Allens

Environment & Planning

Focus: More red tape for NSW farmers and miners

21 September 2012

In brief: The long-awaited New South Wales Strategic Regional Land Use Policy, which aims to protect Strategic Agricultural Land, has been released, with some significant differences from the original draft. Partner David Maloney (view CV) and Law Graduate Tom Griffin report.

How does it affect you?

  • While much of the content of the NSW Government's Strategic Regional Land Use Policy (the policy) remains unchanged since the draft policy was released in March 2012, there are some important changes.
  • Major mining and coal seam gas production (or exploration activities involving five or more wellheads) located on Strategic Agricultural Land will be subject to the 'Gateway' process before progressing to the development application stage. The two-kilometre 'buffer' proposed in the draft policy has been removed.
  • The industry-wide Code of Practice for Coal Seam Gas exploration proposed in the draft policy has been amended so that coal seam gas operations will now be subject to compliance with two new operational Codes of Practice as title conditions in NSW.
  • The position of Commissioner of Land and Water has been created to oversee licence-holder compliance with community consultation guidelines and standard land access agreements.
  • All proposals that involve 'aquifer interference activities' will be subject to the Aquifer Interference Policy.
  • The scope of activities requiring an Agricultural Impact Statement has been widened, to include all State Significant Developments and coal seam gas proposals with a potential impact on agricultural land.

The new range of policies

On 11 September 2012, the NSW Government released its final version of the policy, a key election promise.

The policy outlines 27 measures for the regulation of the use of agriculturally sensitive land in NSW. It is intended to balance protection for farmers and security of investment for miners, particularly of coal seam gas.

The core initiatives to be implemented under the policy include:

  • the identification of land to be classified as Strategic Agricultural Land;
  • the implementation of a 'Gateway' process for projects on Strategic Agricultural Land;
  • the establishment of the position of Commissioner of Land and Water;
  • the state-wide application of an Aquifer Interference Policy;
  • the requirement for all proposals to submit an Agricultural Impact Statement at the exploration and development application stages;
  • the introduction of two operational Codes of Practice for the coal seam gas industry; and
  • the introduction of standard land access agreements between miners and landholders.

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Strategic Agricultural Land

The two types of Strategic Agricultural Land are: biophysical Strategic Agricultural Land (with high soil fertility and level of access to water) and critical industry clusters (concentrations of highly productive industries, eg vineyards and horse studs, within a region). Generally, the restrictions will apply equally to both.

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Strategic land mapping

Since the draft policy was released, the area of Strategic Agricultural Land that has been mapped has increased by 670,000 hectares to more than two million hectares. Under the policy, landowners whose land falls outside the mapped regions will be able to apply to have their land assessed as Strategic Agricultural Land under the criteria applied in the mapped regions. In addition, the Government intends to map the Central West, Southern Highlands and North Coast regions.

Since the March draft, the criteria for classification as Strategic Agricultural Land have been widened in both the biophysical and critical industry categories. Biophysical land has been extended to include land with moderate soil fertility that meets the standards for Land and Soil Capability Classes I and II. This is intended to capture land, such as the cotton-growing regions around Gunnedah, Moree and Narrabri, that has high agricultural value despite lower soil fertility. The Critical Industry Cluster category has also been widened to include land up to 18 degrees in slope.

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The Gateway process

The 'Gateway' process set out in the draft policy has been amended to focus solely on the scientific impacts of proposals to be located on Strategic Agricultural Land. Consideration of socio-economic factors will be left until the development application stage. Moreover, the two-kilometre buffer has been removed, and replaced with a requirement for all State Significant Developments and coal seam gas projects in NSW to verify whether or not the land on which the proposed project is to take place meets the criteria for biophysical Strategic Agricultural Land.

The status of the 'Gateway' certificate as final and binding has been removed. Instead, no proposal may proceed to the development application stage unless it receives a 'Gateway' certificate, which may be granted either unconditionally or with conditions that must be taken into account by the Planning Assessment Commission.

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Aquifer Interference Policy

The Aquifer Interference Policy will apply state-wide, with any proposal predicted to have an impact on aquifers in excess of the Level 1 minimal impact considerations, subject to additional requirements, to be assessed as part of the development application process.

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Agricultural Impact Statements

The policy has broadened the requirement for all State Significant Developments and coal seam gas proposals with the potential to impact agricultural industries or resources to submit an Agricultural Impact Statement. Under the policy, in addition to the above requirement, all such proposals in NSW will be required to verify whether or not the land identified in the proposal meets the criteria for biophysical Strategic Agricultural Land

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Community consultation

The draft Code of Practice for Coal Seam Gas Exploration has been replaced by two Codes of Practice addressing operational issues related to coal seam gas exploration, including hydraulic fracturing and well drilling standards. All coal seam gas exploration and production titles will be subject to the new Codes of Practice as conditions of title.

The community consultation element of the draft Code of Practice for Coal Seam Gas exploration has been replaced by the introduction of community consultation guidelines, standard land access agreements and the establishment of the office of Commissioner of Land and Water.

The Commissioner's role will be to ensure compliance by coal seam gas explorers and producers with the community consultation guidelines, and to facilitate the finalisation and implementation of standard land access agreements once their content has been settled.

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Petroleum exploration licence offers of renewal

The Government has released a list of 22 exploration licence renewal offers that it is currently assessing. It has explicitly stated that all new and renewed licences will be subject to the new requirements, including those requirements that will be included as title conditions.

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Next steps

Landholders, title holders and exploration licence holders will need to be aware of the status of the land that applies to them. Expect further developments as the Standard Land Access Agreements, between farmers and miners, are published and the NSW Government commences its review of outstanding applications.

For further information, please contact:

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