in brief corrs Policy What it means for developments in april 2012

Transcription

1 corrs in brief april 2012 Delivery of the Strategic Regional Land Use Policy What it means for developments in regional areas The NSW Government has recently released a number of draft plans, policies and guidelines that deliver on its Strategic Regional Land Use Policy. This Policy aims to protect high quality agricultural land and water resources from the impact of mining and petroleum projects. Significantly, all State significant mining and petroleum proposals on or within 2km of strategic agricultural land will be considered under an independent gateway assessment and will require a gateway certificate before a development application may be lodged. While the Policy is aimed at protecting strategic agricultural land from coal and petroleum projects, and will clearly have a significant impact on these industries, proponents of other State significant development and infrastructure projects on or near strategic agricultural land should familiarise themselves with the Policy as such projects may be affected by the Guideline for Agricultural Impact Statements. In circumstances where the project will interfere with groundwater or an aquifer, the Aquifer Interference Policy will also be relevant. Background In the lead up to the NSW election in 2011, the Coalition announced its Strategic Regional Land Use Policy (Regional Policy) to control development of regional areas and balance the needs of conflicting land uses such as mining, petroleum, agriculture and tourism industries. The Regional Policy will apply state-wide in regional areas where there is high value agricultural land and increasing activities from the mining and petroleum, in particular coal seam gas (CSG), industries. The Regional Policy will be implemented through the development and implementation of Strategic Regional Land Use Plans (Regional Plans) for region specific areas. These Plans will be used to define land use priorities for different areas of land within a region. They will identify the best places for agriculture, mining, CSG extraction, wine-growing, horse breeding, conservation, urban development and other types of land use. Following consultation with government agencies, a stakeholder reference group and local councils of these regions, draft Regional Plans will be prepared and exhibited for public comment. Draft Regional Plans have already been prepared for the Upper Hunter and New England North West areas. Further Regional Plans will be prepared for: (a) the Central West and Southern Highlands area, which are expected to be finalised in 2012; and (b) the Murrumbidgee, Alpine and West areas, which are expected to be finalised by As part of the consultation process for the Regional Policy, drafts of the following documents have been released for public comment: Upper Hunter Strategic Regional Land Use Plan; New England North West Strategic Regional Land Use Plan; Aquifer Interference Policy (Aquifer Policy); and Code of Practice for Coal Seam Gas Exploration. These documents will be on public exhibition for eight weeks and any submissions in respect of them must be made by 3 May In the context of the Regional Policy, the Government has also published the following guidelines: Guideline for Agricultural Impact Statements (AIS Guideline); and Guideline for Community Consultation Requirements for the Exploration of Coal and Petroleum, including Coal Seam Gas. While many of the above documents may not apply to State significant development or infrastructure (other than mining and petroleum projects), proponents should refer MAKING BUSINESS SENSE

2 to the relevant Regional Plan (if any) to determine whether the subject land is identified as strategic agricultural land (Strategic Land). If the subject land of the proposed development is identified as being on or near Strategic Land, the AIS Guideline will become relevant to the development application assessment process. Further, if the development is likely to interfere with groundwater or an aquifer, the proponent will need to consider the Aquifer Policy and whether an aquifer interference approval is required. AIS Guideline As an interim measure for the period leading up to the finalisation of the Regional Plans, all new SSD for mining and petroleum proposals, as well as applications for associated SSI proposals (such as pipelines), which have the potential to affect agricultural resources or industries, will be required to submit an AIS as part of the environmental impact statement (EIS). This interim measure has immediate effect for SSD mining and petroleum projects only. From June 2012, it is anticipated that all State significant development (SSD) and State significant infrastructure (SSI) proposals located on Strategic Land will require an AIS to be prepared and submitted as part of the environmental assessment process. However, this requirement will be constrained by the delay in the finalisation of some Regional Plans. For instance, the Regional Plans for the Murrumbidgee, Alpine and West areas may not be finalised until 2015 and, therefore: (a) no Strategic Land will be mapped in the areas; and (b) the need for an AIS will not be triggered. The purpose of the AIS is to demonstrate that impacts on agricultural resources and industries are avoided or minimised to acceptable levels. The term "agricultural resources" is used to describe the land on which agriculture is dependent and the associated water resources (quality and quantity) that are linked to that land. The specific requirements for the EIS, including the AIS, will be listed in the Director-General's Requirements (DGRs) for the proposal by the Department of Planning and Infrastructure (Planning Department), in consultation with the Department of Primary Industries (DoPI). However, the DGRs will require the following matters to be addressed in the AIS: 1 information relating to the site and region, including: (a) a detailed assessment of the agricultural resources and agricultural production of the project area, including on the soils, slope, land characteristics, water characteristics and relevant history of agricultural enterprises within the project areas; and (b) the identification of the agricultural resources and current agricultural enterprises within the surrounding locality of the project area; 2 assessment of the impacts, including: (a) identification and assessment of the impacts of the project on agricultural resources and industries, including a risk-based assessment of the consequential productivity effects and uncertainty of the impacts and mitigation measures; (b) accounting for any physical movement of water away from agriculture use as a result of the project and mitigation measures; and (c) assessment of the socio-economic impacts such as agricultural support services, processing and valueadding industries, regional employment, visual amenity and tourism infrastructure; 3 mitigation measures through the identification of feasible options for minimising adverse impacts on agricultural resources, including agricultural lands, enterprises and infrastructure at the local and regional level; and 4 consultation with adjoining land-users and government agencies by providing details of the project's engagement strategy. Following submission of the AIS by the proponent, a merit assessment of the report will be undertaken by the Planning Department, in consultation with the Office of Agricultural Sustainability and Food Security, to determine: (a) the value of the agricultural resources and associated enterprises to be impacted; (b) the impact of the project on agricultural resources and enterprises; and (c) whether the impacts are unacceptable and should be avoided. If the Planning Department determines that a project would have a significant or unacceptable detrimental impact on Strategic Land, the project will not be supported. Based on the proposed application of the AIS Guideline to all SSD and SSI proposals on Strategic Land, the property and construction industries will need to consider: 1 whether the subject land of a proposed development is identified on Strategic Land; and, if so, 2 whether the proposed development will have a significant or unacceptable detrimental impact on Strategic Land; and, if so, 3 how these impacts can be minimised. PAGE 2

3 Aquifer Policy The purpose of the Aquifer Policy is to explain the role and requirements of the Minister for Primary Industries and NSW Office of Water (NSW Water) in the water licensing and approval processes for aquifer interference activities (AI activities) under the Water Management Act 2000 (NSW) (WM Act) and the Water Act 1912 (NSW) (Water Act). The Aquifer Policy has two components, namely: 1 water licensing requirements for AI activities under the WM Act and Water Act; and 2 AI approval requirements where the relevant groundwater underlies Strategic Land. The second stage of the roll out of the Aquifer Policy will address the AI approval requirements for activities interfering with groundwater that does not underlie Biophysical Land. Although the Aquifer Policy applies to all AI activities, it has been developed mainly to address the following high risk activities: mining activities, such as open cut voids, underground mine workings and the disposal of water taken from an aquifer including water taken as part of CSG extraction; other extractive industries, such as sand and gravel extraction; large projects which require dewatering for the construction and maintenance of associated works, such as buildings, roads and other civil works; injection works used to transmit water into an aquifer; and activities with the potential to contaminate groundwater or result in unacceptable loss of storage or structural damage to an aquifer. Under the WM Act, the term aquifer is defined as a geological structure or formation, or an artificial landfill, that is permeated with water or is capable of being permeated with water. More generally, however, the term aquifer is understood to mean a groundwater system that is sufficiently permeable to allow water to move within it, and which can yield productive volumes of groundwater. The term "aquifer interference activities" is defined by the WM Act as involving: (a) the penetration of an aquifer; (b) the interference with water in an aquifer; (c) the obstruction of the flow of water in an aquifer; (d) the taking of water from an aquifer in the course of carrying out mining or any other activity prescribed by the regulations; and (e) the disposal of water taken from an aquifer in the course of carrying out mining or any other activity prescribed by the regulations. Examples of AI activities include mining, CSG extraction, injection of water and commercial, industrial, agricultural and residential activities that intercept the water table or interfere with aquifers. The Water Management (General) Amendment (Aquifer Interference) Regulation 2011 (NSW) (Aquifer Regulation), which was introduced in June 2011, specifies that the extraction of sand and the extraction of road base material are also considered AI activities. Water licences A water licence is required under either the WM Act or the Water Act where any act by a person carrying out the AI activity causes: (a) the removal of water from a water source; (b) the movement of water from one part of an aquifer to another part of an aquifer; or (c) the movement of water from one water source to another water source. A water licence is required whether water is taken for consumptive use or whether it is taken incidentally by the AI activity. The kind of licence that is required for AI activities will depend upon whether or not a water sharing plan has commenced in respect of the relevant water source. If the relevant water source has a water sharing plan in place under the WM Act, the person carrying out the AI activity will require a water access licence. This licence gives the holder a share of the pool of water available for extraction, rather than a guaranteed volume of water per year. However, separate approvals are still required for AI activities, water supply works and water use. On the other hand, if a water sharing plan does not apply to the relevant water source, the person carrying out the AI activity will require a water licence under the Water Act. This licence covers both the taking of water from a river or aquifer and any approvals for works or activities that cause this water to be taken. The Water Act is being gradually replaced by the WM Act as water sharing plans are finalised for particular water sources. Therefore, once a water sharing plan is finalised for a water source where existing water licences issued under the Water Act are in force, these licences for AI activities will convert to aquifer access licences under the WM Act. PAGE 3

4 Water licence exemptions Section 2.5 of the Aquifer Policy outlines exemptions from the requirement to hold a licence under the WM Act and the Water Act, which include, for example: (a) road or rail infrastructure construction undertaken by a "roads authority" as defined by the Roads Act 1993 (NSW) or an "authority" as defined by the Transport Administration Act 1988 (NSW) provided that the environmental impact of the construction or maintenance has been considered under section 111 of the EPA Act or is exempt from the need for such consideration under section 110E of the EPA Act; and (b) certain activities associated with the construction, alteration, renovation or maintenance of residential dwellings. AI approvals Since water access licences under the WM Act do not authorise works or activities, persons undertaking AI activities will require a separate AI approval unless an exemption applies. An AI approval is issued under section 91(3) of the WM Act. The approval confers a right on its holder to carry out one or more specified AI activity at a specified location, or in a specified area or water source, in the course of carrying out specified activities. In the context of SSD and SSI, separate approvals under the WM Act are generally not required. However, this exemption for SSD and SSI proposals does not extend to AI approvals (see sections 89J(1)(g) and 115ZG(1)(g) of the EPA Act). Therefore, all AI activities will require an AI approval, except if an exemption applies. The assessment process for the proposal applies an account for, avoid/prevent and remediate approach. The approach requires proponents to: 1 demonstrate that they have the ability to obtain the necessary licences in order to account for the take of water from any relevant water source. In circumstances where the necessary licence entitlements may not be obtained, the proposal will need to include mitigation or avoidance strategies in order to reduce the take of water to a point where it can be accounted for; or 2 if proponents are unable to meet the requirements in (1) above, demonstrate that the proposal has been designed in such a way to prevent the take of water; or 3 demonstrate that the proposal includes strategies to prevent any more than minimal harm occurring to any water source, their dependent ecosystems or other water users; and 4 commit to undertake remedial action for unforeseen adverse impacts occurring during and after the AI activity where planned mitigation, prevention or avoidance strategies fail. Before the Minister for Primary Industries issues an AI approval, NSW Water must undertake an assessment of the proposal s ability to meet the requirements set out above. This assessment will determine the potential level of impact and will identify where further mitigation, prevention or avoidance measures are required. If no suitable or practical mitigation or prevention options are available, proponents may be asked to avoid impacts by modifying the proposal. An AI approval will either be exempted or will only be issued where it can be demonstrated that adequate arrangements are in place to ensure no more than minimal harm will be done to the aquifer or its dependent ecosystems. The minimum harm criteria is set out in Appendix 1 of the Aquifer Policy and covers the potential impacts of water table and water pressure drawdown, aquifer compaction and water quality. In order to meet the minimum harm criteria, consideration will be given to potential impacts such as: water level or pressure drawdown impacts on nearby water users; water level drawdown and related impacts on surface water and groundwater dependent ecosystems; acidity issues to arise; waterlogging or water table rise; significant levels of aquifer compaction; deterioration of the ambient water quality of the water sources; significant river bank instability; and significant soil erosion. In order to prevent more than minimal harm occurring to groundwater underlying Strategic Land, its dependent ecosystems or other water uses, four risk management zones will be established for and apply to Highly Productive Groundwater (HPG) and related key water source features. HPG is groundwater that contains water supply works yielding a minimum specified threshold and low salinity levels. Water source features include groundwater bores, high priority groundwater dependent ecosystems and groundwater dependent culturally significant sites on, in or under Biophysical Land. Significantly, an AI approval will not be issued for an activity that proposes to directly operate within a water protection zone, except if the zone relates to HPG. Further, mining and petroleum PAGE 4

5 proposals in a water protection zone that relates to HPG will not be issued with an AI approval unless specified exemptions apply. In the limited intrusion zone, AI approvals will not be issued for a mining or petroleum proposal that will directly operate within the zone if it will cause more than 10 per cent of the three dimensional extent of this zone, subject to an exemption. After AI approval is given, unforeseen impacts may still occur during the life of the AI activity. If unforeseen impacts are larger than those predicted in the assessment process, approval holders will be required to cease the activity until remedial action is completed. A security deposit such as a bank guarantee or sum of money will be held by the Government to cover the costs of remediation works for unforeseen impacts or ongoing post-closure activities. The amount of security will be determined on a case-by-case basis. Exemption from AI Approvals General exemptions from the need to hold an AI approval will be specified in the AI Regulation and include: SSD mining and petroleum proposals that have been granted either a gateway certificate or development consent, in circumstances where the gateway does not apply, under the EPA Act; individual activities that existed prior to AI approvals being required under the WM Act where they did not require a licence under the Water Act. However, if the activity is modified or expanded resulting in a greater impact on the aquifer, the activity will require an AI approval; activities covered by a water supply work approval; mineral and coal exploration activities undertaken in accordance with conditions of authorisations under the Mining Act 1992 (NSW) provided they do not allow the activity to cause or enhance interconnectivity with aquifers; petroleum exploration activities undertaken in accordance with conditions of titles under the PO Act, provided they do not allow the activity to cause or enhance interconnectivity with aquifers; in aquifers the Minister for Primary Industries determines to be high value aquifers or not being high value aquifers; and monitoring bores or wells, and leachate ponds and sumps if constructed and operated in accordance with appropriate standards and guidelines. For the purpose of the exemption, other interference activities that intersect the water table but do not take water, such as geotechnical site investigations, sampling activities, seismic surveys and small scale excavation are considered to be low risk activities and are exempt from the need to hold an AI approval. As part of the environmental assessment process, the Planning Department will consult with NSW Water in respect of the preparation of DGRs under the EPA Act and NSW Water will also provide advice to the Planning Department on aquifer impacts. Proponents of SSD and SSI projects involving AI activities, such as dewatering for the construction and maintenance of associated works, like buildings, roads and other civil works or undertaking activities with the potential to contaminate groundwater or result in unacceptable loss of storage or structural damage to an aquifer, will normally require a AI approval under the Aquifer Policy. In assessing whether such an approval is necessary, proponents will need to consider the exemptions set out in the Aquifer Policy. Implications The Regional Policy introduces a number of significant reforms to the assessment process for proposals on Strategic Land or having an impact on groundwater. While the reforms are intended to capture coal and petroleum projects, they are also likely to affect all development on Strategic Land and AI activities. Proponents will need to familiarise themselves with the relevant Regional Plan to ascertain whether their proposal is on or near Strategic Land and, if so, consider the impacts of the proposal on Strategic Land and its water resources and how these impacts can be minimised. key contacts Christine Covington Partner, Sydney Tel christine.covington@corrs.com.au Tim Poisel Lawyer, Sydney Tel tim.poisel@corrs.com.au Corrs Chambers Westgarth, 2012 This publication does not constitute legal advice and should not be relied on as such. You should seek individualised advice about your specific circumstances. We have sent this publication to you because you have requested to receive these publications from us. If you do not wish to receive such publications, please send an with Unsubscribe in the subject heading and containing your name and contact details to privacy@corrs.com.au. PAGE 5