03 June 2011

Queensland shakes up its strategic cropping land framework

On 31 May 2011 the Queensland Government announced two important changes to its strategic cropping land ("SCL") framework. While no State Planning Policy or draft legislation has yet been released, the announcement is nevertheless significant as it has the potential to impact upon development proposed for large parts of the State, from Mossman in the North to St George in the South. The framework, including the SCL maps, should be considered as part of any decision on the siting of development projects in Queensland.

Background

In August 2010, the Government released "Protecting Queensland's strategic cropping land: a policy framework", which outlined its approach to protecting the State's best cropping land resources (ie. strategic cropping land). The Government's policy is essentially that planning and approval powers should be used to protect SCL from development that leads to its permanent alienation or diminished productivity.

A number of legislative and planning instruments will be developed to implement the policy including:

  • new SCL legislation, which will address how SCL is identified and provide a process for assessing and deciding whether development can proceed on SCL;
  • amendments to existing resources legislation (including the Mineral Resources Act 1989 and Petroleum and Gas (Production and Safety) Act 2004) to ensure that the new SCL legislation is considered in tenure assessment; and
  • a new State Planning Policy to guide planning and regulate the impacts of development under the Sustainable Planning Act 2009.

Draft trigger maps are available on the Department of Environment and Resource Management ("DERM") website, showing areas of the State where SCL may exist.

Criteria for identifying strategic cropping land

The draft trigger maps are only a starting point for identifying SCL. Whether land qualifies as SCL will ultimately be determined by on-ground assessments against the SCL criteria.

In April 2011, draft SCL criteria were released by the Government, addressing matters such as the slope of the land, rockiness of the soil, soil depth and salinity.

The criteria also set minimum size limits which must be met in order for land to qualify as SCL. The sizes vary depending on the location of the land, ranging from a minimum of 10 hectares with a width of 30 metres to a minimum of 100 hectares with a width of 80 metres.

DERM is finalising guidelines that will provide information for applying the SCL criteria at a property level, including the process for on-ground assessments.

Strategic Cropping Protection Areas and Strategic Cropping Management Areas

The Government also released new draft trigger maps, which identify SCL within "Strategic Cropping Protection Areas" and "Strategic Cropping Management Areas".

Strategic Cropping Protection Areas

SCL located within Strategic Cropping Protection Areas will be afforded the highest protection. If land within a Strategic Cropping Protection Area is identified as SCL, it cannot be permanently alienated by development, except in exceptional circumstances.

Two Strategic Cropping Protection Areas have been identified, one in Central Queensland (the Central Protection Area) and one in Southern Queensland on the Darling Downs (the Southern Protection Area).

Strategic Cropping Management Areas

SCL located within a Strategic Cropping Management Area will only be protected if it has a history of cropping, in which case:

  • there will be an assessment to ensure that the development avoids SCL to the maximum extent possible and, where it cannot avoid SCL, its impacts are minimised; and
  • the proponent will be required to mitigate any permanent impacts to ensure Queensland's agricultural cropping productive capacity is maintained.

Transitional arrangements

There is also a new proposal to include transitional arrangements into the SCL legislation that will apply to proposed resource development projects (including coal, mineral, gas and petroleum projects) that have met certain milestones in the approvals process as at 31 May 2011:

  • for projects that require or have voluntarily undertaken an Environmental Impact Statement, the project has finalised Terms of Reference by 31 May 2011, and if a mining lease application, there is also a certificate of application under section 252 of the Mineral Resources Act 1989;
  • for projects not requiring an EIS, there is a draft Environmental Authority under the Environmental Protection Act 1994 granted by 31 May 2011; and
  • for projects that relate to expansion of existing mines under the Mineral Resources Act 1989, there are existing exploration permits or mineral development licences held by the existing mine owner and contiguous with the existing production tenure as at 23 August 2010 when the SCL framework was released and a Mining Lease certificate of application is obtained by August 2012.

The Government intends that these transitional projects will be allowed to proceed on SCL, provided they avoid, minimise and mitigate their impact on SCL. Where unavoidable and minimised impacts on SCL are permanent, a transitional project will not be stopped from proceeding but will be required to provide mitigation for the loss of the productive capacity of the impacted SCL.

Projects eligible under the transitional arrangements that obtained final environmental approvals or conditions by 31 May 2011 will not need to meet any further conditions.

DERM has put projects not eligible under the transitional arrangements on notice that they will be required to comply with the full requirements of the SCL legislation. As the SCL legislation is yet to be released, proponents are expected to consider their project in accordance with the information released to date.

In order to comply with this obligation, DERM has advised that where a project is partially or fully located on trigger map areas, the proponent should contact DERM for further information.

What's next?

The Government is expected to shortly release for public comment its draft State Planning Policy on SCL, which will address how development approvals, planning schemes and regional plans under the Sustainable Planning Act will address SCL.

We should also expect to shortly see DERM's SCL guidelines, which will provide information on how to apply the SCL criteria at a property level, including the process for on-ground assessments.

The new SCL legislation, including amendments to the existing resources legislation, is expected to be introduced into Parliament in late 2011.

Disclaimer
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.
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