In September 2012, the NSW Government released the Strategic Regional Land Use Policy (Policy) to provide greater protection for valuable agricultural land and water resources from the impacts of mining and coal seam gas proposals.

In order to implement a number of measures outlined in the Policy, the NSW Government has recently announced proposed amendments to the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (Mining SEPP) and the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) which are on exhibition until 14 December 2012.

The Policy

One of the Policy’s key initiatives was the introduction of Strategic Regional Land Use Plans for the Upper Hunter and New England North West regions to better balance mining and agriculture. These plans identify Strategic Agricultural Land (Strategic Land) to which the Gateway process will apply. Our Corrs In Brief dated September 2012 outlines the reforms brought about by the Policy. Click here to read this In Brief. The proposed amendments to the Mining SEPP and EPA Regulation are necessary to implement the new Gateway process. The amendments focus predominantly on:

  1. outlining the verification process so that Strategic Land may be identified;
  2. establishing the Mining and Petroleum Gateway Panel (Gateway Panel); and
  3. outlining the Gateway certificate application process.

Our Corrs Insight dated October 2012 commented on the issues arising out of these amendments. Click here to read this Insight.

Verification Process

Under the Policy, the Gateway process is triggered for mining and coal seam gas projects on land identified as Strategic Land categorised as either:

  1. Biophysical Strategic Agricultural Land (BSAL) which is land with highest inherent qualities such as soil fertility, water access and land capability (BSAL criteria); and
  2. Critical Industry Clusters (CIC), being land that is important to a highly significant and clustered industry, such as wine making and horse breeding (CIC criteria).

Strategic Land is identified on maps included in the amended Mining SEPP. However, as these maps are regional in scale, the proposed amendments seek to implement processes for site-specific verification to enable landowners and proponents to determine whether their sites are in fact Strategic Land. If land is verified as Strategic Land, the Gateway process will apply to any relevant State significant mining or petroleum proposals on that land.

Where land is mapped as either BSAL or CIC, applicants for State significant mining and coal seam gas proposals may accept that land status and proceed directly to the Gateway process. However the proposed amendments also provide proponents with an opportunity to challenge the identification of a site as Strategic Land through the verification process, before having to proceed to the Gateway process.

The verification process also applies to land located outside the mapped areas of Strategic Land. In such cases, the proponent of a mining proposal must nevertheless verify whether the proposed site meets the BSAL criteria or CIC criteria. In this respect, the Gateway process may apply to mining proposals on any regional land in the State, provided the requisite criteria is satisfied. Figure 1 below outlines the site verification certificate application process.

Click here to see Figure 1

The Strategic Land Criteria are also being exhibited for both BSAL and CIC land. The Draft Guideline for site verification of critical industry clusters outlines the criteria for CICs while the BSAL interim protocol lists the criteria for BSALs. The interim protocol is available to those who need to verify BSAL immediately by contacting landuse.enquiries@dpi.nsw.gov. au. The final protocol will be available by early 2013 once the interim protocol is trialled and an external review is completed.

The Gateway Panel

Once land is verified as Strategic Land, applications for State significant mining and coal seam gas proposals must proceed to the Gateway process. Figure 2 below outlines the Gateway Certificate application process.

Click here to see Figure 2

Gateway assessment will be undertaken by an independent panel of a maximum of three experts which will be responsible gas proposals on Strategic Land. Applications are currently being sought for members of the Gateway Panel in the fields of agricultural science, hydrogeology, mining and petroleum development. Appointments will be made by the Minister for Planning and Infrastructure (Minister), following consultation with the Minister for Resources and Energy, the Minister for Primary Industries and Cabinet.

The Gateway Panel’s role will include issuing Gateway certificates, as well as providing advice upon request to Department of Planning and Infrastructure (DPI) or the Minister regarding any development application or planning issue on Strategic Land.

As foreshadowed by the Policy, the Gateway Panel does not have the power to refuse an application for a certificate. Instead, certificates must be issued either unconditionally or subject to conditions which must be addressed during the development application process.

Pursuant to the proposed amendments, a Gateway certificate must be issued within 90 days of receipt of the Gateway certificate application, however should the Gateway Panel request additional information, time is frozen until the earlier of the applicant providing the additional information or when 30 days have elapsed since the additional information was requested.

Amendments to EPA Regulation

In order to reflect the amendments to the Mining SEPP, Environmental Planning and Assessment Amendment (Gateway Process for Strategic Agricultural Land) Regulation 2012 is also being exhibited. The object is to amend the Environmental Planning and Assessment Act 1979 (EPA Act) and the EPA Regulation to incorporate the Gateway process. The proposed regulation contains various amendments, such as:

  • requiring development applications relating to certain mining or petroleum development on specified strategic agricultural land to be accompanied by a gateway or a site verification certificate;
  • requiring the Director-General of the DPI, in preparing environmental assessment requirements to address any recommendations of the Gateway Panel set out in a Gateway certificate; and
  • requiring information regarding any relevant site verification certificate to be included in a planning certificate issued by councils under section 149 of the EPA Act.

Exhibition and Submissions

Click here to access all of the relevant documents on exhibition.

Submissions on the proposed amendment to the Mining SEPP and EPA Regulation can be made until Friday 14 December 2012 by email to srlup@planning.snw.gov.au or post to Director of Strategic Regional Policy, Department of Planning and infrastructure, GPO Box 39 Sydney NSW 2001.