As most people would be aware, the Hydrogen and Renewable Energy Act 2023 passed through Parliament recently and we have been waiting for the Regulations to come into effect and for the Act to formally commence.
The draft Hydrogen and Renewable Energy Regulations 2024 were recently released for public comment. Whilst the regulations add clarity to some matters, they still do not address some of the underlying concerns that have been raised in respect of the Act.
The Hydrogen and Renewable Energy Regulations set out the requirements for consultation in respect of a release area, which is an area to which the Act will apply and within which hydrogen and renewable facilities and the like will be able to be constructed. The consultation requirements include a need to consult with landowners, and this consultation must generally provide at least 30 business days for the process.
The Hydrogen and Renewable Energy Regulations also now provide a time frame within which access agreements are to be negotiated before a party can seek to have the Minister intervene or commence proceedings in the ERD Courts. This has been set as two months.
Before coming to another change, there is some important background information people should be aware of for context.
In the Mining Act 1971 there is a concept of exempt land, with a range of land 'uses' resulting in some land being declared 'exempt land'. Certain mining activities are then precluded from occurring within or near to exempt land.
Where land is designated as exempt land, it requires the landowner to waive the exemption in order for a mining company to proceed with mining operations or, in the absence of any agreement, to obtain an order from the ERD Court waiving the benefit of the exemption and permitting the mining activities to proceed. In the absence of any such agreement or court order, the mining activities cannot proceed.
Amongst the range of land uses which constitute exempt land are the following:
- a cultivated field, plantation, orchard or vineyard;
- where the mining activities are being undertaken within a prescribed distance from a building being used for residential purposes (which is 400 metres for extractive activities or advanced exploration operations and 200 metres for low impact exploration operations);
- where the mining activities are being undertaken within 150 metres of a spring, well, reservoir or dam; or
- where the mining activities are being undertaken within 150 metres of a building or structure used for an industrial or commercial purpose and where it has a value equal to or exceeding the prescribed amount (which is $2,500).
With the Hydrogen and Renewable Energy Regulations, there is an ancillary change to the Mining Regulations. This is linked to a change made to the Mining Act 1971, whereby land is deemed exempt land within a certain distance from infrastructure (other than infrastructure of a prescribed kind) that is being constructed, installed, operated, maintained or decommissioned pursuant to the Hydrogen and Renewable Energy Act.
On the face of it this change would appear to be a good thing, as it ties in the concept of exempt land to the Hydrogen and Renewable Energy Act.
However, the distance prescribed in the Mining (Exempt Land) Amendment Regulations is only 25 metres, which is significantly less than what is prescribed for more general mining activities. The consequence of this is that infrastructure that is being constructed or installed pursuant to the Hydrogen and Renewable Energy Act, such as a wind turbine or a solar panel array, could be placed within 25 metres of someone's land or house without needing to go through the exempt land process. Additionally, this concept of exempt land will not apply to 'prescribed infrastructure'. At this stage no particular infrastructure is prescribed.
Given the potentially significant impact of the Hydrogen and Renewable Energy Act 2023 and the Hydrogen and Renewable Energy Regulations, people may want to take the opportunity to make comment on the Regulations before they are finalised.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
