The History of Major Development Regulation inQueensland

Barry Dunphy, Partner

27 June 2013

© Clayton Utz

Introduction

• High level overview of the history of the State Development and Public Works Organisation legislation over the years

• Summary of the key features of the State Development and Public Works Organisation Act 1971 (SDPWO Act) after the passing of the Economic Development Act 2012

History

• The initial predecessor of the SDPWO Act was the State Development and Public Works Organisation Act 1938

• This legislation was established to encourage the undertaking of public works and to generate employment in a post depression economic period. The Office of the Coordinator-General was established to provide projects on a whole of Government basis.

History• In 1971 with the passing of the State and Regional.

Planning and Development, Public Works Organization and Environmental Control Act 1971 (1971 Act) a transformation occurred

• The new role of the Coordinator-General was to advise the Government on ways and means of implementing planning schemes, conduct research and provide guidance to local authorities, bodies and to the private sector

History

• As other Departments and agencies took responsibility for their own construction projects it was no longer necessary for the Coordinator-General to maintain its construction focussed role

• The Coordinator-General was to determine the priority of works and the preparation and acceptance of strategic plans for recommendation to the Government

History

• The 1971 changes were controversial in many respects. In fact during the debates in Parliament it was said that the Coordinator-General would become the "most influential and powerful man in the State"

• It was also suggested that the Act was potentially unconstitutional on the basis that it was contrary to the separation of Federal, State and Local Governmental powers instilled by the Constitution and was against the democratic rights of the voters

History

• However the 1971 Act was on any view innovative. The concept of the establishment of State Development Areas and the allowing of the compulsory acquisition of privately owned land for this purpose was described as being "bold and imaginative"

• The 1971 Act became one of the most influential Queensland Acts because of its role over the next 40 years in facilitating major projects in Queensland

History• In my view the real game changer were the

amendments made to the SDPWO Act in 1999 to allow the State to declare projects as a "significant project", to declare a project as an "infrastructure facility of significance" (IFS) and to allow for the Coordinator-General to authorise land access for private project proponents

• The significant project declaration meant that for the most complex projects the Coordinator-General would control one environmental approval process

History• The IFS provisions were also a landmark change.

They allowed for the first time private project proponents to benefit from the land acquisition powers of the State if the project was of significance either economically or socially to Australia, Queensland or the region in which the proposed facility was to be created

• The operation of the IFS process was tested and successfully defended in QCoal Pty Ltd v. Minister for Infrastructure and Planning (2011) QSC 334

History• At the moment there is still one judicial review case

pending which seeks to challenge a decision by the Coordinator-General to refuse to approve a project as a "significant project"

• The next major change occurred in 2006 with the Drought Crisis Reforms. To deal with what was an absolute and real crisis, the SDPWO Act was amended to allow projects to be declared a "Prescribed Project" or a "Critical Infrastructure Project"

History• The effect of these provisions was to allow the

Coordinator-General to fast track approvals for Prescribed Projects which could allow the Coordinator-General to "Step In" and decide approval applications that were holding up a project

• The amendments also allowed critical infrastructure to be constructed on exiting public easements

• In approximately two years the largest interconnected water grid in Australia was delivered at a total cost of 6.9 billion dollars.

The Current Structure of the SDPWO Act• A series of new project laws were introduced by the

Economic Development Act 2012 which included further amendments to the SDPWO Act

Economic Development Act 2012

• SDPWO Act Amendments• New concept of Coordinated projects• IFS are now known as Private infrastructure facilities

• Economic Development Act 2012• Establishes the Minister for Economic Development as a

corporation sole • Creates Priority Development Areas • Established the Commonwealth Games Infrastructure

Authority

"Coordinated projects"

• "Significant projects" are now called "Coordinated Projects"

• Criteria for declaration - see s.27 of the SDPWO Act• Coordinator-General must have regard to:

• detailed information about a project in an initial advice statement • relevant State policies and Government priorities; • a pre-feasibility assessment of the project; and • the capacity of the proponent to undertake and complete the EIS for

the project

Application for a Coordinated Project

• Coordinator-General need not consider the application unless they are satisfied that project has at least one or more of: • Complex approval requirements; • Strategic significance to a locality, region or the State,

including for the infrastructure, economic and social benefits, capital investment or employment opportunities it may provide;

• Significant environmental effects; • Significant infrastructure requirements

Application for a Coordinated Project

• Application must address the criteria for declaring a project

• Proponent must also provide: • Statement detailing proponent's financial and technical

capability to complete an EIS and provide any supplementary information about the EIS and the project

• Statement assessing the technical and commercial feasibility of the project

Other changes for Coordinated Projects

• Coordinator-General may cancel a declaration for a coordinated project before Coordinator-General's report is complete

• Public notification of terms of reference for EIS will be discretionary

• Time period changes - • Default time to prepare EIS - 18 months • Coordinator-General evaluation report - 3 years

Private infrastructure facilities

• "Infrastructure facilities of significance" (IFS) have now become "private infrastructure facilities" (PIF)

• Relevant provisions are now consolidated into a separate subdivision of the SDPWO Act

Application for PIF • Proponent can only apply for approval of a project as

a PIF if:• The project is:

• a coordinated project for which EIS is required and the Coordinator-General's evaluation report has not lapsed; or

• (if not a coordinated project) - Coordinator-General is satisfied adequate environmental assessment has been completed for project; and

• Area of land identified as required for a PIF is consistent with the land assessed in the EIS (or similar environmental document)

Criteria for PIF • Application for a PIF must address certain criteria including

(s.153AC): • Project has economic or social significance and economic or social

benefits to Australia, the State or the region in which the project is to be undertaken;

• Project is not inconsistent with State policies;• The proponent has negotiated, in accordance with the guidelines,

for at least 6 months with each registered owner of the land and has taken reasonable steps to purchase the land by agreement;

• If native title exists in relation to the land, the proponent has taken reasonable steps to enter into an ILUA for the land

Application for PIF

• A PIF application must address any requirements relevant to making the application stated in the guidelines made by the Coordinator-General (s.153AA(2)(a), s.174 and Schedule 1B, s.2)

• The guidelines are statutory instruments under the Statutory Instruments Act 1992

New Guideline

• "Private infrastructure facility - statutory guideline"• Issued on 21 December 2012• Repeals:

• "Guidelines for access to land for infrastructure projects by persons other than the state (September 1999)" and

• "Guidelines for dealing in the way mentioned in section 79A with the taken land (September 1999)"

Guideline

• Step 1 - notice and negotiations• Step 2 - making an application for approval as PIF• Step 3 - consultation • Step 4 - deciding the application • Step 5 - final negotiations with owner of land • Step 6 - acquisition of land

Guideline • Native title

• If native title rights and interests are to be compulsorily acquired - section 24MD(6A) of Native Title Act 1993 - same procedural rights as registered owner of land

• Guideline requires that proponent attempt to obtain consent to surrender of the native title rights and interests in an indigenous land use agreement

• Application for investigator's authority - section 143 of SDPWO Act and Clause 4 of Guideline

Guideline

• Clause 5 - notice and negotiations • Negotiation period of at least 6 months with each

registered owner

• Clause 7 - requirements for PIF application • details of infrastructure facility, plans, location etc.

• Clause 8 sets out requirements for both purchase of land and final offer of compensation in relation to surrender of native title rights and interests

PIFs - other provisions

• Coordinator-General may require proponent to enter into a cost and compensation agreement before Coordinator-General will acquire any land

• Specific power now for Coordinator-General to amend or revoke approval of PIF

• Coordinator-General not required to take land that is• in a State development area; or • Owned by the State or a local body

Queensland LNG Project Design

Gladstone LNG Developments

Gladstone LNG Developments