06 Mar 2014

Queensland's single State environmental offsets policy

by Kathryn Pacey, Ian Motti

The Environmental Offsets Bill 2014 is intended to bring a simpler, more flexible offsets regime to Queensland.

The Environmental Offsets Bill 2014 was introduced into Parliament on 13 February 2014 and proposes significant reform to the environmental offsets framework in Queensland.

Under the Offsets Bill, the current five separate offsets policies – the framework offsets policy, and specific offsets policies for vegetation management, marine fish habitat, koala habitat and biodiversity – will be replaced with a single State offsets policy, which must be approved by regulation.

It is intended the Offsets Bill and State offsets policy will provide simplicity and flexibility in delivery of offsets and remove inconsistencies under the current framework.

The Offsets Bill does not remove the current offsets-specific conditioning powers that exist under several different Acts, including the Sustainable Planning Act 2009 and the Environmental Protection Act 1994. The Offsets Bill will clarify when an offsets condition can be imposed by a decision-maker, and introduces "deemed conditions" that will apply to the provision of offsets.

The Offsets Bill specifically does not affect or limit the functions or powers of the Coordinator-General under the State Development and Public Works Organisation Act 1971.

Environmental offsets to which the Offsets Bill applies

The Offsets Bill provides that, despite any other Act (with some exceptions), an offset condition can only be imposed if the administering authority is satisfied that:

  • the prescribed activity will, or is likely to have, a significant residual impact on the prescribed environmental matter; and
  • all cost-effective on-site mitigation measures for the prescribed activity have been, or will be, undertaken.

A "prescribed activity" and a "prescribed environmental matter" are both to be prescribed by regulation. A "significant residual impact" is an adverse impact, whether direct or indirect, that is caused by a prescribed activity to all or part of a prescribed environmental matter that remains or is likely to remain (whether temporarily or permanently) despite on-site mitigation and that is or is likely to be significant.

Under the Offsets Bill, local governments may also have an environmental offsets policy, however this must be prescribed under the regulation.

Avoiding duplication of offsets

The Offsets Bill proposes specific provisions to avoid duplication of offsets conditions. Specifically:

  • where a Commonwealth condition (under the EPBC Act or the Great Barrier Reef Marine Park Act 1975 or another Act prescribed by Regulation) imposes an offset condition, an administering authority cannot impose a condition about the same or substantially the same impact and area; and
  • a local government must not impose an offset condition on an authority if it relates to an area for which there is an existing State condition about the same, or substantially the same, impact and area.

These restrictions apply regardless of whether the State or local government considers the significant residual impact is or is likely to be more significant than the impact for which the existing condition was imposed.

Deemed conditions

The Offsets Bill does not affect the existing power of State or a local government to impose offset conditions under other legislation, but it does provide for certain "deemed conditions" that attach to an authority:

  • before the holder of an authority starts any part of the activity to which the offset relates, they must provide the administering authority with a notice of election stating the type of offset they will use and an offset delivery plan; and
  • if the activity is to be undertaken in a legally secured offset area, the holder of the authority must not carry out the activity if a delivery or management plan or agreement applies to all or part of the offset area and the carrying out of the activity will delay, hamper or stop the delivery of the conservation outcome.

It is an offence to contravene a deemed condition, and the deemed condition will prevail over conditions of another authority, except where the conditions are imposed by the Coordinator-General.

Delivery of offsets

In addition to proponent driven offsets, the Offsets Bill introduces a new method for delivery by way of financial settlement offsets. This is a payment made by the authority holder to either the State or local government of an amount set by the agency that granted the authority.

The Offsets Bill contains provision for environmental offsets agreement (with the detail to be prescribed under regulation) and declaration and registration of environmental offset protection areas.

It is intended that environmental offsets under the State environmental offsets policy will be capped at four times the area of the impact on the prescribed environmental matters, except in relation to a protected area under the Nature Conservation Act 1992. This detail is expected to be contained in the offsets policy.

Implementation

The Offset Bill has been referred to the Agriculture, Resources and Environment Committee which is due to report to Parliament by 28 April 2014. Submissions on the Bill can be submitted to the Committee until 24 March 2014.

It has been indicated that the new offsets framework will commence by mid-2014. In order to implement this framework further steps are required including the making of the regulation, the release of the State environmental offsets policy, and finalisation of tools to support delivery of offsets including Strategic Offset Investment Corridors and Direct Benefit Management Plans.

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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.