Posted on September 29, 2015 by

Amendments to flood work approvals regime

Amendments were made to the Water Act 1912 (Water Act), Water Management Act 2000 (WM Act) and Water Management (General) Regulation 2011 (WM Regulation)  on 18 September 2015 in relation to the regime for flood work approvals. Of primary interest to councils is the introduction of exemptions for councils from the requirement for flood work approvals in certain circumstances. 

What is the effect of the amendments?

The amendments relate to ‘flood work’ which is defined in the WM Act to mean a work such as a barrage, causeway, cutting or embankment:

  • that is situated within a floodplain or in the vicinity of a river, estuary or lake, or
  • that is of such a size or configuration that, regardless of the purpose for which it is constructed or used, 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 in times of flood.

In summary, the amendments:

  • repeal the provisions under the Water Act relating to flood works approvals and consolidate the flood works approval regime under the WM Act,
  • introduce savings and transitional provisions in this regard,
  • introduce exemptions from the requirement to obtain flood work approvals in certain circumstances.

In what circumstances may a council be exempt from flood work approval?

The WM Regulation is amended so that a local council is exempt from the requirement in section 91D of the WM Act to obtain flood work approval if the relevant work is carried out under a development consent within the meaning  of the Environmental Planning and Assessment Act 1979, or an approval under part 5 of that Act and:

  • the work is situated in or on a ‘managed designated high risk flood area’, or
  • the work is situated in or on any other place, other than an ‘unmanaged designated high risk flood area’.

Whether land is a ‘managed designated high risk flood area’ or an ‘unmanaged designated high risk flood area’ depends on whether:

  • the land is a recognised floodway that is designated by a floodplain management plan adopted under s166A of the Water Act (which is taken to be a Minister’s plan made under the WM Act), or
  • the land is within certain management zones of a floodplain under a management plan under the WM Act, or
  • a floodplain risk management plan or floodplain risk management study for that land has been developed, implemented and notified in accordance with the Floodplain Development Manual 2005 (or any replacement manual) and  s733 of the Local Government Act 1993.

A council, in so far as it is a roads authority under the Roads Act 1993 for a public road is also exempt from obtaining flood work approval if it constructs or uses a flood work for the purposes of the public road.