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1
State Development and Other Legislation Amendment
Bill 2006
State Development and Other
Legislation Amendment Bill 2006
Explanatory Notes
Title of the Bill
State Development and Other Legislation Amendment Bill 2006.
Objectives of the Bill
The State Development and Public Works Organisation Act 1971 ("the
SDPWO Act") provides for `State planning and development through a
coordinated system of public works organisation, for environmental
coordination, and for related purposes.'
To support this purpose, the Bill seeks to:
· provide a scheme for certain projects of significance, declared by the
Minister as prescribed projects, that will prevent unreasonable delays
in the assessment and decision stage for necessary approvals, licenses,
permits or other authorities. The declaration of `prescribed project'
by the Minister will allow the Coordinator-General to:
· require the decision maker to make a decision or undertake the
process related to the prescribed decision or process within a
prescribed time period; and/or
· assume the role of decision maker in relation to a prescribed
decision or process and assess and make the decision.
· allow the Coordinator-General to impose conditions on, or seek a
voluntary environmental agreement from the applicant of a prescribed
project as a means of preventing, controlling or mitigating
environmental impacts directly related to the prescribed project;
· provide for more than one Deputy Coordinator-General, as a means to
ensure that the Coordinator-General has appropriate administrative
and operational assistance and resources to meet the increased
workload related to the State's immediate and long term growth
requirements;
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State Development and Other Legislation Amendment
Bill 2006
· clarify that the process for acquisition of land in a State development
area is consistent with the acquisition process in s125 of the SDPWO
Act;
· amend s77 to clarify the purposes and other matters considered
relevant by the Governor In Council for the declaration of a State
development area;
· provision of an additional subsection within s82 of the Act, to take
beyond doubt that the process for compulsory acquisition by the
Coordinator-General for a State development area mirrors that for
compulsory acquisitions under s125;
· update and clarify drafting in relation to works approved under of the
SDPWO Act;
Other objectives of the Bill are to:
· amend related legislation to facilitate compatibility with the SDPWO
Act and its objectives.
Reasons for the Bill
The SDPWO Act facilitates the development of vital infrastructure and
other development, both public and private; and provides measures to
ensure that proper account is taken of the environment in development of
these projects. In response to Queensland's strong ongoing economic
growth, this Bill seeks to amend the SDPWO Act and related legislation to
enable the SDPWO Act to enhance its objectives and the functions of the
Coordinator-General.
More specifically, this Bill also seeks to meet a key election commitment of
the Government to increase confidence and to minimise unreasonable
delays in the progress of or decision making for certain `prescribed
projects' considered to be of strategic and/or economic significance to the
State. The Government committed during the recent election to amend the
SDPWO Act and related legislation to provide the Coordinator-General
with powers in relation to approval processes.
Achievement of the Objectives
The Bill will achieve its objectives primarily by the insertion of a new Part
5A of the SDPWO Act, which will facilitate the undertaking of projects,
declared by the Minister as `prescribed projects'.
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State Development and Other Legislation Amendment
Bill 2006
The following scheme applies to prescribed projects, with the aim of
minimising unreasonable delays in the progress of assessment and
decisions required for prescribed projects:
· In circumstances where a decision maker has not progressed the
application in a timely manner the Coordinator-General may issue a
progression notice. This will provide a mechanism to progress the
assessment of applications, including development applications.
· In circumstances where a decision maker has failed to make a decision
in relation to a prescribed project either within a statutory time period
or, if there is no statutory time period, within what the Coordinator-
General considers to be a reasonable period, the Coordinator-General
may issue a "notice to decide" to that decision maker, requiring it to
make the decision specified in the notice within the time prescribed in
the legislation under which the project is being assessed.
· In circumstances, either where the "notice to decide" request has not
been complied with by a decision maker, or where the Coordinator-
General considers that it would be beneficial to manage a decision
from a whole of government basis, the Coordinator-General may
under certain conditions issue a "step in notice" and assume the role
of decision maker for the decision.
To assist the Coordinator-General in assessing the prescribed decision, the
Coordinator-General:
· may seek further information from the original decision maker, the
applicant or any other relevant entity; and
· is vested with all the legislative powers and functions of the original
decision maker.
The Coordinator-General may:
· if the decision had not been made by the original decision maker -
either make the decision, send back the decision, with or without
conditions or decide aspects of the decision and remit those undecided
aspects back to the original decision maker with or without
conditions;
· otherwise - either confirm or amend the original decision, or cancel
and substitute a new decision for the original decision.
Having regard to a number of factors, such as the nature of the prescribed
project and its possible environmental effects, the Coordinator-General
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State Development and Other Legislation Amendment
Bill 2006
may impose certain conditions on, and/or enter into a voluntary
environmental agreement with the applicant.
The Bill also amends the Planned Development provisions in Part 6 of the
SDPWO Act by:
· amending s77 to clarify the purposes for the declaration of a SDA;
· amending s82 to state the process for taking land in a State
development area under s82 is the same as that mentioned in s125;
and
· updating and clarifying drafting in relation to works approved under
the Act.
Other minor amendments to the SDPWO Act include:
· provisions relating to the office of Deputy Coordinator-General in Part
2 amended to provide that the Governor In Council may appoint more
than one person as Deputy Coordinator-General.
· amendment of the definition of `proponent' to include a person who,
under an agreement with the existing proponent, later proposes the
project.
The Bill also amends the following Acts:
· Integrated Planning Act 1997 - to allow proponents to make a
development application under that Act without the landowner's
consent if the Coordinator-General has, pursuant to provisions of the
SDPWO Act, issued notices of intention to resume the subject
properties.
· Judicial Review Act 1991 - to clarify that decisions relating to critical
infrastructure under Part 5A SDPWO Act are non-reviewable. Other
prescribed projects are subject to judicial review.
· Land Act 1994 - to provide that an infrastructure corridor may be
registered as a public utility easement and allowing a public utility
easement to be registered for a right of way for use by cyclists.
· Land Title Act 1994 - to provide that an infrastructure corridor may be
registered as a public utility easement and allowing a public utility
easement to be registered for a right of way for use by cyclists.
· Water Act 2000 - to clarify emergency provisions related to the
undertaking of works pursuant to Part 6, Division 3 of the SDPWO
Act.
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State Development and Other Legislation Amendment
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Estimated Cost for Government Implementation
Any costs incurred as a result of these amendments, in respect to drafting
and preparation of the Bill, represent a minimal cost to Government. The
impact of the changes should be `Budget neutral'.
While the amendments will require some additional reporting and
assessment procedures, the amendments are not expected to require
significant financial resources and will be managed within existing
operational, administrative and departmental processes and resources for
the coordination and facilitation of prescribed and other projects.
The substantive amendments, relating to the insertion of Part 5A of the
SDPWO Act, seek to enhance the Coordinator-General's existing role in
development and project coordination. In this regard the amendments
complement existing administrative arrangements provided by the
Coordinator-General and can be managed within existing resources.
Consistency with Fundamental Legislative Principles
The Legislative Standards Act 1992 defines fundamental legislative
principles ("FLPs") as `principles relating to legislation that underlie a
parliamentary democracy based on the rule of law.'
The proposed amendments depart from those principles in relation to those
projects classed as prescribed projects as follows:
i The inclusion of a provision that effectively removes the right to
review or appeal of a decision made under this part (s76P(1)),
ii The inclusion of a provision that removes the right to judicial
review under the Judicial Review Act 1991 for critical
infrastructure projects only, (s76W); and
iii The inclusion of a provision that potentially could affect a
proponent who may have commenced activities or expended
monies and may be unable to proceed due to a decision made by
the Coordinator-General (s76O(1)(b)).
The fundamental legislative principle
Section 4(3)(b) of the Legislative Standards Act 1992 provides that
legislation should be consistent with principles of natural justice. Natural
justice principles are derived from the common law and includes the right
to be heard, an absence of bias and procedural fairness.
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The departure
The inclusion of a provision that effectively removes the right to review or
appeal of a decision made under this part and removes the right to judicial
review under the Judicial Review Act 1991 for those prescribed projects
which are classed as critical infrastructure.
The reason for departure
The new s76P(1) provides that the Coordinator-General's decision is
conclusive and not subject to any objection or appeal under the SDPWO
Act; or the relevant law.
The new s76W removes the right to review under the Judicial Review Act
1991 for only those projects declared as critical infrastructure projects.
The reasoning behind removing this right to appeal is to ensure that the
purposes of the inclusion of this Part in the SDPWO Act are fulfilled. Part
5A is proposed as a means of ensuring the approval process for prescribed
projects proceed in accordance with statutory timeframes. If the
Coordinator-General's decisions with respect to a prescribed project were
subject to review and appeal it would potentially delay the development for
some period of time. This is contrary to the purpose of this Part's inclusion
in the SDPWO Act.
Removing the right to appeal also prevents vexatious litigants from starting
actions.
While the proposed provisions will remove the right to appeal under the
SDPWO Act and to judicial review for prescribed projects as assessed by
the Minister for critical infrastructure under s76E(4), the Supreme Court
retains its inherent jurisdiction. As such, the proposed provisions do not
exhaust the right to appeal and review of a decision. If a person or persons
so wished, they could still bring action before the Supreme Court of
Queensland.
The fundamental legislative principle
Section 4(3)(g) of the Legislative Standards Act 1992 provides that
legislation should not adversely affect rights and liberties, or impose
obligations, retrospectively.
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The departure
The inclusion of a provision that potentially could affect a proponent who
may have commenced activities or expended monies and may be unable to
proceed due to a decision made by the Coordinator-General.
The reason for departure
The new s76O provides that the Coordinator-General may, if a decision has
been made by the original decision maker, cancel the decision and
substitute a new decision. Section 76P provides that the Coordinator-
General's decision is taken to be a decision by the original decision maker
and takes effect at the time the prescribed decision notice is given. This
departure is similar to the call-in powers currently exercised by the
Minister under the Integrated Planning Act 1997.
There is potential that the proponent may have acted upon the decision by
the original decision maker and commenced activities or expended monies
based on the original decision. The prescribed decision may contradict this
original decision.
Step in notices are only able to be issued after procession notice under s76I
or a notice to decide under s76J has been issued. The time for intervention
by the Coordinator-General is constrained under s76L(3) to 10 business
days hence any impact is therefore limited. The provision is similar to the
Ministerial call-in power under the Integrated Planning Act 1997.
Consultation
The following relevant organisations have been consulted:
Industry/Community
· Nil
Interdepartmental
· Department of the Premier and Cabinet
· Office of Queensland Parliamentary Counsel
· Crown Law
· Justice and Attorney-General
· Department of Natural Resources and Water
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State Development and Other Legislation Amendment
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· Department of Local Government, Planning, Sport and Recreation
· Environmental Protection Agency
· Department of State Development and Trade
· Queensland Treasury
· Department of Primary Industries and Fisheries
· Office of Urban Management
· Office of the Public Service Commissioner
· Queensland Transport
· Department of Main Roads
· Department of Mines and Energy
The proposed amendments have been supported.
Notes on Clauses
The section numbers in the State Development and Other Legislation
Amendment Act 2006 are referred to as clauses in these explanatory notes.
Section numbers refer to sections of the relevant Act that is amended.
Part 1 Preliminary
Clause 1 states that the short title of the Act is the State Development and
Other Legislation Amendment Act 2006 ("SD&OLA Act").
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State Development and Other Legislation Amendment
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Part 2 Amendment of State
Development and Public Works
Organisation Act 1971
Clause 2 provides that this part and the schedule amend the State
Development and Public Works Organisation Act 1971 ("SDPWO Act").
Clause 3 amends s5 (Appointment of Deputy Coordinator-General) of the
SDPWO Act to provide that the Governor In Council may appoint a person
or persons to hold the office of Deputy Coordinator General. The
amendment ensures that the Coordinator-General has appropriate
administrative flexibility to meet the increased workload related to the
State's growth.
Clause 4 amends s6 (Tenure of appointment under ss4 and 5) of the
SDPWO Act recognises the appointment of multiple Deputy Coordinators-
General.
Clause 5 amends s8 (Incorporation of Coordinator-General) of the SDPWO
Act to provide that the corporation sole constituted under s8A of the State
Development and Public Works Organisation Act 1938 is the Coordinator-
General, and deletes mention that, in the Coordinator-General's absence,
the Deputy Coordinator-General would assume the office of Coordinator-
General. Absences or temporary vacancies by the Coordinator-General will
be dealt with administratively by the Minister (ie. through delegations or
temporary appointments as Coordinator-General).
Clause 6 omits definitions for concurrence agency and development
approval (which are now to be included in the SDPWO Act Schedule
Dictionary) and inserts a definition for `proponent'.
This clause also provides that a proponent for a significant project may
change by agreement or arrangement with the person who made the
original proposal for a significant project to the Coordinator-General.
Clause 7 inserts a new Part 5A in the SDPWO Act which provides for the
declaration and management of prescribed projects. The sections of this
new Part are numbered s76A - 76W:
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State Development and Other Legislation Amendment
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Division 1 Preliminary
Sections 76A, 76B and 76C and 76D - Purpose, Application and
Definitions of Part 5A
76A provides that the purpose of Part 5A is to
· Identify projects of economic and social significance to the State
or a region;
· Facilitate the undertaking of prescribed projects by providing a
scheme to ensure timely decision making for prescribed decision
and prescribed processes;
· Provide for conditions to be imposed with respect to undertaking
a prescribed project having regard to the significance of the
project; and the matters relevant to the undertaking of the
prescribed project and prescribed under a regulation; and proper
management of environmental effects as a result of the project;
· Promote the use of voluntary environmental agreements which
are designed to encourage the conservation, maintenance,
rehabilitation and enhancement of the environment.
76B provides how the purposes are to be achieved. The provision states
that the purposes of this part of the Act are to be achieved by declaring
projects as prescribed projects, the Coordinator-General giving
notices to decide, progression notices and step in notices and
imposing conditions that take account of a voluntary environmental
agreement.
76C provides that this part applies despite any other law.
76D provides definitions and various terms used in this part of the Act.
In this clause it is also made clear that a prescribed decision does not
include a decision by the Governor In Council or a Minister.
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State Development and Other Legislation Amendment
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Division 2 Declaration of Prescribed Projects,
duty to cooperate and requesting
further information
Section 76E - Declaration of a Prescribed Project
76E As outlined above, to provide increased confidence in development of
a particular project which may have strategic or economic
significance to the state or region within which the development is to
be located, the Minister may declare that project to be a "prescribed
project".
The Minister may declare a project to be a prescribed project if that
project is:
· works a local body or other person is directed to be undertaken
by a regulation made under ss100 or 109;
· a project in a State development area;
· an infrastructure facility;
· a project that has been declared to be a significant project under
s26 of the SDPWO Act;
· considered by the Minister to be economically or socially
significant to the State or the region in which the project is to be
undertaken; or
· affects an environmental interest of a State or region.
The Minister, in making a declaration, may have regard to the public
interest or general welfare of persons in the region where the project is
to be located; whether a voluntary environmental agreement has been
or is likely to be entered into with the project proponent; and other
matters considered relevant by the Minister.
The declaration of a prescribed development must be by gazette
notice.
If the Minister considers the undertaking of a project is critical or
essential for the State for economic, environmental or social reasons,
the Minister may declare the project to be a critical infrastructure
project.
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Section 76F - When declaration ends
76F provides when the declaration of a prescribed project ends. A
prescribed project's declaration can end either 2 years after the day
the declaration is made or the declaration can state a specific date or
time at which it will end. The Minister, by Gazette notice, is also able
to extend the time at which a declaration will end, so long as it is not
longer than the original declaration period.
Section 76G - Particular entities to cooperate with the Coordinator-General
76G provides that particular entities, as mentioned in s13 of the Act, have a
duty to cooperate with the Coordinator-General. This provision
provides the Coordinator-General with the power to request a variety
of information including an application for a prescribed decision or
documents relating to a prescribed decision or a prescribed process
for the application, a document relating to the application, general
information about the prescribed project and any submission that may
have been received during a public consultation process.
Section 76H - Coordinator-General may seek further information
76H provides that the Coordinator-General may require a relevant person,
who is defined in the provision, to provide him or her with
information required to decide whether to give a notice to decide, a
progression notice or step in notice and to make an assessment and a
decision, or undertake a prescribed process about the prescribed
decision. A relevant person must comply with such a request. A
relevant person includes the applicant.
Division 3 Notices about prescribed projects
(ss76I-76R)
Subdivision 1 Progression Notice
76I provides that the Coordinator-General may, in writing, issue a
progression notice to a decision maker which will require the decision
maker to undertake the administrative processes required to complete
the process, within the period stated in the notice.
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State Development and Other Legislation Amendment
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The progression notice must include a copy of the declaration of the
prescribed project to which the prescribed process relates; identify
the process including, for example, a process under a stage of IDAS
under IPA; and, state that the decision maker must undertake the
process within the stated period and then inform the Coordinator-
General of the completion of the process within 5 business days after
it is completed.
When the decision maker receives a progression notice he or she must
undertake the prescribed process within the period stated in the notice
for that purpose and inform the Coordinator-General of the
completion of that stage within 5 business days after it is completed.
The Coordinator-General may extend the period for progressing the
prescribed process. If the Coordinator-General elects to do this he or
she should have regard to the nature of the prescribed project to which
the process relates. The Coordinator-General can do this without the
decision maker's consent but must do so in writing. Once the
Coordinator-General has extended the period for progressing the
prescribed project the decision maker must progress the prescribed
process within the extended period.
When deciding whether to give a progression notice the Coordinator-
General is required to have regard to the requirements of the process,
under the relevant law.
The relevant law for the prescribed process will continue to apply to
the undertaking of the process.
Subdivision 2 Notice to Decide
76J provides that the Coordinator-General may, by written notice, issue a
notice to decide for a prescribed decision, which will require a
decision maker to make his or her decision within the period stated in
the issued notice.
The stated period is required to be at least 20 days after the notice is
given, or, a period which is prescribed under the relevant law. This
later period will apply where it is less than 20 days.
The notice to decide is required to be accompanied by a copy of the
declaration of the prescribed project, identify the decision and state
that the decision maker must make the decision within the stated
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period and inform the Coordinator-General of the decision within 5
business days after it is made.
When a decision maker receives a notice to decide it must make the
prescribed decision within the period stated in the notice and inform
the Coordinator-General of the decision within 5 business days.
The Coordinator-General may extend the decision maker's period for
making the decision by having regard to the nature of the prescribed
project and notifying the decision maker in writing that the period for
making the decision has been extended. Where the period for making
the decision is extended the decision maker must make the decision in
that period.
Where the prescribed decision relates to an application for a
development approval under the Integrated Planning Act 1997 (IPA),
the notice to decide cannot be given to the decision maker before the
decision stage for the application starts.
Before the Coordinator-General gives a notice to decide he or she is
required to have regard to any requirements with respect to public
notification of information or other matters for making a decision
under the relevant law
The relevant law for making the prescribed decision continues to
apply.
Subdivision 3 Step In Notice
76K provides that the Coordinator-General, with the approval of the
Minister, may issue a step in notice. This Notice effectively provides
the Coordinator-General with power to make an assessment and a
decision about a prescribed project or a prescribed process.
Where a step in notice is issued, the Coordinator-General assumes the
role of the decision maker.
When issuing a step in notice, it must be accompanied by a copy of
the declaration for the prescribed project to which the prescribed
decision or process relates; it must identify the decision or process;
and it must state that the Coordinator-General is the decision maker
for the prescribed decision or process from the time the notice is given
until the Coordinator-General makes a decision under s76(O).
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76L provides that the Coordinator-General may give a step in notice for a
prescribed decision or process only after a progression notice or
notice to decide has been given for the process or decision.
If a progression notice or notice to decide has been given for a
prescribed process or decision, the step in notice may be given either:
· at any time after the Coordinator-General is satisfied the decision
maker has not complied with the progression notice or notice to
decide, but before the decision maker has undertaken the process
or made the decision; or
· if the decision maker has complied with the progression notice or
notice to decide - only if the applicant, by written notice given to
the Coordinator-General within 10 business days after the
applicant is notified of the decision, asks the Coordinator-
General to give a step in notice for the decision.
A step in notice may be given for a prescribed decision at any time
after the decision is made until 10 business days after the start of an
appeal, if an appeal against the decision has been started under the
relevant law; or otherwise the expiry of the period for starting an
appeal.
The step in notice must be given to the decision maker within a
reasonable period after the Coordinator-General receives the request.
In this section, appeal also includes review.
76M provides that a decision maker for a prescribed decision or process
must give the Coordinator-General all reasonable assistance that is
required for that person to perform his or her functions and powers
under this part. The information that may be requested can include all
material about the prescribed decision or process that the decision
maker had before the step in notice was issued and any material
received after it is issued.
The Coordinator-General may request the decision maker to provide a
written report containing an assessment of matters as stated in the
notice relevant to the prescribed decision or process and
recommendations about the assessment. The decision maker's report
might include recommendations about proposed conditions for the
prescribed decision or process.
76N details the effects of a step in notice. If the Coordinator-General has
issued a step in notice for a prescribed decision or process, the
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Coordinator-General has all the powers of the decision maker under
the relevant law for the prescribed decision or process. The decision
of the Coordinator-General will be taken to be the decision of the
original decision maker.
In making a decision to issue a step in notice, the Coordinator-General
must consider:
· the criteria for making the prescribed decision or process under
the relevant law for the decision or process;
· the purposes of this part under s76A(b), (c)(i) and (ii), and (d);
· the matters relevant to the undertaking of a prescribed project
and prescribed under a regulation;
· any other matter relevant to the prescribed decision or process or
the prescribed project to which it relates and prescribed under a
regulation.
Where the prescribed decision or process relates to an application for
a development approval, the assessment manager and concurrence
agencies are taken to be advice agencies until such time as the
Coordinator-General makes a decision about the prescribed decision
or process under s76O.
If an appeal was made or review was started in relation to the
prescribed decision or process the appeal or review will be of no
further effect.
The Coordinator-General's decision about the prescribed decision or
process is taken to be the exercise of a power or performance of a
function or duty of the Coordinator-General under this Act.
76O provides as to what decisions the Coordinator-General may make
after having issued a step in notice and making an assessment about a
decision or process.
If no decision has been made or the process has not been undertaken
by the decision maker the Coordinator-General may make the
decision or undertake the process; or send back the decision or process
to the decision maker, with or without conditions; or, only decide
aspects of the decision and send back to the decision maker for
undecided aspects. Otherwise the Coordinator-General may confirm
or amend the decision or cancel the decision and substitute a new
decision.
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The Coordinator-General may impose a condition he or she considers
necessary or desirable when having regard to the nature of the
prescribed project and whether a voluntary environmental agreement
has been entered into as well as the matters the Coordinator-General is
required to have regard to under s76N(c).
An imposed condition may require an applicant to carry out an
activity or works that prevent, control or mitigate detrimental
environmental effects arising from the undertaking of the prescribed
project. It may also require an applicant to restore or enhance aspects
of the environment affected by the prescribed project.
An activity or works that the applicant is required to carry out is not
limited to land on which the project is being undertaken.
The Coordinator-General is to nominate a particular entity that will
have jurisdiction over the enforcement of an imposed condition. An
entity nominated for this purpose must be given written notice by the
Coordinator-General of the nomination. A copy of the written notice
must also be provided to the decision maker and the applicant for the
prescribed project.
The relevant law for the prescribed decision or process will apply to
the making of the Coordinator-General's decision.
76P provides what is the effect of the Coordinator-General's decision.
The Coordinator-General's decision is taken to be a decision of the
original decision maker under the relevant laws for the prescribed
decision or process for making that decision, however, a person may
not appeal against the Coordinator-General's decision under this Act
or the relevant law. The decision takes effect when the decision notice
is issued.
Where the original decision maker has imposed a condition on an
application and that condition is inconsistent with a condition
imposed by the Coordinator-General, the Coordinator-General's
decision prevails.
Pursuant to s76P, the Coordinator-General's decision is taken to be
final and is not subject to appeal. The provisions would prevent any
person from appealing the Coordinator-General's decision under the
SDPWO Act and the legislation covering the original decision maker.
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Review rights are retained for projects which are not classed as critical
infrastructure (see s76E(4)) and actions to the inherent jurisdiction of
the Supreme Court remain open.
76Q The Coordinator-General must give a written notice about the
prescribed decision or process to:
· the applicant and decision maker; and
· each entity nominated by the Coordinator-General to have
jurisdiction for a condition in relation to the prescribed
decision or process.
The notice must include:
· reasons for the Coordinator-General's decision; and
· details of any conditions imposed in relation to the decision.
76R provides that the Coordinator-General must prepare a report about
each step in notice.
The information to be included within that report includes:
· a copy of the step in notice;
· details of each entity nominated to have jurisdiction for a
condition in relation to the prescribed decision or process;
· a copy of the notice of the Coordinator-General's decision; and
· other details about the Coordinator-General's decision required
by the Minister.
The Coordinator-General's report must be tabled by the Minister
within the Legislative Assembly within 14 sitting days of the decision
notice being given for the prescribed project.
Division 4 Voluntary Environmental Agreements
76S provides guidance for entering into voluntary environmental
agreements for prescribed projects. The Coordinator-General, with
the Minister's approval, may enter into a voluntary environmental
agreement with an applicant of a prescribed project, or the applicant
and another person about
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· preventing, controlling or mitigating detrimental environmental
effects of a prescribed project; or
· conserving, maintaining, rehabilitating or enhancing aspects of
the environment.
The Coordinator-General must have regard to the rights of persons
who may be materially affected by the agreement and must obtain that
persons consent before entering into the agreement. Persons who
might be affected include:
· where the applicant is not the registered owner of the land to
which the agreement relates - the registered owner of the land;
and
· if the land to which the agreement relates is subject to a lease or
other interest - the lessee or interest holder.
76T provides for the content and duration of an agreement.
The section provides that a voluntary environmental agreement may
contain terms that are binding on the registered owner of the land and
the registered owner's successors in title and other persons who have
an interest in the land.
It further provides that a voluntary environmental agreement may
contain the following terms:
· requiring the applicant to provide financial or other assistance;
· requiring the applicant to provide financial assurance to the
State;
· requiring the applicant to provide technical advice or carry out
stated activities;
· prohibiting a stated use of land to which the agreement relates;
· restricting the use or management of land mentioned in the above
paragraph;
· requiring the applicant to permit or restrict access to land
mentioned above;
· requiring the applicant to refrain from, or not permit stated
activities;
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· stating the way in which amounts provided by the applicant
under the agreement are to be applied by the State or the
applicant;
· providing for any other matter relating to the conservation or
enhancement of the environment.
While this provision is extensive the terms that the agreement may
contain are not limited to those mentioned above.
A voluntary environmental agreement has effect until it ends under its
terms.
76U provides for the recording of particular agreements.
The section provides that the Coordinator-General must give the
registrar written notice of a voluntary environmental agreement within
14 days after entering into such an agreement.
The notice must include particulars of land to which the agreement
relates.
The registrar is required to keep records that show the land to which
the agreement relates is the subject of a voluntary environmental
agreement and state the places where particulars of the agreement
may be inspected. Further, the registrar is required to keep the records
in a way that will show the existence of the agreement.
After the end of the agreement the Coordinator-General must give the
registrar written notice of its ending and the registrar is required to
remove the particulars of the agreement from its records.
While the agreement is in effect and recorded by the registrar it is
binding on the successors in title to a registered owner who entered
into the agreement or consented under s76S(2) to the agreement and
persons who have an interest in the land.
A definition of `recorded voluntary environmental agreement' and
`registrar' is provided.
Division 5 Other matters
76V allows the Coordinator-General to seek remuneration from applicants
of a prescribed project for the direct costs incurred for advice or
services associated with the assessment of that project. This
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remuneration would be assessed on a project by project basis by the
Coordinator-General and would be limited to the reasonable cost of
obtaining the advice or services.
76W provides how the Judicial Review Act 1991 is to apply to this part.
This section provides the parts of the Judicial Review Act 1991
relating to statutory orders of review and prerogative orders and
injunctions do not apply to decisions that relate to a prescribed project
that has been assessed by the Minister to be critical infrastructure.
In particular, certain decisions are stated as not subject to judicial
review and include the following:
· a decision of the Minister to declare a project to be a prescribed
project if the project is a critical infrastructure project; or
· a decision of the Coordinator-General to give a progression
notice, a notice to decide or a step in notice for a critical
infrastructure project; or
· the Coordinator-General's decision under s76O about a
prescribed decision or process for a critical infrastructure project;
or
· a decision or conduct leading up to or forming part of a the
process of making a decision mentioned above.
Section 77 - Declaration of State Development Areas, variation and
termination thereof
Clause 8 amends s77 to include a third subsection which provides that in
considering whether the public interest or general welfare of persons
requires a State development area to be declared the Governor In Council
may have regard to the purposes for taking or acquiring land under s82(1)
and other matters considered relevant.
Section 82 - Acquisition of land in State development area
Clause 9 amends s82 to provide an additional subsection which takes
beyond doubt that the process for compulsory acquisition by the
Coordinator-General for a State development area mirrors that for
compulsory acquisitions under s125.
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Sections 109, 110, 111 - Approval of certain works
Clauses 10, 11 and 12 amend ss109, 110 and 111 to clarify drafting and
make consistent terms used within these sections as they relate to approved
works by either a local body or the Coordinator-General.
Section 140 - Powers in respect of works on foreshore and under waters
Clause 13 amends s140(1)(b) (Powers in respect of works on foreshore and
under waters) to update and remove the references to repealed legislation.
Clause 14 amends the dictionary found in the Schedule to the SDPWO Act.
Part 3 Amendment of Integrated
Planning Act 1997
Clause 15 provides that this part amends the Integrated Planning Act 1997.
Clause 16 amends s3.2.1 (Applying for development approval) by inserting
provisions that allow applicants to make a development application under
that Act without landowners consent in circumstances where the
Coordinator-General has issued notices of intention to resume the subject
properties under provisions of the SDPWO Act.
Clause 17 amends s3.5.19 (When approval takes effect) to insert a new
subsection (2) which provides that where the application relates to land that
was acquisition land when the application was made, the development
approval does not have effect until either the day the land is taken or
acquired or the time the development approval would have effect,
whichever is the later.
Clause 18 amends s3.5.24 (Request to change development approval (other
than a change of a condition)) to insert, after the word `consent', that unless
the approval relates to land that was acquisition land to which s3.2.1(13)
applied when the application for the approval was made.
Clause 19 amends Schedule 10 (Dictionary) to include a definition of
`acquisition land'.
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Part 4 Amendment of Judicial Review
Act 1991
Clause 20 defines the Act being amended as the Judicial Review Act 1991
Clause 21 amends Schedule 1 (Operation of other laws) of the Judicial
Review Act 1991 to include the SDPWO Act, s76W.
Part 5 Amendment of Land Act 1994
Clause 22 defines the Act being amended as the Land Act 1994.
Clause 23 amends s369 (Public utility easements) of the Land Act to
provide that an infrastructure corridor or a purpose mentioned in s125(1) of
the SDPWO Act, may also be registered as a public utility easement and to
provide that a public utility easement may be registered for a right of way
for the public only if the use of the easement is limited to include cyclists.
Part 6 Amendment of Land Title Act
1994
Clause 24 defines the Act being amended as the Land Title Act 1994.
Clause 25 amends s89 (Easements for public utility providers) to provide
that an infrastructure corridor or a purpose mentioned in s125(1) of the
SDPWO Act, may also be registered as a public utility easement and to
provide that a public utility easement may be registered for a right of way
for the public only if the use of the easement is limited to include cyclists.
Part 7 Amendment of Water Act 2000
Clause 26 defines the Act being amended as the Water Act 2000.
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Clause 27 amends s25L(2)(c) (Relationship with State Development and
Public Works Organisation Act 1971) to provide that the SDPWO Act has
effect in that ss109 and 110 apply as if a statement in the water supply
emergency regulation about works to be carried out by the Coordinator-
General were a regulation under s109 directing works be undertaken.
Schedule Other amendments of the State
Development and Public Works
Organisation Act 1971
Clause 1 provides that the heading of s108 should now read
`Recommendation of particular works'
Clause 2 provides that s128(1) should now read `Land taken by the
Coordinator-General under this Act shall, ...'
Clause 3 provides that s130(1) should now read `The Governor In Council
may, by the proclamation whereby land is taken by the CG under this Act
or ...'
Clause 4 provides that s132 should now read `If land taken by the
Coordinator-General under this Act and ...'
Clause 5 provides that s133 should now read `A writing purporting to be a
certificate of the Coordinator-General that land therein specified and taken
or acquired by the Coordinator-General under this Act was ...'
© State of Queensland 2006