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Taking water under a basic landholder right

9 August 2019

Jack is a mad gardener and owns a small 5 acre property on a hill near the Tumut River. Jack lives off grid and has a veggie patch that’s the envy of the district. There is a small 3 meter wide strip of land owned by Jill between Jack’s property and the river.

Jack and Jill are pretty good mates and in return for some fresh veggies, Jill agrees to let Jack run a small irrigation pipe over her land to pump water up the hill from the river. Jill takes water from the river for her stock under a basic landholder right and thinks this same basic right applies to Jack.

But does it?

A basic landholder right is the right of an owner or occupier of land without the need for an access licence, water supply work approval or water use approval to:

  • take water from any river, estuary or lake to which the land has frontage or from any aquifer underlying the land;
  • construct and use a water supply work such as water pump or water bore for the purpose of taking, capturing or storing water;
  • use the water taken for domestic consumption and stock watering, but not for any other purpose.

In other words, the source of water must directly adjoin, pass through or underlie your land, for example direct river frontage. This does not include a water source that requires you to access the water across another person’s land, public land or Crown land whether or not the owner or occupier of that land agrees for you to do so.

An individual who uses water from a water source without an approval is guilty of an offence that may carry a penalty.

In the above scenario, Jill has a basic landholder right to take water but Jack does not. Jack needs to make an application to WaterNSW to obtain a licence to pump water, from the river across Jill’s land.

If you need advice on water supply works, use or access approvals or licences, contact JMA Legal.

This article is general information only and should not be relied on without obtaining further specific information.

Grant Wilcox Lawyer

Grant joined JMA Legal in our Gundagai office in early 2017 and has a Bachelor of Laws and Graduate Diploma in Legal Practice. Grant works c.. Learn more about Grant Wilcox

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