Background

The purpose of section 229 of the Water Act 2000 (the Act) is to prevent uncertainty about the ownership of a water licence to take water where the registered owner disposes of part of the land to which the water licence is attached. Under section 229 of the Act a water licence expires immediately upon the disposal of part of the relevant land, but the owner(s) of the land may then apply for a replacement licence(s).

Part disposal of land to which a water licence attaches typically occurs as a consequence of the disposal to separate owners of one or all of the land parcels following subdivision, whether by sale or due to another dealing e.g. transfer following the death of the owner of the land.

If an application is made to replace a water licence that has expired due to the operation of section 229 of the Act, the original water licence is taken to have been in force from the time the application is made until a decision is made on the application. This ensures that any ongoing activity authorised under the expired water licence may lawfully continue. Therefore, the applicant’s interests under the water licence are not prejudiced, pending a decision on the application for a replacement water licence.

Change of ownership
Under section 229 of the Act, a water licence expires on the day the registered owner of the land disposes of part of the land to which the water licence was attached. A registered owner of land is defined in schedule 4 of the Act as the registered owner of the land under the Land Title Act 1994 or the lessee or licensee of the land under the Land Act 1994.

Avoiding expiry of a water licence due to part disposal of land
The expiry of the water licence due to part disposal of land may be avoided by amending or subdividing the licence before the completion of the part disposal. Before the disposal of land, the licensee may apply to:

• subdivide the water licence into separate licences that attach to each part of the land such that the water licences can transfer with each part of the land; or

• amend the water licence to remove the part of the land in respect of which the water licence is not required.

Each application is considered on its merits by the Department of Natural Resources and Mines (DNRM). Administrative advice will be noted on a land title search if a water licence attaches to the land. Therefore, DNRM recommends that a land title search be obtained before drafting the contract for disposal of land. Copies of a water licence may be obtained from DNRM (a fee will be charged for this service).

Applying for a replacement water licence following expiry due to part disposal of land
Following expiry of a water licence (due to the operation of section 229) the registered owner(s) of all the land to which the water licence attached may apply (within 60 business days from expiry) for one or more replacement water licences. An application to replace an expired water licence will incur a fee and the applicant(s) will be required to publish a notice in accordance with section 208 of the Act.

Further information

Contact DNRM on (07) 3405 6880 or email <[email protected]> for more information.