2020 – Implications of NSW Dams Safety Regulation 2019 on dam safety risk management

Mark Pearse, John Pisaniello, Sam Banzi, Peter Hill

A completely new dam safety regulation framework was introduced into NSW in November 2019. The new framework addresses all aspects of dam safety management. The implications for dam owners in respect of risk reduction measures (RRMs) that will need to be undertaken have been the matter of debate and are the focus of this paper. The Dams Safety Regulation 2019 requires that dam owners eliminate or reduce the risk posed by their dams but “only so far as is reasonably practicable” (SFAIRP). This is a change from the previous Dams Safety Committee requirement that risks should be reduced as low as reasonably practicable (ALARP). The previous guidance around the extent and timing of risk reduction has been removed and dam owners are now required to determine what is ‘reasonably practicable’. These changes were anticipated to save hundreds of millions of dollars from the reduced cost of risk reduction measures across the state of NSW. These savings appear unlikely to materialise given that dam owners are likely to be highly cognisant of the need to meet the common law expectation that RRMs should be implemented unless the costs associated with the RRMs are grossly disproportionate to the benefits gained. The key changes in the new regulatory framework are identified along with the legal and financial implications in regard to RRMs followed by next steps that should be considered by dam owners in NSW. Many of the implications are applicable to other dam owners who operate under common law (including all states of Australia and New Zealand).