The transitional provisions are complex and it is possible for conditions to continue to apply and be enforced even in circumstances where an activity is no longer regulated
Queensland's new environmental licensing regime, introduced by the Environmental Protection (Greentape Reduction) and Other Legislation Amendment Act 2012, commenced on 31 March.
From this date, all environmentally relevant activities (ERAs) in Queensland must now be authorised under an environmental authority (EA). An ERA may now relevantly be a Prescribed ERA (previously known as Chapter 4 activities) or a Resource Activity (previously known as Mining and Chapter 5A activities).
Last month we provided an overview of what the amendments mean for operators of ERAs, and those proposing to carry out ERAs in the future. In this article we look at how ERAs authorised under an EA or a development approval (DA) immediately prior to commencement are transitioned into the new regime, what this means for operators of those activities, and briefly look at how applications that were made, but not decided, prior to commencement are handled.
Removal of "low risk" ERAs and registration certificates
Under the new regime, land use approvals are separated from environmental licensing and a new single approval process applying to all ERAs has commenced.
It should be noted that 20 "low risk" ERA thresholds have now been removed, including abrasive blasting, motor vehicle workshops and the storage of class C1 or C2 combustible liquids (up to 500m3) among others. The removed ERAs are known as non-transitional ERAs and as the names suggests, are not transitioned under the new regime.
Another change that is introduced is the removal of the requirement for operators of ERAs to hold a registration certificate. Instead, the holder of an EA must now be a registered suitable operator before they can lawfully carry out the activities authorised under the EA.
The development approval process is now separate to the ERA approval process.
A development approval for an ERA that was current before commencement of the new regime is now deemed to be an EA. The conditions of the DA become the conditions of the EA.
Operators who hold a registration certificate for the activity, are now taken to be the holder of this deemed EA, and also deemed to be a registered suitable operator. A new EA document will not however issue until an application is made to amend or change the deemed EA, or an application is made to convert the conditions of the EA to standard conditions. This also applies to mobile and temporary ERAs.
The position in respect of non-transitional ERAs is different. The DA for non-transitional ERAs does not become a deemed EA, and remains a DA under the Sustainable Planning Act 2009 (SPA). The registration certificate for the activity is no longer required. No annual fee and annual return is required, however the conditions of the DA, which are attached to and continue to run with the land, remain enforceable under SPA. If the conditions relate only to the non-transitional ERA, the holder may wish to look at cancelling the DA.
Holders of a DA and registration certificate which cover both non-transitional ERAs and Prescribed ERAs will need to give careful consideration to which conditions continue as DA conditions for which no annual returns required, and which transition to become conditions of the EA.
The amendments have little impact on operators of existing mining and petroleum projects, who held a current EA at commencement. Holders of a current EA for mining or petroleum activities are now deemed to be the holder of an EA for a Resource Activity and deemed to be a registered suitable operator, without the need for any further action.
Again, a new EA document will not issue until the deemed EA is amended or an application is made to convert the conditions of the EA to the standard conditions.
Applications made but not decided
Where an application for a new EA (mining or petroleum activity) or DA for a chapter 4 activity was made but not decided on commencement, the application continues to be assessed and decided under the relevant assessment processes as if the new regime had not commenced.
However, once the new EA or DA is granted, that approval is deemed to be an EA under the new regime (except for non-transitional ERAs).
If an application to amend or change an EA was made but not decided at commencement, it will also continue to be assessed and decided as if the new regime had not commenced.
Interestingly, the transitional provisions are silent as to how an application that seeks a permissible change of a DA which was made but not decided before commencement is to be treated.
Specific issues for registration certificates
Although a registration certificate is no longer required, where an application was made for registration to carry out an ERA, but not decided before commencement, it continues to be assessed and determined as if the new regime did not exist. However, if granted the new regime applies and the applicant will become a registered suitable operator.
If immediately before commencement, an operator held a registration certificate for which a code of environmental compliance applied (for example, for ERA 16 extractive and screening activities), the registration certificate is taken to be the EA, and the holder is deemed to be the registered suitable operator without any further action required.
While for many operators the new licensing regime will mean business as usual, for others how an approval or application is transitioned will depend entirely on what type of approval (eg. EA or DA) or application existed immediately before commencement.
The transitional provisions are complex and it is possible for conditions to continue to apply and be enforced even in circumstances where an activity is no longer regulated. We recommend that all operators carefully review their approvals to ensure that compliance with conditions can continue to be achieved, and redundant conditions are identified and addressed appropriately.
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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.