New land acquisition and mitigation policy for NSW mining, petroleum and extractive industries

The NSW Government has released a new State Environmental Planning Policy Amendment (Gas Exploration and Mining) 2014 (SEPP Amendment) which came into force on 19 December 2014. 

The SEPP Amendment introduces a new land acquisition and mitigation policy to formalise landholder protection from noise and dust for State Significant Developments (SSD) in the mining, petroleum and extractive industries. 

This means that decision-making bodies are now obliged to take into account the new 'Voluntary Land Acquisition and Mitigation Policy' in determining development applications.  This policy provides guidance on measures to reduce the impact of noise and dust on adjoining properties from proposed new activities.  It applies to all undetermined SSD applications and any future applications to modify existing operations. 

The policy provides that the acquisition price to be paid by a proponent be an amount no less favourable that a 'market value' rate calculated as if the land was unaffected by the development and with reference to section 55 of the Land Acquisition (Just Terms Compensation) Act 1991 (Land Acquisition Act).  This requirement is controversial as the Land Acquisition Act is a statutory scheme introduced for use by NSW government authorities during compulsory acquisition of private land for a public purpose. 

The policy also has the potential to significantly impact proponents of SSD in the mining, petroleum and extractive industries, as it introduces voluntary land acquisition criteria for particulate matter applicable to the majority of workplaces on privately owned land (in addition to residences). Importantly, the consent authority maintains discretion as to whether or not to apply the particulate matter acquisition criteria to workplaces, with a range of factors for the consent authority to consider including the nature of the workplace.

Under the policy, a 'workplace' is defined to include 'a lawfully operating office, industrial premises or intensive agricultural enterprise where employees are grouped together in a defined location, but does not include broad-acre agricultural land, heavy, hazardous or offensive industry or businesses intentionally located close to mining operations.'

Outcome

The requirement that the Land Acquisition Act criteria be applied to acquisition of some types of workplaces affected by dust has the potential to make smaller SSD applications and modifications unviable, as the cost of relocating and compensating a business owner could be substantial. 

Samantha Daly, Patrick Holland, Kate Swain