Part 5Mortgages

Part 5—Mortgages 24 Application of Part This Part does not apply to a water share in a declared water system if the volume of water that is to be made available under the water share is 5 megalitres or less. 25 Mortgagee notices and agreements Sch. 15 cl. 25(1) amended by No. 85/2006 s. 146(1). (1) In the case of a mortgage over the whole or a part of any parcel of land where the owner of the whole or a part of the parcel is deemed to be the owner of a water share by the operation of Part 2, the Authority, responsible for managing the irrigation district in which the water system from which the water share is derived is situated, must notify the owner, in the form and manner specified in the conversion rules, of the existence of the mortgage over the land and advise the owner that clause 26 will apply to the mortgage. Sch. 15 cl. 25(1A) inserted by No. 85/2006 s. 146(2). (1A) A notice under subclause (1) must be given by the Authority before the appointed day for the water system, when it is practicable to do so. (2) For the purposes of this section, ***mortgage*** in relation to land under the **Transfer of Land Act 1958**, means a recorded mortgage under that Act. 26 Conversion of mortgages Sch. 15 cl. 26(1AA) inserted by No. 85/2006 s. 146(3). (1AA) On and from the appointed day for a water system, the following subclauses apply to each mortgage over the whole or a part of any parcel of land where, the owner of the whole or the part of the parcel, by virtue of that ownership, is deemed by the operation of Part 2, to be the owner of a water share in respect of the water system. Sch. 15 cl. 26(1) amended by No. 85/2006 s. 146(4). (1) The mortgage is deemed to become, in addition to being a mortgage over the whole or the part of the parcel of land specified in the mortgage, a mortgage over the water share to secure the debt secured by the mortgage, immediately before the appointed day, and amounts that may be advanced under the mortgage on or after that day, subject to the same terms and conditions as those that applied to the mortgage immediately before the appointed day. (2) For the purposes of subclause (1)— (a) where the whole or part of the parcel of land is owned by one person only, and that person owns the water share as a tenant in common with other persons, the mortgage is deemed to be over that person's undivided interest in the water share; or (b) where the whole or the part of the parcel of land is owned by more than one person, and those persons own the water share as tenant in common with other persons, the mortgage is deemed to be over those persons' undivided interest in the water share. (3) For the purposes of this Act, Schedule 12A applies to a mortgage that, under subclause (1), is deemed to be over a water share. (4) Mortgages that are deemed to be over a water share under subclause (1) that were previously over the one parcel of land are deemed to rank in the same priority to each other as that in which they were ranked when over the parcel of land. (5) In the case of land not under the **Transfer of Land Act 1958**, over which there is a mortgage where the mortgagee is the owner of the legal estate, where that mortgage is deemed to become (under subclause (1)) (in addition to being a mortgage over the land) a mortgage over a water share, the mortgage over the water share does not take effect as a transfer of the ownership of the mortgage, but takes effect in accordance with the provisions of this Act. Part 6—Miscellaneous conversion issues Sch. 15 cl. 27 amended by No. 85/2006 s. 147. 27 Works licences On and from the appointed day for a declared water system, a licence under section 67 that is in force immediately before the appointed day and that relates to a bore or works for extracting water from a waterway in that system where conditions relating to that bore or those works are set out in a take and use licence, is deemed to be subject to— (a) any conditions as to the maximum amounts of water which may be taken in any particular periods or circumstances from that bore or through those works— (i) under the take and use licence, as applying immediately before the appointed day; or (ii) as determined in accordance with the conversion rules— whichever is the greater; and (b) any conditions as to— (i) the installation and use of measuring devices and pumps; and (ii) the operation of any bores or works for extracting water from waterways— under the take and use licence, as applying immediately before the appointed day. Sch. 15 cl. 28 amended by No. 24/2013 s. 40. 28 Continuing operation of registration licences Despite a water system becoming a declared water system, any registration licence issued in the declared water system is deemed to continue in force. 29 References to rights On and from the appointed day for a declared water system, a reference in any document to— (a) a prior domestic and stock right (however described in the document) in the water system; (b) a prior water right (however described in the document) in the water system; (c) a prior joint right (however described in the document) in the water system; (d) a prior 222(1)(c) sales water agreement (however described in the document) in the water system; (e) a prior 222(1)(d) sales water agreement (however described in the document) in the water system; (f) take and use licence (however described in the document) in the water system— is to be taken to be a reference to the water share the holder of that right is deemed to own by the operation of this Schedule. 30 Amendment of bulk entitlements (1) The Minister, by notice in writing, may make any amendments to a bulk entitlement that are necessary as a consequence of a water system becoming a declared water system. (2) A notice under this section must be made before the appointed day for the declared water system and must come into effect on that day. (3) Notice of the making of a notice under this section must be published in the Government Gazette before or on the appointed day for the water system. (4) A copy of a notice made under this section must be given to the holder of the bulk entitlement before or on the appointed day for the water system. Part 7—Unconfirmed water shares 31 Unconfirmed water shares (1) Where on the appointed day for a declared water system the ownership of a water share is to be determined in accordance with clause 17 or clause 18 and— (a) agreement has not been reached on the ownership of the share; or (b) ownership of the whole or a part of the share cannot be clearly established— the ownership of the share under this Schedule is capable of being registered in the Register, subject to the qualification that the details recorded as to the share are unconfirmed. (2) A qualification that is in force under subclause (1) remains in force until the ownership is determined— (a) in accordance with this Schedule; or (b) in accordance with the conversion rules. 32 Dealings in unconfirmed water shares (1) The following dealings are the only dealings that may take place in relation to unconfirmed water shares— (a) transfer of ownership of the share under section 33S; (b) limited term transfer of the water share; Sch. 15 cl. 32(1)(c) amended by No. 32/2010 s. 76(1)(a). (c) discharge of a mortgage over the water share; Sch. 15 cl. 32(1)(d) inserted by No. 32/2010 s. 76(1)(b). (d) assignment of a water allocation under the water share under section 33U or 33V; Sch. 15 cl. 32(1)(e) inserted by No. 32/2010 s. 76(1)(b). (e) surrender of the water share under section 33AA; Sch. 15 cl. 32(1)(f) inserted by No. 32/2010 s. 76(1)(b). (f) surrender of limited term transfer under section 33T(5). (2) In addition to any requirements applying to the transfer of water shares under Part 3A— (a) any transfer of ownership of an unconfirmed water share under section 33S does not have effect until the Authority (that is responsible for managing the irrigation district in which the water system in which the water share is issued) approves the transfer, in accordance with any relevant rules made under Part 3A, and notifies the Registrar of that approval; and (b) any limited term transfer of an unconfirmed water share must not be recorded in the water register until the Authority (that is responsible for managing the irrigation district in which the water system in which the water share is issued) approves the transfer, in accordance with any relevant rules made under Part 3A, and notifies the Registrar of that approval. Sch. 15 cl. 32(3) inserted by No. 32/2010 s. 76(2). (3) In the case of an assignment of a water allocation under a water share to which subclause (1)(d) applies, all persons who own the water share, in whole or in part, and all persons who have limited term transfers under the water share, in whole or in part are to be taken to be the holder of the water share. Part 8—Conversion procedures 33 Conversion Rules (1) Before the appointed day for a declared water system, the Minister may— (a) make a determination setting out the rules that are to apply to the conversion of rights in the water system; and (b) amend any determination made under paragraph (a). (2) A determination under subclause (1) may provide for— (a) any procedures that an Authority is required to carry out to identify, verify, apportion and calculate information relating to rights to which Part 2, 3, 4, 5 or 6 applies and any matters that are to be determined under Part 2, 3, 4, 5 or 6; and (b) any procedures that the Minister is required to carry out to identify, verify, apportion and calculate information relating to rights to which Part 2, 3, 4, 5 or 6 applies and any matters that are to be determined under Part 2, 3, 4, 5 or 6; and (c) any submission procedures and dispute resolution procedures any Authority, the Minister or the Registrar is required to undertake for the purposes of performing functions under paragraph (a) or (b) (as the case requires); and (d) any other matters that are required or permitted to be set out by this Schedule. (3) A determination under subclause (1) comes into operation on the day specified in the determination. (4) A determination under subclause (1) must be in writing and notice of the making of the declaration and of the day on which it comes into operation must be published in the Government Gazette. (5) A declaration under subclause (1)— (a) must not be amended, unless to correct any clerical, factual or other inadvertent mistake in the declaration; and (b) must not be revoked. (6) Before making a determination under subclause (1), the Minister must consult with— (a) the Authority or Authorities responsible for the supply of water from the water system to which the determination relates; and (b) the Registrar.