Queensland's planning and infrastructure regimes will undergo major changes when the Economic Development Bill 2012 is passed. Proponents will need to understand the impact of these changes to the assessment process on existing and proposed developments.
A new development framework under the Minister for Economic Development Queensland
Both the Industrial Development Act and Urban Land Development Authority (ULDA) Act will be repealed and a new Minister with broad powers, the Minister for Economic Development Queensland (MEDQ), established.
A corporation sole constituted by the MEDQ will deal commercially in land and infrastructure. The aim is to encourage economic and community development in Queensland. As part of its broad functions under the new Act, the MEDQ will have the power to sell surplus land at market value and to implement policy priorities.
The administration of the urban development areas (renamed priority development areas) will also be under the MEDQ. Existing urban development areas are taken to be priority development areas under the Bill, and new priority development areas can be declared (including provisional priority areas) by regulation.
Many of the substantive provisions of the ULDA Act will be transferred to the MEDQ, with existing ULDA Act approvals and Development Schemes to be transitioned to the new regime.
The new Commonwealth Games Infrastructure Authority established by the Bill will assist the MEDQ specifically in relation to the planning and development of the Gold Coast 2018 Commonwealth Games Village and other venues. The Commonwealth Games Infrastructure Authority will be required to report to the MEDQ through the Economic Development Board to oversee its performance.
The Economic Development Board
A new body, the Economic Development Board, will advise and make recommendations to the MEDQ about how it can give effect to the Act's main purpose. It will also monitor and report on the performance of the MEDQ's functions. The MEDQ can delegate its functions to the Board.
The Board will be made up of State Government representatives and up to three members who have expertise in local government, planning, law, economics, accounting, the development industry or environmental management.
Local communities including local government will have input into the development process through local representative committees who are able to advise the Board and MEDQ on community needs and impact of development.
"Significant projects" become "coordinated projects", with a new process for applying and approving them
"Significant projects" under the State Development and Public Works Organisation Act 1971 will now be "coordinated projects", as according to the explanatory notes this will "remove any perception that they have an approval or level of State support and adopt more robust criteria for consideration of which projects should be coordinated projects".
The criteria for declaring a "coordinated project" are proposed to be changed. The Coordinator-General must have regard, and may give the weight the Coordinator-General considers appropriate, to things such as:
- relevant State policies and Government priorities;
- a pre-feasibility assessment of the project, including how it satisfies an identified need or demand;
- the capacity of the proponent to undertake and complete the EIS for the project.
The Coordinator-General need not consider an application unless satisfied that the project has at least one or more of the following:
- complex approval requirements;
- strategic significance to a locality, region or the State, including for the infrastructure, economic and social benefits, capital investment or employment opportunities it may provide;
- significant environmental effects;
- significant infrastructure requirements.
What must an application for a coordinated project address?
An application for a coordinated project must address the matters identified above, and must provide separate statements:
- detailing the proponent's financial and technical capability to complete an Environmental Impact Statement (EIS) for the project and given any supplementary information that may be requested by the Coordinator-General; and
- assessing the technical and commercial feasibility of the project.
The Coordinator-General may refuse to receive or process an application if he or she is not satisfied it includes enough information about the project, although the level of detail required is still unclear.
Other changes to the process for a coordinated project
The Coordinator-General will have a specific power to cancel a declaration for a coordinated project before the Coordinator-General's report is completed if:
- there is a written request from the proponent;
- the Coordinator-General considers that the proponent no longer has the capability to undertake the EIS;
- the Coordinator-General considers it is in the public interest to cancel the declaration;
- the proponent changes, or fails to notify a change in proponent; or
- the project substantially changes the project from that described in the initial advice statement.
There will be a formal process for notifying the Coordinator-General of a change of proponent, the proponent's contact details or, if a corporation, registered office; this notice must be given within 21 days after the change.
Public notification of the terms of reference for an EIS will be discretionary, although the criteria guiding this discretion are not set out in the Bill.
Time periods will also change: the default time to prepare an EIS is reduced from two years to 18 months from the final terms of reference (subject to extension). Likewise, the standard period within which the Coordinator-General's evaluation report lapses drops from four to three years (subject to some exceptions).
If the Coordinator-General asks the proponent for supplementary information about the EIS, there is a process in which the Coordinator-General can specify when and how the information is to be given, and the public notification requirements for the information.
The Coordinator-General can also require a proponent to apply for an assessment of a project change. Again, the criteria for this request are not set out in the Bill, but there is a process for the proponent to provide written views about whether the proposed assessment should be made.
Finally, an existing significant project will be taken to be a coordinated project on commencement. The existing timeframes for submission of an EIS and lapsing of the Coordinator-General's report will still apply to those projects.
Infrastructure Facilities of Significance to become private infrastructure facilities
Infrastructure Facilities of Significance (IFS) will be renamed "Private Infrastructure Facilities" (PIF), and the provisions dealing with determining if a process is an IFS, and compulsory acquisition for an IFS, will be reformed and consolidated into one part of the SDPWO Act.
How does a project get declared a "private infrastructure facility"?
The criteria and process for declaration of a PIF are not the same as for an IFS.
An application for declaration of a PIF can only be made for a coordinated project where the Coordinator-General has finalised the evaluation report for the EIS, and that report has not lapsed.
The Coordinator-General can make guidelines about the PIF application and negotiation process.
The application for a PIF must address:
- the economic and social significance and economic or social benefits to Australia, the State or the region;
- the financial and technical capability of the proponent;
- that the project satisfies an identified need or demand for the services;
- that the project will be completed in a timely way;
- that the land on which the facility is proposed has been sufficiently identified; and
- that the project is not inconsistent with State policies.
If declared, the PIF generally expires two years after the gazette notice notifying the approval is published, but can be extended by the Coordinator-General.
An existing request for an IFS or an approved IFS will not be affected by the amendments.
Compulsory acquisition of land for private infrastructure facilities
In addition, for the compulsory acquisition of land, the application for a PIF must state:
- that the proponent has negotiated, in accordance with the guidelines, for at least four months with each registered owner of the land and has taken reasonable steps to purchase the land by agreement;
- if native title exists in relation to the land, that the proponent has taken reasonable steps to enter into an indigenous land use agreement for the land.
After a PIF is declared, but before land for the PIF is compulsorily acquired, the proponent must negotiate one final time with the registered owner and make a final unconditional offer to purchase in accordance with the guidelines, giving required information about the project. The Coordinator-General must be given evidence of compliance with this requirement.
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.