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2 Nov 11
Strategic Cropping Land Bill 2011

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The Queensland Government’s policy regarding Strategic Cropping Land will be backed by legislation, following the introduction to Parliament of the Strategic Cropping Land Bill 2011 (Qld) on 25 October 2011. Environment regulation specialist, Tim Hanmore provides a summary of the Bill.

Background

McCullough Robertson has closely followed the Strategic Cropping Land (SCL) issue since the Queensland Government’s policy announcement in February 2010. In June 2011 we outlined further policy announcements detailing relevant mapping and discussed the business impacts.

Please see our earlier article dated 1 June 2011.

Since the introduction of the SCL policy, industry has been waiting to see its provisions transferred into legislation. After an announcement by the Queensland Government in late September, the Strategic Cropping Land Bill 2011 (Qld) (SCL Bill) was introduced into Queensland Parliament on 25 October 2011 - with an intention to enact the legislation by early 2012.

The SCL Bill enlivens the policy framework through:

  • creating an offence for permanently impacting SCL or potential SCL without development or resource approval
  • creating an unexpected offence for temporarily impacting SCL - that is, for carrying out any development on SCL land without approval
  • the identification of SCL areas using various maps, which may be amended to help identify the zones and the type of SCL area
  • confirming the SCL criteria and guidelines for their application, and
  • the confirmation of transitional arrangements - providing exemptions to projects which have reached certain stages of assessment.

The SCL Bill has provided some clarity on a number of elements of the policy, including:

  • the validation application process - which determines SCL land (including the introduction of the ‘cropping history test’ for the SCL management area)
  • the assessment of the development impacts on land within the protection and management areas, and
  • certain notification and submission requirements.

Validation application for SCL

The SCL Bill allows certain ‘eligible’ persons (discussed below) to make a ‘validation application’ to the chief executive for any land in an SCL zone to determine if the land is SCL. The validation application allows the chief executive to make a decision through an on-ground assessment of the land against the eight SCL criteria.

The individual characteristic of the eight SCL criteria are determined by reference to five zones - Western Cropping, Eastern Darling Downs, Coastal Queensland, Wet Tropics and Granite Belt. These zones can be identified in the Statewide trigger map, available here.

Eligible person

An eligible person under the SCL Bill includes:

  • the owner or owners of the land
  • any person who holds a legal or equitable interest in the land
  • a person who has obtained written consent from the owner of the land to make the application, or
  • a person who has applied for a resources tenure.

Validation requirements

Importantly, the SCL Bill sets out the validation application requirements. These include a description and map of the land the subject of the application and the particular validation decision the applicant seeks.

Additional requirements exist for validation applications, depending on whether the land falls within the management area or a protection area.

A validation application relating to land within the management area must state:

  • whether or not the property has the required cropping history, and
  • whether or not the property meets the eight SCL criteria.

In contrast, a validation application for land within a protection area need only include an assessment of whether or not the land meets the eight SCL criteria. A history of cropping need not be demonstrated.

Required cropping history

The SCL Bill has introduced a test to determine whether a property has a history of cropping. To meet the threshold, the property must either:

  • have had land within it cultivated at least three times between 1 January 1999 and 31 December 2010, or
  • have had perennial crops or timber plantations exist within it for periods totalling three years or more from 1 January 1999 to 31 December 2010.

A validation application for land within the management area will only be successful where this threshold can be met.

Assessment of development impacts

The SCL Bill also sets out the requirements of an assessment application - used to determine whether the resource activity to be carried out on the land will cause permanent impacts or temporary impacts.

Permanent impact is defined under the SCL Bill to include:

  • activities that impede cropping for at least 50 years (the example given is drilling or wells at a level or density which, or the cumulative effects of which, impede it from being cropped for at least 50 years)
  • activities that mean the land cannot be restored to its pre-development condition, or
  • any open-cut mining or hazardous mine waste storage (tailings, overburden, waste rockdumps).

The outcome of the assessment application will determine the nature of any SCL protection conditions that may be imposed on the activity. These conditions may prohibit, limit or restrict the carrying out of the resource activity on the land.

Development that will have a permanent impact within the protection zone will only be permitted to proceed in exceptional circumstances - that is where the development is an ‘overwhelmingly’ significant opportunity of benefit to the State which outweighs the State’s interests in protecting SCL.

Notification and submission requirements

The SCL Bill also introduces:

  • certain notice and submission requirements, including timeframes associated with an SCL application, and
  • particular notification provisions for any applications made.

Transitionals

The transitional provisions set out in the SCL Bill generally confirm the policy position as described in our previous updates with some material deficiencies.

Projects the subject of a completed environmental impact statement or draft environmental authority before 31 May 2011 are entirely protected from the operation of the SCL Bill.

The remaining transitional provisions relate only to exemption from the permanent impact restriction. Unfortunately, the drafting of the permanent impact restriction is not entirely clear and probably not broad enough to provide the anticipated level of comfort. It appears to be an outcome of an SCL protection decision by the chief executive and relates to the restriction that an environmental authority can only be issued for permanent impact over protection areas in exceptional circumstances.

This does not preclude SCL protection conditions from being imposed on development even if it meets the requirements of the transitional provisions. These transitional provisions appear to have no effect outside of the protection areas.

The transitional provisions do provide some further clarity around one of the exceptions: mining leases and associated environmental authority applications will be exempt from the permanent impact restriction if a certificate of application is issued before 23 August 2012 [1] for a mining lease application out of an exploration tenure (exploration permits or mineral development licence) contiguous to an existing mining lease both of which were held by the same party at 23 August 2010. There is no requirement that the existing mining lease was then the subject of an operating mine.

We note that special provisions have been included to include Bandanna Energy’s Springsure Creek project (arising from EPC 891). The Department of Environment and Resource Management website confirms that the final terms of reference for the EIS for this project were released on 2 June 2011 - just missing out on the transitional time frame that would have otherwise applied.

[1]  We note that section 281(1)(b) of the SCL Bill currently refers to a cut off date of 23 August 2010, but we have received confirmation from the Department of Environment and Resource Management that this is an error and it is intended that this inconsistency will be amended to reflect 23 August 2012.

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.
 

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