Key areas of legislative reform in NSW include implementation of a planning system and a strategic regional land use policy.
This includes plans and policies that seek to address potential land use conflicts between mining and further industries in regional areas and includes SRLUPs for specific regional areas, an aquifer interference policy and requirements for agricultural impact statements during assessment.
The Upper Hunter and New England North West SRLUPs, which have recently been on public exhibition, identify biophysical (high value) strategic agricultural land and critical industry clusters, which are together identified as strategic agricultural land.
If a proposed state significant mining (or coal seam gas) project is within 2km of identified strategic agricultural land, the “gateway process” is triggered, creating an additional assessment layer process.
An independent panel of experts, known as the Gateway panel, will assess the impacts of a proposed project on strategic agricultural land and make a determination on whether the project should proceed to lodgement of a development application.
In addition to a proponent submission, the panel may consider views from relevant stakeholders in completing their assessment of a proposed project.
It will assess and determine a proposed project against specific criteria, including a public benefits test based upon a cost benefit analysis.
Identified criteria for the panel’s consideration include surface area disturbance, subsidence, impact upon access to agricultural resources and access to services/infrastructure/transport routes, scenic and landscape values, land surface relief, soil fertility and impacts on groundwater (including potential aquifer impacts modelling based on two years of data).
However, there is currently little direction on how the panel will prioritise between the competing aspects and criteria against which a project is to be assessed, with a cost benefit assessment methodology having been identified but yet to be released.
Beyond the additional process and regulatory burden, the potential for duplication of assessment and conflicting views of multiple determining bodies is increased by the SRLUP.
For example, the aquifer interference policy included in the SRLUP identifies strict water resource assessment criteria against which the Gateway panel is to assess a project, while taking advice on this issue from a Commonwealth independent expert panel.
Following the aquifer interference assessment at the Gateway process stage, additional assessment of aquifer interference will be required during the subsequent development application process.
It will result in duplication of assessment and has implications for scheduling technical studies required to negotiate the respective assessment pathways for approval.
With the aim of achieving balance between protection of agricultural land and the development of the state’s resources, the SRLUP as drafted has created some uncertainty among stakeholders as to how the policy will work in practice and the potential for overlapping regulatory frameworks at a state and federal level.
While the finalised SRLUP has not been publicly released, it is understood the NSW government is considering revising the policy so it does not apply to proposed projects within an existing mining lease.
However, this has only increased the uncertainty concerning future approval of mining projects in NSW.
What is clear is that having been on public exhibition for two months with more than 1600 submissions received and more than 1000 people attending public forums in NSW, the draft SRLUP has created a great deal of interest and, when finalised, will be carefully scrutinised by all stakeholders of mining projects in NSW.
Golder Associates provides consulting, design and construction services in earth, environment and energy. For more information, contact Todd Robinson on (02) 4953 9888 or via email at TRobinson@golder.com.au.
This article first appeared in ILN's sister publication MiningNews.net.
