In brief - Bill could empower local councils to veto resource projects
The Queensland government has recently introduced the Regional Planning Interests Bill 2013 (Qld) ("the Bill") into parliament. If enacted it will impact on existing and future resource operations by expanding the assessment and approval process and potentially empower local councils to veto resource projects.
Important concepts introduced by Regional Planning Interests Bill
The Bill introduces the following concepts:
Area of Regional Interest – The priority land use for a particular area designated by a regional plan or regulation as a priority agricultural area, priority living area, strategic cropping area or strategic environmental area.
Regulated Activity – An activity that is likely to have an impact on an Area of Regional Interest prescribed by regulation.
Resource Activity – An activity authorised by a resources authority under the Geothermal Energy Act 2010, Greenhouse Gas Storage Act 2009, Mineral Resources Act 1989, Petroleum Act 1923 or Petroleum and Gas (Production and Safety) Act 2004.
Regional Interest Authority – An authority to conduct either a Resource Activity or a Regulated Activity within an Area of Regional Interest.
Regional Interest Decision – A decision made by the Chief Executive in respect of an application to obtain a Regional Interest Authority.
Regional Interest Conditions – The conditions imposed as a result of a Regional Interest Decision.
Some resource operations will require Regional Interest Authority as soon as legislation commences
A Resource Activity and a Regulated Activity are prohibited from occurring within an Area of Regional Interest unless the person conducting the activity holds a Regional Interest Authority or the activity is exempt.
The failure to obtain a Regional Interest Authority may result in a maximum fine of $687,500 or five years' imprisonment.
Significantly, existing operations within an Area of Regional Interest are not exempt, so some resource operations will require a Regional Interest Authority immediately upon the commencement of the legislation.
Therefore a person conducting a Regulated Activity or Resource Activity will have to apply for a Regional Interest Authority unless the activity is exempt.
Chief Executive to comply with local council response to applications for Regional Interest Authority
An application for a Regional Interest Authority can only be made if the applicant holds, has applied for or is able to apply for an environmental authority or resource authority or intends to carry out a Regulated Activity.
The application is to be in the approved form, contain a report assessing the impact of the proposed activity on the Area of Regional Interest and identify any constraint in the configuration or operation of the activity.
The application is subject to a public notice requirement which is to include notice to the owners of land within the Area of Regional Interest within which the proposed activity is to be conducted.
The Chief Executive is to decide the application after considering the recommendations of any Assessing Agency. Significantly, if the Assessing Agency is a local council, the Chief Executive is required to comply with, rather than just consider, the Assessing Agency's response.
Having considered the application, the Chief Executive may approve all or part of the application, with or without Regional Interest Conditions, or refuse the application.
A Regional Interest Condition may, amongst other things, limit or restrict the carrying out of a Resource Activity or Regulated Activity or require the installation or operation of stated plant or equipment in a stated way within a stated period.
A Regional Interest Condition will prevail over an environmental authority and resource authority to the extent of any inconsistency.
Some Resource Activities will not require a Regional Interest Authority
An application for a Regional Interest Authority is not required in the case of certain Resource Activities in particular Areas of Regional Interest. Importantly, a specific exemption for all pre-existing resource authorities does not exist.
Where an activity is carried out in accordance with a resource activity work plan that took effect prior to the inclusion of the land in a priority agricultural area, the activity will be exempt unless it is likely to have a negative impact on a water source which is necessary for the ongoing use of a priority agricultural land uses area in a priority agricultural area (for example the Condamine Alluvium).
Other exemptions may apply where the Resource Activity is carried out in a priority agricultural area and the authority holder is not the owner of the land and there is a written agreement with the landholder, or the Resource Activity is not likely to have a significant impact on the priority agricultural area or on land owned by a person other than the land owner.
There are also exemptions for small scale mining activities as defined under the Environmental Protection Act 1994.
Appeals to the Planning and Environment Court from Resource Interest Decisions
An applicant for a Regional Interest Authority or by a landholder within the area that a Resource Activity or Regulated Activity is being conducted, may appeal a Resource Interest Decision to the Planning and Environment Court.
Overall impact of proposed legislation remains unclear at this stage
Given the form of the future regulation provided for under the Bill is unknown at this time, it is difficult to assess the overall impact of the proposed legislation.
However, it is clear that if the Bill is enacted in its current form it will result in another layer of assessment for resource projects, provide a new right of appeal to impacted landowners and potentially provide a veto to local governments over resource projects.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.