"Prescribed" and "critical infrastructure" projects: a new role for agencies

By Tosin Aro.

Key Points:
Recent amendments to the SDPWO Act may have drafted a broad spectrum of statutory decision-makers into the struggle to deliver, on time, much needed infrastructure to Queensland.

The Queensland Government has made it a clear priority to deliver the infrastructure required to:

• address the effects of the record drought conditions in South East Queensland (SEQ); and
• accommodate Queensland's rapidly increasing population.

Against this background, the Government passed legislation in December 2006 giving the Coordinator-General powers to take over approval processes for certain significant infrastructure projects where the responsible agencies have failed to make necessary decisions in a timely manner.

Government decision-makers with powers to decide approval and other applications that are required to get major infrastructure projects off the ground will need to have regard to these reforms.

Prescribed projects

In Queensland, the State Development and Public Works Organisation Act 1971 (Qld) (SDPWO Act) plays an important legislative role in facilitating the development of public infrastructure and ensuring that proper account is taken of the environment in the progression of major projects.

The new amendments have inserted into the SDPWO Act a new Part 5A which introduces the concepts of prescribed projects (PPs) and critical infrastructure projects (CIPs). To be declared as either of these, a project must have State-wide or regional economic, social or environmental significance. The Queensland Minister for Infrastructure made the first PP and CIP declarations on 23 January 2007 in relation to three of the projects forming part of the SEQ Water Grid.

The main objective of these amendments is to minimise unreasonable delays in the delivery of infrastructure projects deemed sufficiently significant to be a PP or CIP.

The hallmark of the new Part 5A is the ability for the Coordinator-General to issue the following types of written notices with a view to accelerating statutory approvals processes for PPs:

• "progression notices" – to agencies which have not progressed approval applications for PPs in a timely manner. Progression notices require decision-makers to undertake, within a stated period, administrative processes required to complete the relevant approval process;
• "notices to decide" – to agencies which fail to decide approval applications for PPs within either a statutory time period or other reasonable period. Notices to decide again state a period within which the decision-maker must decide the relevant application; and
• "step in notices" – which allow the Coordinator-General to assume the role of decision maker for the relevant approval process. On issuing a step in notice, the Coordinator-General is vested with all the legislative powers and functions of the original decision-maker to decide the relevant application.
  Decisions made by the Coordinator-General following the issue of step in notices are not open to appeal.

Critical infrastructure projects

The Minister may declare a PP also to be a CIP if it is believed that the project is critical or essential to the State for economic, social or environmental reasons. As with PPs, the Coordinator-General can issue progression notices, notices to decide and step in notices in relation to CIPs. One consequence of a CIP declaration is that it will not then be possible to seek judicial review under the Judicial Review Act 1991 (Qld) in relation to:

• decisions of the Minister to make CIP declarations (as well as the underlying PP declarations);
• decisions of the Coordinator-General to issue progression notices, notices to decide and step in notices to agencies; and
• decisions made by the Coordinator-General about approval applications following the issue of step in notices.

A CIP declaration also enables the creation of "critical infrastructure easements" (CIEs) in favour of the Coordinator-General. CIEs allow the Coordinator-General to build, own and operate infrastructure in or on land already burdened by public utility easements.

Environment

Consistently with the stated aim of these amendments that minimisation of delay should not come at the cost of thorough examination and appropriate mitigation, of the environmental impacts of PPs and CIPs, the Coordinator-General now has powers:

• following the issue of a step in notice, to impose conditions requiring the applicant to prevent, control or mitigate detrimental environmental effects of the project or restore or enhance aspects of the environment that may be affected by the project; and
• with the approval of the Minister, to enter into a voluntary environmental agreement (VEA) with the applicant for a PP about preventing, controlling or mitigating detrimental environmental effects of a PP or conserving, maintaining, rehabilitating or enhancing aspects of the environment. VEAs may bind persons with an interest in land and their successors in title, and must be registered on the title of the land.

Conclusion

In the final analysis, the PP and CIP amendments are calculated to ensure that urgently required infrastructure projects of State-wide or regional significance (such as the Water Grid projects which were the subject of the first PP and CIP declarations) are assessed in a timely manner.

However, the new powers of the Coordinator-General to take over approval processes for PPs and CIPs means that decision-makers must now use their powers or risk the matter being taken out of their hands.

For further information, please contact Tosin Aro.