A new environmental licensing regime will be introduced in Queensland on 31 March 2013, which will have widespread implications for operators of environmentally relevant activities. Operators proposing to carry out new environmentally relevant activities from this date will need to apply for an environmental authority under the new regime.
On 31 March 2013, a new environmental licensing regime will be introduced in Queensland with the commencement of a range of legislative amendments that form part of the Queensland Government's Greentape Reduction project.
One of the primary objectives of these amendments is to introduce a single approvals process applying to all environmentally relevant activities, ranging from activities as diverse as poultry farming and chemical storage to large-scale coal and petroleum projects (ERAs).
While the bulk of these amendments were approved last July with the passing of the Environmental Protection (Greentape Reduction) and Other Legislation Amendment Act 2012 (Qld), important features of the new regime, such as the review of ERAs, were revealed on 1 March 2013 when amendments were made to the Environmental Protection Regulation 2008 (Qld).
In this article, we look at what these recent amendments mean for operators who are currently carrying out ERAs as well as those proposing to carry out ERAs in the near future.
What are the implications for existing activities?
From 31 March 2013, an environmental authority (EA) under the EP Act is required to carry out an ERA.
This will have little effect on the operators of existing mining and petroleum projects, who are already required to hold an EA. Proponents of these projects can simply continue to operate under their existing EAs, which will continue.1
For operators of ERAs currently known as chapter 4 activities (ie. those activities prescribed in Schedule 2 of the EP Regulation), the development conditions of the operator's development permit, together with the registration certificate, will become an EA.
The amended EP Regulation removes 20 "low risk" ERA thresholds, for example, concrete batching plants, motor vehicle workshops and the storage of class C1 or C2 combustible liquids (up to 500m3). These activities are referred to as non-transitional ERAs, and existing development permits and registration certificates for these activities are not intended to transition to EAs under the new regime. Rather, the Government has indicated that development permits for these activities will continue in effect under the Sustainable Planning Act 2009 (Qld).
However, the transitional provisions applying to these activities are complex and holders of such approvals should carefully consider whether, and in what form, their approvals continue and whether amendment or cancellation of these approvals should be considered.
While it will be a requirement that the holder of an EA must be a registered suitable operator, the holders of current EAs and registration certificates will be deemed to be suitable operators from 31 March 2013.
What are the implications for new activities?
Under the new regime, all new ERAs will need to be authorised by an EA.
One of the key features of the new regime is the introduction of a single approvals process applying to all ERAs (except applications relating to agricultural ERAs in the Great Barrier Reef catchments). This approvals process provides for three different application types: standard applications, variation applications and site specific applications.
For operators proposing to carry out "lower risk" ERAs for which eligibility criteria and standard conditions have been developed, a standard application can be made if prescribed eligibility criteria and standard conditions can be met. In these circumstances the operator will automatically receive the relevant standard conditions without further assessment. If an operator cannot meet all of the standard conditions, a variation application may be made to change some of the standard conditions.
However, eligibility criteria and standard conditions have only recently been identified with the approval of amendments to the EP Regulation:
- Existing codes of environmental compliance for current chapter 4 activities will be deemed to be eligibility criteria and standard conditions for those prescribed ERAs;
- Likewise, existing codes of environmental compliance for mining activities have been transitioned as standard conditions and the prescribed criteria for level 2 mining activities have essentially been preserved as the new eligibility criteria for mining activities.
While this provides some certainty to those proposing to carry out certain chapter 4 activities and mining activities, eligibility criteria and standard conditions are yet to be finalised for petroleum activities. Proponents of these projects should consult the Department's website, which contains information about how to view and make submissions about draft eligibility criteria and standard conditions for:
- petroleum exploration activities;
- petroleum pipeline activities; and
- petroleum survey activities.
For those proposing to carry out an ERA that is not subject to standard conditions or eligibility criteria, a site-specific application will be required. These applications will be subject to the highest level of assessment.
Another key feature of the new regime is that, when deciding an application for an EA, the administering authority will be required to consider the extent to which the application achieves the environmental objectives and performance outcomes that are identified in a new Schedule 5 of the EP Regulation.
Environmental objectives and performance outcomes have been developed for a range of environmental values (eg. air, water, wetlands and noise). In carrying out this assessment, the administering authority must consider whether the application achieves the relevant environmental objectives, either by meeting identified performance outcomes or by alternative measures.
While it is not intended that an application must be refused where the environmental objectives are not met, this is expected to be an important consideration in the assessment of applications and will have important implications for proponents when preparing applications.
With the imminent commencement of the new environmental licensing regime on 31 March 2013, it will be important that operators of existing and proposed ERAs understand how they will be affected by the changes.
For many operators, it may simply be a matter of continuing to operate under existing approvals. However, in other circumstances the position might not be so clear (eg. where operators are carrying out non-transitional ERAs). These matters require careful consideration by operators and specialist advice may be required.
Further, a new process for the approval of ERAs will be introduced. Operators proposing to carry out new ERAs from 31 March 2013 will need to consider whether eligibility criteria apply to their activities and, if so, whether they can comply with standard conditions.
1 Note however that the Greentape Reduction Act includes other amendments that may be relevant to existing activities. For example, holders of EAs for petroleum leases will be required to submit a plan of operations by 31 September 2013.
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.