New Prescribed Projects and Voluntary Environmental Agreements

By Kathryn Pacey.

Key Points:
The new process will ensure decisions are made sooner. Voluntary Environmental Agreements will allow for the mitigation or counterbalancing the potential environmental impacts of the Prescribed Project, even remotely from the site.

The State Development and Other Legislation Amendment Act 2006 commenced on 7 December 2006. This Act delivers part of the Beattie Government's 100 day plan, which provides the Coordinator-General with powers to take over approval processes where agencies have not made decisions in 20 working days.

The Act introduces a "prescribed project" concept, whereby the Coordinator-General obtains certain powers in relation to the approvals for projects that are declared by the Minister to be prescribed projects. Generally these are projects that are considered to be of significance to the State or a region.

After a prescribed project declaration has been made, the Coordinator-General has power to issue a number of notices to facilitate efficient decision-making for applications. These notices are:

A Progression Notice which is a notice to progress an administrative process to complete a process. This may be given for example in a stage in IDAS before the decision stage where there is delay.

A Notice to Decide which is a direction to a decision-maker to make a decision. The Notice to Decide can be given at any time having regard to the relevant processes.

A Step-in Notice which is a notice that the Coordinator-General has "stepped in" to the decision process, and will assess and decide the application. A Step-In Notice can be given:

• at any time after the Coordinator-General is satisfied that the decision-maker has not complied with a progression notice or a notice to decide; or
• where a decision-maker has complied with a progression notice or notice to decide - where the applicant within 10 business days of being notified of the decision requests the Coordinator-General to give a Step-In Notice; or
• after a decision has been made, until 10 business days after the relevant appeal period ends or after an appeal has been started.

The prescribed project process is not designed to short-circuit the relevant approval processes under the relevant law. The purpose of the prescribed project provisions is to facilitate approvals processes, so that where delays are being experienced, the Coordinator-General has a formal role to progress the process.

Additional conditioning powers

In addition to the conditioning power under the relevant law, the Coordinator-General has additional powers in relation to environmental management conditions. Specifically, the Coordinator-General can:

• impose conditions requiring the applicant to carry out an activity or works for prevention, control or mitigation of detrimental environmental effects or for restoration or enhancement of aspects of the environment. The Bill recognises that such restoration or enhancement can take place on other land, including in another part of the State;
• in making a decision on a Prescribed Project Application, have regard to whether the applicant has entered into a voluntary environmental agreement ("VAE").

Voluntary Environmental Agreements

Applicants for prescribed projects can enter into a VAE with the Coordinator-General. VAEs are for:

• preventing, controlling or mitigating detrimental environmental effects of a prescribed project; or
• conserving, maintaining, rehabilitating or enhancing aspects of the environment.

VAEs can require the applicant to provide financial assistance or a financial bond, and can provide for allowable land uses on the land. VAEs are registered on the title and bind successors.

This new regime is directed to ensuring that projects of significance to the State can be assessed and approved in a timely manner, to provide certainty in development assessment in Queensland. Significantly, for the first time in Queensland, this process formally recognises that significant development can offset its effects remotely from the site, and provides for VAEs directed at mitigating or counterbalancing the potential environmental impacts of the Prescribed Project.

For further information, please contact Kathryn Pacey.