The New South Wales (NSW) Government has released Draft Strategic Regional Land Use Plans (the Draft Land Use Plans) for the New England North West and the Upper Hunter in NSW (Affected Regions).
The Draft Land Use Plans:
• are the NSW Government's response to growing community concern in regional areas about the impact of coal mining and coal seam gas on agricultural land and water resources;
• identify land in the Affected Regions of particular value, creating the following two categories of designated "Strategic Agricultural Land" land:
– Biophysical strategic agricultural land, which is land that has high soil fertility and a high level of access to water covering an area of more than 20 hectares in size; and
– Critical industry clusters, which are concentrations of related highly productive industries within a region which contribute to the identity of the region and provide significant employment;
• change the development application process in the Affected Regions by introducing a "gateway" procedure. This "gateway" procedure is a preliminary assessment process that certain mining and coal seam gas production projects must undertake prior to being permitted to lodge a development application;
• have been developed alongside a Draft NSW Aquifer Interference Policy, some parts of which are particularly relevant to mining and coal seam gas production projects (as discussed at section 4 below);
• sit alongside policy changes in respect of areas outside the Affected Regions. Although not being subjected to the gateway procedure, projects located in other areas that affect high value agricultural land will require their proponents to submit an agricultural impact statement (as discussed at section 3 below); and
• are being publicly exhibited until Thursday, 3 May 2012 at local Councils and online here.
2. How does the "Gateway" procedure work?
A development application for mining and/or coal seam gas development on or within two kilometres of "strategic agricultural land" will not be able to be lodged or considered unless the proponents have been issued with a gateway certificate.
An independent Mining and Coal Seam Gas Gateway Panel will be established to consider gateway certificate applications. The panel will be made up of experts selected from the fields of agricultural and soil science, water, economics and mining. The question for determination by the panel will be whether the proposed project should proceed on designated land. The proposal must satisfy a public benefit test based on a triple bottom line cost/benefit analysis. The panel would also consider:
• any submissions received from relevant agencies (including government agencies), councils and the community; and
• any advice received from the Commonwealth Independent Expert Scientific Community.
The panel will make a determination about whether to issue a gateway certificate based on specific criteria. Where the proposal is on land considered to be "biophysical strategic agricultural land", the central consideration will be whether the proposal would significantly reduce the agricultural productivity of the land. The following factors would be material to such a consideration:
• surface area disturbance and subsidence;
• impacts on soil fertility, rooting depth or soil profile materials and thickness;
• increases in land surface micro-relief or soil salinity, or significant changes to soil acidity; and
• impacts on highly productive groundwater.
When the proposal is on land identified as belonging to a "critical industry cluster", the panel's considerations would include whether the proposal would lead to significant impacts on the critical industry cluster through:
• surface area disturbance;
• reduced access to agricultural resources;
• reduced access to support services and infrastructure;
• reduced access to transport routes; or
• loss of scenic or landscape values.
A decision made by the Gateway Panel is proposed to be final and binding on the NSW Government. At present, the Draft Land Use Plans provide no details about the possibility of a merits review of the panel's decision, although we expect such decisions will be subject to the usual administrative law challenges.
3. How does the Draft NSW Aquifer Interference Policy affect Coal Mining and Coal Seam Gas Project Approvals?
Under the Draft NSW Aquifer Interference Policy (Draft Aquifer Policy), the consideration of aquifer impacts will be brought forward to the gateway stage. This means that any aquifer interference potentially caused by a coal mining and/or coal seam gas project will be the subject of early and comprehensive assessment.
If an application passes the gateway process, it will be exempted from the requirement to obtain a subsequent aquifer interference approval under the Water Management Act.
The Draft Aquifer Policy proposes amending the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 so that the Minister for Primary Industries will be required to provide advice on aquifer impacts during the assessment of a State significant mining or coal seam gas project proposal within highly productive groundwater beneath Biophysical Strategic Agricultural Land.
4. What is an Agricultural Impact Statement?
Until the strategic regional land use plans are finalised, all new state significant development applications for mining and coal seam gas projects which have the potential to affect agricultural resources or industries will be required to submit an agricultural impact statement as part of the development application. An interim NSW Government guideline has been prepared to assist proponents in developing their impact statements.
Proponents must detail in the Agricultural Impact Statement the projected impacts on:
• agricultural productivity;
• agricultural support services;
• critical mass thresholds for agricultural enterprises;
• water movement away from agriculture;
• visual amenity;
• landscape values; and
5. What are the next steps in the development of the Draft Land Use Plans?
The NSW Government will continue to publish further Strategic Regional Land Use Plans in regional areas where there is high value agricultural land and increasing activity in the coal and coal seam gas industries. Regional plans will eventually be developed for the following areas:
• Central West;
• Southern Highlands;
• Alpine; and
The next two regions to be mapped will be the Southern Highlands and Central West, which are set to be finalised in 2012.
The projected dates for the mapping of the remaining regions is 2015.
6. How do I make a submission on these draft policies?
Submissions can be:
• mailed to:
Director, Strategic Regional Policy – NSW Department of Planning and Infrastructure,
GPO Box 39,
Sydney NSW 2001;
• emailed to: email@example.com; or
• lodged here.