New Regional Planning Interests regime adopted for resources activities in Queensland

In brief

Queensland has a new planning approval process for resources activities and 'regulated activities' in areas of regional interest, following the passage of landmark legislation. The new approvals regime may have implications for existing and future resource projects. Partner Bill McCredie and Senior Associates Michael Zissis and Gobind Kalsi review the new legislation and the next steps.

Background

We reported on the introduction of the Regional Planning Interests Bill 2013 (the Bill) late last year. In summary, the Bill proposed a regime to require resource activities and 'regulated activities' proposed in an 'area of regional interest' to undergo an impact assessment and gain an approval before they could be carried out. The new assessment and approval requirement is in addition to existing requirements under environmental and resources legislation.

As described by the Deputy Premier and Minister for State Development, Infrastructure and Planning (the Deputy Premier), the Bill 'introduced to regional Queensland a system of regional planning very similar to the planning processes that have been used across urban communities for a long time to control land use conflicts'¹, with a focus on the land use conflicts between agricultural and mining activities.

The Bill was referred to the State Development, Infrastructure and Industry Committee of the Queensland Parliament (the Committee) to lead a consultation process. We reported on the results of that consultation process earlier this month, and, in particular, a number of amendments the Committee recommended be made to the Bill before it was passed.

Within days of receiving the Committee's report, the Government:

• announced it had accepted all of the Committee's recommendations in principle and proposed amendments to the Bill;
• released a set of draft regulations, in response to criticism that the Bill was introduced as 'framework legislation', which would rely on detail in regulations that were not released at the same time as the Bill; and
• passed the Bill, incorporating amendments proposed in response to the Committee's recommendations, to introduce the Regional Planning Interests Act.

In this update, we review the implications of the amendments made to the Bill before it was passed and the recently released draft regulations. We also identify the next steps toward the commencement of Queensland's newest planning approval regime.

Amendments to the Bill

Key amendments made to the regime before it was passed included:

• Amendments to exemptions: The Act provides that 'exempt resource activities' do not require approval under the Act. The activities that constitute 'exempt resource activities' were amended before the Bill was passed, including the exemption for 'pre-existing resource activities' designed to 'grandfather' existing resource activities to the extent that the location, nature and extent of existing activities are approved and can be identified. Notwithstanding the amendments, existing projects may not qualify for the exemption when further approvals are required or the extent of surface impacts is not adequately identified in the application material for the existing approvals for the activity. Amendments were also made to introduce the concept of an 'exempt regulated activity'.
• Additional transitional provisions relating to the repeal of the Strategic Cropping Land Act 2011 (the SCL Act). The Act now incorporates transitional provisions relating to undecided applications under the SCL Act and the transitional provisions introduced with the SCL Act in order to carry through protections for long standing projects.
• A new 'transitional regulation making power', to allow transitional provisions to be made in the regulations of the Act for one year after the commencement of the new Act 'to protect rights acquired under existing legislation...not appropriately reflected in the Act'².
• Change of approval name and condition rules: The name of the approval granted under the Act was changed to a 'regional interest development approval' (as opposed to a 'regional interests authority') to recognise the regime under the Act is based on land use planning principles and processes. Amendments were also made to ensure conditions of a 'regional interest development approval' have to be relevant and reasonable, and to change when the conditions of an approval will prevail over the conditions of other approvals.
• Amendments to assessment and appeal processes: Changes to the application and assessment process include:
  • steps need to be taken in accordance with 'prescribed time frames';
  • advice from the Gasfields Commission (in addition to other assessing agencies) will be requested for certain applications; and
  • when an application is referred to a local government, the application does not have to be strictly decided in accordance with the local government's advice.

The Planning and Environment Court will still hear appeals under the new Act, but amendments were made to it so that the commencement of an appeal does not automatically 'stay the operation of the decision appealed against', to include rules about which party bears the onus of proof and to expand the court's powers to make orders. Additional provisions have also been added to allow any person to start declaratory proceedings in the court about the Act.

Draft regulations released

The Act has been described as 'framework legislation' because critical machinery of the new regime has been left out of the Act and will be detailed in the regulation.

Key elements of the regulations include:

• the identification of certain 'areas of regional interest' (and 'regionally significant water sources' able to be included in relevant areas of regional interest);
• the identification of 'regulated activities';
• the 'prescribed time frames' for the application and assessment process;
• the criteria for deciding an application for a 'regional interests development approval'; and
• the identification of the agencies that certain applications have to be referred.

Draft regulations were tabled in Parliament last week and will be the subject of targeted consultation with industry and other stakeholders over the next two months. Notably, the draft regulation identifies:

• the Channel Country as an area of regional interest (in addition to those identified in regional plans);
• the 'Condamine Alluvium' as a 'regionally significant water source';
• local government, the Department of Environment and Heritage Protection and the Department of Natural Resources and Mines as referral agencies for certain applications for 'regional interests development approvals'; and
• the 'required outcomes' and 'acceptable solutions' that resource activities in an area of regional interest will be assessed against. These criteria will impact upon whether the activity can or cannot proceed in the area and will ultimately need to be addressed in applications for 'regional interests development approvals'.

In his second reading speech on the Bill, the Deputy Premier specifically invited discussion on the assessment criteria relating to activities in 'priority agricultural areas', the strategic cropping area and 'strategic environmental areas'.

There is scope for the regulation to the Act to expand the scope of the Act by prescribing additional 'regulated activities' and 'areas of regional interest'.

Next steps

The Act is expected to commence by 1 July 2014.

In the meantime, resource operators should review the draft regulations to the Act and consider whether to engage in the Government's targeted consultation over the next two months. If operators are not engaged in the current consultation process, they ought to approach their relevant industry body.

The regulations of the Act will be introduced into the Parliament as significant subordinate legislation and may be subject to scrutiny by the Committee.

Moving forward, resource operators ought to closely monitor the development of the regulations and commencement of the Act.

Once the Act has commenced, resource operators will need to be conscious of:

• the development of 'new generation' regional plans, the strategic cropping land trigger map and the regulations of the Act to ascertain whether activities are located in 'areas of regional interest';
• decisions of the Planning and Environment Court in relation to the application and construction of the Act; and
• guidance material released by the Government about aspects of the new regime, including what constitutes a 'minor amendment' to a 'regional interests development approval'.