Water Licensing
Controlled activities near rivers, lakes or estuaries
Controlled activities on waterfront land frequently asked questions
What's changed?
The Rivers and Foreshores Improvement Act 1948 (RFIA) has now been repealed and the controlled activity provisions in the Water Management Act 2000 (WMA) have commenced. A controlled activity approval under the WMA is now required for controlled activities carried out in, on or under waterfront land.
When did the changes commence?
The controlled activity approval provisions commenced on 4 February 2008.
What is a controlled activity?
A controlled activity means:
- the erection of a building or the carrying out of a work (within the meaning of the Environmental Planning and Assessment Act 1979), or
- the removal of material (whether or not extractive material) or vegetation from land, whether by way of excavation or otherwise, or
- the deposition of material (whether or not extractive material) on land, whether by way of landfill operations or otherwise, or
- the carrying out of any other activity that affects the quantity or flow of water in a water source.
What is a controlled activity approval?
A controlled activity approval (CAA) confers a right on its holder to carry out a specified controlled activity at a specified location in, on or under waterfront land.
What is waterfront land?
Waterfront land is:
- the bed of any river, together with any land lying between the bed of the river and a line drawn parallel to, and the prescribed distance inland of, the highest bank of the river, OR
- the bed of any lake, together with any land lying between the bed of the lake and a line parallel to, and the prescribed distance inland of, the shore of the lake, OR
- the bed of any estuary, together with any land lying between the bed of the estuary and a line drawn parallel to, and the prescribed distance inland of the mean high water mark of the estuary, OR
- if the regulations so provide, the bed of the coastal waters of the State, and any inland lying between the shoreline of the coastal waters and a line drawn parallel to, and the prescribed distance inland of, the mean high water mark of the coastal waters,
where the prescribed distance is 40 metres or (if the regulations prescribe a lesser distance, either generally or in relation to a particular location or class of locations) that lesser distance. Land that falls into 2 or more of the categories referred to in paragraph (a), (a1) and (a2) may be waterfront land by virtue of any of the paragraphs relevant to that land.
The prescribed distance is currently 40 metres.
Coastal waters including the shoreline do not currently fall within the definition of waterfront land. In general, a CAA will not be required for controlled activities carried out on a beach. However, it is important to draw a distinction between coastal waters and an estuary. The bed of any estuary will be waterfront land for the purposes of a CAA.
Figure 1: Waterfront land includes the bed and banks of a river, lake or estuary.
When is a controlled activity approval required?
Unless exempt by the Water Management (General) Regulation 2004, controlled activity approvals are required for the following activities when carried out on waterfront land:
- the erection of a building or the carrying out of an activity (within the meaning of the Environmental Planning and Assessment Act 1979), OR
- the removal of material (whether or not extractive material) or vegetation from land, whether by way of excavation or otherwise, OR
- the deposition of material (whether or not extractive material) on land, whether by way of landfill operations or otherwise, OR
- the carrying out of any other activity that effects the quantity or flow of water in a water source.
What exemptions will apply to activities on waterfront land?
Clause 39A of the Water Management (General) Regulation 2004 details the exemptions that apply. The exemptions from the requirement for a permit under Part 3A of the RFIA are carried over as exemptions from the requirement for a controlled activity approval under Part 3 of Chapter 3 of the WMA where possible.
What are ancillary facilities?
An ancillary facility is a development which is ancillary to an existing dwelling or dual occupancy development. For the purposes of the Regulation, the Department takes the view that the following developments are ancillary facilities. This is not an exhaustive list:
- driveways
- carports
- awnings
- detached sheds or garages
- pergolas or gazebos
- verandas, patios or decks
- barbeques
- swimming pools & tennis courts
- acoustic barriers
- clothes lines
- antennae
An activity that is carried out in-stream will require a CAA even if it is an ancillary facility.
Do the exemptions apply to in-stream works?
In the case of activities carried out in connection with minor residential developments as defined in clause 39A(2)(g) of the Regulation, then the exemptions will not apply to in-stream works.
Do I need approval to remove vegetation?
Controlled activities that comprise nothing more than the removal of vegetation in circumstances that would otherwise be lawful will not require a CAA. If there is no excavation and you want to remove vegetation then you may need approval to clear under the Native Vegetation Act 2003. Contact your local Catchment Management Authority for advice or go to Native Vegetation before clearing. In urban areas, this should be managed as part of the development application process.
If the removal of vegetation includes excavation or the removal of other material such as soil then the activity will require a CAA.
What public authorities will be exempt from needing approvals under the controlled activity provisions?
Clause 39A(1) Water Management (General) Regulation 2004 provides for all public authorities (other than Landcom) to be exempt from the need to hold a controlled activity approval.
What exemptions will apply to areas previously covered by NSW Maritime?
The exemptions contained in the Regulation apply across the State. There is no longer a special set of exemptions applying to Sydney Harbour.
How will applications that are lodged under the Rivers and Foreshores Improvement Act 1948 at the time of conversion be dealt with?
Any pending applications will continue to be dealt with under the RFIA. The Part 3A permit will be converted to a CAA on the day on which it is issued. This means that the Department will issue a Part 3A permit accompanied by a letter explaining the conversion to a controlled activity approval.
How do I apply for a controlled activity approval?
To apply for a controlled activity approval contact your local Departmental office or head office on (02) 8281 7777 or download an application form (PDF version, Word version) for a controlled activity approval. In most cases you may also have to obtain the consent of your local council first.
The Department may be able to provide you with initial advice, including the Department's likely requirements, by site inspection, meeting or by desktop assessment of information provided. However, a decision on the granting of a controlled activity approval cannot be made until the site has been fully investigated and the environmental impacts have been assessed.
What fees will apply to controlled activity approvals?
Fees are based on the complexity of the permit and the time it takes to assess the application. If you have any enquiries relating to fees contact the appropriate officer at your local Departmental office.
What are the penalties for breaches of the WMA?
Under s.344 of the WMA a person must not carry out a controlled activity in, on or under waterfront land other than in accordance with a controlled activity approval.
There are large financial penalties for breaches of the WMA. In addition, the Department can issue directions requiring a person to stop any activities, issue directions requiring certain measures to be taken and obtain injunctions through the Land and Environment Court.
The Minister may suspend or cancel an approval if the holder of the approval has failed to comply with the conditions or has been convicted of an offence against this Act or the regulations.
How can I report something that doesn't seem right?
To make a confidential report please contact the Department of Water and Energy on 1800 633 362 or send an email to watercompliance@dwe.nsw.gov.au.
The more information we have the better. Before submitting a report, please try to obtain the following details:
- type of activity
- time, date and location of activity
- description of activity
- any other information you think is relevant.
The information you provide could help stop illegal water activities in your local area.
Where can I find out more about controlled activity approvals?
If you require more information about controlled activity approvals please contact your local Departmental office or head office on (02) 8281 7777.