Australia: Resource activities and Town Planning - the Regional Planning Interests Bill 2013

HG Alert: 10 January 2013
Last Updated: 13 January 2014
Article by David Nicholls and Olivia Williamson

The Regional Planning Interests Bill 2013 (Qld) (Bill) was introduced to the Queensland Parliament on 20 November 2013. Written submissions on the Bill close at 5pm on 17 January 2014.

HopgoodGanim's Resources and Energy team published a timely Alert on 22 November 2013 setting out six important things you need to know about the Bill.

Here, HopgoodGanim's Planning and Environment team explain how the Bill will cause some Queensland resource activities to be regulated under planning laws.

Take Home Points

  • The Bill creates planning regulation parallel to the Sustainable Planning Act 2009 (SPA) by requiring some resource activities and other regulated activities to be assessed against regional plans. This is achieved through a new type of development approval to be known as a "regional interests authority".
  • While the Bill's process for obtaining a regional interests authority has some similarities to the SPA, there are notable differences, particularly the Bill's submissions and appeal processes.
  • The Bill confers an appeal right on "affected land owners". There are issues as to how the Bill's provisions for establishing standing as an "affected land owner" will operate legally and practically.
  • The Planning and Environment Court is given jurisdiction to hear appeals about regional interests decisions. However, the Bill does not extend the Court's declaratory powers to matters done, or to be done, under the Bill, or to the construction of the Bill.

The Bill's purpose

The Bill has been introduced to ensure that recent regional plans policies directed at resolving land use conflict are applied to activities in areas of the State identified as contributing to Queensland's economic, social and environmental prosperity.

Resource activities are not presently regulated by the SPA and consequently are not assessed against statutory regional plans, even though associated development applications to facilitate an approved resource activity (for example, to establish workers accommodation) are assessed against relevant planning instruments including regional plans.

The Bill creates planning regulation parallel to the SPA by requiring some resource activities and other regulated activities to be assessed against regional plans. This will be achieved through a new type of development approval to be known as a "regional interests authority".

Similarities to the SPA

Part 3 of the Bill sets up a process for obtaining a regional interests authority that is similar to development assessment under the SPA, including:

  • a requirement for some applications to undergo a public notification process; and
  • the ability for regional interests authority applications to be referred to an assessing agency, who may recommend conditions, recommend refusal of all or part of the application, provide advice about the application or advise that the assessing agency has no requirements or advice relating to the application. (The Explanatory Notes to the Bill identify local governments as an example of an additional assessor that may be prescribed under regulations for that purpose.)

Another similarity can be found in Part 5 of the Bill, which provides for appeals to the Planning and Environment Court (P & E Court) in respect of decisions to grant, refuse or impose a condition on a regional interests authority.

Differences from the SPA

Departures from the approach taken under the SPA include:

  • The Bill does not set a timeframe for making a decision with respect to a regional interests authority application. Consequently, "deemed refusal" appeal rights cannot arise. Remedies for failure to decide an application therefore reside in the Judicial Review Act 1991.
  • The chief executive of the Department administering the Bill will assess a regional interests authority application and can issue a "requirement notice" at any time before deciding the application. This can be contrasted with the strict time limits for information requests under the SPA. A requirement notice can be issued for various matters, such as requiring an applicant to provide further information or an independent report by an appropriately qualified person verifying all or any information included in the application.
  • A right to appeal a regional interests authority decision is not automatically conferred on those who make a submission with respect to a regional interests authority application that is publicly notified. The Bill's appeal process is discussed in further detail below.

Submissions and Appeal rights

Under the SPA, making a properly made submission with respect to a notifiable development application secures appeal rights. This is not the case with the Bill. The right of appeal in respect of a regional interests decision is limited to the applicant, the owner of the land (if the applicant is not the owner of the land) or an "affected land owner" (who may or may not have made a submission).

"Affected land owner" is defined in clause 68 of the Bill to mean:

"Affected land owner" for a regional interests decision means a person who owns land (affected land) that may be adversely affected by the resource activity or regulated activity because of –
  1. The proximity of the affected land to the land the subject of the decision; and
  2. The impact the activity may have on an area of regional interest."

Proximity and impact are stated to be the cause of the adverse affect on the owners land. The criteria are stated conjunctively and objectively and require analysis to determine how the definition will operate legally and practically.

To understand how the definition will operate it has to be broken down into its component parts. The definition of "affected land owner" is referable to a decision about a "regional interests authority". Applications are only required under the Bill for a resource or regulated activity that is to be carried out in an "area of regional interest".

Those areas are defined by reference to maps in regional plans, or in the case of strategic cropping land, the strategic cropping land map referenced in clause 10 of the Bill. The resource activity or regulated activity must happen within one of the mapped areas and must also have an affect on and a relationship with a mapped area of the type described in Clause 28 of the Bill.

For example, in the case of a priority agricultural area there must be an affect of the type described in Clause 28(a) and it must relate to a priority agricultural land use, a water source or infrastructure for supplying water.

While the impact of an activity must affect land in the area of regional interest, and also relate to one of the specified matters of interest for the purposes of assessing impact under Clauses 8, 9, 10 and 11 of the Bill, "affected land" need not be located within an area of regional interest. The Bill only imposes as a relevant consideration the proximity of the affected land to the land on which the activity is to take place (which is necessarily within an area of regional interest).

The definition therefore allows a landowner to potentially institute an appeal against a regional interests decision where there is an impact on a water source within a mapped area that results in an adverse effect on land that is sufficiently proximate to the activity, but which is outside of the area.

It is unclear whether it is intended by the legislature that affected land may be outside of a mapped area. If that is not the intention then Clause 68 of the Bill requires amendment.

Aside from the above question, Clause 68 imposes a cause and effect test in order to determine whether a land owner has standing to commence an appeal. The test is not equivalent to "a person whose interests are adversely affected" by a decision, which is the broad criteria the Courts must apply under the Judicial Review Act 1991.

In the case of Clause 68, the words "because of" require an analysis of the potential affects by reference to proximity to the activity and impacts on the area. This is not susceptible to quick or easy determination. It is likely to that many appeals by affected land owners will be challenged on grounds of absence of standing. However, because the standing criteria are ultimately tied to the substantive merits issues. the Courts may be reluctant to embark upon a separate preliminary determination of the standing question.

As mentioned earlier, the Bill separates appeal rights from the making of submissions. This will result in some uncertainty about standing to commence appeals and could result in decisions being made after a full hearing, on the merits that the appellant lacked standing to appeal in the first place. The SPA's approach to standing is clearer and is not prone to jurisdictional error. The Bill could have adopted a similar approach by giving the appeal right to an owner of land, situated wholly or partly in an area of regional interest, who makes a submission about an application for a regional interests authority.

An appeal against a regional interests decision operates as a stay of that decision until the appeal is determined. The Bill provides that a regional interests authority can be sought prior to (or after) the issuing of an environmental authority or resource authority. Resource applicants will be prevented from implementing such authorities pending resolution of an appeal, as the Bill makes it an offence to carry out a resource activity or regulated activity in an area of regional interest without a regional interests authority.

The Planning and Environment Court

An appeal about a regional interests decision is to the P & E Court. If the Bill is enacted, it will give the P & E Court jurisdiction to hear appeals about regional interests decisions, in addition to appeals the Court is empowered to hear under Chapter 7 of the SPA. The provisions of Chapter 7 of the SPA, apart from those that are specifically applicable to other classes of appeal, will apply to appeals under the Bill (including, for example, the ADR provisions).

However, there are some practical issues with conferring jurisdiction on the P & E Court that are currently not addressed in the Bill:

  • It appears unlikely that the P & E Court's declaratory powers will apply to matters done (or to be done) under the Bill, or to the construction of the Bill. This appears to be an oversight which should be rectified.
  • Neither the Bill nor section 493 of the SPA specify which party has the onus of proof. This is another oversight which should be rectified.
  • The costs provisions contained in Section 457 of the SPA would be applicable to appeals under the Bill, and referring back to the comments made above about standing, there are potential costs implications for persons who commence an appeal and are subsequently determined to not have proper standing.

The P & E Court is regularly called upon to consider and determine questions about environmental impacts and land use conflicts, acting upon expert evidence before it. It is a specialist jurisdiction which is well-equipped to adjudicate appeals about regional interests decisions. The expert evidence required in an appeal about a regional interests decision will depend on the issues in dispute raised by the parties, however the fields of expertise likely to be relevant include town planning and amenity (both visual and air/noise/dust). That said, other areas of expertise (such as water and traffic) may also be relevant.

Who has to apply?

The Bill makes it an offence to carry out a resource activity or regulated activity without a regional interests authority.

For resource activities already being carried out

The Bill creates an exemption from its offence provisions for resource activities being carried out on land that is declared to be in an area of regional interest if the activity is being carried out in accordance with a resource activity work plan and the land was not in an area of regional interest when the resource activity work plan took effect.

For those who already have an approved resource authority and have started carrying out activities pursuant to that authority in accordance with a work plan which took effect before the land is identified in an area of regional interest, then there is no need to apply for a regional interests approval.

For resource activities approved but not yet started

If a person holds an approved resource authority but has not yet started carrying out those activities in accordance with a work plan which took effect before the land was identified in an area of regional interest, then it is necessary to make an application for a regional interests authority.

For undecided resource activity applications

A person who has made an application for a resource activity and which remains undecided at the time the Bill commences will have to make an application for a regional interests authority.

Written submissions on the Bill close at 5pm on 17 January 2014 (HopgoodGanim is watching with interest to see whether the Bill will progress in its current form). The State Development, Infrastructure and Industry Committee will then conduct a review of the Bill and report its findings to Parliament by 17 March 2014.

© HopgoodGanim Lawyers

Award-winning law firm HopgoodGanim offers commercially-focused advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders.

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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