QLD "prescribed projects" and "critical infrastructure projects" - delivery in a timely fashion

By Rob McEvoy.

Key Points:
The Act has been amended to insert a new Part 5A aims to enhance the ability of the Coordinator General to ensure the timely delivery of projects of economic or social significance to Queensland, by providing the Coordinator General with greater powers to take control of processes and Government decisions.

Following strong economic growth and an election promise to economise the delivery of key infrastructure in Queensland, the State Development and Other Legislation Amendment Act 2006 ("Amending Act") was enacted in December 2006 to amend the State Development and Public Works Organisation Act 1971 ("SDPWO Act").

The function of the SDPWO Act is to facilitate the development of vital infrastructure (and other public works) in Queensland.

Part 5 of the SDPWO Act has since 1981 empowered the Coordinator General to take control of local body approval processes for mineral or energy projects of "major economic significance to the State" (or which require costly or complex infrastructure) which are declared as "prescribed development". This has been a little used provision.

The new Part 5A adds to the jurisdiction of the Coordinator General, by allowing him or her to also take control of the timing of approval processes for declared "prescribed projects" or "critical infrastructure projects". Consistent with the function of the SDPWO Act, the rationale for Part 5A is to identify projects of economic and social significance to the State and ensure those projects are delivered in a timely fashion.

Under Part 5A of the SDPWO Act:

• a "prescribed project" includes any project which (in relation to the State or a region) the Minister considers to be "economically or socially significant" or "affects an environmental interest", having regard to the public interest, the likelihood of voluntary environmental agreement or any other matter which the Minister deems relevant; and
• A "critical infrastructure project" is a prescribed project that is "critical or essential for the State for economic, environmental or social reasons".

If a State project meets these thresholds, the Coordinator General has jurisdiction under Part 5A to issue certain notices to Government departments, designed to ensure Government decision-makers proceed efficiently.

If a proposal is a prescribed project, the Coordinator General can issue:

• A progression notice - this notice places time limits on decision-makers implementing a "prescribed process", which is a process within a prescribed project which is required by law (eg. a process in a stage of Integrated Development Assessment System under the Integrated Planning Act 1997);
• A notice to decide - this notice places time limits on decision-makers making "a prescribed decision", which is a decision in relation to a prescribed project that is required by law (eg. a decision about the construction of a prescribed project). With the Minister's approval, the Coordinator General is also empowered under Part 5A to enter into Voluntary Environmental Agreements with persons interested in a prescribed decision. The aim of these agreements is to safeguard aspects of the environment which may be threatened by a project's delivery;
• A step-in notice - this notice allows the Coordinator General effectively to "step in" to the shoes of the decision-maker to make the decision on their behalf. Because a step-in notice can only be used after a progression notice or a notice to decide has been issued and effectively replaces the decision-maker with the Coordinator General for a period, this is an option of last resort.

If a proposal is a critical infrastructure project, an applicant can not review the proposal under the Judicial Review Act 1991 (Qld), so far as the application relates to:

• The Minister's decision to declare the proposal a prescribed project
• A decision of the Coordinator General to issue a progression notice, a notice to decide or a step-in notice
• Any decision of the Coordinator General under section 76O of the SPDWO Act; and
• Any decisions or conduct "leading up to or forming a part of" any of the above decisions.

Other important steps made by the amendments include:

• the creation of "critical infrastructure easements", which are easements over existing public utility easements that are triggered by the declaration of critical infrastructure projects. These easements are designed to utilise capacity in existing public utility easements and therefore minimise the numbers of adversely effected Queensland landowners; and
• the ability for more than one person to be appointed Deputy-Co-ordinator General. This amendment is designed to ensure that the Co-ordinator General has sufficient administrative and operational support to meet increased workloads under Part 5A.

On 23 January 2007, the Queensland Government made its first prescribed project declarations, for a number of Water Grid projects in South East Queensland, namely:

• The Southern Regional Water Pipeline
• The Western Corridor Recycled Water Scheme; and
• The South East Queensland (Gold Coast) Desalination Facility.

For further information, please contact Gareth Jenkins.