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This is a Bill, not an Act. For current law, see the Acts databases.


UTILITIES AMENDMENT BILL 2005

2005

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY



(As presented)

(Minister for Urban Services)

Utilities Amendment Bill 2005





Contents

Page

















2005

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY



(As presented)

(Minister for Urban Services)

Utilities Amendment Bill 2005





A Bill for

An Act to amend the Utilities Act 2000, and for other purposes













The Legislative Assembly for the Australian Capital Territory enacts as follows:



1 Name of Act

This Act is the Utilities Amendment Act 2005.

2 Commencement

This Act commences on a day fixed by the Minister by written notice.

Note 1 The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

Note 2 A single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act, s 77 (1)).

Note 3 If a provision has not commenced within 6 months beginning on the notification day, it automatically commences on the first day after that period (see Legislation Act, s 79).

3 Legislation amended

This Act amends the Utilities Act 2000.

Note This Act also amends the Ombudsman Act 1989 (see s 20).

4 Notice about lopping trees etc on private land

Section 110 (3) (d)

omit

(5)

substitute

(6)

5 Notice to other utilities

Section 111 (5)

omit

(1)

substitute

(2)

6 Section 111 (6)

omit

(1)

substitute

(2)

7 Section 111 (7)

substitute

(7) In this section:

network facility includes—

(a) a telecommunications facility; and

(b) a stormwater facility; and

(c) a streetlight facility.

public utility includes—

(a) a utility licensed under this Act; and

(b) a carrier or network operator under the Telecommunications Act 1997 (Cwlth); and

(c) the entity responsible for the operation of the stormwater network; and

(d) the entity responsible for the operation of the streetlight network.

stormwater facility means any part of the infrastructure of a stormwater network.

streetlight facility means any part of the infrastructure of a streetlight network.

telecommunications facility means a facility under the Telecommunications Act 1997 (Cwlth).

8 Land to be restored

Section 113 (2)

substitute

(2) Subsection (1) does not require the restoration of land to a condition that would involve—

(a) an interference with—

(i) a network or network facility; or

(ii) a territory network or territory network facility; or

(b) a contravention of a territory law.

9 New part 14

insert

Part 14 Streetlighting and stormwater

Division 14.1 General

225A Definitions for pt 14

In this part:

installation, of a territory network facility, includes—

(a) the construction or extension of the facility on, over or under any land or water; and

(b) the attachment of the facility to any building or other structure; and

(c) any activity that is ancillary or incidental to an activity mentioned in paragraph (a) or (b).

interference, with a territory network or territory network facility, includes an action that—

(a) interferes with the safe or efficient operation of the network or facility or is likely to have that effect; or

(b) inhibits or obstructs lawful access to the network or facility or is likely to have that effect.

stormwater drainage means the collection and carriage of water run-off in or through an urban area.

stormwater network—see section 225B.

stormwater network boundary—see section 225C.

stormwater network code—see section 225C.

streetlighting does not include streetlighting only for decorative or artistic purposes.

streetlight network—see section 225D.

streetlight network code—see section 225E.

territory network means a streetlight network or stormwater network.

territory network facility means any part of the infrastructure of a territory network.

territory network operations means work carried out by or for the Territory under this part for the provision of a territory service.

territory network protection notice means a notice under section 225X.

territory service means streetlighting or stormwater drainage.

territory service authorised person means a territory service authorised person under section 225Q.

225B Stormwater network

(1) For this Act, a stormwater network is the infrastructure used, or for use, in relation to stormwater drainage.

Examples of infrastructure

1 drains, channels, floodways, mains, pipes, pollutant traps and storage facilities

2 access holes, inlet sumps and surcharge sumps

3 equipment associated with the infrastructure

4 a thing ancillary to the infrastructure

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) However, a stormwater network does not include infrastructure outside the stormwater network boundary and anything else excluded under the stormwater network code.

225C Stormwater network code and boundary

(1) The Minister may, in writing, approve a stormwater network code for this part.

(2) The stormwater network boundary is to be worked out in accordance with the stormwater network code.

(3) The code is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act.

225D Streetlight network

(1) For this Act, a streetlight network is the infrastructure used, or for use, in relation to the provision of streetlighting.

Examples of infrastructure

1 electrical power and control cables, and ducts or pipes for cables

2 switching equipment

3 lamps, brackets, insulators and fittings

4 wires and ducts or pipes for wires or equipment

5 fuses

6 a structure supporting the infrastructure

7 equipment associated with the infrastructure

8 a thing ancillary to the infrastructure

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) However, a streetlight network does not include infrastructure excluded under the streetlight network code.

225E Streetlight network code

(1) The Minister may, in writing, approve a streetlight network code for this part.

(2) The code is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act.

Division 14.2 Territory network operations

Subdivision 14.2.1 General powers

225F Installation of territory network facilities

(1) For the provision of a territory service, the Territory may, at any time—

(a) enter and occupy land; and

(b) carry out any work on the land that is necessary or desirable for installing a territory network facility.

(2) Under subsection (1) (b), the Territory may, for example, carry out any of the following work:

(a) make surveys, take samples and examine the soil;

(b) construct, install or place any plant, machinery, equipment or goods;

(c) fell or lop trees, or clear and remove vegetation;

(d) interrupt the provision of a territory service by the Territory;

(e) make cuttings and excavations;

(f) level the land or make roads;

(g) erect offices, workshops, sheds, other buildings, fences and other structures;

(h) demolish, destroy or remove any territory network facility installed or used by the Territory in relation to the provision of a territory service;

(i) put a gate or passageway in a fence or wall (except a wall of a building) that prevents or hinders the Territory’s work under this section, or remove the gate or passageway;

(j) temporarily divert or stop traffic on a public road or bridge;

(k) restore the land, or fences, walls or other structures on the land, affected by the Territory’s work and, for that purpose, remove and dispose of soil, vegetation and other material.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(3) This section does not entitle the Territory to act under subsection (1) on land for which it is not the land-holder unless—

(a) it or the Executive has an appropriate interest in the land; or

(b) the owner of the land agrees to the action.

(4) If subsection (2) (i) applies, the Territory must ensure, so far as practicable, that the work is carried out in a way that minimises inconvenience and disruption to the passage of people, vehicles and vessels.

225G Maintenance of territory network facilities

(1) The Territory may, at any time, maintain a territory network facility and, for that purpose, do anything necessary or desirable, including, for example—

(a) entering and occupying land; and

(b) carrying out any work mentioned in section 225F.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) For subsection (1), the maintenance of a territory network facility includes, for example, the following work:

(a) the alteration, removal, repair, replacement or cleaning of any part of the facility;

(b) the provisioning of the facility with material or information (whether in electronic form or otherwise);

(c) inspecting or otherwise ensuring the proper functioning of the facility from time to time;

(d) action to which a territory network protection notice relates.

225H National land

Functions of the kind exercisable by the Territory under this part are exercisable in relation to national land only by agreement with the Commonwealth.

Subdivision 14.2.2 Performance of territory network operations

225I Damage etc to be minimised

In carrying out territory network operations, the Territory must take all reasonable steps to ensure that it causes as little inconvenience, detriment and damage as is practicable.

225J Notice to land-holder

(1) Before the Territory begins territory network operations in relation to national land or private land, it must give the land-holder written notice of the proposed operations.

(2) The notice must be given to the land-holder at least 7 days before the operations begin.

(3) The notice must—

(a) so far as practicable, state the following matters:

(i) the purpose of the operations;

(ii) the nature of the activities involved;

(iii) the parts of the land likely to be affected;

(iv) the period or periods during which the activities are expected to be carried out; and

(b) contain a statement indicating the Territory’s obligations under this part—

(i) to take all reasonable steps to ensure that it causes as little inconvenience, detriment and damage as is practicable; and

(ii) to remove its property and waste; and

(iii) to restore the land.

(4) The land-holder may waive its right to all or part of the minimum period of notice under subsection (2).

(5) Subsection (1) does not apply if the operations are to be carried out in urgent circumstances in which it is necessary to protect—

(a) the integrity of a territory network or territory network facility; or

(b) the health or safety of people; or

(c) public or private property; or

(d) the environment.

225K Notice about lopping trees etc on private land

(1) This section applies to territory network operations to the extent that they involve—

(a) the felling or lopping of trees on private land; or

(b) the trimming of roots of trees or other plants on private land; or

(c) the clearing or removal of vegetation on private land.

(2) Before the Territory begins the operations, it must give the land-holder written notice of the proposed operations.

(3) The notice—

(a) must be given at least 7 days before the operations begin; and

(b) must indicate the trees or vegetation affected and the activity proposed; and

(c) may require the land-holder to carry out the activity within a stated period; and

(d) if paragraph (c) applies—must contain a statement about the effect of subsection (6); and

(e) if the operations relate to other territory network operations for which notice is required under this subdivision—may be given in or with the notice of the other operations.

(4) The land-holder may waive its right to all or part of the minimum period of notice under subsection (3) (a).

(5) If subsection (3) (c) applies, the stated period within which the land-holder is required to carry out the activity must be at least 7 days beginning on the day the notice is given to the land-holder.

(6) If the land-holder does not carry out the activity in accordance with a requirement in the notice mentioned in subsection (3) (c)—

(a) the Territory may carry out the activity; and

(b) the reasonable expenses incurred by the Territory in carrying out the activity are a debt owing to the Territory by the land-holder.

(7) Subsection (6) (b) does not apply to a tree or vegetation growing on the land before a territory network facility was installed on the land.

(8) Subsection (2) does not apply, and the Territory may carry out the operations at its own expense, in urgent circumstances in which it is necessary to protect—

(a) the integrity of a territory network or a territory network facility; or

(b) the health or safety of people; or

(c) public or private property; or

(d) the environment.

225L Territory network operations affecting heritage significance

(1) If a notice under section 225J or section 225K is about territory network operations that may affect a place or object registered, or nominated for provisional registration, under the Heritage Act 2004, the Territory must also give a copy of the notice to the heritage council at least 7 days before the day operations begin.

(2) Subsection (1) does not apply if the operations are to be carried out in urgent circumstances in which it is necessary to protect—

(a) the integrity of a territory network or territory network facility; or

(b) the health or safety of people; or

(c) public or private property; or

(d) the environment.

225M Notice to utilities

(1) This section applies to territory network operations that consist of, or include, an activity that affects or is reasonably likely to affect a network facility under the care and management of a utility.

(2) Before the Territory begins the operations, it must give the utility written notice of the proposed operations.

(3) The notice must—

(a) be given to the utility at least 7 days before the operations begin; and

(b) so far as practicable, state the following matters:

(i) the purpose of the operations;

(ii) the nature of the activities involved;

(iii) the network facility affected;

(iv) the period or periods during which the activities are expected to be carried out.

(4) The utility may waive its right to notice under subsection (2).

(5) Subsection (2) does not apply if the operations are to be carried out in urgent circumstances in which it is necessary to protect—

(a) the integrity of a territory network or territory network facility; or

(b) the health or safety of people; or

(c) public or private property; or

(d) the environment.

225N Removal of Territory’s property and waste

(1) This section applies if the Territory carries out an activity as territory network operations on land for which it is not the land-holder.

(2) The Territory must, as soon as practicable, remove from the land—

(a) all of the following that the Territory constructed, installed or placed on the land and that do not form part of, or are not to be used in the operation of, the territory network facility to which the activity related:

(i) items of plant, machinery, equipment and other goods;

(ii) offices, workshops, sheds and other buildings;

(iii) roads and tracks; and

(b) all spoil, waste and rubbish and cleared vegetation resulting from the activity.

(3) The obligation in subsection (2) is subject to any agreement to the contrary between the Territory and the land-holder.

225O Land to be restored

(1) This section applies if the Territory carries out territory network operations on land for which it is not the land-holder.

(2) The Territory must take all reasonable steps to ensure that the land is restored as soon as practicable to a condition that is similar to its condition before the operations began.

(3) Subsection (2) does not require the restoration of land to a condition that would involve—

(a) an interference with—

(i) a territory network or territory network facility; or

(ii) a network or network facility; or

(b) a contravention of a territory law.

(4) The obligation in subsection (2) is subject to any agreement to the contrary between the Territory and the land-holder.

225P Compensation

(1) A person may claim reasonable compensation from the Territory if the person suffers loss or expense because of territory network operations.

(2) Compensation may be claimed and ordered in a proceeding for compensation brought in a court of competent jurisdiction.

(3) A court may order the payment of reasonable compensation for the loss or expense only if satisfied it is just to make the order in the circumstances of the particular case.

(4) Without limiting subsection (3), a court may take into account whether the Territory has satisfied its obligations under section 225N (Removal of Territory’s property and waste) and section 225O (Land to be restored) in considering whether it is just to make an order under this section.

Subdivision 14.2.3 Authorised people and entry to premises

225Q Territory service authorised people

(1) Each of the following is a territory service authorised person for this part:

(a) if the Territory engages a utility to exercise a function under this part—an authorised person for the utility under section 114 (Appointment) whose functions are, or include, the exercise of a function under this part;

Note Section 114 (2) provides that an authorised person must exercise his or her functions in accordance with the conditions of appointment and any direction given to the person by the utility.

(b) if the Territory engages an entity (other than a utility or public servant) to exercise a function under this part—a person appointed by the entity as a territory service authorised person for this part;

(c) in any other case—a public servant appointed under subsection (2).

(2) The chief executive may appoint a public servant as a territory service authorised person for this part.

Note 1 For the making of appointments (including acting appointments), see the Legislation Act, div 19.3.

Note 2 In particular, a person may be appointed for a particular provision of a law (see Legislation Act, s 7 (3)) and an appointment may be made by naming a person or nominating the occupant of a position (see s 207).

(3) A territory service authorised person must exercise the person’s functions under this part in accordance with the conditions of appointment (if any) and any direction given to the person by the appointer.

(4) In this section:

appointer, for a territory service authorised person, means—

(a) if the Territory engages a utility to exercise a function under this part—the utility; or

(b) if the Territory engages an entity (other than a utility or public servant) to exercise a function under this part—the entity; or

(c) in any other case—the chief executive.

225R Identity cards

(1) If the Territory engages a utility to exercise a function under this part, the identity card for each territory service authorised person for the utility is the identity card for the person under section 115 (Identity cards).

(2) If the Territory engages an entity (other than a utility or public servant) to exercise a function under this part, the entity must give each territory service authorised person for the entity an identity card stating the person’s name and that the person is a territory service authorised person.

(3) The chief executive must give each territory service authorised person appointed under section 225Q (2) an identity card stating the person’s name and that the person is a territory service authorised person.

(4) The identity card mentioned in subsection (2) or (3) must show—

(a) a recent photograph of the person; and

(b) the card’s date of issue and expiry; and

(c) anything else prescribed by regulation.

(5) A person commits an offence if—

(a) the person is a person mentioned in subsection (2) or (3); and

(b) the person stops being a territory service authorised person; and

(c) the person does not return the person’s identity card to the appointer as soon as practicable, but no later than 7 days after the day the person stops being a territory service authorised person.

Maximum penalty: 1 penalty unit.

(6) An offence against this section is a strict liability offence.

(7) In this section:

appointer, for a territory service authorised personsee section 225Q (4).

225S Entry to premises—territory network operations

(1) If the Territory is authorised under this division to carry out territory network operations affecting particular premises, a territory service authorised person in relation to the operations may—

(a) enter the premises, with the people, vehicles and things that are necessary and reasonable for the operations; and

(b) carry out the activities necessary for the operations.

(2) The territory service authorised person may not remain on the premises if the person does not produce the person’s identity card when asked by the land-holder or person apparently in charge of the premises.

(3) The territory service authorised person may enter and remain on the premises under this section with the assistance that is necessary and reasonable.

225T Entry to premises—inspection of connections etc

(1) A territory service authorised person in relation to a territory network may enter and remain on any premises—

(a) to check work associated with the connection of the premises to the network; or

(b) to check the operation of a connection between the premises and the network, or install, repair, remove or replace the connection; or

(c) for a purpose related to the connection of the premises to the network, or its withdrawal.

(2) The territory service authorised person may not remain on the premises if the person does not produce the person’s identity card when asked by the land-holder or person apparently in charge of the premises.

(3) The territory service authorised person may enter and remain on the premises under this section—

(a) at any reasonable time; and

(b) with the assistance that is necessary and reasonable.

Subdivision 14.2.4 Miscellaneous

225U Order to enforce exercise of functions

(1) This section applies if—

(a) a territory service authorised person is entitled to exercise a function under this division in relation to premises; and

(b) someone obstructs, or proposes to obstruct, the authorised person in the exercise of the function.

(2) The Magistrates Court may, on the application of the territory service authorised person, make an order authorising a police officer or anyone else named in the order to use the assistance and force that are necessary and reasonable to enable the function to be exercised.

(3) A copy of an application under subsection (2) must be given to the obstructor, and the obstructor is entitled to appear and be heard on the hearing of the application.

225V Ownership of territory network facilities

The owner or occupier of land to which a territory network facility is attached has no proprietary interest in the facility only because it is attached to the land.

Division 14.3 Protection of territory networks

225W Interference with territory networks

A person commits an offence if the person—

(a) does something that interferes with a territory network or a territory network facility; and

(b) is reckless about whether doing the thing would interfere with the network or facility.

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

225X Territory network protection notices

(1) This section applies if the Territory is satisfied that a structure or activity on, under or over land or water interferes, or is reasonably likely to interfere, with a territory network or territory network facility.

(2) For a structure, the Territory may give the land-holder written notice to take whatever action is necessary to stop the interference with the network or facility, or to remove the likelihood of that interference.

(3) For an activity, the Territory may give the relevant person written notice to take whatever action is necessary to stop the interference with the network or facility, or to remove the likelihood of that interference

(4) The notice must—

(a) indicate the structure or activity; and

(b) require the person given the notice to take stated action to stop the interference, or remove the likelihood of the interference, within a stated period; and

(c) contain a statement about the effect of subsection (6).

(5) The stated period must be at least 7 days, starting on the day the notice is given.

(6) If the person given the notice does not comply with the notice—

(a) the Territory may do whatever is necessary to stop the interference or remove the likelihood of the interference; and

(b) the reasonable expenses incurred by the Territory to stop the interference or remove the likelihood of the interference are a debt owing to the Territory by the person given the notice.

(7) Subsection (6) (b) does not apply to a structure that was, or an activity that began, on, under or over the land before the installation of the territory network or territory network facility to which the interference relates.

(8) In urgent circumstances the Territory may, without giving a notice under subsection (2) or subsection (3) and at the Territory’s expense, do whatever is necessary to stop the interference or remove the likelihood of the interference.

(9) If both of the following happen, the amount of the loss or damage is a debt owing to the person by the Territory:

(a) the Territory acts under this section in relation to a structure that was, or an activity that began, on, under or over the land before the installation of the territory network or territory network facility to which the interference relates;

(b) the person suffers loss or damage because of the Territory’s action.

(10) In this section:

activity does not include an activity done by or for a utility under this Act.

person given the notice means—

(a) for a structure—the landholder; or

(b) for an activity—the relevant person.

relevant person, in relation to an activity, means—

(a) the person carrying out the activity; or

(b) the person on whose behalf the activity is being carried out.

urgent circumstances means circumstances in which it is necessary to protect—

(a) the integrity of the network or facility; or

(b) the health or safety of people; or

(c) public or private property; or

(d) the environment.

225Y Territory network protection action affecting heritage significance

(1) If a notice under section 225X is about action that may affect a place or object registered, or nominated for provisional registration, under the Heritage Act 2004, the Territory must also give a copy of the notice to the heritage council as soon as practicable.

(2) If the Territory acts in urgent circumstances as mentioned in section 225X (8), it must give the heritage council written notice of the action as soon as practicable.

10 Vicarious liability

Part 14

renumber as part 15

11 Section 226 heading

substitute

226 References in pt 15 to proceeding under this Act

12 Miscellaneous

Part 15

renumber as part 16

13 Section 229

substitute

229 Determination of fees

(1) This section does not apply to an annual licence fee.

(2) ICRC may, in writing, determine fees for this Act (other than part 11 (Essential Services Consumer Council) and part 14 (Streetlighting and stormwater)).

Note The Legislation Act contains provisions about the making of determinations and regulations relating to fees (see pt 6.3).

(3) The Minister may, in writing, determine fees for part 14.

(4) A determination is a disallowable instrument.

Note A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act.

14 Compensation—safety net

Section 233 (1) (a)

omit

this section and division 9.2

substitute

this section, division 9.2 (Compensation) and section 225P (Compensation)

15 Regulation-making power

Section 234 (2)

substitute

(2) A regulation may make provision in relation to the safe or efficient provision of—

(a) utility services, including provision prohibiting or regulating activities—

(i) to ensure the safe or efficient operation of a utility network or network facility; and

(ii) to protect people or property in relation to the operation of a utility network or network facility; and

(b) territory services, including provision prohibiting or regulating activities—

(i) to ensure the safe or efficient operation of a territory network or territory network facility; and

(ii) to protect people or property in relation to the operation of a territory network or territory network facility.

16 Parts 14 to 16

renumber sections when Act next republished under Legislation Act

17 Dictionary, definitions of installation and interference

substitute

installation

(a) of a network facility, for part 7 (Network operations)—see section 103; and

(b) of a territory network facility, for part 14 (Streetlighting and stormwater)—see section 225A.

interference

(a) with a network or network facility, for part 8 (Protection of networks)—see section 123; and

(b) with a territory network or territory network facility, for part 14 (Streetlighting and stormwater)—see section 225A.

18 Dictionary, definition of proceeding under this Act

substitute

proceeding under this Act, for part 15 (Vicarious liability)—see section 226.

19 Dictionary, new definitions

insert

stormwater drainage, for part 14 (Streetlighting and stormwater)—see section 225A.

stormwater network—see section 225B.

stormwater network boundary, for part 14 (Streetlighting and stormwater)—see section 225C.

stormwater network code, for part 14 (Streetlighting and stormwater)—see section 225C.

streetlighting, for part 14 (Streetlighting and stormwater)—see section 225A.

streetlight network—see section 225D.

streetlight network code, for part 14 (Streetlighting and stormwater)—see section 225E.

territory network—see section 225A.

territory network facility—see section 225A.

territory network operations, for part 14 (Streetlighting and stormwater)—see section 225A.

territory network protection notice, for part 14 (Streetlighting and stormwater)—see section 225A.

territory service—see section 225A.

territory service authorised person, for part 14 (Streetlighting and stormwater)see section 225A.

20 Ombudsman Act 1989, section 5 (2) (h)

substitute

(h) action taken by the Territory or a territory authority for the management of the environment (not including action taken under the Utilities Act 2000, part 14 (Streetlighting and stormwater)); or

Endnotes

1 Presentation speech

Presentation speech made in the Legislative Assembly on 2005.

2 Notification

Notified under the Legislation Act on 2005.

3 Republications of amended laws

For the latest republication of amended laws, see www.legislation.act.gov.au.

















































© Australian Capital Territory 2005

 


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