On 20 November 2013, the Honourable Jeff Seeney MP introduced the Regional Planning Interests Bill 2013 (the Bill) into Queensland Parliament. It’s pitched as being a bill for ‘an Act to manage the impact of resource activities and other regulated activities on areas of the State that contribute, or are likely to contribute, to Queensland’s economic, social and environmental prosperity’. When enacted it will repeal the Strategic Cropping Land Act 2011 (SCL Act).
At present, under the Sustainable Planning Act 2009 (SPA), there are four types of State planning instruments. One of these is regional plans. Regional plans are instruments for a designated region which are made by the regional planning Minister under the SPA, and which advance the purpose of the SPA by providing an integrated planning policy for the region. Importantly, they are statutory instruments under the Statutory Instruments Act 1992, and for the purposes of the SPA – are taken to be a ‘State interest’. Most of the Bills’ initiatives will be delivered through regional plans.
Presently, there are nine existing regional plans and two ‘new’ regional plans (being those for Central Queensland and the Darling Downs). In addition, the South East Queensland regional plan is currently being reviewed, and the draft Cape York regional plan has been released. The two ‘new’ regional plans, and the draft Cape York regional plan are said to be new not just because of their recent creation, but also in that they ‘restore equity for landholders’, ‘provide a framework for successful co-existence between the agricultural and resources sectors’ and create ‘an incentive for resource companies to arrive at an acceptable outcome with landholders’ (see the introductory speech given by the Honourable Jeff Seeney MP for the Bill). It is expected that all existing regional plans will ultimately be reformatted to align with these principles where appropriate.
The Bill will operate with respect to what are called Areas of regional interest. These include:
Because regional plans are statutory instruments under the SPA, they do not need to be considered when assessing resource activities and other activities not regulated under the SPA. Accordingly, the Bill seeks to reconcile the regional land use policies of regional plans (i.e. those featuring the above areas of regional interest) with resource activities, which are not assessed under the SPA.
Under the Bill, a regional interests authority will need to be obtained in order to lawfully carry out a resource activity or regulated activity in an area of regional interest. The absence of such authorities will constitute an offence under the Bill (attracting either a monetary fine or a term of imprisonment). The offence provision however does not apply to a resource activity that is an exempt resource activity for the area of regional interest.
An area of regional interest can be a PAA, a PLA, a SEA (in each case shown in either a regional plan or prescribed under a regulation), and a SCA – which will be shown on the trigger map for strategic cropping land in Queensland (i.e., prepared under the SCL Act).
A regional interests authority is the positive outcome of the application, notification, referral, assessment and decision making regime created in Part 3 of the Bill (essentially, an approval). In short, this process will ordinarily involve:
The Bill includes other provisions in Part 3 which in a general sense, replicate commonly used features of the SPA in terms of development assessment (e.g. provisions regarding the ability to amend or withdraw assessment applications, provisions which deal with the consequences associated with facility to notify an assessment application in time, ministerial direction powers to assessing agencies, and provisions regarding conditions). It also allows an assessor for an assessment application to issue a ‘requirement notice’ – which might (amongst other things) call for additional information about the application.
The relationship provisions in the Bill confirm that the Bill applies despite any Resource Act, the EP Act, the SPA or the Water Act 2000. Coupled with clause 56 of the Bill which confirms that the conditions of a regional interests authority prevail to the extent of any inconsistency over conditions of a relevant authority, it is clear that the Bill intends the prevalence of regional interests authorities.
There are some resource activities which are exempt under the Bill (i.e. will not need to hold a regional interests authority before being carried out). These might arise in certain instances where:
In the case of (a), (b) and (d) above – notice of the authority holder’s intention to carry out the activity will need to be given to the chief executive under clause 26 of the Bill. If this is not attended to, the carrying out of the exempt resource activity will constitute an offence under the Bill.
Generally, the exemptions are limited in scope and applicability, and practically speaking will not afford much protection to existing resource activities.
An applicant, the owner of the land to which a regional interests decision applies, and an affected land owner may apply to the Planning and Environment Court about a regional interests decision.
An affected land owner (for a regional interests decision) is a person who owns land that may be adversely affected by the resource activity or regulated activity because of the proximity of the affected land to the land the subject of the decision, and the impact the activity may have on an area of regional interest.
A regional interests decision means a decision to grant a regional interests authority, a decision to impose a condition on the same, or a decision to refuse all or part of an assessment application under the Bill.
Once enacted the Bill will repeal the SCL Act. Not only does the Bill contain provisions for strategic cropping land mitigation conditions, but necessarily it also contains transitional provisions to effect the repeal. These transitional provisions include:
The Bill “decouples” decisions under the SCL Act, which took effect as conditions of environmental authorities, from those environmental authorities. Regional interest authorities will be separate from environmental authorities. SCL protection decision conditions which were previously conditions of environmental authorities will become a “transitioned authority” under the Bill.
Finally, the Bill contains amending provisions which will affect the EP Act. These provisions will allow the administering authority for environmental authorities under the EP Act, to amend these to ensure they are consistent with a regional interests authority given under the Bill, where the environmental authority (for a resource activity or regulated activity) is inconsistent with a regional interests authority. This constitutes a broad power, which could result in uncertainty for industry depending on its implementation.
The Bill has been referred to the State Development, Infrastructure and Industry Committee (which must provide its report to the House of Representatives by 17 March 2014). Public submissions may be received by the Committee up until Friday 17 January 2014 with respect to the Bill.
Accordingly, the second and third reading speeches of the Bill will not take place this year.
This is only a short Bill, however – its implication will be the addition of another layer of approval for resource projects undertaken in certain areas of Queensland which is likely to result in delays to construction schedules. Furthermore, it gives additional statutory effect to regional plans, and renders the conditions contained in resulting any regional interests authority paramount.
Given the decision making criteria at this stage seem broad (albeit some refinement/clarification seems likely still to come in the form of a regulation) – the full impact this Bill is to have on resource activities in Queensland cannot be predicted at this stage.
What does seem apparent though is that the current government really is following through on its promise to ‘overhaul’ Queensland’s planning system. The big question however is – will Queensland end up regressing to the pre-Integrated Planning Act 1997 environment – where smaller enactments might have existed (when compared to the SPA), but with each one containing its own approval regime (and in many instances, their own associated regulations and supporting material) so as to create confusion and uncertainty in the long run. Only time will tell.
 In either instance, the land will need to comply with criteria prescribed in a regulation for determining whether land is highly suitable for cropping based on a combination of soil, climate and landscape features. The concept of ‘cropping’ under this Bill includes the yield of any form of cultivated crop for any purpose, the growing of trees to produce (or as a component for) food, fibre or a medicinal product, and harvesting a timber plantation.
 A ‘resource activity’ is either an activity for which a resource authority is required to lawfully carry out, OR (for a provision about a resource authority or proposed resource authority) – an authorised activity for the authority or proposed authority (if granted) under the relevant ‘resource Act’ (which could be any of those acts referenced in footnote 2 above, other than the Petroleum (Submerged Lands) Act 1982).
 For assessment applications made by applicants which are not the land owner, and for which are not notifiable, the Bill requires the applicant to give a copy of the application to the owner within five business days after the application is made.
The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.