Water Supply (Critical Needs) Act 2019

This Act is the Water Supply (Critical Needs) Act 2019.

This Act commences on the date of assent to this Act.

In this Act—

critical town or locality water supply—see section 5.

development and the carrying out of development have the same meanings as they have in the Environmental Planning and Assessment Act 1979.

function includes a power, authority or duty, and exercise a function includes perform a duty.

modification includes addition, exception, omission or substitution.

Planning Secretary has the same meaning as in the Environmental Planning and Assessment Act 1979.

public authority has the same meaning as in the Environmental Planning and Assessment Act 1979.

Note.

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

Notes included in this Act do not form part of this Act.

This Act does not apply to the following—

land within a special area within the Sydney catchment area within the meaning of the Water NSW Act 2014,

land within the Sydney metropolitan area.

In this section—

Sydney metropolitan area means the area constituted by the local government areas of Bayside, City of Blacktown, Burwood, Camden, City of Campbelltown, Canada Bay, Canterbury-Bankstown, Cumberland, City of Fairfield, Georges River, Hornsby, Hunter’s Hill, Inner West, Ku-ring-gai, Lane Cove, City of Liverpool, Mosman, North Sydney, Northern Beaches, City of Parramatta, City of Penrith, City of Randwick, City of Ryde, Strathfield, Sutherland Shire, City of Sydney, The Hills Shire, Waverley, City of Willoughby and Woollahra.

The following are declared to be critical town or locality water supplies—

the water supply for the following towns or localities—

the locality that includes Dubbo, Wellington, Warren, Nyngan and Cobar,

the locality that includes Tamworth, Moonbi and Kootingal,

the locality that includes Orange, Spring Hill, Lucknow and Molong and the area serviced by the Central Tablelands Water County Council water supply system,

the locality that includes Cobar and Nyngan,

the locality that includes Walgett,

the locality that includes Bourke,

the locality that includes Bourke and the Darling River between Bourke and its junction with the Murray River,

the locality that includes Warren,

any water supply for a town or locality described in Schedule 1.

The regulations may amend Schedule 1 to insert, alter or omit a description of a town or locality.

Before making a recommendation to the Governor for the making of a regulation of a kind referred to in subsection (2), the Minister is required to obtain the concurrence of the Minister administering the Biodiversity Conservation Act 2016.

For the purposes of this Part, development control legislation—

means provisions of or made under the Environmental Planning and Assessment Act 1979 or any other Act (other than the Water Management Act 2000) that prohibit the carrying out of development or that require the approval of any person or body before development is carried out, and

extends to the provisions of other Acts (other than the Water Management Act 2000) referred to in section 5.23 of the Environmental Planning and Assessment Act 1979 (Approvals etc legislation that does not apply) relating to requirements for authorisations or to the making or giving of orders or notices.

In subsection (1)—

approval includes permit, licence, consent or other authority (however described).

prohibit includes prohibit temporarily or in part, or authorise a person or body to prohibit.

Development described in Schedule 2 carried out by or on behalf of a public authority is exempt from development control legislation if the carrying out of the development is the subject of an authorisation of the Minister under this Part.

The regulations may amend Schedule 2 to insert, alter or omit a description of development for the purposes of a critical town or locality water supply.

Before making a recommendation to the Governor for the making of a regulation of a kind referred to in subsection (2), the Minister is required to—

consult with the following Ministers—

the Minister administering the Environmental Planning and Assessment Act 1979,

the Minister administering the Fisheries Management Act 1994,

the Minister administering the Heritage Act 1977, and

obtain the concurrence of the Minister administering the Biodiversity Conservation Act 2016.

A regulation of a kind referred to in subsection (2) may not amend Schedule 2 to insert or alter a description of development that relates to the following—

the construction of a new dam or new weir (other than a temporary weir),

the increase in storage capacity of an existing dam.

The repeal of a regulation made under this section does not affect the continuation of anything validly done before that repeal.

This section applies to the carrying out of development described in Schedule 2.

The public authority proposing to carry out the development (or a person on behalf of the authority) may apply to the Planning Secretary for an authorisation to carry out the development.

The application must be in writing and include the following information—

a description of the proposed development,

a description of the land on which the proposed development is to be carried out,

the date when any construction for the proposed development is to be commenced and the anticipated date of completion of the construction,

the measures proposed to be taken to avoid, minimise or offset the environmental or other impacts of the proposed development,

any other information relating to the proposed development that the regulations, or the Planning Secretary, requires to be included.

The Planning Secretary is to—

consult with other relevant public authorities regarding the proposed authorisation, and

have regard to any issues raised by those authorities in those consultations, and

forward the application, and a report on those consultations, to the Minister.

The Minister may authorise a specified public authority to carry out the development subject to any conditions set out or referred to in the authorisation.

Before giving an authorisation under this section, the Minister is required to obtain the concurrence of the Minister administering the Biodiversity Conservation Act 2016.

The Minister may, by notice in writing to the public authority carrying out the development, amend or revoke the conditions of an authorisation before the development has been carried out.

The conditions of an authorisation to carry out development may (without limitation) include conditions relating to any of the following—

the time within which the development must be completed by,

requiring specified environmental assessment to be undertaken before the development is permitted to be carried out,

hours and other conditions of operation of the carrying out of the development,

reporting requirements,

public notification requirements in relation to the carrying out of the development.

An authorisation to carry out development for the purposes of a critical town or locality water supply is taken to be a State significant infrastructure approval under Division 5.2 of the Environmental Planning and Assessment Act 1979 (or an amendment to a State significant infrastructure approval) for the purposes of—

Part 2 of the Biodiversity Conservation Act 2016 with respect to threatened species, and

Part 7A of the Fisheries Management Act 1994, and

the Local Land Services Act 2013, and

any other Act (or provision of any other Act) prescribed by the regulations for the purposes of this subsection.

The Minister may, if the Minister is of the opinion that a public authority is failing to comply with the conditions of an authorisation, direct the authority to comply with those conditions.

Before giving a direction under subsection (10), the Minister is required to obtain the concurrence of the Minister responsible for the public authority concerned.

The object of this section is to clarify the operation of the Environmental Planning and Assessment Act 1979 in relation to development that is the subject of an authorisation of the Minister under this Part (subject to the terms of the authorisation).

An environmental planning instrument under that Act cannot prohibit, require development consent for or otherwise restrict the carrying out of the development.

Note.

The exclusion of the need for development consent also excludes any requirement for the payment of development contributions under that Act.

Division 5.1 of that Act does not apply in respect of the carrying out of the development.

A development control order does not have effect to the extent that it prevents or interferes with the carrying out of the development.

Subsection (2) applies to an environmental planning instrument made before or after the commencement of this section.

Note.

See section 20 (Regulations), which authorises regulations to restore the operation of the Environmental Planning and Assessment Act 1979 in relation to development carried out under this Act.

The Minister may provide a copy of an authorisation under this Part to the local council of the local government area in which any development to which the authorisation relates is to be carried out.

In that case, a planning certificate under section 10.7 of the Environmental Planning and Assessment Act 1979 in relation to any land concerned is to include advice about the authorisation.

The regulations may make provision for or with respect to the disapplication or modification of the provisions of the Water Management Act 2000, or the regulations or any instrument made under that Act, in relation to critical town or locality water supplies.

Without limiting subsection (1), the regulations under this section modifying the operation of provisions of the Water Management Act 2000 may provide that—

the Minister administering that Act has a function of directing a specified public authority in relation to critical town or locality water supplies, and

a specified public authority must comply with that direction.

The Minister is not to recommend the making of a regulation under this section unless—

if the Minister is not the Minister administering the Biodiversity Conservation Act 2016—the Minister certifies that the regulation is made with the concurrence of that Minister, and

if the Minister is not the Minister administering the Water Management Act 2000—the Minister certifies that the regulation is made with the concurrence of that Minister.

A public authority has the following obligations in respect of development for the purposes of a critical town or locality water supply—

to co-operate with the public authority responsible for the development for the purposes of a critical town or locality water supply (responsible authority) in the exercise of the public authority’s functions, including complying with any reasonable request of the responsible authority for information to enable the responsible authority to exercise its functions,

to notify the responsible authority of any proposed exercise of the public authority’s functions that may impact adversely on the exercise of the responsible authority’s functions.