25 November 2012

Legal News & Analysis – Asia Pacific – Australia – Environment

In brief

• The Economic Development Bill 2012 (“Bill“) was introduced into Queensland Parliament on 1 November 2012 and is expected to be enacted before the end of the 2012 parliamentary sittings. 
• When enacted, there will be changes to the environmental impact assessment of projects by the Coordinator-General and the Coordinator-General’s powers to compulsorily acquire land.
• The Bill also includes a mechanism which may be an opportunity for project proponents to streamline the approval processes for their projects.

Introduction

The Economic Development Bill 2012 (“Bill” ) was introduced into the Queensland Parliament on 1 November 2012.

The main purpose of the Bill is to facilitate economic development, and development for community purposes, in Queensland.

The key features of the Bill, from a project development perspective, are:

• amendments to the State Development and Public Works Organisation Act 1971 (“SDPWOA“) to rename significant projects and infrastructure facilities of significance, make changes to the environmental impact assessment processes, and restructure the process for approval of the renamed infrastructure facilities of significance; and
• the creation of the Minister for Economic Development Queensland (“MEDQ“) as a corporation sole and the granting of powers and functions to the MEDQ to facilitate development in Queensland.

Amendments to the SDPWOA

Changes to environmental impact assessment

The amendments to the SDPWO Act in the Bill rename significant projects as coordinated projects. These are projects declared by the Coordinator-General as requiring environmental impact assessment.

The Coordinator-General will be required to consider new matters in deciding whether to declare a project to be a coordinated project, including:

• relevant State policies and government priorities;
• a pre-feasibility assessment of the project, including how it satisfies an identified need or demand;
• the capacity of the proponent to undertake and complete an EIS for the project; and
• any other matter the Coordinator-General considers appropriate. Other key changes include:
• streamlining the environmental impact assessment process by reducing the time within which an environmental impact statement (“EIS“) is required to be provided for a coordinated project from 2 years after the terms of reference for the EIS are finalised to 18 months; 
• promoting the development of projects by reducing the default period for the lapsing of the Coordinator-General’s report about an EIS for a project from 4 years to 3 years.

Under the transitional provisions the changes to environmental impact assessment will not affect existing declared significant projects or projects for which an application for the declaration of a significant project was made before the Bill commences operation.

Private infrastructure facilities

The Bill also includes important changes to the provisions relating to infrastructure facilities of significance. These facilities will now be known as private infrastructure facilities.

The proposed amendments for private infrastructure facilities include:

• a requirement that the Coordinator-General seek and consider submissions about the economic or social significance and benefits of the proposed infrastructure facility;
• that the Governor in Council can approve a project as a private infrastructure facility if satisfied about a number of matters, including:
• the economic or social significance of the project;
  • the financial and technical capability of the proponent to complete the project;
  • the need which will be satisfied by the project;
  • the timely completion of the project; and
  • the project’s consistency with State policies;
• a requirement for the Coordinator-General to undertake consultation with the registered owner of land required for the facility about the negotiations to acquire land by agreement undertaken by the proponent with the registered owner. This means that proponents will be required to negotiate before applying for approval of the facility which is not always the case currently.

The proposed amendments also specify the pre-conditions for the exercise of the Coordinator-General’s power to compulsorily take land for private infrastructure facilities, being that:

• the project has been declared a coordinated project for which an EIS is required;
• the Coordinator-General has publicly notified the report for the project;
• the report has not lapsed; and
• the area of land identified as required for the facility is consistent with the land assessed in the EIS for the project.

Under the current provisions an infrastructure facility of significance is not required to have an EIS, so this new requirement will further confine the application of these provisions.

The Bill includes transitional provisions which mean that the amendments to the SDPWOA for private infrastructure facilities when the Bill is enacted will not apply to existing approved infrastructure facilities of significance or to facilities for which an application for approval was made before the commencement of the Bill, when enacted.

The new MEDQ

The other key features of the Bill for project development are:

• the repeal of the Urban Land Development Authority Act 2007 and the Industrial Development Act 1963;
• the establishment of the MEDQ to plan, carry out, promote or coordinate activities to facilitate economic development, and development for community purposes, in Queensland; and
• the provision for a streamlined planning and development framework for particular parts of the State to facilitate economic development, and development for community purposes, in those parts of the State.

These provisions may have a broader application than the provisions of the Urban Land Development Authority Act 2007.

Establishment of the MEDQ

The Bill provides for the establishment of the MEDQ as a corporation sole which represents the State, and which has all the powers of an individual, including the power to enter into contracts, deal in land and other

property, engage consultants and fix charges for the performance of a function under the Bill. In addition to dealing in land or other property, the functions of the MEDQ will include:

• coordinating the provision of, or providing, infrastructure and other services;
• planning for, and developing and managing land, in priority development areas;
• deciding development applications in priority development areas.

In performing these functions, the MEDQ is required to act on a commercial basis.

Priority development areas and development approvals

The Bill provides for the declaration by regulation of parts of Queensland as priority development areas. The regulation must also prescribe an interim land use plan for the declared priority development area.

Once a priority development area is declared, the MEDQ must make a development scheme for the priority development area. The development scheme includes a land use plan for the area, a plan for infrastructure for the area and an implementation strategy to facilitate development, or development for community purposes, in the priority development area. The MEDQ is the entity that administers, assesses and decides development applications within a priority development area.

One of the ways that the Bill provides a streamlined development assessment process for priority development areas is that, even though some development applications may require public notice, the Bill does not provide for potential third party appeal rights about development applications.

The Bill also provides the MEDQ with a range of powers to facilitate the provision of infrastructure in or for priority development areas, including the power to impose conditions relating to the provision or funding of infrastructure on development approvals, the power to enter into infrastructure agreements and the power to levy special rates and charges on land within urban development areas to fund infrastructure. Where to from here The Bill has been referred to the State Development Infrastructure and Industry Committee of the Queensland Parliament for consideration in detail. That committee is required to report to parliament about the Bill by 22 November 2012. This would allow the State Government to meet its stated intention of having the Bill passed by parliament before parliament rises for the year.

For further information, please contact:

Tony Denholder, Partner, Ashurst

[email protected]

Glenn Wilshier, Ashurst

[email protected]

Nerida Cooley, Ashurst

[email protected]