21 Nov 2013

New regional planning laws to impact Queensland resource projects

Legislation aimed at regulating the impacts of resource projects on areas of regional interest was introduced into the Queensland Parliament yesterday. The Regional Planning Interests Bill 2013 is expected to have significant implications for the resources industry, as it creates a new approval requirement for certain activities that are to be carried out in identified "areas of regional interest".

Following on from the commencement of "new generation" regional plans for Central Queensland and the Darling Downs on 18 October 2013, and the review of the strategic cropping land framework, the Regional Planning Interests Bill 2013 proposes to regulate the impacts of resource activities in areas of regional interest by:

  • repealing the Strategic Cropping Land Act 2011 (Qld) (SCL Act) and, instead, identifying strategic cropping land as an area of regional interest; and
  • introducing an assessment framework to manage the impact of resource activities and regulated activities (to be prescribed by regulation) on areas of regional interest.

The Bill makes it an offence to carry out, or allow the carrying out, of a resource activity or regulated activity in an area of regional interest without a new type of authority, called a regional interest authority.

What are "areas of regional interest"?

Areas of regional interest are:

  • priority agricultural areas (PAAs) identified in a regional plan or prescribed by regulation;
  • priority living areas (PLAs) identified in a regional plan;
  • strategic environmental areas prescribed in a regional plan or a regulation; and
  • strategic cropping areas, being areas identified as strategic cropping land (SCL) or potential SCL on the electronic "Trigger Map for Strategic Cropping Land in Queensland".

The regional plans for Central Queensland and the Darling Downs already identify PAAs and PLAs.

The Bill does not provide a process for challenging the mapping of potential SCL, similar to the validation application process currently available under the SCL Act.

What types of activities will be regulated?

The requirement for a regional interest authority will apply to any of the following, where carried out in an area of regional interest:

  • a resource activity – an activity for which a resource authority is required (eg. a mining tenement or petroleum authority); and
  • a regulated activity – these activities have not yet been identified, and will be prescribed by regulation.

Will my project be exempt from having to obtain a regional interest authority?

The proposed exemptions do not mirror those currently contained in the SCL Act.

The Bill contains some limited exemptions from the requirement to hold a regional interest authority, including for small scale mining activities and activities that are carried out in a PAA or strategic cropping area if the activity is carried out and the land restored within a 12 month period.

One of the most commonly used exemptions will likely be an exemption for a resource activity work plan, which is:

  • a plan of operations, for activities carried out under a mining lease or petroleum lease;
  • a work program, for activities carried out under a geothermal permit, GHG permit, authority to prospect or mining claim; or
  • a statement about the activities to be carried out under a mineral development licence.

Note that this exemption will only apply where a resource activity work plan has taken effect before the land is identified in an area of regional interest. Also, the Bill allows petroleum tenures within a cumulative management area to be excluded from this exemption in certain circumstances.

This means that activities specified under an existing plan of operations or work program can continue without a regional interest authority.

There is also a limited exemption applying in respect of PAAs where an agreement or conduct and compensation agreement has been entered into with the land owner and:

  • there will not be significant impact on the PAA; and
  • there will not be an impact on land owned by a person other than the land owner.

Notification must first be given to the chief executive before carrying out an exempt activity (other than activities that are exempt under a resource activity work plan).

What if my project has already been assessed under the SCL Act?

The Bill contains a number of transitional provisions applying in respect of applications made under the SCL Act.

For example, a protection decision or compliance certificate made or issued under that Act will be taken to be a regional interest authority to the extent it was for a resource activity that is in a strategic cropping area under the Bill.

How do I apply for a regional interest authority?

Certain eligible persons (including the holder of, or applicant for, an environmental authority or resource authority for the activity) may apply to the chief executive for a regional interest authority by making what is referred to as an assessment application.

The process for an assessment application will be a stand-alone process that is distinct from the environmental authority process under the Environmental Protection Act 1994 (Qld) (EP Act). In circumstances that are to be prescribed by regulation, an assessment application may need to be:

  • publicly notified; and / or
  • referred to an assessing agency (which may include a local government).

Assessing agencies will have the power to recommend conditions or refuse an application. Where the assessing agency is a local government, its recommendations must be adopted by the chief executive.

In deciding the assessment application, the chief executive will be required to consider the extent of the expected impact on the area of regional interest, as well as any properly made submissions if the application was required to be publicly notified. There is no mention in the Bill of the "co-existence criteria" that were recently released during public consultation on the draft regional plans, however, further decision criteria will be prescribed by regulation.

A regional interest authority may be granted subject to conditions. For a resource activity or regulated activity in a strategic cropping area, these may require the applicant to pay mitigation. The mitigation fund established under the SCL Act will be continued in existence for this purpose.

Appeals against a regional interest decision are made to the Planning and Environment Court. An appeal may be commenced by:

  • the applicant;
  • the owner of the land; and
  • any "affected land owner", being any person who owns land that may be adversely affected by the resource activity or regulated activity because of the proximity of the affected land to the land the subject of the decision and the impact the activity may have on an area of regional interest.

What happens next?

The Bill has been referred to the State Development, Infrastructure and Industry Committee, which will be required to report back to the Queensland Parliament by 17 March 2014. In the meantime, the Committee is inviting submissions on the Bill from interested parties. Submissions can be made up until 5pm on 17 January 2014.

What does the Bill mean for resource projects?

If the Bill becomes law, resource projects may be subjected to a new approval requirement before activities can be carried out in an area of regional interest.

This will not only apply to new projects; existing projects will need to determine whether the exemptions and / or transitional provisions that are currently proposed will apply to them.

On its face, the Bill gives broad powers to the chief executive and assessing agencies to refuse or condition resource activities and other regulated activities in areas of regional interest. However, as many important details of the new legislation are yet to be prescribed – including what types of activities will be prescribed as regulated activities and the full decision-making criteria for assessment applications – the Bill's full impact will not be known until supporting regulations are released. Early release of the decision-making criteria will be particularly important for resolving uncertainty for the resource sector.

If you would like to know more about how the Bill might affect your project, please contact a member of our team.

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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.