Regional Planning Interests Act 2014 (Qld)

Antra Hood

Partner, Minter Ellison

Simon Scott

Partner, Minter Ellison

27 August 2014

Pathways to Compromise

Pathways to compromise

• How did we get to the Regional Planning Interests Act 2014?

• Some historical background

• Quick outline of the Act

• Some remaining challenges

• The way forward

Resources v agriculture – a tale of two regimes

Separate land use regimes

• Large scale agricultural changes have been dealt with under the planning and development regime

• Resources development has generally been exempt and has had more interface with the environmental regulation regime

Rationale:

• Resource industry is a temporary land use

• Resources are publicly owned

Some Overlap

• Objections to resources tenure by local government and liaison for reserve use including roads

• Off-tenement infrastructure under SPA

• Coordinated projects under SDPWO Act

• Local government submissions during EIA processes under EP Act and EPBC Act

• Tenements are rateable property

Regional planning and protection of agriculture in Queensland

The planning framework

• Purpose: to seek to achieve ecological sustainability by ... continuing the coordination and integration of planning at the local, regional and State levels

• Regional plans as State planning instruments providing an integrated planning policy

• State Planning Regulatory Provisions

• Regional planning committees

SPP1/92 & Guidelines

• State planning instruments under SPA

• Prevail over regional plan or local planning instrument to the extent of the inconsistency

• Identification Guidelines: Protection of good quality agricultural land

• Separation Guidelines: Isolation of good quality agricultural land from conflicting uses (including industrial uses)

Strategic Cropping Land Act 2011 (Qld)

The Premise:

• Resources developments on SCL could not proceed without SCL assessment

• Prohibition of certain types of development (eg open cut coal mines)

• Mitigation payments for permissible permanent impacts

While State Planning Policy 1/92 provides protection for good quality agricultural land, it does not address the land use pressures from resources developments or provide clear circumstances where development cannot proceed. To address this issue, the Bill establishes a separate Act for SCL, which provides assessment and decision processes that align with the existing resource and development legislation.

- Explanatory Memorandum to the Strategic Cropping Land Bill 2011

The necessity for coexistence

Source: MinesOnline Maps, DNRM

The necessity for coexistence

Source: MinesOnline Maps, DNRM

Overview of the regional planning regime

• Commenced 13 June

• When complete, the framework will be:

• Act

• Regulation

• Statutory Regional Plans (made under SPA/new planning regime)

• Guideline documents

Purpose and intent of the RPI Act

• To manage the impact of resource activities and regulated activities on areas of regional interest

• To promote the coexistence of resource activities with other activities, such as agriculture

• ‘Will deliver on the government's commitment to protect prime agricultural land and provide greater power to landholders in negotiating with resource companies’

• Highly politically charged topic …

What does the RPI Act prevent?

• A person must not carry out, or allow the carrying out of, a resource activity or regulated activity in an area of regional interest unless the person holds, or is acting under, a regional interests development approval for the activity.

• Depending on whether the act is wilful or not, the maximum penalty is 6250 penalty units (over $3.5M for a corporation) or 5 years imprisonment.

Some important concepts …

• ‘Skeleton’ Act – details in regulations and guidelines

• Resources activities – includes most mining and gas activities

• Regulated activities – cropping and dams (in strategic environmental areas)

• ‘Ordinary’ development (under SPA) is not caught

‘Areas of regional interest’

1. Priority Agricultural Areas (PAAs)

• Includes Priority Agricultural Land Use (PALU) areas

2. Priority Living Areas (PLAs)

3. Strategic Cropping Area (SCA)

4. Strategic Environmental Areas (SEAs)

‘Regional Interests Development Approval’

• New approval requirement – RIDA

• Exemptions

• Certain activities agreed with the landowner, unless:

• Activity is likely to have a significant impact on PAA/SCA; or

• Activity is likely to have an impact on other land

(Not available if proponent is landowner)

• Activity carried out for less than one year

• Pre-existing authorised resource activities

RIDA application process

1. Application (and fee)

• Early engagement with DSDIP

2. Notification/ submissions

• Exemption from notification

3. Referral to assessing agencies

• Includes local govt and Gasfields Commission

4. Decision by DSDIP

5. Avenue for appeal to P&E Court

Some future challenges…

• Mapping

• Difficult to change

• Impossible to challenge

• Exemptions

• Availability of landowner agreement exemption

• Pre-existing resource activities

• Advanced projects?

Some future challenges …

• Assessment criteria

• Flexibility

• Interpretation

• Application material

• Additional reports/plans required

• PALU assessment responsibility of proponent

Some future challenges…

• Approval timeframes

• Open-ended (especially if appeals commence)

• Multiplicity of approvals

• 1 RIDA for multiple overlapping ARIs?

• RIDA plus other approvals for same matter?

• Making amendments to RIDAs

• RIDA runs with the land

• Amendments must be minor or not adversely change impact

Pathways to compromise

• Did everyone get what they wanted?

• No – no landholder veto, but there’s an additional approval to be obtained

• That’s perhaps the point of compromise and co-existence – it’s not win/lose

• Brave attempt to tackle the topic that other States are avoiding, and that Queensland also avoided for a considerable period

• Still some work to go – the framework is not yet complete – not all regional plans in place

Pathways to compromise

• Much will depend on implementation now – from both sides – only one application so far

• Appears to be considerable goodwill from both sides

• Government needs to resource and train its staff properly; industry needs to engage with the State on applications and learn

• Transparency essential for both sides

Pathways to compromise

• Is it a disaster? - no

• Is it a triumph? – not that either

• It’s a compromise – perhaps even an unhappy compromise – that is now here to stay, and which all stakeholders – landowners, government, resources industry and advisors need to work with to achieve co-existence.

Antra Hood – Profile

Antra heads Minter Ellison's Brisbane environment and planning advisory practice and undertakes environment, planning and property law for both public and private sector clients in the energy and resources, infrastructure, property development, and government sectors. She has worked on many of Queensland's landmark property developments and strategic transactions. Antra's extensive development and transactions experience spans planning advice and approvals, land access issues, environmental compliance, resumption and corridor acquisition work, large scale acquisitions and disposals, structured titling advice, complex redevelopment and infrastructure projects. She has advised APPEA and QRC in relation to issues arising from Queensland's strategic cropping land legislation, including providing various critiques of the legislation and the compliance code, identifying areas for possible change and suggesting drafting changes to remedy problems, and Queensland Coordinator-General as lead partner on planning, environment and tenure issues arising from the multi-user infrastructure corridors developed for the LNG projects in the Callide Infrastructure Corridor, the Gladstone State Development Area, and the Stanwell to Gladstone Infrastructure Corridor. Other resource industry clients include Anglo American, Peabody and Cockatoo Coal. Recognized as one of Australia's top lawyers in the respected Australian Corporate Lawyers Association's Legal Department Benchmarking Report, Antra is considered as ‘very highly regarded’ by Asia Pacific Legal 500. E: antra.hood@minterellison.com T: +61 7 3119 6241

LLM, LLB, BA (HONS)

Simon Scott – Profile

Simon is part of the leadership team in Minter Ellison's Energy and Resources Industry Team, and has nearly 20 years of experience advising clients in the sector. He brings national and international experience to the team and has an in-depth knowledge of, and has advised on, some of the biggest deals and projects in the sector. These include advising Anglo American on the development of the 5Mtpa Grosvenor underground coal mine, Gloucester Coal on its A$8 billion merger with Yanzhou Coal and its wholly owned subsidiary Yancoal Australia via a scheme of arrangement, and Rio Tinto on the A$4 billion takeover of Riversdale Mining Limited. Simon's resources sector experience encompasses advising on exploration through to development and mining projects, minerals processing, water and energy projects, acquisitions and divestments of mining companies, mines and joint venture interests, farm-ins, co-development agreements, commodity sales, management, operation and maintenance agreements and procurement. His expertise includes advising on the establishment of systems and processes, documentation, standard form agreements in the procurement and sales and marketing area. Simon is ranked as a leading mining, natural resources and mergers and acquisitions lawyer in Best Lawyers Australia. APL 500 refers to the 'very service-oriented' and 'technically capable' Simon Scott in its 2014 directory. E: simon.scott@minterellison.com T: +61 7 3119 6153

LLB (HONS I) (UNIVERSITY OF QUEENSLAND, 1995), B.COM (UNIVERSITY OF QUEENSLAND, 1993)