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NSW Department of Primary Industries and Regional Development

NSW planning framework and dairy developments


This section explains how a proposed dairy development application can be managed through the NSW planning system and any other required approvals.


Determining the likely pathway of a dairy development proposal

The NSW planning system and dairy development

All land uses in NSW are subject to the provisions of the Environmental Planning and Assessment Act 1979 (the EP&A Act) and the Environmental Planning and Assessment Regulation 2021 (the EP&A Regulation). The EP&A Act enables the orderly use and development of land while promoting the social and economic welfare of the community and a better environment. The EP&A Regulation supports the EP&A Act by outlining the specific procedures, requirements and conditions necessary to comply with the EP&A Act.

The EP&A Act

Dairy farming, like all other land uses in NSW, is subject to the provisions of the EP&A Act. A dairy developer needs to determine whether approval from a consent authority is needed prior to construction and operation of a new or upgraded dairy facility.

Depending on the scale and scope of the proposed development, the consent authority may be the local council, a Regional Planning Panel, DPHI, or the Minister. Their role is to consider all information submitted by the applicant with the DA, any public submissions, and other relevant advice or information (such as comments from other government agencies). They are then required to assess the social, economic and environmental impacts of the proposed development. The consent authority must determine whether to grant approval or refuse the application. If approval is granted, it can be issued either unconditionally or subject to conditions. Development consents are usually issued subject to a range of conditions. Evidence of compliance with these conditions is a requirement during construction and operation of the proposed development.

The consent authority has the ‘final say’

In almost all aspects of the NSW planning system where a merit-based decision needs to be determined, or where legislation, planning controls and guidelines require interpretation (i.e. on the definition of the proposed project), the consent authority has the ‘final say’. This can only be challenged through the Land and Environment Court.

The EP&A Regulation The EP&A Regulation supports the EP&A Act by outlining the specific procedures, requirements and  conditions necessary to comply with the EP&A Act, including those for the development assessment process. The most significant provision in the EP&A Regulation for dairy developments is Clause 22 of Schedule 3 – Dairies. This specifies the trigger for when a proposed dairy development will be classified as a designated development. Clause 22 states:

22. Dairies

Development for the purposes of a dairy is designated development if the dairy accommodates more than 800 head of cattle for the purposes of milk production

This means that if the proposed dairy development (new or modification) will result in the farm accommodating more than 800 cattle for milk production, the proposal will be processed by the consent authority as a ‘designated development’.
‘Designated development’ is a particular development pathway for a proposed development that may have significant environmental impacts. It means that the:

  • DA must be accompanied by an environmental impact statement (EIS)
  • proposal will be publicly advertised for a minimum of 28 days
  • determination may be challenged in the Land and Environment Court by objectors
  • applicant will likely need to obtain other statutory approvals or licences.

Exceptions to designated development

Part 3 of Schedule 3 to the EP&A Regulation provides some important provisions for existing dairies.

Clause 48 of Schedule 3 may be applied in some instances for developments involving alterations or additions to an existing or approved dairy if, in the consent authority’s opinion, the alterations or additions do not significantly increase the environmental impacts of the existing or approved dairy. There is a list of matters that the consent authority must consider in such an instance.

Clause 49 of Schedule 3 includes a similar approach for ancillary development. In this case, development which is ancillary to other development, and not proposed to be carried out independently of the other development is not designated development.

Dairy developers proposing to modify or add additional facilities to an existing dairy complex should discuss these provisions with their local council or their planning consultant.

Planning Instruments

The EP&A Act gives power to Environmental Planning Instruments (EPIs). These are local environmental plans (LEPs) or State Environmental Planning Policies (SEPPs).

Every council in NSW has an LEP that, as discussed in Type and location of the dairy, applies zones to land and stipulates what land uses can be undertaken in a particular zone. All LEPs in NSW must be consistent with the Standard Instrument–Principal Local Environmental Plan (NSW legislation, 2006). However, LEPs may also have unique local provisions which apply to certain land such as flood-prone land or land with acid sulfate soils, or certain types of development such as rural worker dwellings.

SEPPs are planning instruments which apply across the state. They can apply to issues which are of significance to the state or to specific types of development or specific sites.

The planning provisions in SEPPs usually override the provisions in an LEP. The SEPPS which are likely to be relevant for dairy developments include:

  • SEPP (Exempt and Complying Development Codes) 2008 (the Codes SEPP)
    The Codes SEPP specifies types of development which can be undertaken without a DA (exempt development) or through a streamlined approval process (complying development). Some small developments, such as farm buildings, grain silos, grain bunkers and stock holding yards which may complement dairy activities may be included in the list of exempt developments in the Codes SEPP.
  • SEPP (Primary Production) 2021 (the Primary Production SEPP)
    • Includes some specific provisions for farm dams and other small scale and lowrisk artificial waterbodies.
    • Permits stock containment areas to be constructed without approval in some locations and under certain circumstances for example, temporary infrastructure to manage in a declared emergency.
    • Requires consent authorities to consider whether a proposal for a new
      development (including a dairy) may have an adverse impact on oyster
      aquaculture in the area.
  • SEPP (Biodiversity & Conservation) 2021 (the Conservation SEPP)
    The Conservation SEPP contains special planning controls for clearing of native vegetation in some rural areas. It also contains planning controls for koala habitat, development in water catchments and on land near and connecting to the Murray River and its tributaries.

  • SEPP (Planning Systems) 2021 (the Planning Systems SEPP)
    The key function of the Planning Systems SEPP for dairy developments is to specify when a proposed dairy will be a regional or state significant development. This then establishes which consent authority will determine the application for the proposal.

  • SEPP (Resilience and Hazards) 2021 (the Resilience and Hazards SEPP)The Resilience and Hazards SEPP outlines considerations consent authorities need to make with regards to previous or potential contamination to land and remediation of rural land.

Development control plan (DCP)

Most councils have a DCP that contains requirements for how certain developments are to be designed or constructed.

DCPs are not environmental planning instruments. The NSW planning system considers DCPs as guidance documents.

It is unlikely that a council will have a DCP with requirements specifically for dairy developments. However, many DCPs have requirements that deal with design matters for dairy developments such as:

  • setbacks to property boundaries
  • buffer and separation distance requirements from nearby houses
  • design and construction of vehicular access points
  • earthworks and sediment and erosion control
  • stormwater management
  • maximum building heights
  • traffic generating developments.

It is often necessary for the documentation supporting a DA to demonstrate how a proposal will comply with the relevant requirements of a DCP.

Determining the pathway of a proposed dairy development

Once the type of dairy development has been defined and its permissibility in the zone applying to the land has been confirmed (see Type and location of the dairy), the relevant planning pathway for the proposed dairy is clear. The relevant development assessment pathway may be:
  • exempt development – no approval required
  • local development – local council or planning panel
  • designated development – local council or Regional Planning Panel
  • state significant development – Minister for Planning or their delegate in the DPHI.
The dairy development approval pathway flowchart (Figure 5) demonstrates the pathway under which a DA may be assessed according to the requirements outlined earlier. In summary:
  • Dairies of less than 50 dairy cows in certain locations can be ‘exempt development’
  • Dairies of more than 800 head of cattle will be ‘designated development’.
  • Dairies with a capital investment value of more than $30 million will be ‘state significant development’.
  • All other dairies will be ‘local development’.

Integrated development

Certain developments may be ‘integrated development’. This does not include state significant or complying developments.
Integrated development links development consent for matters under Part 4 of the Environmental Planning & Assessment Act 1979 with any associated approval, licence, consent, permission or permit required under other legislation.

An integrated development requires input and approvals from NSW Government agencies before there can be a determination of development consent by the assessing consent authority (usually local council). For example, a licence may be granted under the Protection of the Environment Operations Act 1997 (see NSW environment protection licences and dairy developments) and others (outlined in Other approvals and licences).

The aim of integrated development is to streamline the assessment process, called the integrated development assessment (the IDA) process, and promote a unified, whole of government approach to the IDA in NSW. How this process is executed is explained in more detail by following the navigation links at the bottom of this page.

Environmentally sensitive areas

Dairies should not be located in environmentally sensitive areas. Where there is potential for impacts on waterways, native vegetation and Aboriginal cultural heritage, the consent authority will require more detailed information to demonstrate that impacts will be avoided or mitigated.

Environmentally sensitive areas

The NSW planning system defines an environmentally sensitive area as:

  1. the coastal waters of the state
  2. a coastal lake identified in State Environmental Planning Policy (Resilience and Hazards) 2021, Schedule 1
  3. land identified as “coastal wetlands” or “littoral rainforest” on the Coastal Wetlands and Littoral Rainforests Are Map, within the meaning of State Environmental Planning Policy (Resilience and Hazards) 2021, Chapter 2
  4. land reserved as an aquatic reserve under the Fisheries Management Act 1994 or as a marine park under the Marine Parks Act 1997
  5. land within a wetland of international significance declared under the Ramsar Convention on Wetlands or within a World Heritage area declared under the World Heritage Convention
  6. land within 100m of land to which paragraph (c), (d) or (e) applies
  7. land identified in this or any other environmental planning instrument as being of high Aboriginal cultural significance or high biodiversity significance
  8. land reserved under the National Parks and Wildlife Act 1974 or land to which Part 11 of that Act applies
  9. land reserved or dedicated under the Crown Land Management Act 2016 for the preservation of flora, fauna, geological formations or for other environmental protection purposes
  10. land identified as being critical habitat under the Threatened Species Conservation Act 1995 or Part 7A of the Fisheries Management Act 1994.

Source: State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

file_download Figure 5: Dairy development approval pathway

Preparing required environmental assessment documentation

Environmental assessment

A statement of environmental effects (SEE) and an environmental impact statement (EIS) outline the specific details of the proposed development, the characteristics of the site and the surrounding land, the potential impacts it may have, and how those impacts will be managed.

A SEE is a less detailed document and is usually for local DAs. A more detailed EIS is required for designated development and state significant development. A state significant development EIS must be prepared or endorsed by a Registered
Environmental Assessment Practitioner (REAP). An EIS for designated development must be prepared in accordance with the Planning Secretary’s Environmental Assessment Requirements (SEARS), by application to DPHI.

The Secretary’s Environmental Assessment Requirements (SEARs)

The SEARs detail the matters that must be addressed in an EIS. SEARs are generated by DPHI in consultation with state agencies and other authorities that may have an interest in the potential impacts of a proposed development. To request the Planning Secretary’s SEARs, an applicant must complete Form A – Request for the Planning Secretary’s Requirements for the preparation of an Environmental Impact Statement, accessed through the NSW Planning Portal.

Requirements of a SEE and an EIS

The minimum information required under the EP&A Regulation, when completing the DA form on the NSW Planning Portal, includes:

  • location of the land relevant to the application, including the address and formal particulars of the land title
  • name and address of the applicant
  • name and address of the property owner (note: the consent of the landowner will be required in writing)
  • description of the development to be carried out
  • estimated cost of the development
  • an indication as to whether the land is, or is part of, critical habitat, or whether the development is likely to significantly affect threatened species, populations or ecological communities, or their habitats
  • a list of any authorities from which concurrence must be obtained (tick box in portal)
  • a list of any approvals that must be obtained before the development may be carried out (tick box in portal)
  • electronic copies of the documents accompanying the application, such as a statement of environmental effects, site plan and drawings (these will be uploaded to the portal as part of the application).

The assessment should match the potential impact of the proposed enterprise. There is no standardised format for preparing a SEE, but it is likely to cover the same elements as an EIS, just in less detail. Most NSW councils provide guidance templates on their websites.

Appendix 3 lists EIS and SEE requirements for guidance. Management of potential environmental impacts covers the environmental impacts and management measures in more detail.

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