Matters to be taken into account in determining whether flow is reasonable or not reasonable
20 Matters to be taken into account in determining whether flow is reasonable or not reasonable
In determining whether a flow of water is reasonable or not reasonable, account must be taken of all the circumstances including the following matters—
whether or not the flow, or the act or works that caused the flow, was or were authorised;
the extent to which any conditions or requirements imposed under this Act in relation to an authorisation were complied with;
whether or not the flow conforms with any guidelines or principles published by the Minister with respect to the drainage of the area;
whether or not account was taken at the relevant time of the likely impact of the flow on drainage in the area having regard to the information then reasonably available about the cumulative effects on drainage of works and activities in the area;
the uses to which the lands concerned and any other lands in the vicinity are put;
the contours of the lands concerned;
whether the water which flowed was—
brought onto the land from which it flowed; or
collected, stored or concentrated on that land; or
extracted from the ground on that land—
and if so, for what purpose and with what degree of care this was done;
whether or not the flow was affected by any works restricting the flow of water along a waterway;
S. 20(1)(i) amended by No. 43/2015 s. 39(1).
whether or not the flow is likely to damage any waterway, wetland or aquifer;
S. 20(1)(j) inserted by No. 43/2015 s. 39(2).
in the case of a flow of, or interference with, water caused by the construction, removal or alteration of a levee in accordance with section 32AC of the Victoria State Emergency Service Act 2005, whether or not that construction, removal or alteration occurred in response to an emergency within the meaning of section 3 of the Emergency Management Act 2013.
In taking account of the matters specified in subsection (1), greater weight must be attached to the matters specified in paragraphs (a), (b), (c) and (d) than to the other specified matters.
S. 20(2A) inserted by No. 43/2015 s. 39(3).
Subsection (2B) applies in the case of determining whether a flow of, or interference with, water caused by the construction, removal or alteration of a levee in accordance with section 32AC of the Victoria State Emergency Service Act 2005 is reasonable or not reasonable.
S. 20(2B) inserted by No. 43/2015 s. 39(3).
Despite subsection (2), in taking account of the matters specified in subsection (1), greatest weight must be attached to whether or not the construction, removal or alteration referred to in subsection (2A) occurred in response to an emergency within the meaning of section 3 of the Emergency Management Act 2013.
S. 20(3) amended by No. 52/1998 s. 311(Sch. 1 item 105.7).
An Authority that has a waterway management function in the area to which a proceeding before the Tribunal relates may make a submission to the Tribunal on the matters specified in paragraphs (c), (d) and (i) of subsection (1).
S. 21 amended by Nos 121/1994 s. 187(g), 17/2012 s. 6.
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