The Department of Planning and Infrastructure has released the draft State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) Amendment (Resource Significance) (Draft SEPP) on public exhibition. The Draft SEPP proposes a number of amendments to the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (Mining SEPP) aimed at providing greater certainty to the NSW mining industry.  

The NSW government has also released new ‘NSW offset principles for major projects (state significant development and state significant infrastructure)’ (New Offset Principles) which offer greater flexibility for NSW mining projects.

The New Offset Principles have been finalised but submissions on the Draft SEPP are being accepted until 12 August 2013. As there has been a reasonably strong backlash against the Draft SEPP from green groups and farmers, NSW mining companies should consider making a strong submission in support of the Draft SEPP.

New Requirement to Give Principal Consideration to the ‘Significance of the Resource’ in Determining Planning Applications

The Draft SEPP proposes to amend the Mining SEPP so as to require the consent authority to have regard to the ‘significance of the resource’ as its principal, consideration in determining applications for planning approval for mining projects. The ‘significance of the resource’ includes both the economic benefits of the project and any advice provided by the Department of Trade and Investment, Regional Infrastructure and Services as to the relative significance of the resource in comparison to other NSW resources.

New Non-Discretionary Development Standards

The Draft SEPP also propose new ‘non-discretionary development standards’ for mining projects. The new standards cover:

  1. cumulative noise impacts
  2. cumulative air quality impacts
  3. airblast overpressure
  4. ground vibration, and
  5. aquifer interference.

These specified standards must be meet by each mining project (unless modified in accordance with State Environment Planning Policy No 1 – Development Standards).

If a mining project complies with the specified standards then section 97C(2) of the Environmental Planning and Assessment Act 1979 (NSW) operates to prevent a consent authority from:

  1. taking the standards into further consideration in determining the development application,
  2. refusing the application on the grounds that the development does not comply with the standards, or
  3. imposing a more onerous condition of consent than those contained in the standards.

Optional Biodiversity Certification

The Draft SEPP also requires a consent authority to consider, in determining any applications for planning approval for mining projects, any certification provided by the Office of Environment and Heritage that ‘measures to mitigate or offset the biodiversity impact of the’ mining project ‘will be adequate’. It is not, however, proposed to make biodiversity certification mandatory for mining projects.

New Offset Principles

The newly released New Offset Principles have the potential to result in a more flexible approach to offsetting mining projects.

In particular, the New Offset Principles contain a number of new provisions which offer Mining companies greater certainty including:

  • an acknowledgment that offsets can be discounted where a project offers significant social and economic benefits to NSW
  • recognition that ‘supplementary measures can be used in lieu of offsets in situations where land based offsetting is not feasible or practical’, and
  • allowing greater flexibility to the ‘like for like’ approach to offsetting ‘where offset sites that are exactly like-for-like are not reasonably available’.

However, the New Offset Principles are unlikely to radically change the manner in which offsets are assessed as they:

  • continue the existing hierarchy of ‘avoid, minimise, offset’,
  • continue to favour the BioBanking Assessment Methodology as the preferred offset assessment tool, and
  • identify a ‘BioBanking Agreement or addition to the NSW national parks system’ as the preferred mechanisms for securing an offset site.