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HG Alert: Queensland Government Announces Policy Framework to Protect Strategic Cropping Land - 30 Aug 2010

On Monday 23 August 2010, Minister Stephen Robertson announced the Queensland Government's plan for protecting the State's most valuable food producing land in a new Policy entitled Protecting Queensland's Strategic Cropping Land: A policy framework. The Minister stated that the Queensland Government has "taken the decision to protect Queensland's precious food producing land and provide food security for future generations".

The Policy is open for comment until 30 September 2010.

It is clear that the proposed legislative and regulatory changes, if introduced, will significantly impact resources projects and other non-agricultural land development throughout Queensland. In some cases, those projects will have no prospect of obtaining approval from the Queensland Government.

Outline of the Policy

The Policy will be implemented by way of:

  • a new law that will provide the criteria for identifying strategic cropping land, and a process for assessing and deciding whether development can proceed on that land;
  • a state planning policy under the Sustainable Planning Act 2009 which will guide planning and development assessment under the Act; and
  • amendments to the existing resources legislation including the Mineral Resources Act, Petroleum and Gas (Production and Safety) Act, Petroleum Act, Greenhouse Gas Storage Act, Geothermal Exploration Act, State Development and Public Works Organisation Act and Environmental Protection Act to require assessment of the impact of authorised activities on strategic cropping land, and to impose conditions to ensure such impacts are avoided.

Policy principles

The principles that are said to guide the implementation of the Policy, and that will be used to develop the new legislative and planning instruments, are as follows:

  • Relevant development should avoid locating on or impacting strategic cropping land.
  • Except in 'demonstrated exceptional circumstances', development will not be allowed on strategic cropping land unless the site can be fully restored to strategic cropping land condition.
  • To be considered 'demonstrated exceptional circumstances', it must be demonstrated that there is a significant community benefit from the development, and the resource is not found at an alternative site in Queensland (in the case of resources development), or the development cannot occur anywhere else other than on strategic cropping land (for development assessed under the Sustainable Planning Act).
  • The State, regional and local planning and development assessment will include provision for protecting strategic cropping land.

What is strategic cropping land?

At this point, the criteria for designating land as strategic cropping land have not been identified. The Policy states that strategic cropping land is a scarce natural resource identified by soil, climatic and landscape features that make it highly suitable for crop production, and includes a series of maps as the starting point for determining whether land is strategic cropping land.

The general criteria for identifying strategic cropping land are as follows:

  • The site meets the "'designated suitability classification scheme standards', which will require suitability for a range of crops". The 'designated suitability classification scheme standards' are yet to be published.
  • The land is within the strategic cropping land climatic zone. The strategic cropping land climatic zone is yet to be defined.
  • The land use does not preclude cropping.

The Policy says that the criteria will be further refined as the Policy and legislation are developed.

Where the land is identified on the strategic cropping land maps and is confirmed as strategic cropping land using the criteria, relevant development on that land will be assessed under the Policy.

Landholders will be able to apply to have their land included on the map where it can be demonstrated that the criteria for strategic cropping land are met.

The effect is that proponents will need to assume that the Policy applies until it can be demonstrated that the area affected by the proposed development does not meet the criteria. This is the opposite of a similar scheme (The Pennsylvania Code, Chapter 89, Subchapter E (45 Pa.C.S. §§ 89.121-122)) in Pennsylvania in the USA, where land is presumed to not be prime farmland where a proponent can demonstrate that either:

  • the land has not been historically used as cropland;
  • the slope of the land is 10 percent or greater; or
  • the land is not irrigated or naturally sub irrigated.

Which developments are affected?

The Policy applies to any development that will permanently alienate or temporarily diminish the productivity of strategic cropping land resources. Examples of relevant development that may permanently affect strategic cropping land include mining, underground coal gasification, construction of large water storage ponds and large scale forest plantations, or revegetation projects. Examples of developments that may temporarily diminish the productivity of strategic cropping land include pipelines or wells associated with petroleum and gas production, and geothermal developments.

The Policy exempts existing development approvals or areas that are already designated for urban development and state infrastructure, such as roads, rail and powerlines.

Decision making process

The Policy provides a decision making process for relevant developments which impact on strategic cropping land. If permanent alienation of strategic cropping land cannot be avoided and the exceptional circumstances do not apply, the development will not be approved. If the permanent alienation of strategic cropping land can be avoided by the imposition of conditions, those conditions will be imposed on the relevant development.

Exceptional circumstances

As referred to above, for resources projects, a proponent will need to demonstrate that the proposed resource does not exist anywhere else in Queensland in order to meet the exceptional circumstances criteria. For development assessed under the Sustainable Planning Act, the proponent will need to demonstrate that the proposed development cannot occur anywhere other than on strategic cropping land. The Policy states that meeting the exceptional circumstances criteria will be a "rare and unlikely event". However, if a proponent meets those criteria, the proponent will also have to demonstrate that there is a significant community benefit.

Where to from here

The Queensland Government intends to continue to develop the Policy in consultation with the strategic cropping land stakeholder advisory committee, which comprises representatives from AgForce, the Queensland Farmers Federation, the Queensland Resources Council, the Australian Petroleum Production and Exploration Association, the Queensland NRM Groups Collective, the Urban Development Institute of Australia, the Local Government Association of Queensland, Future Food Queensland, the Planning Institute of Australia and the South East Queensland Council of Mayors.

It is proposed that a regulatory assessment statement will be publicly released in late 2010 to further outline the extent of any potential impact. The regulatory assessment statement will also provide further refined maps of the strategic cropping land and the final criteria for strategic cropping land.

The new regime is to commence upon assent of the new legislation. However, the Policy states that "the government expects that proponents will take this framework into account in advancing their particular projects". On commencement, the decision making framework will apply to all new and undecided applications for relevant developments.

Conclusion

Protecting Queensland's Strategic Cropping Land: A policy framework has the potential to significantly affect the resources sector and other land developments in Queensland.

The Policy is not sufficiently clear to enable proponents to determine whether their proposed project is located on strategic cropping land. However, the presumption is that land will be strategic cropping land unless it can be demonstrated otherwise. What is clear is that if the area of land for the relevant development is strategic cropping land, and the relevant development will permanently affect the strategic cropping land, the proposed development will not be approved.

What proponents need to do now

There are a number of things that proponents should do to ensure that they are in a position to meet the challenges of the Policy if and when it is enacted, including:

  • conduct a review of the Policy to identify how it might impact on the proponent's projects; and
  • conduct an audit of the land affected by any proposed developments to determine whether it may be categorised as strategic cropping land.

If you would like more information and guidance about the Policy, please contact HopgoodGanim's Resources and Energy specialists.