The Queensland government introduced the Regional Planning Interests Bill (“Bill”) late last week. The Bill is designed to provide a new assessment process for regional planning for the ‘successful co-existence’ of the agricultural and resource sectors. This follows the release of regional plans for the Central Queensland and Darling Downs regions on 24 October 2013 and the Review of the Strategic Cropping Land (SCL) Framework report. The Bill will require certain resource and other regulated activities to be consistent with land use policies of regional plans and any other ‘area of regional interest’ prescribed under the Bill.
Key aspects and impacts
In summary, if the Bill is enacted in its current form, it will:
- Introduce a new Regional Interest Decision process (“RID”) process to operate in tandem with existing resource tenement and environmental authority (“EA”) processes. In short, a resource activity or other regulated activities cannot occur in a Regional Interest Area unless it is either an ‘exempt resource activity’, or alternatively a new approval in the form of a ‘Regional Interest Authority’ has been granted for that activity. This approval may be sought by a proponent either before or after the issuing of an EA or resource tenement. In making a RID, the chief executive has broad criteria to apply and can impose conditions.
Prescribe what is an ‘area of regional interest’ by reference to 4 zones, being:
Priority Agricultural Areas (“PAAs”) to give priority to agricultural areas shown on a regional plan map or prescribed under a regulation. We understand this mapping will be done on the basis of historical land use.
Priority Living Areas (“PLAs”) to create a larger buffer area around settled/future communities with resource activities in their area. Local governments will be referred particular aspects of an application in this category. However, the regional interests authority will incorporate any conditions the local government would like to include, even one prohibiting resource activity in all or part of the PLA.
Strategic Cropping Land (“SCL”) to respond to the SCL Framework report by classifying this land into 4 subcategories.
Strategic Environmental Areas (“SEA”) to be shown on a regional plan map or prescribed under a regulation e.g. channel rivers of western Queensland, Steve Irwin Wildlife Reserve. It is likely that resource and other regulated activities that would jeopardise ‘environmental values’ (as defined under the Environmental Protection Act 1994 (Qld)) would be prohibited in a SEA.
- Repeal the Strategic Cropping Land Act 2011 (Qld) and incorporate SCL as an ‘area of regional interest’.
- Provide for certain exemptions, including an exemption for certain resource activities in particular ‘areas of regional interest’.
- Seek to manage the co-existence of resource and agricultural activities in competition for the same land.
- SCL compliance certificates obtained for a resource activity under the SCL Act will be a ‘regional interest authority’ under the new Bill.
- Introduce extremely high penalties (pecuniary and imprisonment) for a resource activity carried out in particular areas of the State without a regional interests authority. For example, wilful breach attracts a maximum penalty of $687,500 for individuals (or 5 years imprisonment), or $3,437,500 for a corporation.
In 2012, the newly elected Queensland government announced its intention to introduce a new regional planning framework as a means of resolving potential land use conflicts arising from the rapid growth in resource development projects in areas which significantly contribute to the State’s agricultural production (including, for example, the Darling Downs and Central Queensland regions) while also promoting co-existence of both agricultural and resources activities.
The new generation regional planning framework has much in common with the Strategic Cropping Land Act regime, both in terms of policy aims and the means by which they are intended to be achieved. Each regime focuses on the zoning of agricultural land and restricting resource developments within mapped areas, unless co-existence of agricultural and resource activities can be achieved.
Since its commencement on 30 January 2012, the SCL Act has, despite its level of prescriptiveness, not dissipated conflicts between the competing interests of the agricultural and resources sectors. The Bill will repeal the SCL Act and incorporate SCL as an ‘area of regional interest’. Within this category, there are 4 subcategories of SCL for industry to digest.
The new regional plans are aimed at addressing the economic tensions between the agricultural and resources sectors. The new generation regional plans for Central Queensland and the Darling Downs commenced on 18 October 2013. Further, the draft Cape York Regional Plan has been recently extended for an 80 day consultation period beginning on Monday, 25 November with submissions closing midnight on 25 March 2014. Whilst these new regional plans are developed under the provisions of the Sustainable Planning Act 2009 (Qld) (as statutory regional plans under that Act), the new Bill ensures that these plans can regulate the conditions of resource development approvals. The government intends to have the revised South-East Queensland Regional Plan ready by the end of 2014.
What we are yet to see is how the SCL and PAA mapping overlay can effectively co-exist, without detracting from their intended regulatory outcomes (or from the Queensland government’s stated aim of reducing the regulatory burden on industry).
When the Deputy Premier and Minister for State Development, Infrastructure and Planning tabled the Bill, he noted that the Bill provides for an application to be referred to a third party to assess a particular aspect of an application. Where the proposal is in a ‘priority living area’ identified in a regional plan, the application would be referred to the local government which could impose conditions, such as prohibiting the resource activity in all or part of the priority living area. It would appear that this framework has the potential to be the wildcard in the process, giving local council’s a greater say as to whether a resource project may proceed.
The Minister also said:
… a key priority of the government in the Cape York region is to enable sustainable economic development opportunities, balanced with the protection of the cape’s natural environmental areas. In committing to resetting this balance, we are repealing the emotive and arbitrary wild river declarations in the region, as we said we would, and are addressing the land use planning aspects through the regional planning process designed by local communities. Revoking these declarations will result in the removal of the current prohibitions, allowing proposals to be subject to merit based assessment.
However, despite this statement, it was reported the very next day in the Cairns Post that the planned $1.2 billion Pisolite Hills bauxite mine project near Weipa is set to be scrapped after becoming the first casualty of the government’s new plans for Cape York, notwithstanding the project being granted significant project status in October last year.
Exempt resource activities
The Bill identifies certain resource activities for an area of regional interest as exempt from requiring a regional interest authority. Whilst this concept appears to favour the resources sector, the drafting in some cases means that there will be few instances where these exemptions can be successfully applied.
For example, section 22 of the Bill provides that an exemption will apply to resources activities carried out in a PAA where the authority holder is not the owner of the land and:
- the authority holder has entered into a written agreement with the land owner or there is a conduct and compensation agreement between the 2 parties;
- the resource activity is not likely to have a significant impact on the PAA; and
- the resource activity is not likely to have an impact on land owned by a person other than the land owner.
Section 24 of the Bill also provides an exemption for pre-existing resource activities on land within an area of regional interest where undertaken in accordance with a resource activity work plan (including a plan of operations) and the land was not in an area of regional interest when the resource activity work plan took effect. However, there is an exception to the application of this exemption where the carrying out of a resource activity or regulated activity in the area is likely to impact a water source mentioned in clause 8(2)(b) of the Bill.
Co-existence criteria challenges
The critical detail of coexistence and assessment criteria is being developed for inclusion in the Regional Planning Interests Regulation. This will really inform the industry how the government intends to balance the competing interests between the resources and agricultural sectors. We will be watching this space and will send a further update when the draft regulation is released.
The Bill does not expressly acknowledge existing resource tenement arrangements and EA’s as part of regional plans. It does however introduce an amendment to the Environmental Protection Act 1994 (Qld) to allow the administering authority to amend an existing EA for a resource activity where conditions on a regional interest authority conflict with the conditions of an EA. This amendment allows the conditions to be aligned.
In relation to SCL arrangements, an SCL protection decision for a resource activity made under the soon-to-be-repealed SCL Act will be taken to be an application under clause 29 (‘Who may apply for regional interests authority’) of the Bill if:
- “at the commencement, the application had not been decided or withdrawn; and
- the application is for a resource activity in an area that is a strategic cropping area under this Act.”
What does this mean for you?
Although the Bill may evolve from its present form, the resources sector should start looking at how their existing and proposed projects will be impacted in the event that the essential elements of the Bill remain intact. The focus for the resources sector may include:
- identifying the project area in relation to the 4 regional interest zones – of those areas known at this stage;
- identifying whether any resource activities are exempt from regional interest areas;
- considering the impact of transitional provisions;
- for advanced projects, identifying what approvals remain outstanding and how this is impacted upon by the new Bill.
For the agricultural sector, it will benefit from the PAA classification. It will have a say where regional interest applications require public notification as they will have the ability to make a submission in relation to an assessment application.
Much of the critical detail for this new legislation will be contained in mapped areas under regional plans and prescribed areas under regulation. Further, the regulation will need to address coexistence and assessment criteria. Further detail may be contained in guidelines and codes to assist with understanding how the new regional interest decision process will operate. This detail is yet to be seen.
Submissions to Government
It is thought that the Queensland Government is intending that this Bill will be ‘put through the wringer’ during the Committee process. It is forecast that enactment will take place in the first half of 2014.
The Bill has been referred to the State Development, Infrastructure and Industry Committee for consideration. The Committee is inviting written submissions by 5:00 pm on Friday, 17 January 2014.
If you would like us to assist you in making a submission to the Committee or about any aspect of the Bill, please contact Matthew Austin, Brad Egerton or Holly Monks. The Committee’s report must be tabled by 17 March 2014.
Please continue to watch this space for further updates.