Strategic Cropping Land: Ploughing ahead for agribusiness or putting up walls for urban developers and digging holes for resource companies?

The Strategic Cropping Land Act (Act) has been passed to protect ‘strategic cropping land’ in Queensland from development that would permanently alienate the land, or reduce its agricultural capacity. The Act commenced on 30 January 2012.

‘Strategic cropping land’ (SCL) is Queensland’s best cropping land, where it appears on the state’s ‘potential SCL’ mapping, and meets a series of ‘on-the-ground’ assessment criteria and guidelines.

The Act will apply across almost a quarter of the land in the state (about 42 million hectares) along the coast from the New South Wales border to Mossman, and extending west beyond Clermont, Roma and St George. It will have a significant impact on most new urban development and resource developments, and on farming and agribusiness operations within SCL areas.

The provisions require avoidance, minimisation and mitigation of impacts on SCL. They are significantly more restrictive and onerous than the existing laws protecting Queensland’s Good Quality Agricultural Land (which will continue in force).

However, the most immediate concern is uncertainty as to whether a particular property will be caught by the regime. In many cases, this threshold enquiry will require would-be developers to undertake substantial work, with the answer still subject to validation by the Department of Environment and Resource Management (DERM).

How it works

Development for roads, transport infrastructure or strategic port land, electricity transmission grids or supply networks and activities under the State Development and Public Works Organisation Act 1971 are excluded from the regime.
For most new urban development and resource projects, the following process will apply:

1. First, the proponent must confirm if the site is identified on DERM’s ‘trigger map’ as ‘potential SCL’ – land in an area in which SCL is expected or likely to exist. Note that not all potential SCL will be visible on the State-level map, and site-specific searches should be carried out through DERM. If the site is not potential SCL, no further consideration of the SCL regime is required.
2. If the site is potential SCL, the proponent needs to determine which of the five geographical zones applies and assess the site’s cropping suitability against the criteria for the zone. The criteria relate to eight scientific soil criteria – slope, rockiness, gilgai microrelief, soil depth, soil wetness, soil pH, salinity and soil water storage.Importantly, the criteria also define minimum land size to qualify as SCL. In some zones the minimum is 10 hectares with a minimum width of 30 metres, while in other zones the minimum is up to 100 hectares with a minimum width of 80 metres.
3. The proponent can either:
   1. accept that the site is SCL in accordance with the zone criteria, and that the mapped boundaries of the SCL are correct; or
   2. apply to DERM for confirmation of whether (and/or to what extent) the site is SCL. Before applying, prepare an assessment of the site using the appropriate criteria and guidelines. This includes on-ground technical assessment involving the eight scientific soil criteria.
4. If the site is validated as SCL, it will be in either a Protection Area or the Management Area.
5. There are two Protection Areas – one in central Queensland (including Emerald and Rolleston) and one in southern Queensland (including Toowoomba, Boonah, Kingaroy and Chinchilla). These areas were considered to be under ‘intense and imminent development pressure’, particularly from resource developments, and the Act affords them special protection. In the Protection Areas:

   1. Permanent impacts and exceptional circumstances

      Development  with permanent impacts on SCL cannot be approved except where it is demonstrated to meet certain ‘exceptional circumstances’.

      1.  Development impacts will be considered ‘permanent’ if:
         • the use will impede the SCL from being cropped for 50 years or more;
         • the SCL will not be restorable to its pre-development condition;
         • the activity is or involves open-cut mining, or the storage of hazardous mine wastes such as tailings dams, overburden or waste rock dumps; or
         • the development is of a type prescribed under a future regulation.
      2. A development is in ‘exceptional circumstances’ if:
         • the development is of a type prescribed under a future regulation; or
         • an ‘exceptional circumstances application’ to the relevant Minister (or in some cases the Co-ordinator General) is successful. This requires that there is no alternative site for the development, and that there will be a significant community benefit in carrying out the development on the site.‘Significant community benefit’ is defined to mean that the carrying out is an overwhelmingly significant opportunity of benefit to the State, and the benefit outweighs the State’s interest in protecting the land as SCL.If development meets the criteria for exceptional circumstances, the proponent will still need to demonstrate that it will avoid and minimise, to the maximum extent possible, any temporary or permanent impacts on SCL.

           Further, there is a requirement to mitigate any unavoidable permanent impacts to ensure cropping productive capacity is maintained.

   2. Temporary impacts

      Development in the Protection Areas that has temporary impacts must avoid SCL, or if that is not possible, demonstrate that impacts on SCL are minimised and the SCL will be fully restored to its pre-development condition.

      The Management Area is the remainder of potential SCL shown on the trigger map. In the Management Area:

      1. For a site in the MA to be confirmed as SCL, in addition to meeting the SCL criteria for the zone, it must meet an ‘history of cropping’ test.
      2. If so, then the development must avoid the SCL and minimise, to the maximum extent possible, any temporary or permanent impacts on the SCL.
      3. If a development cannot avoid, and would have permanent impacts on SCL, it can only be approved if DERM determines that:
         • There is an overriding need for the development that is in the public interest; and
         • There is no alternative site that does not include SCL.
         • Again, there is a requirement to mitigate any unavoidable permanent impacts to ensure cropping productive capacity is maintained.
         • Temporary development must avoid SCL, or if that is not possible, demonstrate that the impacts on SCL are minimised and the SCL will be fully restored to its pre-development condition.

      Where mitigation is necessary, the requirements may be onerous. Mitigation measures must have a value equal to or greater than the loss of a site’s productive capacity. Generally, this must relate to the site’s primary cropping activity. The measures must be in place before development that will permanently impact the land is carried out. Mitigation cannot be a substitute for avoidance, minimisation of impacts or full restoration of a site where those options are possible. The benefits should occur within the same SCL zone as the impact and should be long-term.

      Generally, the type of mitigation that will be considered most suitable is financial contribution into a fund to be administered by the Department of Employment, Economic Development and Innovation (DEEDI), calculated on a per hectare rate. This money will be allocated to productivity enhancing activities in adversely affected areas. Alternatively, development proponents may be able to negotiate for other mitigation measures through a Deed of Agreement.

Impacts on urban developers

The regime will not apply to land that is within the urban footprint under regional plans, or existing urban areas under existing local government planning schemes.

It will apply to urban development on all other land confirmed as SCL, for which a development application is required to be assessed under the Sustainable Planning Act 2009 (SPA). These developments will now be required to undergo additional assessment against the SCL Act as part of the SPA assessment process.

Under amendments to the SPA, the ‘properly made’ application requirements will include a report on the impact of the development on the SCL, which may delay the lodgement of development applications.

Additional concurrence agency roles are created for DERM, the Minister and Coordinator-General in relation to development applications that may impact on SCL or potential SCL.

There is a State Planning Policy for protecting SCL (currently available in draft) (SPP). It will be used for the future development of planning schemes, and applied directly in the assessment of development applications (Material Change of Use, Reconfiguration and Operational Works) where triggered. The SPP will provide further guidance on what activities will be considered to permanently impact upon SCL.

However, developers should be mindful that most urban development is intended to endure for more than 50 years and will therefore be considered to have at least some ‘permanent’ impacts on SCL.

The Act will have no effect on existing development approvals that take effect before the Act commences.

For development applications already lodged but not yet decided the usual transitional arrangement under SPA will apply, whereby the assessment manager may give the weight it is satisfied is appropriate to laws and policies that come into effect after the application is properly made but before the decision stage starts.

Impacts on resource companies

The Act adds a further layer to the assessment of environmental authority and tenure applications for extraction activities, petroleum, gas (including coal-seam gas) and geothermal energy projects. The various laws regulating the resource and mining industries will be amended so that SCL assessments occur before environmental and tenure assessments.

The Act sets out the types of resource developments that will be deemed as permanently impacting on SCL. Included are many resource extraction, petroleum, gas (including coal-seam gas) and geothermal energy projects. All open-cut mining activities, and the storage of hazardous mine wastes such as tailings dams, overburden or waste rock dumps are deemed to have permanent impacts under the Act. Water storage ponds and gas compression stations may permanently impact SCL. Importantly, discrete and cumulative effects of activities on SCL will be considered.

To proceed, projects with permanent impacts will need to demonstrate ‘exceptional circumstances’ (Protection Areas), or an overriding need in the public interest where no alternative site is available (Management Area). The provisions requiring avoidance and minimisation of impacts and mitigation of permanent impacts will apply.

Infrastructure or facilities required for less than 50 years may not have permanent impacts. Gas wells and pipelines are usually considered to have a temporary impact, assuming that the SCL can be restored back to its former condition.

Early SCL investigations together with good planning and design can help towards minimising a project’s likely impacts on SCL.

The Act will have no effect on approvals that take effect before the Act commences.

For applications lodged but not yet decided, this Act will generally be considered when making a decision. However, in some cases transitional provisions may apply. These include the following:

1. An environmental authority application and associated tenure application will be entirely excluded from the operation of the Act if the Environmental Impact Statement stage was completed, or, if a draft environmental authority was given, on or before 31 May 2011.
2. Some applications for coal or mineral tenures or gas or petroleum resource authorities on SCL that reached certain milestones in the Environmental Impact Statement process as at 31 May 2011 will be permitted to proceed despite permanent impacts on SCL, without demonstrating exceptional circumstances (or, overriding need and lack of an alternative site). These developments will still be subject to conditions to ensure that they avoid, minimise and mitigate any impacts on SCL.
3. Certain existing and future applications to expand mines already in existence as at 23 August 2010 will be permitted to proceed despite permanent impacts on SCL, without demonstrating exceptional circumstances (or, overriding need and lack of an alternative site). Again, these developments will still be subject to conditions to ensure that they avoid, minimise and mitigate any impacts on SCL.

Impacts on farmers

Rural land within a Protection Area or a Management Area may potentially qualify as SCL, given that the regime applies to land not identified for urban uses under an existing planning scheme or regional plan.

Cropping and horticulture activities will not be subject to the regime, if they are not ‘assessable development’ under the SPA. However, developments for urban purposes may be caught (if they require assessment under the SPA). Examples of this include Material Change of Use of the land for residential, industrial, sporting, recreation or commercial type uses, and subdivision of rural land to create town lots.

In recent years, an increasing number of farmers and agribusinesses have sought to expand their enterprises and to manage risk through on-farm diversification. These range from farmstay and eco-tourism ventures to value-adding initiatives such as on-site processing. Diversification should benefit the long-term sustainability of cropping and horticulture. Nevertheless, the SCL regime may have a downward effect on this trend.

Landholders who wish for their land to be recognised as SCL can seek to ‘opt in’, by applying under the SCL Act for verification (no development application under SPA is required). This may be attractive to landholders concerned about encroaching development interests.

For further information on how SCL may impact upon your land or project, please do not hesitate to contact our team on +61 7 3231 2444.