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1
State Development and Public Works Organisation
and Other Legislation Amendment Bill 2005
State Development and Public Works
Organisation and Other Legislation
Amendment Bill 2005
Explanatory Notes
Title of the Bill
State Development and Public Works Organisation and Other Legislation
Amendment Bill 2005
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:
· Update and clarify certain provisions about environmental
coordination for significant projects and the framework by which
the Coordinator-General (`the CG') evaluates the environmental
effect of those projects. The proposed amendments put in place
mechanisms to ensure the timely completion of environmental
assessments and ensure that construction of projects proceeds
soon after the CG completes his or her evaluation.
· Assist planning for the provision of linear infrastructure across
the State by amendments to the existing State development area
provisions to provide that the CG can take land for multi-user
infrastructure corridors.
· Improve the environmental assessment of significant projects by
responding to changes proposed by proponents and providing for
the timely completion of environmental impact statements.
· Ensure that a whole of government response is provided only to
those projects of such significance to the State that they warrant
facilitation through the significant project Environmental Impact
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State Development and Public Works Organisation
and Other Legislation Amendment Bill 2005
Statement (`EIS') framework. Projects not facilitated through
the significant project EIS framework will be facilitated through
normal development assessment processes under the Integrated
Planning Act 1997 and other legislation.
· Ensure that proponents commence a use approved under an
approved Development Scheme for a State development area
within four years of the approval being given, including existing
approvals not yet acted upon in the Gladstone State Development
Area.
· Provide links to Petroleum and Gas (Production and Safety) Act
2004 (`the P&G Act') and the Environmental Protection Act
1994 (`the EP Act') to enable the CG to coordinate the
assessment and facilitation of significant projects which require
leases or licences under the P&G Act and/or environmental
assessment under the EP Act. Some minor amendments are also
required to the Petroleum and Gas (Production and Safety) Act
2004 as a consequence of the amendments to the SDPWO Act.
Reasons for the Bill
On 28 February 2005, the Honourable the Premier and the Lord Mayor of
Brisbane signed a Memorandum of Understanding about the North-South
Bypass Tunnel (`NSBT') project which contemplated, among other things,
the Queensland Government making legislative amendments to the
SDPWO Act to provide for changes to the EIS process to facilitate the
NSBT project.
The Bill seeks to:
· Enable the CG to evaluate changes made to a project by a
proponent of a significant project following the completion of the
CG's report evaluating the EIS, but before the project
commences, and
· Provide that certain works approved by the Governor in Council
can be carried out by an approved person who has entered into an
agreement with a local body to carry out those works.
These amendments are initially required to facilitate the NSBT project but
will also address the emerging needs of other public private partnership
projects in the State.
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State Development and Public Works Organisation
and Other Legislation Amendment Bill 2005
A number of other minor amendments to the SDPWO Act are also
proposed to:
· align it with the provisions of the Integrated Planning Act 1997;
· clarify drafting to remove ambiguity; and
· update the SDPWO Act to provide compatibility with other
related legislation.
Achievement of the Objectives
The objectives of the Bill have been achieved by amending the State
Development and Public Works Organisation Act 1971 and the Petroleum
and Gas (Production and Safety) Act 2004.
In this regard the Bill:
Amends the EIS provisions in Part 4 of the SDPWO Act by:
-- Inserting timeframes for the finalisation of the terms of reference
for an EIS about a significant project; completion of the EIS; and
substantial commencement of the development;
-- Providing that the CG can evaluate changes made to a project by
a proponent of a significant project following the completion of
the CG's report evaluating the EIS, but before the project
commences;
-- Removing the requirement to give reasons for each condition
stated or recommended in the CG's report, when the CG's report
recommends that an application be approved; and
-- Inserting a new provision so that the CG may coordinate the
assessment and facilitation of significant projects which require
leases or licences under the P&G Act. A number of
consequential amendments are also made to the P&G Act.
Amends the Planned Development provisions in Part 6 of the SDPWO Act
by:
-- Inserting a provision to enable CG to acquire land in a State
development area for the establishment of an infrastructure
corridor;
-- Including a timeframe in which a proponent must substantially
commence a use under a development approval given under an
approved Development Scheme for a State development area;
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State Development and Public Works Organisation
and Other Legislation Amendment Bill 2005
-- Providing for an approved person who has entered into an
agreement with a local body to carry out certain works approved
by the Governor in Council;
-- Inserting a provision to enable the CG to take and register a
public utility easement for water storage purposes under the Land
Act 1994 and Land Title Act 1994 without the need to obtain
landowners consent which would otherwise be required; and
-- Clarifying that the process for the taking of land under ss 125 and
126 is for parties other than the State or a local body.
Amends the Miscellaneous provisions in Part 8 of the SDPWO Act by:
-- providing that the Guidelines made under s 174 may provide
requirements for procedures to be compiled with prior to a
consultation and negotiation period; and
-- inserting a new division 4 recognising the environmental
assessment of the Papua New Guinea (PNG) pipeline project
completed under the SDPWO Act in 1998.
Amends the transitional provisions in Part 9 of the SDPWO Act by:
-- inserting a timeframe for the commencement of use approved
under an approved Development Scheme for a State development
area.
Amends the Schedule (Dictionary) to the SDPWO Act by:
-- editing the definition of `private works' so that these works may
be carried out for purposes not related to the establishment of a
town or other community; and
-- inserting definitions for an `approved person', `Coordinator-
General's change report', and `EIS'.
Amends the P&G Act by:
-- providing a link to that Act for a project declared to be a
significant project to enable the CG to state conditions to be
included in a lease or licence under the P&G Act.
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'. The amendments are not
expected to require any additional financial resources and will be managed
within existing operational, administrative and departmental processes and
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State Development and Public Works Organisation
and Other Legislation Amendment Bill 2005
resources for the coordination and facilitation of significant and other
projects.
There are no new or substantially amended operational or administrative
arrangements which subsequently impose any significant implementation,
resource or administrative issues. The more substantive amendments,
relating to changes to a significant project under Part 4 of the SDPWO Act,
enhance the CG's existing role in coordinating a whole of government
response to projects declared to be significant projects. In this regard the
amendments complement existing administrative arrangements provided
by the CG 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'.
In addressing the issue of FLPs, the amendments depart from those
principles as follows:
1. the retrospective imposition of currency periods on a use
approved in a State development area;
2. the inclusion of a power for the CG to take land for an
infrastructure corridor; and
3. the inclusion of a power for the CG to take land for public utility
easements under the Land Act 1994 and Land Title Act 1994.
1. Imposition of currency periods on a use approved under an approved
development scheme for a State development area [Clause 63,
insertion of new Division 2 in Part 9]
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.
The Departure
Currently a use approved by the CG under the approved Development
Scheme for the Gladstone State Development Area does not include an
expiry date. The new s 177, inserted by clause 63, provides that uses
already approved by the CG under an approved Development Scheme for a
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State Development and Public Works Organisation
and Other Legislation Amendment Bill 2005
State development area have a currency period and sets an end date on the
exercise of such rights.
The new s 177 provides that for uses approved prior to the commencement
of the new s 84A and not yet substantially commenced, the currency period
(generally 4 years) commences with the current amendments. Therefore, a
proponent with a use approved by the CG prior to the commencement of
this section will generally have 4 years from the commencement of this
section to have substantially commenced development (as if the approval
had been given on the date that these amendments commence), however,
where an approval already included a condition stating or implying a time
for that use to lapse, that condition will still apply.
The Reason for Departure
This retrospective operation is not considered to be objectionable, for the
following reasons:
A development approval granted by the CG under the approved
Development Scheme for the Gladstone State Development Area does not
include expiry dates. There is the potential that a proponent may
commence development at any time in the future, at which time the
approval and in particular the CG's conditions may no longer represent best
practice.
A material change of use application approved by the CG under the
approved Development Scheme for the Gladstone State Development Area
takes effect from the time the decision notice is given by the CG. Currently,
such an approval does not lapse even if development under the approval has
not commenced within a reasonable period of time.
A number of material change of use approvals granted by the CG under s
84(4)(b) under the approved Development Scheme are for large-scale
industrial developments of national significance. Without exception these
particular applications have been approved by the CG subject to a range of
conditions formulated by the CG in consultation with relevant agencies.
The conditions imposed by the CG have in all cases been reasonably
required by, and relevant to, the particular development, and have sought to
ensure best practice environmental and operational outcomes given the
circumstances which existed at the time of approval.
To date, all but one of the large-scale industrial developments, Aldoga
Aluminium Smelter, approved by the CG has proceeded to development
and operation within a reasonable period of time. As a result, the
conditions imposed by the CG have, at the time of project development and
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State Development and Public Works Organisation
and Other Legislation Amendment Bill 2005
the commencement of operations, still been considered reasonable and
relevant and capable of delivering contemporary best practice
environmental and operational outcomes. Further, the timely development
of these large-scale industries has resulted in positive economic outcomes
for the State and the nation and the meeting of national and international
demand for products.
In terms of the one large-scale industrial project (Aldoga Aluminium
Smelter) which has not proceeded, there is concern that the approval
granted by the CG in early 2003 will not lapse even if development under
the approval has not commenced within a reasonable period of time. The
conditions imposed by the CG for this project have limited currency in
terms of achieving best practice environmental and operational outcomes
due to the nature of the particular project. This is because the continuing
development of the area in which the approved project is proposed to be
constructed, and advances in technology are changing the environmental
and operational parameters relied on by the CG when imposing the original
conditions, thereby eroding the efficacy of those conditions.
The Aldoga air-shed has the capacity to absorb a finite level of industry
emissions before acceptable environmental standards are exceeded.
Smelters generally, and aluminium smelters in particular, are characterised
by a high level of emissions to the atmosphere. A significant portion of the
available, acceptable emissions capacity in the Aldoga air-shed has been
assigned to the approved Aldoga aluminium smelter. As a result, the
remaining available, acceptable emissions capacity in the Aldoga air-shed
cannot reasonably sustain a second aluminium smelter. This means that if,
for whatever reason, the Aldoga aluminium smelter does not proceed, or
does not proceed in a timely way, and the CG's approval does not lapse, the
CG will be prevented from favourably considering an alternative
aluminium smelter proposal.
2. Power for the CG to take land for an infrastructure corridor [Clause
40, amendment of s 82 (Acquisition of land in State development
area)]
The Fundamental Legislative Principle
Section 4(3)(g) and (i) of the Legislative Standards Act 1992 provide that
legislation should not adversely affect rights and liberties, or impose
obligations, retrospectively and for the extension of powers to acquire land,
but only with fair compensation.
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State Development and Public Works Organisation
and Other Legislation Amendment Bill 2005
The Departure
Currently the CG may take or otherwise acquire land situated in a State
development area for the purpose of providing for the establishment of
industry or essential services. There is some doubt whether the CG may
also take or otherwise acquire land for the purpose of infrastructure
corridors (for one or more users and/or uses) as part of establishing
industry or essential services.
Clause 40 amends the acquisition powers in Part 6 (Planned Development)
to provide that the CG may also take or otherwise acquire land for the
purpose of establishing infrastructure corridors.
Clause 40 amends s 82 (Acquisition of land in State development area) to
provide for declaration of a State development area for the establishment of
an infrastructure corridor for one of more uses and/or users, thereby
enabling the CG to compulsory acquire that land.
These corridors may be directly associated with existing State development
areas or for corridors established for one or more uses or users. It is
proposed that the CG control the use of the land through licences with
service providers for infrastructure such as gas and water pipelines,
conveyors and electricity transmission lines, and other infrastructure as
required.
The Reason for Departure
It is argued that the potential adverse impact on rights and liberties is
justified on the basis that:
Rather than have multiple corridors developed by a range of infrastructure
providers to/from similar locations in an ad hoc manner (and the associated
assessment, approval and land acquisition processes that must be
addressed) infrastructure providers and industry will benefit from the
ability to access predetermined strategically placed corridors throughout
the State to assist in the timely and efficient delivery of infrastructure
through the co-location of linear infrastructure within the same corridor.
The coordinated development of infrastructure corridors may also
minimise the potential impacts on landowners where a number of separate
infrastructure corridors may have otherwise been required.
The extension of powers to acquire land and any adverse affect on the
rights of individuals resulting from clause 40 is justified on the basis that:
Division 2 of Part 6 (Planned Development) of the SDPWO Act provides
for the compensation of an owner of an interest in land whose ability to use
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State Development and Public Works Organisation
and Other Legislation Amendment Bill 2005
the land for an `alternative lawful use', an `approved use' or an `authorised
use', as defined in s 87 of the Act, is impacted by an approved development
scheme for a State development area. This provision applies to a State
development area established for the purpose of an infrastructure corridor
as provided for by clause 40.
The requirement to provide fair compensation arising from the amended
power to acquire land provided for by clause 40 is satisfied by the existing s
125(7) of the SDPWO Act which provides that the process stated in the
Acquisition of Land Act 1967 for the taking of land and payment of
compensation for the land taken applies.
3. Power for the CG to take land for public utility easements under the
Land Act 1994 and Land Title Act 1994. [Clauses 56 and 57,
amendment of s 125 (Power of Coordinator-General to take land) and
insertion of new s 125A (Power of Coordinator-General to take public
utility easement)]
The Fundamental Legislative Principle
Section 4(3)(i) of the Legislative Standards Act 1992 provides for the
extension of powers to acquire land, but only with fair compensation.
The Departure
Clauses 56 and 57 provide that the CG will be able to take a public utility
easement for water storage. The need for the owner's consent (for the
registration of the easement under the processes of the Land Title Act 1994)
will not be required where the CG acquires the land by compulsory
acquisition.
The Reason for Departure
The Land Title Act 1994 and the Land Act 1994 provide for the registration
of public utility easements by reference to an `about' plan rather than a
survey plan. There are potential cost savings associated with not doing a
survey plan. However, the registration process for these easements requires
the consent of the landowner. In cases where the CG is compulsorily taking
the land, the requirement for the owner's consent cannot be met.
The use of a water storage easement over land which would only be
temporarily inundated would provide a more suitable mechanism by which
to control land affected by water storage facilities than taking the land as
fee simple.
When Parliament amended the Water Act 2000 and the Land Title Act 1994
in 2003, it committed to a review of the Guidelines made under s 174 to
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State Development and Public Works Organisation
and Other Legislation Amendment Bill 2005
outline the circumstances in which different tenure options were available
to affected land owners should be used in respect water storage
infrastructure. The effect of these 2003 amendments was to extend the
possible use of water storage easements for application to dams where
previously they were available only for a use associated with weirs.
The requirement to provide fair compensation arising from the amended
power to acquire land provided for by clauses 56 and 57 is satisfied by the
existing s 125(7) of the SDPWO Act which provides that the process stated
in the Acquisition of Land Act 1967 for the taking of land and payment of
compensation for the land taken applies.
Consultation
The following relevant organisations have been consulted:
Department of the Premier and Cabinet
Department of Local Government, Planning, Sport and Recreation
Environmental Protection Agency
Department of Natural Resources and Mines
Crown Law
Queensland Treasury
Department of State Development, Trade and Innovation.
The proposed amendments have been supported.
Notes on Clauses
The section numbers in the State Development and Public Works
Organisation and Other Legislation Amendment Act 2005 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
Public Works Organisation and Other Legislation Amendment Act 2005.
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State Development and Public Works Organisation
and Other Legislation Amendment Bill 2005
Part 2--Amendment of Petroleum and Gas
(Production and Safety) Act 2004
Clause 2 defines the Act being amended as the Petroleum and Gas
(Production and Safety) Act 2004 (`the P&G Act').
Clause 3 amends s 20(2) of the P&G Act to provide that if the CG has
prepared a report which evaluates an EIS for a significant project that
requires a petroleum lease, pipeline licence or petroleum facility licence
under the P&G Act, then the conditions stated by the CG in the CG 's
report about the EIS for the project must be applied to the lease or licence
under the P&G Act and will prevail to the extent of any inconsistency with
a mandatory condition for that type of petroleum authority.
Clauses 4 and 5 amend s 120 (Right to grant if requirements for grant met)
and s 123 (Provision of petroleum lease) of the P&G Act to provide for the
new s 123A (inserted by clause 6), which provides for the grant and
conditions of a petroleum lease or proposed petroleum lease for a
significant project.
Clause 6 inserts a new s 123A in the P&G Act which provides for the grant
and conditions of a petroleum lease or proposed petroleum lease for a
significant project under the SDPWO Act. This clause provides that the
Minister must not grant a lease where the lease would be for a significant
project until the CG has completed the evaluation of the EIS under s 35 of
the SDPWO Act and given the Minister administering the P&G Act a copy
of the CG's report. The conditions stated by the CG in the CG's report
must be stated in the lease and if there is any inconsistency between other
conditions, including mandatory conditions, and the CG's conditions, the
CG's conditions prevail to the extent of any inconsistency.
Clause 7 provides that a decision made under s 132 (Deciding whether to
grant petroleum lease) is made subject to s 123A of the P&G Act
(Provisions about grant and conditions of petroleum lease for a significant
project), which requires, among other things, that the Minister include in
the lease, the conditions stated by the CG in the CG's report evaluating the
EIS.
Clause 8 amends s 133 of the P&G Act (Provisions of petroleum lease) by
the inclusion of a reference to s 123A, which provides for the grant and
conditions of petroleum lease for a significant project and that the Minister
must include the CG's conditions in the lease.
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State Development and Public Works Organisation
and Other Legislation Amendment Bill 2005
Clause 9 amends s 317 of the P&G Act (Proposed mining lease declared a
significant project) to provide that if a project for proposed coal or oil shale
mining lease is declared to be a significant project under the SDPWO Act,
an application related to an authority to prospect under the P&G Act must
not be decided until the CG's report evaluating the EIS for the project has
been completed in accordance with s 35 of the SDPWO Act.
Clause 10 amends s 410 (Deciding whether to grant licence) of the P&G
Act by including a reference to s 412A, which provides for the grant and
conditions of a licence for a significant project and that the Minister must
include the CG's conditions in the licence.
Clause 11 provides that s 412 (Provisions of licence) of the P&G Act
applies subject to s 412A, which provides for the grant and conditions of a
licence for a significant project and that the Minister must include the CG's
conditions in the licence.
Clause 12 inserts a new s 412A of the P&G Act which makes provision for
the grant and conditions of a pipeline licence or proposed pipeline licence
for a project declared to be a significant project under the SDPWO Act.
This clause provides that the Minister must not grant a licence where the
licence would be for a significant project until the CG has completed the
evaluation of the EIS under s 35 of the SDPWO Act and given the Minister
a copy of the CG's report. The CG's conditions stated in the CG's report
must be stated in the licence and if there is any inconsistency between other
conditions, including mandatory conditions, and the CG's conditions, the
CG's conditions prevail.
Clauses 13 and 14 amend s 446 (Deciding whether to grant licence) and s
447 (Provisions of licence) of the P&G Act, by providing that the sections
apply subject to the provisions in s 447A about the grant and conditions of
a petroleum facility licence of proposed petroleum facility licence for a
project declared to be a significant project under the SDPWO Act.
Clause 15 inserts a new s 447A in the P&G Act about the grant and
conditions of a licence for a significant project. This clause provides that
the Minister must not grant a petroleum facility licence or proposed
petroleum facility licence where the licence would be for a significant
project until the CG has completed the evaluation of the EIS under s 35 of
the SDPWO Act and given the Minister administering the P&G Act a copy
of the CG's report. The CG's conditions stated in the CG's report must be
stated in the licence and if there is any inconsistency between other
conditions and the CG's conditions, the CG's conditions will prevail.
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State Development and Public Works Organisation
and Other Legislation Amendment Bill 2005
Clause 16 amends s 514 (Significant projects excluded from div 1) of the
P&G Act by deleting the reference to the SDPWO Act as the term
`significant project' is inserted in the Schedule 2 by Clause 17 to refer to
the projects declared by the CG to be significant projects for which an EIS
is required under s 26 of the SDPWO Act.
Clause 17 inserts definitions in Schedule 2 (Dictionary) of the P&G Act
for:
-- Coordinator-General's conditions', for a lease or licence or
proposed lease or licence for a significant project, means the
conditions for the lease or licence stated in the Coordinator-
General's report for the project.
-- `Coordinator-General's report', for a significant project, means
the Coordinator-General's report under the State Development
and Public Works Organisation Act 1971 for the EIS for the
project.
-- `significant project' means a project declared under the State
Development and Public Works Organisation Act 1971, section
26, to be a significant project.'.
Part 3--Amendment of the State Development
and Public Works Organisation Act 1971
Clause 18 defines the Act amended in Part 3 as being the State
Development and Public Works Organisation Act 1971 (`the Act').
Clause 19 amends s 24 (Definitions for pt 4) of the Act to include new
terms, `Coordinator-General's change report' by reference to the new s
35I(1). Clause 19 also amends the definition of `properly made submission'
to reflect the new provisions in the new Division 3A which enable the CG
to prepare a report about a change to a significant project. The amendment
ensures that the expression `properly made submission' extends to both a
submission about an EIS and a submission about a change to a project, if
the CG required that the proponent publicly notify the proposed change
and invited comments under s 35G and then considers those comments in
evaluating the change under s 35H.
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State Development and Public Works Organisation
and Other Legislation Amendment Bill 2005
Clause 19 also removes the definition of EIS from s 24 as the definition
applies to more than one division. The definition of EIS is inserted in
Schedule 1 of the Act by Clause 64.
Clause 20 amends s 26 (Declaration of significant project) of the Act to
provide that the CG may declare a project to be a significant project for
which an EIS is not required. Significant projects for which an EIS is not
required will not be subject to any environmental assessment under the Act.
Similarly, they will not be able to make use of the provisions in Division 4,
Part 4 of the Act relating to the application of the CG's report to an IDAS
application where, for example, the referral coordination and notification
stages of IDAS do not apply to those significant projects for which an EIS
has been prepared and the CG has prepared a report evaluating the EIS
under s 35. The purpose of the declaration of a significant project for
which an EIS is not required under the SDPWO Act is to recognise the
significant nature of the project by reference to the matters that the CG
must consider under s 27 and enable applications to be made for approvals
under other statutes, such as the Water Act 1994 and the Vegetation
Management Act 1999, which recognise the significant nature of these
projects to the State.
Clause 20 also inserts s 26(2)(a) which provides that if the CG makes a
declaration that no EIS is required for a project under the new s 26(1)(b),
the CG must be satisfied that appropriate environmental assessments will
be carried out for the project under another Act.
The declaration of the significant project for which an EIS is not required
under the Act, as provided for by clause 20, in no way diminishes any
requirement for environmental assessment a proponent may be required to
undertake under other legislation, but means that an EIS under this Act is
not required.
The CG will be able to consider the matters set out in s 27 of the Act before
declaring a significant project, which will enable the CG to consider what
assessment will be carried out for the project, recognising that there are a
number of assessment processes involved in the assessment of applications
other than an EIS under the SDPWO Act.
Clause 20 also inserts new subsections s 26(2) and (3) to support the
declaration of a project as a significant project which does not require an
EIS. The new s 26(2)(b) explicitly states that the CG can not declare a
project does not require an EIS under s 26(1)(b) if the project involves
broadscale clearing for agricultural purposes. The new s 26(3) defines
broadscale clearing for agricultural purposes.
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State Development and Public Works Organisation
and Other Legislation Amendment Bill 2005
The CG will also, as a matter of practice, consult with the Department of
Natural Resources and Mines before making a declaration under s 26(1)(b)
to ensure that the department is aware that a project might result in an
application being made under the Vegetation Management Act or the Water
Act.
Clause 20 also inserts a new subsections (8) and (9) in s 26 providing that if
a significant project involves a lease or licence under the P&G Act, the
Petroleum Act 1923, and/or the Petroleum (Submerged Lands) Act 1982,
the CG must give a copy of the gazette notice about the declaration to the
Minister administering that Act.
Clause 21 inserts a new s 27A in the Act which provides that a declaration
of a significant project which does not require an EIS under s 26(1)(b) will
lapse, generally, at the end of the 4 years starting the day the declaration
was made, or, if the declaration states or implies a time for it to lapse, at the
stated or implied time.
Clause 21 also provides that the CG may, by written notice, extend the
lapsing period to another later time.
In the case of projects declared to be significant projects for which an EIS
is required, the new s 32(4), inserted by clause 25, provides that the
declaration will remain in place for 2 years or such other date as provided
for by the CG from the date that the terms of reference for the EIS are
provided to the proponent in accordance with s 32(i)(c). The preparation of
an EIS within the 2 years is considered reasonable, however may be
extended by the CG under s 27A(3) if the CG decides an extension is
appropriate.
Clause 22 amends s 28 (Application of divs 3-6) of the Act, providing that
Divisions 3-6 of Part 4, which includes the division outlining the EIS
framework and establishes the relationship between the CG's report and
other legislation, applies only to significant projects for which an EIS is
required under s 26(1)(a).
Clause 23 inserts a provision in s 29 (Notice of requirement for EIS and of
draft terms of reference) providing that the notice about the public
notification advising that an EIS is required for the project, where copies of
the terms of reference can be obtained and inviting comments on the draft
terms of reference, must state a period within which comments about the
draft terms of reference must be made and received.
Clause 24 deletes and replaces s 30 (Finalising terms of reference) of the
Act, providing that the CG must finalise the terms of reference for an EIS
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about a significant project as soon as practicable after the comment period
ends and give the proponent a copy. Clause 24 also provides that the CG
must, in finalising the terms of reference, have regard to comments about
the draft terms of reference received by him/her within the comment period
defined in the notice given under s 29.
Clause 24 also defines the term `comment period', to refer to the period
stated in notice under the new s 29(2) inviting comments about the draft
terms of reference.
Clause 25 inserts new provisions within s 32 (Preparation of EIS) of the
Act, providing that the proponent of a significant project must give the CG
a copy of the EIS within 2 years after the finalisation of the terms of
reference for the EIS under s 30. At anytime within the 2 years the CG
may, after receiving written notice from the proponent of the project,
extend the period in which the proponent must finalise the EIS to a later
period.
Clause 26 amends s 35 (CG evaluates EIS, submissions, other material and
prepares report) to provide that the CG may state conditions for a
significant project subject to ss 39, 45, 47C, 49 or 49B. Clause 26 provides
that CG may state conditions, subject to the new s 47C (see clause 34) for a
non-code compliant environmental authority for petroleum activities under
chapter 4A of the EP Act, and state conditions subject to the new s 49B
(see clause 37) for a lease or licence under the P&G Act.
Clause 27 inserts a new s 35A under Division 3, Part 4 of the Act,
providing that a CG's report about an EIS for a significant project generally
lapses at the end of 4 years starting the day after the report is prepared (and
finalised) under s 35(3) or at a time stated or implied in the CG's report.
The new s 35A(1)(c) provides that the CG's report does not lapse, if before
the 4 years or other stated or implied time, the proponent makes an
application for an approval/licence/lease and it has not yet been decided.
This provision is intended to ensure that the decision maker is still able to
have regard to the CG's report in making the decision and complete the
process, including any applicable appeal period. The provision also
includes instances where an appeal against a decision has been made, in
which case the CG's report does not lapse until the appeal is finally decided
or process otherwise ends.
Clause 27 also provides at anytime before the CG report lapses under any
of the circumstance above, the CG may, by written notice to the proponent,
determine another later time for the CG's report to lapse.
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Clause 28 inserts a new Division 3A in Part 4 (ss 35B-35L below) to enable
the CG to assess changes to a significant project following the completion
of the CG's report under s 35(5). Increasingly, proponents are completing
an EIS at an earlier stage in the development of a proposal, as part of the
feasibility stage. This is particularly so in the case of Public Private
Partnerships where the EIS is used as the basis for calling tenders for the
construction of the project which may then result in changes to aspects of
the project, such as the design, construction methodology, or available
technology.
Clause 28 will facilitate an additional process to enable the CG to respond
to advice from the proponent of a significant project about a proposed
change to the project and require assessment of the impacts of the proposed
change together with public notification of those changes and their impacts
without the need to commence a new EIS to address the proposed changes
to the project. The CG would then evaluate the changes and any
submissions received about the proposed changes and prepare a report
about the change. The report, together with the first CG's report would
have effect, with the report dealing with the change prevailing to the extent
of any inconsistency.
The new s 35B explains the scope of Division 3A. The new Division 3A
only applies after the CG gives a copy of the CG's report (prepared under s
35) to the proponent of the project pursuant and publicly notifies the report
pursuant to s 35(5). The proponent may then request the CG assess a
proposed change to the project. The types of changes which may be
proposed could be additional elements to a project, a variation to the
alignment of a route for infrastructure or the use of an alternative
technology than that originally proposed in an EIS, amongst others.
The new s 35C gives the CG power to evaluate the environmental effects of
the proposed change to the project and its effect on the project and any
other matters that the CG considers to be relevant to the evaluation of the
change. Due to the nature of the possible changes that may be made to a
project, the new s 35C provides that the CG considers the change to the
project and also the effect of the change on the project resulting from any
changes proposed. It is not intended that the effects of the entire project be
re-evaluated, rather only the effects of the change relative to the project as
assessed in the CG's report.
The new s 35D provides that the proponent must provide the CG with
written notice of the proponent's intention to make a change to the project
and request that the CG evaluate the change.
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The new s 35E prescribes the contents of the written notice to be given to
the CG under the new s 35D, including a description of the proposed
change and effect on the project, reason for the change, and enough
information about the proposed change and effect on the project to enable
the CG to evaluate the proposed change. The written notice will, where
appropriate, identify those parts of the EIS, any properly made
submissions, and the CG's report which are affected by the change.
Because of the wide variety of changes that might be made to a project, s
35E does not seek to be particular or precise in prescribing the detailed
contents of a written notice.
Under the new s 35F the CG may refer details of the change to the project
to any one who the CG considers may be able to provide comment and
information that would assist the CG in evaluating the change and the
effect of the change. The CG may also ask the proponent for more
information about the change if required. Sections 31(1) and 35(2) make
similar provision for the EIS process.
The changes and appropriateness of assessment under the new Division 6A
will be considered by the CG on a project by project basis. Although not
stated explicitly in the new s 35F, if, after considering any comments or
information provided by the proponent and/or any other person the CG has
asked for comments or information about the proposed change, the CG
considers that a change to a project is so substantial that a new EIS should
be prepared, he/she may decide not to assess the change using the new
change provisions in the new Division 6A.
The new s 35F also provides that in the event the proponent does not
comply with the request to provide more information about the change
within a reasonable period after it was given, the CG may proceed to make
the evaluation without the further information.
The new s 35G allows the Coordinator-General, in addition to the powers
under ss 35E and 35F, to require the proponent to publicly notify the
change to the project in a way decided by the CG. If public notification is
required, submissions may be made about the change to the project, in the
same way that submissions could have been made about the EIS for the
project under ss 33 and 34.
The new s 35H states the matters which the CG must consider in evaluating
the environmental effects of the change, its effect on the project and any
other related matters. It is not intended that the effects of the entire project
be re-evaluated, rather only the effects of the change relative to the project
that was the subject of the evaluation made in the CG's report.
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S 35H is modelled upon s 35(1). The new s 35H provides that the CG must
consider:
(a) the nature of the proposed change and its effects on the project;
(b) the project as evaluated in the CG's report under s 35;
(c) the environmental effects of the proposed change and its effects on the
project;
(d) if applicable, all properly made submissions about the proposed
change and its effects on the project;
(e) material that the CG considered in evaluating the project under s 35(1)
to the extent the CG considers it is relevant to the proposed change.
The material may include the EIS, any properly made submissions
and other submissions accepted by the Coordinator-General about the
EIS and any other material the Coordinator-General considered
relevant to the project in preparing the CG's report.
The new s 35I provides that the CG must prepare a CG's change report that
makes the evaluation of a proposed change to a project and the effect of the
proposed change. The new s 35I also introduces the term `Coordinator-
General's change report' which means the report that the CG must prepare
under the new s 35I evaluating the proposed change. The section is
modelled on sections 35(3) and 35(4). The CG may state conditions (of the
type mentioned in ss 39, 45, 47C, 49 or 49B) or make recommendations (of
the type mentioned in ss 43 or 52) which are relevant to a change, including
the power to vary any conditions or recommendations already stated or
made under section 35(4).
The new s 35J provides for the public notification of the CG's change
report and provision of a copy of the report to the proponent. The new s
35J is modelled on s 35(5).
The new s 35K provides that both the CG's report and CG's change report
apply to the project, including any conditions and recommendations. If,
however, there is any inconsistency between the later CG's change report
and the earlier CG's report prepared under s 35, the later change report
prevails to the extent of any inconsistency.
The new s 35L provides that the CG's change report also lapses when the
CG's report lapses pursuant to the new s 35A (see clause 27), unless the
CG determines a later time for the CG's report (and the change report) to
lapse under the new s 35A.
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Clause 29 amends s 39 (Application of CG's report to IDAS) so that
reasons are only provided when the CG recommends that an application for
a development approval must be refused. The CG's report will continue to
provide a detailed evaluation of the project and analysis of the key issues
together with conclusions which provide the rationale for any
recommended conditions or requirements. A detailed Statement of
Reasons in the form prescribed in the Acts Interpretation Act 1954 would,
however, only be included in the CG's report where the CG recommends
that an application be refused. Similar amendments are also made by
clauses 31 and 36, 39.
Clause 30 inserts a new s 42A (subsections 1 to 8 are explained below)
which explains the relationship between the CG's change report and
Integrated Development Assessment System (IDAS) under the Integrated
Planning Act 1997 (`IPA'). The status of the change report under IDAS
depends on when the change report is given to the proponent.
The new s 42A(1) explains that the new s 42A applies if the CG has
competed the CG's change report and given a copy to the proponent under
the new s 35J(a).
The new s 42A(2) provides that the CG's change report is taken to be an
amended concurrence agency report under s 3.3.17(1) of the IPA and to
which the proponent has given written agreement.
The new s 42A(3) and (4) provide that, if the change report was given after
the decision stage of IDAS started but before the assessment manager has
made a decision on the application, section 3.5.8 of the IPA applies for the
decision period for the application. This provides that the decision making
period starts again from its beginning once the CG has competed the CG's
change report under s 35J(a).
The new s 42A(5) and (6) provide that if the CG's change report was given
to the proponent after the assessment manager made a decision on the
application, the proponent must take the necessary steps to obtain a
development approval under the IPA that authorises the new development
to be carried out. This applies in instances where either a new development
application, a change to the decided development approval, or to the
conditions of the approval, must be made.
The new s 42A(7) provides that if under the IPA a new development
application is required, because the assessment manager has already made
a decision on the application, references to the CG's report in ss 37 to 42 of
the Act are to be taken to be references to the CG's change report.
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Similarly, references to properly made submission about the EIS in ss 37 to
42 of the Act are to be taken as if it were a reference to properly made
submission about the proposed change.
The new s 42A(8) provides that, in instances where a change to the decided
development approval or to the conditions of the approval must be made, a
proponent must take steps to obtain a development approval that authorises
the new development as evaluated in the CG's change report even if there is
an undecided appeal against the development approval for the project as
evaluated in the CG's report.
Clause 31 amends s 45 (Application of CG's report to proposed mining
lease) to remove the requirement to state reasons for the inclusion of
conditions for a proposed mining lease. Similar amendments are made in
clause 29, 36 and 39.
Clause 32 inserts a new s 47A providing that if there is any inconsistency
between a CG's condition imposed under ss 45 or 46 about a proposed
mining lease and conditions for the granting of a proposed mining lease
determined or declared under the Native Title Act 1993 (Cwlth), the CG's
condition/s do not apply to the extent of the inconsistency.
Clause 33 amends the heading of Division 6 in Part 4 about the Act's
relationship with the Environmental Protection Act 1994 to reflect changes
made by clauses 34 and 35 below.
Clause 34 inserts a new Subdivision in Division 6 of Part 4 (ss 47B - 47C
below), providing for the application of CG's report to Chapter 4A
(Environmental authorities for petroleum activities) of the Environmental
Protection Act 1994 to provide that conditions stated by the CG for a
significant project must be attached to an authority under the
Environmental Protection Act 1994 [non-code compliant environmental
authority (petroleum activities)].
The new s 47B provides that Division 6, subdivision 1 applies if the project
involves a proposed environmental authority (petroleum activities) under
the Environmental Protection Act 1994; and if the proposed authority were
to be issued, it would be a non-code compliant authority for chapter 4A of
that Act.
The new s 47C provides for the application of CG's report to an
environmental authority, including the ability to state conditions for a
proposed environmental authority and the requirement to provide a copy of
the CG's report to the EPA Minister.
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Clause 34 also amends the heading for the relationship for environmental
authority (mining lease) under the Environmental Protection Act 1994,
making it a Subdivision 2, as result of the new Subdivision 1 in Division 6
of Part 4 (per the new ss 47B & 47C above).
Clause 35 makes consequential amendments to s 48 to reflect changes
made by clause 34. S 48 explains the application of subdivision 2 which
deals with the application of the CG's report to environmental authorities
(mining lease) under Chapter 5 of the EP Act.
Clause 36 removes the requirement in s 49(2) to state reasons for the
inclusion of conditions for a proposed mining lease. Similar amendments
are made in clauses 29, 31 and 39.
Clause 37 inserts a new Division 6A in Part 4 (ss 49A - 49C below)
providing for the application of CG's report to a lease or licence under the
P&G Act, including the ability to state conditions for a lease or licence and
the requirement to provide a copy of the CG's report to the Minister
administering the P&G Act.
The new s 49A explains the scope of Division 6A. The new Division 6A
applies only if a project involves a proposed petroleum lease, pipeline
licence or petroleum facility licence under the P&G Act.
The new s 49B provides that the CG's report may state conditions for a
proposed lease or licence to be granted under the P&G Act, and, if so, the
CG must give the Minister administering that Act a copy of the report.
The new s 49C provides that for a proposed petroleum lease if there is any
inconsistency between a CG's condition stated under s 49B and conditions
for the granting of a proposed petroleum lease determined or declared
under the Native Title Act 1993 (Cwlth), the CG's condition/s do not apply
to the extent of the inconsistency.
Clause 38 amends s 50 about the application of Division 7 (Relationship
with other legislation) in Part 4. Clause 38 provides that Division 7 does
not apply if the project involves a proposed lease or a proposed licence or
pipeline licence under the P&G Act. Clause 38 provides that Division 7
does not apply to chapter 4A of the Environmental Protection Act 1994 as
result of provisions inserted by clause 34.
Clause 39 provides that if, under s 52 (Application of CG's report to other
approval process), the CG's recommendation is to refuse an approval; the
report must give reasons for that recommendation. Similar amendments are
made by clauses 29, 31 and 36.
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Clause 40 amends s 82 (Acquisition of land in State development area) to
provide for the declaration of a State development area for the
establishment of an infrastructure corridor for one of more uses and/or
users. These corridors may be directly associated with existing State
development areas or for corridors established for one or more uses or
users. It is proposed that the CG control the use of the land through
licences with service providers for infrastructure such as gas and water
pipelines, conveyors and electricity transmission lines, and other linear and
ancillary infrastructure as required.
Clause 40 also defines the term `infrastructure corridor' as `an area for the
establishment of infrastructure relating to roads, public transport or the
transportation, movement, transmission or flow of anything, including, for
example, goods, material, substances, matter, particles with or without
charge, light, energy, information and anything generated or produced.'
Clause 41 amends s 84 (Use of land under approved development scheme)
to provide that a proponent may only commence a use if it has been
approved under s 84(4)(b) and the approval has not lapsed under the new s
84A inserted by clause 42 below.
Clause 42 inserts a new s 84A that provides an approval for a use of land in
a State development area under s 84(4)(b) lapses at the end of the currency
period unless the change of use happens before the end of the currency
period; or the use substantially starts before the end of the currency period.
Clause 42 provides that the currency period ends 4 years after the day the
approval took effect or from the day the approval took effect until some
other stated or implied time for the approval to lapse. The CG may, within
the currency period, by written notice to the proponent, extend the currency
period to another later time.
Clauses 43 - 51 amend Division 3 of Part 6 so that certain works can be
carried out by a person, (an `approved person'), who has entered into an
agreement with a local body to carry out those works. The amendments,
for example, provide that works (approved by the Governor in Council on
recommendation from the Minister) may be carried out by a private sector
concession holder where it enters into an agreement with a local body
about those works. The approval of works to be carried out in this way will
not affect the need to obtain necessary environmental authorities under the
Environmental Protection Act 1994 nor will it give rise to acquisition
powers which are only triggered where the works are to be undertaken by
local bodies or the CG (under s 125 of the Act).
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State Development and Public Works Organisation
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Clauses 52 - 55 amend ss 108 - 111 to provide that work(s) undertaken by
the CG in those sections includes work(s) undertaken by another person on
behalf of the CG. For the purposes of s 109(b) the reference to the local
body or local bodies also includes an `approved person' that may have
entered into an agreement with the local body or local bodies to do the
works, as provided for by the new ss 99 & 100 (clauses 44 & 45).
Clause 56 amends s 125(4) to (6) to clarify that the process for the taking of
land under s 125(1)(f), for an infrastructure facility of significance, also
applies to the taking of land for a person other than the state or a local body
(ie. third parties). Clause 58 makes similar amendments.
Clause 56 also includes a new s 125(8) which deals with the acquisition
process that applies to infrastructure facilities which was previously dealt
with in the requirements for Guidelines in ss 174(3)(g) and (h). The new
subsection provides that if the taking of land is for an infrastructure facility
under s 125(1)(f) the notice of intention to resume the land by compulsory
acquisition must not be given until at least 2 months after the start of the
consultation and negotiation period required by the Guidelines made under
the new s 174(1)(a) and which must be completed prior to the taking of the
land by compulsory acquisition. See also amendments to s 174 made by
clause 60.
Clause 57 inserts a new s 125A to provide that the CG's power to take land
under s 125 for a purpose under s 125(1), includes the ability to register a
public utility easement for water storage purposes under either the Land
Act 1994, chapter 6, part 4, division 8, or the Land Title Act 1994, part 6,
division 4.
Clause 57 also provides that, for the purposes of the Land Act 1994 and the
Land Title Act 1994, the person for whom the land is taken is taken to be a
public service provider as defined under those Acts.
Clause 57 also insert the new s 125A(3) which provides that the document
creating the easement may be registered without the document having been
signed by the landowner to be burdened by the easement. If however the
acquisition is for a party other than the State or a local body (ie. a third
party) and the process in s 126 and the procedures in the Guidelines
prepared under s 174 of the Act apply for the taking of the land, the
document creating the easement must state that the requirements of those
sections have been complied with in order to register the easement.
The above amendments provide that the CG may take a public utility
easement for water storage in the event that the consent of the landowner
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can not be obtained. The ability to take an easement is required to provide
for temporary water storage on properties adjacent to dams or weirs, and
have the easements registered without the cost involved of a survey plan of
the easement which would otherwise be required for the registration of
other easements. The amendments also clarify the ability of the CG to take
easements over non-freehold land such as leases.
Clause 58 amends s 126 (Ensuring reasonable steps are taken to acquire
land by agreement) to provide that the notification process under s 125(4),
(5) and (6) applies only for the taking of land for a party that is not the State
or a local body. The provisions in s 125(4), (5) and (6), and s 126(1) were
intended to relate only to land taken for a third party for an infrastructure
facility of significance under s 125(1)(f). Clause 56 above makes similar
amendments to s 125(4) to (6).
Clause 59 makes consequential amendments to s 127. The changes are
consequential renumbering for cross references to subsections within s 125
that were amended by clause 56 above.
Clause 60 replaces s 174(1)(a) (CG must make guidelines) to clarify that
the CG must make Guidelines about consultation and negotiation period
for the proposed taking of land for infrastructure facilities under s
125(1)(f). The processes for the taking of land remains unaffected but is
addressed in the new s 125(8).
Clause 60 also deletes the existing ss 174(3)(g) and (h) which dealt with
the acquisition process and the timing for the giving of a notice of intention
to resume the land by compulsory acquisition and the timing for lodging an
objection against the acquisition. These provisions have been removed to
clarify that the Guidelines deal only with the consultation and negotiation
period and that the acquisition process for an infrastructure facility is dealt
with in the new s 125(8) inserted by clause 56.
Clause 60 also inserts a new s 174(3)(g) which clarifies that the CG's
Guidelines must provide procedural requirements for the consultation and
negotiation period in order to provide guidance to proponents of
infrastructure facilities and affected persons about the procedures which
must be complied with during the consultation and negotiation about the
taking of land.
Clause 60 inserts a new s 174(5) that in addition to the requirements of s
174(3)(a)-(g), the guidelines made by the CG may also provide procedural
requirements for the consultation and negotiation period that must be
complied with prior to the formal consultation and negotiation period
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State Development and Public Works Organisation
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commencing to ensure that proponents of infrastructure facilities
commence negotiations with affected land owners at an early stage before
the minimum 2 month consultation period commences as described in s
174(3)(f).
Clause 61 amends Part 8 of the Act by inserting a new division 4 about the
assessment of the Papua New Guinea (`PNG') pipeline project that was the
subject of an Impact Assessment Study (`IAS') under the Act in 1998.
Clause 61 inserts a new s 175A providing that despite s 104 of the
Environmental Protection Act 1994 and s 39B of the Nature Conservation
Act 1992, no EIS is required under either of those Acts for the PNG
pipeline project that was the subject of an IAS under the SDPWO Act in
1998. This provision does not apply to any new or additional components
or significant variations to the project. Any significant variation from the
project that was the subject of an IAS under the Act, such as additional
pipeline laterals, are subject to assessments under relevant legislation.
An IAS was prepared for the PNG pipeline project prior to the inclusion of
significant project provisions in the Act in 1999. While the study had been
completed in 1998, there were a number of outstanding information
requests which still need to be satisfied. The project has been in abeyance
since 1998 but has recently been revived. The proponent, APC, is seeking
to have the work comprising the IAS recognised, and complete any further
studies required to finalise the environmental assessment, without the need
to duplicate the environmental assessment already undertaken.
There is a further potential trigger for an EIS under the Nature
Conservation Act 1992. The amendments also exclude this possible trigger
for an EIS for the project under the Nature Conservation Act.
Clause 62 amends the headings of Part 9 Transitional Provisions as a result
of amendments made by clause 63 below.
Clause 63 inserts new transitional provisions in Part 9 by inserting a new
Division 2 s 177 to provide that an approval for the use of land in a State
development area already given under section 84(4)(b) that has not
substantially commenced before the commencement of this section is
subject to the currency period provided for by the new s 84A. However the
new s 84A(3) is taken to have only taken effect upon the commencement of
this section. Therefore a proponent with a use approved by the CG prior to
the commencement of this section will have 4 years to substantially
commence the development from the commencement of this section unless
the approval states or implies some other period in which the approval will
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lapse. Additionally, the CG may extend the currency period that applies
pursuant to the new s 84A(3)(c).
Clause 64 inserts the following definitions in the Schedule (Dictionary):
-- `approved person' by reference to s 100(1).
-- `Coordinator-General's change report' by reference to s 35I(1);
and
-- `EIS' means Environmental Impact Statement.
Clause 64 also amends the definition of `private works' so that private work
may be carried out for purposes not related to the establishment of a town
or other community.
© State of Queensland 2005