Part 6Allocation of the Scheme's risk management capacity

Part 6—Allocation of the Scheme's risk management capacity 40—Waterlogging and salinity risk management allocation (1) A waterlogging and salinity risk management allocation (or risk management allocation) is an allocation to the irrigated land of an irrigated property of part of the capacity of the Scheme to manage the risk of waterlogging and salinisation of land and increasing levels of salinity in the River Murray resulting from irrigation of land in the Scheme Area. (2) The risk management allocation of an irrigated property is attached to the irrigated land comprising the whole or part of the property. (3) A risk management allocation, or part of a risk management allocation, may be transferred in accordance with section 44 from one category of irrigated land to another. (4) The risk management allocation attached to a category of irrigated land authorises (for the purposes of this Act but not for the purposes of any other Act) the person in occupation of the land to use a quantity of water taken pursuant to a water licence or a water allocation under the Landscape South Australia Act 2019 equivalent to the allocation to irrigate the land in each water usage year. (5) Subject to this Part, a risk management allocation— (a) cannot be dealt with separately from the land to which it is attached; and (b) is attached proportionally to all parts of that land so that if part of the land is transferred (or dealt with in any other manner) an equivalent part of the allocation is transferred with it. (6) Although a risk management allocation is attached proportionally to the land for the purpose of transfer or other dealings with the land, the quantity of water authorised by an allocation for the irrigation of a particular category of land comprising the whole or part of an irrigated property can be used on any part of that land. (7) The owner of land may, in an irrigation declaration, surrender the whole or part of the risk management allocation attached to the land. 41—Application for initial risk management allocation (1) The owner of an irrigated property to which a water licence referred to in Schedule 2 was applicable on 10 April 2000 is entitled, in his or her irrigation declaration for the 2000/2001 contribution year, to apply for and be granted a waterlogging and salinity risk management allocation for the quantity of water appearing opposite the water licence in that Schedule. (2) An owner of an irrigated property who applies under subsection (1) for a risk management allocation in the irrigation declaration referred to in that subsection may also apply under section 43 in the same declaration for an additional risk management allocation from the excess risk management capacity of the Scheme. 42—Determination of excess capacity (1) The excess capacity (if any) of the Scheme infrastructure to manage the waterlogging and salinisation of land and increasing levels of salinity in the River Murray must be determined and redetermined by the Minister and the Trust in accordance with this section. (2) The first determination of risk management capacity operates in relation to the contribution year in which the pumping of water into the disposal basins commences and in relation to subsequent contribution years. (3) The excess capacity of the Scheme infrastructure must be redetermined by the Minister and the Trust at intervals of not more than 5 years. (4) Redeterminations of the excess risk management capacity operate in relation to the contribution year commencing in the calendar year following the calendar year in which they are made and in relation to subsequent contribution years. (5) The Scheme infrastructure may only be determined to have excess capacity to the extent that its capacity exceeds— (a) the capacity accounted for by existing risk management allocations; and (b) the capacity needed to fulfil the requirements of section 25; and (c) the capacity needed to meet the Trust's obligations under an agreement under section 26. (6) If the Minister and the Trust cannot agree on the initial determination or on a redetermination of the excess capacity of the Scheme, the determination or redetermination must be made by the Minister. (7) The Trust must on or before 30 September in each year, adjust the excess capacity as determined or redetermined under this section or previously adjusted under this subsection in respect of the following contribution year to take account of any increase or reduction in risk management allocations of irrigated properties or any other relevant factor not previously taken into account. 43—Request for increase in, or for a new, risk management allocation (1) The owner of an irrigated property who is a member of the Trust may, in his or her annual irrigation declaration, apply to the Trust for an increase in the risk management allocation attached to the whole or part of his or her irrigated land or for a risk management allocation to be attached to other land that has been classified under section 33. (2) An owner of land that has been classified under section 33 but who is not a member of the Trust may apply in writing to the Trust to be granted a risk management allocation in relation to the land. (3) An application under subsection (1) or (2)— (a) cannot (unless the regulations provide otherwise) be made in respect of the category of land under this Act having the highest risk; (b) may be made in respect of land of any other category; (c) in respect of an irrigated property, may, subject to paragraph (a), be made in respect of any part of the land comprising the property. (4) An application must be justified by demonstrating— (a) — (i) the need to use more water to irrigate existing plants; or (ii) the need to irrigate proposed new planting to be undertaken on land that is suitable for the purpose; and (b) that the quantity of the risk management allocation requested is not excessive when the species of plants and the area involved are taken into account. (5) An application must include such information as is required by the regulations and such further information as is required by the Trust. (6) The Trust may refuse an application if the applicant fails to convince the Trust that his or her application is justified under subsection (4). (7) If the application is refused, the applicant may apply to the Minister responsible for the administration of the Landscape South Australia Act 2019 and, if the Minister is satisfied that the application is justified, he or she may direct the Trust to accept it. (8) Subject to subsections (9) and (10), those persons who have applied successfully in accordance with this section for an increase in their risk management allocation or for a new allocation are entitled to have the excess risk management capacity of the Scheme divided equally between them (regardless of any differences in the amounts they have applied for) until their respective applications are satisfied. (9) An applicant whose application is only partially satisfied— (a) is entitled to have it satisfied in a subsequent year or years before any new applications are satisfied; but (b) is not entitled to make a further application until the previous application is satisfied or is withdrawn. (10) Where— (a) the capacity of the Scheme infrastructure is increased pursuant to an agreement between the Minister and the Trust under section 19(4); and (b) it is a term of the agreement that the resulting increase in the capacity of the Scheme is to be divided between the irrigated properties to which a water licence was applicable on 10 April 2000 but to which a risk management allocation has never previously been attached, the owner of an irrigated property referred to in paragraph (b) may apply to the Trust for a risk management allocation proportional to, but not exceeding, the risk management allocation appearing opposite the number of the water licence applicable to that property in Schedule 2. 44—Transfer of risk management allocations (1) Subject to subsection (2), the owner of an irrigated property may transfer a waterlogging and salinity risk management allocation, or a part of such an allocation, attached to part of his or her irrigated land to another part of his or her irrigated land if the land to which the allocation is transferred is of the same category as, or a category having a lower degree of risk than, the land from which the allocation is transferred. (2) A risk management allocation or part of an allocation can only be transferred to land— (a) that formed part of the risk management allocation's irrigated property when the allocation first became attached to land comprising part of the property; or (b) that is contiguous to land referred to in paragraph (a) and has subsequently become part of that irrigated property. (3) For the purposes of subsection (2), one parcel of land will be taken to be contiguous with another parcel of land if they abut one another at any point or if they are separated only by— (a) a street, road, railway, thoroughfare, watercourse or channel; or (b) a reserve or other similar open space dedicated for public purposes. (4) For the purposes of subsection (3) parcels of land will be taken to be separated by intervening land if a line projected at right angles from any point on the boundary of one of the parcels with the intervening land would intersect a boundary of the other parcel with the intervening land. (5) The means of transferring a risk management allocation, or part of an allocation, under this section is by informing the Trust of the transfer in an annual irrigation declaration. 45—Agreement with landowner to increase risk management capacity (1) The following persons may enter into an agreement with the Trust under which the person pays for, or contributes towards, an increase in the capacity of the Scheme infrastructure: (a) where the Scheme Area includes the whole or part of an irrigation district under the Irrigation Act 1994 and the irrigation authority for the district under that Act is a member of the Trust under this Act— (i) the irrigation authority; and (ii) a person who is the owner of an irrigated property or other land in the Scheme Area that is outside the irrigation district; (b) in any other case—a person who is the owner of an irrigated property or other land in the Scheme Area. (2) Subject to the written approval of the Minister, the agreement may provide that a risk management allocation, or an increased risk management allocation, will be attached by the Trust to land specified in the agreement when the risk management capacity of the Scheme is increased. (3) The Trust must not agree to a provision referred to in subsection (2) unless— (a) the Minister and the Trust have agreed on the extent to which the risk management capacity of the Scheme will be increased; and (b) the risk management allocation, or the increase in the risk management allocation, referred to in subsection (2) is accommodated by the increase in the risk management capacity of the Scheme. (4) A new risk management allocation, or an increase in an existing allocation, cannot (unless the regulations provide otherwise) be attached to the category of land having the highest degree of risk. (5) As far as practicable the Trust must not benefit, or suffer any detriment, from an agreement under subsection (1).