Guideline for transport infrastructure pre-construction works

It provides guidance about the scheduled activities  ‘Railway activities – railway infrastructure construction’ and ‘Road construction’ under the Protection of the Environment Operations Act 1997 (POEO Act).

Proponents and contractors are responsible for determining their obligations under the POEO Act.

Legislative requirements

Scheduled development work

Section 48 and Schedule 1 of the POEO Act specify the scheduled activities that require an EPL before the activity is undertaken. This guideline relates to clauses 33 and 35 of Schedule 1.

Section 47 of the POEO Act states that works designed to enable scheduled activities to be undertaken require an EPL (scheduled development work).

Environment protection licences

An EPL can authorise either or both ‘scheduled development work’ and ‘scheduled activities’.

Once an EPL is in force for a premises, the EPA has discretion to regulate pollution resulting from the activities carried on, regardless of whether they are scheduled development work, scheduled activities or ancillary activities.

Works and activities undertaken by a public authority

The EPA is the appropriate regulatory authority for environmental matters arising from works by, or for a public authority, such as Transport for New South Wales, regardless of whether an EPL is held.

EPLs, planning approvals and consents 

The Environmental Planning and Assessment Act 1979 (EP&A Act) requires that the conditions of an EPL be substantially consistent with an approval or consent for state significant infrastructure or development.

Definitions of ‘low impact work’, ‘works’ and ‘construction’ contained in a planning consent or approval do not change the licensing requirements of the POEO Act. An EPL for scheduled development work may be required if the works enable scheduled activities on the premises. Determining what is scheduled development work depends on the characteristics of the premises and the scheduled activities undertaken.

Applying the legislative requirements

The purpose of an EPL for scheduled development work in transport infrastructure is to ensure that the environmental impacts are appropriately regulated throughout the life of the construction activity.

While many pre-construction works are likely to meet the definition of scheduled development work, an EPL may not always be necessary. The EPA has discretion to determine the appropriate regulatory action, in line with our Regulatory Policy, if proponents or contractors have not obtained an EPL for scheduled development work. 

When applying this guideline, proponents and contractors must decide themselves whether and when to apply for an EPL and must be able to justify their decision. They may need to seek their own legal advice. The EPA will determine if there has been a breach of the POEO Act for work undertaken without an EPL, where one is required.

Work in the context of Section 47 of the POEO Act

The purpose of the POEO Act licensing framework is to minimise and manage the pollution impacts caused by certain activities. The purpose of regulating scheduled development work is to ensure that the impacts of a scheduled activity are appropriately managed through all the phases of work.

Through licensing of scheduled development work, the EPA can manage the impacts of scheduled activities in the early stages of a project.

The EPA considers that activities usually meet the definition of ‘scheduled development work’ in the context of Section 47 of the POEO Act if they are physical works on a premises which cause physical change to the environment, particularly if they have the potential to cause land, water, air or noise pollution. 

In considering the need for an EPL for scheduled development work, the proponent should consider the extent to which works will cause changes to the land and the extent of potential pollution impacts that may result from the carrying out of that work.

Impacts of works and the nature of a site

Impacts to the community and the environment, existing contamination at a site, and nature of pre-construction works are also relevant to decisions about applying for an EPL.

Pre-construction works that may require a licence

Examples include

• Annoying, high impact or noisy out-of-hours works
• Vegetation clearing (not including minor clearing to enable survey works)
• Construction of access roads
• Ground levelling and excavation using plant
• Significant stockpiling of materials
• Permanent drainage works
• Installation of sediment basins, ponds or other devices that require excavation
• Installation of site compound buildings requiring excavation and/or vegetation clearing

Pre-construction works that may not require a licence

Examples include

• Investigative work undertaken as part of an environmental assessment or development approval process for a project
• Surveying
• Geotechnical works, excluding those in waterways
• Service relocations not requiring significant vegetation clearing
• Demolition of buildings
• Installation of fencing
• Installation of temporary erosion and sediment controls, including basins, ponds and/or other devices that do not require excavation
• Installation of temporary site compound buildings not requiring excavation or vegetation clearing

Glossary

Construction activities: Activities and works that meet the definition of a relevant scheduled activity and that require an EPL under section 48 of the POEO Act. Also known as construction works or main construction works.

Construction of access roads: includes clearing, grading of previously cleared or newly cleared areas, laying and compacting of road base or other consolidating material or construction of associated drainage

Geotechnical works: includes physical methods (such as cores and test pits) and geophysical methods.

Hardstand: hard surfaced area paved or stabilised using concrete, asphalt or other material suitable for vehicular traffic.

Permanent drainage works: includes pit and pipe installation, permanent stormwater works and permanent diversion and cut off drains to prevent water entering construction sites and compounds.

Pre-construction activities: activities and works undertaken to prepare for the ‘main’ construction works. Also known as enabling works, early works, low impact works, investigative works and site establishment works.

Road base: crushed rock containing coarse and fine aggregate to allow compaction. It can be made from recycled or new materials.

Service relocations: includes minor excavation, disconnection and reconnection to move services such as telephone, cable, electricity, water and sewerage out of an area to be excavated for construction.

Surveying: measuring and analysing the land surface prior to construction. Surveying may include the installation of pegs and markers.