Publications / Planning and Environment
Last week the NSW Government released the final Strategic Regional Land Use Policy (Policy). The Policy includes 27 new measures designed to identify, map and protect the State’s agricultural land and critical water resources.
The Policy is part of a package of policy documents released by the Government in an attempt to balance the needs of industry and agriculture in NSW. The package includes:
- Strategic Regional Land Use Plans (Plans) for the Upper Hunter and New England North West regions (other regions are to follow)
- Aquifer Interference Policy, and
- two new Codes of Practice for the Coal Seam Gas Industry.
The Policy in its final form is certainly less onerous on the mining industry than the previously exhibited draft in the following key ways:
- although a Gateway Process has been implemented, it can no longer prohibit a proponent from lodging a development application and therefore effectively prevent projects from getting off the ground. Instead, the Gateway Process will simply add another layer of assessment in the approval process
- although mapped areas of strategic agricultural land (SAL) have increased from the exhibited draft, the previously proposed 2km buffer zones around SAL have been removed and proponents will now be required to verify where SAL is present on all sites within the Upper Hunter and New England North West. Crucially, where a project site includes mapped SAL, proponents will also have the option of seeking to verify whether this mapping is correct. If the mapping is found to be incorrect, the Gateway Process will not apply
- the Gateway Process will not apply to expansions of mines within existing mining lease areas.
Whilst these are positive changes for the mining industry, the Policy will still have significant impacts on the exploration, the pre-development application and the development application phases of projects, thereby adding further cost and delay to the approval process.
In response to the release of the Policy, NSW Minerals Council CEO, Stephen Galilee, has said:
‘this new layer of project assessment comes at a time when commodity prices are falling and production and other input costs in Australia are rising.’
Mr Galilee has also stated that the:
‘added layer of assessment has the potential to cause delays in project development, making it more difficult for NSW to attract investment. The flow-on effect could impact the state economy including through lost jobs and royalties.’
Where a proposed project falls within the areas identified in the Plans and outside existing mining lease areas, proponents will have go through the following additional steps:
- if the project area does not contain SAL, the proponent will still be required to verify whether or not their project site contains SAL
- if the project area contains mapped SAL, the proponent can choose to either accept this, or proceed to the site verification stage to disprove the existence of SAL within the project area
- where it is either accepted or concluded that the project area contains SAL, proponents must apply for a Gateway certificate before a development application can be lodged
- where required, a Gateway certificate will be issued for every project, either unconditionally or conditionally. The Gateway Process cannot prevent a proponent from lodging a development application for that project
- if the Gateway certificate is issued with conditions, the proponent must address those conditions in its development application. Compliance with the conditions will be a matter for consideration by the Department of Planning and Infrastructure (DoPI) and the Planning Assessment Commission when assessing and determining the development application.
The Gateway Process will not commence until such time as amendments are made to the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (SEPP). This is expected to occur in November 2012 and the draft SEPP will be available for review shortly.
In the meantime however, all proponents are required to address the Aquifer Interference Policy in their development application documentation as well as carry out an Agricultural Impact Statement.
The key features of the Policy and their implications for the mining industry are summarised in more detail below.
Under the Policy any new or modified state significant development mining and coal seam gas projects on SAL which require a new or extended lease must go through the Gateway Process before a development application can be lodged. The Gateway Process will not apply to brownfield mine expansions wholly within existing lease areas.
SAL is ‘highly productive land that has both unique natural resource characteristics (such as soil and water resources) as well as socio-economic value (such as high productivity, infrastructure availability and access to markets)’. The Government has identified two categories of SAL being Biophysical SAL, which is determined by soil classification, and land belonging to a critical industry cluster such as equine or viticulture.
In determining whether a project falls within land defined as SAL, proponents are to refer to the maps provided in the Plans. To date, over two million hectares of land has been mapped as SAL across the Upper Hunter and New England North West. If the land on which a project is to be located is outside land mapped as SAL on the maps included in the Plans, proponents must still verify that the land is not Biophysical SAL. Even if a project falls within areas mapped as Biophysical SAL proponents have the option to verify whether or not the land meets the criteria for Biophysical SAL. Importantly, the verification process is also available to landholders across NSW who can apply for verification of whether their land meets the criteria for Biophysical SAL. If land is identified as BSAL on application of a landholder, the Gateway Process will also apply to that land, regardless of where it is located across the State.
What is not clear from the Policy is who will be responsible for verifying the presence of Biophysical SAL and whether this decision is reviewable.
If a project is verified to contain SAL and therefore required to go through the Gateway Process, proponents must lodge a Gateway certificate application and a Gateway Panel will assess the application against Gateway criteria relating to land and water impacts. The criteria to be assessed by the Panel are included in the Plans and primarily relate to an assessment of whether the proposal would significantly reduce the agricultural productivity of Biophysical SAL or would lead to a significant impact on a critical industry cluster.
Whilst the membership of the Gateway Panel is unknown, in assessing applications the Panel will include an assessment against the Aquifer Interference Policy and will also consider advice from the Minister for Primary Industries and the Commonwealth Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development. Having considered the Gateway application against the criteria in the Plans, the Panel will issue either an unconditional Gateway certificate or a conditional Gateway certificate. A proponent must address any conditions of a Gateway certificate at the development application phase. All projects will be issued with a Gateway certificate and the Gateway Process can no longer prevent a development application from being lodged. This is a significant change from the draft Plans where the Gateway Panel was able to effectively block a project from proceeding to the development application stage if a Gateway certificate was not issued.
The development application process for mining projects will now be more complex insofar as additional steps will be added to the assessment process and more formal assessment will be carried out with respect to impacts on agricultural land and water resources.
Under the Policy all mining projects that may impact agricultural resources, and not just those on mapped SAL, will be required to prepare an Agricultural Impact Statement at the development application stage. In preparing an Agricultural Impact Statement, proponents are to consider the Guidelines published by the DoPI.
Additionally, all development applications will be assessed against the Aquifer Interference Policy which sets out minimal impact considerations against which the NSW Office of Water will assess the potential impacts of proposals. This is likely to add cost and delay to the development application process.
The Policy has created the new position of Land and Water Commissioner that will oversee exploration activities across the State. In particular, the Commissioner will have the ability to review any exploration approval and advise government and the community as to whether the assessment process has been carried out in accordance with the legislative framework.
The Commissioner will also oversee the implementation of a standard land access agreement for exploration activity. The form of the standard agreement is current being negotiated between key stakeholders. These new access arrangements are aimed at adding transparency to the negotiations between landholders and miners, and will allow those negotiations to occur fairly and in good faith.
The Plans also provide anticipated timeframes for certain actions to be undertaken by various Government bodies.
The DoPI will be carrying out the following activities:
- require all new coal mines, and applications seeking to modify existing approvals, to benchmark their proposals against best management practice as defined in the NSW Coal Mining Benchmarking Study: International Best Practice Measures to Prevent and/or Minimise Emissions of Particulate Matter from Coal Mining (2011) and ensure they incorporate all reasonable and feasible measure to reduce their dust emissions
- by December 2012 - prepare a guideline which provides a consistent framework and methodology for voluntary planning agreements (VPAs) between mining and coal seam gas companies and local councils relating to local infrastructure provision, including consideration of a regional VPA approach
- by December 2012 - require open cut coal mines to develop strategies to manage and minimise blast fumes
- by March 2013 - in conjunction with the Office of Environment and Heritage (OEH) and Department of Primary Industries, a cumulative impact assessment methodology to manage the cumulative health and amenity impacts of mining and coal seam gas proposals
- by June 2013 - in conjunction with NSW Health and the OEH anticipate preparing by June 2013, a development assessment guideline for impacts on human health from dust generated by mining and other activities
- by June 2013 - review the Guidelines for Establishing and Operating Community Consultative Committees for Mining Projects (2007) to ensure it remains relevant and reflects best practice, and
- by mid-2014 - review the Synoptic Plan: Integrated Landscapes for Coal Mine Rehabilitation in the Hunter Valley of NSW (1999) in conjunction with the development of the Upper Hunter Strategic Biodiversity Assessment to ensure best practice rehabilitation and visual impact management for closed mines.
The Environment Protection Authority will also be continuing its review of the Industrial Noise Policy.
If you require any assistance in interpreting the Policy and in particular, assessing what the Policy may mean for your current and future mining projects, our environment and planning team would be happy to help.
Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.