Irrigation Users – No Meter, No Pump – Alex Long

Changes to the law in NSW has implemented a no meter, no pump policy under the Water Reform Action Plan.  Greater penalties now exist for Water Licence holders who do not comply with the obligation to install a properly working meter.

Under the plan, it will be an offence for Water Licence holders to:

  • Fail to comply with the conditions of a Water Licence or works approval which requires the installation of a meter;
  • Fail to install metering equipment when required;
  • Take water from a metered water supply work if the meter is not working properly;
  • Interfere with, damage, destroy or disconnect any metering equipment; or
  • Fail to keep the required metering records.

In addition, the Natural Resources Access Regulator (NRAR) has been established in New South Wales to investigate and enforce meter installation and compliance.  NRAR have indeed been active and a number of prosecutions are underway.  The NRAR acts on anonymous complaints and have very wide powers of investigation.

The fines vary depending on the severity of the offence. The maximum penalty for a breach is $1.1 million and/or prison terms of two years for an individual and in the case of a continuing offence, a further penalty of $132,000 for each day the penalty continues. For corporations, the maximum penalty is $5.005 million and in the case of a continuing offence, a further penalty of $264,000 for each day the offence continues.

The Commonwealth government has increased funding for water use efficiency projects known as the Murray–Darling Water Infrastructure Program and will provide $1.5 billion dollars funding for water efficiency projects in return for the transfer of an agreed volume of water saved.

The types of eligible projects include:

  • Improving irrigational layout and design;
  • Permanent planning to improve water efficiencies;
  • Computer and automation equipment to help manage farm watering operations;
  • Improving and reconfiguring water storage systems including channels/replacing them with piping or close channels.

We have the expertise to assist you in knowing the conditions imposed on your licence, in assisting should you be subject to a NRAR investigation or should you be interested in reviewing water saving projects involving subdivision and transfer of water entitlements, because at Everingham Solomons, Helping You is Our Business.

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Water Crisis NSW – how temporary restrictions affect your WAL or Approval. – Alex Long

Despite the recent rainfall received in the area, there has not been any significant inflows into the state’s water storages.  On 31 March 2019, the Minister for Regional Water made an order for temporary water restrictions under Section 324 of the Water Management Act 2000 (the Act).

Under Section 324, the Minister has the authority to order temporary water restrictions within a water source for a specified period if those restrictions are determined to be in the public interest. Under Section 324(1), public interest includes “to cope with a water shortage, threat to public health or safety or to manage water for environmental purposes”.

The order imposes temporary water restrictions on certain takes of water from the Lower Namoi Regulated River Water Source, the lower parts of the Namoi Unregulated Rivers Water Sources and the lower parts of the Macquarie Bogan Unregulated Water Sources.

WaterNSW customers have been notified if these restrictions affect your water access licence or approval.

On 30 April 2019, WaterNSW released the Regional Drought Update which showed that general security access licences, mainly held by irrigators in NSW will have zero allocation in both the Namoi and the Peel for 2019/2020 if the conditions remain dry. The report indicated that Keepit Dam is currently at 0.7% of active capacity and that the Tamworth Water supply is only secure through to July 2020

If you are a Water Access Licence or Approval holder, the above restrictions will have an impact on your current conditions of your licence or approval. If you need assistance in understanding your current conditions, please contact Everingham Solomons because Helping You is Our Business.

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Employee Notice Periods

Are you an Employer? If so, are you aware of each of your employee’s termination notice period entitlements are?

Many employers do not take the time to understand their employment contracts and the effects of the National Employment Standards (NES). This can lead to harsh financial implications when terminating employees or, for example, selling your business, due to the requirement to provide the minimum period of notice or payment in lieu of notice.

If the notice period in the employment contract is greater than the minimum provisions under the NES, then the employment contract will apply. However, if the notice period in the employment contract is less than in the NES, the NES will prevail.

If your employment contract does not provide for a notice period, then the notice of termination provisions in the applicable modern award will apply. If your employees do not operate under an award and have no employment contract, then “reasonable notice” will apply.

What is “reasonable notice”?

The purpose of providing a period of notice is to enable an employee to obtain new employment of a similar nature. Despite the minimum periods of notice of termination set out in the NES or your employment contract, a greater period of notice may be required for an employee if the circumstances of their employment requires it, for example, senior executive employees.

The relevant factors taken into consideration for reasonable notice are length of service, seniority and status of the position, the level of remuneration, experience and expertise, whether the employee was approached by the employer to join the organisation and the prospects for the employee to find alternative employment.

If you are an employer and are unaware of what your notice period obligations are under your employment contracts and the National Employment Standards, please contact Everingham Solomons for advice because Helping You is Our Business.

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Dealing with Farm Debt – What are your options? – Alex Long

AJL B&W with bookcasesWith the ongoing drought, many farmers are facing situations where their creditors are seeking resolution of issues involving farm debts. Under the Farm Mediation Act 1994, creditors and farmers are required to engage in mediation prior to any enforcement actions being taken under a farm mortgage. As your solicitor, we can help prepare and advise for the mediation and to consider options realistically. Farmers are also entitled to have their solicitor represent them at the mediation. Mediation is a structured negotiation process where a neutral and independent mediator assists the parties to communicate effectively with one another and reach an agreement on the issues.

Under the Act, if the farmer’s mortgage is in default, the creditor must invite a farmer in writing to mediate. The farmer then has 20 days to respond to a creditor’s invitation. However, a farmer may also initiate a mediation under the Act, whether or not they are in default. If the farmer’s loan is in default and the creditor refuses to agree to mediate, this may result in the issue of a certificate of exemption from enforcement action.

It is recommended that farmers facing financial problems seek legal assistance early as this will enable efficient identification of the problems. Our professional services can help to advise on aspects of the process, help in succession planning and negotiating a business restructure if the informal mediation does not resolve the issues.

If your mediation is unsuccessful and you believe that your creditor has not followed the correct procedure, then we can assist in lodging a complaint directly with your creditor. If the issue is not resolved, we can assist in identifying the most appropriate forum for resolving the complaint, such as the Financial Ombudsman Service Australia, or from 1 November 2018, the Australian Financial Complaints Authority.

Under the NSW Government’s Farm Household Allowance, an Activity Supplement payment of up to $3,000.00, payable to both you and your partner (total of $6,000.00) may be used to fund our professional legal advice on the above matters.

If you require assistance with your farm debt, please contact Everingham Solomons to have a discussion with a legal practitioner today because Helping You is Our Business.

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Do I need a Binding Death Nomination for my Superfund? – Alex Long

AJL B&W with bookcasesDespite common belief, your superannuation fund does not form part of your Estate and is therefore not subject to the terms of your Will. Most superannuation funds allow you to elect to make a binding death benefit nomination which binds the Trustee of your superfund to pay your death benefit to your nominated beneficiaries. If you do not have a binding nomination in place at the time of your death, the Trustee of your fund has the discretion to decide who is to benefit from your super. The Trustee is not bound to follow the directions of your Will, as superannuation is not an asset of the Estate.

What is a binding death benefit nomination?

Your binding death benefit nomination is a legal instrument that binds the Trustee of your superfund to pay your benefit to your nominated beneficiaries. It provides certainty about who will receive your super and any applicable insurance benefits in the event of your death. There are usually two types of death benefit nominations, depending on the terms of your superfund; lapsing and non-lapsing. A lapsing nomination remains in effect for three years from the date it’s first signed, last amended or confirmed. If it lapses, it will then be treated as a non-binding nomination. A non-lapsing nomination won’t expire unless you amend or cancel it.

So who can you nominate?

You can nominate one or more of your dependants and/or your legal personal representative. Your dependents include your spouse, your children or your spouse’s children, any person who was in an interdependency relationship with you at the date of your death and any person who in the opinion of the Trustee, are or were in any way financially dependent on you at the date of your death.

If you nominate your legal personal representative, your superfund members’ benefit will form part of your estate and be distributed in accordance with your will or with the laws governing persons who die without a Will.

The payment of your superannuation death benefit will have tax implications and implications on your Estate so it is important to consult your financial and legal advisors prior to making a non-lapsing binding death benefit nomination.

For more information, please contact the experienced staff at Everingham Solomons because Helping You is Our Business.

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NSW Government Grant for Farm Succession Planning – are you eligible? – Alex Long

AJL B&W with bookcasesThe importance of having a legally drafted farm succession plan is paramount in these difficult times as forward planning becomes a crucial factor in the survival of rural farms and rural small businesses.

Under the NSW Government’s Farm Household Allowance, an Activity Supplement payment of up to $3,000.00, payable to both you and your partner ($6,000.00), can be used to obtain professional legal advice on succession planning that will help improve you and your family’s future business sustainability and secure your financial position.

In a study published in 2005, it was reported that over a quarter of Australian farms were being run by owners who are over 65 years of age, making succession planning an issue of dire importance. It has also been reported that nearly three quarters of farmers in their mid-fifties have no retirement plan in place.

We understand that Australian farmers, because of their strong work ethic, do not focus on retirement however, it is inevitable that at some stage, the older generation will need to take a step back and allow for the younger generations to step up into a position of greater control and/or ownership of the farm assets.

The discussion amongst all family members needs to begin sooner rather than later. By identifying each member’s interests and aims, and identifying a successor or successors, a retirement and succession plan can be created. Once this conversation is underway, we can assist by providing advice on your options, the procedure to achieve you goals, the likely costs particularly stamp duty and capital gains tax issues, ensuring the older generation’s financial interests are protected and assisting in the effective transfer of control to the successors.

Under the Farm Household Allowance, the eligibility requirement is that you are a farmer, or a partner of a farmer, are 16 years of age or older, you contribute labour and capital to an Australian farm, or are the partner of a farmer who does, you meet the income and assets test, are an Australian resident and have had less than 3 years of the Farm Household Allowance.

Please contact Everingham Solomons to have a discussion with a legal practitioner today about the future of your family farm because Helping You is Our Business.

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Will agricultural giant CPC go to a Foreign Investor? – Alex Long

AJL B&W with bookcasesEarlier this year, Consolidated Pastoral Company (CPC), Australia’s largest privately owned cattle enterprise, hit the market sparking the all-to-often heard debate of whether this Australian agricultural gem will be snapped up by a Foreign Investor. In February 2018, the possibility of CPC being acquired by a Foreign Investor was made potentially harder when the Australian Government announced their new formal policy and guidelines to be applied by Australia’s Foreign Investment Review Board (FIRB) to proposed acquisitions of agricultural land by a foreign investor.

The Government indicated that these new rules were implemented in order to enable more opportunity for Australians to invest in agricultural land. However, the pending question is whether any domestic investors can compete against the wealth of the foreign bidders.

The new policy implements strict requirements that the proposed sale of agricultural land is to be part of an open and transparent public sales process. The FIRB must be satisfied that the sale was widely market to potential Australian bidders for a minimum of 30 days and that it can be shown there was equal opportunity for Australian bidders to make an offer for the property. If the agricultural land is subsequently acquired by a foreign investor, the purchaser will be required to demonstrate to the FIRB how they became aware of the property for sale and show that the acquisition was the result of an open and transparent sales process.

There is a handy exception to this requirement in that if the property has previously been marketed in an open and transparent matter over the last six months but has failed to sell, then a foreign investor can acquire it no strings attached.

It will be interesting to observe the sale process of CPC and its adherence to the new policy and guidelines. The first round of bidding opened in April 2018 and there is yet to be any announcements as whether a successful bid was offered.

If you have any queries relating to the government’s new policy on foreign investment, contact Everingham Solomons because Helping You is Our Business.

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Welcome Alex Long

AJL B&W with bookcasesMy name is Alexandra Long and I have recently joined the team at Everingham Solomons as a Law Graduate.

I graduated from UNE in September 2017 and am currently undergoing my Graduate Diploma of Legal Practice through the College of Law and will be admitted in June 2018 as a Solicitor

I was born and raised in Gunnedah and went to boarding school in Sydney. I completed my Bachelor of Laws through the University of New England, attending the university and Robb College in 2012 and undertaking the remainder of the degree by correspondence. I spent the last 4 years in the Northern Territory contract mustering and running the livestock administration for a Livestock Export Yard in Katherine, NT.

I come from a strong agricultural background having worked in many different sectors from cropping, grain handling, cattle and horses and growing up on the farm.

In my spare time, I love competing in camp drafting on my three horses and droving cattle. It’s been a big change going from the paddock to the office however I have to say, that I have loved my first week and can’t wait for my second.

I am very excited about my move to Tamworth and cannot wait to get involved in the lifestyle and great opportunities offered by this diverse region. I’ve always played a range of different sports and am amazed at the variety of sporting activities that Tamworth offers.

I’ve had previous experience as a Law Clerk in Gunnedah and at Everingham Solomons I will be working with Director Terry Robinson and his team in Property and Business Law. I look forward to meeting with clients, providing excellent service and advice and developing new working relationships because at Everingham Solomons, Helping You is Our Business.

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