Urban Drainage Act 2013

Urban Drainage Act 2013

This Act may be cited as the Urban Drainage Act 2013.

This Act commences on the day on which this Act receives the Royal Assent.

In this Act, unless the contrary intention appears –

Appeal Tribunal means the Tasmanian Civil and Administrative Tribunal;

authorised officer means a person authorised to enter land under section 20A of the Local Government Act 1993;

connection point means – the point at which a property's private stormwater system connects with the public stormwater system; or such other point as may be prescribed by regulations as the connection point;

contract means – an agreement, arrangement, undertaking, lease, licence, warranty or other contract; or part of an agreement, arrangement, undertaking, lease, licence, warranty or other contract;

council has the same meaning as in the Local Government Act 1993;

expenses, in relation to a stormwater service provider, includes – the salaries and wages of its employees; and the compensation, purchase money or rent payable for land; and the cost of materials used, and the consideration payable under any contract, in connection with any work, undertaking or duty which the stormwater service provider is empowered or required to undertake or perform under this Act;

general manager has the same meaning as in the Local Government Act 1993;

municipal area has the same meaning as in the Local Government Act 1993;

private stormwater system means an installation on a property, that – is not part of the public stormwater system; and is used for collecting or disposing of stormwater; and comprises any or all of the following:roof gutters and downpipes; rainwater tanks; surface channels; kerbs and gutters; subsoil drains and stormwater drains; any inlet pits which are used, or intended to be used, for the conveyance of stormwater to a disposal system;

public land means land owned by – the Crown; or an instrumentality or agent of the Crown; or a council or other local government body, other than a water or sewerage corporation;

public stormwater system means – the whole, or part, of a waterway; and any infrastructure used for – the collection or storage of stormwater, including connection points; or the conveyance or reticulation of stormwater; or the treatment or disposal of stormwater, including any outfall pipe or other work that stores or conveys water leaving the infrastructure that is used for the treatment and or the disposal of stormwater – but does not include – any private stormwater system, including any pipe, fitting or apparatus that is situated upstream of a connection point to a public stormwater system; or infrastructure situated entirely within one property and not connected to any other infrastructure situated within another property;

regulations means regulations made under this Act;

stormwater means run-off water that has been concentrated by means of a drain, surface channel, subsoil drain or formed surface;

stormwater service means the service that is provided in connection with the collection, storage, treatment, reticulation and disposal of stormwater;

stormwater service provider means the council, or an agent engaged to act on behalf of the council, that operates and maintains the public stormwater system within a municipal area;

waterway means a creek, rivulet, stream or other natural depression in the land into which rainwater flows.

The objects of this Act are –

to protect people and property by ensuring that stormwater services, infrastructure and planning are provided so as to minimise the risk of urban flooding due to stormwater flows; and to provide for the safe, environmentally responsible, efficient and sustainable provision of stormwater services in accordance with the objectives of the resource management and planning system of Tasmania as set out in Schedule 1.

A council must, in accordance with the objects of this Act, provide for such public stormwater systems as may be necessary to effectively drain the urban area of the council's municipal area.

If a complaint is made to the Minister that a council has failed or neglected to make provision in accordance with subsection (1), the Minister may investigate the complaint.

If, after investigating a complaint, the Minister is satisfied that the council has failed or neglected to perform its duty, he or she may make an order declaring the council to be in default and directing it to make provision in accordance with subsection (1) within such period as may be specified in the order.

A council may appeal to the Appeal Tribunal against an order under subsection (3) within the period specified in the order.

The Appeal Tribunal is to hear and determine an appeal in accordance with the Tasmanian Civil and Administrative Tribunal Act 2020.

A council must – comply with an order under subsection (3) within the period specified; or lodge an appeal in accordance with subsection (4). Fine not exceeding 1 000 penalty units.

If a council fails to comply with any requirement of an order within the period specified, the Minister may take whatever action he or she considers necessary to rectify the council's default, and all the costs and expenses of and incidental to the Minister's action must be paid by the council to the Crown.

Except as otherwise provided in this Act, a council must keep the public stormwater systems owned and operated by it in good working order.

For the purposes of cleaning, maintaining and repairing public stormwater systems, a council may exercise all the powers available to it for the construction of public stormwater systems.

In ensuring that stormwater services are available to the urban areas of its municipal area, a council may engage a third-party to provide stormwater services, or use the infrastructure of a third-party.

If a council wishes to engage a third-party or use its infrastructure under subsection (3), the parties must enter into a commercial agreement for that use or engagement.

Nothing in this Act authorises a council to use, injure or interfere with any sluices, flood gates, sewers, breakwaters, sea defences or other works, whether made before or after the commencement of this Act, that are vested in, or under the control of, any person, drainage trust or Corporation, within the meaning of the Water and Sewerage Corporation Act 2012, without the consent of that person, trust or Corporation, as the case requires.

Consent under this section must not be unreasonably withheld and, if a question arises as to whether or not the consent is unreasonably withheld, either party may require its reference to an arbitrator, to be appointed in accordance with the Commercial Arbitration Act 2011.

Where a council or a third-party provider of stormwater services wishes to commence negotiations with the other for the provision of stormwater services, either party may serve on the other party a written notice setting out –

the general terms and conditions for the provision of those services; and any other matters that may be prescribed.

Subject to subsection (2), where a council and a third-party owner of infrastructure or operator of stormwater services cannot reach agreement on the contract details for the provision of stormwater services, either party may refer the matter to an arbitrator to be appointed in accordance with the Commercial Arbitration Act 2011.

A matter may be referred to an arbitrator only after at least one of the following conditions has been satisfied:at least 6 months have passed since the service of the notice under section 7 and in the opinion of one or both parties it is unlikely a resolution will be quickly reached; in the opinion of the council involved, the third-party provider of stormwater services is unreasonably withholding consent for the council to use the third-party's infrastructure.

For the purposes of subsection (1), an arbitrator has, in addition to the powers conferred by the Commercial Arbitration Act 2011, the power to determine – the conditions relating to the supply of stormwater services; and a price for those services and transition price policies to minimise price shocks; and any performance indicators to be implemented and modified over time; and the period over which the commercial agreement applies; and contract dispute resolution processes.

Before making a determination under subsection (3), the arbitrator is to seek advice from – the Department; and the Tasmanian Economic Regulator appointed under section 9 of the Economic Regulator Act 2009; and any other persons the arbitrator thinks fit.

In making a determination in respect of assets that have been transferred from a council to a water and sewerage corporation in accordance with a notice under section 41 of the Water and Sewerage Corporations Act 2008, an arbitrator must try to achieve the best outcomes for the community in respect of – limiting price shocks; and providing for the equitable distribution of costs.

In making a determination to which subsection (5) applies, the arbitrator is to take into account the following:that the asset will be renewed over time; that the provider should be provided with a reasonable opportunity to recover the efficient costs which it reasonably incurs in providing the service and complying with its regulatory obligations; the returns on council-owned stormwater assets in Tasmania; that both parties are not to be constrained from executing their statutory obligations; that any charge for providing stormwater services must take into account any costs of operating and maintaining the service that have been paid by another customer; any other matter that is prescribed or that the arbitrator considers relevant.

This Act does not limit in any way a council’s ability to establish a single authority, or be one of the councils to establish a joint authority, as outlined in the Local Government Act 1993, for the provision of stormwater services.

A council must develop a stormwater system management plan for the urban area of its municipal area within 6 years after the day on which this Act commences.

A stormwater system management plan is to specify – plans for the management of any assets used for the delivery of a stormwater service; and the level of risk from flooding for each urban stormwater catchment in the public stormwater system; and any other matters prescribed in the regulations or that the council considers appropriate.

A general manager may agree with a person who has private stormwater systems, or is constructing or proposing to construct private stormwater systems or associated works, that if those works are constructed in accordance with the terms of the agreement, the council will, upon the completion of the work, or at some specified date, or on the happening of some future event, declare the works to be vested in the council.

An agreement under subsection (1) is enforceable against the council by the owner or occupier for the time being of any premises that are, or are intended to be, served by the works.

A council must not make an agreement under this section with respect to works situated within the municipal area of another council unless that other council consents.

Where a person proposes to construct a drain, the general manager may, if the general manager considers that the proposed drain is, or is likely to be, needed to form part of a public stormwater system that it has provided or proposes to provide, require that person to construct the drain in a different way, to a greater hydraulic capacity or with different materials from which the person proposes or could otherwise be required by the council.

A person must comply with the requirements of a council under subsection (4).

A person who is aggrieved by the requirements of a council under subsection (4) may, within 28 days after receipt of notification of the requirements, apply to the Appeal Tribunal to review the requirements.

On receipt of an application, the Appeal Tribunal may – disallow the requirement; or allow the requirement; or allow the requirement with modifications.

A council that imposes a requirement under subsection (4) must pay to the person constructing the drain – any extra expenses reasonably incurred by the person in complying with the requirement; and until the drain becomes part of a system, any expenses reasonably incurred by the person, in repairing or maintaining the drain, as may be attributable to that requirement.