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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-11-17 Daily Xml
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UPPER SOUTH EAST DRYLAND SALINITY AND FLOOD MANAGEMENT (EXTENSION OF PROJECT) AMENDMENT BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. P. HOLLOWAY (Minister for Mineral Resources Development, Minister for Urban Development and Planning, Minister for Small Business) (22:10): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The Upper South East (USE) Project was developed in the early 1990s to address community concerns about dryland salinity, waterlogging and the degradation and fragmentation of ecosystems in the Upper South East.

On 19 December 2002 the USE Project was given specific enabling legislation: the Upper South East Dryland Salinity and Flood Management Act 2002 (USE Act).

The USE Act was extended in 2006 to ensure that construction of the drainage network could continue as it was considered essential to mitigate flood risk, remove saline groundwater to improve agricultural productivity, and provide fresh water to meet the requirements of wetlands and threatened species.

The Bill being presented today seeks a further three-year extension to the USE Act to 19 December 2012. A number of important events have taken place that contribute to the need to extend the Act.

In June 2006, a comprehensive proposal to part-fund the Restoring Flows to the Wetlands of the Upper South East of South Australia (REFLOWS) project, was submitted to the National Water Commission for consideration. REFLOWS involves construction of floodways to partially redirect historic environmental flows to the Upper South East. Its objective is to construct the infrastructure that will opportunistically manage excess flows created by significant episodic rainfall events. The floodways will encourage water flows back into the historic watercourses of the Upper South East, thereby managing flooding events and providing water to the environment. The project links the Lower South East drainage system to the Upper South East by diverting water to the north from Drain M (which currently flows out to sea). The intention is to provide benefit to wetlands along the watercourse and ultimately to the Coorong if the rainfall event is large enough.

In a further development, the Natural Resources Committee of Parliament tabled its annual report on the USE Act for the period July 2007-2008 in November 2008. The report made recommendations for further study and assessment of environmental risks of aspects of the Project. The Committee recommended that no further work be undertaken on the Bald Hill groundwater drain or REFLOWS floodways pending these studies.

Two reviews were therefore undertaken: an independent review of the environmental implications of constructing and not constructing the proposed Bald Hill drain and an independent review of community perspectives of the Bald Hill drain and REFLOWS project. The first of these reports revealed that if no action is taken further degradation of the West Avenue watercourse is likely to occur. The second report found there was majority support for construction of Bald Hill and REFLOWS.

While the two independent studies and the cessation of work on Bald Hill and REFLOWS has delayed construction, they have provided the certainty required to complete the Project, including the construction of REFLOWS.

In addition to seeking to extend the USE Act to provide adequate time for completion of both the Bald Hill drain and REFLOWS, this Bill also seeks to address issues relating to acquisition of land by easement to construct REFLOWS, simplify the revestment of land on completion of works, make consequential amendments to the compensation and fencing provisions to reflect the revestment of land and the establishment of easements, and update the interest rate provisions relating to non-payment of the levy.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Upper South East Dryland Salinity and Flood Management Act 2002

4—Amendment of section 3—Interpretation

This clause proposes to insert the following definitions in section 3:

Category A project works corridor;

Category B project works corridor;

Category C project works corridor;

designated establishment date;

designated transfer date;

statutory easement.

It is also proposed to insert a new subsection (7) in the section that will provide for the making of regulations to prescribe various classes of statutory easements and the terms of such easements. Other amendments are consequential.

5—Amendment of section 10—Powers of authorised officers

The amendment proposed to this section is consequential.

6—Substitution of heading to Part 3 Division 1

It is proposed to substitute the heading to Division 1 of Part 3 as a consequence of the amendments proposed to that Division. The heading will be 'Vesting of land and creation of statutory easements'.

7—Amendment of section 12—Vesting of land (Category A and Category B project works corridors)

It is proposed to amend the section to provide that public land adjoining or adjacent to land within a Category A project works corridor may, by proclamation, be declared to be subject to a statutory easement (being an easement of a class prescribed by the regulations for the purposes of this section and being an easement that matches the nature of the land as public land and the nature of the works to be undertaken for the purposes of the Project according to a scheme set out in the regulations) in favour of the Minister over and in respect of public land.

Other proposed amendments to section 12 are related to the foregoing, or clarify the provision.

8—Insertion of sections 12A, 12B and 12C

It is proposed to insert new sections 12A, 12B and 12C in the principal Act after section 12 as proposed to be amended.

12A—Land to be revested (Category B project works corridors)

New section 12A provides that, on the commencement of this new section (the commencement date), all land within a Category B project works corridor will vest in—

(a) unless paragraph (b) applies—the person who, on the vesting of the land in the Minister under section 12, was the owner of the remainder of the land in the parcel of land that was affected by the vesting (the remaining land); or

(b) if the person referred to in paragraph (a) is not, on the commencement date, the owner of the remaining land—the person who, on the commencement date, is the owner of the remaining land.

The section then makes provision for various matters following the vesting. For example, if the vested land was, before the original vesting in the Minister, part of a road vested in a council, the land will be reinstated as a public road under the Local Government Act 1999. Land within a Category B project works corridor will, on the vesting under this new section, be taken to be subject to a statutory easement (being an easement of a class prescribed by the regulations for the purposes of this section and being an easement that matches the nature of the land as public land or as private land and the nature of the works to be undertaken for the purposes of the Project according to a scheme set out in the regulations) in favour of the Minister over and in respect of the land.

Land vested under this new section will be vested in the same estate as the remaining land and, on the vesting under this section, the title to the land will be taken to have been restored as if no change had ever occurred and as if the land had never been vested under section 12 (subject to any dealing with the remaining land between 19 December 2002 and the commencement date and without giving rise to any retrospective liability for any tax, rate or charge in connection with the land that has been revested).

The section makes provision for other matters that follow from the vesting under this section, the creation of the statutory easement and the restoration of title.

12B—Acquisition of interest in land by statutory easement (Category C project works corridors)

New section 12B provides that on the commencement of this new section, all land within a Category C project works corridor will, by force of this new section, be taken to be subject to a statutory easement (being an easement of a class prescribed by the regulations for the purposes of this section and being an easement that matches the nature of the land as public land or as private land and the nature of the works to be undertaken for the purposes of the Project according to a scheme set out in the regulations) in favour of the Minister over and in respect of the land.

12C—Statutory easements

New section 12C makes provision for statutory easements under section 12, 12A or 12B.

9—Amendment of section 13—Entitlement to compensation

The amendments proposed to section 13 relate to compensation with respect to land within a Category A or Category B project works corridor and relate to the return of land within the project works corridor to persons and the creation of statutory easements over the land.

Other proposed amendments are consequential on distinguishing between compensation in relation to land within a Category A project works corridor and compensation in relation to land within a Category B project works corridor. For example, the finalisation date for land within a Category A project works corridor remains unchanged from what is currently provided in the Act, while the finalisation date for land within a Category B project works corridor will be a date that is not later than 19 December 2014 fixed by the Governor by proclamation for the purpose.

10—Insertion of section 13A

This new section is proposed to be inserted after section 13.

13A—Entitlement to compensation—Category C project works corridors

New section 13A provides that, subject to this section, the Minister is, in respect of the acquisition of a statutory easement over land within a Category C project works corridor, liable to pay compensation to any person who is the holder of an estate or interest in the land that is subject to the easement on the relevant date (and an entitlement to compensation under this section with respect to a particular easement does not arise before the relevant date).

The compensation will be determined—

(a) as if the Minister had acquired the easement on the relevant date; and

(b) as if the acquisition had occurred in accordance with the Land Acquisition Act 1969.

The section requires the Minister to make an offer of compensation within 6 weeks after the relevant date and that offer will be taken to have been made under section 23A of the Land Acquisition Act 1969. The section also defines relevant date and works finalisation declaration for the purposes of the section.

11—Amendment of section 17—Entry onto land

The amendments proposed to this section are consequential.

12—Amendment of section 21—Fencing works and drainage reserves

Current section 21 provides for the erection, repair, maintenance and replacement of fencing of Project works and drainage reserves within the Project area. It is proposed to insert new subsections that empower the Minister to require the owner of land where a statutory easement is situated to carry out specified fencing work; and provide that the owner is responsible for the maintenance and replacement of designated fencing (with, subject to the terms of an agreement, the Minister bearing half the cost).

13—Amendment of section 23—Contribution to funding of project

The proposed amendment to section 23 will substitute the current definition of prescribed percentage with a new definition for the purposes of calculating the interest that is to be payable on any contribution required to be paid under this section that is in arrears.

14—Amendment of section 44—Regulations

It is proposed to amend the regulation making power so as to allow for the substitution of any Rack Plan referred to in Schedule 1.

15—Amendment of section 45—Expiry of Act

This proposed amendment will postpone the expiry of the Act for 3 years until 19 December 2012. A new subsection is also proposed to be inserted to make provision in relation to statutory easements created under the Act after the Act expires.

16—Variation of Schedule 1—Project works corridors

It is proposed to amend Schedule 1 to include a description of lines for the purposes of paragraph (c) of the definition of project works corridor.

Schedule 1—Transitional provisions

The Schedule contains provisions.

Debate adjourned on motion of Hon. D.W. Ridgway.


At 22:11 the council adjourned until Wednesday 18 November 2009 at 11:00.


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