Impacts of the NSW Strategic Regional Land Use Policy on the pipeline industry

The changes culminated in the release of the final Strategic Regional Land Use Policy in September 2012.

Strategic Regional Land Use Policy

Key elements of the Strategic Regional Land Use Policy include:

  • Identifying strategic agricultural land under strategic regional land use plans (SRLUPs) for the Upper Hunter and New England North West regions, as part of the focus on upfront strategic planning;
  • Requiring agricultural impact statements to be prepared by petroleum exploration licence holders at the exploration stage and for all state significant development applications for coal seam gas (CSG) and mining under the Environmental Planning and Assessment Act
  • 1979 (NSW) (EP&A Act);
  • Establishing a Land and Water Commissioner to oversee regulation of exploration activity, to provide “˜independent advice to the community’;

  • The Aquifer Interference Policy, which outlines specific assessment requirements aimed at protecting groundwater, including the impacts of hydraulic fracturing; and,
  • A new “˜gateway process’ to scientifically assess impacts on agricultural land and water before CSG activities proposed on strategic agricultural land can proceed to the development assessment stage.

In February 2013, the NSW Government announced further reforms, which include:

  • An independent review of all CSG activities in NSW, including the potential impact on water catchments, to be conducted by the Chief Scientist and Engineer; and,
  • Creating an exclusion zone to prohibit new CSG exploration and production activities within 2 km of land identified for current and future residential growth centres or which is used for certain viticulture and equine industries.

The NSW Department of Planning and Infrastructure has indicated that an integrated and fully costed infrastructure plan for each of the SRLUPs for the Hunter and New England will be delivered in December 2013.

Review of the NSW planning system

The NSW Government is currently undertaking a comprehensive review of the NSW planning system, which will replace the current strategic planning and development assessment framework governed by the EP&A Act.

This review has much broader application than just the mining and CSG projects. However, in a common theme with the Strategic Regional Land Use Policy, a white paper released in April 2013 titled “˜A New Planning System for NSW’ places a greater emphasis on upfront strategic planning that the current planning system. In addition, the white paper specifically identifies the importance of the SRLUPs and provides an assurance that the content of those plans will be rolled into the new planning system. The NSW Government has indicated that the new planning system will be in place in the second quarter of 2014.

SRLUPs and strategic agricultural land

SRLUPs identify strategic agricultural land in the following two categories:

  • Biophysical strategic agricultural land, which has a rare combination of natural resources and is highly suitable for agriculture; and,
  • Critical industry clusters which are concentrations of highly productive industries, such as equine and viticulture industries in the Hunter Valley.

The gateway process

The Strategic Regional Land Use Policy proposes a new gateway process, which gives an independent scientific panel the power to assess land and water impacts of a proposed project prior to the lodgement of a development application under the EP&A Act.

The panel will provide advice to the NSW Department of Planning and Infrastructure on what information should be included in the environmental impact statement submitted with a subsequent project application under the EP&A Act, for the project. This advice is issued in the form of a gateway certificate, which can be granted subject to conditions which require particular environmental assessments to be carried out. If the scientific panel has serious concerns regarding a proposed project, stringent conditions can be imposed on the gateway certificate requiring additional, specific environmental assessment to be carried out.

The gateway process will apply to certain proposed CSG and mining projects proposed on strategic agricultural land. The components of a project that are outside of the boundaries of a new mining or petroleum production lease will not be subject to the gateway process. This exemption is intended to apply to the linear infrastructure components of the project, such as a gas pipeline that travels beyond the bounds of the lease.

In NSW, pipeline projects that require a licence under the Pipelines Act 1967 (NSW) are assessed by the NSW Department of Planning and Infrastructure as state significant infrastructure under the EP&A Act. These projects, which are subject to a separate project application for the CSG or mining project that the pipeline is intended to service, will not be subject to the gateway process.

The gateway process will apply to projects that are proposed on strategic agricultural land (identified in a SRLUP). However, a proponent of a project that is proposed on strategic agricultural land will have a choice whether to accept the designation of that land and proceed to pursuing a gateway certificate, or alternatively the proponent may challenge that designation by seeking a site verification certificate. If the site verification certificate declares that the relevant land is not strategic agricultural land, then the proponent can proceed to lodging a development application under the EP&A Act.

It should be noted that all CSG and mining projects within an area covered by a SRLUP, which are not proposed on land identified as strategic agricultural land, will need to obtain a site verification certificate though the NSW Department of Planning and Infrastructure prior to lodging a development application under the EP&A Act.

The gateway and site verification certificate processes present a challenge for proponents who now, at a very early stage of the scope of a project, must provide adequate information to allow an assessment of likely environmental impacts of that project.

Agricultural impact statement

An agricultural impact statement must detail the significance of the agricultural resources surrounding the relevant project area, and potential impact of that project on those resources.

Whilst the concept of an agricultural impact statement was introduced as part of the Strategic Regional Land Use Policy, it is understood from discussions with the NSW Department of Planning and Infrastructure that these statements are likely to be required as part of the environmental assessment for any state significant development or infrastructure that is likely to affect agricultural land.

It is anticipated that the NSW Department of Planning and Infrastructure will require any project that has potential to impact agricultural land to be accompanied by an agricultural impact statement.

About the authors
Felicity Rourke is a Partner, Susan Rose is a Senior Associate and Rosemary Bullmore is an Associate within the Environmental Planning Group of Norton Rose Fullbright.

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