The State Environmental Planning Policy Amendment (Gas Exploration and Mining) 2014 came into force on 19 December 2014. It was created under section 37 of the Environmental Planning and Assessment Act 1979 (NSW) and may have a substantial impact on businesses involved in State Significant Developments in the mining, petroleum and extractive industries. Partner,  David  Cornwell  and  Law Clerk, David Derbyshire examine the new legislation.

Legislative  development

The State Environmental Planning Policy Amendment (Gas Exploration and Mining) 2014 (SEPP Amendment) formalises the protections against noise and dust pollution that landowners located close to State Significant Developments in the mining, petroleum and extractive industries have enjoyed to date. Specifically, it requires decision-makers to consider a new Voluntary Land Acquisition and Mitigation Policy (New Policy) when deciding whether to approve relevant development applications.

Policies and guidelines that guide the assessment of the potential impacts of mining, petroleum and extractive industry developments in NSW are targeted to protect the amenity, health and safety of people.

The New Policy primarily focuses on situations where environmental assessment criteria cannot be met and a compromise must be achieved between the interests of landowners and businesses before a project can proceed.

Application

The New Policy applies to all State Significant Developments in the mining, petroleum and extractive industries that have not yet been approved. It does not apply directly to existing operations unless a development modification is lodged.

State Significant Developments are a class of typically complex projects that are expected to have a large environmental impact or are located in an area that the NSW Government considers important. In accordance with section 89C of the Environmental Planning and Assessment Act 1979 (NSW), they are either created by state environmental planning policies or declared by the Planning Minister. State Significant Developments are assessed differently to other projects and subject to a higher level of public scrutiny.

Key impacts of the new policy

The New Policy is likely to have three key impacts on businesses involved in State Significant Developments in the mining, petroleum and extractive industries. These are set out below:

  • Noise and dust impact disclosure

The New Policy states negotiated agreements as a preferred mechanism for resolving any disputes between landowners and developers. It places the onus on applicant businesses to fully inform landowners about the scale and nature of predicted noise and dust impacts, as well as the potential health risks involved in exposure to those impacts before entering such agreements. It also requires an applicant to bear the cost of expert advice associated with the preparation of such documents.

  • Voluntary acquisition price

The New Policy requires that the voluntary acquisition price must, at a minimum, include a sale price no less favourable than market value calculated in accordance with the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) as if the land was unaffected by the development and no less favourable than an amount calculated with respect to the matters referred to in section 55 of the Land Acquisition (Just Terms Compensation) Act 1991 other than market value.

In other words, it requires applicant businesses to compensate landowners using the same criteria that NSW authorities do when acquiring private land for a public purpose.

  • Workplace acquisitions

The New Policy sets up a residual impact threshold for particulate matter beyond which a consent authority may grant voluntary acquisition to a workplace on privately owned land (in addition to residences). A workplace is defined as “an office, industrial premises or intensive agricultural enterprise where employees are grouped together in a defined location, but does not include broad- acre agricultural land.” The method of calculating acquisition prices could make some developments too costly to proceed with.

Conclusion

Piper Alderman will continue to remain informed of developments in relation to the SEPP Amendment and the application of the New Policy. The firm can be contacted via the numbers below.

The text of the SEPP Amendment can be found at http://legislation.nsw.gov.au/sessionalview/ sessional/epi/2014-862.pdf

The New Policy can be found at http://www.planning.nsw.gov.au/Portals/0/ DevelopmentProposals/IMP%20Voluntary%20 Land%20Acquisition%20and%20Mitigation%20 Policy%20SSD%20Mining.pdf