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Focus: Environment & Planning – March 2007NSW State Environmental Planning Policy 2007In brief: The State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007, which was gazetted on 16 February 2007, should bring some welcome consistency to certain aspects of planning law to these industries across NSW. It may be of more limited assistance for coal and mineral sands miners. Senior Associate Felicity Rourke looks at the new policy.
IntroductionThe State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (the SEPP) applies to the whole of New South Wales, and consolidates and updates many existing planning provisions related to mining, petroleum production and extractive industries. It also introduces a number of new considerations which must be taken into account in the decision making process under the Environmental Planning and Assessment Act 1979 (NSW) (the EP&A Act).
Consistency in identifying permissible developmentThe SEPP articulates the categories of mining, petroleum production and extractive industries activities which are permissible with and without development consent. These provisions, together with a clause which overrides the effect of certain provisions of local environmental plans, will ensure consistency across all local government areas as to when development consent is and is not required. The SEPP also includes a mechanism allowing the Minister for Planning to prohibit outright certain mining, petroleum production and extractive industries, by listing such developments in a schedule.
Exempt and complying developmentThe EP&A Act creates a distinction between 'exempt development' (which does not require any form of approval under the EP&A Act) and 'complying development' (which requires a complying development certificate) but until now these have mainly applied to residential development. The SEPP now introduces categories of exempt development and complying development relevant to the mining, petroleum and extractive industries.
New matters for considerationThe SEPP introduces new matters to be considered in deciding whether consent should be granted for development for the purposes of mining, petroleum production or extractive industries. The provisions of the SEPP requiring specified matters to be taken into account have been drafted using the language of Part 4 of the EP&A Act, namely 'development' and 'development consent'. However, these mandatory matters for consideration do not expressly apply to, nor do they invoke the language of, Part 3A of the EP&A Act, which deals with major infrastructure and other projects. Examples of major projects to which Part 3A of the EP&A Act applies include:
Section 75R of the EP&A Act provides that State Environmental Planning Policies relevantly apply to 'the carrying out of a project.' However, Part 3A contains no equivalent obligation to consider relevant matters contained in any environmental planning instrument in the determination of a project application (that is, prior to the project being approved or carried out). The scope of the matters to be considered in an environmental assessment under Part 3A remains largely a matter for the discretion of the Director-General. The result is that the SEPP identifies a number of important new matters for consideration during the assessment of development applications, which have limited or no legal effect in the assessment of applications for project approval under Part 3A. At a practical level, however, it is expected that the Department of Planning will require these matters to be addressed by including them in environmental assessment requirements issued for Part 3A projects. Some of the new matters for consideration include the following. Land use compatibilityThe SEPP now requires the consent authority to consider the likely impact of new mines, petroleum or quarry proposals on current and future surrounding land uses, and to have regard to 'land use trends' so as to identify the likely preferred uses of land in the vicinity of the development. As part of this assessment, the consent authority must 'evaluate and compare the respective public benefits' of the development with other land uses in its vicinity. Significantly, the SEPP also includes a mirror provision which applies to new developments of any kind which are proposed in the vicinity of an existing mine, petroleum production facility or extractive industry. This new provision establishes a clear basis for incompatible development proposals to be refused if they are likely to jeopardise current or future extraction of resources at nearby mines, petroleum production facilities or extractive industries. Natural resource and environmental managementThe SEPP now requires the consent authority to consider whether conditions should be imposed that are aimed at ensuring that the development is undertaken in an 'environmentally responsible manner'. This will include consideration of conditions to ensure that:
In addition, the SEPP now requires the consent authority to consider an assessment of the greenhouse gas emissions (including downstream emissions) of the development. In making this assessment, the consent authority must have regard to any applicable state or national policies, programs or guidelines concerning greenhouse emissions. Guidelines for greenhouse gas emissions issued by the NSW Department of Planning are presently in draft form, but are expected to be expanded and finalised to clarify the nature of the assessment required. These provisions are an unsurprising legislative response to recent events, most notably the Anvil Hill decision where the NSW Land and Environment Court held that an environmental assessment prepared under Part 3A for a proposed new coal mine was deficient because it failed to assess downstream emissions (ie greenhouse gases created by the combustion of coal): Gray v The Minister for Planning and Ors [2006] NSWLEC 720. Resource recoveryThe SEPP now requires the consent authority to 'consider the efficiency or otherwise of the development in terms of resource recovery'. On one hand, this may be seen as an encroachment by the NSW Department of Planning into an area traditionally regulated by the Department of Primary Industries. This requirement to consider the 'efficiency' of a development at the planning approval stage may also require more detailed assessment up front (rather than during the mine planning process) of the extent to which proposed mining will optimise recovery of the resource. RehabilitationFinally, the SEPP now requires a consent authority to consider whether conditions regulating land rehabilitation should be imposed. This again provides the potential for significant duplication between the regime established under planning approvals, and the monitoring and reporting regimes separately imposed under relevant mining legislation. Close coordination will be required between the various government agencies to avoid duplication of compliance and reporting obligations, and to avoid the cost implications for industry.
ConclusionIt is hoped that the SEPP will bring a consistency in the application of certain aspects of planning law to these industries across NSW, but it may be of more limited assistance for proponents of coal and mineral sands mining projects, and other mining and petroleum development carried out on a significant scale. While the SEPP contains welcome provisions concerning permissibility of development, its role in relation to the matters for consideration in the assessment of major projects under Part 3A is legally unclear. In practice, however, the Department of Planning is expected to require the new matters for consideration to be addressed in relation to Part 3A project applications. Further, the new obligation to impose conditions concerning some aspects of environmental management and rehabilitation may lead to duplication of obligations already imposed by mining regulators, which may increase compliance costs for the industry. We will continue to monitor the application of the new policy.
For further information, please contact:
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