More legislation and new approvals - how the Regional Planning Interests Bill 2013 will impact Queensland resource projects - Land Law & Agriculture

On 20 November 2013, the Honourable Jeff Seeney MP introduced the Regional Planning Interests Bill 2013 (the Bill) into Queensland Parliament. It's pitched as being a bill for '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'. When enacted it will repeal the Strategic Cropping Land Act 2011 (SCL Act).

OPERATIONAL BACKGROUND AND REGIONAL PLANNING GENERALLY

At present, under the Sustainable Planning Act 2009 (SPA), there are four types of State planning instruments. One of these is regional plans. Regional plans are instruments for a designated region which are made by the regional planning Minister under the SPA, and which advance the purpose of the SPA by providing an integrated planning policy for the region. Importantly, they are statutory instruments under the Statutory Instruments Act 1992, and for the purposes of the SPA – are taken to be a 'State interest'. Most of the Bills' initiatives will be delivered through regional plans.

Presently, there are nine existing regional plans and two 'new' regional plans (being those for Central Queensland and the Darling Downs). In addition, the South East Queensland regional plan is currently being reviewed, and the draft Cape York regional plan has been released. The two 'new' regional plans, and the draft Cape York regional plan are said to be new not just because of their recent creation, but also in that they 'restore equity for landholders', 'provide a framework for successful co-existence between the agricultural and resources sectors' and create 'an incentive for resource companies to arrive at an acceptable outcome with landholders' (see the introductory speech given by the Honourable Jeff Seeney MP for the Bill). It is expected that all existing regional plans will ultimately be reformatted to align with these principles where appropriate.

The Bill will operate with respect to what are called Areas of regional interest. These include:

priority agricultural areas (PAAs) – comprising the region's strategic areas containing highly productive agricultural land uses. According to the Bill, such areas will only qualify for identification as such if they include one or more of the following:
1. an area used for a priority agricultural land use (which will be highly productive agriculture of a type identified in the regional plan, or prescribed in a regulation);
2. an area that contains a source of water, or infrastructure for supplying water, necessary for the ongoing use of land in the proposed area for a priority agricultural land use;
3. an area, if the carrying out of a resource activity or regulated activity in the area is likely to have a negative impact on a water source mentioned in (b) above. PAAs are intended to be identified in regional plans;
priority living areas (PLAs) – being mapped areas designed to provide opportunities for identified towns to expand through the establishment of a town buffer. According to the Bill, these will include the existing settled area of a city, town or other community, as well as other areas necessary or desirable for the future growth of the existing settled area, and as a buffer between the existing or future settled area and resource activities. These will also be shown on a map in a regional plan; and
strategic cropping area (SCA) – which includes the SCL Trigger Map under the SCL Act. These areas will not necessarily be shown separately in regional plans.
strategic environmental areas (SEA) – which contain regionally significant values for bio-diversity, water catchments and ecological function. These areas will also be shown on a map in a regional plan.

Because regional plans are statutory instruments under the SPA, they do not need to be considered when assessing resource activities and other activities not regulated under the SPA. Accordingly, the Bill seeks to reconcile the regional land use policies of regional plans (i.e. those featuring the above areas of regional interest) with resource activities, which are not assessed under the SPA.

HOW IT WILL WORK

Under the Bill, a regional interests authority will need to be obtained in order to lawfully carry out a resource activity or regulated activity¹ in an area of regional interest. The absence of such authorities will constitute an offence under the Bill (attracting either a monetary fine or a term of imprisonment). The offence provision however does not apply to a resource activity that is an exempt resource activity for the area of regional interest.

An area of regional interest can be a PAA, a PLA, a SEA (in each case shown in either a regional plan or prescribed under a regulation), and a SCA – which will be shown on the trigger map for strategic cropping land in Queensland (i.e., prepared under the SCL Act)².

A regional interests authority is the positive outcome of the application, notification, referral, assessment and decision making regime created in Part 3 of the Bill (essentially, an approval). In short, this process will ordinarily involve:

an assessment application being made to the chief executive by an applicant. An applicant will either be (i) a person who holds, or has applied or may apply for an environmental authority³ or resource authority4⁴ for the resource activity⁵; or (ii) a person who intends to carry out a regulated activity (i.e. an activity likely to have an impact on the area of regional interest, and prescribed under a regulation for the area) in an area of regional interest.
attending to the notification of the assessment application (the notification will apply where it has been prescribed under a regulation and no exemption has been granted by the chief executive, or where an assessor has given the applicant a notice requiring notification). The notification will be in the form of a published notice (the details of which will be specified in the regulation). If the applicant is not the owner of the land – notice about the application will also need to be given to the owner at this stage⁶. Unless otherwise specified by an assessor – notification will need to take place within 20 business days after the day the assessment application was made. Submissions can be made with respect to assessment applications during their notification period.
the referral of assessment applications by the chief executive. Assessment applications will only be referable if a regulation prescribes it as such – and the onus falls on the chief executive to give the relevant entity prescribed under the regulation, a copy of the application. Although not specified – it would seem that this referral is to occur after the notification period has finished (as the receiving assessing agency must consider amongst other things, and within the limits of its functions, all properly made submissions). The assessing agency under these referral provisions may recommend conditions, recommend refusal (of all or part of the application), provide advice about the application, or advise the chief executive that it has no requirements/advice relating to the application. Ordinarily, the referral response must be given within 20 business days after the referral entity received the application.
a decision being made by the chief executive, with respect to the assessment application. If the chief executive decides to approve all or part of the application – a regional interests authority results (either with or without conditions). There are both specific and broad decision making criteria which apply to the chief executive (including an ability to consider any other matter believed to be relevant). Criteria for assessment seem likely to be later prescribed under a regulation. Currently no timeframe for the making of a decision is prescribed, which means that impact to project planning and construction schedules will be difficult to quantify if this remains unchanged. A decision notice must then be issued and notice about the decision then published on the department's website or in a newspaper circulating generally in the area of the land.

The Bill includes other provisions in Part 3 which in a general sense, replicate commonly used features of the SPA in terms of development assessment (e.g. provisions regarding the ability to amend or withdraw assessment applications, provisions which deal with the consequences associated with facility to notify an assessment application in time, ministerial direction powers to assessing agencies, and provisions regarding conditions). It also allows an assessor for an assessment application to issue a 'requirement notice' – which might (amongst other things) call for additional information about the application.

The relationship provisions in the Bill confirm that the Bill applies despite any Resource Act, the EP Act, the SPA or the Water Act 2000. Coupled with clause 56 of the Bill which confirms that the conditions of a regional interests authority prevail to the extent of any inconsistency over conditions of a relevant authority, it is clear that the Bill intends the prevalence of regional interests authorities.

EXEMPTIONS

There are some resource activities which are exempt under the Bill (i.e. will not need to hold a regional interests authority before being carried out). These might arise in certain instances where:

in the case of PAAs only – the authority holder is not the owner of the land, and an agreement including a conduct and compensation agreement (under a Resource Act) has been voluntarily entered into, and the activity is not likely to have a significant impact on the PAA;
in the case of PAAs and strategic cropping area – the activity is being carried out for less than one year (and certain impact and management criteria are satisfied);
the activity is being carried out on land in the area of regional interest in accordance with a resource activity work plan, (which includes a plan of operations for mining and petroleum activities), where the land was not in an area of regional interest when the resource activity work plan took effect, (save for two exceptions related to areas that contain water sources for a PAA land use and where the carrying out of the resource activity or regulated activity is likely to have a negative impact on a water source and where land is within a "cumulative management area" tenure prescribed under regulation); or
where the activity is a small scale mining activity within the meaning of the EP Act.

In the case of (a), (b) and (d) above – notice of the authority holder's intention to carry out the activity will need to be given to the chief executive under clause 26 of the Bill. If this is not attended to, the carrying out of the exempt resource activity will constitute an offence under the Bill.

Generally, the exemptions are limited in scope and applicability, and practically speaking will not afford much protection to existing resource activities.

RIGHT OF APPEAL

An applicant, the owner of the land to which a regional interests decision applies, and an affected land owner may apply to the Planning and Environment Court about a regional interests decision.

An affected land owner (for a regional interests decision) is a person who owns land that may be adversely affected by the resource activity or regulated activity because of the proximity of the affected land to the land the subject of the decision, and the impact the activity may have on an area of regional interest.

A regional interests decision means a decision to grant a regional interests authority, a decision to impose a condition on the same, or a decision to refuse all or part of an assessment application under the Bill.

SPECIFIC PROVISIONS REGARDING STRATEGIC CROPPING LAND AND TRANSITIONAL PROVISIONS

Once enacted the Bill will repeal the SCL Act. Not only does the Bill contain provisions for strategic cropping land mitigation conditions, but necessarily it also contains transitional provisions to effect the repeal. These transitional provisions include:

confirmation that applications for a strategic cropping land protection decision for a resource activity made under the SCL Act will be taken to constitute assessment applications (for regional interests authority) under the Bill (if at the commencement of the Bill, the application had not been decided or withdrawn, and the application is for a resource activity in an area that is a strategic cropping area under the Bill);
confirmation that certain strategic cropping land protection decisions are taken to constitute a regional interests authority under the Bill;
the transition of certain strategic cropping land compliance certificates, into a regional interests authority under the Bill;
the transition of mitigation requirements under the SCL Act; and
provisions regarding rights of appeal, commenced appeals and stop work notices/restoration notices under the SCL Act.

The Bill "decouples" decisions under the SCL Act, which took effect as conditions of environmental authorities, from those environmental authorities. Regional interest authorities will be separate from environmental authorities. SCL protection decision conditions which were previously conditions of environmental authorities will become a "transitioned authority" under the Bill.

AMENDMENT OF THE EP ACT

Finally, the Bill contains amending provisions which will affect the EP Act. These provisions will allow the administering authority for environmental authorities under the EP Act, to amend these to ensure they are consistent with a regional interests authority given under the Bill, where the environmental authority (for a resource activity or regulated activity) is inconsistent with a regional interests authority. This constitutes a broad power, which could result in uncertainty for industry depending on its implementation.

CURRENT STATUS OF THE BILL

The Bill has been referred to the State Development, Infrastructure and Industry Committee (which must provide its report to the House of Representatives by 17 March 2014). Public submissions may be received by the Committee up until Friday 17 January 2014 with respect to the Bill.

Accordingly, the second and third reading speeches of the Bill will not take place this year.

CONCLUSIONS

This is only a short Bill, however – its implication will be the addition of another layer of approval for resource projects undertaken in certain areas of Queensland which is likely to result in delays to construction schedules. Furthermore, it gives additional statutory effect to regional plans, and renders the conditions contained in resulting any regional interests authority paramount.

Given the decision making criteria at this stage seem broad (albeit some refinement/clarification seems likely still to come in the form of a regulation) – the full impact this Bill is to have on resource activities in Queensland cannot be predicted at this stage.

What does seem apparent though is that the current government really is following through on its promise to 'overhaul' Queensland's planning system. The big question however is – will Queensland end up regressing to the pre-Integrated Planning Act 1997 environment – where smaller enactments might have existed (when compared to the SPA), but with each one containing its own approval regime (and in many instances, their own associated regulations and supporting material) so as to create confusion and uncertainty in the long run. Only time will tell.

Footnotes

¹A 'regulated activity' is an activity likely to have an impact on the area of regional interest and prescribed under a regulation for the area.

²In either instance, the land will need to comply with criteria prescribed in a regulation for determining whether land is highly suitable for cropping based on a combination of soil, climate and landscape features. The concept of 'cropping' under this Bill includes the yield of any form of cultivated crop for any purpose, the growing of trees to produce (or as a component for) food, fibre or a medicinal product, and harvesting a timber plantation.

³Where an 'environmental authority' is an environmental authority as defined under the Environmental Protection Act 1994 (EP Act), schedule 4.

⁴A 'resource authority' means any one of the following:

A geothermal tenure under the Geothermal Energy Act 2010;
A GHG authority under the Greenhouse Gas Storage Act 2009;
A mining tenement or an approval that grants rights over land under the Mineral Resources Act 1989;
A 1923 Act petroleum tenure under the Petroleum Act 1923;
A petroleum authority under the Petroleum and Gas (Production and Safety) Act 2004;
A licence, permit, pipeline licence, primary licence, secondary licence or special prospecting authority granted under the Petroleum (Submerged Lands) Act 1982.

⁵A 'resource activity' is either an activity for which a resource authority is required to lawfully carry out, OR (for a provision about a resource authority or proposed resource authority) – an authorised activity for the authority or proposed authority (if granted) under the relevant 'resource Act' (which could be any of those acts referenced in footnote 2 above, other than the Petroleum (Submerged Lands) Act 1982).

⁶For assessment applications made by applicants which are not the land owner, and for which are not notifiable, the Bill requires the applicant to give a copy of the application to the owner within five business days after the application is made.

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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Australia: More legislation and new approvals - how the Regional Planning Interests Bill 2013 will impact Queensland resource projects