By Sarah Persijn, Partner and Olivia Williamson, Associate
The Queensland Government introduced the Environment Protection (Greentape Reduction) and Other Legislation Amendment Bill 2012 (Qld) on 29 May 2012.
The Bill largely replicates the former Bligh Government's 2011 Bill of the same name, which was tabled in State Parliament on 26 October 2011. That Bill lapsed when the State election was called.
The 2012 Bill is part of the broader Greentape Reduction Project aimed at reforming the approvals framework under the Environmental Protection Act 1994 (Qld).
The Bill seeks to simplify the regulatory framework by integrating the approval process for all environmentally relevant activities (ERAs). It does this by replacing chapters 4, 5, 5A and 6 of the Environmental Protection Act with new chapters 5 and 5A.
Here, partner Sarah Persijn, associate Olivia Williamson and solicitor Courtney Smith summarise the new regime proposed by the Bill.
The Bill amends the definition of an ERA to consist of three types:
- An agricultural ERA
- A resource activity
- A prescribed ERA
A resource activity is broadly defined to include geothermal, GHG storage, mining and petroleum activities, and therefore includes almost all resources projects in Queensland, from exploration through to production.
A prescribed ERA is an activity prescribed by regulation by the Governor in Council.
The Bill also provides for prescribed ERA projects and resource projects, where activities are performed as a 'single integrated operation'.
The Bill introduces a new single approval process for an environmental authority, which is divided into four stages:
- Application stage
- Information stage
- Notification stage
- Decision stage
This four stage approval process is structured similarly to the Integrated Development Assessment System (IDAS) process under the Sustainable Planning Act 2009. The four stages, however, will not apply to all applications.
The Bill provides for the following three types of application, based on the risk that the ERAs pose to the environment:
- Standard applications: For eligible ERAs (that is, ERAs that comply with prescribed eligibility criteria and are not part of a project of significance under the State Development and Public Works Organisation Act 1971 (Qld)) that comply with standard conditions (currently referred to as Level 2 Code Compliant activities).
- Variation applications: For eligible ERAs that do not comply with all of the standard conditions (currently referred to as Level 2 Non-code Compliant activities).
- Site-specific applications: All applications that are not a standard or variation application (currently referred to as Level 1 activities).
The information stage allows the administering authority to seek further information related to an application.
This stage applies only to variation and site-specific applications where an environmental impact statement process has not been completed under Part 3 of the Environmental Protection Act, or where an environmental impact statement process has been completed but the environmental risks of the ERA and the way the ERA is to be carried out have changed since the statement was completed.
The notification stage requires the application to be publicly notified, giving the community the opportunity to be consulted and make submissions on the application.
The notification stage applies only to that part of an application which relates to a mining activity under a mining lease, or if the application is a site-specific application, for a geothermal, GHG or petroleum activity. There are exemptions from this stage in certain circumstances where an environmental impact statement has been completed. However, a properly made submission about the environmental impact statement will be taken to be a properly made submission about the application.
Generally, a decision on an application must be made within 20 business days after the day that the decision stage commences. The decision stage begins at the conclusion of all of the other stages, except in circumstances where the environmental authority application relates to a development application or is a site-specific application relating to a significant project. The period within which a decision must be made may be extended unilaterally by the administering authority for one period of no longer than 20 business days. Any extension thereafter may only be done with the agreement of the proponent.
The Bill provides for the automatic approval of standard applications on the standard conditions in circumstances where an administering authority does not decide a standard application within the period required. Further, the Bill provides for the automatic issue of an environmental authority subject to standard conditions if the administering authority does not decide a variation application within the period is required. By contrast, the automatic decision if the administering authority does not decide a site-specific application within the period required is one refusing the application.
Other significant changes
The Bill introduces a number of other fundamental changes to the existing regime, including:
- linking the environmental authority application process to the environmental impact statement process in Part 3 of the Environmental Protection Act, so that where an environmental impact statement has been completed for resource activities, certain parts of the approval process set out above will not apply;
- imposing timeframes for each stage of the process and removing section 555 of the Environmental Protection Act, which presently allows the unilateral extension of timeframes by the administering authority;
- imposing mandatory conditions on certain environmental authorities, including a condition prohibiting the use of restricted stimulation fluids in environmental authorities for resource activities (excluding mining activities);
- removing the requirement for an Environmental Management Plan;
- outlining a clear process to amend an environmental authority, with a distinction being drawn between 'minor' and 'major' amendments;
- introducing a process to amalgamate environmental authorities into a single project authority;
- automatically transferring an environmental authority with a related tenure under the applicable resources legislation;
- removing the need for a plan of operations for standard mining operations (that is, Level 2 mining operations);
- amending the offence provisions; and
- including a detailed and clear process for making eligibility criteria and standard conditions, which includes an opportunity for the community and other stakeholders to voice their concerns.
Existing environmental authorities under chapter 5 or 5A of the Environmental Protection Act will, if the Bill is passed, become an environmental authority for resource activities under the new chapter 5.
If the Bill is passed, any applications for an environmental authority under the existing chapter 5 or 5A of the Environmental Protection Act which are lodged before the commencement of the Act will be processed under the current regime. Any applications lodged after the commencement of the Act will be processed under the new regime contained in the proposed chapter 5.
Any entity currently holding an environmental authority for a mining activity or chapter 5A activity will automatically be registered as a suitable operator on commencement of the Act.
The Bill was examined by the Agriculture, Resources and Environment Committee, who reported on the Bill in early June 2012. The timeframes for implementation, if the Bill is passed, have not yet been announced.
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