Determining the likely pathway of a dairy development proposal

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 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:

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.

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 Section 3, 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.

• 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.

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 (Section 7) and others outlined in Section 8.

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 in the following sections.