Australia: Regional Planning Interests Bill 2013

Last Updated: 9 December 2013
Article by Nick Thorne

The Regional Planning Interests Bill (Qld) (Bill) has been stated to be "an act to manage the impact of resource activities and other regulated activities on areas of the state that contribute, or are likely to contribute to Queensland's economic, social and environmental prosperity".

In essence, this purpose is achieved by requiring persons who intend to carry out a "resources activity" or a "regulated activity" in an "area of regional interest" to obtain and hold a "regional interests authority".

ACTIVITIES THAT WILL BE REGULATED

The Bill applies to "resource activities" authorised under resource Acts, being the Mineral Resources Act 1989, Petroleum and Gas (Production and Safety Act) 2004, Petroleum Act 1923, Greenhouse Gas Storage Act 2009, Geothermal Energy Act 2010 in addition to other regulated activities in an "area of regional interest".

A "resource activity" is an activity for which a resource authority is required to lawfully carry out and the Explanatory Notes to the Bill provides the following examples:

  • in the case of mining resources activities, exploration activities (drilling, excavation and sampling), road and track construction, production activities, processing activities and handling facilities; and
  • in the case of petroleum and gas resource activities, exploration activities (exploration wells, seismic surveys, drilling activities), testing for petroleum production, construction of pipelines, plant and equipment, above ground structures, processing plant production wells, gas processing facilities.

A "regulated activity" is an activity that has an impact on an area of regional interest and will be prescribed under the regulation for an area of regional interest. No regulations have yet been proposed so it is unclear what types of activities may fall within the scope of these "regulated activities".

ESTABLISHMENT OF AREAS OF REGIONAL INTEREST

Under the Bill, "areas of regional interest" are:

  • a priority agricultural area (being an area identified on a map in a regional plan or prescribed by regulation which meets the requirements set out in the Bill);
  • a priority living area (being an area identified on a map in a regional plan which meets the requirements set out in the Bill);
  • a strategic cropping area (being an area shown on the SCL trigger map which meets the requirements of the Bill); and
  • a strategic environmental area (being an area with strategic environmental value (as defined in section 9 of the Environmental Protection Act 1994) which is shown on a map in a regional plan or prescribed under regulation).

As strategic cropping areas are one of the 4 areas of regional interest, the Bill repeals the Strategic Cropping Land Act 2011.

Other than strategic cropping areas, areas of regional interest are generally defined in regional plans which are statutory instruments under the Sustainable Planning Act 2009 (Qld).

REGIONAL INTERESTS AUTHORITY

The Bill establishes the process for obtaining a regional interests authority which includes public notification of certain applications, the opportunity for persons to make submissions about the application, the referral of an application to an assessing agency and the decision by the chief executive as to whether to approve the application (and on what conditions). The Bill also allows certain persons to appeal a decision of the chief executive to grant or refuse a regional interests authority (or impose conditions on a regional interests authority) to the Planning and Environmental Court.

Significantly, in deciding an application for a regional interests authority, the chief executive must consider (among other things) any criteria for the decision prescribed under a regulation. Without the benefit of knowing what those criteria will be, it is difficult to determine how difficult it will be for applicants to secure a regional interests authority for their projects.

More significant is the requirement that where a local government is an assessing agency for a referrable application for a regional interests authority and has given a response to the application, the chief executive must give effect to any recommendations in the response. This likely means that any position that the local council puts forward in response to the application, for example if they are entirely opposed to the project regardless of its merits and benefits, will be incorporated into the authority (assuming it is not rejected because of those views). There does not appear to be any ability for the State to override the views of the local council regardless of the potential benefits to the State as a whole. That is, regional interests will take priority over State interests.

A regional interests authority is not a pre-requisite for the grant of any resources authority, but is a pre-requisite for the carrying out of activities in an area of regional interest. Accordingly, an application for a regional interests authority could be sought before, after or at the same time as other approvals for a resources project.

EXEMPT RESOURCE ACTIVITIES

A very narrow range of resource activities in particular areas of regional interest are exempt from the requirement that they be carried out under a regional interest authority. Very broadly, these include:

  • a resource activity being carried out in a priority agricultural area if the authority holder is not the owner of the land, has entered into a conduct and compensation agreement with the landowner and certain other requirements are met;
  • a resource activity for a priority agricultural area or a strategic cropping area, if the activity is being carried out for less than 12 months, the impact of the activity on the area is restored within that period and certain other requirements are met; and
  • a resource activity for an area of regional interest, if the activity is being carried out, or will be carried out, in accordance with a resources activity work plan that had already taken effect when the land was included in an area of regional interest (although there are certain carves outs from this exemption in the Bill).

This scope of this last category of exemption may mean that, if there is a resource tenement that already exists in an area of regional interest, then not all activities that could otherwise have been undertaken pursuant to that tenement can be carried out in the future. It may be that only a more limited range of activities, being those in an existing work plan, can be undertaken.

The Bill also contains a requirement that an authority holder for certain exempt resource activities gives notice to the chief executive of their intention to carry out the activity in the area.

RESTRICTIONS AND PENALTIES

A person must not carry out, or allow the carrying out of, a resource activity or regulated activity in an areas of regional interest unless the activity is an exempt resource activity or that person holds, or is acting under, a regional interests authority for the activity.

The maximum penalties for wilfully carrying out a resources activity in these circumstances is 6250 penalty units ($687,500) or 5 years imprisonment. The maximum penalty for the lesser offences that do not include an element of wilfulness is 4500 penalty units ($495,000).

THE ROAD AHEAD

The Bill has been referred to the State Development, Infrastructure and Industry Committee for consideration who must report to Parliament on the Bill by 17 March 2014.

The Bill also foreshadows that a significant degree of detail will be included in regulations for the Bill so the full impacts of the Bill may not be able to be assessed at this time. However, at present there is no indication as to whether, and if so when, draft regulations will be released for comment.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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