The Sustainable Ports Development Bill 2015 (Bill) was introduced by the Queensland Government on 3 June 2015 as part of the new government's commitment under the Reef 2050 Long-Term Sustainability Plan (LTSP).
The Bill prohibits the development of new ports and off-shore dumping of spoil along the majority of the Queensland coastline and provides for master planning of ports to promote economic growth.
The key policy objective of the Bill is to provide for the protection of the Great Barrier Reef World Heritage Area (GBRWHA) by managing development activities of the ports in and adjacent to the GBRWHA.
Click here for a map outlining the GBRWHA (in red) and Great Barrier Reef Marine Park (in green).
The Bill states that its aim is to create a balance between economic and ecologically sustainable growth in the port industry and the State economy, and that it has been developed in response to the proposal by UNESCO to determine whether the Great Barrier Reef should be added to the "in danger" list of world heritage sites.
On 1 June 2015, the United Nations Educational, Scientific and Cultural Organisation (UNESCO) World Heritage Committee issued a draft decision not to add the Great Barrier Reef to the "in danger" list; however it flagged concerns about the poor outlook for the Reef and noted that the Committee should review any lack of progress in 2017. The World Heritage Committee's 21 member nations met last week in Bonn, Germany, to debate the draft decision. The Committee issued its final decision on 1 July 2015 recommending that the GBRWHA is not added to the "in danger list", and that it should remain on the UNESCO watch list for another four years.
Funding required to implement the new regulatory framework set out in the Bill is to be met from Federal grants arising from Federal Environmental Minister Greg Hunt's allocation of $2 billion to support ongoing sustainable investments for the management and preservation of the Great Barrier Reef.
What regulations are imposed by the Bill?
The Bill will give effect to the State Government's commitments made in the LTSP to improve management of the impact of port development on the environment, in particular on the GBRWHA. The Bill aims to achieve this by:
- restricting new port development in greenfield areas in and adjoining the GBRWHA to within current port limits;
- restricting "capital dredging" (that is, dredging of channels or ports) for the development of new or existing port facilities to four "priority ports". The four priority ports are Gladstone, Hay Point/Mackay, Abbot Point and Townsville. This means that Port Alma (Rockhampton), Fitzroy Delta, Keppel Bay and North Curtis will not be able to engage in capital dredging and will be subject to further zoning and fishing regulations;
- prohibiting sea-based disposal of material into the GBRWHA generated by port-related capital dredging; and
- imposing an obligation to re-use port-related capital dredged material for beneficial use (e.g. land reclamation) or for disposal on land where it is environmentally safe to do so.
The Bill works in tandem with Commonwealth government's measures under the Great Barrier Reef Marine Park Act 1975, which seek to protect and improve the Reef's health, including the ban on capital dredge spoil in the Great Barrier Reef Marine Park which came into effect on 2 June 2015. For further information on the Commonwealth spoil dumping plan please see our legal alert.
The most fundamental changes to the Queensland port industry arising from the Bill will be the requirement for a "master plan" and "port overlay" for priority ports.
The master plan
The Minister will develop a master plan for each "master plan area" (that is, the area of each priority port identified in the master plan and approved by regulation). Each master plan will be developed through a public consultation process set out in the Bill. The Minister may also make guidelines about what may be included in the master plans. It is proposed that each master plan will:
- facilitate economic growth by articulating a vision for the port extending beyond the existing strategic port land;
- promote greater transparency of economic, environmental, social and the supply chain and the impact of port development on those issues;
- facilitate the coordinated planning of land and marine areas by addressing the State's port interests; and
- provide a more comprehensive approach to the protection and management of the environment through the implementation of an environmental management framework, which will identify environmental values and assess the impact of any development at the priority port and identify measures for managing the impact of that development.
The port overlay
The Bill also requires that the Minister develop a port overlay for each priority port. The port overlay is a statutory instrument designed to regulate how the measures set out in the master plan will be implemented at the port. The port overlay may also state what certain government entities or other authorities should consider when granting approvals under the Sustainable Planning Act 2009 (Qld) (SPA) and Transport Infrastructure Act 1994 (Qld) (TIA). The port overlay will have priority where there is inconsistency with a planning instrument under the SPA or land use plan under the TIA. Further, where the port overlay imposes a consideration on the relevant Minister under the SPA, the Minister must consider that matter and his or her decision about a development application under the SPA must not be inconsistent with the port overlay.
There are however some protections for industry. As under the existing wider planning law, where a use at a port is lawful immediately prior to a port overlay (or amendment to a port overlay) taking effect, then the port overlay (or relevant amendment) can not stop the lawful use from continuing or further regulate that use. Further, where a development approval currently exists for a use at a port, then provided the development approval has not lapsed, the port overlay may not stop, or further regulate, that use.
Therefore any party that currently lawfully uses the port or has an existing development approval will not be affected by the port overlay, except to the extent the use changes and ceases to be covered by existing use or existing approval exemptions.
The State must pay compensation to owners of an interest in land where the port overlay results in an application for a development approval being required, and where the application is refused on the basis of being inconsistent with the port overlay and the application of the port overlay reduces the value of the land.
Where to from here?
The Bill is the first step to achieving the commitments made by the Queensland Government in the LTSP. The Bill meets many of the criteria imposed by the LTSP (as outlined above). In addition to the requirements under the Bill, the LTSP imposes a range of measures to ensure the protection of the GBRWHA, including the following:
- All proponents of new dredging works must demonstrate their project is commercially viable.
- The State will establish a maintenance dredging framework which identifies future dredging requirements, ascertains appropriate environmental windows to avoid coral spawning and protect seagrass, and examines opportunities for beneficial reuse of dredge material or on-land disposal where it is environmentally safe to do so.
- State government support of on-land disposal or land reclamation for dredge material at Abbot Point.
- No support for transhipping operations that adversely affect the Great Barrier Reef Marine Park.
The State government has already undertaken consultation with a range of key stakeholders in relation to the Bill. The Bill will be now be carried forward in consultation with stakeholders and the wider community, the government has stated that public consultation will be a mandatory step before port master plans are finalised. The Bill has now been referred to the Infrastructure, Planning and Natural Resources Committee which is required to report by 1 September 2015. The master planning of the priority ports will begin later this year. The Government is required to submit an update on its progress regarding the Reef 2050 Long-Term Sustainability Plan to be reviewed by UNESCO by 1 December 2016.
What should you do?
If passed in its current form the bill will significantly impact proponents' ability to secure or increase capacity at ports in Queensland over the long term. Once demand increases, proponents looking to secure additional capacity will be restricted to additional terminals at the major ports which will be subject to further regulation.
Further, any companies with pending development applications in or around existing ports should consider the effects of the legislation. Finally, owners of an interest in land that are affected by the port overlay should consider whether they have any rights to compensation.