Australia: Sustainable Ports Bill 2015 - Have your say on port planning in the Great Barrier Reef

HG Planning & Development Alert: 15 June 2015
Last Updated: 19 June 2015
Article by Sarah Macoun

The Sustainable Ports Development Bill 2015 is the Queensland Government's first step towards implementing commitments made under the Reef 2050 Long-Term Sustainability Plan targeted at conserving the Great Barrier Reef World Heritage Area (GBRWHA).

In this Alert, Partner Sarah Macoun and Law Graduate Ruby Rayner discuss the key aspects of this Bill, introduced to Parliament on 3 June 2015, relating to the identification and management of priority ports, and the prohibition and restriction of particular developments in and adjacent to the GBRWHA.

Key Points

The purpose of the Bill is to provide for the protection of the GBRWHA through managing port-related development in and adjacent to the area. This purpose will be achieved by a number of measures, including:

  • the identification of priority ports;
  • the preparation of master plans to regulate the future development of priority ports consistent with principles of ecologically sustainable development;
  • implementation of master plans through port overlays; and
  • the prohibition of certain future development, including a prohibition on the construction of certain new port infrastructure and on certain capital dredging, and restrictions on the disposal of dredge material.

The new Bill also contains provisions which address the relationship of the new legislation to other instruments, as well as transitional provisions.

Identification and development of priority ports

The Bill identifies four priority ports in and adjacent to the GBRWHA:

  • Port of Abbot Point;
  • Port of Gladstone;
  • the Ports of Hay Point & Mackay; and
  • Port of Townsville.1

Master plans and port overlays

The Bill introduces a requirement for the Minister2 to develop a master plan for each priority port which will identify the strategic vision and desired outcomes for the port, as well as provide for future development in a manner that manages impacts on the identified environmental values of the area.3

Master planned areas for a priority port are identified by the master plan and may include land that is outside the port's strategic port land under the Transport Infrastructure Act 1994 (TIA)4. However, a master planned area cannot include an area covered by tidal water that is outside the port's port limits under the TIA, or an area within a marine park (being either the Commonwealth marine park5 or State marine park6), even if the area is within the port's port limits under the TIA.

Draft master plans and proposed amendments to master plans will be made available for public notification and consultation, and the Minister must complete a review of the master plan for each priority port at least every 10 years after the plan has effect.

As soon as practicable after a master plan takes effect for a priority port, the Minister must make a port overlay for the master planned area.

Port overlays must:

  • apply to the whole of the master planned area;
  • state the purpose of the overlay;
  • identify how priority management measures are to be implemented; and
  • identify the entity responsible for the measures.

For the Sustainable Planning Act 2009 (SPA), port overlays may:

  • state matters that an affected local government must consider in making or amending a local planning instrument;
  • state that development in the master planned area is development of a particular type (for example, exempt or impact assessable development); and
  • state matters an assessment manager must consider in assessing a development application.

Further, port overlays may otherwise regulate development by, for example, stating aspects of development that may not take place, or by requiring measures to reduce the risk of environmental harm.

Port overlays will not be subject to a public notification process and will be statutory instruments that have the force of law as provided under the Bill. Port overlays are not intended to impact existing lawful uses or works, existing development approvals, or development applications made prior to the port overlay having effect. The Bill includes provisions to preserve rights in that regard. Further, the Bill provides some rights to compensation for a reduction in the value of an interest in land arising out of certain changes brought about by a port overlay, although it should be noted that not all effects of a port overlay are compensable, and even where compensation is potentially available there are time limits, exclusions and processes involved in making a claim.

Prohibitions and restrictions in the GBRWHA

One of the policy objectives of the new legislation is to restrict new port development in and adjoining the GBRWHA to within current port limits. To this end, the Bill expressly requires an application for development for, or relating to, a port facility to be refused if the development is within the State marine park or within a restricted area7 that is outside a port's existing port limits. The section applies despite the Economic Development Act 2012 (EDA), the SPA, the State Development and Public Works Organisation Act 1971 (SDPWOA) and section 291 of the TIA.

Similarly, the objective of restricting capital dredging for the development of new or expansion of existing port facilities to within the regulated port limits of the priority ports is achieved by section 33, which prevents an approving authority from granting an approval for capital dredging if it is to be carried out within a restricted area and for the purposes of establishing, constructing or improving a port facility, other than one in a priority port's master planned area.

Finally, the Bill prohibits the sea-based disposal of material generated by port-related capital dredging into the GBRWHA and mandates the beneficial reuse of port-related capital dredged material. The Bill provides that an approving authority may only grant an approval for the disposal of prescribed dredge material8 within a restricted area if it is impracticable to beneficially reuse the material, and the material will be deposited on land, other than tidal land, in a way that is consistent with ecologically sustainable development.

Relationship with other Acts and instruments

The Bill provides that, in the event of inconsistency, a port overlay prevails over a planning instrument under the Planning Act, or a land use plan under the TIA.9 The Bill also makes it clear that the assessment manager's decision under the SPA about a development application must not be inconsistent with the port overlay.

However, port overlays do not prevail over development schemes for priority development areas under the EDA, or an approved development scheme within a State development area under the SDPWOA.10

In relation to those Acts, the Bill requires that as soon as practicable after a port overlay takes effect, the Minister for Economic Development Queensland or Coordinator-General (whichever is relevant in the circumstances) must consider whether the development scheme is inconsistent with the port overlay and, if there is inconsistency, decide whether to amend the development scheme to remove the inconsistency. If the Minister or the Coordinator-General decide not to amend the development scheme, they must table a report about the reasons for the decision in the Legislative Assembly within 14 sitting days after making the decision.

Transitional provision

The provisions of the Bill that restrict new port development and capital dredging will not apply to development the subject of an active EIS process which started before the commencement of the Bill. A range of EIS processes are referred in the definition of that term including such processes under the SPA and the Environmental Protection Act 1994.

However, there is no equivalent transitional provision in respect of sea-based disposal of port-related capital dredged material which from the commencement of the Bill must be dealt with in the manner prescribed by the new legislation - either by beneficial reuse (for example, land reclamation) or disposal on land where consistent with principles of ecologically sustainable development.

Where to from here?

The Bill has been referred to the Infrastructure, Planning and Natural Resources Committee. Written submissions may be made to the Committee until 4.00pm on 2 July 2015. A public hearing is scheduled for 13 July 2015, with the Committee to table its report on 1 September 2015. The Ministerial media release in relation to the Bill states that master planning for the priority port of Abbott Point will start later this year, and next year for Hay Point/Mackay and Townsville.

Public consultation for the master plan boundaries for the Port of Gladstone is already underway, as indicated by a Ministerial media release dated 8 June 2015. Public comments on the boundaries of the master plan are open until 20 July 2015 and will be incorporated into a draft master plan that will be issued for public comment later this year.

Footnotes

1 s 5

2The Minister responsible for administering the Act, who has not yet been identified. The Bill was introduced to Parliament by the Hon AJ Lynham, Minister for State Development and Minister for Natural Resources and Mines.

3 s 7-8

4 s 6(1)

5Meaning the Great Barrier Reef Marine Park established under the Great Barrier Reef Marine Park Act 1975 (Cth) – sch 1

6 Meaning the Great Barrier Reef Coast Marine Park continued in existence under the Marine Parks Act 2004 – sch 1

7 Restricted area means an area within the GBRWHA but outside the Commonwealth marine park. For prohibitions relating to the Commonwealth marine and the Great Barrier Reef Region it is necessary to refer to the Great Barrier Reef Marine Park Act 1975 (Cth)

8 Means material generated from capital dredging in a priority port's master planned area carried out for the purpose of establishing, constructing or improving a port facility in the master planned area.

9 ss 24, 25, 28.

10 s 36-39

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