Country Areas Water Supply Act 1947

The Act primarily affects owners and occupiers of “controlled land” within the catchment areas and water reserves specified in Schedule 2. The term “holding” in s 5(1) is defined expansively to include land held in fee simple, on conditional purchase or pastoral lease under the Land Administration Act 1997 (or predecessor legislation), or under perpetual leases granted pursuant to the War Service Land Settlement Scheme Act 1954. “Land in question” means that portion of a holding that is controlled land (s 12AA).

Farmers and graziers are the most directly impacted cohort because the clearing prohibition intersects with normal agricultural practice. Any person proposing to clear indigenous vegetation for cropping, pasture improvement, firebreaks, or infrastructure must obtain a clearing licence from the Minister (s 12C(2)) or rely on one of the statutory exceptions in s 12C(1), such as emergency measures to protect life or property, obligations under the Biosecurity and Agriculture Management Act 2007 or Bush Fires Act 1954, or activities expressly permitted by regulation.

Licensees under the Water Services Act 2012 (typically Water Corporation) are granted overriding powers to take water but remain subject to the Rights in Water and Irrigation Act 1914 licensing regime for certain water (s 11(2)). The Minister (currently the Minister for Water) and the Department (principally the Department of Water and Environmental Regulation) exercise regulatory, enforcement, and acquisition functions. Local governments are displaced within catchment areas for pollution-control purposes, as the Minister assumes their powers under the Health (Miscellaneous Provisions) Act 1911 (s 12).

Downstream users of country water supplies—rural towns, mining operations, and irrigated agriculture—benefit indirectly. Successors in title are bound by notices, orders, and covenants (ss 109, 12B(2), 12EB(7)). Mortgagees, caveators, and prospective purchasers are affected by the memorial registration system on certificates of title or in the deeds registry (ss 12BA–12BC, 12EA), which operates as a form of statutory caveat. Finally, the Supreme Court, State Administrative Tribunal (SAT), and courts of summary jurisdiction are engaged in review, injunction, compensation, and prosecution roles.

Duties

• Owners and occupiers must refrain from clearing controlled land except under a licence, statutory exception, or unavoidable events (s 12B(1) read with s 12C(1)).
• A person served with a restoration order must comply within the time and manner specified or face ministerial entry and cost recovery (s 12BD(1)).
• Licence holders must observe all endorsed conditions; breach renders the act unauthorised and exposes the holder to offence liability, licence cancellation, or revocation (s 12C(7)).
• Applicants for licences must not make false or misleading statements (s 12C(5)).
• Any person must not obstruct the Minister, departmental officers, or authorised persons (s 112) or refuse to surrender possession of water works (s 113).
• The Minister must consider compensation claims within the statutory framework, including the one-tenth tree-cover baseline (s 12E(1)), and may elect to purchase or resume land instead of paying compensation (s 12E(6)).

Rights

• Landowners may apply for clearing licences and, if refused or granted on unacceptable conditions, seek SAT review (s 12D) and compensation for injurious affection (s 12E(4)). Claims may extend to other land in the same ownership rendered unproductive (s 12E(2)).
• Compensation carries interest from 60 days after claim at the prescribed rate (s 12E(3)) and may be satisfied by transfer of surplus government land (s 12E(7)).
• Affected parties may seek variation of restoration orders by consent (s 12B(3)) or removal of memorials when spent (s 12BC).
• The Minister may issue certificates negating prior clearing liability (s 12BA(3)).
• The Supreme Court may grant injunctions to restrain threatened clearing or require remedial steps, without requiring undertakings as to damages (s 12BE).
• Evidentiary presumptions operate both ways: aerial photographs certified by the Surveyor General are prima facie evidence of vegetation state (s 12EE(1)), while occupiers and owners are deemed to have cleared or permitted clearing unless the contrary is proved (s 12EE(3)).

The Act creates a tiered enforcement regime. The base clearing offence under s 12B(1) carries a maximum fine of $2 000 (s 12B(2)), but the real sting lies in the mandatory (subject to special circumstances) restoration order that runs with the land. Non-compliance with a restoration order permits the Minister to enter, remediate, and recover costs as a debt from the current owner (s 12BD(1)). A subsequent owner who incurs expense may recover it from the original offender (s 12BD(2)).

Section 11A imposes higher specific penalties for unauthorised diversion or acts likely to diminish or pollute water: $10 000 (individual) or $20 000 (body corporate). Obstruction is punishable by a $5 000 fine (s 112), while refusing to surrender water works carries a $10 000 penalty and must be heard by a magistrate (s 113). Knowingly false statements in licence applications or reviews can lead to licence revocation in addition to any penalty (s 12C(5)).

Enforcement tools are broad. The Minister may commence prosecutions within two years (s 115(1)–(2)), and only the Minister, departmental officers, or authorised persons may prosecute (s 115(1)). Immediate entry without notice or warrant is authorised where an offence is being or is about to be committed and urgent intervention is required (s 12ED(5)). Warrants may be obtained from a Justice of the Peace where entry is refused (s 12ED(4)). Injunctions are available on an interim or final basis without the usual undertaking as to damages (s 12BE(2)), and civil remedies remain available notwithstanding prosecution (s 111).

Memorials registered on title provide constructive notice and facilitate enforcement against successors (ss 12BA–12BC, 12EA). Evidentiary aids include CEO certificates (s 121) and presumptions of responsibility (s 12EE(3)).

The Act is expressly subordinate to ratified State Agreements (s 12A(2)) and must be read with the Water Agencies (Powers) Act 1984, which supplies many definitions and the by-law making power (s 105 referring to s 34 of that Act). It interfaces with the Water Services Act 2012 (licensee powers) and the Rights in Water and Irrigation Act 1914 (protection of certain water entitlements) (s 11).

Part IIA is overlaid on the Land Administration Act 1997 for compulsory acquisition (s 12E(6)), compensation determination (s 12EC), and dealing with resumed land (s 12EB). Title memorials engage the Transfer of Land Act 1893 (Div 3A of Part IV) and the Registration of Deeds Act 1856 (ss 12BA–12BC, 12EA, 12EB(5)–(6)). Pollution control powers replicate those of local governments under the Health (Miscellaneous Provisions) Act 1911 (s 12).

Clearing exceptions reference the Biosecurity and Agriculture Management Act 2007 and Bush Fires Act 1954 (s 12C(1)(c)). SAT review is enabled by the State Administrative Tribunal Act 2004 (s 12D). Interest on compensation is tied to the Civil Judgments Enforcement Act 2004 (s 12E(3)). The Act’s evidentiary and procedural provisions supplement the Criminal Procedure Act 2004 and general evidence law.

Historical amendments have removed large tranches of the original Act (Parts III–VII largely deleted) and substituted cross-references to the Water Resources Legislation Amendment Act 2007 and Water Services Legislation Amendment and Repeal Act 2012, reflecting the progressive corporatisation and environmentalisation of water governance.

The most recent substantive amendments were introduced by the Water Services Legislation Amendment and Repeal Act 2012 (assented 3 September 2012, commenced 18 November 2013). These updated references to the Water Services Act 2012, increased penalties in s 11A and s 112, adjusted prosecution time limits and evidentiary provisions, and deleted spent sections. The changes aligned the Act with the reform that separated water service delivery from regulation and strengthened enforcement in line with contemporary environmental standards.

The Public Health (Consequential Provisions) Act 2016 further substituted references in s 12 to the Health (Miscellaneous Provisions) Act 1911, reflecting modern public-health legislation. Earlier, the Water Resources Legislation Amendment Act 2007 (commenced 1 February 2008) repealed spent definitions, updated departmental references, and inserted transitional provisions.

These amendments reflect three policy drivers: (1) modernisation of water governance following the creation of the Water Corporation and Economic Regulation Authority; (2) integration of water protection with broader environmental and planning statutes; and (3) escalation of penalties and procedural efficiency to deter illegal clearing in an era of heightened climate and water-security concerns. The 1980 and 1976 amendments that inserted Part IIA remain the most transformative, shifting the Act from infrastructure-focused to land-use regulatory.

The source text itself does not record specific judicial decisions, but the statutory language reveals several points of likely contention. The deeming provisions in s 12EE(3)—that an occupier is deemed to have cleared and an owner deemed to have permitted clearing unless the contrary is proved—reverse the ordinary burden of proof and have attracted criticism for potential unfairness to absentee landowners. Section 12B(2) restoration orders that “run with the land” and may be made against subsequent owners raise questions of proportionality and acquisition of property on other than just terms, although the compensation machinery in s 12E is designed to mitigate this.

The one-tenth tree-cover rule in ss 12C(3) and 12E(1) has been controversial among agricultural stakeholders who argue it imposes a rigid, one-size-fits-all standard irrespective of soil type, topography, or enterprise. SAT reviews under s 12D have generated a modest jurisprudence on what constitutes “exceptional reasons” for granting a licence where the one-tenth threshold would be breached, and on the proper quantification of injurious affection.

Injunction applications under s 12BE without undertakings as to damages have been upheld as a legitimate statutory derogation from ordinary equitable practice. Compensation disputes under s 12EC frequently turn on whether land outside the controlled area has been “injuriously affected” and the extent to which the statutory baseline reduces compensable value. Memorial registration on title has been challenged on the basis that it may constitute an unregistered equitable charge or cloud title, although the statutory scheme has generally been upheld as a valid planning notification mechanism.

Controversies also surround the breadth of ministerial discretion in varying licence conditions post-grant (s 12C(6)) and the absence of a statutory appeal from certain decisions other than to SAT. Overall, the Act has been criticised by some rural interests as prioritising metropolitan water security over viable farming, while environmental groups view the licensing exceptions and compensation provisions as necessary but sometimes inadequately enforced safeguards.

Most practitioners miss that a memorial registered under s 12BA (possible future restoration order) or s 12BB (actual order) continues to burden the land even after sale; purchasers must obtain a ministerial certificate under s 12BA(3) to clear title risk. The one-tenth rule is not a target but a statutory floor below which compensation is unavailable for the excess cleared area (s 12E(1)), a nuance that has caught landowners who assume partial clearing will always attract proportionate payment.

Section 12C(2) contains a “deemed refusal” after six months (or agreed extension), starting the clock for SAT review and compensation claims; missing this window can bar relief. Compensation interest stops running on unaccepted offers (s 12E(8)), creating a powerful settlement incentive. The immediate-entry power in s 12ED(5) for imminent offences bypasses all notice and warrant requirements yet carries no statutory indemnity for the entering officer if the belief proves unfounded— exposing the Department to potential trespass actions.

Covenants imposed under s 12EB(4) can bind successors indefinitely and are enforceable by the Minister as though the Minister owned adjacent land, yet they are not always disclosed in standard conveyancing searches unless a memorial exists. Finally, the Act’s definition of “clear” includes “so damaged as to eventually be destroyed”; ringbarking or poisoning without immediate removal can still trigger liability years later when trees die, a fact often overlooked in due-diligence reports.

Compliance begins with accurate mapping: obtain current Schedule 2 boundaries and overlay them on title searches. Any proposal to remove native vegetation on controlled land requires a pre-clearing ministerial licence application (s 12C(2)) accompanied by a vegetation survey demonstrating compliance with the one-tenth retention rule or exceptional circumstances. Applications should include a detailed rehabilitation plan if partial clearing is sought.

Where clearing has already occurred, self-report promptly; the emergency exception in s 12C(1)(b) requires immediate restoration to the Minister’s satisfaction. Landowners should maintain records of all vegetation management, firebreak approvals under the Bush Fires Act 1954, and biosecurity works to establish the s 12C(1)(c) defence if prosecuted.

Purchasers must commission a ministerial certificate under s 12BA(3) and search for memorials under ss 12BA, 12BB, and 12EA. If a restoration order exists, negotiate a variation under s 12B(3) before settlement or factor remediation costs. Developers should incorporate the one-tenth retention into subdivision designs and seek SAT review early if licences are refused.

Annual compliance audits are advisable for large holdings, including photographic records dated and georeferenced to match the Surveyor General’s aerial-photo standard (s 12EE(1)). Engage hydrologists to demonstrate that proposed clearing will not increase salinity or sediment loads, thereby supporting licence applications and reducing compensation disputes. Finally, maintain positive relationships with the Department; early consultation often results in negotiated conditions that avoid the more draconian restoration-order and memorial-registration pathways.