The Sustainable Ports Development Act2015 is a significant new piece of legislation set to have a major impact on the efficient and sustainable operation of ports in the Great Barrier Reef World Heritage Area (GBRWHA) and the exportation of Queensland’s coal (see our article in Envisage Magazine for more information). 

On 12 November 2015, the Sustainable Ports Development Bill 2015 was passed with amendments by the Queensland Parliament. The amendments, introduced by the Hon Dr Anthony Lynham (Minister for State Development and Minister for Natural Resources and Mines), follow the Government’s adoption of recommendations made by the Infrastructure, Planning and Natural Resources Committee Report tabled on 1 September 2015.  

Here, Partner David Nicholls and Law Graduate Ruby Rayner summarise the new legislation, its purpose, and the most important new amendments introduced by the Sustainable Ports Development Bill 2015.  

Summary

You can read our detailed analysis of the Bill here

The Bill was introduced as the Queensland Government’s first step to implementing commitments made under the Reef 2050 Long-Term Sustainability Plan.

The purpose of the legislation is to provide for the protection of the GBRWHA through the management of port-related development in and adjacent to the area through several key measures:

  • identification of the Port of Abbot Point, Port of Gladstone, Ports of Hay Point & Mackay and the Port of Townsville as priority ports;
  • preparation of master plans to regulate the future development of priority ports consistent with principles of ecologically sustainable development;
  • implementation of master plans through port overlays;
  • protection of greenfield areas through the prohibition of certain future development beyond existing port limits; and
  • prohibition of certain capital dredging, and against the sea-based disposal of dredge material.

Key Amendments

Key changes targeted increasing public notification and consultation during the preparation and amendment of master plans, clarifying the Government’s policy regarding dredging and the development of islands in the Port of Gladstone and, importantly, introducing a limited exemption against the prohibition on capital dredging for the Port of Cairns.

Port of Cairns Exemption

A significant number of submissions were made to the Government to identify the Port of Cairns as a priority port out of concerns that the inability of the port to expand would stifle economic development in the region.

The Government considered that designating Cairns as a priority port was inconsistent with its commitments under the Reef 2050 Long-Term Sustainability Plan developed in response to recommendations of the UNESCO World Heritage Committee.

An amendment was introduced to provide a limited exemption to the prohibition against capital dredging for the Port of Cairns, subject to volumetric limits.

The exemption provides that a development approval to increase the capacity of the Port of Cairns may be granted where:

  • the dredging will be carried out in the port’s inner harbour;
  • the approval does not permit the extraction or excavation of more than 50,000m3 of material; and
  • the approval will not result in more than 150,000m3 of material being extracted from, or excavated in, in the port’s inner harbour in a 4-year period.

The amounts relevant to calculating whether the dredging is within the 4 year volumetric limit are only the amount of material to be extracted under the approval for capital dredging, unless the approval for capital dredging was subject to an EIS process before the commencement of the Act.

The Port of Cairns is currently subject to an active EIS process under the Cairns Shipping Development Project which proposes the widening of Trinity Inlet for the facilitation of major shipping development and cruise ships. The EIS was lodged prior to the introduction of the Bill and will continue until April 2016.

Clarification of Prohibition of Sea-Based Disposal Provisions

The prohibition against sea-based disposal of capital dredge spoil applies to all approvals, regardless of when the approval was issued. Capital dredging may only occur in restricted circumstances, and all approvals must require that dredge material be beneficially reused, as a condition of the approval.

Capital dredging is prohibited in all circumstances unless it is for the purpose of establishing, constructing or improving a port facility in a priory port’s master planned area, or in the inner harbour of the Port of Cairns (subject to volumetric constraints). There is a limited exception for maintaining existing channels and ports, and for the protection of human life or property.

The legislation provides the following examples of what constitutes ‘beneficially reused’:

  • land reclamation
  • beach nourishment; and
  • environmental restoration purposes, such as creating or restoring wetlands or nesting islands.

Public Consultation

In addition to the requirement of public notification and the engagement of stakeholders in the initial master planning stage, the Minister must engage in public notification when a decision is made to review or amend master plans, and issue copies of the notice to the relevant port authority and the local government.

After considering all submissions made in accordance with the public consultation, the Minister must prepare a new or amended master plan, which must be tabled in Parliament, publicly notified, and copies provided to the relevant port authority and the local government. The Minister may decide to take no further action following a review, and this decision must also be notified in accordance with the above.

Port overlays must be prepared in draft, publicly notified and subject to a period of public consultation.

It is worthy to note that the requirement for public consultation does not apply to ‘Administrative amendments’ – defined as an amendment correcting or changing:

  • an explanatory matter about the instrument; or
  • the format or presentation of the instrument; or
  • a spelling, typographical error or mapping error; or
  • a factual matter incorrectly stated in the instrument; or
  • inconsistent numbering of provisions; or
  • a cross-reference.

The Minister must issue public notice of the amendments only.

The Minister must maintain a register of proposed draft or amended port overlays and the outcomes of public consultation on the Department of State Development’s website.

Clarification of the Development Intent for certain Islands

Amendments were introduced to section 32 to cure uncertainty regarding the development status of the following islands which had previously been flagged for future port development:

  • Balaclava and the north end of Curtis Island in the Port of Rockhampton (the Fitzroy Delta); and
  • Curtis, South Trees, Boyne and other islands in the Port of Gladstone. 

In the Explanatory Notes to the amendments, the Government affirmed its commitment to restrict future port development to within established limits fixed in the Transport Infrastructure (Ports) Regulation 2005, and prohibit any future development in the Greater Fitzroy Delta

In relation to the islands in and adjacent to the Port of Gladstone, the Government affirmed that these island can be developed, despite being within the GBRWHA, provided that development is on or adjacent to the port’s strategic port land, a State Development Area or on land zoned special industry under the Gladstone Regional Council Planning Scheme 2015.

Compensation

The amendments removed the provisions in the Bill relating to compensation because a right to compensation in relation to injurious affection was considered to be provided by the Sustainable Planning Act 2009 (SPA).  It should be noted however that compensation is not payable under the SPA in respect of a change to a planning scheme or planning scheme policy affecting land if the change has the same effect as another statutory instrument in relation to which compensation is not payable.  A port overlay is a statutory instrument.  Where there is an inconsistency between a port overlay and a planning instrument the port overlay prevails to the extent of the inconsistency.  Also, an assessment manager’s decision under the SPA cannot be inconsistent with a port overlay.  Therefore, regardless of whether planning instruments are amended so as to be consistent with port overlays, no compensation will be payable either under the SPA or the Ports Act.

The justification for removal of the compensation provisions is expressed in the Explanatory Notes to the Bill as follows:

“Amendment 22 removes the compensation provisions from the Bill (part 4 division 2).  There is no express requirement for compensation in legislation regulating the use of land.  The potential breach of fundamental legislative principles is considered justified as the Bill does not contain any development application processes, and therefore it is appropriate to allow the legislation containing those processes (for example the Sustainable Planning Act and the State Development and Public Works Organisation Act) to deal with compensation if those Acts give a right to compensation.”

In so far as compensation under the SPA is concerned the effect of the amendment is to destroy the ability to claim compensation.  The justification for removal of the compensation provisions from the Bill is formulated on a false premise due, apparently, to a misunderstanding of the way in which the SPA’s compensation provisions operate.

Master planning actions

The Government has commenced master planning for the Port of Gladstone and has announced that master planning will commence for the Ports of Abbot Point and Townsville in 2016 and for the Ports of Hay Point/Mackay in 2017. It is estimated that the master planning process will take 12 to 18 months.