Australia: Queensland's Strategic Cropping Land Act 2011: challenging the trigger maps

It has now been over 6 months since the commencement of the Strategic Cropping Land Act 2011 (Qld) (SCL Act), the Queensland Government's response to the balancing of resource development and urban expansion with the need to protect cropping land.

Approximately 4.36% of the State is affected by the SCL Act, ¹ being mapped as potential strategic cropping land (or potential SCL).² Most major developers and proponents of resource developments, such as mining and coal seam gas projects, will be well aware of the restrictions applying to development on potential SCL under the Act. Yet many are still trying to determine the best strategy for proceeding with projects in light of the new restrictions.

One of the fundamental elements of the SCL Act is the right given to eligible persons to challenge the mapping of potential SCL by applying to the Chief Executive of the Department of Natural Resources and Mines (DNRM) for a Determination about whether or not land is, in fact, SCL (a validation application).

For many developers and resource proponents, the decision about whether or not to make a validation application will have significant implications for their projects. For example, whilst it may be tempting to challenge trigger maps where a proponent suspects inaccuracies, there may be compelling reasons to treat the land as SCL in order to expedite the granting of a development approval or environmental authority.

In this article, we provide a brief overview of the requirements for a validation application and identify what, in our experience, are some of the key considerations for proponents when deciding whether to make a validation application under the SCL Act.

Validation applications - overview

The SCL Act provides for certain eligible persons to apply to the chief executive to have potential SCL re-mapped as non-SCL, by making a validation application on the grounds that:

• the subject land (this must be a whole property if the land is located within the management area) does not comply with all of the criteria set out in the SCL Act (the zonal criteria); and/or
• if the land is located within the management area, the property does not have the required cropping history to be SCL (i.e. during the period between 1 January 1999 and 31 December 2010, it was not cropped or cultivated at least 3 times and perennial crops or timber plantations did not exist on the property for a period totalling 3 years or more).

Making a validation application will require giving a copy of the application to all "owners" of the land or property, as well as public notice inviting submissions about the application.³

Submissions received which meet the requirements of the SCL Act must be taken into account by the chief executive when making a determination about whether or not land is SCL (a validation decision). ⁴

If a validation application seeking to re-map potential SCL as non-SCL is approved, a decision will be made that the subject land be recorded in the decision register as "decided non-SCL". A proponent can then proceed with its application for a development permit or environmental authority without assessment under the SCL Act.

The alternative - elect to treat the land as SCL

As an alternative to making a validation application, a proponent may elect to treat land mapped as potential SCL as SCL and apply for authorisation to carry out development on it.

For assessable development under the Sustainable Planning Act 2009 (Qld), this will mean that, unless the development application is exempt, it must comply with the requirements of the SCL Act⁵ and will be assessed against the State Planning Policy 1/12: Protection of Queensland’s Strategic Cropping Land by the chief executive of DNRM as a concurrence agency.

For resource activities, a proponent who chooses to accept the trigger maps must apply for:

• a protection decision, which will involve the chief executive of DNRM assessing the impact of the resource activity on the land and deciding whether to impose conditions on the environmental authority and/or the "resource authority" (for example, a mining tenement or petroleum authority);⁶ or
• a compliance certificate, ⁷ where it can comply with the Strategic Cropping Land Standard Conditions Code for Resource Activities, which will mandate compliance with the code.⁸

An environmental authority will not be issued over land containing potential SCL until a protection decision has been made, or a compliance certificate has been granted.⁹

The effect of electing to treat land as SCL (for the purpose of a development application or an application for a protection decision) applies only to the applicant and to the particular development or resource activity.¹⁰ It does not make the land SCL. For all other persons and for all other purposes, the land will continue to be potential SCL.

Key considerations for deciding whether to make a validation application

The following considerations will be relevant when deciding whether or not to make a validation application under the SCL Act.

Whether the potential SCL is located within the management area or a protection area

All potential SCL is categorised as being within one of two "protection areas" (one in central Queensland and one in southern Queensland), or within the balance "management area".

Amongst other things, this will determine the type of validation application that will be required. Where the potential SCL is located in the management area, an application may be made on the basis of either or both cropping history and/or the zonal criteria.¹¹ Where the potential SCL is located in a protection area, an application must be made on the basis of the zonal criteria.¹² Very different evidence will be required to support these different types of applications.

In the management area, whether the subject land is a "property"

In the management area, a validation application must be property-based, that is, made in relation to one or more whole properties.¹³ A "property" for this purpose is defined by reference to one or more contiguous "lots" and that term is further defined to mean a lot under the Land Title Act 1994 (Qld), or a separate, distinct parcel of land for which an interest is recorded in a register under the Land Act 1994 (Qld).¹⁴

In the vast majority of cases, where the underlying tenure is freehold or State leasehold, the requirement for the subject land to be a property will be clearly satisfied. However, some land (for example, roads under the Land Act 1994 (Qld)) may not strictly meet the definition of a lot and therefore will not constitute a property for which a validation application may be made.

Note that the situation is different when making a validation application for potential SCL located in a protection area, where the application (which must be based on the zonal criteria) can be made in relation to any area of land.¹⁵

Who is an "eligible person"

This will be important, firstly, for choosing an appropriate person or entity to be the applicant.¹⁶ Most proponents and developers will meet the definition of an "eligible person" as the term is broadly defined to include:

• any of the owners of the land;
• any person with the written consent of any of the owners of the land;
• any person holding a legal or equitable interest in the land; and
• a person who has made an application or tender for a resource authority, such as a mining tenement, petroleum tenure or petroleum authority. ¹⁷

In the management area, even though a validation application must be made in relation to one or more whole properties, the SCL Act provides that it is sufficient to be an eligible person for only part of the subject land.¹⁸ An example of this is where the eligible person has applied for a resource authority that covers only part of one or more properties. It is important to note however, in the case of an application based on the zonal criteria in the management area, it will not be possible to obtain a validation decision re-mapping potential SCL within a property as non-SCL unless the applicant is an eligible person for the whole of the property.¹⁹ Applicants potentially affected by this rule should consider seeking the consent of an owner of the land in order to become eligible for the whole of the relevant property.

It is also necessary to identify all of the eligible persons for the subject land because they must be listed in the application. In addition, some eligible persons ("owners" of the property or land) must be served with a copy of the application once lodged and all may have a right to appeal DNRM's ultimate validation decision in the Planning and Environment Court.²⁰

What is the scope of evidence required

Before spending time and money preparing a validation application, one of the most important considerations will be the evidence required to successfully prove that the property or land does not have the required cropping history and/or does not comply with the applicable zonal criteria.

In the management area

Because a validation application in the management area must be property-based, for applications made on the basis of cropping history it will be necessary to adduce evidence that the whole of the relevant property does not have the required cropping history. Similarly, for applications based on the zonal criteria, it will be necessary to adduce evidence that none of the property complies with the applicable zonal criteria.

This requirement will apply regardless of whether potential SCL has been mapped over the whole property and regardless of whether the applicant is interested in re-mapping all potential SCL within the property. It will particularly affect resource proponents, as it is common for the boundaries of a resource authority to cover only part of one or more properties.

In a protection area

A validation application in a protection area must be based on the zonal criteria but can be made in relation to any area of land. Therefore, a validation application can target a particular area of potential SCL and only adduce evidence in relation to that area. This could be, for example, because a particular area of potential SCL overlaps with the development footprint and non-compliance with the zonal criteria will be easy to prove.

What evidence is available

It will also be important to consider what evidence is available and whether it will be sufficient to support a successful validation application.

The Cropping History Assessment Guidelines provide guidance about the potential sources of evidence to support a validation application based on cropping history, such as aerial photography and satellite imagery, business records and statutory declarations. It is expected that aerial photography will be the most widely used source of evidence used to disprove cropping history, particularly where other evidence is unable to be obtained from the owner or occupier of the land. For State leasehold land, it may be worthwhile performing an historic search of the title to determine whether there are, or have been, any registered conditions or interests that can be used as evidence to show that the property was, or was required to be, used for a non-cropping purpose during the relevant period.

Likewise, the Guidelines for Applying the Proposed Strategic Cropping Land Criteria detail prescriptive procedural and content requirements for preparing a validation application based on zonal criteria. In most cases, it will be necessary to engage technical expertise to prepare the required supporting evidence. It should be noted however that the SCL Act does not provide a right of access to land for the purpose of collecting such evidence, which may present another difficulty for an applicant who is an eligible person for only part of the land.

How long it will take

The time required to prepare a validation application will depend on a number of factors, such as the grounds upon which the application is based (cropping history, zonal criteria or both), the availability of existing evidence, whether further soil assessments will be required, the size of the property and the complexity of the issues involved. In any event, preparation of the application is likely to take several weeks to months.

Once lodged and public notification has been completed, DNRM may take up to 3 months to decide the validation application.²¹ However, DNRM has the power to requisition a validation application ²² where, for example, it requires further information in order to assess the application, which can extend that timeframe even further. In the event that a requisition notice is received after the submission period has ended, DNRM's decision period will be extended to 3 months after the requisition notice is complied with. ²³

The validation decision will not take effect until either 28 days after the applicant receives an information notice about the decision or, if an appeal is lodged during that time, when the appeal ends.²⁴ These timeframes should be factored into project approval schedules if a validation application is pursued.

How much it will cost

A validation application must be accompanied by the prescribed fee which currently ranges from $2,019 to $6,157, depending on the type of application. ²⁵ This is relatively modest, compared to the application fee for a protection decision and some of the concurrence agency assessment fees, which will be avoided if the validation application is successful.²⁶ However, further expenses may be incurred in obtaining supporting evidence such as aerial photographs or satellite images, or engaging consultants to conduct soil assessments.

Whether a competing validation application is likely

A validation application cannot be made if a final validation decision has already been made for the land and, in some circumstances, where another validation application is pending.²⁷ It will therefore be worthwhile considering whether to "get in first" if other validation applications are likely to be made over the same property or land by the landowner or another eligible person.

Conclusions

If a validation application is successful in re-mapping potential SCL as non-SCL within the area of a development application or resource activity, assessment under the SCL Act will not be required. For many proponents and developers, this will be an attractive option. However, the decision about whether to proceed with a validation application will not always be straight forward and should only be considered in light of the various considerations outlined above.

Footnotes

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.