Queensland Bills Explanatory Notes Queensland Bills Explanatory Notes[Index] [Search] [Download] [Bill] [Help]
1
State Development and Other Legislation Amendment
Bill 2001
STATE DEVELOPMENT AND OTHER
LEGISLATION AMENDMENT BILL 2001
EXPLANATORY NOTES
GENERAL OUTLINE
The State Development and Public Works Organisation Act 1971 is `An
Act which provides for State planning and development through a
coordinated system of public works organisation, for environmental
coordination, and for related purposes.'
The original Act was first passed in 1938 as a post Depression measure
to create employment and to develop the State, through a system of
coordinated public works.
The Act was substantially revised and updated in 1971 when specific
powers relating to supervision of the environment were introduced to the
Act (which were subsequently amended in 1978).
The Act was further amended in 1999, clarifying the Coordinator-
General's role in coordinating impact assessment for significant projects;
enabling the Coordinator-General to acquire and access land for persons
other than the State, and updating enforcement provisions for land use
established within a state development area.
Objectives of The Legislation
The proposed amendments seek to make a number of modifications to
the State Development and Public Works Organisation Act 1971 (SDPWO
Act), the Environmental Protection Act 1994, the Integrated Planning Act
1997 (IPA), the Electricity Act 1994, the Mineral Resources Act 1989 (MR
Act) and the Central Queensland Coal Associates Agreement Act 1968
(CQCAA Act).
The amendments to the SDPWO Act are principally needed to reflect
recent changes to other legislation dealing with environmental impact
assessment, together with further recognition of the changing role in
government in the provision of infrastructure.
2
State Development and Other Legislation Amendment
Bill 2001
The amendment to the IPA provides for the Minister to proceed straight
to designation for community infrastructure projects after the Coordinator-
General has coordinated assessment of the environmental effects under
section 29A of the SDPWO Act.
The amendments to the EP Act and the MR Act indicate that the
provisions of the Act relating to the assessment of environmental impacts
for mining projects do not apply to projects declared significant projects
under the SDPWO Act.
The amendments to the Electricity Act 1994 are needed to facilitate the
development of the Australian Magnesium Corporation Plant to be located
adjacent to the Stanwell Power Station by ensuring that the Plant is not
required to comply with emergency rationing orders or restriction
regulations for its minimum electricity demand.
The Bill also amends the CQCAA Act to reflect BHP and Mitsubishi's
amendment of their respective CQCA interests from 52.1%/47.9% to 50%/
50%. This follows BHP/Mitsubishi's 50/50 acquisition of QCT Resources
in late 2000/early 2001.
The Bill amends the SDPWOA to:
� reflect the changes to the assessment of mining which have
occurred with the transfer to the Environmental Protection
Agency of the environmental regulation of the mining industry
from the former Department of Mines and Energy. The
amendments will maintain the Coordinator-General's ability to
coordinate impact assessment for significant projects which
require an Environmental Authority (Mining Lease);
� provide clarification of administration and enforcement
provisions for conditions attached to development approvals
issued following the completion of an EIS for a significant
project pursuant to section 29B of the Act;
� provide linkages between the assessment of environmental
effects under section 29 and the designation of community
infrastructure pursuant to the IPA;
� provide for the Coordinator-General to delegate and transfer
authorised works under sections 68 and 84;
� provide for the Coordinator-General to take an interest in land
less than fee simple, including an easement and a lease, including
for persons other than the State, for the purposes of section 78;
3
State Development and Other Legislation Amendment
Bill 2001
� update the finance provisions contained in Part 9 to reflect
changes to the Statutory Bodies Financial Arrangements Act
1982 (SBFA Act). The amendments will enable the Coordinator-
General to borrow moneys from the Queensland Treasury
Corporation without the need to obtain the prior approval of the
Governor-in Council, as a Statutory Body under the SBFA Act;
� provide for the Coordinator-General to prepare regulations for
the requirements for environmental impact statements or
processes, such as those proposed to be accredited under a
bilateral agreement made pursuant to the Commonwealth
Environmental Protection and Biodiversity Conservation Act
1999 (EPBC Act);
� include in the transitional provisions the ability for the
Coordinator-General to declare as a significant project, a project
which include land intended to be designated for community
infrastructure pursuant to IPA for which a study about the
environmental effects of the proposal was being undertaken;
Reasons For The Bill
The attached Bill amends the SDPWOA to provide clarification as to the
administration and enforcement provisions for conditions attached to a
development approval granted following the completion of an EIS for a
significant project pursuant to s. 29B of the Act. The amendments clarify
that from the time that a development approval takes effect, the
Coordinator-General's (COG) involvement ceases. The amendments
provide for the COG's report to identify the agency to administer any
conditions required to be attached to a development approval. Resolution
of this issue originally raised by the government departments will clarify
agency responsibilities in relation to the administration of development
approvals. In the case of the administration of the EP Act, the amendment
will provide for the enforcement of conditions within the jurisdiction of the
EPA by the use of Environmental Protection Orders if needed.
The Bill amends the SDPWO Act, EP Act 1994 and the Mineral
Resources Act 1989 to enable the Coordinator-General to maintain an
ability to coordinate the assessment of environmental impacts through the
preparation of an Environmental Impact Statement (EIS) for significant
projects which involve an environmental authority (mining lease) pursuant
to the new arrangements within the EP Act. The amendments respond to
the recent transfer of responsibility for the environmental assessment of
4
State Development and Other Legislation Amendment
Bill 2001
mining from the former Department of Mines and Energy to the
Environmental Protection Agency.
The provisions will enable the assessment of those mining projects
declared by the Coordinator-General to be significant projects pursuant to
section 29C to be coordinated through the provisions of the SDPWO Act
rather than the provisions of the EP Act.
The Bill amends section 78 to provide that the Coordinator-General may
acquire land less than an estate in fee simple (freehold) as is currently
provided in the Act. Specifically, it provides for the acquisition of an
easement. This amendment relates to the acquisition of land by the
Coordinator-General, including that for an infrastructure facility, which
may be built, owned, operated and maintained by persons other than the
State. This amendment will provide for situations where the limitation on
taking land in fee simple would result in unnecessary hardship for
landowners where an easement or lesser title may be more appropriate.
This amendment would also have application to enable an interest in land
such as a lease to be acquired.
The Bill amends Part 7 of the SDPWO Act in the interests of legislative
consistency and currency, to replace the COG's current express financial
powers with a cross-reference to the relevant provisions of the Statutory
Bodies Financial Arrangements Act 1982 (SBFA Act). The amendments
provide that the COG is a statutory body for under the SBFA Act.
Part 7 of the SDPWO Act empowers the COG to borrow, raise money or
make financial arrangements, including the power to issue debentures,
bonds and stock. Part 7 of the Act also contains a range of provisions
relating to the exercise of these powers. A number of these provisions
contained cumbersome approval requirements and many were outdated in
their references to other Acts.
The Bill amends the CQCAA Act to amend to Schedule 2 to reflect
changes resulting from the decision of BHP and Mitsubishi to move to
equal ownership of their interests in the Central Queensland Coal
Associates Joint Venture.
The amendments maintain the objectives of the Acts.
ESTIMATED COSTS FOR GOVERNMENTAL IMPLEMENTATION
Any costs incurred are a result of the amendments to the Act in respect to
drafting and preparation of the Bill represent a minimal cost to
5
State Development and Other Legislation Amendment
Bill 2001
Government. In other words, the impact of the changes should be `Budget
neutral'.
RESULTS OF CONSULTATION
The proposed amendments have been supported.
CONSISTENCY WITH FUNDAMENTAL LEGISLATIVE
PRINCIPLES
The Bill raises two Fundamental Legislative Principles issues with
respect to:
� commencement provisions; and
� retrospective commencement for subsection 1 and the partial
exclusion of the Acts Interpretation Act 1954, s15DA for
subsections (3) and (4).
The commencement provisions provide for the provisions relating to the
assessment of mining projects to commence by Proclamation up to two
years after the date of assent. Because of the potential implications of the
Alternative State Provisions on this part of the Act, the timing for their
commencement has been made to enable consultation with the
Commonwealth Government should any issues arise which could
otherwise have the provisions set aside.
Retrospective commencement in the provisions relate only to the
administration and enforcement of conditions attached to a development
approval granted following the completion of an EIS for a significant
project. This retrospective commencement will not affect any interests but
will provide clarification as to the ability of State agencies such as the EPA,
to fully administer and enforce conditions attached to a development
approval.
CONSULTATION
The following relevant organisations have been consulted:
Department of the Premier and Cabinet
Department of Local Government and Planning
Environmental Protection Agency
Queensland Treasury
Crown Law
6
State Development and Other Legislation Amendment
Bill 2001
NOTES ON CLAUSES
The section numbers in the State Development and Other Legislation
Amendment Act 2001 are referred to as clauses in these explanatory notes.
PART 1--PRELIMINARY
Clause 1 states that the short title of the Act is the State Development
and Other Legislation Amendment Act 2001.
Clause 2 provides that sections 29PA, 29PB and 29O of the SDPWO Act
are taken to have to commenced on 16 June 1999 and that the remaining
provisions of the Act commence on a day to be fixed by proclamation but
not more than 2 years from the date of assent.
PART 2--AMENDMENT OF CENTRAL QUEENSLAND
COAL ASSOCIATES AGREEMENT ACT 1968
Clause 3 defines the Act amended in Part 2 as being the Central
Queensland Coal Associates Agreement Act 1968.
Clause 4 amends section 4 of the Central Queensland Coal Associates
Agreement Act 1968 to remove the mechanism whereby Governor in
Council could make further amendments to the Act by order in council.
The Scrutiny of Legislation Committee has expressed a strong preference
that agreements not be amended by order in council or regulation.
Schedule 1 introduces amendments to Schedule 2 to reflect changes
resulting from the decision of BHP and Mitsubishi to move to equal
ownership of their interests in the Central Queensland Coal Associates
Joint Venture.
The Central Queensland Coal Associates is a joint venture of companies
that are involved in the development, ownership and operation of coal
mines in the Central Queensland region and also the Hay Point Coal
Terminal that is adjacent to the Government's Dalrymple Bay Coal
7
State Development and Other Legislation Amendment
Bill 2001
Terminal. As one of the "pioneering" arrangements that opened up the
Central Queensland coalfields, the arrangement between the Joint Venture
and the State is set out in an Agreement that is enacted as legislation, in
keeping with the accepted practice at the time the Agreement was
developed.
The Central Queensland Coal Associates Agreement Act 1968 details the
parties to the Central Queensland Coal Associates Joint Venture and the
relative ownership levels of each party. When changes to ownership levels
of the participant companies in the Joint Venture occur (including the
addition and removal of participant companies), it is necessary for these
changes to be reflected in amendments to the Act. Numerous amendments
have been made to the CQCA Joint Venture parties and their level of
interest in the Joint Venture since Utah Development Company and
Mitsubishi signed the original Agreement with the State on 28 January
1969.
Most recently, the CQCA Joint Venturers were essentially BHP,
Mitsubishi and QCT Resources Ltd (held through their subsidiary
companies). However, in August 2000 BHP and Mitsubishi together made
a stock market takeover offer for QCT Resources Ltd, a bid that was
ultimately successful. Note that QCT's interest in the CQCA Joint Venture
was not affected by the successful bid, and as a result no change to the Act
was required (all that happened was that ownership of QCT transferred to
BHP and Mitsubishi).
On 28 March 2001 BHP and Mitsubishi publicly announced an
agreement to move to equal ownership of their interests in the CQCA Joint
Venture, thus necessitating this latest amendment to the Act. Specifically,
the Amendment recognises the transfer of a 2.10% interest in the CQCA
Joint Venture from BHP Coal Pty Ltd to QCT Management Limited. This
latest transfer is an adjustment that results in BHP and Mitsubishi, through
their direct and their indirect interests in the CQCA Joint Venture, each
having a 50% equal interest in the CQCA Joint Venture.
PART 3--AMENDMENT OF THE ELECTRICITY ACT
1994
Clause 5 defines the Act amended in Part 3 as being the Electricity Act
1994.
8
State Development and Other Legislation Amendment
Bill 2001
Clause 6 inserts a new division in chapter 5, part 2 of the Electricity Act
1994.
Section 129A applies to the Stanwell Magnesium Plant, and stipulates
that regulations or rationing orders under sections 122 and 124 of the
Electricity Act 1994, can only apply to the electricity demand at the Plant
that is greater than an amount prescribed by regulation. This prescribed
amount must be at least 50 MW but no more than 100 MW.
The Australian Magnesium Operations magnesium metal project will be
located at Stanwell inland from Rockhampton and as such, a large
proportion of the benefits from the development and operation of this plant
will accrue to the Fitzroy region and also possibly Gladstone/Calliope. The
project will provide significant economic benefits to the region and create
skilled and unskilled jobs during construction and operation.
Smelters of various kinds are concerned about security of electricity
supply. If electricity supply is interrupted for sufficiently long periods,
molten metal can solidify in "baths" or "pots". The cost required to clear
the equipment of solid metal is substantial, and significant losses in
production time would also result.
Therefore, given the significant economic benefits of this project,
legislative protection of the minimum electricity supply to the smelter has
been created to cover these potential commercial and sovereign risks, to
ensure the future development of this project.
This protection is given by restricting the operation of sections 122 and
124 of the Electricity Act 1994, so that any emergency rationing orders or
restriction regulations only apply to the plant's demand in excess of their
minimum demand level (initially 50 MW). This minimum demand level is
expected to change in future with the anticipated expansion of the plant,
hence the proposed amendments provide for the minimum demand level to
be prescribed by regulation.
The division expires on 31 December 2033.
PART 4--AMENDMENT OF THE ENVIRONMENTAL
PROTECTION ACT 1994
Clause 7 defines the Act amended in Part 4 as being the Environmental
Protection Act 1994.
9
State Development and Other Legislation Amendment
Bill 2001
Clause 8 amends section 37 of the Environmental Protection Act 1994
(EP Act) to clarify that the Environmental Impact Statement (EIS) process
under the EP Act does not apply to a significant project as declared under
section 29B of the SDPWO Act on the basis that Part 4 of that legislation
provides for an EIS process for significant projects.
Clause 9 amends section 60 of the EP Act by declaring that for the
purposes of an application for an environmental authority under the EP Act
where an EIS process must be completed, that process will be taken to have
been completed where the application relates to a significant project and
where the COG has issued a report on the EIS for the project under Part 4
of the SDPWO Act and that report has been given to the proponent. This
will mean that wherever there is an EIS requirement for an environmental
authority for mining activities under the EP Act, that requirement will be
taken to have been met in the case of a significant project where the EIS
process under the SDPWO Act has been completed.
Clause 10 amends section 162 of the EP Act. Part 2C of the EP Act (in
which section 162 is located) relates to environmental authorities required
for mining activities. Essentially, there are two types of application for
such environmental authorities - standard or non-standard. A standard
application is intended to cover a project of low labour and operational
requirements. The amendments to section 162(3)(a) and (b) in effect
provide that where an application is for an environmental authority (mining
lease) as part of a significant project then the application will be treated as a
non-standard application.
Clause 11 amends section 164 of the EP Act. That section currently
provides that where an application is a non-standard application the
administering authority must specify that an EIS is required. The
amendment makes clear that no EIS will be required where the application
for the environmental authority (mining lease) is part of a significant
project. This is because the issue of an EIS for such a matter would have
been addressed under the SDPWO Act Part 4.
Clause 12 amends section 165 in a similar manner to the amendment to
section 162 Section 165 allows the Minister administering the EPA (EPA
Minister) to make a decision about the assessment level of an application,
ie whether it is non-standard or standard. Consistent with the amendment
to section 162, the EPA Minister cannot make an assessment level decision
on an application for an environmental authority relating to a significant
project which application must be treated as a non-standard application.
Clause 13 amends section 203 of the EP Act which relates to the content
requirements of an EMOS which must be submitted as part of an
10
State Development and Other Legislation Amendment
Bill 2001
application for an environmental authority (mining lease) where it is a non-
standard application. The amendment requires the EMOS to state whether
an EIS under the SDPWO Act has been prepared for the project.
Clause 14 amends section 205 which sets out the entitlement of the
administering authority for an environmental authority (mining lease) to
give an applicant an assessment report about a submitted EMOS relating to
that application. The ability of the administering authority to give such an
assessment report does not apply if the application relates to a significant
project, an EMOS is included as part of the EIS process under the SDPWO
Act for that project and the COG in giving his report on the project states
that the EMOS complies with or substantially complies with the content
requirements for an EMOS under section 203 of the EP Act.
Clause 15 amends section 206 subclause (b) by limiting the ability of the
EP Act administering authority upon an application for an environmental
authority (mining lease) to make an EMOS assessment report. In making
its assessment report, the administering authority must, where the
application relates to a significant project, consider the EIS prepared under
the SDPWO Act and the COG's report thereon.
Clause 16 amends section 209(2)(a) and (b) of the EP Act, which deals
with the conditions which an administering authority, may apply in the case
of a standard application for an environmental authority (mining activities).
The introduction of new subclause (2)(b) requires the administering
authority to include in the draft environmental authority relating to a
mining lease which is part of a significant project any conditions to the
environmental authority which are stated in the COG's report for the
project made under the SDPWO Act.
The ability of the administering authority under the EP Act to include
additional conditions in such an authority is limited by the amendment to
section 209(6) to the extent that any additional conditions cannot be
inconsistent with the conditions stated in the COG's report with respect to
the environmental authority for a significant project.
Clause 17 amends section 210 relating to the conditions for a non-
standard application for an environmental authority (mining lease) in the
same manner as the amendments to section 209 relating to a standard
application. It seeks to preserve the applicability of any conditions to the
draft environmental authority stated in the COG's report so that those
conditions are included in the draft authority and there can be no additional
inconsistent conditions imposed under the EP Act.
11
State Development and Other Legislation Amendment
Bill 2001
Clause 18 amends section 216 of the EP Act which gives a legal right to
any party to object to an application for an environmental authority, or the
draft environmental authority or a condition included in the draft. The
introduction of new subsection 1 is to the effect that no person can object to
a condition included in the draft environmental authority relating to a
significant project where that condition was included in the COG's report
on the significant project.
The introduction of new subsection (4) of section 216 is to make clear
that an objection to an application for an environmental authority is an
objection relating to the application and not to any of the application
documents which would include an EIS. That is, ancillary documents such
as the EIS will not be open to objection.
Clause 19 amends section 222 of the EP Act which sets out the type of
decision which the Land and Resources Tribunal (Tribunal) can make when
an objection is made to an application for an environmental authority
(mining activities). The Tribunal has the power to recommend to the
Minister administering the MR Act (MRA Minister) that the application be
granted upon stated conditions that are different to the conditions in the
draft environmental authority. The introduction of subsection (1A) makes
clear that no such recommendation can be made which would either
exclude conditions recommended by the COG under a report on a
significant project under the SDPWO Act or which would include
conditions which are inconsistent with any such conditions included in the
COG's report.
Clause 20 amends the EP Act by replacing subsections 1 to 4 of section
224. The amendments provide that the EPA Minister, after the
recommendations of the Tribunal on an objection to an environmental
authority (mining lease) have been made, not only seek advice from the
MRA Minister on the decision but also, where the application relates to a
significant project, seek the advice of the Minister administering the
SDPWO Act (State Development Minister).
Clause 21 amends section 225. Currently the section requires the EPA
Minister when considering granting an environmental authority (mining
activities) to consider any conditions for the environmental authority
recommended by the COG under the SDPWO Act. Presently, section
224(4) does not require the EPA Minister to impose such a recommended
condition. To reflect the amendment to the SDPWO Act by the
introduction of section 29W thereto which allows the COG's report on the
EIS for a significant project to state conditions for the proposed draft
environmental authority (mining lease) relating thereto, which conditions
12
State Development and Other Legislation Amendment
Bill 2001
will be taken to be imposed on any environmental authority to be issued.
The introduction of new section 225(3)(b) is to the effect that the EPA
Minister must consider the conditions included in the draft environmental
authority for standard or non-standard applications.
Clause 22 amends section 305(1)(f) to reflect the amendments to section
29W of the SDPWO Act which allows the COG's report on the EIS process
for a significant project to state conditions for a draft environmental
authority (mining lease) relating thereto.
Clause 23 introduces a new section 306A which provides that if in an
environmental authority (mining lease) relating to a significant project
which includes conditions stated in the COG's report for the project, there
is any inconsistency between any condition placed on the environmental
authority or a draft environmental authority for an environmental authority
(mining activities) and a native title issues condition, the native title issues
condition will prevail to the extent of any inconsistency.
Clause 24 amends the dictionary in Schedule 3 by amending the
definition of "development condition" to include a reference to a condition
referred to in the new section 29O(5) of the SDPWO Act to ensure that the
EPA's ability to administer the condition under the EP Act is retained.
Schedule 3 is also amended to include the definitions of "significant
project" and "Coordinator-General's report" consistent with those
definitions in the SDPWO Act.
PART 5--AMENDMENT OF THE INTEGRATED
PLANNING ACT 1997
Clause 25 defines the Act amended in Part 5 as being the Integrated
Planning Act 1997.
Clause 26 amends section 2.6.8 of the Integrated Planning Act 1997
(IPA) which deals with community infrastructure designation. The
amendment provides that where the Minister may proceed straight to
designation (using the process set out in Schedule 7 of IPA), if the Minister
is satisfied that the Coordinator-General (COG) has coordinated the
assessment of environmental effects of the community infrastructure in
accordance with section 29A of the SDPWO Act.
13
State Development and Other Legislation Amendment
Bill 2001
This amendment clarifies that the Minister may proceed to designation
after assessment has been completed for both a significant project (for
which a report is prepared pursuant to section 29K of the SDPWO Act) or,
for which the environmental effects have been assessed pursuant to section
29A which provides that the COG coordinate departments of the
Government and local bodies throughout the State to ensure that in any
development proper account is taken of the environmental effects. The
"Policies and Administrative Arrangements - Impact Assessment in
Queensland" document, commonly referred to as "the Green Book",
applies to the assessment of environmental effects undertaken pursuant to
section 29A.
Clause 27 amends section 6.1.44(2) of IPA which deals with conditions
that may be changed or cancelled by the assessment manager or
concurrence agency in certain circumstances. The amendment provides for
an additional circumstance whereby a condition may have been imposed as
the result of a report by the COG about an environmental impact statement
(EIS) prepared for significant project under the SDPWO Act. In this
limited circumstance, there are no concurrence agencies, and to the extent
it was able to before the commencement of IPA, it is intended that entities,
which have jurisdiction for a condition, be able to rely on those powers to
change or cancel such a condition.
PART 6--AMENDMENT OF THE MINERAL
RESOURCES ACT 1989
Clause 28 defines the Act amended in Part 6 as being the Mineral
Resources Act 1989.
Clause 29 deletes section 276(6) to reflect the changes in the SDPWO
Act which confirms that the conditions in the COG's report are included in
the Mining Lease for a significant project.
14
State Development and Other Legislation Amendment
Bill 2001
PART 7--AMENDMENT OF THE STATE
DEVELOPMENT AND PUBLIC WORKS
ORGANISATION ACT 1971
Clause 30 defines the Act amended in Part 7 as being the State
Development and Public Works Organisation Act 1971.
Clause 31 omits the definitions in section 5 of the State Development
and Public Works Organisation Act 1971 (SDPWO Act) which are replaced
with a dictionary in the schedule. This amendment updates the Act in line
with current drafting practice.
The "local bodies" definition is amended to remove an outdated
reference to the Local Bodies Loan Guarantee Act 1923 which has been
repealed. The amended definition provides that a `local body' is a
government owned corporation; or a statutory body as defined in the
Statutory Bodies Financial Arrangements Act 1982; or another body
established under an Act.
Clause 31 also inserts defines "Integrated Planning Act" to mean the
Integrated Planning Act 1997.
Clause 32 inserts the following definitions for Part 4--Environmental
Coordination:
"approval" includes authority, lease, licence, permit or other approval.
"concurrence agency" means a concurrence agency under IPA.
"Coordinator-General's report", for an EIS, means the report the
Coordinator-General must prepare under section 29K(3).
"environmental authority (mining lease)" means an environmental
authority (mining lease) under the Environmental Protection Act
1994.
"Environmental Protection Act" means the Environmental Protection Act
1994.
"EPA Minister" means the Minister for the time being administering the
Environmental Protection Act 1994.
"Mineral Resources Act" means the Mineral Resources Act 1989.
"MRA Minister" means the Minister for the time being administering the
Mineral Resources Act 1989.
15
State Development and Other Legislation Amendment
Bill 2001
The inclusion of the 'approval' definition provides for the range of
approvals that may require an EIS or similar assessment under other
legislation. The remainder of the definitions reflect changes in other
legislation related to Environmental Coordination, which are addressed in
subsequent amendments to the SDPWO Act.
Clause 33 inserts a new section 29B(4) which provides that if the project
involves a proposed environmental authority (mining lease), the
Coordinator-General (COG) must give a copy of the gazette notice to the
EPA and MRA Ministers. Previously this subsection required the COG
when declaring a project to be a significant project, for which an EIS was
required, to give a copy of the gazette notice of the declaration to the MRA
Minister. This notice will now be given not only to the MRA Minister but
also to the EPA Minister.
Clause 34 amends section 29H by inserting a new section which
provides for an EIS to be prepared for a stage of the development. The
introduction of the concept of a staged EIS responds to situations where a
project may be better suited to assessment in stages rather than as a total
development. For instance, it may be appropriate for the proponent to
prepare an EIS for the major components of a development initially and
have that aspect of the development assessed through the EIS process and
evaluated in a report by the COG before embarking on more detailed
components of the design of a development which also require assessment.
Section 29H(2) provides that the proponent may subsequently prepare a
further EIS for another stage or stages of the project. A further EIS would
then be provided to the COG under the provisions in s.29H and the
provisions of sections 29I to 29K would apply. The preparation of
subsequent EISs for the project would not require a new significant project
declaration or the public notification of the draft terms or reference as the
EIS would be for the same project for which the declaration was made and
for which the terms of reference prepared: in effect the assessment and
evaluation of an aspect of the project would have been deferred.
Section 29H(3) provides that for the COG to state, in his or her report,
the timing for the proponent to give the COG the further EIS. In this way
the COG can set up a timeframe for the proponent to complete further
studies on the project already declared to be a significant project.
Clause 35 amends section 29I to address the possibility that there may
be more than one EIS that needs to be publicly notified if an EIS is
completed for a stage of the development pursuant to s. 29H(1)(b)
Clause 36 amends section 29K by replacing subsection 4 to clarify that
in preparing his or her report evaluating the EIS, the COG may: evaluate
16
State Development and Other Legislation Amendment
Bill 2001
the environmental effects of the project and any other related matters; state
conditions to be attached to approvals and; make recommendations about
other approvals or for the designation of community infrastructure under
IPA.
Further, new subsection 5 provides for the public notification of the
COG's report. This provision provides for the outcome of the EIS process
to be made publicly available by the placement on a website of the COG's
report. This process is consistent with that in other legislation, in particular
Commonwealth environment legislation. The COG's report will be placed
on the website of the Department administering the Act, currently the
Department of State Development.
Clauses 37 and 38 insert a new subdivision dealing with the relationship
with IPA and the application of the COG's report and development
approvals. The provision makes it clear that the COG's report will state the
project or the stage of the project involving development for which the
report applies and for which the provisions in section 29M apply.
Clause 39 amends section 29M to provide that the COG's conditions are
treated as concurrence agency conditions until a development approval
pursuant to IPA takes effect. This provision provides the COG with the
same powers as a concurrence agency including the ability to amend
conditions in the same way concurrence agencies may in the IDAS process
pursuant to IPA before a decision is made by the assessment manager and
up until the approval takes effect under s.3.5.19 of IPA.
Clause 40 amends section 29O to clarify that the COG's conditions
apply only to the development approval which has been the addressed in
the EIS and not for each development approval required for the project.
These changes to section 29O clarify that the conditions stated in the
COG's report are only to be attached to those development approvals for
the project which have been assessed during the EIS process. While it is
intended that proponents are able to benefit from the assessment of all
development approval requirements for a project through the conduct of a
coordinated assessment process, it is sometimes the case that there is
insufficient detail available about future development approvals required at
the time of the preparation of the EIS, and that further development
assessment processes will be required. This situation occurs in the case of
operational approvals in the form of "environmentally relevant activities"
which require an application for a material change of use pursuant to IPA.
The proper assessment of other development approvals which might be
required for a project but which have not been considered during the EIS,
or for which there has been insufficient material provided during the EIS
17
State Development and Other Legislation Amendment
Bill 2001
are not precluded because of the assessment process coordinated by the
COG.
The new section 29O(2A), provides clarification that following the
completion of the COG's report the assessment manager's powers to assess
the development application and impose conditions are not altered. Any
additional conditions imposed by the assessment manager must not be
inconsistent with conditions stated in the COG's report.
This section clarifies that the assessment manager can impose its own
conditions on an approval in accordance with its powers contained in IPA.
The new section 29O(5) clarifies that where the COG's report provides
for conditions that must be attached to a development approval, the report
may state the entity that is to have jurisdiction for the condition. The
section also provides that the condition is taken to be a concurrence agency
condition under IPA and should be treated as a concurrence agency
condition from the time the approval takes effect under s. 3.5.19 of IPA.
Clause 41 inserts a new section 29PA about concurrence agencies for
development approvals. Section 29PA(1) provides for the COG to identify
and include as part of his or her report prepared pursuant to section 29K,
the agency which has jurisdiction for the conditions stated in the report.
This provides for the administration and enforcement of conditions
attached to development approvals granted following completion of an EIS
for a significant project. This section provides that the COG's report
nominates the entities as concurrence agencies to administer the
development approval and conditions of the development approval when a
development approval takes effect. This provision will enable an entity to
administer the approval or the condition of an approval as if the project had
not been declared a significant project.
The new section 29PB provides that the COG's report nominate the
entity that, for the purposes of s. 3.5.33 of IPA, is the entity with
responsibility for changing or cancelling a development approval
condition. This entity nominated by the COG will be in addition to the
assessment manager or entity that decided the condition.
These provisions provide agencies, proponents and the assessment
manager with certainty as to the ability to fully administer development
approval conditions. The commencement of these provisions is
retrospective to clarify the responsibility for the administration of
conditions attached to development approvals already granted where
following the completion of an EIS for a significant project since the June
1999 amendments to the Act.
18
State Development and Other Legislation Amendment
Bill 2001
A new section 29Q provides for linkages to the community
infrastructure designation process provisions of IPA. Section 29Q
recognises that pursuant to section 2.6.8 of IPA, provides a process by
which a Minister may proceed straight to designation after assessment has
been completed for a significant project and for which a report has been
prepared pursuant to section 29K of the SDPWO Act.
Section 29Q(2) provides that the COG's report evaluating the EIS may
recommend requirements for inclusion in the community infrastructure
designation. Further, the entity making the community infrastructure
designation pursuant to s.2.6.8 of IPA may have regard to the COG's
recommendation to ensure that the designation includes any appropriate
requirements to address the environmental effects of the proposed use as
assessed during the EIS process.
Clause 42 replaces existing Division 5 of Part 4 with a new Division 5
which still relates to the interrelationship between the declaration of a
significant project relating to mining and the MR Act. Previously section
29R made reference to the COG giving notice in respect of a statement of
proposals or environmental management overview strategy which was
relevant in applying for mining leases. The recent amendments to the EP
Act have removed these matters from the jurisdiction of the Mining
Registrar under the MR Act. They are now relevant in relation to the
application for an environmental authority (mining lease).
The new section 29S provides on a general basis that the COG, in
reporting on a significant project, may state conditions for the proposed
mining lease and that if a mining lease is granted under the MR Act the
COG's conditions are taken to be included as conditions of the mining
lease.
The new section 29T makes clear that subject to s.29U, if there is any
inconsistency between the conditions of a mining lease as determined
under the MR Act and the conditions imposed from a COG's report, then
the COG's conditions will prevail to the extent of the inconsistency.
The new section 29U provides that a native title issues condition
(imposed or made under or as part of the native title issues decision under
the MR Act) prevails over the COG's conditions to the extent of any
inconsistency.
The new division 5A creates the relationship between the declaration of
a significant project under the SDPWO Act and the need for that project
where it relates to mining to obtain environmental authorities (mining
activities) under the EP Act.
19
State Development and Other Legislation Amendment
Bill 2001
The new section 29W provides that the COG's report for a significant
project may state conditions for any draft proposed environmental
authority (mining lease) relating thereto, to be issued under the EP Act.
The section provides for the COG to give a copy of the report to the EPA
Minister.
Clause 43 amends section 29W which deals with the relationship of the
COG's report with other legislation. The amendment clarifies that the
COG's report has a relationship with other approval processes in the EP Act
outside of that for environmental authorities for mining activities in chapter
2 of the EP Act.
Clause 44 amends section 29Y to provide the COG with the ability to
recommend that an application for an approval be refused; or that stated
conditions contained in the COG's report be imposed on an approval. These
provisions provide for the application of the COG's report in the
consideration of approvals, licences and other permits other than those
specifically contemplated in other parts of the Act
Clause 45 amends section 29ZA clarifies that the person considering an
approval must take the COG's report into consideration required for a
project. The existing provision was ambiguous in that it contemplated a
person approving of a project. The amendment makes clear that
consideration of the COG's report is linked to the consideration and
decision about an approval required under legislation for a project.
Clause 46 amends section 68 to include a provision for the COG to
delegate to the chief executive of a department the construction of
approved works pursuant to section 66. The existing provisions enable the
COG to delegate to a local body. The additional ability for the COG to
delegate these works to the chief executive of a department recognises that
once approved by Governor in Council, the COG is required to undertake
the works as soon as is practicable. Before delegating a power, function, or
duty conferred on him or her under section 66, the COG is required to
obtain the approval of the Governor in Council.
Clause 47 inserts a new section 77B to provide that a project board
established under the Act is statutory body for the Statutory Bodies
Financial Administration Act 1982. The amendment replaces an outdated
reference to the Local Bodies Loan Guarantees Act 1923 which has been
repealed.
Clause 48 amends the provisions in section 78(1) dealing with the power
of the COG to take land. The existing provisions provide that the COG can
only take land in "an estate in fee simple". The amendment provides for
20
State Development and Other Legislation Amendment
Bill 2001
the COG to take "land" as defined in the SDPWO Act. "Land" is defined
as "any estate or interest in land, and any easement, right, power or
privilege in, over, or in connection with land, and any wharf." The
amendment to section 78 will provide for the Coordinator-General to take
an interest in land, including an easement or acquire an interest such as a
lease.
This provision will allow for the taking of an easement to facilitate
significant infrastructure facilities where taking land in fee simple would
not be warranted to accommodate the project and where the taking of an
easement would reduce the potential hardship of affected landowners.
Clause 49 amends section 84 to provide for the COG to negotiate the
transfer of approved works to any entity established under an Act. The
amendment recognises that upon the completion of authorised works or
when works have attained such a stage as to be available to for use for the
purpose for which they were undertaken, the COG having taken
responsibility for undertaking the works is unlikely to retain ownership of
them. However, in line with current trends regarding the ownership of
infrastructure, the transfer of works is no longer reasonably constrained to
agencies representing the Crown or local bodies as defined in the Act.
Under this section, the Coordinator-General would still require the
Governor in Council's approval of the terms of any proposed transfer.
Clause 50 removes outdated finance provisions by deleting sections 95
to 101A. This amendment is consistent with current legislative provisions
regarding financial arrangements. The amendment provides for the
substitution of the COG's existing express financial powers with a cross-
reference to the relevant provisions of the Statutory Bodies Financial
Arrangements Act 1982 (SBFA Act).
The new section 95(1) provides that the COG is a statutory body for the
SBFA Act and clarifies that the SBFA Act sets out the way in which the
COG's powers are affected.
Clause 51 removes the provision requiring the publication of orders in
council and replaces it with a new provision dealing with publication of
information by the COG. New section 119(1) provides that where the COG
is required to notify a document of information, notification must be made
by placing the information on the department's website or such other
website considered appropriate by the COG. No limitation is placed on the
COG also publicly notifying documents and information in other ways
such as newspaper advertisements.
21
State Development and Other Legislation Amendment
Bill 2001
Clause 52 amends the regulation making ability to clarify that the
provisions relating to the use by the public and the safeguarding of securing
against trespass, injury, misuse or relates to authorised works approved
pursuant to section 66.
Section 121(1)(i) updates the penalty units from $50 to 20 penalty units,
which addresses the outdated penalty provision and updates it with a more
appropriate provision.
Section 121(1) is further amended to include a new subclause (fa) to
provide for the making of regulations for with respect to environmental
impact statements or processes, such as those proposed to be accredited
under a bilateral agreement made pursuant to the Commonwealth
Environmental Protection and Biodiversity Conservation Act 1999 (EPBC
Act). Under the provisions of the EPBC Act, in order to be accredited by
the Commonwealth, the State's assessment process must be in law. The
amendments provide that additional benchmarks required by the
Commonwealth can be included in the EIS process provided in Part 4 of
the Act by way of Regulation. This allows Part 4 to remain intact while
providing that additional requirements for EISs (where there is a matter of
national environmental significance) set by the Commonwealth can be
incorporated in the process without fettering the discretion of the COG.
Clause 53 inserts a new section 122A which provides for the
renumbering of the Act in the next reprint.
Clause 54 inserts a new provision in the transitional provisions
contained in section 123. The section is amended to include the ability for
the COG to declare as a significant project, a project which includes land
intended to be designated as community infrastructure pursuant to IPA for
which a study about the environmental effects of the proposal was being
undertaken. This amendments provides recognition that the transitional
arrangements should apply for an EIS or similar study being prepared for a
project on land that is proposed to be designated for community
infrastructure rather than requiring a development approval.
� State of Queensland 2001