Roy Lowe

Can you please be seated. Welcome to the second session entitled Legislative Changes Affecting the Development Process. Our first speaker today is Paul Garrett, he is currently a Director of Approvals in Legislation Division within Environment Australia. His current role in the division is the leader of the team that delivers education and training on the new environment legislation. I'll just ask Paul to come up.

Paul Garrett - Environment Australia

Thank you Roy it's a pleasure to be here, in fact I'm actually standing in for my boss, Gerard Early and Gerard was called to an emergency meeting with a group of aquaculturalists in North Queensland and I can tell you I'd rather be here with 300 Sydney surveyors than 10 aquaculturalists from Queensland to explain this Act.

What I'd like to do is outline the changes that have taken place in Commonwealth Environment legislation through the adoption of this new Act, the Environment Protection & Biodiversity Conservation Act. To give you an idea of what now doesn't exist in Commonwealth Environment law and the Acts that were replaced to talk about the main features and the processes of the Act, our experience that is Environment Australia's experience and I suppose the client's experience so far after nearly a year of operating under the new legislation and then bring it back to earth if you like with a look at some of the matters we've been dealing with in western Sydney.

I'm a bit croaky my plane was sitting on the tarmac at Canberra overnight and it was minus 5 and they put us on the plane which was one of these little 4 stroke jobs that they fly up between Canberra and Sydney and it was minus 5 in the plane and the pilot didn't turn up for another 15 minutes and there were people crying from cold so I'm a bit croaky.

Let me explain the first thing the Environment Protection and Biodiversity & Conservation Act does is repeal 5 pre-existing Acts of the Commonwealth. They go back to the Whitlam era, Fraser era, Environment Acts which was basically quite frankly a hotchpotch of legislation based on a whole range of constitutional powers which had been tested in the Courts now and again and some of those Acts have been brought in to deal with what was seen then as emergencies, for instance, south west Tasmania.

In effect they've all gone. And the key changes that came about when the Commonwealth amalgamated this legislation were effectively a centralisation of power with the Environment Minister for approvals over developments if you like or actions as they're called in the Act which may have significant environmental impacts and I'll explain how that power is circumscribed by the Act but no longer if you've ever had environment dealings with the Commonwealth in an impact assessment framework you basically dealt through someone other than the Environment Minister and the Environment Minister was an advisor to that person. That's all gone. The Environment Minister now has an approval power. And the approval power is, if you like, triggered by impacts on the environment a measure that is in the Act of how significant these things and what are they impacting upon, whereas previously for the Commonwealth Environment Minister to have a role in a development approval, there had to be another Commonwealth decision, it didn't matter what the environmental impacts were but there had to be another Commonwealth decision, the Commonwealth had to be funding something or approving something or having some power over a development apart from the Environment Minister to get involved which ended up with some very strange circumstances.

That direct power of the Environment Minister now places proponents, those people wishing to undertake a development in direct contact with the regulator, the Environment Minister the Act also brings together it integrates and brings together the Commonwealth biodiversity conservation role which extends quite broadly into management of certain national parks, protection and listing of endangered species, wildlife protection programs generally with its approach to development approval or impact assessment. It also brings into play a mature compliance and enforcement regime which wasn't in existence before.

Now what the Act does is in fact implement an agreement that was struck between heads of government in 1997. The Premiers and the Prime Minister got together and said essentially all this ad hoc environment decision making is not good, doesn't provide certainty it doesn't necessarily protect the environment all that much in some circumstances, so we need to define better where the Commonwealth should be acting in the environment and where the States should be essentially left alone.

So what they did was they agreed this thing which has got this fancy title of the 'Heads of Agreement on Commonwealth State Roles and Responsibilities for the Environment'. Essentially what that did its got a whole list of things that the States and the Commonwealth agreed that the Commonwealth should be involved in and of that big list which was about 34 matters, it includes things like genetically modified organisms and coastal policy and all that they decided that 6 of these matters were of central importance to the nation as a whole and that the Commonwealth have a legitimate regulatory role. This Act enshrines that regulatory role over these matters which are called matters of national environmental significance and they probably won't come as much of a surprise to people World Heritage properties, Ramsar Wetlands, that's Wetlands of International importance listed under the Ramsar Convention, Ramsar is currently a place in Iran if you're interested. Migratory species which are listed under various international agreements between Australia and Japan, China and the rest of the world which use Australia or Australian waters sometimes in their migratory paths. Threatened species in ecological communities, one thing the Act does is it really bumps up the protection offered by the Commonwealth to species that are listed under this Act as being threatened or endangered. It protects for the first time, in a comprehensive way, the Commonwealth Marine area that is all waters effectively from State jurisdiction out to the 300 mile limit or the Continental shelf. So you've got a fair wack of area protected by this. Nuclear actions which is a special one I think its there because nobody really wants to be responsible for regulating nuclear actions but the Commonwealth is. And the Act also provides for other matters to be added by regulation and the prescription there is that the Commonwealth and the States must consult with a view to agreement and there are some other matters on the table at the moment for discussion.

Possibilities, well there's more than a possibility, there is new heritage legislation. One of the Acts that wasn't repealed which you may be aware of was the Australian Heritage Commission Act where the Commonwealth since 1974 has had a role in regulating developments, not much of a role but a role in regulating developments, that affect matters on the register of the national estate. That Act is up for repeal to be replaced by heritage regime in keeping with this Act it would essentially be rolled in. and that's one of the things about this Act is that because it is essentially what we would call framework legislation things can be added to it to fit the scheme and I'll explain the scheme in a moment.

So that new legislation which is before I think its been through the Senate actually and is ready to have its second run through so it could be as early as a couple of weeks before we have heritage protection in the Act, protection of places of national heritage significance, not the Registrar of the National Estate but a separate list of places which are of true national significance, and protection of heritage places basically on Commonwealth land.

We're also, this is not a matter of national environmental significance, but we're also using the Act to tidy up a whole heap of other Acts such as the ones that regulate the import and export of wildlife. So if anybody here is a bird smuggler or whatever, they'd probably be interested in that bit. And there is of course consideration at a high level of a potential greenhouse trigger under the Act, that is another matter of national environmental significance which would be greenhouse gas emissions and there is a discussion paper and draft regulations available for people to look at.

Okay let's get to the nub of it, what requires approval? Essentially having established that list of matters of national environmental significance, the Act establishes prohibitions, or crimes, which is that any person having a significant impact or undertaking an action that is likely to have a significant impact on one of those matters is caught by this Act. They need approval essentially, not they can't the Act says you can't do it then it sets up a regime where the Environment Minister can give you approval to do it okay and you have to go through a process so you can't have a significant impact on one of those matters, you can't have a significant impact on the environment if the action is on Commonwealth land and you can't have a significant impact on the environment of Commonwealth land by taking an action anywhere. Okay that's relevant to western Sydney because the Commonwealth does own quite a lot of land.

Okay the action as I said its basically its meant to be something physical that people do to the environment and the Act is quite clear that we're not talking about actions of approval or funding by say your local government. The local government giving development approval is not an action under this Act, it's the thing undertaking the thing they're giving approval for the development is the action.

So, this is a development approval process, pure and simple. If the person believes or has reason to believe that they may be about to undertake an action or are planning to take an action that will or is likely to have a significant impact on the matter protected by this Act they can make a referral to the Environment Minister.

The purpose of the referral is to allow the Environment Minister to decide whether or not that impact is or is likely to be significant. Do you need an approval? So the referral is a question in the main, it is basically putting some information before the Environment Minister saying do I need approval to do this. If you do, the thing becomes known as a controlled action in the language of the Act and a controlled action cannot proceed until it has the Commonwealth Minister's approval. Assessment is required for all controlled actions and that assessment may be undertaken by the Commonwealth or the Commonwealth may accredit the State to undertake the assessment. Now 99 cases out of 100, and I'd say 100 out of 100 in NSW, the State will be assessing the project so its not a separate assessment you've got a referral to the Commonwealth an assessment in the middle which in the main will be the State assessment and an approval which would be a Commonwealth approval at the end.

Where that won't happen of course is where the State doesn't have jurisdiction. So out in the Commonwealth marine area the State doesn't have jurisdiction to conduct an assessment where the Commonwealth will do it. On Commonwealth land sometimes the Commonwealth will do it if the State doesn't deliver jurisdiction, that includes Commonwealth airports.

The Environment Minister at the end of that process decides whether or not to grant an approval and if approval is to be granted what conditions would attach. So there it is in a very sort of lopsided flow chart, we can start off here with the referral, the decision, that decision there is prescribed by the Act to take place within 20 working days of receiving the referral and if approval is not required, then that's it. In fact you've got a piece of paper that says you don't need Commonwealth approval which may be a valuable piece of paper some time in the future. If approval is required under the Act we have to decide whether we've already accredited the State to do that work at the moment the answer in NSW is no but I hazard a guess and say within 3 months we'll be going down this route entirely with NSW. If no, the proponent provides further information about the project the Commonwealth will decide how that project will be assessed and move through.

This decision here which is the decision on how it will be assessed is also a 20 day decision and from the end of assessment to the grant of approval is either 20 or 30 days depending on how the matter is assessed.

Just looking in a bit more detail at the referral process, the person submits the referral, if the person is not electing in and there is provision in the Act for somebody to say I need approval, rather than do I need approval, if they say do I need approval there is a compulsory public comment phase on the referral which is done by the Internet, that's a ten day period, and a further ten days for the Minister or his delegate to decide whether the impacts on that as protected by the Act is significant, if no, you go out, if yes you get into this which takes you through assessment there is also a third option which has been used which is a conditional no which is basically the Minister saying I don't believe you need approval because you've told me you're doing this in a certain way. And if you do it in that certain way you don't need approval.

To give you an example, the simplest example is that we get a lot of offshore seismic survey work referred under the Act, offshore seismic survey work off the east coast can disrupt whale migrations or there is a few that is likely to disrupt whale migrations but only if the whales are migrating at the time so if a proponent said to us we're going to undertake this only in these months which are outside the whale migration season they're likely to get a conditional no, because there's no other impacts that we're interested in.

Just to get onto some of those that are the more popular triggers, species in communities. The Act has various mechanisms apart from straight approval mechanisms for protecting species and ecological communities, those are the matters protected, they're protected entirely within a Commonwealth area and so that's all those things are protected absolutely and its hard to get a permit if you like to do those two, threaten those things in a Commonwealth area, the Minister maintains a register of critical habitat which is basically an information source and the Minister must also maintain a list of key threatening processes, these are basically information sources, they don't in themselves amend the triggers. So key threatening process is not automatically a matter which needs to be referred but it is something the Minister will take into account.

There are permitting provisions which relate to Commonwealth areas which basically any of those listed species are ecological communities, the Minister can only issue a permit under certain circumstances where he's basically convinced that there are no impacts.

The monitoring compliance and enforcement provisions of the Act are quite substantial, there are a full range of search and seizure powers, the Minister may direct environmental audits, impose conservation orders, importantly and I think this is probably the key take home message is the Act provides very wide standing for the community and the other aspect of that is that there is a waver in the Act of the damages claims on interim injunctions which means that people can take injunctions against a development under this Act without having to declare that they can pay the costs of any damages should they fail. That's the 'no undertakings'.

Okay the penalties are substantial at least from an Australian Commonwealth law perspective. These are corporate penalties, the penalties on individuals are somewhat lower but you're talking about criminal penalties of up to 7 years imprisonment for significantly impacting on a matter protected by the Act, also a whole range of penalties, executive officer liability basically the directors of companies are assumed to be responsible for the activities of those companies. Liability for damage, power to publicise which is often the big corporations are the worst of the penalties and that we get straight into the experience what has this actually meant.

This is our month by month referral process since the beginning of the Act about a year ago and as you can see we're taking, this is Australia wide by the way, about 40 referrals a month maximum and the green line is those where the decision has been taken whether or not it's a controlled action so the message from that is that a lot more people are referring than actually have controlled actions and I'll explain there's the figures this is just to the end of May we expect to get 300 this year. Referrals received, controlled actions 70. Not controlled actions, people who have just walked away from the process after 20 days with their piece of paper, 159 and we are still processing 39 of them. Looking at a State by State basis, you can see up the top NSW 59 referrals received from NSW to the end of May 12 of which were controlled actions, 39 not controlled actions and 3 had that manner specified provision. So NSW is currently winning. That's very interesting from our point of view from the bureaucrat's point of view is that Queensland has much higher proportion of controlled actions. Okay the referrals coming from Queensland about the same number as NSW but 22 as opposed to 12 controlled actions. That reflects primarily one thing, the Great Barrier Reef which is a World Heritage area covering so much of the coast of Queensland.

By sector, just moving through you can see that we get a fair spread…. mining fairly high in terms of referrals but not abnormally high in terms of the number of controlled actions. That partly reflects the, what I would call the discipline and organisation of the mining industry, I don't know how you find them but from our point of view it's a very easy industry to deal with they're extremely compliant and they just want to know and they're really interested in certainty so they're using the Act to gain certainty for their projects.

To get down to one you're probably particularly interested in and that is urban development where we have had a lot of proposals referred but only 7 out of 51 have been controlled actions in urban development. 3 of that 7 are in western Sydney - so primarily not controlled actions, the Act is not differently impacting upon urban development as opposed to other industries.

That's just showing you graphically those proportions, we're heading about 30% of our referrals coming in as controlled actions. These are the triggers that are causing the Commonwealth to become involved, World Heritage, Wetlands and you can see the threatened species and communities down there at 54 triggers. Okay, not much, bit of Commonwealth land, St Marys, few others in western Sydney hitting the Act, Commonwealth actions I think that's a defence project, two nuclear actions, okay let's have a look at the proposals that have triggered the big one, Cumberland Plain Woodland which is a listed threatened species in western Sydney. These proposals however many there are, 11 or so proposals, have come in where the question of impacts on Cumberland Plain Woodland was an issue in screening the referral. NCA is 'not controlled action', CA is 'controlled action'. The interesting one so essentially what happened was of these proposals 4 of them were called as controlled actions but just last week the Chifley College Campus at Mt Druitt came back with their preliminary information, the Minister took one look at it and said I don't want to see this anymore this is not a 'controlled action' so the decision has been reversed on Chifley College so effectively 3 of the 11 proposals that have been received are going through the assessment process at the moment.

These are some other Sydney projects that have been referred, not involving Cumberland Plain Woodland - all not controlled actions.

Okay looking at Cumberland Plain, the main assessment issues or the main screening issues that we've had to deal with have been to do with the size and condition, the quality, if you like of the habitat that's been threatened by the development if you like, the isolation and fragmentation which is a big issue with already fragmented communities. Whether or not there's a connectivity to areas so you may have an area which is of moderate quality but forms a corridor with other Cumberland Plain Woodland sites, major important ones which does raise issues for the species involved and you can see the others there.

Just to go over that apart from the pure approvals mechanism itself there are other provisions of the Act which do impact upon planning or development in relation to threatened species in communities, particularly I'd say point 3 which is coming up quite a bit as the management and disposal of Commonwealth land in this area; defence land and other land, the Act imposes a requirement that there be a covenant placed on that land if it is threatened species habitat and to protect that habitat. The minister may involve himself in recovery plans, registers, permits and to reinforce the widestanding provisions for the community to force the Minister to act under this Act.

Okay I've provided you with a fairly brief overview, what I wold do is encourage anybody who is likely to come into contact with the Act to use our website, (http://www.ea.gov.au) it does have not only text information on it and referral forms and advice to proponents but it actually has a lot of material about the actual projects that we're dealing with the Act is very transparent you can't go through this Act with a project and say we want you to keep it quiet, it doesn't work that way, things go up on the web the whole process is transparent.

There is also the GIS aspects of our website where all current data available to the Commonwealth and that includes State data has been mapped down to about a one kilometre group and you can go into this into what's called the interactive map, nail down your general area, put a point on the map and find out what threatened species are there, what Ramsar wetlands are there what world Heritage areas are located nearby. That's a starting point for people who may wish to find out whether this Act may apply to them. It doesn't mean just because you get a list of species that your project is automatically controlled by this actually, that's not the way it works but it does give you an idea of what the features of that area the Commonwealth is going to have an interest in.

It contains you can go in and look at the projects that are in you can search for different areas different characteristics of projects you can just look for land development you can just look for defence projects or you can just take them all in chronological order, by clicking on the project title you go to the full list of the process documents that are available and the actual decisions and notices that are available so you can click up and get this is Landcom's notice for one of the Cumberland Plain Woodland projects that we had, this is a decision that was made by the Minister in fact it was an approval without conditions for I think it was this project or another one of the Cumberland Plains projects so whatever is happening on that project its up there the day it happens.

To end on a downnote, the implications of non-compliance of the Act are fairly severe, or can be for developers in particular. I've mentioned the injunctive powers that are granted to community groups, there is no question of standing if a group has been involved essentially in environment and conservation work in the State they have standing in the Court to take an injunction and they don't have to give that guarantee of damages if they fail.

The Commonwealth itself is obviously the key prosecutor, if the Commonwealth believes that the Act has been breached it has the power to prosecute, we go into director liability, issues relating to projects which perhaps gone through the system been built or developed and without approval. The issue of non compliance follows that project for its life okay the if you're operating a project which would have required approval to build and operate its essentially an illegal development and the director liability issues a due diligence if you want to get rid of it issues of who is responsible in the future arise so that liability may be passed on to heirs and successors and importantly down here if somebody is found guilty of a under this Act of a civil or criminal penalties may apply from the Courts but the Minister then has the power to rectify the damage to order the developer to rectify the damage which if you like taken to the extreme means pull that building down replant the trees, regrade the area into its natural state, that may cost a developer far more than the damages they'd have to pay through the court or the penalty.

So its something that stays with people forever. On a happy note I'd like to end and I'm quite happy to take questions at the end.

Roy Lowe

Our next speaker is visiting Professor at the University of NSW. He is the Chair of the NSW Coastal Council and he's also the Chair of the Commonwealth State of Environment Committee preparing the report to the Federal Parliament on the State of Environment 2001. His name is Professor Bruce Thom and he will be talking about the proposed changes to the NSW Coastal Development legislation please welcome Professor.

Prof. Bruce Thom - Proposed Changes to NSW Coastal Development Legislation

Thank you Roy, thank you ladies and gentlemen. I particularly wish to thank the Cumberland Group for giving me the opportunity of speaking today. This week has been somewhat of an exciting week for those of us involved in coastal matters in NSW. The Premier and Deputy Premier have made some very significant announcements earlier in the week which received a fair bit of press and what I wish to speak about today is some of the matters leading up to those announcements. I will make some comments about them but, at the moment, we're in the process of fleshing out some of the details as a result of the governments decisions to take on board many of the recommendations that the Coastal Council has been pushing for now for some time which also takes on board the recommendations that came out of the Beach Management Review which the Coastal Council conducted for the Minister for Land & Water Conservation about a year ago and I know some of you as surveyors were involved with providing submissions and comments to us as part of that review, so I'll touch on some of those matters as well.

The Coastal Council role in providing advice to the government has been over the past two years a very broad one because the Council is charged under the Coastal Protection Act with providing advice and that advice has been both strategic as well as specific. The Minister has been giving the Coastal Council the responsibility of providing advice on all new LEPs that come into existence along the coast outside the greater metropolitan area to date and as a result we've been getting very heavily involved in matters associated with coastal development. On top of that the Minister has given me the opportunity on two occasions to appear as his agent in the Land & Environment Court to be the Ministers intervener to provide advice to the Court on matters associated with a particular development.

But I want to take one step back before I come to the specifics of the announcement this week and talk to you about the background behind the changes that are taking place.

The matters that really relate to the changes are not just specific to NSW they are matters that are affecting coastal management throughout the western world. In fact some of the points on this diagram are points that have emerged from the Rio Convention in 1992 and they essentially are being played out in various ways in different parts of the world, here in Australia; NSW, Victoria and Queensland are pushing very very hard to change the way, now in some respects the points made by Kerry this morning why change, are built into this diagram. Three of the points that Kerry made with respect to community involvement, with respect to strategic studies associated with respect to strategic involvement and also with respect to coordination which she put as the why change with respect to the Plan First. They're built into these broader principles of why there is change taking place because as I said throughout the western world.

One fact that she didn't include in that list of hers is global change. Its very very critical factor thats driving our interest in reforming coastal management in Australia and elsewhere are those matters that are arising out of the inter government panel on climatic change through the United nations where you have matters such as sea level change and of course climate change and global warming are being manifest in some of the problems associated with managing our coastal zone in the future.

The point on the right there the ICZM, another one of these wonderful acronynms we play with these days, Integrated Coastal Zone Management is of course an issue of coordination. Somewhere like any other State in Australia suffers, if you like, or bears the burden of being managed sectorially; we are managed in a very fragmented way and the way in which the Act of Parliament and the way in which our administrative structures are set out, the way in which budgets are organised, the way in which the Director General contracts are actually spelled out, places NSW very firmly in the sectoral model - not in the integrated model. Many recognise the difficulty of managing environmental matters and managing economic development and managing social matters in such a way. The concept of integrational coordination becomes a very, very important one but it creates a complexity and difficulties that Kerry touched on earlier.

The importance of the community, I won't go further into that because Kerry touched on that in detail, but increasingly community participation to have community participatory democracy working side by side with representative democracy becomes an important element and we're seeing more and more of that being manifest in so many different ways in our society.

On the left, we have the ecologically sustainable development principles. Kerry pushed the ecological sustainable down a little bit and talked more about sustainability, but ESD principles are now built into so many of our Acts including the Commonwealth Act as fundamental to the way in which environmental management is being conducted in Australia today. Consider those principles or implement those principles is fundamental to what we're trying to achieve overall.

And this raises some very interesting and important issues about property rights because the whole concept of ESD in some ways challenges the integrity, if you like, of the individual decision making at a property sale whether that's at a property sale of a house block or whether it's a property sale of hundreds of square kilometres as you can see in the range lands of Australia. So one of the things that's coming forward now as part of the work we're doing not only on the coast but also as part of the national SOE process is looking at how feasible the application of principles of ESD through the Act such as the Commonwealth one that Paul spoke of or through any of our State legislation how feasible that could be given the structure of property and property law that exists in Australia today. And that's a very difficult and challenging matter that we'll be working through as we try to come to grips with the sustainability of the Australian environment for the future.

The key principles of ecologically sustainable development as guides to decision making are listed there. Of course the first one is the conservation of biological diversity and of course the national move that was made by the Commonwealth government in 1999 with that Act and moves that have been made by all the States consistent with that particular matter and treat biological diversity in a very, very broad way not just species but also communities. The preservation of the preserved resources for the benefit of future generations is also fundamental, decision-making is not made now for just people today, it must be made with respect to what's going to happen to future generations. We wish to pass on conditions better than or at least equal to what we have inherited.

And that's a very difficult ask the farming communities in Australia today are not in that situation we're more likely to be passing on worse conditions for future generations unless something major takes place and of course the Commonwealth State and National Action Plan for Salinity which was announced last year by the Prime Minister is a manifestation of what we're trying to do at a national and State level to overcome the ravages of salinisation.

But on the coast we have similar problems as over time people have interfered say with the flow of sand or the movement of sand and as a result destroyed many areas and potentially destroying our beaches. Is this what we want to leave for future generations, destroyed beaches, or do we just want property with walls up against water and no beaches and of course the issue of the intergeneration equity becomes important there.

The polluter pays is another element. We have subsidised pollution in this country for over 100 years and of course we're now recognising that we can't continue to do that and in many ways regulations are being put in place to overcome that and the national SOE report is showing some very, very interesting developments particularly in improvement of air quality by imposing regulations on industry to ensure that the polluter is paying and benefiting the community in Australian society as a result of those regulations. And dealing cautiously with rifts the so called 'precautionary principle' comes in here as we try to grapple with uncertainty and try to measure with respect to developments try to make sure that we measure conditions as best we can and take decisions in relationship to those uncertainties.

Now when we're dealing with the NSW Coastal Policy which was released in 1997, we immediately come to grips with the problem that the NSW coast is a treasure, is something we respect, we want to keep, keep it with environmental values intact that applies to our estuaries, lakes as well as our beaches and our cliffs and our offshore waters, but we are confronted with one major problem and that is population growth. Continued population growth in NSW even if you shut down population growth at a national level the projections are with the baby boomers starting to move into the retirement and into coastal areas, the projections of population growth along the NSW coast are quite significant and its from border to border and so we're the only State in Australia that has to consider population growth on a massive scale from border to border in the next 10-20 years.

As a result of that we are asking our local government to plan for residential subdivision for rural residential occupancy to consider this in the light of the capacities and in light of the Coastal Policy. The Coastal Policy came out with a 117 direction from the Minister of the day saying you must consider all these various elements and many Councils along NSW coast have done a very, very good job. In doing that both the planning stage and at the assessment stage with development approval. But when you see that they're confronted with situations of population growth such as you have there on the mid north coast projecting out into the future in the case here on the mid north coast going from around 250,000 people to 350,000 in the next 10-20 years, now it's a boom for the development industry and it's a boom for surveyors and I mean you guys are made with that sort of activity going on in coastal NSW and its the case everywhere so the question arises though what will be the impact of that, where are these people going to live and what's going to be the impact of such development along NSW and how can we meet the economic and social needs of the people who are going to move into these areas and add to areas that are already there.

Some local Councils are already saying 'we've got enough, thank you very much, let's pull up the drawbridges, we don't want any more people we're not going to pay for any more infrastructure, so just go away' and a lot of community groups are saying the same thing 'we're quite happy thank you very much we don't want anymore Sydney-siders or Brisbanites or whatever coming to live with us'.

So can we handle it how can we handle that. well part of the problem of course is how to ensure that good policy is implemented, our Councils are assisted in the process of planning and ensure that developments that do take place and must take place occur without damaging the environmental value of that experience.

Now the Coastal Policy has a number of goals I won't go through them in any detail, they're all regarded of equal importance you can see there they're concerned as much with the use of resources the question of providing for economic opportunity as we are to protection of the environment they've all got to be balanced they've all got to be taken together as part of a whole of government exercise because the implementation of the Coastal Policy is not just something that belongs to DUAP or DLWC or local Councils it's a whole of government exercise and for that reason with the Minister for Urban Affairs & Planning, the Deputy Premier, now chairs a Cabinet sub committee on coastal management. We managed to convince him that was an important step the only State in Australia that has that and its through that Cabinet sub committee which has helped trigger off the package that was announced earlier this week.

Now that leads me to taking a consideration where the coastal zone is in NSW because what the government has done with the support of the opposition, this is a bipartisan matter, we have legislated for a special region of NSW the coastal zone and one of the announcements this week was to expand that zone to include the greater metropolitan region an inclusion that was made initially in 1997 but Premier Carr made it clear this week that the zone will include the greater metropolitan region.

It includes all our lakes and estuaries, it includes beaches, back one kilometre and around lakes and estuaries, one kilometre. Now within that zone we have, of course, our beach areas and one of the major triggers for the announcements that were made this week were concerns about the way individuals and Councils tried to protect their property. Here we have a conflict between the desire to protect private and public infrastructure and the desire to maintain and protect the beach amenities.

We had two planners earlier today from Byron I don't know if they're still in the audience, but the Byron Council over the years this goes back a bit before their time I think allowed the dumping of car bodies, along the beach at Byron, some hundreds of car bodies were dumped, they are still there. Two years ago 70 people were admitted to Byron Hospital having received cuts from walking on these car bodies that were dumped to protect the properties back there in storms of the 70s.

We do have situations where properties are at risk and they have of course the interest of individuals who own those properties are, of course, wanting to do something about it. I might say the NSW situation in particular is nothing like what we find the situation in the United States, in the next ten years in the US something like 10,000 properties will be lost in coastal USA, we're nothing like that.

The situation gets to the absurd when people see the need to protect their properties by such means, this is the Coffs Harbour area, for those of you know who Coffs, protect their properties by whatever means. One of the problems of course in doing this is what's called the 'end wall effect', you try to protect your property you put up your sand bags but of course waves don't just worry about that particular place wave action is set up all the various processes and operate around the sides and start to outflank, the old military jargon will come in here very, very powerfully and as a result you can see great damage done to your neighbours and of course you have the probably of legal action between neighbours as well as damage to the public beach amenities.

Now the issue for surveyors of course becomes very important one when we start looking at titles a lot of our land titles along coastal NSW is right-line or fixed title and that means there are parts of our beaches because of erosion along the coast, there are parts of our beaches which are privately owned, in fact in some places the property lines go way out into the surf and we have had examples in some parts where the Courts have ruled the private property extends into the bays and surf zones and in one case the Minister for Fisheries had no powers over that part of the waters of that bay or estuary as a result of those titles.

Now the other title we have, of course, is the ambulatory title which operates under the doctrine of accretion. Here we're confronted with the situation of the redetermination of title and then the defence of the new boundary as it occurs to seeward of the previous boundary. One of the matters that Mr Amery wanted the coastal Councils to investigate and reporton was this question of what happens when the boundary is redetermined, the property owner then finds that boundary starts to undergo erosion as a result of a natural flip flop between accretion and erosion and then decides to defend that boundary and that does two things it causes further erosion by having the waves come up against the wall and also it prevents public access.

We have a number of places during the 1999 election which started to get rather agitated about this matter and the government of the day decided to see what could be done and so one of the outcomes of this package that I'm referring to that the Premier announced this week will be amendments to the Coastal Protection Act which will look at the issues of property rights, boundary, public access and the opportunity to protect the beach amenity that we treasure so much in NSW.

So, in summary, the coastal package that was released this week which the Minister may speak about this evening I'm not sure, he may, has a number of components in it, one is to modify the Coastal Protection Act to make it clearer what can and can not be done in terms of protecting our properties. That will be integrated as part of the coastline management planning process which will enable decisions to be made about access about boundaries about development of sea walls and protective mechanisms as part of the whole of the beach system not as part of an individual property. That's the first thing.

The second announcement that was made relates to the extension of the coastal policy to the greater metropolitan area I've mentioned that. A further announcement is a recognition of local government needs help particularly with respect to assessing water quality. Water quality, particularly recreational water quality, is a burden now placed on local government and local government are conducting a survey we found that local governments do things in variously different ways, people are getting sick by swimming in our lakes and lagoons, some people have died, we need to improve the standard, we need to improve the protocols and we need to offer more help for local government in undertaking those tasks, so there's part of the package is to assist there.

Another part of the package is to provide for $8.7 million to undertake a comprehensive coastal assessment of coastal resources. This is modelled on the RFA (Regional Forest Agreement) process by which there will be a detailed study of all coastal land in NSW as the Minister said on radio the other day on a block by block what basis would be the most intensive study of land capability and land use ever undertaken in any coastal area anywhere in the world and from border to border and it will be providing advice and information that will be built into the regional strategies that Kerry talked about so part of the move towards developing the regional strategies and from that of course the local plans we will have the best information base that we can possibly have and we'll be making sure that is open and transparent and we'll be seeking a lot of advice and help from all professional groups in the development of that.

And the final part of the package, the one that you'll see most publicity, is the introduction of a State Environment Planning Policy to enable the Minister to be the consent authority for major new developments and developments in sensitive locations. Now the reason for this is that a number of Councils have not properly implemented the coast policy, they've considered it but not implemented it and the governments view is that's not good enough and that we need to have a stronger mechanism to ensure that the coastal policy has teeth, at the development approval stage and for that purpose the Minister is using a set as part of the process. However the SEPP should be replaced through time by the emergence of what happens under 'Plan First'. So the SEPP is really there as a mechanism to ensure that inappropriate development does not occur along the NSW coast, appropriate development of course with local government approvals will of course continue but there will be a mechanism to ensure that inappropriate development particularly major residential sub division, major tourist and developments in sensitive locations will be called in and be assessed by the Minister following appropriate public consultation process very similar to what has occurred. Thank you.

Roy Lowe Our last speaker for this session is Mark Hamstead, he's the Director of Access & Approvals with the Water Management Implementation Division with the Department of Land & Water Conservation. He's currently in a senior role in implementing the new Water Management Act and was previously part of the team which developed the government's White Paper on Water Management and the Water Management Bill and without further ado, I'll hand over to Mark.

Mark Hamstead - 'New Water Management Act 2000'

Thanks Roy and thanks everybody here. I hope the technology works here. I've a homefull of technology, I've got a couple of teenage sons who are into all this sort of stuff and we've got a networked house and all that sort of thing, but you can always tell when my second son is home because he's got a sub woofer hooked to his computer you know and you can always tell when he's fending off the next alien invasion because the whole house sort of shakes.

This little pen I was very impressed with too. To the earlier speakers, sorry. I was a bit distracted by trying to work out how to get the right bits to come out I was going to ask Roy if we could have a little instruction section later on how it actually works. Having said that I hope this technology works now and I hope you can understand what I'm talking about because what I want to do is quickly go over what's in the new Water Management Act and just quick run through what we're trying to achieve as well.

The Act as you know was passed in December and it replaces about 13 Acts. Again, like Paul was talking about with the Commonwealth, States also sought to consolidate our water legislation and I guess part of the governments plan was to pull together legislation that has been gradually built up over the last 110 odd years and get a common framework so that's what this Act has done.

It hasn't just come out of the blue, it was first initiated in 1995 when the government began this whole process of water reform and in fact it goes back a bit before that because of national COAG decisions on water reform which precursed all this work and as you can see up there, there was a whole series of discussion papers and consultation that went on in developing this Act including a large number of submissions there were some in total some 1200 submissions all together on the White Paper and then the Bill before it was debated in Parliament and it was a very heavily debated Bill. I'm told that it was the second longest debated Bill since State Parliament has been in existence and there were a lot of contentious issues debated in the Upper House, but it was passed in December and assented and now we're in the process of starting to make it work.

So all of it has commenced as of January except that big lump called 'Access, Licences & Approvals'. So that means that all current licences under Water Act and permits under Rivers & Foreshores Act and so on are still in place for the moment. The reason for that is, that with this whole new system of licence approvals which I'll talk about in a minute, its taking a little while to actually develop the regulations that specify the proposals to set our policies right to develop the underpinning systems, train our staff all these sort of things, lot of work to be done. So we've got a year and a half or so to get that all together before we switch off the old and turn on the new.

So as I said the Act it does amalgamate a lot of things and one of the things is does it make water management cover the whole of waters across the whole State so its rivers, aquafers, lakes, wetlands, flood plains, estuaries, and the coastal waters out to the 3 nautical mile limit, not that we're doing too much out there at the moment, but I'll put my hand up for the whale watching part of the Act when it comes up.

This is a diagram that tries to illustrate broadly conceptually what the Act is. Its got in the front of it a whole lot of you can see on the left, objects and principles. On the right hand side you can see the actual specific regulatory powers which is licences and approvals and the compliance powers and so on and so forth, and in the middle we've got this lump which is plans and policies. Now the old Water Act, for example, didn't have any of those two boxes on the left, all it had was a bunch of powers on the right hand side regulatory powers, the old water licences and so on so. This new Act has this whole structure where it actually sets up what we want to achieve on the left hand side and I'll go through those very briefly, it actually puts in the middle there a whole framework for actually developing plans, so water management is now a player in the whole planning process and I guess what government as a whole is trying to do is as Kerry talked about this morning is to pull this all together so we've got one combined whole State planning process.

Objects. The Act has this nice object which looks wonderful, and I'm sure we can all memorise it, providing for the protection conservation and ecologically sustainable development of water source in this State for the benefit of present and future generations. Bruce has talked about all that quite well so in addition to that broad object we have a whole lot of principles that are spelt out in the Act and as I said those principles as you saw in the diagram earlier, they are there to guide how we make up our plans and how we actually implement all these licences and approvals.

So, the Act says that we shall protect and restore our water sources, our flood plains and dependent eco-systems, the associated habitats, animals and plans, we will protect and restore water quality and features of indigenous cultural heritage and spiritual significance. Also we'll seek to minimise cumulative effects of licences approvals, that by the way is quite significant because under, for example, the Water Act everything is driven by a case by case basis and it was quite hard to move to the cumulative side.

Again maximise social and economic benefits, this is as again this comes up well, condition of environmental aspects, we are required to look at and maximise social and economic benefits, its kind of as Professor Thom was saying its about getting the balance in the end and again at the bottom there apply the principles of adaptive management and earlier speakers were talking about the fact that really we are now in an environment where we need to learn as we're going, that science is telling us new and more things all the time and we have to adapt to that so that's aimed to be built in as well.

Further water management principles to avoid and minimise land degradation and impacts on other water users in relation to water licences and so on. And why those principles are all important? Because the Act tells us as members of Department of Land & Water Conservation, in particular that its our duty whenever you exercise a function of the Act to bear in mind those principles and to make sure that we promote them so they're very important principles and I guess anybody can challenge when there are appeals against provisions both ways, we can be challenged against those principles and if we've made a decision anybody can say test us to see whether we've acted in accordance with those principles.

Three major outcomes I think that we expect from the Act: firstly is improving environmental health, secondly greater economic benefits for individuals and communities and thirdly shared government and community responsibility and I'll talk briefly about each of those 3 areas.

Firstly improved environmental health for our States waters. The Act actually specifies the environment water for the environment has a priority, as a matter of fact it says water to protect our sources and their dependent eco system has the first priority in water sharing. Many people here from rural areas or is it all metropolitan people? Put up your hand if you're from outside the metropolitan area. Good, quite a lot of people. Water licences and water sharing is a much bigger matter in the outside of the Sydney metropolitan area and outside of the area where its more urban. In rural areas, people are very much interested in water management in water licences and rights of the land holders to take water from their land to use it for their own purposes for stock and domestic purposes and for other uses.

What the Act says that in managing all these water across the State we need to protect our water sources and eco systems first, that planning process establishes that. As a matter of fact we're in the process now of devoting a lot of the Department's resources to water sharing plans across the whole State. So we have specified in the Act that by December 2001 we've got to complete these for the priority water sources of the State and then roll through the others subsequently.

Again regarding environment health, the Act also provides for things that protect our water sources. The first part I just talked about water sharing, the next part is about protecting water sources and particularly land based activities that affect our water sources. We have four statutory approvals that deal with that. The first one is the water use approval which relates to how water is used on the land whether it be irrigation or industry or whatever the use may be, and second one is water management work which is to do with pumps, pipes, channels, storages and things like that. Also by the way the water management work includes flood plain works, drainage works and other matters like that.

The third one is called a controlled activity, this is Parliamentary Councils new name for the permits under the Rivers & Foreshores Act which have been transferred into this Act they're called controlled activities hope you don't get mixed up with the Commonwealth Controlled Activities, but the fourth one is this new one called an Aqua for Interference Activity which is more to do with mines, large excavations and aquifers. I thought particularly controlled activity is something that you all the rivers and foreshores you all seem to love so much, I'll talk a little bit about those. The Act specifies controlled activity approvals relate to activities around water front land and the 40 metre zone is still there carried forward, it talks about anything to do with construction of building or carrying out of a work or removal or deposition of material or in fact it says any activity that affects quantity or flow of water source. So that's the broad definition. It also tells us that when issuing these approvals we've got to do so in a way which is consistent with those water management plans, the water management principles that I mentioned earlier, and this thing called a State Water Management Outcomes Plan which is being developed right now. I'll talk a bit more about that in a minute.

Finally it has these words in there any approval we issue should have adequate measures to ensure minimal harm to water source or dependent eco systems so I'm giving you all this as a background so you'll see the sort of legal requirements that our officers have to consider when we're moving into this whole thing, but we're bound by this legislation to consider all these matters.

So the assessment criteria, this is a similar diagram to the other one, is based on this. We have to consider the principles, we have to consider plans that are made, and at the moment there are no statutory water management plans under the Act because its just started but there will be over the next few years starting with water sharing plans these plans can also cover river front management and things like that.

We're proposing in the process of developing an assessment process which flags something along the lines of what was talked about this morning I think it was by Peter Fryar, where we have clearly identified different levels of assessment for different activities and different hazard areas. The assessment process also includes advertising in certain cases and not in others to be specified in regulation, the IDES provisions for those of you who are familiar with that, are carried over as well so that integrated development sort of is involved with ease and there is a right of appeal against any approval to the Land & Environment Court and that goes both ways both for the objector and the proponent.

Another interesting thing that was put in the Act is this ability to make water management plans that include these things called environmental protection provisions. These allow, for example, controlled activities outside the 40 metre zone to be controlled and it can identify any sort of activity or any development that's controlled outside the 40 metre zone in order to protect a water source and it can identify such activities where the Minister's concurrence to development is required, it can say the action plans are needed to minimise harm, or and so on and it says that whenever such provisions are included in the plan that such a plan is to be made as an REP. Now the courses under the current framework this will all be merged into the 'Plan First' when it happens.

I guess the ability to extend those controlled activities where appropriate through into other areas but to create these provisions there is a community process of a whole planning process which is set out in the Act which involves statutory consultation and public exhibition and so on before they're created.

Right, the second outcome from the Act: Greater economic benefits, this sort of shows how the Act structures water and water sharing in particular it sort of talks about the environment having a share of the water and it spells it out clearly that the environment has a right to a certain amount of water and so on and with extracted uses you can see there are basic water rights and licensed water rights. Basic water rights are those rights that a landholder has just by virtue of having land, it's the right to capture a certain amount of run-off from the rivers and certainly if you've got a river frontage to have that water as well. That contrasts to licensed water rights, which are generally to do with commercial activities, towns, irrigation and industry and so on. This is for extraction directly from water sources.

So these basic rights, there is a thing called a domestic and stock right this is for those of you who are familiar is a carry over of the old [Can't hear] under the Water Act which allows the landholder to take water without an access licence from a river if they've got a river frontage or from the ground-water underneath their property without the need for a licence. It says a works approval may be needed that applies generally to bores. Bores still need an approval.

There is also this thing called harvestable rights provisions retained. That's the farm dams policy for those of you who are familiar with that, that's the right to construct a certain amount of dams on your property and use it for any purpose. If anybody is interested I'll talk about that some other time.

We have the ability in certain situations only in very restricted situations to limit these basic water rights, Parliament was very strong in putting these and ensuring these basic water rights in the legislation and we only have very limited powers to fiddle with them and only for very very strong reasons.

It also has provisions relating to native title rights to water which are designed to fit in with Commonwealth Native Title legislation. The Act, in itself, doesn't create any native Title water rights, its just designed to fit in with any Native Title rights that are declared or made under Commonwealth legislation.

So, for those of you who have or know about water licences, part of the Commonwealth agenda was a separation of water from land and this Act achieves that. A water licence now is no longer tied to property its tied to water source, the rivers or the ground water. This shows how a current water licence under the old Act has all these things in it, the works the pumps the use conditions, the extraction conditions and the volumetric entitlement, thats all separated out into this access licence which is no longer tied to the land and the approvals which are related to the land, the use and the works approval. And that's part of what we'll be implementing over the next two years. So whereas in the past, for example, water licences have been built into the value of lands now that's being separated out and one of the things that has to be developed over the next couple of years is how we fix up the rateable structures of areas where properties are worth a million dollars, you take the licence off it and its worth $50,000 it has a pretty significant effect.

So this licensing system, as I say, it separates this licences can be held by anyone they don't have to be a landholder in the future to hold a licence, you can just hold a water licence and lease it to other people constantly, there is potential for sharing extraction components I won't talk much about that, they're generally longer terms than they were before previous licences had five year terms, they're now generally 15 years, and there is a priority for renewal. As I said, these new provisions won't commence until mid to late next year.

Town water entitlements this is generally country towns but it also relates to Sydney somewhat. But country towns in particular how their licence right which gives them the ability to have their constant growth and their licence for population but not for industry so in a lot of areas of States, for example, our water licences are embargoed which means you can't just go in there and licence on application you've got to actually go and buy from somebody else and transfer it. That applies for towns for new industries but it doesn't apply them for population growth.

One of the reasons one of the big pushes in Parliament was to give water users and licence holders security and this is delivered in the Act through these water sharing plans which are then have a fixed term of ten years - no more - no less, and they nail down for that ten year period this thing called a bulk access regime which is all the environmental flow rules on the river, all the rights of people to take water from the river and so on and the Minister can't tangle with those during the ten year period without there being compensation paid.

So, that's how the Act delivers security for users. In addition it enshrines this thing called water trading for those in areas for the western divide and particular water trading has been around for a while it means when we've got a situation where there are no water licences there's only one way to get licences and that's to buy it from somebody else so water trading is continued in the Act you can buy and sell water rights and its subject to transfer rules set by State principles and water management plans.

There is also to be a public register, public register of all access licences and approvals which means that anybody can look up and see who has got a water licence, what its entitlement is and where it is. It'll include details of ownership, what conditions are on the licence and so on and so forth. In addition to that anybody can register as a third party financial interest on that register for example in the future if I've got a water licence I'll be able to get a mortgage against it from St George Bank or something like that and they'll be able to register as a third party interest on that.

The third area is this shared government and community responsibility and the Act includes statutory planning process for the first time in water management. These plans that can cover any aspect of water management in any declared water area of the State and the Act actually spells out what should be in those different types of plans. Principles and core provisions. Plans can cover a range of matters including in addition to water sharing, it can cover river front management, it can cover flood plains, works it can cover range works and so on. They're all ten years and they're all publicly auditable and reviewable and in addition as these water management plans are generally made using water management committees but the Minister also has the ability to make a plan without a committee.

The State Water Management Outcomes Plan. That's a very important document, its been drafted now and should be out once its agreed to by Cabinet will be out for comment. This states for the whole State the five years desired outcomes to do with water management it doesn't just cover water sharing, it covers things like water front land and other matters in a very broad sense. So it's a very important document.

Again this relates back to the fact that I'm pointing out here that those plans I've been talking about essential in there to guiding have these regulatory powers are used. So once one of these water management plans are in place it guides how approvals are made, applications for controlled activities and any other matter. So they're a very important part of this whole process.

The Act actually sets up and sets out the statute water management committee for making water management plans. These have been, we've had committees going in many parts of the State to actually develop water management plans they're now statutory, it actually specifies what sort of membership should be on them, there would be a fair and balanced representation on those committees to work through the issues that are involved in the trade offs to do with water management.

It says these committees must consider social, environmental, cultural and economic impacts in working out the decisions. For example, I guess our main emphasis has been in water sharing and in particular places like the north coast, south coast and west, the big pressure has been to nail down river flow rules and groundwater rules and to nail down how much water is available for licences and its been a very heavily debated matter and there's been a lot of tension among the people involved in these river pumpers and so on because obviously it affects their livelihood, how much water they can get from year to year. So that's where the emphasis has been lately but I think there's a lot of pressure we're hearing from these committees and particularly on the coast to develop clear plans to do with waterfront land, to do with water quality and other matters like that. It's an area that's opening up and this strong community process with these committees with consultation and later sort of statutory public exhibition puts things on a different footing than it was before. It's no longer a case of the Minister makes decisions it now goes through this very open and transparent process.

So just to finish off where to from here. as I said water management plans are ongoing we're just starting to them, but you'll see a lot more of them, we have a number of regulations to develop and they'll also be publicly exhibited. Indeed I suggest it can take up to 5 years for all parts of this new Act to be implemented, it's a lot of change. For those of you that are interested in regulations there are a number of regulations already or about to be in place, but we have all the regulations to do with the new access licence and approvals system to be done and I expect them to be out next year.

Thank you very much.

Roy Lowe

Thank you. We'll have ten minutes of questions before we break for lunch. Has anybody got any questions, other than how to work the pens?

Greg Oxley

It's a question to Paul. The referral process is essentially a self assessment process so would that be right because its up to the applicant to determine whether the matter will be referred to Environment Australia. If that's the case then I take it that there's no obligation, an applicant could say to a local authority it might want to see Environment Australia's consent to the matter that they've assessed it themselves and don't believe it should be referred. Is there a conflict there?

Mark Hamstead

That's interesting because I put in a plug for some people I spoke to yesterday, University of Wollongong is actually contracted to the Local Government Association in NSW to run a series of courses there. I'll answer a few parts of that question if you like first by saying yes it is up to the applicant or the proponent to refer in the first instance. The Environment Minister does have calling powers under the Act so that if the matter came to the attention of the Environment Minister the Environment Minister has certain options in terms of calling that project in. Now they're not huge powers in the sense that you can force someone to make a referral but if they didn't essentially the spotlight is on them in terms of breaches.

Secondly I don't believe and I'm not a lawyer but I don't believe local government has an obligation or has a right if you like to modify any of their processes in order to accommodate the Commonwealth Act. However, there is an argument that local government has a due diligence obligation to ensure that developers in making a decision of whether to not refer are at least aware of their responsibilities under the Act and that's one of the issues that some of the academic lawyers are in fact looking into at the moment, is what is we're quite clear the local government has no obligation to and doesn't have a right to say force a developer to make a referral or to require a developer to make a referral for going through a local approval process, however local government probably does at least in NSW with the Land & Environment Court have a due diligence obligation to at least inform the developer that they may have an obligation under the Act. I don't know whether that answers the full question.

Michael Whelan

Follow up question to you, Mark. Can you envisage a situation where a determination has been made that is a controlled action and for example it's Defence land of which there is a significant amount of in NSW and that the Minister might grant consent to the State to actually deal with the issues under your Act I know you've got a statutory provision for the Commonwealth to deal with it but you would envisage as it goes on

Mark Hamstead

Yes I can and in fact things I haven't mentioned were that I mentioned the Heads of Agreement between the Premiers and the Prime Minster, one part of that which is not fully implemented is in fact an agreement to pursue greater, whatever that means, Commonwealth compliance with State Planning & Environment Corp and that's taken quite seriously and what we will see over time I believe is a move for Commonwealth agencies that, if not to come under the penalty provisions of State Environment Planning, to at least have an obligation to comply which will make it easier for Environment Australia whose preference is to accredit by the way as a policy preference is to see the maximum use of State assessment planning mechanisms to implement this Act. And that's certainly the Commonwealth governments position so yes in time I believe that will be normal.

Gordon Wren

Just to keep you in the hot-seat there Paul, from what you said to Greg then is the current situation arise, we have a development west of Sydney with some Cumberland Plain Woodland, the local government and developer says no that seems okay, development consent is issued and it comes to light that the amount of Cumberland Plain Woodland triggers so he has a consent he starts moving but then the Biodiversity Act can that happen

Mark Hamstead

Yes that can happen. The fact is that in a Federal system Commonwealth and State law act independently, Commonwealth effectively someone needs every approval that they need to actually do something okay the Commonwealth approval is completely independent has no regard for what other approvals, unless they happen to be in place before this Act came into force, so yeah its freestanding.

John Brock - Rose Consulting Group

I have a question for Mark. Keeping in mind the judgment handed down in the Court case this year at Duck River, Silverwater, do your offices have a greater ability to identify a river bank in a less arbitrary fashion than they did before.

Mark Hamstead

Gee thanks for that question I'm really looking forward to that John. I think the point of what actually constitutes a river and particularly I think you're looking right up the very top of rivers is a very vexing one and I think we're having another look at it. The Act is very broad in the words of its Act it sort of says anything where virtually any bit of water trickling down could be considered a river and I accept the fact there is a certain amount of possible interpretation in that. I think I could look to, for example if you're familiar with the Farm Dams policy there was an innovation in that where it all had to be done by self assessment, the farmer worked out for himself what his harvester right was, how big a dam he could dig and where he could put it, we had to work out well where can he put it, its to do with surface run off its not to do with collecting water from rivers but the farmer has got to work it out for himself, so with that we adopted a process which is basically a first and second stream water on topographic maps and if it was just one of these first and second order streams shown on topographic map that's okay you could build it there, if not if it was a lower order one then you couldn't build it there it was considered to be a river. That was for the purposes of the harvestable right. Now I'm not sure with regards to Rivers & Foreshores Act there was a lot of concern about applying the same principle there because of the number of cases where in topographic maps it didn't really give us the right sort of definition. I take your point I agree we were really worried about this sort of conflict in the definition and I think one of the things we are looking as to try and clarify that and I think Kerry's comments this morning about trying to pin that down in terms of regional strategies is right, we were thinking along the same direction. Its not an easy problem I mean if my hand is a river and this bit is the top, if you're talking about water quality down here, its these bits at the top that are going to give us the water quality and where we chop that off have a big effect on the water quality down there. So we're very cautionary about this because of the effect on the quality of the water in our rivers, but anyhow I think you're exactly right we need to define it we need to give some more clarity and we're working on that.

Steve Choy

Just a question for either Mark or Professor Thom. Is there any overlap of the responsibilities between the Water Management and Coastal Development Act for the protection of water quality that exists upstream of the boundaries of the coastal zone

Professor Thom

What the important thing there is that the Water Management Act will be providing the appropriate targets and so on for the flows and the nature of the water flowing into the estuaries. The question of the water quality and estuaries will be dealt with under that Act as Mark has outlined it, what will be done is through the plans that will be developed, the Estuary Management plans that are still part of the process under the Coastal Protection Act those plans will have to be consistent with what is coming out of the Water Management committees and the decisions that they take and the Ministers approvals.

Andrew Peacock - Bowdens

Mark, I've got a constructed wetland and OSD system which is about to be hopefully approved by Council. We've been raising the issue and talking preliminary with DLWC officers. Unfortunately they've now raised the issue that we may need to obtain a licence because they're saying we may be harvesting water by providing OSD in a constructed wetland on an urban development site. Is that a true indication of where DLWC is actually heading.

Mark Hamstead

Well no I think we're going to rob Peter to pay Paul so to speak and you know we'd have to look at the details of that but that's certainly not our objective to store one good process by another process. If you want to speak about that more in detail we can talk about it later.

Roy Lowe

With that I'll close this session, we're running a little bit behind we've got plenty of time now for lunch, but before we break and before you stand up, the Cumberland Group wish to thank our speakers for taking the time to be with us today. We appreciate the time and effort that they have taken to be here including sitting in the freezing inter-capital aircraft, we realise that they can only touch briefly on the topics in this forum but hopefully we will have gained sufficient information to know where, when that you need to further research the subjects of today's presentations. Therefore on behalf of the Cumberland Group and our major sponsor LegalCo I have a few tokens of our appreciation to hand over and I believe you would have all received the pen and ruler as well we have signed autographed copies of Australia's Military Map Makers, it's a history of the Australian survey cause which I hope you find interesting reading and a couple of LegalCo umbrellas.

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