Potential requirements of other legislation for dairy development
The following details some of the common activities that may require a referral to an appropriate regulatory authority (ARA), referral authority or may be exempt. For specific details on the requirements and process for these matters, refer to the Development referrals guide – A guide for applicants and consent authorities on integrated development approvals, concurrences and consultation referrals (DPE, 2023).
A proposed dairy development may require work to either install a new access from a public road or upgrade an access to a public road to cater for trucks and other vehicles. The local council is normally the authority responsible for roads in rural
areas; however, for major roads in rural areas, Transport for NSW – Roads may be the road authority. Work in a public road reserve may require approval under the Roads Act 1993.
- a design report
- traffic modelling
- completed design drawings to Transport for NSW Transport Standards
- geotechnical report and pavement design
- design of traffic control signals
- swept path plans demonstrating vehicles entering and exiting the site in a
If a dairy development requires the removal of native vegetation, it may trigger the Biodiversity Offsets Scheme (the BOS), which is the framework for offsetting unavoidable impacts on biodiversity from developments. The BOS was established under the Biodiversity Conservation Act 2016.
The Biodiversity Values Map is used for ‘local development’ to identify land with highbiodiversity value that is particularly sensitive to impacts from development and clearing. The scheme automatically applies to proposals on land mapped on the Biodiversity Values Map. The Biodiversity Values Map and Threshold Tool can be used to identify the
Consideration of ‘Matters of National Environmental Significance’ may also be
Matters protected under the Environmental Protection and Biodiversity Conservation Act 1999 (EPBC) can be found by searching the project site on the Australian Government’s Department of Agriculture, Water and the Environment (DAWE)
interactive Protected Matters Search Tool.
Where any listed or threatened species are identified within the area, consideration of the projects impact on the species, ecological communities, their habitats and key threatening process may be required. Guidance on undertaking a Threatened Species Test of Significance can be found within the Threatened Species Test of Significance Guidelines (OEH, 2018).
Dairy developers who have areas of certain native vegetation on their farms may be able to establish Biodiversity Stewardship Agreements to generate biodiversity credits. Selling these credits provides funding to support the long-term
management of the biodiversity stewardship of the land.
Where routine agricultural management works are being undertaken that are exempt or do not require a DA, these may be undertaken in accordance with exemptions or approvals under the Local Land Services Act and Code (LLS,2018).
See the Land Management and Biodiversity Reform Framework – Local Land Services (nsw.gov.au).
If the proposed development is a ‘designated development’, a more detailed pathway needs to be followed and will require increased investigation by the planning consultant.
Investigating and assessing Aboriginal cultural heritage aims to understand the potential impact of a proposed activity on Aboriginal objects and designated Aboriginal sites. This process helps identify avoidable and unavoidable impacts, to minimise harm to significant Aboriginal objects and designated Aboriginal places whenever feasible. In cases where harm cannot be avoided, efforts should focus on developing proposals that mitigate the extent and severity of damage to these important cultural objects and sites.
There is no legislation that singularly addresses protection of Aboriginal culture and heritage in NSW. It is encompassed under a number of Acts and Regulations. The National Parks and Wildlife Act 1974 is the most significant legislation. This ensures proper care, preservation and protection of ‘Aboriginal objects’ and ‘Aboriginal places’. Other obligations with relation to development and consideration of Aboriginal cultural heritage are identified within the EP&A Act, LEPs and a council’s DCP (see Section 5).
Local DAs may follow the Due Diligence Code of Practice for the protection of Aboriginal Objects in New South Wales (DECCW, 2010) when preparing a SEE. The AHIMS holds records and information about Aboriginal places, objects and other significant sites and archaeological and cultural heritage assessments (see Table 4, Section 4). A search of this system can identify if there any recorded sites within the development area or property that need to be avoided.
Where there are no recorded Aboriginal objects or places identified on AHIMS, this does not mean there are no existing Aboriginal objects. Surveys for Aboriginal objects have not been completed in many areas of NSW. Dairy developers still need to consider whether unknown Aboriginal objects may be present as part of their due diligence assessment.
If an Aboriginal object is discovered after development has commenced, work must stop immediately. DCCEEW - Environment and Heritage must be notified, and if the findings relate to skeletal remains, NSW Police must be notified and the dairy developer may need to apply for an Aboriginal heritage impact permit (AHIP).
Water extraction and storage
Dairy systems require a source of water to operate. WaterNSW and the Water division of the DCCEEW are responsible for managing access to water, water sources and ensuring water is shared equitably between the environment, farmers, and industry under the Water Management Act 2000 (the WM Act).
An approval to access water – called a ‘work approval’ or a ‘combined approval’ (where work and water use is combined) – in connection with a ‘water access licence’ (WAL) is required where water extraction is connected to a dairy facility. ‘Works’ can be described as bores, pumps, storage dams (freshwater) or weirs. ‘Use’ of water within a dairy facility is considered ‘commercial’ and does not fulfil the definition of a basic landholder right (BLR). Understanding and meeting obligations under the ‘harvestable rights’ requirements must also be considered.
Water access licence and related work approvals provide a clearly defined access and entitlement to different classes of water that are subject to conditions under the licence and relevant water sharing plan of the development region. In some locations, new WALs are no longer being granted. Alternatively, an existing access licence needs to be purchased on the water market to obtain a permanent share of water.
The Water Assist tool helps to identify the correct government agency or entity for an enquiry or application and includes a process to determine what sort of licence may be required for example, groundwater bore, harvestable rights, surface water take. All water used for commercial purposes or irrigation must be metered and all licence holders are responsible for payment for the water they consume.
WaterNSW is the ARA responsible for water access licences, water use and flood work approvals required by rural landholders, rural industries and developments that are not ‘state significant development’. The DCCEEW is responsible for water access licences and associated approvals required by or for entities undertaking more major developments.
Where new licences or changes to the existing water licences held for a property are proposed, consider submitting a DA as an ‘integrated development’ (see Sections 5.1.3 and 8.1). For a licence or approval to extract, store or divert water under section 90 of the WM Act, the DA must be accompanied by:
- Estimated volume or storage capacity of the structure. If the volume exceeds maximum harvestable right, a water supply work approval and a water access licence will be required.
- Stream order confirmation. Dams are not permitted on some watercourses and are prohibited in some management zones.
- Confirmation the structure is permitted and complies with the requirements of the water sharing or flood plain management plan.
- Details of provision for fish passage – for dams, structures on perennial streams. Concept plans for instream works require cross sections and longitudinal sections.
- Information regarding the water access licence and how the applicant will obtain the commensurate volume of water required in accordance with rules in the water sharing plan.
Note: WaterNSW also has a role in managing and protecting the Greater Sydney drinking water catchment to supply high quality raw water. To ensure daily activities in the catchment do not harm the environment from where drinking water is captured, there may be extra considerations in granting some licences.
Other works within, under or on a waterway
Certain development may require works to be carried out in, on or beside rivers, lakes and estuaries. These activities are defined as 'controlled activities'. There are exemptions for works that are covered under other legislation. These exemptions can be reviewed by using the NSW Government's Controlled activity exemption e-tool.
Where works are not identified as being exempt, for example, watercourse crossings or general works within 40 metres of a waterway, the information required for a controlled activity approval (CAA) will likely include a completed application form ensuring owner’s consent has been provided by all landowners where works are proposed, details of planning approvals, construction plans, an erosion and sediment control plan, a vegetation management plan and financial information.
Where works that trigger a CAA are proposed, consider submitting the DA as an 'integrated development' (see Sections 5.1.3 and 8.1).
Flood-prone land
Works that are proposed within flood prone areas must consider impacts to flood events, other assets within the catchment, and any dependent ecosystems. A flood work approval will allow the construction and use of a ‘work’ situated in or near a river, estuary or lake, or within a floodplain, which is likely to have an effect on the flow of water to or from a river, estuary or lake, or the distribution or flow of floodwater.
Flood work approvals ensure that the construction or use of a flood work does not negatively affect water sources and their dependent ecosystems, or other water users, and minimises the existing and future risk to human life and property.
Examples of flood works include barrages, causeways, cuttings, embankments, levees to prevent inundation of flood waters and building pads. Local Government are required to consider floodplain risks as outlined in the Flood Risk Management Manual (DPE, 2023).
WaterNSW issues flood work approvals for private rural landholders and rural industries. Information on a new approval or on amending or extending an existing approval can be found on the customer service webpage: https://www.waternsw.com.au/customer-services/water-licensing/flood-work-approvals
Development in regulated catchment
In areas that are described as a ‘regulated catchment’ for example, HawkesburyNepean and Georges River Catchments, the impacts on the catchment and its relation to drinking water storages must be addressed.
- subdivision of land that could lawfully be used for residential or rural residential purposes or development of land for special fire protection purposes
- development for purposes above to the extent that it complies with standards regarding setbacks, provision of water supply and other matters considered by the Commissioner to be necessary to protect persons, property or the environment from danger that may arise from a bush fire. Development within bushfire-prone areas should follow the NSW Rural Fire Services’ Planning for Bushfire Protection (NSW Rural Fire Service, 2019).
Most dairy development relies on electricity as part of its operation. If systems are changing or intensifying, assess the additional electricity requirements. If change is proposed, contact the relevant electricity supply authority as early as possible to review the work and its impact on the network.
Any application that relates to connection to the electricity grid will be referred to the electricity supply authority for comment. Applicants should be aware that there can be significant delays in forming connection agreements, creating easements for new electrical infrastructure, and completing the connection works.
