Coastal floodplain drainage

Determine the tenure and ownership of the land where the works are proposed and the adjoining properties. 

You may need written consent from the landowner/s before lodging an application. 

This is particularly important for work on Crown land or work on shared infrastructure.

Confirm if your proposed drainage works are on:

Private land

If you don’t own the land, you’ll need written permission from the landowner before lodging an application.

Crown land

Crown land includes areas both above and below the water. Submerged Crown land includes estuaries, tidal waterways, foreshore areas and many watercourses. You may need landowner’s consent and a Crown land licence. 

While actual water boundaries may shift over time they do not always affect mapped property boundaries. 

Find instructions on how to identify Crown land at: NSW Planning Portal Spatial Viewer

Alternatively check with Crown Lands or complete a water boundary determination. 
Contact Crown Lands on 1300 886 235 or email cl.enquiries@crownland.nsw.gov.au

Note: Crown Lands may require applicants to hold $20 million in public liability insurance.

Read Step 2 for more information on applying for a Crown lands licence.

Council managed land 

Contact the relevant local council for more information. You may need written consent or additional approvals.

Aboriginal land claims or native title 

Aboriginal Land Claims (ALCs) under NSW legislation will generally only apply to areas of Crown land. Native Title and/or Indigenous Land Use Agreements (ILUAs) under Commonwealth legislation may also apply to other public lands such as National Parks. 

When planning to undertake works on Crown land contact the regional Crown Lands office for additional advice at: Crown Land Regional Offices. 

National parks and nature reserves 

Special conditions and approvals may apply for works in a national park, nature reserve, Aboriginal place, wilderness area, wild river or land adjacent to land reserved under the National Parks and Wildlife Act 1974.  
For more information, read the Guidelines for developments adjacent to National Parks and Wildlife Service lands or the Guidelines for activities within our acquired or reserved land and water. 

State Forest or Forest Agreement land 

Drainage works on this land may require a permit from the Forestry Corporation of NSW.

Other government-owned land

Contact the relevant government agency, for example, Transport for NSW, to confirm any approval requirements for proposed drainage works.

Works that cover more than one land tenure 

Drainage works located on or near a waterway can often cover multiple land tenures, for example, Crown tidal/intertidal land and private land above mean high water mark. In these cases, the consent of all landowners within the footprint of the works are required. 

Use the NSW Planning Portal Spatial Viewer to check Crown land, property boundaries and other planning details.

NSW Planning Portal Spatial Viewer

If you are unable to identify land ownership, contact: 

• the department’s Drainage Application Coordinator on 0483 062 821 or peter.wilson@dcceew.nsw.gov.au
• the relevant local council
• Crown Lands
   

Coastal floodplain drainage works are regulated under the Environmental Planning and Assessment Act 1979 (EP&A Act). This means that works are subject to planning rules found in Environmental Planning Instruments (EPIs), including State Environmental Planning Policies (SEPPs) and Local Environmental Plans (LEPs). The size, ownership and scale of the development will determine which of the planning approval pathways apply to your proposal. Land-use zoning and development controls in EPIs generally classify development into one of the following categories:

• development that needs consent (which requires a development application (DA) under Part 4 of the EP&A Act)
• development that does not need consent (but which may trigger environmental assessment under Part 5 of the EP&A Act), or
• development that is prohibited.
• If your development needs consent, a DA must be lodged with the consent authority – usually a council - through the NSW Planning Portal.

The EP&A Regulation states that a development application may only be lodged with the landowner’s consent. For Crown land, national parks or other public lands, that consent can only be granted by the relevant Minister as representative of the NSW Government. 

The level of environmental assessment that must be provided with the DA will differ depending on the likely impacts of the development and its location. The procedures for applying for development consent, the level of environmental assessment required, the notification required, and appeal rights will differ depending on how a development is categorised.

The key steps to consider when determining the appropriate planning approval pathway are outlined below.

Who is undertaking the works?

It is essential to identify the proponent for the works, as this can influence the planning approval pathway and determine whether development consent is required. The classification of the proponent affects which planning instruments and legislation apply. For example: 

• Private landholders, private water trust (formerly known as drainage unions) and developers
  If you are a private landowner, company or other private entity, the permissibility of development is prescribed by the relevant LEP and any applicable SEPPs.
• Council
  Councils may act either as the consent authority for local development or as the proponent undertaking work, such as the management and maintenance of local drainage infrastructure. While councils are subject to the same planning considerations as other applicants, they may be able to use a different planning approval pathway. These include exempt development or development without consent under specific SEPPs, for example, the Transport and Infrastructure SEPP 2021.
• Public authorities 
  Public authorities are typically government organisations that carry out public functions or services. This includes state agencies such as WaterNSW or Transport for NSW, utilities and, in some cases, councils. Public authorities may be able to use different planning approval pathways under their own legislation or may rely on provisions in the Transport and Infrastructure SEPP that allow certain works to be carried out as development without consent. Note: While councils can be considered public authorities under the planning system, they are not classified as public authorities under the Fisheries Management Act 1994.

What is the purpose of the proposed works?

Clearly defining the purpose of your proposed works helps determine whether development consent is required or if your proposal can proceed under an alternative planning approval pathway, such as exempt development or development without consent.

The relevant LEP includes land zoning which identifies which land uses are permissible and a Dictionary of standard definitions relating to land uses and other terms relevant to the interpretation and application of LEPs. 

For proposals involving drainage works on coastal floodplains, the following land use definitions typically apply:

• extensive agriculture
• agriculture
• environmental protection works
• flood mitigation works.

If you’re unsure how to categorise your works, refer to this Planning circular on how to characterise development or seek advice from the relevant council.

Is the land zoned for the proposed works?

Land zoning tells you what types of land use and activities are allowed in a specific area. The Land Use table included in LEPs set objectives for each zone and the land uses that are permitted with consent or without consent or prohibited.

To check the land zoning for your property and the permissibility of development:

• Use the NSW Planning Portal Spatial Viewer by entering your address.
• Review the Land Use Table in the local LEP to see if your proposed development needs consent.

If your property is mapped as DM (Deferred Matter) in the Spatial Viewer, it means an old LEP still applies. Contact your local council to determine the zoning and type of development application that applies. 

It is important to remember that even if an activity is permitted without consent, because of the land zoning, it is possible that development consent may still be required if the works:

• occur on land with acid sulfate soils
• occur on land below the mean high-water mark
• are located within mapped coastal wetlands or littoral rainforest

Are there acid sulfate soils?

If your proposed works are located on land identified as containing acid sulfate soils, you may need development consent, and an acid sulfate soils management plan. Most LEPs include an additional provision on acid sulfate soils to ensure that development does not disturb, expose or drain acid sulfate soils and cause environmental damage. These areas are mapped on the Acid Sulfate Soil Map included in an LEP, which you can view on the NSW Planning Portal Spatial Viewer. 

Are the proposed works located below the mean high-water mark?

If your proposed works are situated below the Mean High-Water Mark (MHWM), you may need development consent under Section 5.7 of the relevant LEP.

The MHWM is defined in the Dictionary of the Standard Instrument LEP as:

“The position where the plane of the mean high-water level of all ordinary local high tides intersects the foreshore, being 1.44 metres above the zero of the Fort Denison Tide Gauge and 0.515 metres Australian Height Datum.”

To determine the location of the MHWM, a registered land surveyor must prepare a survey plan.

In tidal waterways, land below the MHWM is typically Crown Land. For guidance on how to proceed, refer to Steps 1 and 3.

For more information about development consent requirements for works below the MHWM, contact your local council or the department’s Drainage Applications Coordinator on 0483 062 821 or peter.wilson@dcceew.nsw.gov.au 

Are the proposed works located on mapped coastal wetlands or littoral rainforest?

The State Environmental Planning Policy (Resilience and Hazards) 2021 – also known as the Resilience and Hazards SEPP – applies to the coastal zone and defines land identified as ‘coastal wetlands’ or as ‘littoral rainforest’. These areas have distinctive natural values and are identified to protect their natural state from the impacts of development.

Earthworks (including depositing material onto land), constructing a levee, draining the land, environmental protection works and all other development within a mapped coastal wetlands and littoral rainforests area requires consent, and is generally designated development, meaning that an Environmental Impact Statement (EIS) must be prepared to support any development application.

You can view the Resilience and Hazards SEPP maps, including the coastal wetlands and littoral rainforests mapping on the NSW Planning Portal Spatial Viewer.
Note: that development consent may not be required in a NPWS park or reserve if the works are consistent with an adopted plan of management. 

Public authorities under the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP)

The Transport and Infrastructure SEPP supports the delivery of infrastructure across NSW and provides streamlined planning approval pathways for public authorities, including councils. Under this SEPP, certain infrastructure works may be carried out as development without consent by or on behalf of public authorities (including councils) in accordance with Part 5 of the Environmental Planning and Assessment Act 1979 (EP&A Act). The policy also identifies types of exempt and complying development where environmental impacts are considered minimal. 

Some examples of development that may be permitted under this SEPP include the construction, maintenance, and operation of:

• flood mitigation works
• environmental protection works
• environmental management works
• stormwater management system.

To view planning provisions related to infrastructure delivery, visit the Transport and Infrastructure SEPP website.

Crown land is owned by the NSW Government, who manages it on behalf of the public. Crown land includes the bed and banks of major waterways (rivers, estuaries, bays, harbours, lakes), including areas below mean high water mark of tidal waterways and includes the overlying waters.

If your proposed works are wholly located on, or cross over into Crown land, you must:

• get written landowner’s consent from Crown Lands before lodging a development application, if development consent is required (see Step 2)
• apply for a Crown land licence under the Crown Land Management Act 2016 to carry out the works if development consent is granted or not required.

To check the location of the works or drainage infrastructure (including floodgates) against mapped Crown land, enter your address or lot number into the NSW Planning Portal Spatial Viewer.

Learn more about how to do this on the Crown Lands website.

Crown land licence

Where drainage works on Crown land are classed as ‘development without consent’ a licence is usually still required to occupy the Crown land for the purpose of the works. 

Councils may only use ‘powers of entry’ under the Local Government Act 1993 for certain works for which they have a statutory authority to do on Crown land, for example, emergency flood mitigation works.

Councils can request a Short-term or General licence to cover multiple works or sites but if new sites need to be added, a new licence is required. A multi-site licence can simplify compliance, reduce administration and provides a streamlined way to authorise ongoing maintenance or small-scale works in multiple locations under a single agreement with Crown Lands.

Learn more about licence applications on the Crown Lands website. 
 

You may need a controlled activity approval under the Water Management Act 2000 if your proposed drainage works are located on waterfront land.

Waterfront land includes:

• the bed or bank of any river, lake (including wetlands) or estuary
• any land within 40 metres of the highest bank of these waterways.

A controlled activity approval is required before starting any work or development on waterfront land, unless your works meet the criteria for an exemption. Find more information about exemptions at: controlled activity approvals.

You may need a controlled activity approval if your works involve:

• excavation or earthworks
• vegetation removal
• installing or modifying drains, floodgates, culverts or levees near a waterway.

Some routine maintenance works may not need approval, but only if they meet the exemption requirements. Go to the CAA exemption e-tool 

The Waterfront land e-tool can help you determine if your works are on waterfront land and if you need approval. Go to the Waterfront e-Tool.

If the proponent of the works is a public authority a controlled activity approval is not required, see the CAA exemption e-tool. 

Controlled activity approvals are issued by the department. Find  more information at: Controlled activity approvals.

Approval under the Fisheries Management Act 1994 may be required for certain activities within key fish habitat such as: 

• Dredging or reclamation works, that is, excavating, digging, or placing material on or within key fish habitat. See the video DPI Fish Friendly Councils: 3. Dredging and reclamation works
• Harming (cut, remove, damage, destroy, shade etc) marine vegetation (mangroves, seagrass, saltmarsh and seaweeds). See the video DPI Fish Friendly Councils: 1. Harming marine vegetation
• Obstructing the free passage of fish. See the video DPI Fish Friendly Councils: 4. Obstructing fish passage

Where dredging or reclamation works are being carried out or approved by another NSW public authority, a dredging or reclamation permit from DPIRD Fisheries is not required. In such cases, the relevant public authority must consult with DPIRD Fisheries prior to granting or undertaking the approval.

One of the objectives of the Fisheries Management Act 1994 is to 'conserve key fish habitats'. DPIRD Fisheries has identified 'key fish habitat', those aquatic habitats that are important to the sustainability of the recreational and commercial fisheries, the maintenance of fish populations generally, and the survival and recovery of threatened aquatic species.

Key fish habitat includes all marine and estuarine habitats up to highest astronomical tide level (i.e. the level reached by 'king' tides), coastal wetlands and most permanent and semi-permanent freshwater habitats including rivers, creeks, lakes, lagoons, billabongs, weir pools and impoundments up to the top of the bank.

As a general principle, DPIRD Fisheries requires that proponents should, as a first priority, aim to avoid impacts upon key fish habitats. Where avoidance is impossible or impractical, proponents should then aim to minimise impacts. Any remaining impacts should then be offset with compensatory works. For example, proponents are encouraged to explore alternative viable strategies, such as consolidating multiple drainage networks.    

Purpose-built irrigation, agricultural or urban drains excluding artificially modified natural waterways, tidal inlets and creeks are generally not considered ‘key fish habitat’.  Key fish habitat mapping is available to view and download at the DPIRD Fisheries Spatial Data Portal. It is recommended that contact your local Fisheries Manager or email ahp.central@dpird.nsw.gov.au to discuss the proposal and confirm if your works are within key fish habitat.

Marine Parks

If your proposed works are located within a NSW Marine Park, it is recommended that you contact your local Marine Park Manager to discuss the proposal and confirm if a permit will be required under the Marine Estate Management Act 2014.

These permits are issued by DPIRD Fisheries.

• Apply for a DPIRD Fisheries permit
• Apply for a DPIRD Fisheries and Marine Parks permit
   

Your works may also trigger extra requirements if they impact sensitive cultural, heritage or biodiversity values.

You may need to:

• conduct searches or assessments
• apply for additional permits
• offset impacts to biodiversity or heritage values.

Key things to check:

• Lands reserved or acquired under the National Parks and Wildlife Act 1974: use the layer available on SEED at NSW National Parks and Wildlife Service (NPWS) All Managed Land Dataset.
• Aboriginal cultural heritage:  use the Aboriginal Heritage Information Management System (AHIMS) database and follow the due diligence guidelines under the National Parks and Wildlife Act 1974 here: AHIMS database
• Non-Aboriginal heritage:  check for sites listed under the Heritage Act 1977 in the State Heritage Register or find the council's LEP (often available online) and locate the heritage schedule (usually Schedule 5). Check the: State Heritage Register items.
• Threatened species or endangered ecological communities: under the Biodiversity Conservation Act 2016 if your works are in an area of that could have a significant impact on biodiversity, you might need to offset impacts from the developments. Check the Threatened Ecological Communities Greater Sydney web page.
• Matters of national environmental significance: You may need to submit a referral if your project potentially impacts any matters protected under the Environment Protection and Biodiversity Conservation Act 1999. Check the Protected Matters Search Tool.