The question of how to resolve land-use competition between the agricultural, resource and development sectors is currently generating substantial public debate across the country, resulting in a range of different policy responses.
In Queensland, the Department of Environment and Resource Management ("DERM") released its Strategic Cropping Land ("SCL") framework almost a year ago. While no draft legislation or State Planning Policy has yet been released, recent announcements have included important information on how the framework is expected to look when it is implemented later this year.
"Protecting Queensland's strategic cropping land: a policy framework", released in August 2010, outlines the Queensland Government's approach to protecting strategic cropping land ("SCL"). The Government's policy is essentially that planning powers should be used to protect SCL from development that leads to its permanent alienation or diminished productivity.
Legislative and planning instruments to implement the policy are currently on the drawing board, being:
- new SCL legislation, to address how SCL is identified and provide a process for assessing and deciding whether development can proceed on SCL;
- amendments to existing resources legislation (including the Mineral Resources Act 1989 and Petroleum and Gas (Production and Safety) Act 2004) to ensure that the new SCL legislation is considered in tenement assessment; and
- a new State Planning Policy to guide planning and regulate the impacts of development under the Sustainable Planning Act 2009.
State-wide and regional draft trigger maps have already been released.
Criteria for identifying strategic cropping land
The draft trigger maps are only a starting point for identifying SCL. Whether land qualifies as SCL will ultimately be determined by on-ground assessment against the SCL criteria.
In April 2011, draft SCL criteria were released by the Government, addressing matters such as the slope of the land, rockiness of the soil, soil depth and salinity. The criteria also set minimum size limits which must be met in order for land to qualify as SCL. The sizes vary depending on the location of the land, ranging from a minimum of 10 hectares with a width of 30 metres to a minimum of 100 hectares with a width of 80 metres.
DERM is currently finalising guidelines that will provide information for applying the SCL criteria at a property level, including the process for on-ground assessments.
Strategic Cropping Protection Areas and Strategic Cropping Management Areas
The Government has also released draft trigger maps which identify all SCL within either "Strategic Cropping Protection Areas" or "Strategic Cropping Management Areas".
Strategic Cropping Protection Areas
Strategic Cropping Protection Areas are areas that are considered to be under intense and imminent development pressure, containing large aggregations of the State's best cropping land.
SCL located within Strategic Cropping Protection Areas will be afforded the highest protection. If land within a Strategic Cropping Protection Area meets the SCL criteria it cannot be permanently alienated by development, except in exceptional circumstances.
To be considered an exceptional circumstance, a proponent must demonstrate that:
for resource development, the resource is not found at an alternative site in Queensland that is not on SCL and for development assessed under the Sustainable Planning Act 2009, the development is unable to occur other than on SCL; and
the development provides a significant community benefit to the State.
Strategic Cropping Protection Areas have been identified in Central Queensland and in Southern Queensland on the Darling Downs, comprising approximately 2.8% of the State's land mass.
Strategic Cropping Management Areas
If a proponent can demonstrate that SCL located within a Strategic Cropping Management Area does not have a history of cropping then the policy will not apply to it.
Otherwise, development in those areas will be assessed to ensure that SCL is avoided to the maximum extent possible and, where SCL cannot be avoided, the impacts are minimised.
Mitigation requirements will be specified under the new legislation to be introduced later this year.
Proposed resource development projects (including coal, mineral, gas and petroleum projects) that achieved certain milestones in the approvals process as at 31 May 2011 will be the subject of transitional arrangements in the SCL legislation. The transitional arrangements will apply in the following circumstances:
- for projects that require or have voluntarily undertaken an Environmental Impact Statement, the project has finalised Terms of Reference by 31 May 2011, and if a mining lease application, there is also a certificate of application under section 252 of the Mineral Resources Act 1989;
- for projects not requiring an EIS, there is a draft Environmental Authority under the Environmental Protection Act 1994 issued by 31 May 2011; and
- for projects that relate to expansion of existing mines under the Mineral Resources Act 1989, there are existing exploration permits or mineral development licences held by the existing mine owner and contiguous with the existing production tenure as at 23 August 2010 when the SCL framework was released and a Mining Lease certificate of application is obtained by August 2012.
It is intended that these transitional projects will be allowed to proceed on SCL, provided they avoid, minimise and mitigate their impact on SCL. Where unavoidable and minimised impacts on SCL are permanent, a transitional project will not be stopped from proceeding but will be required to provide for mitigation of the loss of the productive capacity of the impacted SCL.
Projects eligible under the transitional arrangements that obtained final environmental approvals or conditions by 31 May 2011 will not need to meet any further conditions.
Projects not eligible under the transitional arrangements have been put on notice that they will be required to comply with the full requirements of the SCL legislation.
Who bears the burden of conducting SCL assessments and what does this mean?
The onus is on a proponent to conduct a SCL assessment as the first step in the development application process. It is intended that an application fee will be payable to DERM, who will determine whether or not the land is SCL based on the assessment.
For development within a Strategic Cropping Management Area, a proponent will be responsible for preparing an application containing detailed information about the history of cropping on the land. A fee will be payable to DERM who will determine whether the land has a history of cropping based on the information. It is unclear whether it will always be necessary to conduct both a SCL assessment and history of cropping assessment in relation to development within a Strategic Cropping Management Area.
Under the framework landowners will also be able to "opt in" to the process by applying to DERM to have their land approved as SCL or as having had a history of cropping.
Once a determination has been made, it is the intention that SCL assessments will be noted on the land title and the trigger maps amended accordingly. At this stage it is unclear what, if any, appeal rights will be available in respect of determinations by DERM on these matters.
The Government is expected to shortly release for public comment its draft State Planning Policy on SCL, which will address how development approvals, planning schemes and regional plans under the Sustainable Planning Act 2009 will address SCL.
We can also expect DERM to shortly release SCL guidelines, which will provide information on how to apply the SCL criteria at a property level, including the process for on-ground assessments.
The new SCL legislation, including amendments to the existing resources legislation, is expected to be introduced into Parliament in late 2011.
What about rural land that is not used for cropping?
Although the SCL framework addresses the competing interests between the cropping, development and resources sectors, it does not address the issue of land-use competition involving agricultural land used for grazing. The Government has indicated that existing State Planning Policy 1/92 Development and the Conservation of Agricultural Land, which applies to both cropping and grazing land, will continue to apply in relation to grazing land.
The Queensland Government has also foreshadowed its intention to release a policy to address the impact of resource development encroaching on urban sites in rural areas.
For further information, please contact Xavier McMahon.
Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.