With the Regional Planning Interests Act 2014 (Qld) (Act) now passed (though not yet commenced), resources companies will need to take stock of how this Act will impact their operations.
With the Regional Planning Interests Act 2014 (Qld) (Act) having now passed (though not yet commenced), resources companies will need to take stock of how this Act will impact their operations.
In order to deal with the Act, the key questions that resources companies will need to ask in relation to their projects are:
- When will a project fall within the scope of the Act?
- How and when do you obtain a regional interests development approval (RIDA)?
- What appeals may be made and how will they work?
- How does the Act and RIDAs fit with your other project approvals?
These are discussed below.
When will Activities fall within the Scope of the Act?
In order to determine whether proposed activities fall within the scope of the Act, a resources company will need to ask itself:
- Is the proposed activity either a resources activity or regulated activity?
- Is the activity proposed to be carried out in an area of regional interest?
- Is the activity exempt?
If the answer to either question 1 or 2 is no, then the activity will not be within the scope of the Act. Similarly, if the answer to question 3 is yes, then again the activity is exempt from the requirements of the Act.
In all other circumstances, in order to carry out the activity the resources company will need to obtain a RIDA.
Resources Activities and Regulated Activities
In most instances, resources companies will be carrying out resources activities, which are activities that either require a resources authority in order to be carried out or are authorised activities under a resources authority. Accordingly, most activities that resources companies may want to carry out will potentially fall within the scope of the Act.
Based on the current draft regulations, it is unlikely that a resources company would be carrying out a regulated activity. While a regulated activity must be likely to have a widespread and irreversible impact on an area of regional interest, under the draft regulations, the only prescribed regulated activity is broadacre cropping for a strategic environmental area.
Areas of Regional Interest
An area of regional interest is:
- A priority agricultural area;
- A priority living area;
- The strategic cropping land area; and
- A strategic environmental area.
These areas are generally described in the regional plans. However, the strategic cropping land area is defined by reference to the SCL trigger map. The draft regulations include part of the Channel Country as a strategic environmental area. Regulations can also be introduced to make other areas of regional interest.
A resources company will need to refer to the regional plans and the SCL trigger map (and any regulations) in order to identify whether their proposed activities are in one of these areas.
Areas of regional interest may potentially change over time so resources companies will need to check these areas when new activities are proposed or when their projects will move into new areas.
Even if the resources activity is to be carried out in an area of regional interest, the activity may be exempt in which case the activity can proceed without a RIDA. The Act defines the activities that are exempt.
There are a number of elements to any exempt activity. In general exemptions exist in the following circumstances:
- Where the resources company has reached agreement with the owner of the land provided that the activity will not have a significant impact on a priority agricultural area or an area within the strategic cropping land area and the activity is not likely to have an impact on land owned by another person;
- Where the activity will be carried out on a priority agricultural area or in the strategic cropping land area and will be carried out on a property within a period of one year from the tenement holder first entering the property; and
- Where the activity could have been lawfully carried out on the land immediately prior to the land becoming an area of regional interest and the activity could be carried out without any further approval or authority relating to the location, nature or extent of the surface impacts of the activity and the information provided in the application for the authority identified the location, nature and extent of the expected surface impacts.
It is also a defence to carry out a resources activity or a regulated activity in an area of regional interest in an emergency endangering the life or health of a person or the structural safety of a building, structure or infrastructure.
There is a considerable amount of detail in these exemptions and any resources company will need to consider them carefully before deciding whether its activity falls within an exemption. In addition, given the level of detail involved in falling within an exemption, there is considerable scope for challenges to be made to an activity that is asserted to be exempt. Indeed, it is quite likely that except in the most clear cut of exemptions, a resources company may find itself needing to fight a challenge as to whether the activity is exempt.
If the activity is not exempt, then the resources company will need to obtain a RIDA before being able to carry out the activity.
Application process for a Regional Interests Development Approval
The general process for obtaining a RIDA is set out below.
Click here to view table.
A RIDA once issued will attach to the land to which it relates and will continue in force notwithstanding any changes in ownership of the land.
Once a RIDA is granted, a resources company will be entitled to carry out resources activities in accordance with the RIDA. If other resources activities (i.e. beyond the scope of the existing RIDA) are to be carried out, then a further RIDA may be required.
A number of appeals can be made from a decision to grant or not to grant a RIDA.
An applicant can appeal a decision not to grant a RIDA or can appeal any conditions of a RIDA or a decision in relation to an amendment to an existing RIDA.
For anyone seeking to challenge a decision to grant a RIDA, unlike the position in that allows anyone to make submissions on an application for a RIDA, only a limited group can appeal a decision to grant a RIDA.
Only a landowner or an affected landowner, being an owner of land whose land may be affected by a decision to grant a RIDA or the conditions of a RIDA, can appeal against that decision.
An appeal is made to the Planning and Environment Court and must be made within 20 business days (or such longer time as the Court allows).
In any appeal, the chief executive is the respondent. Where the appeal is by the landowner or an affected landowner, the applicant is a co-respondent to the appeal.
In a change to the general position in relation to the onus of proof, in every appeal under the Act, the applicant has the onus to prove its position. Where the appeal is against a refusal to grant or against conditions, the applicant must establish why its appeal should be upheld. Where the appeal is by an owner or an affected landowner, the applicant must establish why the appeal should be dismissed.
A decision is not automatically stayed by the commencement of an appeal. However, the Planning and Environment Court can order that the decision be stayed.
Interrelationship with other approval processes
If a RIDA is required for activities, the resources company will need to obtain a RIDA prior to the activities being carried out. This means that a RIDA can be applied for either before, during or after other project approvals are obtained.
Where the project involves an EIS or has some other public notice period, for example a major project requiring a mining lease or a petroleum lease rather than for any exploration tenement, then there may be some advantage in aligning the approval process for the RIDA with the other public notice period .
However, where the project involves activities that may evolve over time rather than be all known in advance, such as for exploration tenements, it may not be possible or practicable to apply for a single RIDA that would cover all the activities. In that case, it may be necessary for a resources company to apply for successive additional RIDAs in relation to each set of activities in order to carry out the overall exploration program. However, it may also be possible to obtain a RIDA for all activities to be carried out under a single exploration tenement. While this may be theoretically possible, it may be very difficult to achieve in practice.
The future for the Act and the resources industry
The Regional Planning Interests Act 2014 (Qld) is a piece of legislation aimed squarely at the resources industry. It establishes as a default position that resources activities and regulated activities cannot be carried out in areas of regional interest.
The Act is due to commence on 1 July 2014. While draft regulations have been released, they have not yet been finalised leaving some ambiguity about the legislation.
In the early days of the legislation, there will likely be many challenges to applications to RIDAs and challenges to attempts to rely on the exemption provisions especially as there is an element of ambiguity in some provisions. Landowners and affected landowners may seek to have the exemption provisions interpreted narrowly so that a much more limited range of activities can be carried out without a RIDA. Similarly, applications for RIDAs may face many submissions and may often be appealed in order to prevent resources activities from being carried out in areas of regional interest.
Nevertheless, given that the Act has now passed and the current government has demonstrated its determination to proceed with this legislation, industry will need to deal with the Act. This will involve an additional element in project planning processes and allowances for additional time in approval processes in order to obtain a RIDA if needed.