Publications

HG Alert: Legislation introduced into the Queensland Parliament - Strategic Cropping Land Act 2011 - 31 Oct 2011

On 25 October 2011, the Queensland Government introduced to Parliament the new Strategic Cropping Land Act 2011. The proposed new legislation is still being debated, but if passed, it will come into law in 2012. Click here for a link to the proposed legislation.

This is a significant further development from the Queensland Government as it pursues its policy on Strategic Cropping Land (SCL) and follows its announcement on 31 May 2011 that it would introduce transitional arrangements in new legislation before the end of this year. We have previously commented on the effect of the SCL policy on 30 August 2010 and 1 June 2011, and on the draft State Planning Policy: Protection of Queensland's Strategic Cropping Land (SPP) under the Sustainable Planning Act (SPA), on 29 August 2011.

Purpose of proposed legislation

The purpose of the SCL policy and legislation is to find a balance between Queensland's agricultural, resource and development industries by assessing and regulating impacts of development on SCL. If passed, the SCL Act will create a legislative framework for SCL protection.

Who will be affected by the proposed legislation?

The proposed legislation applies to:

  • resources projects, including mining, petroleum, gas and geothermal energy projects; and
  • other non-agricultural land development, including urban development.

Any of these developments which have a temporary or permanent impact on SCL will be affected by the legislation.

In some cases, those projects will have no prospect of obtaining approval from the Queensland Government.

A temporary impact will endure for at least 50 years and prevent cropping, but the land can be restored to SCL. Examples could include drilling wells for a gas resource. Permanent impacts will endure for more than 50 years and permanently prevent cropping. Examples could include permanent plantations, urban development, resource extraction activities which result in subsidence, contamination of the land and new construction.

The effect of the proposed SCL Act on existing projects depends on the application of the SCL criteria, as well as the eligibility milestones in the transitional arrangements.

Developments that are exempt

Certain types of developments will be exempt from the proposed legislation, including:

  • construction or maintenance of a road;
  • development relating to transport infrastructure, including port lands and ancillary works and encroachments under the Transport Infrastructure Act 1994;
  • certain infrastructure under the Electricity Act 1994; and
  • identified functions and developments under the State Development and Public Works Organisation Act 1971.

How is SCL identified?

The proposed Act establishes a number of 'trigger maps,' to be used in conjunction with eight criteria over five zones to be used in identifying potential SCL. The scientific criteria contained in the proposed Act and to be applied to identify SCL are consistent across the zones but have different threshold values relevant to the soil and landscape features within each zone. The five zones accommodate regional differences in climate land forms and cropping systems.

Some of the 'trigger maps' include:

DERM has also created a property mapping tool to create a trigger map of a property by inputting either real property description, or co-ordinates of that property's location.

The assessment process for SCL

The assessment process is set out in flowcharts issued by DERM relating to:

For resource developers and urban developers, steps encouraged by DERM include:

  • Identify whether the land of interest is shown as potential SCL on the trigger maps, and in which zone the land is located.
  • Consult the relevant criteria set out in the proposed Act to establish SCL, including the relevant scientific criteria. The criteria address a number of characteristics of the land, including slope, rockiness, soil depth, pH levels, density and drainage.
  • If you are satisfied that the land is SCL, then the requirements for land in either the Management Area or a Protection Area apply.
  • If you do not agree that the land is SCL, then an on-ground assessment will need to be conducted using the appropriate criteria and guidelines.

What are the Strategic Cropping Protection Areas?

These areas have been identified as containing a high concentration of valuable cropping land, and also as under intense and imminent development pressure.

There are two Protection Areas:

  1. Central Protection Area - includes the 'Golden Triangle' region of Central Queensland near Emerald in the Emerald and Springsure areas.
  2. Southern Protection Area - includes the Darling Downs, Lockyer Valley, Granite Belt and South Burnett.

The Protection Areas cover some 4.78 million hectares. If land is confirmed as SCL within a Protection Area, a project cannot proceed where the project is likely to have permanent impacts on the SCL, unless 'exceptional circumstances' are established.

What are 'exceptional circumstances'?

To prove 'exceptional circumstances':

  • there must be evidence that there are no alternative sites in Queensland for the project; and
  • the project must represent significant community benefit to Queensland which outweighs the need to protect the SCL.

Even a project considered as an 'exceptional circumstance' must make all efforts to avoid and minimise any temporary or permanent impacts on the SCL and to mitigate any permanent impacts (mitigation is discussed further below).

What is the Strategic Cropping Management Area?

The Management Area contains regions considered important to Queensland's cropping and horticultural industries. It covers 37.2 million hectares of land from Mosman north of Cairns to St George at the New South Wales border. Of this, it is expected that 5.7 million hectares will contain SCLsubject to on-ground assessment using the criteria set out in the proposed Act.

If land is confirmed as SCL within the Management Area, the land must be assessed for a history of cropping.

What is a 'history of cropping'?

A property will have the 'required history of cropping' if any part of it either:

  • for non-perennial crops - was cropped or cultivated at least three times from 1 January 1999 to 31 December 2010; or
  • for perennial crops or timber plantations - was cropped for periods totalling three years or more from 1 January 1999 to 31 December 2010.

The three crops or cultivations need not be consecutive, but must not be grown simultaneously in the same season.

Certain cropping will not meet the criteria, such as that which is:

  • used as a carbon sequestration forest; or
  • an orchard, tree crop or vegetable garden used for domestic purposes.

If the land is considered to have a history of cropping, the project must avoid, or minimise as much as possible, any temporary or permanent impacts on the SCL. Where this is not possible, permanent impacts must be mitigated.

Mitigation

Developments that will have a permanent impact on strategic cropping land will need to mitigate the consequential loss of agricultural productive value. Mitigation can be through either, or a combination of:

  • a mitigation deed - which must include details of mitigation measures and periodic reporting requirements; and
  • payment to the mitigation fund - administered by the Department of Employment, Economic Development and Innovation, the collective contributions will be allocated to research, development, extension or infrastructure projects that will benefit cropping productivity, on advice from a community advisory group.

No compensation payable

The proposed legislation does not allow for any compensation to be paid by the State for loss or damage arising as a result of the proposed legislation.

Appeal process

A process for appealing decisions has been incorporated in the proposed legislation. All appeals may be made to the Planning and Environment Court, apart from appeals against conditions imposed on a resource authority or an environmental authority for resources developments, which may be made to the Land Court.

Offences and penalties

Offences have been introduced into the proposed legislation to ensure that the framework can be effectively enforced.

An offence under the proposed legislation which has a maximum penalty of imprisonment of two or more years will be a serious offence, while any other offence will be classed as a summary offence.

Transitional arrangements

Transitional arrangements are included in the Bill for developments that have achieved certain milestones in the assessment process as at 31 May 2011. Developments may be able to proceed without certain SCL conditions being imposed, depending on their stage of development.

The following authorities which are in force before the proposed legislation commences will not be affected by the legislation:

  • Resource authorities being mining tenements under the Mineral Resources Act 1989, petroleum authorities under the Petroleum and Gas (Production and Safety) Act 2004, petroleum tenures under the Petroleum Act 1923, GHG authorities under the Greenhouse Gas Storage Act 2009 and permits and tenures under the Geothermal Energy Act 2010.
  • Development approvals under the SPA.
  • Environmental authorities under the Environmental Protection Act 1994 where:
    -  the EIS stage for the proposed tenure was completed on or before 31 May 2011; or
    -  the draft environmental authority was given on or before 31 May 2011.

Key points for development under SPA

The proposed legislation sets out the process for identifying and determining whether land is SCL or has a history of cropping (eg the maps, zones, criteria and areas) as well as amending the Sustainable Planning Regulation 2009 to give the Department of Environment and Resource Management (DERM) a concurrence agency assessment role for particular development on SCL or potential SCL.

Significantly for developers, the proposed legislation also requires that there must be a State Planning Policy about SCL under the SPA, which may include applicable development assessment codes.

DERM has already released its draft SPP, which is intended to be finalised to commence at the same time as the proposed legislation (for more background to the SPP,please click here). In short, for a development proposal under the SPA (other than exempt development) on land which is or potentially is SCL, the proposal will be assessed against the different development assessment rules that apply to the two administrative areas (the strategic cropping protection and strategic cropping management areas) as outlined in the SPP.

It is also important to note that the proposed legislation mandates some additional requirements for making development applications concerning SCL. These include:

  • The application must state that land is SCL and include information about the validation decision or elect to treat the land as SCL for the application.
  • The application must be accompanied by information identifying or describing, amongst other things, the development footprint and an assessment of the development's impact on all SCL or potential SCL on the site.

In other words, the legislation is framed on the assumption that applicants will have resolved the question of whether potential SCL indicated on a 'trigger map' is in fact SCL, applying the criteria and, where applicable, seeking a validation decision prior to lodging a development application.

Conclusion

In conclusion, the Queensland Government has introduced to Parliament this new legislation in an effort to seek to find a balance between Queensland's agricultural, resource and development industries by assessing the impacts on SCL. The proposed SCL Act will create a legislative framework for SCL protection. The proposed new legislation is still being debated, but if passed, it is expected to become law in 2012.

This is a significant piece of legislation and will impact resource developers, such as miners and explorers, as well as urban developers and farmers.