The State has introduced the Economic Development Bill 2012 involving Significant changes to:

  • The State Development and Public Works Organisation Act 1971 (SDPWO Act) dealing with requirements for Environmental Impact Statements (EIS) and Infrastructure Facility of Significance (IFS) provisions
  • The Environmental Protection Act 1994 (EP Act) dealing with Temporary Emission Licences.

The Bill (Qld) was introduced into the Queensland Parliament on Thursday, 1 November 2012.

It’s purpose is to facilitate economic development and development for community purposes in Queensland. Those terms are not defined in the Bill.

To achieve this, the Bill proposes (amongst other things) to:

  • create the ‘Minister for Economic Development QLD’ (MEDQ) as a corporation sole with planning responsibility for priority development areas; and
  • make amendments to the Environment Protection Act 1994 (EPA), the Environment Protection (Greentape Reduction) and other Legislation Amendment Act 2012 (Greentape Act); and State Development and Public Works Organisation Act 1971 (State Development Act); and

This article focuses on:

  • proposed changes to the State Development and Public Works Organisation Act 1971 to be introduced by the Bill dealing with EIS and IFS processes; and
  • the introduction of Temporary Emission Licences to be introduced through amendments to the Environmental Protection Act 1994 (EPA).

For our article on aspects of the Bill dealing with the MEDQ and Priority Development Areas (PDAs) click here.

Amendments to Environmental Impact Statement (EIS) provisions of the SDPWO Act

The Bill seeks to give the Coordinator-General greater control over what were previously known as “significant projects” requiring an EIS under the SDPWO Act.

These projects will now be known as “Coordinated Projects” rather than significant projects.

An application for what will now be Coordinated Project status will still be by way of an initial advice statement. However, a number of matters have been added to those things the Coordinator- General must consider before making a Coordinated Project declaration. These additional matters include:

  • relevant State policies and government priorities;
  • a pre-feasibility assessment of the project including how the project satisfies an identified need or demand (this must be a separate statement that address technical and commercial feasibility of the project);
  • the capacity of the proponent to undertake and complete the EIS for the project (this must also be a separate statement detailing the proponent’s financial and technical capability to complete the EIS.

The Bill emphasises the Coordinator-General is not bound to declare a project to be a Coordinated Project for which an EIS is required merely because the project satisfies one or more of the criteria the Coordinator-General must consider.

Once a Coordinated Project declaration is made the Coordinator-General may nonetheless cancel the declaration if he or she considers:

  • that the proponent no longer has the capability to undertake and complete the EIS for the project; or
  • it is in the public interest to cancel the declaration; or 
  • the proponent no longer has the capability to undertake and complete the EIS for the project; or
  • the proponent for the project changes; or
  • the proponent substantially changes the project from that described in the initial advice statement; or
  • the proponent fails to inform the Coordinator-General of a change of proponent for the project, a change in the proponent’s contact details or a change in the proponent’s registered office (if it is a corporation).

Before cancelling a declaration the Coordinator-General must give the proponent written notice of the decision and the reasons for it.

The declaration of a Coordinated Project will lapse under a proposed new section 27A(5) if a proponent fails to supply further information or comment about an EIS requested by the Coordinator-General, within the time limit set by the Coordinator-General or any extension of that time limit.

Previously, on completion of the EIS process, the Coordinator- General’s EIS assessment report would lapse at the end of four years. This period will now be changed to three years.

A significant new feature of the Bill in relation to EIS’ is the insertion of provisions dealing with the Coordinator-General’s ability to assess changes to a project on the Coordinator-General’s own initiative.

Under the current arrangements a proponent may submit a “change report” to the Coordinator-General asking him to assess changes to a project. That process remains, but will now been supplemented by the Coordinator-General’s ability to require an assessment of changes rather than leaving this to be initiated by the proponent at the proponent’s discretion.

In order to initiate a Coordinator-General’s own assessment of a change a written notice must be given to the proponent notifying the proponent that the Coordinator-General proposes to assess a stated proposed change to the project. The proponent then has five business days to reply to the notice.

It is an offence to fail to comply with a requirement under such a notice if it has not been withdrawn after the Coordinator-General considers a proponent’s submission in relation to the notice.

These new provisions enabling the Coordinator General to assess changes on his/her own initiative will apply to existing projects that have already gone through the EIS process.

Changes to SDPWO Act provisions dealing with an infrastructure facility of significance (IFS ) status

Many proponents will be familiar with the process of applying for infrastructure facility of significant status under the current SDPWO Act which enlivens the Coordinator-General’s power to compulsorily acquire land (and native title rights and interest), essentially for a private purpose.

The current process involves applying for IFS status then, having obtained it, complying with provisions of the SDPWO Act and guidelines created under it, with respect to voluntary negotiations for acquiring property or, where native title is involved, negotiating an Indigenous Land Use Agreement (ILUA) with traditional owners.

The new process will involve compliance with new provisions of the SDPWO Act and guidelines concerning negotiations about voluntary acquisition or negotiations about an ILUA, before an application for IFS status is made.

The term “infrastructure facility of significance” will change to “private infrastructure facility”.

The definition of “infrastructure facility”, however remains the same as the current definition in section 125(16) for this purpose.

A new provision, section 153AA, will tie the application for private infrastructure facility status to a Coordinated Project for which an EIS is required.

The provision says that a proponent can apply for a project that is an infrastructure facility and can apply to take land required for that facility if the project has been declared a Coordinated Project for which an EIS is required and the Coordinator-General has notified his or her EIS assessment report for the project.

The area of land identified as being required for the infrastructure facility must be consistent with the land assessed in the EIS. This highlights the importance of comprehensive coverage of the land involved in a project in the EIS.

Under the new provisions a private infrastructure facility application must:

  • address those matters in the new section 153AC(2) which includes:
    • the economic or social significance to the State or region;
    • the proponent’s financial and technical capability to complete the project in a timely way;
    • the extent to which the project satisfies an identified need or demand for services provided by the project;
    • ensuring the project will be completed in a timely way to satisfy the identified need;
    • identification of the land on which the facility is proposed to be located;
    • details of the proponent’s negotiation, in accordance with the guidelines, for at least four months, with each of the registered owners of the land proposed to be taken, and if native title exists, the extent to which the proponent has taken reasonable steps to enter into an ILUA for the land.

Following gazettal of a project as a private infrastructure facility, the proponent will be required to negotiate one final time with the registered owner of the land sought to be taken and make the registered owner a final unconditional offer to purchase the land in accordance with guidelines.

No similar provision has been added with respect to negotiations concerning an ILUA with traditional owners.

Approval of a project as a private infrastructure facility will expire two years after the gazette notice notifying the approval. The Coordinator-General may however extend that period on written application from the proponent or on the Coordinator- General’s own initiative.

The approval of a project as a private infrastructure facility will be able to be amended or revoked on the Coordinator-General’s own initiative or on written application from a proponent.

Before taking land for a private infrastructure facility, the Coordinator-General must be satisfied a proponent has complied with the final land owner negotiation requirements, and that the project will proceed within a reasonable timeframe, and that if native title exists, the proponent has taken reasonable steps to enter into an ILUA.

Notwithstanding that a proponent and private land owner may have come to agreement about purchasing the land, the Coordinator-General may nonetheless take the land, if the registered owner agrees, to avoid “statutory restrictions” which may affect the proponent’s ability to complete the project in a timely way.

The example given of a “statutory restriction” in this context is a restriction under the Land Act, section 175 on subdividing particular leases.

Projects that have existing IFS status before the new provisions commence, will need to continue to comply with the old provisions of the SDPWO Act dealing with such projects as well as the former guidelines created under the SDPWO Act that prescribe requirements for negotiating with land owners and traditional owners after IFS status is obtained.

Temporary Emission Licences under the Environmental Protection Act 1994

The Economic Development Bill 2012 will introduce a new Chapter 7 Part 4A into the Environment Protection Act 1994.

It will deal with Temporary Emission Licences for what are called emergent events.

An emergent event is an event or series of events, either natural or caused by sabotage, that was not foreseen when:

  1. particular conditions were imposed on an environmental authority; or
  2. particular development conditions were imposed on a development approval;

A Temporary Emission Licence will allow the temporary relaxation or modification of conditions of an environmental authority or development approval that relate to the release of a contaminant into the environment in response to an emergent event.

Applications for such a licence can be made in anticipation of an event or in response to an event.

These provisions are being introduced in response to recommendations made by the Queensland Flood Commission of Inquiry which considered the inadequacy of regulatory responses to flooded mines during recent heavy wet seasons in Queensland.

An application for a Temporary Emission Licence can be made by email or facsimile to the DEHP and must be supported by enough information to address the criteria for the DEHP making a decision. The criteria includes:

  • the extent and impact of the emergent event including financial impacts on the applicant if the licence is not granted;
  • if the application is for a licence in anticipation of an emergent event the likelihood of the event happening;
  • when the event is likely to happen;
  • what circumstances need to exist before the licence takes effect;
  • the character, resilience and values of the receiving environment;
  • the likelihood of environmental harm and any measures necessary to minimise the harm;
  • the likelihood that the release will adversely impact the health, safety or well being of another person;
  • the cumulative impacts of all releases authorised or directed under the EP Act including releases under other Temporary Emission Licences that have been issued or applied for;

Temporary Emission Licences can be granted on conditions the DEHP considers are necessary or desirable.

If granted, a Temporary Emission Licence must state:

  • the time, duration, volume and location of the release permitted by the licence;
  • the conditions of the environmental authority or development approval that the licence overrides; and
  • monitoring requirements for the release that is authorised to ensure expected impacts of the release on the receiving environment are not exceeded.

It is an offence to fail to comply with conditions of such a licence.

The Flood Commission of Inquiry was critical of Transitional Environmental Programmes (TEPs) being the instrument by which mine operators and DEHP tried to deal with accumulation of excessive water at mine sites. The TEPs were simply not able to be assessed and granted in sufficient time to enable releases of accumulated water at times when flow velocities in the receiving environment were suitable for releases.

It remains to be seen whether Temporary Emission Licences will overcome this failing of TEPs. Because “emergent events” relate to unforseen matters there is likely to be an initial barrier to their efficient use, namely a debate about what was or ought to have been, “foreseen” when initial EA conditions were imposed.