• Home
• About Us
  • Firm Profile
  • Client Information
  • Our People
• Practice Areas
  • Agribusiness
  • Business Law
  • Dispute Resolution & Litigation
  • Criminal Law
  • Family Law
  • Employment Law
  • Property Law
  • Wills and Estates
  • Estate Planning and Family Business
• Careers
  • Position Vacant
  • General Applications
• Related Links
• Publications / Articles
• Contact Us
• Feedback

Water

Purchasing & Selling Water

Cosgriff Orchard Legal has extensive experience when it comes to transferring water entitlements on both sides of the border. The process for transferring water entitlements, whether they are in the Goulburn Murray Water system, Lower Murray Water System, Moira Private Irrigation District or Murray Irrigation Limited district can be quite onerous and requires both parties to the transaction to lodge numerous documents to the applicable irrigation authority.

At Cosgriff Orchard Legal, we ensure that our clients understand and submit all relevant documentation required to transfer the water entitlements so as to avoid any unnecessary delays in the transaction. Cosgriff Orchard Legal are also able to prepare contracts of sale of water entitlements for private transactions tailored to ensure that all of the conditions contained in the agreement are best suited to our clients.

Unbundling Water Entitlements

Unbundling is the process of separating traditional water rights from land and splitting them into: 
    • Water shares (high and low security); 
        º A secure share of water from a system; 
        º Can be traded or leased; 
        º Former water right or take and use share can be converted into a high reliability water share; 
        º Seasonal allocations of water shares depend on how much water is available. 
    • Delivery Share; 
        º Entitlement to have water delivered to and in an irrigation district; 
        º Delivery share is linked to land and remains with the property if the water share is sold. 
    • Water use licences 
        º Allows irrigator to use water for irrigation; 
        º There is an annual use limit; 
        º Water use licence is attached to the land. It remains with the land if the land is sold.

Water shares can be mortgaged separately, leased and held without land.

Currently the unbundling process does not apply to groundwater, waterways or recycled water.

Water Licences

Water rights are an integral part of a rural property. The water licence you receive will depend on your intended use of the water rights. Any person can apply for a licence and a water licence may also be granted to a company, partnership or association. You can transfer the licence to another person.

A water licence is a right to take and use water from: 
    • Waterways; 
    • Dams; 
    • Springs; 
    • Works of an authority; 
    • Groundwater.

A water licence provides the entitlement to an amount of water. The water licence will be subject to conditions such as protection of a waterway; the purpose for the use of the water; the maximum volume which may be used; efficient water use; installation and use of meters and pumps.

Licences can be granted for between 1 and 15 years. The conditions on the licence may be changed on the renewal or transfer of the licence.

Water Transfers

The transfer of water rights is an important part of a property transaction. A transfer of water rights may be included in the sale of land. The property team at Cosgriff Orchard Legal have experience in the transfer of water rights, including making the appropriate searches of the water entitlements, applying to the relevant water authority to transfer the water entitlement and all relevant transactions necessary to complete the transfer.

For a transfer of ownership of a water share to occur an application must be made to the relevant authority. The application will be approved when it complies with the local trading rules. Once the application has been approved the transfer will be recorded by the registry, in the same way as a change of ownership of land. The location of the water share may or may not change with the change in ownership (i.e. the point of use of the water share may change).

Generally water entitlements transferred with land are not dutiable, however where the water entitlements are non dutiable, it will be a consideration in the duty payable on the land transfer. Cosgriff Orchard Legal can advise you on your liability to duty in the purchase of land and water shares.

Australian Government Water Buyback

Cosgriff Orchard Legal has played a large role in facilitating the transfer of water entitlements to the Commonwealth Government through various government buy-back programs over recent years. Whilst there are direct buy-back tender programs to sell water to the Commonwealth Government still in operation, it is more likely that the buy-back policy will place more emphasis on the irrigator to improve or upgrade its irrigation infrastructure in return for transferring part or all of its water entitlement to the Government.

This program, known as the On Farm Irrigation Efficiency Program, generally requires detailed agreements between the irrigator and the Delivery Partner who manages the infrastructure works on the irrigator’s land to be entered into as well as an agreement to transfer the water entitlements to the Commonwealth Government. Cosgriff Orchard Legal ensures that it is at the forefront of these issues at all times so that it can provide to its clients the best advice possible before they take part in these programs.

Water Prosecutions

In some irrigation districts, particularly in Victoria, there are extensive penalties for breaching the legislation governing water. The Victorian Water Act 1989 (“the Act”) is particularly arduous on irrigators and effectively puts an onus on the irrigator to provide credible evidence of its innocence rather than compelling the prosecuting authority to prove that the irrigator is guilty of the offence.

Many irrigators have been prosecuted by water authorities for allegedly interfering with irrigation infrastructure and taking water without the authority’s consent. Penalties for first time offences can be up to $6,000.00 or 6 months imprisonment.

Cosgriff Orchard Legal has represented and successfully defended many of its clients charged with offences under the Act. If you are charged with a water related offence or have been requested to take part in an interview in relation to an alleged offence under the Act, you should contact Cosgriff Orchard Legal to be informed of your rights and obligations which may assist you in avoiding any lengthy and costly court proceedings resulting from the alleged offence.


Back to Agribusiness

Back to Practice Areas