Within 40 Metres Of The Water: The NSW Approval Your DA Does Not Include

BUILDING NEAR WATER? CHECK THE EXTRA APPROVAL.NSW: test controlled-activity requirements before site works.

You find a site with water at the end of the street and a view that will sell the product. The planner likes the yield, the engineer says the stormwater needs an outlet, and the design puts a retaining structure along the top of the bank to gain a building platform.

In New South Wales that retaining structure, and possibly a good deal more, is a controlled activity on waterfront land. It needs its own approval, and your development consent does not give it to you.

The deal question: is any of your work in or on waterfront land?

The controlled activity approvals page answers the boundary question directly. It states that waterfront land includes the bed of rivers, lakes, or estuaries, and land on each side within 40 metres of a riverbank.

The page then lists what a controlled activity includes: erecting a building; carrying out works including laying pipes and cables in a watercourse, and constructing bridges, roads, control measures and sea walls; removing material from waterfront land including vegetation, rocks, sand and gravel; depositing material on waterfront land including gravel or fill; any activity that affects the quantity or flow of water in a water source; and vegetation management.

Read that against a normal subdivision or duplex job near water. A stormwater outlet, a driveway crossing, a retaining wall, an access track, a landscaping strip along the bank and even a building envelope can each sit inside the list.

Why the 40 metres is a survey problem, not a plan problem

The compiled Act text defines waterfront land to include the bed of a river, lake or estuary and land within the prescribed distance inland of the mean high water mark, where the prescribed distance is 40 metres unless the regulations prescribe a lesser distance generally or for a particular location or class of locations.

Every word in that definition is a measurement instruction. The bed, the bank and the mean high water mark are physical features, and the line is drawn from them. A boundary drawn on a subdivision plan, or an assumption that the fence marks the top of the bank, does not answer the question. On a site where the design depends on whether a building envelope falls inside the 40 metres, the answer has to come from a survey.

The trap: the approval that arrives as someone else's referral

This is what catches developers who have done everything else correctly. The departmental page states that most controlled activities also need approval from a local council, and that if this is the case you must lodge what is known as an integrated development application with that council, which is then referred to the department. It also records that all applications for controlled activity approvals are lodged and managed in the NSW Planning Portal.

So the approval is not part of your consent. It is a separate consent that is triggered by the referral of your development application. If your planner does not identify the integrated development issue at lodgement, you can find out about the water approval after the assessment has already been underway, and the referral becomes a stop on the clock rather than a line in your programme.

The department's own waterfront land page describes using the e-tool to understand at pre-development application stage whether the development is considered integrated development and therefore should be referred by the local council to the department, and to provide evidence to a council about the need to refer your application. That is the sequencing instruction: settle the question before lodgement.

What the application needs, and why it is a design document

The controlled activity approvals page sets out the documents a controlled activity approval application requires. They include site plans with demarcation of waterfront land, designated riparian corridors and any encroachments and offsets; a vegetation management plan; drainage and stream works plans; detailed stormwater outlet designs; and costing of works and security bonds where specified.

Those are not forms. They are design outputs, and each one changes as the layout changes. A site plan that demarcates waterfront land cannot be produced until the bank and the 40 metre line are surveyed. A detailed stormwater outlet design cannot be produced until the outlet location is fixed. Vegetation management along a riparian corridor cannot be written until the corridor is mapped.

That means the water approval work sits inside your design process, not after it, and it should be priced as a design-stage cost rather than an approval-stage fee.

Exemptions are real, mapped and not self-certifying

There is a genuine exemption pathway, and it is worth checking early. The controlled activity approval exemptions page states that not all activities on waterfront land need a controlled activity approval, that there are several exemptions under the Water Management (General) Regulation 2025, and that the controlled activity exemptions e-tool is the way to check whether an exemption applies to your activity.

It lists mapped exempt waterfront land areas, including the Botany Bay and Georges River area, the Brisbane Water area, the Hunter River area, the Lake Macquarie area, the Lake Mulwala area and the Port Hacking area, defined under section 64 and Schedule 4 of the Regulation.

Two cautions come with the exemption. The page states that even where an activity is exempt you may still need to obtain other approvals required under other legislation, and that you should contact the relevant local council. It also records that the e-tool report cannot be used as an approval to undertake work on waterfront land or as evidence of compliance with the Water Management Act 2000.

The waterfront land page carries the same disclaimer for the waterfront land e-tool: it applies only to controlled activities on waterfront land and its results cannot be used as an approval or as evidence of compliance. Keep the results — the exemptions page recommends a copy in case the regulator requests evidence — but treat them as a screening finding, not a permission.

The site test a student would run, in order

1. Identify the water source and have the bank and mean high water mark surveyed, then set out the waterfront land line on a plan.
2. Overlay the design and mark every proposed work inside that line: buildings, retaining structures, outlets, crossings, tracks, pipes, vegetation removal and landscaping.
3. Run the exemptions e-tool and the waterfront land e-tool, and keep the results in the project file.
4. Establish the council's referral practice and confirm whether the proposal is integrated development before lodgement.
5. Commission the required plans — site plans demarcating waterfront land, the vegetation management plan, drainage and stream works plans and stormwater outlet designs — as design deliverables.
6. Price the approval, the security bond where specified, the survey and the specialist reports into the feasibility.
7. Test the design without the intrusion. Can the layout avoid the waterfront land line entirely, and what does that cost in lots or in dwelling yield?

What this does to the offer

Run the feasibility twice: the layout that uses the waterfront land for a building platform or an easy outlet, and a layout that keeps every work outside the 40 metre line. If the second version holds most of the yield, keeping out of the waterfront land is usually the better commercial decision, because it removes a separate approval, a referral, survey work, specialist reports, a possible security bond and the risk that a condition reshapes your design late.

Where the intrusion is unavoidable, the water approval belongs on your critical path with the survey and the specialist reports in front of it, and your programme and price should show that.

Practical next steps

You are not expected to solve this yourself. A surveyor or civil engineer establishes the bank, the mean high water mark, the waterfront land boundary and the drainage, outlet and access design. A town planner confirms whether the proposal is integrated development and how the council refers it. An environmental or water consultant prepares the vegetation management plan, the stream works plans and the stormwater outlet designs the application requires. Confirm the site's waterfront land status, the current regulation and the current exemption position before you fix a design, a programme or a price.

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