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31 Jan 2012

Queensland's new Strategic Cropping Land Act 2011 now in force

Queensland's new Strategic Cropping Land Act 2011 (Qld) commenced on 30 January 2012, with important implications for the development and resource industries.

It deals with competing land uses by establishing a process for identifying and validating land as strategic cropping land (SCL) and for assessing and managing the impacts of development on that land. Approvals may be granted which allow impacts on SCL, but whether they will be granted will depend on the categorisation of the land as within either a protection area or management area, as well as the nature and duration of the impacts.

While there are several exemptions to the application of the Act, it will generally affect existing and future applications for approvals and can be expected to have time and cost implications for many applicants.

What does the Strategic Cropping Land Act do?

The Act seeks to gives effect to the Queensland Government's policy that the best cropping land should be protected from development that leads to its permanent alienation or diminished productivity.

Amongst other things, the Act provides:

  • a process for identifying and validating SCL;
  • a process for assessing impacts of development on SCL;
  • requirements that impacts on SCL be mitigated in certain circumstances; and
  • exemptions from the Act for certain projects and activities.

Identifying and validating strategic cropping land

The Department of Environment and Resource Management has released trigger maps showing areas of Queensland where SCL may exist (potential SCL). All potential SCL has been mapped within either a protection area or a management area.

The trigger maps can be searched free of charge on the Department's website, but they are only the starting point for identifying SCL. A proponent that is not satisfied that land identified on the trigger maps is SCL may wish to undertake an on-ground assessment and apply to the Department for a decision (referred to as a "validation decision") on whether:

  • the land complies with the criteria for SCL applicable to the relevant zone; and
  • if the land is located within a management area, the land has the required cropping history.

The onus of demonstrating that the trigger maps are inaccurate will lay with the person asserting it. We expect that the process of making a validation application will in many cases be time consuming and costly. Further, some proponents may experience difficulties carrying out on-ground assessments as the Act does not provide for rights of access to land for that purpose.

Assessing impacts of development on strategic cropping land

If a validation decision confirms that land is SCL, or a proponent elects to accept that the trigger maps correctly identify land as SCL, the Act requires that the impacts of a proponent's development on SCL be assessed as part of the existing assessment processes under the Environmental Protection Act 1994 (Qld) and/or the Sustainable Planning Act 2009 (Qld).

For resource activities, including mining and petroleum projects, impacts on SCL will effectively be assessed as part of a proponent's environmental authority application. If a project is located on SCL, the environmental authority will not be granted until the Department has assessed the impacts of the project on SCL and decided whether conditions will be imposed. This is referred to in the Act as a "SCL protection decision".

As an alternative to applying for a SCL protection decision and undergoing a full assessment under the Act, proponents of certain resource activities can instead apply to operate under the standard conditions code. The code applies to resource activities that have a temporary impact and pose a relatively low risk of adversely impacting on SCL and is designed to expedite the approval processes for those activities.

For development under the Sustainable Planning Act, the assessment manager will assess the development application against the State Planning Policy "Protecting Queensland's strategic cropping land". However, this will only apply to certain applications, including for reconfiguring a lot where any resulting lots are less than 15 hectares in size and material changes of use where the lot is at least 5 hectares in size.

The Act will have the greatest impact on projects with permanent impacts on SCL, as permanent impacts will only be permitted in a protection area in exceptional circumstances. Even in a management area, permanent impacts on SCL will require mitigation measures that may add significant costs to a project. Permanent impacts are defined in the Act to include impeding the land from being cropped for at least 50 years, open-cut mining (irrespective of the life of the mine) and storing hazardous mine wastes (eg. tailings dams or overburden).

The mitigation requirement

It will be an offence for the holder of an environmental authority, resource authority or development approval to carry out development that permanently impacts on SCL unless those impacts are mitigated.

The requirement to mitigate can be satisfied by a payment to the mitigation fund (calculated at the rate per hectare prescribed by regulation), or by entering into a mitigation deed.

Exemptions

The Act is subject to a number of exemptions. For example, the Act does not apply to an environmental authority, resource authority or development approval in force before 30 January 2012 (although the amendment, renewal or re-grant of such authorities may be affected).



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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.