No. 224. fully compensated by money, the applicant shall not be 27 VICTORIA, If the decision is that no injury will be caused or that the compensation in 24 & 25 Vict. 9. Where the compensation assessed by the justices or arbitra- Application of tors under the last preceding section is payable to any owner or case of owners other person who is under any disability or incapacity or is not under disability. entitled to receive the same for his own benefit, such compensation c. 133 s. 77. shall be applied in the manner in which the compensation coming See "The Public to parties having limited interests or prevented from treating and 1865" Part VII. not making title is applicable under the provisions of "The Lands Clauses Consolidation Act 1845." Works Statute trators. Ib. s. 78. 10. The justices or arbitrators (as the case may be), in the Duty of arbievent of their approving of a scheme of drainage as proposed by the applicant or as modified by themselves, shall cause a map thereof to be prepared, and shall certify under their hands the correctness of such map; and it shall be the duty of the applicant to forward the same to the clerk of the peace of the court of general sessions of the peace having jurisdiction within the place or district wherein or within which the land is situate, who shall keep the same in his office as a record of the proceedings between the parties. cant to clear drains. 11. After drains have been opened or improvements in drains Power of applimade or fences erected in pursuance of this Act, it shall be lawful for the applicant his heirs and assigns for ever thereafter from time I. s. 79. to time as it becomes necessary to enter upon the land through which such drains have been opened or improvements made for the purpose of clearing out scouring and otherwise maintaining the same in a due state of efficiency or of repairing such fences as aforesaid. And if such drains or improvements in drains are not 27 VICTORIA, Constructed or maintained in accordance with such decisions or are No. 224. not kept so cleared out scoured and maintained in a due state of efficiency, or if any fences erected as aforesaid are not kept in repair, the owner or occupier for the time being of the lands through or in which such drains or improvements in drains are made may clear and scour and otherwise maintain the same in a due state of efficiency, or repair such fences, and recover the expenses incurred in such clearing out scouring or maintenance in a summary manner before any two justices from the person for the time being entitled to enter upon such lands for the purpose hereinbefore mentioned. Provided always that if the lands of such owner or occupier shall receive benefit from such drains or improvements in drains by being drained thereby, such justices shall take the fact of such benefit being received into consideration; and make such deduction in respect thereof from the amount sought to be recovered by such owner or occupier on account of such expenses as aforesaid as to them shall seem just.. Power to break up streets &c. under superin open drains. 10 Vict. c. 17 s. 28. 12. The applicant his heirs and assigns under such superintendence as is hereinafter specified may open and break up the soil tendence and to and pavement of any streets or roads and may open and break up any sewers channels or tunnels within or under such streets or roads for the purpose of making any drains or improvements in drains in through or over such streets or roads, and from time to time repair alter or remove the same, and for the purpose aforesaid may remove and use all earth and materials in and under such streets or roads; doing as little damage as can be in the execution of the powers hereby granted, and making compensation for any damage which may be done in the execution of such powers. Notice to be served on per trol &c. before breaking up 13. Before the applicant his heirs or assigns shall open or sons having con- break up any street road sewer channel or tunnel, he shall give to the persons (if any) under whose control or management the same streets or opening may be or to their clerk surveyor or other officer notice in writing of his intention to open or break up the same, not less than fourteen clear days before beginning such work. drains. Ib. s. 30. up except under of persons having control of the same. Ib. s. 31. Streets or drains 14. No such street sewer channel or tunnel shall be opened or not to be broken broken up, except under the superintendence of the persons having superintendence the control or management thereof or of their officer and according to such plan as shall be approved of by such persons or their officer, or in case of any difference respecting such plan then according to such plan as shall be determined by two justices; and such justices may on the application of the persons having the control or management of any such sewer or channel or their officer require the applicant his heirs or assigns to make such temporary or other If persons having works as they may think necessary. Provided always that if the fail to superin- persons having such control or management as aforesaid and their officer fail to attend at the time fixed for the opening of any such street sewer or tunnel after having had such notice of the intention of the applicant his heirs or assigns as aforesaid, or shall not propose any plan for breaking up or opening the same, or shall refuse or neglect to superintend the operation, the applicant his heirs or assigns may perform the work specified in such notice without the superintendence of such persons or their officer. the control &c. tend applicant may perform the work without them. No. 224. reinstated with s. 32. 15. When the applicant his heirs or assigns opens or breaks 27 VICTORIA; up the road or pavement of any street or any sewer channel or tunnel, he shall with all convenient speed complete the work for streets &c. browhich the same shall be broken up and fill in the ground and ken up to be reinstate and make good the road or pavement or the sewer channel out delay. or tunnel so opened or broken up and carry away the rubbish 10 Vict. c. 17 occasioned thereby; and shall at all times whilst any such road or pavement shall be so opened or broken up cause the same to be fenced and guarded, and shall cause a light sufficient for the warning of passengers to be set up and kept there against every night during which such road or pavement shall be continued open or broken up; and shall, after replacing and making good the road or pavement which shall have been so broken up, keep the same in good repair for three months thereafter and such further time (if any) not being more than twelve months in the whole as the soil so broken up shall continue to subside. streets &c. 16. If the applicant open or break up any street or road or Penalty for delay any sewer channel or tunnel without giving such notice as aforesaid in reinstating or in a manner different from that which shall have been approved Ib. s. 33. of or determined as aforesaid or without making such temporary or other works as aforesaid when so required, or if he make any unnecessary delay in completing any such work or in filling in the ground or reinstating and making good the road or pavement or the sewer channel or tunnel so opened or broken up or in carrying away the rubbish occasioned thereby, or if he neglect to cause the place where such road or pavement has been broken up to be fenced guarded and lighted, or neglect to keep the road or pavement in repair for the space of six months next after the same is made good or such further time as aforesaid, he shall forfeit to the persons having the control or management of the street road sewer channel or tunnel in respect of which such default is made a sum not exceeding five pounds for every such offence, and an additional sum of five pounds for each day during which any such delay as aforesaid shall continue after he shall have received notice thereof. may reinstate expenses. 17. If any such delay or omission as aforesaid shall take place, In case of delay the persons having the control or management of the street road other parties sewer channel or tunnel in respect of which such delay or omission and recover the shall take place may cause the work so delayed or omitted to be Ib. s. 34. executed; and the expense of executing the same shall be repaid to such persons by the applicant and such expenses may be recovered in a summary way before any two justices. ing owner to c. 133 s. 80. 18. The owner for the time being of the land or the persons Power of adjoinhaving the control or management of any street road sewer or divert drains. tunnel over through or in which any drain may be opened or 24 & 25 Vict. improvements in drains made in pursuance of this Act may fill up divert or otherwise deal with such drains or improvements in drains, on condition of first making and laying down in lieu thereof drains equally efficient: and any dispute as to the efficiency of drains so laid down shall be decided by two or more justices assembled in petty sessions. 19. Any person who wilfully obstructs any person making any Penalty for drains or improvements in drains in pursuance of this Act, and any injuring drains. obstructing or No. 224. 27 VICTORIA, person who wilfully dams up obstructs or in any way injures any drains or improvements in drains so opened or made, shall for each offence incur a penalty not exceeding ten pounds to be recovered in a summary manner. 24 & 25 Vict. c. 133 s. 81. Costs of appli cation, Ib. s. 82. Provision in case of change of natural outfall. Ib. s. 83. Notice of appli of public lands to be served on President of Board of Land and Works. 20. All costs charges and expenses reasonably incurred by the adjoining owner in respect of any application made in pursuance of this Act shall be defrayed by the applicant. 21. Where any person is desirous in pursuance of this Act of constructing any drain by means whereof any river stream or other natural watercourse will be diverted from its ordinary channel into any other river stream or natural watercourse, he shall cause a copy of the notice hereby required to be served on the adjoining owner to be published by advertisement once at least in each of three successive weeks in some local newspaper circulating in the district in which the drain proposed to be constructed is situate, and to be served in manner in which notices are hereinbefore required to be served on all owners of land abutting upon the river stream or other natural watercourse into which the diversion is made and situate within four miles of the point of junction; and shall deposit a copy of the map hereby required to accompany the notice served on the adjoining owner with the clerk of the peace of the court of general sessions of the peace having jurisdiction within the place or district wherein or within which the proposed drain is situate. And it shall be lawful for any person being the owner of land capable of being injured by the proposed drain, within eight weeks after the first notice of the proposed drain appears in the newspaper, to serve notice that he apprehends injury from such drain on the person proposing to make the same; and thereupon such owner shall be deemed to have dissented, and shall be entitled to the same rights and privileges under this Act as if he were the adjoining owner. 22. If Her Majesty or her successors or the Board of Land and cation in respect Works be the owner of the lands through which it is proposed that any drains or improvements in drains whatsoever shall be made under the authority of any part of this Act, the notice of application shall be served upon the president of the board; and the board may on behalf of Her Majesty and her successors or for itself assent to the application (either with or without conditions) by an instrument under the seal of the board. But if the board shall within one month after the service of the notice of application signify dissent by a notice published in the Government Gazette, it shall not be lawful for the applicant notwithstanding anything in this Act contained to make the drains or improvements in drains through such lands. parts of "The Lands Clauses 1845" referred to. Interpretation of 23. In the parts of "The Lands Clauses Consolidation Act 1845" herein before referred to the expression "the court of chancery" shall Consolidation Act be read as the Supreme Court of the colony of Victoria: and the expression "the bank" shall be read as the Savings Bank in the city of Melbourne: and the expression "the accountant-general of the court of chancery in England" shall be read as the master in equity; and whensoever the language of the said Act from its having been framed with reference to England is inapplicable to the circumstances of the colony, such language shall be read and No. 224. interpreted as applying to the proceeding matter or thing in the 27 VICTORIA, colony which most nearly corresponds with the proceeding matter or thing in England mentioned in the said Act. 24. The word "owner" shall in this Act mean any person who Interpretation of under the provisions of "The Lands Clauses Consolidation Act 1845" owner. or of such an Act as in "The Lands Clauses Consolidation Act 1845" is referred to as "the special Act" would be enabled to sell and convey lands to the parties by the special Act empowered to execute any works or undertakings; and shall include Her Majesty and Her successors, and the Board of Land and Works. 25. This Act may be cited for all purposes as "The Land Short title. Drainage Act." SCHEDULE. Whereas I A.B. of &c. am the owner within the meaning of " The Land Drainage Act" of a parcel of land that is to say [description] And whereas C.D. of &c. market gardener being interested in another parcel of land that is to say [description] and being desirous to drain the same and deeming it necessary in order thereto that a new drain should be opened [that the existing drain should be widened or straightened or as the case may be] through the said parcel of land of which I am the owner hath served on me [and also on E.F. farmer the occupier of the said parcel of land] a notice in writing under his hand wherein he states the nature of such drain [improvement] [and that he proposes to pay the sum of as compensation] and whereby he hath applied to me for leave to make such drain [improvement] through the said parcel of land of which I am the owner. And whereas the said notice was accompanied by a plan on which the land proposed to be drained and the length width and depth of the proposed drain [improvement] are delineated. [And whereas the sum of £ hath been paid to me as compensation] Now know all men by these presents that I the said A.B. do hereby assent to the said application of the said C.D. In witness whereof I have hereunto set my hand this day of Witness-G.H. A.B. Section 4. 34 VICTORIA, No. 388. |