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23 Dec 2010

Strategic Cropping Policy for Queensland

by Karen Trainor, John Beech

The Strategic Cropping Policy Framework aims to protect the best cropping land to meet future needs, but it lacks nuance.

The Policy

"The best cropping land, defined as strategic cropping land, is a finite resource that must be conserved and managed for the longer term. As a general aim, planning and approval powers should be used to protect such land from those developments that lead to its permanent alienation or diminished productivity."

Background

The State Government has recently released a paper, "Protecting Queensland's strategic cropping land: a policy framework" (the Policy Framework). This follows the release in 2009 of a discussion paper, an opportunity for submissions and a review of those submissions in a consultation report.

As the title suggests and the Policy Framework confirms, the intention is to protect Queensland's "best" cropping land from competing uses, and particularly from urban development, agriculture and resource extraction.

The Policy Framework seeks to:

  • give effect to the Government's commitment to protecting strategic cropping land;
  • strike a balance between competing interests for use of strategic cropping land;
  • ensure that development which impacts strategic cropping land will be assessed to ensure it does not cause permanent damage to the valuable resource; and
  • achieve consistency in assessment of applications for development on or affecting strategic cropping land.

Proposed legal structure

Three new instruments will be developed to implement the Policy framework:

A new Act specifically for strategic cropping land resources which will:

  • provide the process for identifying strategic cropping land;
  • include a default map of the strategic cropping land;
  • provide mechanisms to ground-truth the default map;
  • establish the process for assessing applications to develop on strategic cropping land.

A new State Planning policy which will guide the content of planning instruments and development application assessment.

Amendments to existing resources legislation to recognise the requirements of the new Act by requiring assessment and conditioning of tenure to avoid impacts on strategic cropping land.

What is strategic cropping land?

Strategic cropping land is broadly described in the Policy framework as "… a scarce resource identified by soil, climatic and landscape features that make it highly suitable for crop production".

It will be:

  • shown on maps;
  • determined by the best currently available information on soil, land and climatic conditions; and
  • subject to change if the conditions on the ground are found to be different from those implied by the default maps.

Is your land likely to become strategic cropping land?

While the default maps released with the Policy Framework may give a rough estimation of the land which could become strategic cropping land, their level of accuracy is unknown because:

  • the land to be included on the maps depends on the land meeting soil, land and climatic criteria which have not yet been settled;
  • even when the maps are settled, they will be default maps only and will be open to challenge on the basis of more accurate information;
  • apparently if the land has some use except cropping it will not be categorised as strategic cropping land (this will raise interesting questions about the process for identifying land with other uses and for formally recording those other uses to ensure business certainty for the landowners and those who wish to do business with them);
  • land not being used for cropping but with no other use which fits the criteria will become strategic cropping land (this could potentially motivate landowners to consider instituting interim uses to keep their options open).

What development will be affected?

The Policy Framework does not apply to:

  • development on land which is not strategic cropping land;
  • development which does not "permanently alienate or temporarily diminish productivity of strategic cropping land resources";
  • exempt development which includes existing development approvals; areas already designated for urban development under existing statutory regional plans and local government planning schemes; cropping activity and associated infrastructure; and certain essential services.

The Policy Framework applies in all other cases but it applies differently according to whether the site can or cannot be fully restored to cropping land condition:

  • if it can be restored, then the temporary effects will be assessed under SPA and the development approval or tenure conditioned accordingly;
  • if it cannot be restored, then development will be prohibited unless it can meet the "demonstrated exceptional circumstances" test which entails demonstrating the resource can not be found at an alternative site in Queensland and that the development is a significant community benefit;
  • if it will cause permanent alienation of strategic cropping land but meets the "exceptional circumstances" test, development will be assessed and conditioned.

Implications of the Policy Framework

The objective of the Policy Framework is to protect the best cropping land to meet future needs. As an objective this is surely beyond debate.

It is considered to be equally beyond debate that measures adopted to give effect to the objective:

  • should reflect identifiable need and no more in circumstances where there are other justifiable claims to the resource;
  • should be proportionate to the scale of impacts they are seeking to control;
  • should not result in unnecessary waste;

It is considered that the measures outlined in Policy Framework have weaknesses on all three counts.

Need

The Policy Framework compares the economic value of "agriculture and agri-food" systems of which cropping constitutes only a part (at $22.7 billion) with the resources industry ($27.7 billion). The scale of contribution by the resources industry to the living standards of Queenslanders suggests the public is entitled to the comfort that any restrictions on the resources industry in favour of protecting high quality cropping land are necessary.

That some land must be protected for this purpose is obvious. What is not obvious is how much high quality cropping land needs to be protected. An assessment of need would normally entail a consideration of future demand. It appears from the Policy Framework however that the amount of the land to be mapped as strategic cropping land will be determined exclusively on the basis of its crop-producing capabilities.

It may well be that good cropping land is in sufficiently short supply that future needs are compromised however much land is declared to be strategic cropping land. On the other hand it might not. The Policy Framework, and the measures which it generates, should be underpinned with a scientific analysis of future needs, and the public should be assured that increased costs of agriculture and resource extraction which will trickle down to the customers are justified.

Proportion

The most significant weakness of the Policy Framework is its attempt to apply a "one size fits all" measure to trigger the prohibition against development where it will permanently alienate strategic cropping land (a prohibition arises where exceptional circumstances cannot be demonstrated).

The prohibition against any development is triggered if land is to be permanently alienated. This disregards the fundamental and common sense environmental principles that responses to adverse environmental impacts:

  • should be proportionate to the scale and significance of the impacts;
  • should have regard to any beneficial impacts which might counterbalance or outweigh the adverse impacts.

As postulated, the Policy Framework requires the scale of the adverse impact to be ignored. It requires the benefits of the proposed development to be ignored. The threat of permanent loss of one square metre of strategic cropping land can prohibit a $1 billion development if the resource to be extracted can be found at an alternative site in Queensland[i].

The Policy Framework's functionality and credibility would be enhanced significantly if it were amended to incorporate a sense of proportion and balance.

Wasted expenditure

Resource extraction in particular is cost-intensive at the front end. Across the State many millions of dollars will have been spent on investigations in anticipation of tenure applications. As formulated, the Policy Framework makes few concessions to avoid the waste of all or part of this upfront expenditure. While it exempts existing development approvals and tenures from its effect, it does not do likewise in relation to existing applications, changes to existing approvals, or applications for Environmental Impact Statements arising out of exploration approvals.

Conclusion

The Policy Framework is attempting to grapple with a serious and complex issue which needs to be addressed.

In its present form however the Policy Framework appears to have leaned too far in the direction of simplicity with the result that the Policies apply without discrimination and lack the requisite balance.

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[i] The Policy Framework provides that to demonstrate exceptional circumstances it is necessary to show the resource is not found at an alternative site in Queensland. The meaning of the term "resource" needs to be clarified because if it means the resource generically (as for instance coal seam gas) then the multiplicity of locations where CSG can be found in Queensland would virtually rule out the prospect of it being extracted on strategic cropping land. If on the other hand "the resource" refers to a particular reserve of a resource, then the impact of the exceptional circumstances test would not be so all-encompassing.

 

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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 communication. Persons listed may not be admitted in all States and Territories.