved form and must be accompanied by the required application fee. At Ferguson Cannon Lawyers we will ensure that all madatory Governmet requiremtns are comlied with on your behalf when making your water licnece application.
The application must include sufficient information to enable assessment at Ferguson Cannon Lawyers we endeavour to ensure that occurs when the water licence application is first submitted. The Department of Environment and Resource Management may request additional information it considers necessary for the application to be decided. In this case Ferguson Cannnon lawyers will work with you to ensure that the Department’s requests are fully complied with.
It is important to remember that if you are the owner/s of contiguous parcels of land you may apply for a single water licence for that land instead of separate water licences for each parcel of land. Contiguous lands are separate parcels of land that are touching or nearly touching. For example, land on either side of a road might be considered contiguous.
Public notice of a licence application
Under the Water Act 2000 it is a requirement that public notice to be given about most water licence applications. The purpose of the public notice is to seek public input to the assessment of your viability to hold a water licence.
Under the Water Act 2000 it is the applicant’s responsibility to publish the notice. At Ferguson Cannon Lawyers we will provide you with the notice as well as attending to the publishing of the notice in the correct newspaper/s in which the notice must be published. Ferguson Cannon Lawyers will also ensure that the period within which the notice must be published is set by the Department of Environment and Resource management is complied with.
Ferguson Cannon Lawyers will also ensure that copies of the relevant newspapers in which the notice is published are supplied to the Department of Environmental and Resource management within 10 business days after publication. Such legislative requirements as this are key to your applications success as if they are not complied with your application will lapse.
The public notice will provide for submissions to be made about the application by interested persons. The minimum period for submissions to be made is 30 business days.
Submissions are taken into consideration when your application is assessed by the Department of Enironment and Resource Management. A submitter also secures the right to have the decision reviewed and, if necessary, to appeal the decision in the Land Court.
Assessment of a Water Licence Application
The statutory processes associated with a water licence application and its determination can be extensive. Accordingly, applications should be submitted as early as possible and it is recommended tht legal advice is sort to fast track the process as much as possible.
Assessment of an application for a water licence is undertaken by the department of Environment and resource management. In our experience at Ferguson cannon Lawyers we have notice that the Department considers the following factors in determining whether to grant a water licence:
- information provided by the applicant and submitters
- existing water entitlements
- relevant water resource plans and resource operations plans, which may stipulate if and how water licence applications should be dealt with in an area
- information on the effect on natural ecosystems
- physical integrity of the water source
- policies developed with the local community
- sustainable resource management strategies.
- any convictions an applicant has for water-related offences
Using a Water Licence & Water Licence Conditions
The Department of Environment and Resource Management will issue a water licence for a certain period and the water licence issued generally contains conditions that must be met by the individual or business that the licence is issued too.
At Ferguson cannon Lawyers we ensure that the conditions placed on your water licence are minised. In our experience such conditions can include:
• requirements to monitor how much water is taken;
• threshold flow conditions that must be met before water can be taken;
• the maximum rate at which water may be taken;
• the maximum volume of water that can be taken in a period; and
• limitation of the locations from which water may be taken.
It is also important to remember that a water licence is granted with the expectation that you as the licensee will use it to its full benefit. Failure to do so can result in reduction in the quantity of water to which the licensee is entitled to take, or the loss of the water licence. At Ferguson cannon lawyers we ensure that you fully understand what is required of you once a water licence is granted, ensuring that it is not taken away form you or altered by the Department of Environment and resource management.
Once you have been granted a water licence you may need to renew, reinstate, replace, transfer to a new owner of the land, amend, subdivide or amalgamate your water licence. Water licences may also be cancelled or surrendered. To facilitate any of these processes a special application needs to be made. An application to replace, amend, subdivide or amalgamate a water licence is dealt with as if the application is for a new water licence. Ferguson Cannon Lawyers has experience in dealing with all of these types of transactions and can assist you through the process.
Review and Appeal of Decisions Relating to Water Licences
Under the Water Act 2000, you as the applicant for a water licence and persons who make a proper submission about an application for a water licence have the right to seek an internal review of a decision and, if necessary, to appeal the review decision relating to a water licence. At Ferguson cannon Lawyers we have assisted numerous clients in reviewing the decision of the department of Environment and Resource management in relation to their water licence.
Water Offences
Offences under the Water Act 2000 tare very serious and can lead to prosecution. Some examples of such offences include:
• unauthorised taking or supplying of or interfering with water
• contravening a condition of a water licence
• tampering with a device used under the Water Act 2000 to measure the volume of water taken, or the rate and time of taking of water.
Consequently it is very important that you seek proper legal advice in relation to water licences to ensure that you fully comply with the Water Act 2000.
At Ferguson Cannon Lawyers, we understand and appreciate that securing a water licence can be key to the financial success of your business. We have a high success rate when working with businesses and companies when applying for water licences.
For further queries regarding your water licence queries, please contact Byron Cannon, Director byron@fclawyers.com.au or Samuel Barber, Solicitor sam@fclawyers.com.au or (07) 5443 6600.
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