Sarah Persijn, Partner; David Nicholls, Partner; James Ireland, Partner
In August last year, the Queensland Government announced its policy framework for protecting Queensland's best cropping land and managing a balance between our agricultural, resources and development industries for competing land use (for more background to this framework, please click here).
Most recently, the Department of Environment and Resource Management has released its draft State Planning Policy: Protection of Queensland's Strategic Cropping Land for public consultation. Submissions close on Friday 30 September 2011.
In this paper, Partner Sarah Persijn and Solicitor Alexander De Luca outline the key components of the draft State Planning Policy (SPP) and how it could affect existing land use in Queensland.
- The SPP will be the primary mechanism for protecting strategic cropping land for development made assessable under the Sustainable Planning Act 2009, local government planning schemes and regional plans. Proponents should conduct a review of the SPP to identify how it might impact on their projects.
- Proponents should conduct an audit of land to determine whether any proposed projects touch all or part of land that may be expected to be strategic cropping land. Trigger maps on the Department of Environment and Resource Management's website are only indicative (not determinative) of where strategic cropping land is expected to exist; on-the-ground assessment of land will determine the extent of strategic cropping land.
- For development proposed on identified strategic cropping land in either the Strategic Cropping Protection Areas or Strategic Cropping Management Areas, the tests prescribed for allowing most development to proceed will be exceptionally difficult to satisfy.
Implementing the State planning policy
The draft SPP is designed to put in place mechanisms for protecting and managing strategic cropping land. It will be implemented by:
- incorporating provisions consistent with the outcomes of the SPP into regional and local planning schemes when those documents are either prepared or amended; and
- assessing development applications on land to which the SPP applies against the SPP codes.
The SPP will only apply to development made assessable under the Sustainable Planning Act 2009. Please click here for information on the effect of strategic cropping land policy on mining exploration and resources development activities.
The SPP will not replace existing State Planning Policy 1/92: Development and the Conservation of Agricultural Land; it is envisioned the two policies will operate in combination to bolster the protection of Queensland's agricultural land.
Identifying strategic cropping land: mapping and proposed criteria
The process for identifying strategic cropping land is to be set out in proposed strategic cropping land legislation.
Trigger maps on the Department of Environment and Resource Management's website provide an indication of where strategic cropping land is expected to be identified. These maps, however, are not definitive, and it is the on-the-ground assessment of land against proposed criteria that will determine the extent of strategic cropping land.
There are eight criteria used to assess strategic cropping land, including slope, rockiness, soil depth, soil wetness and salinity.
These criteria are identified by:
- the landowner, who can choose to apply to have their land assessed; or
- the proponent (for example, the developer) who conducts an assessment of the land on which the project is situated, as part of the development assessment process.
An objective assessment is required to assess whether or not particular land falls into these categories (for example, a landowner and a developer cannot simply agree that particular land is not strategic cropping land).
The SPP identifies two administrative areas - Strategic Cropping Protection Areas and Strategic Cropping Management Areas.
Strategic Cropping Protection Areas will be given the highest level of protection under the SPP. Land within this area must not be permanently alienated by development, unless in limited exceptional circumstances, such as where the development presents a scarce or overwhelming significant opportunity to the State. This means that development within these areas will be severely restricted.
There are two Strategic Cropping Protection Areas proposed in Queensland - one in the Emerald-Springsure region and one in Southern Queensland, which includes the Darling Downs and Granite Belt. Together these areas total 4.78 million hectares.
Strategic Cropping Management Areas, on the other hand, are those areas which not only meet the strategic cropping land criteria, but also have a history of cropping. Generally there will need to be an overriding need for the development and no alternative site for development to proceed. It is proposed that these areas will be consistently managed to ensure that any impacts on strategic cropping land are either avoided or minimised.
Regional plans and local planning schemes
For the purposes of preparing or amending statutory regional plans and local government planning schemes, the SPP:
- requires that land identified as strategic cropping land should not be designated for land uses that will result in its 'permanent alienation'. This occurs when a use located on or near strategic cropping land will endure for 50 years or more, and prevents cropping during that time or in the future, such as:
- where a legal impediment may prevent the land from being used for cropping (eg covenants for carbon forests or voluntary declarations), permanent plantations, urban development or extraction activities enduring for longer than 50 years; or
- long-lasting impacts arising from new construction, subsidence, changes to the soil structure or contamination that prevent cropping;
- applies to all non-strategic cropping land within one kilometre of land identified as strategic cropping land (essentially to have a suitable buffer placed between the proposed development and the strategic cropping land to prevent land use conflict).
Development assessment triggers
The SPP applies to development proposed on land identified as strategic cropping land for:
- material change of use of premises on a lot, or reconfiguration of a lot, that is five hectares or greater in size;
- operational work that is excavating or filling an area of 150 m˛ or greater of land identified as strategic cropping land on a lot that is five hectares or greater in size.
The SPP does not apply to:
- land identified as strategic cropping land within the urban footprint of a statutory regional plan;
- land identified as strategic cropping land that is zoned for urban purposes within a planning scheme;
- development commitments made before the SPP commences;
- urban expansion in areas that contain strategic cropping land where 'exceptional circumstances' are demonstrated, or where the development would be considered exempt development (for example, in appropriate circumstances animal keeping, free range production, intensive horticulture and wineries may be considered exempt development).
The strategic cropping land legislation will set out criteria by which the Minister may declare a project to be a development designated as an 'exceptional circumstance'. That designation may be made if there is:
- no alternative land, other than strategic cropping land, on which development can be located (ownership of the land of the alternative site and business needs are not relevant considerations); and
- a significant community benefit (if the development presents a scarce or overwhelmingly significant opportunity of benefit to the State, which is more significant than the State's interest in protecting strategic cropping land resources from permanent alienation. This could include a social or community service, or an economic benefit to the State that overrides the need to protect strategic cropping land resources. However, the significance of the project cannot be based on economic benefits alone).
Development assessment codes
The SPP includes four development assessment codes, each with different rules for the type of impact the development will have on strategic cropping land (ie temporary or permanent) and the area in which the development is undertaken (ie Strategic Cropping Protection Areas or Strategic Cropping Management Areas).
For development proposed in Strategic Cropping Protection Areas, unless the development has been designated as an exceptional circumstance, development must be assessed against Code A first. A key element of Code A is identifying how to meet the requirement that the proposed development not contribute to the permanent alienation of strategic cropping land.
If this code cannot be met, the development should be assessed against Code B. A key element of Code B is where the development is identified as temporary development (ie development undertaken for a duration of less than 50 years) and the land can be restored back to strategic cropping land condition at the conclusion of the development. For example, certain outdoor sport and recreation developments (including driving ranges and football grounds but excluding swimming pools, golf courses and tennis courts), markets and parks may be considered temporary development.
Where development has been designated as an exceptional circumstance, it is assessed against Code C. A key element of Code C is to ensure that development that has been designated as an exceptional circumstance minimises and mitigates, to the maximum extent, any permanent alienation of strategic cropping land that will result from the development.
It is also proposed that an applicant will have the option of applying for exceptional circumstances designation before formally making any development application through use of section 271 of the Sustainable Planning Act 2009, which allows a concurrency agency to issue a concurrency agency response before any application is made to the assessment manager.
For development proposed in Strategic Cropping Management Areas, and where there is a demonstrated cropping history (ie land has been cropped at least three out of ten years between 1999 and 2010), development must be assessed against Code A first, and if this code cannot be met, the development should be assessed against Code B.
Where development cannot meet the requirements of either of these codes, it is assessed against Code D. A key element of Code D is that the development must demonstrate there is no alternative land, other than strategic cropping land, on which the development can be located, and there is an overriding need for the project. Where those requirements are met, the code requires that the development minimise and mitigate, to the maximum extent, its impacts on strategic cropping land.
For more information on the draft State Planning Policy: Protection of Queensland's Strategic Cropping Land, please contact HopgoodGanim's Planning and Development practice.
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