Environmental & Sustainability Law
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Water Related Developments
Most works that take or interfere with water require assessment and approval under the Integrated Planning Act 1997. While some developments are exempt or self-assessable, others require an approved development permit from the assessment manager. The assessment manager will be either the Department of Environment and Resource Management or a relevant local government. Many of these developments will also require a water licence under the Water Act 2000.
At Ferguson Cannon Lawyers we have worked in conjunction with numerous developers to help them understand their obligations when undertaking a water related development.
WATER-RELATED DEVELOPMENTS DEFINED
Under the Integrated Planning Act 1997, water-related development is defined as works that take or interfere with water including:
- most works in a watercourse (pumps, gravity diversions, stream diversions, weirs, barrages and dams)
- works that take overland flow if mentioned in a water resource plan. Overland flow is defied by legislation generally as water that runs off the land from rainfall or flows over land after breaking from a watercourse, lake or spring;
- artesian bores. Artesian water is defined by legislation generally as underground water that, when tapped by a bore, flows naturally to the surface;
- sub artesian bores in areas where sub artesian water is regulated. Sub artesian water is defined by legislation generally as underground water that has to be pumped to the surface.
WATER-RELATED DEVELOPMENT ASSESSMENT
There are three types of development assessment:
1. Exempt development
There are no rules for exempt development.
Exempt development includes all sub artesian bores in areas where sub artesian water is not regulated. In most areas where sub artesian water is regulated, stock and domestic bores are exempt. At Ferguson Cannon Lawyers we can help you identify whether your development falls within this category.
2. Self-assessable development
Self-assessable development does not require a development permit; however the development must be undertaken in accordance with the relevant self-assessable development code. At Ferguson Cannon Lawyers we can help you identify whether your development falls within this category and if so, adhere to the self-assessable development code
Some examples of self-assessable developments include:
- watercourse pumps or gravity diversions used to supply stock or domestic water to riparian land
- certain replacement water bores
- certain works that take overland flow water.
- developments specifically for stock or domestic use.
3. Assessable development
All works that do not fit in the exempt or self-assessable categories are assessable development and require a development permit. At Ferguson Cannon Lawyers we can help you identify whether your development falls within this category and understand the ramifications upon your development if you do.
APPLYING FOR A DEVELOPMENT PERMIT
An application for a development permit must be made in the approved form and be accompanied by the required fees. At Ferguson Cannon Lawyers we can help you identify the correct form and will help you complete it in the correct manner.
Mandatory information
There is certain Mandatory information that is required on all application forms. Some examples of this information are:
- an accurate description of the land
- a description of the development
- the consent of the chief executive (or his delegate in a regional office) under the Water Act 2000.
The State is the owner of certain leasehold land under the Land Act 1994. Therefore, where the development is proposed on State leasehold land, resource entitlement consent must be provided by the department. At Ferguson Cannon Lawyers we can help you identify whether your development falls within this category.
Applicants should also provide any supporting information to facilitate the assessment when requested, such as a more detailed description of the development, site details or relevant technical reports. At Ferguson Cannon Lawyers we can help you identify the supporting documentation you need to make a successful application. We will then help you compile this information in the application in the correct form.
SUBMITTING AN APPLICATION
To submit an application, a fully completed application form, any supporting documentation, and the correct fee must be sent to the assessment manager. At Ferguson Cannon Lawyers we finalize your application with you and attend to submitting it correctly on your behalf.
Most water related developments are assessed by the Department of Environment and Resource Management.
However, where a local government’s planning scheme covers a proposed development or where a proposed water-related development forms part of a larger proposed development (such as a weir for a new golf course), the completed application form and prescribed fee may need to be submitted to the local government. At Ferguson Cannon Lawyers we will ensure that your application is submitted to the correct organization.
ASSESSING APPLICATIONS
Under Integrated Planning Act 1997, assessable developments are categorized as either impact assessable or code assessable. All water related assessable developments are code-assessed, meaning they don’t require public notification and no other parties (except the applicant) can appeal a decision. The code can be an actual code defined by regulation or simply the laws and policies administered by the department. At Ferguson Cannon Lawyers we have an innate understanding of how assessable developments are categorized and can advise you accordingly.
CHANGING AN APPLICATION
Once an application has been submitted, applicants may make minor changes or withdraw their application by notice in writing. Major changes will require a new application noting the changes. There is no additional fee for changing an application. If an application is withdrawn, a refund may be sought depending on how far the assessment had progressed.
RELATIONSHIP WITH A WATER LICENCE
A water licence is an entitlement to take or interfere with water. A development permit is the authority to physically construct the works to take or interfere with water. Please refer to our information sheet on Water Licenses for more information.
For further queries regarding your water-related development issues, please contact Byron Cannon, Director byron@fclawyers.com.au or Samuel Barber, Solicitor sam@fclawyers.com.au or (07) 5443 6600.
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