Water Management Amendment (Dam Works) Bill 2015 No. 27

Read into Hansard on Thursday 17th September 2015

WATER MANAGEMENT AMENDMENT (DAM WORKS) BILL 2015 (No. 27)

Second Reading

[11.52 a.m.]

Mr VALENTINE (Hobart) – Mr President, this is a good move, in general terms.  The honourable member for Montgomery is right.  The amount of paperwork involved to get an approval for a dam is voluminous to say the least and reducing that is good.

However, I do have a little concern over the Division 4 permits.  We talk about a megalitre, no permit.  How does it work?  There is no application but there is notification.  Let me make this clear, we are not just talking about farmers here.  Farmers, in the main, 99.9 per cent of them, are responsible people and they have had experience in these things and they know their stuff.

It is the 1 per cent or 2 per cent of people who are of concern, who do not know and sometimes do things that are a little bit above and beyond their capability.  I am not talking about people on large acreages of land.  I am talking about those who might be hobby farmers or might have a smallholding up the back block somewhere and they want to put in a small dam to be able to water their chrysanthemums – you name it.  There are many reasons why people might want to put in a small dam.

One megalitre is the limit here, so less than one megalitre is a Division 4.  We have to think about all circumstances.  I can imagine that there might be some people out there that have the old five-acre lot or whatever that is in hectares, 2.1 hectares or something like that?

Mr Hall – It is 2.5 hectares.

Mr VALENTINE – Yes, 2.5 hectares.  They may want to collect this water and it might be close to their boundary.  On the next lot there might be a house and this dam might be just above their house.  It is a scenario; it could be any scenario.

Mrs Taylor – You are not allowed to do that.  It says you cannot do that if there is a house below it.

Mr Valentine – How far?

Mrs Taylor – I don’t know.

Mr Valentine – No.  How close are we talking about?  It cannot go on a watercourse.  That is fine.

Mr Dean – We can assume it is far enough away that it cannot be damaged by a water fallout.

Mr VALENTINE – This is the point.  That may be a stricture, but who checks if it is less than a megalitre?  It is notified to the department on a form.

I ask the Leader to clarify this – I believe it sits in the department for 14 days before it is considered a permit.  I would like that clarification.  In that 14 days, the department can look at that situation.  They do not have to come back to the person with any more paperwork.  They cannot do anything if it is okay.  If there is a problem the department can go back to them.  The problem I have is this.  The governments are there to protect people and deliver services.  What concerns me is that in the department having no hand in casting their eye over the permit, it puts the onus of responsibility onto the individual.  Therefore the risk goes onto the individual.  If something happens, it is the individual who is going to have to prove they were not negligent.  It is actually the government that ought to be the one that is responsible, not the individual.

Someone wrote to me about this and made the following observation:

It seems that self‑assessment, especially in difficult cases, could cost the landowner a great deal more, or take longer than having the department to do the assessment.  The honest and diligent landowners will be disadvantaged.

Ms Forrest – If it is a difficult case, will it not be a Division 3 permit anyway?

Mr VALENTINE – It might be, but it might not be.  With a Division 4, you are talking about something that is half an Olympic swimming pool size.  That is a megalitre of water.  It would not happen very often, but if there is a catastrophic failure with a megalitre of water coming at you, it can do a heck of a lot of damage.  If it is a catastrophic failure.  I am not saying that is going to occur, but it could occur.  You have to have legislation that handles all aspects.  Ninety-nine point nine per cent of the time it is not going to be an issue.  Why should the individual be the one that is going to be so easily proven negligent in that, when in fact, they have put in a notification, and therefore, are getting a permit from the government without the government even looking at it?

I do not know how many occurrences there will be of failure into the future.  There are some people out there who are not necessarily as intelligent as 99.9 per cent of the rest of the people.  In this circumstance, if you are allowing people – you would never allow somebody to build a house without a permit.  It might satisfy the metrics and everything under the PD4, but there is a council there every step of the way checking that everything is going in right, the foundations are being laid right, all of that.  They get their permit straight up, but not their building permit.  It might be that this does not need all the paperwork that everything else needs.  Because it is such a small plot of land, it is not likely to be impacting on threatened species, for instance.  We know all that.  I do not have a problem with that.  That is not my concern.

My concern is the liability.  That an individual can say, ‘I stuck by the rules and the government gave me the permit.’  Who is going to be liable if something does happen with that megalitre of water, it does cause damage and they are taken to court?  They are not going to be able to turn around and say, ‘The government gave me the permit.  Therefore, I have taken every step necessary.’  That is the problem I have.  It is where the liability lies.  I would be comforted if I knew in the 14 days, from the time they notify the department to the time the permit is considered issued, that the department at least casts its eye over it and takes responsibility for the fact that the permit has been issued.  This is nothing big here.  It is just the department taking responsibility and not the individual.  I am worried about the individual.  I hope you get that right.

Mrs Taylor – Doesn’t the department take the responsibility by issuing the permit?

Mr VALENTINE – Maybe the department is going to be seen to be negligent.  Is that going to cost the government?  That is not good legislation.

Mrs Taylor – We are talking about low risk.

Mr VALENTINE – We are, but there is a risk all the same.  You can conjure up a heap of scenarios as to what damage might be done by a megalitre of water.  It would only be in a circumstance where it is major failure, but it could happen.  A hole in the ground or a turkey nest is probably not going to be a problem but you have someone who owns some land up on Knocklofty which is the best waterfront land in the world, because that is where it is going to end up, it is on a land slip area, and they are building a megalitre dam up there.

Ms Forrest – It is a complicated dam.

Mr VALENTINE – Why would that be complicated if it is under a megalitre?  They are not going to know that.

Mrs Taylor – Because there are all sorts of other conditions you have to fulfil in the process.

Ms Forrest – A geographical location of proposed dam works – that would be a trigger straight away.

Mr VALENTINE – That is fine if the department casts an eye over that notification.

Mrs Taylor – It is their responsibility to pass the eye over the notification.

Mr VALENTINE – This is what I want to find out.

[12.11 p.m.]

Dr GOODWIN (Pembroke – Leader of the Government in the Legislative Council) Mr President, I thank all honourable members for their contributions.  I have a number of matters to address so I will work my way through them.

A key safeguard is that through the making of orders under the proposed section 159, the minister will declare specific dam works, or a class of dam works, to be dam works that require a Division 3 permit.  In particular, the minister will declare that any dam works that have a consequence category greater than Low are dam works that require a Division 3 permit.  This means that only Low and Very Low consequence category dam works will be able to be undertaken under a Division 4 permit.  To provide clarity, this means that any proposed works where there is population at risk, whether it be a single person or more, from their failure, cannot proceed under the Division 4 pathway.

Mr Valentine – That means that every notification that goes to the department for a Division 4 dam is looked at before the permit period comes in?

Dr GOODWIN – Yes.

Mr Valentine – That is all I need to know, thank you

Dr GOODWIN – The bill also provides that Division 4 permits are subject to conditions as determined by the minister, by order, under the proposed section 164A.  These conditions will relate to engineering, construction, dam safety, sediment and erosion control and the taking, destruction and disturbance of any wildlife or wildlife product.  This approach means that conditions relating to these matters which would normally appear on individual dam works permits will still apply in the case of Division 4 permits and ensure that, for example, dam works are undertaken in accordance with relevant engineering and construction codes.

The bill provides that the minister may direct a person to cease dam works and apply for a Division 3 permit.  This is a safeguard that will enable unforeseen consequences of dam works, should they arise, to be dealt with appropriately.

The member for Hobart raised queries about the Division 4 permit.  Currently, the requirements of part 8 of the Water Management Act do not apply to the undertaking of dam works less than a megalitre in size and not on a watercourse.  The Division 4 permit has no volumetric limit associated with it.  New legislation requires all dams to be constructed under a permit regardless of size.  All dams constructed under a Division 4 permit must be in the Very Low or Low consequence category.  This means, in the event of failure, there is no population at risk and the potential damage to assets is low.  Division 4 equals low risk, not on watercourse.  That is, run-off dams and hence, in all likelihood small in size, have to be financially viable to build.

Mr Valentine – Just to clarify.  You say there is no volumetric limit.

Dr GOODWIN – That is right.

Mr Valentine – But it has to be less than a megalitre, doesn’t it?

Dr GOODWIN – No.  That is the current requirement in part 8.  This bill has a new part 8 that replaces that.  There is no volumetric limit.

Mr Valentine – It could be more than a megalitre.

Dr GOODWIN – It could be.  There is no restriction on size.  It has to meet all those criteria specified in the bill.  In particular, it must be in the Very Low or Low consequence category.

Mr Valentine – It does get checked out by the department before that permit is issued?

Dr GOODWIN – There is all that information that has to be provided by way of notification.

Mr Valentine – Thank you.

Find the full debate here.