Part 8Wells

Part 8—Wells 61—Activities relating to wells (1) A person must not undertake any of the following activities in the Scheme Area unless authorised to do so by a permit granted by the Trust: (a) drilling, plugging, backfilling or sealing of a well; (b) repairing, replacing or altering the casing, lining or screen of a well; (c) draining or discharging water directly or indirectly into a well. (2) The Trust may undertake any of the activities referred to in subsection (1) without a permit. (3) A person who— (a) contravenes subsection (1); or (b) contravenes or fails to comply with a condition to which a permit referred to in subsection (1) is subject, is guilty of an offence. Maximum penalty: where the offender is a body corporate—$20 000. where the offender is a natural person—$10 000. 62—Permits (1) An application for a permit must be in a form approved by the Trust and must, if a fee has been prescribed by regulation in relation to the application, be accompanied by the fee. (2) The applicant must provide the Trust with such information as the Trust reasonably requires to consider the application. (3) Subject to its terms, a permit is binding on and operates for the benefit of the applicant and the owner and occupier of the land to which it relates when it is granted and all subsequent owners and occupiers of the land. (4) A permit is subject to such conditions as are prescribed by this Act or by regulation under this Act or are specified in the permit by the Trust. (5) Depending on its nature, a condition may remain in force after the activity authorised by the permit has been completed or the permit is no longer in force. (6) It is a condition of a permit to drill, plug, backfill or seal a well or to repair, replace or alter the casing, lining or screen of a well that the work be undertaken by a person who is a licensed well driller or is supervised in carrying out the work by a licensed well driller. (7) If the Trust is satisfied that the holder of a permit, or a person acting on behalf of the holder of a permit, has contravened or failed to comply with a condition of the permit, the Trust may, by notice served on the holder of the permit, vary, suspend or revoke the permit. (8) Where the rising level of underground water is— (a) damaging soil, rock or other structures; or (b) damaging ecosystems; or (c) affecting the natural drainage of surface water, the Trust or the Minister may revoke a permit to drain or discharge water directly or indirectly into a well that provides access to that underground water. (9) In any other case, the Trust may vary, suspend or revoke a permit with the consent of the holder of the permit. (10) The variation or revocation of a permit under this section will be effected by the Trust or the Minister serving notice of the variation or revocation on the holder of the permit. (11) In this section— licensed well driller has the same meaning as in the Landscape South Australia Act 2019. 63—Defences It is a defence to prosecution for an offence against section 61(3)(a) or an offence against section 61(3)(b) comprising the failure to use the services of a licensed well driller or a person supervised by a licensed well driller (see section 62(6))— (a) to prove— (i) that the well had been drilled before the commencement of this Act and had been used both before and after that date solely or predominantly for the purpose of draining or discharging water directly or indirectly into the groundwater mound or the underground water accumulating above the layer of Blanchetown Clay in the Scheme Area; and (ii) that the annual quantity of water draining or discharging directly or indirectly into the groundwater mound or the underground water accumulating above the layer of Blanchetown Clay has not increased since the commencement of this Act; or (b) to prove that the well is of a class specified by or under Schedule 3; or (c) to prove that the person who carried out the work was the owner of the land on which the well is situated or was the employee of the owner of that land and that— (i) the well gives access to underground water the surface of which is at atmospheric pressure and the total dissolved salts of which exceed 1 800 milligrams per litre; and (ii) the work was carried out solely for the purposes of maintenance and did not involve— (A) substantial alteration to the casing, lining or screen of the well or the replacement of the casing, lining or screen with a casing, lining or screen of substantially different design or specifications; or (B) a substantial repositioning of the casing, lining or screen; or (C) deepening the well by more than 1.5 metres; or (d) to prove that— (i) the work comprising the alleged offence was carried out to prevent or reduce pollution of water in the well and that in the circumstances it was unreasonable to expect the defendant— (A) to have obtained a permit; or (B) to have obtained the services of a licensed well driller; and (ii) the work was carried out in accordance with the regulations (if any); and (iii) the Trust was given written notice of the work as soon as practicable after it was completed; or (e) to prove that— (i) the work comprising the alleged offence was carried out pursuant to a permit issued by the Trust; and (ii) the work comprising the alleged offence was carried out by or under the supervision of the owner of the land on which the well is situated; and (iii) at the time of the alleged offence the well was not more than 15 metres in depth (or such other depth as may be prescribed by regulation); and (iv) the work was carried out in accordance with the regulations (if any). 64—Notice to rectify unauthorised activity (1) Where a person has— (a) undertaken an activity in contravention of section 61; or (b) contravened or failed to comply with a condition of a permit, the Trust may serve notice on the owner or occupier of the land on which the activity was undertaken directing him or her to take such action as is specified in the notice to rectify the effects of the activity and to take such other action as the Trust considers necessary or desirable in the circumstances. (2) If the owner or occupier fails to comply with a notice— (a) he or she is guilty of an offence; and (b) the Trust may enter the land and take the action specified in the notice and such other action as the Trust considers appropriate in the circumstances and the Trust's costs will be a debt due by the owner or occupier to the Trust. Maximum penalty: where the offender is a body corporate—$20 000. where the offender is a natural person—$10 000. 65—Right of appeal (1) The following rights of appeal lie to the ERD Court: (a) an applicant for the grant of a permit under this Part may appeal to the ERD Court against a refusal to grant the permit or the imposition of conditions in relation to the permit; (b) the holder of a permit may appeal against the variation or revocation of the permit. (2) An appeal under subsection (1) must be instituted in the manner and form determined by the Court within six weeks of the decision, direction or restriction appealed against or within such further time as the Court considers to be reasonable in the circumstances. (3) An appeal must be referred in the first instance to a conference under section 16 of the Environment, Resources and Development Court Act 1993 (and the provisions of that Act will then apply in relation to the appeal). (4) On an appeal the ERD Court may— (a) affirm or vary the decision, direction or restriction appealed against, or substitute any decision, direction or restriction that should have been made in the first instance; or (b) remit the subject matter of the appeal to the Trust, or the Minister (as the case requires) for further consideration. (5) Where the Trust has made a decision to vary or revoke a permit, or the Minister has made a decision to revoke a permit, and the Trust, the Minister or the Court is satisfied that an appeal against the decision has been instituted, or is intended, the Trust, the Minister or the Court may suspend the operation of the decision until the determination of the appeal. (6) A suspension granted under subsection (5) by the Trust, the Minister or the Court may be terminated by the Trust, the Minister or the Court (as the case requires) at any time.