Risk based approach to compliance and enforcement - NSW Division of Resources and Energy

The NSW Division of Resources & Energy (DRE) has published its new Compliance and Enforcement Policy which introduces a risk-based approach.  

The DRE will determine its enforcement approach by identifying the likelihood of a particular event occurring and the consequence to the community, industry and DRE should that event occur. 

The DRE’s Compliance & Enforcement branch (established on 31 July 2014) oversees and investigates non-compliances with obligations created by the grant of a right to explore, extract or produce petroleum or minerals in NSW, as well as unlawful mining or petroleum extraction activities.  Its functions include:

• monitoring overall industry compliance
• developing compliance initiatives and programs, and
• determining the level of enforcement to be applied in cases of non-compliance.

The risk-based approach to compliance and enforcement means that businesses who have not complied with relevant polices, regulations, approval or licence conditions are deemed ‘high risk’, while business that do comply are determined to be ‘low-risk’.

The DRE’s stated regulatory objectives are:

• to maximise a titleholder's compliance with legislation and policies governing coal, mineral, petroleum and coal seam gas activities
• to provide for a healthy and safe work environment for mineworkers resulting in zero deaths and a reduction in serious injuries occurring in the workplace
• to promote a culture of environmental protection and best practice environmental management in the exploration, mining and petroleum industries
• to educate and provide guidance to industry and the community
• to demonstrate consistency in the compliance and enforcement actions taken by DRE
• to promote transparency in DRE's decision making processes
• to conduct thorough and timely investigations of potential non-compliances or alleged breaches of legislation, policies or approvals
• to exercise enforcement action in a professional, transparent and effective manner
• to encourage self regulation and timely reporting of non-conformances to Government, and
• to protect the interests of the State and the people of NSW.

The DRE has identified that it will focus its regulatory actions on ‘those who consciously choose not to comply with the law’, and will be undertaken in order to raise industry awareness and to encourage a change in attitude or behaviour.  The 2015-2016 compliance priorities will be:

• titleholders, prospectors or mine operators whose activities potentially have significant safety implications
• titleholders, prospectors or mine operators whose activities actually or potentially have a significant impact upon the environment, community or government revenue
• titleholders, prospectors or mine operators whose activities whose activities attract significant public interest
• titleholders, prospectors or mine operators whose activities who have a history of non-compliance with title conditions, and
• titleholders, prospectors or mine operators who are not undertaking effective exploration.

The DRE’s auditing program will include compliance inspections and assessments, desktop audits, targeted audits and comprehensive audits, which will review information about business operations through onsite investigation and intelligence gathering.

 

Enforcement actions can include financial penalties, permit penalties (imposition of restrictive conditions) and suspension or cancellation of licences, permits and authorities. 

 

Explorers and miners in NSW should be aware of the new Compliance and Enforcement Policy being implemented by DRE and should ensure that they comply with the conditions of any mining or petroleum tenement. Additionally, if your activities attract significant public interest you may get extra attention from DRE notwithstanding a strong environmental record. We can assist you with understanding your obligations under your tenement conditions.

 

Samantha Daly, Patrick Holland, Kate Swain, Felicity Douglas 

Draft NSW Biodiversity Offsets Policy for Major Projects

There is currently no standard method for the assessment of impacts of major projects on biodiversity. The draft NSW Biodiversity Offsets Policy for Major Projects (Offsets Policy) is seeking to introduce a standardised approach that provides guidance in assessing and offsetting the biodiversity impacts of major projects.

At this point in time, biodiversity impact assessments are undertaken on a case-by-case basis which can result in significantly different offset requirements for different projects.  The Offset Policy aims to minimise these discrepancies and provide an assessment procedure that is practical and reasonable.

The Offsets Policy will apply to major projects in NSW (projects that are declared State Significant Development or State Significant Infrastructure by the Minister for Planning and Infrastructure).

The policy principles

The policy is underpinned by seven key principles:

Principle 1 – Impacts must first be avoided and unavoidable impacts minimised through mitigation measures.

Proponents must avoid and minimise impacts before considering offsets.  A proponent will need to justify why impacts can’t be avoided or minimised.

If an impact can’t be avoided, a reasonable effort must be made to minimise the impact, and offsets used to compensate for the remaining impacts.

Any impacts that are more complicated and severe (e.g. extinction of a species) will require additional consideration by a consent authority before an offset can be used.

Principle 2 – Offset requirements should be based on reliable and transparent assessment of losses and gains

The Framework for Biodiversity Assessment will need to be applied on behalf of proponents in a transparent and repeatable method for assessment by ecological consultants who are accredited specialists under the existing NSW BioBanking Scheme.

Principle 3 – Offsets must be targeted to the biodiversity values being lost or to higher conservation priorities

Offsets will need to have a ‘relationship’ to the biodiversity values being lost:

• Vegetation - the policy no longer requires like-for like’ offsets.  The offsets can now include similar vegetation in the same locality if those vegetation types are more highly cleared than the vegetation that will be impacted by the development in question
• Threatened species - if a species is not critically endangered or listed under the Environment Protection and Biodiversity Conservation Act 1999, with approval, a species may be offset with a similar species in the locality that is under the same or greater level of threat, and
• Aquatic biodiversity - offsets can include similar aquatic habitat in the catchment that is more threatened than the aquatic habitat being impacted upon.

The Offset Policy will broaden the scope of entities that can fulfil offset requirements, and recognises that protecting and improving biodiversity of a similar value, but under a greater level of threat can also provide benefits to the state.

 

Principle 4 – Offsets must be additional to other legal requirements

Offset land can already be managed under legal requirement. The Offset Policy requires offsets to be in addition to other existing native vegetation management.

Public land can be used for offsets even if it has existing legal requirements for environmental management, however a 5% - 7.5% overall discount to the number of biodiversity credits will apply to that land.

Land that is used to create carbon credits which are not 'legal requirements' (i.e. voluntary carbon offsets) can also generate biodiversity credits under the scheme. This means that one offset site can potentially generate both biodiversity credits and carbon offsets.

Principle 5 – Offsets must be enduring, enforceable and auditable

As the impact on biodiversity is usually permanent, the mechanism used to manage an offset site must also be enduring.  As such management actions are required to be enforceable and auditable and comply with the following criteria:

• objective of ongoing management
• sufficient resources available
• plan of management in place
• mechanism can't be altered without an alternative arrangement, and
• the conservation of the offset must be in perpetuity and disclosed to future owners.

Currently, Biobanking agreements are the only mechanism in NSW that satisfy all of the above criteria.

Principle 6 – Supplementary measures can be used in lieu of offsets

Supplementary measures may be used in lieu of offsets if an appropriate offset site cannot be found, however reasonable attempts must be made before supplementary measures will be considered by a consent authority.

Supplementary measures will need to be commensurate with the cost of establishing an offset site.

Principle 7 – Possibility to discount offset if the proposal will provide significant social and economic benefits to NSW

In very limited circumstances, a consent authority will consider modification of offset requirements if it would otherwise prevent a project from proceeding.
 

How the policy will work

The policy principles will guide the Framework for Biodiversity Assessment.  The Framework for Biodiversity Assessment proposed by the Offsets Policy has two stages.

Stage 1 – Biodiversity assessment

Under the Offset Policy, a proponent is required to:

• avoid and minimise impacts on biodiversity
• assess the remaining impacts
• determine if the impacts require further consideration, and
• complete a biodiversity assessment report.

Stage 2 – Fulfil offset requirements

Subject to the outcome of the biodiversity assessment report, the proponent is required to prepare a Biodiversity Offset Strategy setting out one of the following ways to fulfil the offset requirements:

• offset a site secured by a biobanking agreement
• mine site rehabilitation
• contribution to supplementary measures, or
• contribution to a biobanking fund.

The proponent must then submit the biodiversity assessment of Offset Strategy as part of the project application for consideration by consent authority.
 

Biobanking agreements

The preferred offsetting method will be through a biobanking agreement, where an offset site is dedicated to protecting and improving biodiversity to counterbalance the losses of biodiversity on the development site. This is materially different to the current situation whereby proponents have a choice of what method they choose to secure land (eg conservation agreement, covenant etc).

The offset site can be owned by a proponent or, alternatively, the proponent can contribute monetary payments to a landowner to manage an area of biodiversity on their land. 

Improvements in biodiversity on an offset site will be calculated in ‘biodiversity credits’.  A biobanking agreement will identify the number and type of biodiversity credits that will be generated through the landowner’s management actions.  A proponent can then purchase biodiversity credits to compensate for the loss of biodiversity on their development site. 

Once the biodiversity credits have been purchased, they are ‘retired’, removing them from the market to prevent them from being traded in the future.

Voluntary conservation agreements (VCA) are currently the preferred offset mechanism for most major projects in NSW as they provide greater flexibility for the proponent. Also, one of the benefits of a VCA as opposed to a biobanking agreement is the exemption of this land the subject of a VCA from Council land rates.  The Local Government Act 1993 does not currently exempt land the subject of a biobanking agreement from land rates.
 

New flexible ways to achieve your offset requirements

The Offsets Policy has introduced new, more flexible ways (in addition to the biobanking agreements) in which proponents can achieve their offset requirements to ensure that the best and most credible offsets are provided:

• Mine site rehabilitation - Proponents will be able to count ecological rehabilitation of mine sites in calculating offsets, where there are 'good prospects of biodiversity being restored'.
• Broadening of the 'like-for-like' biodiversity requirement - this recognises that the exact same biodiversity may not always be available for an offset.  If like-for-like is not available, offsets that are a 'higher conservation priority' may be targeted, provided they have a relationship to the biodiversity being lost.
• Supplementary measures - If all reasonable measures have been made to locate an offset site, but one is not able to be found, a proponent is able to provide funds for supplementary measures such as:
• threatened species recovery programs
• threat abatement programs, or
• contribution to biodiversity research and survey programs.
  The contribution will be calculated based on what the cost of an offset site would have been for that project.

 

Possibility of a discount on your offsets?

The Offsets Policy will allow a consent authority to reduce offset requirements in certain limited circumstances, where ‘significant social and economic benefits accrue to NSW as a consequence of the proposal’, and the project’s offset requirements may make the project unviable. 

The potential to reduce offset requirements has been introduced under the Offset Policy in recognition that under the Environmental Planning and Assessment Act 1979 a consent authority is required to consider the social and economic aspects of a proposal.
 

Biodiversity offsets fund

The NSW Biodiversity Offsets Fund for Major Projects (Offsets Fund) complements the Offset Policy’s supplementary option by enabling proponents to contribute a monetary amount to satisfy their offset requirements. The fund will then purchase offsets on behalf of the proponent.  The establishment of the Offsets Fund will:

• give proponents increased certainty - proponents will be able to understand upfront how much money they will need to contribute to fulfil their offset requirements
• enable a more strategic and coordinated purchase of offsets located in strategically important biodiversity areas in NSW such as land adjacent to wetlands and rivers, and
• facilitate landowners to establish offset sites on their land that could result in an additional income stream. 

 

Transitional provisions

The transitional period is likely to commence during the second half of 2014.  It is intended that after approximately 18 months, the policy will be implemented through legislation. It is not clear from the draft Policy how the Policy (once finalised) will apply to current development applications where Director-General’s requirements have been issued but the development assessment process is not yet complete.

The Offset Policy will not apply to existing offset sites secured under other long-term mechanisms.
 

Find out more at our free seminar

Partner Samantha Daly and Director of Umwelt environmental consultants Barbara Crossley will lead a panel of experts:

• Environmental law expert Patrick Holland from McCullough Robertson’s Sydney office
• Travis Peake, Manager Ecology/Associate, Umwelt – expert in biodiversity assessment and offsets, and
• Andrew McIntyre, Regional Manager, Hunter Central Coast at the NSW Office of Environment and Heritage

in a free seminar in the Hunter Valley focusing on what you need to know about the NSW Biodoversity Offsets Policy.

Date: Friday 2 May 2014

Venue: Singleton Diggers Club, York Street, Singleton  NSW  2330

Time: 7.15am for 7.30am - 9.00am (light breakfast included)

RSVP: Monday 28 April 2014

Enquiries: Donna White on 1300 MCR 888 (1300 627 888)

Click here to register.

Samantha Daly, Patrick Holland, Kate Swain

Reporting of pollution incidents in NSW – a reminder that not all pollution incidents need to be notified

Environment Protection Authority v Bulga Coal Management Pty Limited [2014] NSWLEC 5

Our client Bulga Coal Management Pty Limited (Bulga) has successfully defended a charge brought by the Environmental Protection Authority (EPA) that Bulga failed to notify the EPA of a pollution incident that occurred at the Bulga Coal Mine as soon as practicable after it became aware of the pollution incident.

This was the first prosecution under the Protection of the Environment Operations Act 1997 (NSW) (the Act) since its inception in 1997, where a plea of not guilty has been entered to the charge of failing to notify under section 148 of the Act.  The EPA has advised the Court that it will not appeal this decision of her Honour Justice Pain in the Land and Environment Court.

The EPA prosecuted Bulga for failing to notify the EPA of a leak from a tailings pipeline as soon as practicable after it occurred.  Bulga pleaded not guilty to this charge and argued that the notification occurred as soon as practicable after the relevant personnel formed the opinion that the incident had caused or threatened material harm.  Bulga did not dispute that the pollution incident had occurred, however it disputed that it had failed to report the incident ‘as soon as practicable’ after becoming aware of the incident, as required under section 148 of the Act.

This case clarifies that the obligation to notify the relevant authorities is triggered when the person forms a subjective awareness that material harm has been caused or threatened (as opposed to the objective position when the person first becomes aware that a pollution incident has occurred).  The Act was amended in November 2012 to require immediate reporting (promptly and without delay) of pollution incidents which cause material harm, however the subjective awareness requirement of whether material harm has been caused is still applicable.

Under the Act, material harm to the environment requires:

• actual or potential harm to the health or safety of human beings or to ecosystems that is not trivial, or
• harm that results in actual or potential loss (including measures to prevent or make good harm to the environment) exceeding $10,000.  

This means that the person must be actually aware that:

• the pollution incident has occurred, and
• the pollution incident has caused or threatened harm to ecosystems that is not trivial, or that it will cost more than $10,000 to clean up the damage,

before that person has an obligation to report the incident.

This decision potentially has far-ranging implications for environmental law in other Australian jurisdictions.

Background

At approximately 11.30am on Sunday, 9 October 2011, a Bulga employee became aware that coal tailings had escaped into Nine Mile Creek (an intermittent waterway which at the time was a dry creek bed).  The tailings had escaped as the result of the failure of a steel T piece in the tailings pipeline, and were described as a ‘trickle’.  The Bulga employee formed the opinion that the potential harm to the ecosystem was trivial as there were no signs of harm to animals or plant life in the area of spill, and the tailings were non-toxic. 

The employee followed Bulga’s internal processes, by taking immediate steps to stop the leak and prevent the further spread of tailings, and by contacting both the Environment Manager and CHPP Manager to inform them of the incident.  The Operations Manager, who was responsible for external reporting of environmental incidents under the Company’s internal incident management procedure, formed the positive view after being informed of the details of the incident that the incident was not causing or threatening material harm to the environment and therefore was not required to be reported on the Sunday.

The following morning, the relevant personnel assembled on site to inspect the pollution incident, and at this time the view was formed by the relevant employees that the cost of the cleanup of the incident would be more than $10,000.  The Operations Manager therefore made the decision that the incident should be notified to the EPA as soon as practicable, and this occurred within one hour of that opinion being reached.

Ultimately, the final clean-up cost to Bulga was $94,550 in internal costs and the external costs amounted to $193,440.

Forming an awareness

The EPA argued that the offence in this case was made out as the EPA was only required to prove, as a matter of objective fact, the incident was of that type and when the relevant Bulga personnel became aware of such an incident was irrelevant. The Court adopted Bulga’s submissions concerning the context of sections 147 and 148 of the Act, that section 147(1)(b) naturally allows the person on whom the duty is cast to make reasonable inquiries as to the anticipated clean up costs that would be incurred to make good any (trivial) harm to the environment caused by the incident.

Overall, the Judge agreed with Bulga that not all pollution incidents are required to be notified to relevant authorities under the Act, as this would lead to a substantial drain on the finite resources of those authorities.

With respect to the EPA’s argument, Her Honour held that if this position was adopted it would lead to unfair results as a person could be held criminally liable for an offence even if they were not aware that the incident was a type that should be reported. Her Honour also suggested that the EPA’s position would be contrary to the principles identified by the Court of Criminal Appeal which reaffirmed the common law presumption that knowledge is an essential element of every offence unless expressly displaced by the drafting of the relevant statute.

The Judge found that a prosecutor must prove beyond reasonable doubt that the defendant failed to report an incident; and in addition, that the defendant was aware that the pollution incident has caused or threatened harm to ecosystems that was not trivial; or that it would cost more than $10,000 to clean up the damage from the incident.

This does not mean that a person can turn a blind eye to the question of whether material harm has been caused and then later argue that they never considered the question.  The Judge noted in this case that an actual knowledge of the materiality of the harm caused could be inferred if the person could be found to be aware of suspicious circumstances or deliberately failed to inquire (wilful blindness).

What to do to ensure you are not prosecuted for failure to notify
It is imperative that your organisation has a clear process to ensure that pollution incidents are managed and reported in accordance with its obligations under the Act. 

In addition, holders of Environmental Protection Licences are required to have implemented Pollution Incident Response Management Plans (PIRMP) and to regularly test these under the Act.  The EPA recently completed its annual compliance audit program of PIRMPs and only one licensee was found to be fully compliant.

As soon as a pollution incident is identified the processes outlined in your organisation’s internal policy or, if applicable, under the PIRMP should be followed.  The PIRMP must identify the person who is responsible for reporting a pollution incident and outline the process that person must following to determine if the incident is reportable, including the process for determining whether the ‘material harm to the environment’ thresholds have been reached.

Importantly, this case has confirmed that it is acceptable for a company to undertake an internal decision-making process to assess whether material harm to the environment has been caused or threatened and therefore whether the incident needs to be reported. In the case of Bulga this process took 24 hours, which the Court ultimately found acceptable given the internal processes undertaken by Bulga during that period and the evidence as to the beliefs that were formed by the Operations Manager during that time as to whether or not material harm to the environment had been caused or threatened.

In forming a view as to whether the incident has caused or threatened to cause material harm – in addition to considering the actual or potential harm to ecosystems that may result from the incident, the responsible person should consider whether it will cost more than $10,000 to clean up the incident. The following questions will assist that person in forming a view as to the materiality of harm:

• how much labour will be involved in the clean up?
• will any equipment need to be brought in to remove material?
• will extensive water sampling be required?

If the responsible person forms the view that the pollution incident has caused or threatens to cause material harm then that person must report to all appropriate regulatory authorities IMMEDIATELY (which means promptly and without delay).

The key message from this case is that it is acceptable to have a hierarchical internal process for determining whether a pollution incident has caused or threatened to cause material harm but that process must be followed to avoid prosecution for ‘failure to notify’.

If you would like McCullough Robertson to review your organisations internal policy or PIRMP, or you would like further information on this topic, please contac our team.

Samantha Daly, Patrick Holland, Brendan Tobin, Kate Swain

20% reduction in coal washery rejects levy for NSW operators

From 1 March 2014, NSW occupiers of licensed waste facilities will benefit from a 20% reduction in the levy payable on the disposal of coal washery rejects.  The new levy is $13.30 per tonne, down from $16.60.

What is the levy?

Since November 2009, each tonne of coal washery rejects that are received offsite and applied to land, have been subject to the coal washery rejects levy.  

Under the Protection of the Environment Operations Act 1997, occupiers of licensed waste facilities in NSW are required to pay a levy for each tonne of waste received. Different contributions are payable depending on the type of waste, where it was generated and the location of its disposal.

The aim of the coal washery rejects levy is to motivate the improvement of environmental management of coal waste by making the disposal more expensive, providing an incentive for mine operators to develop an alternative to disposal.

Important change to the levy

Following 30 June 2010, the coal washery rejects levy increased to $16.60 per tonne, up from the initial rate of $15.00 per tonne.

Legislative amendments have been introduced reducing the rate of the levy payable on the dispose of coal washery rejects by 20% for occupiers of licensed waste facilities.  The amendments took effect on 1 March 2014, resulting in a significant reduction in the levy to $13.30 per tonne.

The levy applies once the coal washery rejects is received at the licensed waste facilities irrespective of when it is applied to land.

Exemptions

There are two general exemptions from the requirement to pay the levy, namely:

• the Coal Washery Rejects (Coal Mine Void) Exemption 2009, and
• the Coal Washery Rejects General Exemption 2009.

The Coal Mine Void Exemption applies if:

• the coal washery rejects can only be applied to land to fill a coal mine void, to the original ground level
• the application of the coal washery rejects to land must conform to an approved rehabilitation plan for the site, and
• the application of the waste occurs within six months of receipt at the site.

The General Exemption provides that coal washery rejects which are applied to land in earthworks for civil engineering applications are exempt from certain licensing, contributions and reporting requirements.  The General Exemption does not apply to coal washery rejects that are applied to land for the purposes of mine site rehabilitation.

If your organisation is currently paying the coal washery rejects levy you should consider whether one of these exemptions may apply.

Samantha Daly, Patrick Holland, Brendan Tobin, Kate Swain

The gateway process commences for the assessment of mining and petroleum development

On 4 October 2013, the gateway assessment process for mining and petroleum development on strategic agricultural lands came into effect through amendments to the State Environment Planning Policy (Mining, Petroleum Production and Extractive Industries) Amendment 2013 (NSW) (Mining SEPP Amendment) and the Environmental Planning and Assessment Amendment (Gateway Process for Strategic Agricultural Land) Regulation 2013 (NSW) (Gateway Regulation).

The gateway assessment is an independent, upfront scientific assessment of the impact of new state significant mining and petroleum development on strategic agricultural land and its associated water resources.  The gateway assessment process must be undertaken before certain mining and petroleum development can proceed to full environmental assessment.

Updated strategic agricultural land maps have been included in the Mining SEPP Amendment identifying areas of biophysical strategic agricultural land and critical industry cluster land (such as viticulture in the Hunter Valley).  At this stage the gateway process applies to two million hectares of strategic agricultural land which was mapped in the Upper Hunter and New England North West regions of the state. Mapping of the remaining areas of the state is currently underway.

The Mining and Petroleum Gateway Panel (Gateway Panel), comprising independent scientific experts, has now been established to review proposed mining or petroleum development and issue gateway certificates.

This means that if you propose to lodge an application for a mining or petroleum development on specified strategic agricultural land at any point in the future, your application must be accompanied by a gateway certificate in respect of the proposed development, or a site verification certificate that certifies that the land on which the proposed development is to be carried out is not biophysical strategic agricultural land.

Site verification certificates

A site verification process has been introduced by the Government to enable proponents of mining and petroleum development, and in some circumstances landowners, to verify if land is classified as biophysical strategic agricultural land.

A proponent or landowner can apply to the Director-General of the Department of Planning and Infrastructure for a site verification certificate confirming that specified land within the area of a development is or is not biophysical strategic agricultural land.

When determining an application for a site verification certificate, the Director-General must have regard to the criteria set out in the Interim Protocol for Site Verification and Mapping of Biophysical Strategic Agricultural Land published in the NSW Government Gazette on 12 April 2013.

In addition, if a proponent identifies that the proposed project site contains land identified as strategic agricultural land in the relevant maps, the proponent can choose to challenge this status by applying to the Director-General for a site verification certificate.  The fee for the site verification certificate is $3,900.

If the Proponent is not the landowner, prior to requesting a site verification certificate, written notice must be provided to the owner of land or an advertisement must be published in a newspaper circulating in the area in which the development is to be carried out within specified time periods.

The Gateway Regulation now requires site verification certificates to be included in s149 planning certificates issued by local councils.

Gateway certificates

A gateway certificate can be issued by the Gateway Panel and is issued as an ‘unconditional certificate’ (if the proposed development meets the relevant criteria) or as a ‘conditional certificate’ (if the proposed development does not meet the relevant criteria).  A gateway certificate is valid for five years.

A conditional certificate will include recommendations of the Gateway Panel to address the proposed development’s failure to meet relevant criteria and the certificate may also recommend that further studies be undertaken.

If a gateway certificate application relates to development on land that has been identified as biophysical strategic agricultural land, the Gateway Panel must refer the application to the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development (IES Committee) established under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) for advice regarding the impact of the proposed development on water sources.

Changes to the environmental assessment process

Development applications for mining and petroleum projects will now have added complexity, as the gateway process introduces additional formal steps prior to (and in some circumstances during) the environmental assessment process.

If a gateway certificate has been issued for a proposed development, the Gateway Regulation requires the Director-General to address any recommendations of the Gateway Panel set out in the gateway certificate.  The Director-General must also consult with the Gateway Panel when preparing environmental assessment requirements for the proposed development, and have regard to the need for the requirements to assess any key issues raised by the Gateway Panel during the consultation process.

The Gateway Regulation also requires the Director-General to have regard to any gateway certificate recommendations of the Gateway Panel, even if the certificate is issued after a proponent has been notified of environmental assessment requirements.  The Gateway Regulation includes a provision which enables the Director-General to modify those environmental assessment requirements if it is considered necessary.

The Gateway Regulation now also require a consent authority to refer an application for development consent for a mining or petroleum development that is accompanied by a gateway certificate, to the Minister for Primary Industries for advice regarding the impact of the proposed development on water resources.  The Minister for Primary Industries when considering the impacts of a proposed development on water resources must have regard to the Aquifer Interference Policy, and particularly the minimal impact provisions.

Coal seam gas development exclusion zones

The Mining SEPP Amendment also introduces additional coal seam gas development exclusion zones and buffer zones (land within two kilometres of an exclusion zone), which prohibits coal seam gas development on or under certain land.

Samantha Daly, Patrick Holland, Brendan Tobin, Kate Swain