Strategic regional land use plans: Presenting the future for coal seam gas projects in New South Wales?

Environmental and Planning Law Journal

Volumn 29, Issue 2, 2012, Pages 113-128

  Owens, Katherine ^a  

^a UNIVERSITY OF SYDNEY   (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

COAL SEAM; DEVELOPMENT PROJECT; LAND USE PLANNING; REGIONAL PLANNING; REGULATORY FRAMEWORK; SPATIAL DISTRIBUTION; STAKEHOLDER; STATE ROLE; STRATEGIC APPROACH;

AUSTRALIA; NEW SOUTH WALES;

EID: 84867134502     PISSN: 0813300X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (147)

1. New South Wales Government, NSW Coal and Gas Strategy - Scoping Paper (Department of Planning, 2011) p 4.
2. The Queensland Government has introduced a Strategic Cropping Land Policy to respond to the same land-use conflict issues: see Queensland Government, Strategic Cropping Land (Department of Environment and Resource Management, 2012), http://www.derm.qld.gov.au/land/planning/strategic-cropping/index.html viewed 8 February 2012.
3. the main food growing regions of New South Wales are all substantially covered by petroleum exploration licences or petroleum production leases, including Liverpool Plains, Sydney Basin, Moree Wheat Belt, Northern Rivers, Gunnedah Basin and the Riverina
4. Simson F, "Food for the Future: Can Farmers Live with CSG?" (ACCEL Conference 2011 - Regulating Coal Seam Gas: Implications for Energy, Food and Water Security, Sydney Law School, 17 June 2011).
5. Fraccing fluid consists mainly of water and sand, but also contains chemical compounds.
6. Australian Government, Position Statement: Coal Seam Gas and Water (National Water Commission, 2010) p 1.
7. Australian Government, n 5, p 1.
8. Geoscience Australia and Habermehl MA, Advice in Relation to the Potential Impacts of Coal Seam Gas Extraction on the Surat and Bowen Basins, Queensland: Phase One Final Report (2010) p 83.
9. Eco Logical Australia Pty Ltd, Proposed Framework for Assessing the Cumulative Risk of Mining on Natural Resource Assets in the Namoi Catchment (2011) p 30.
10. Australian Government, The National Water Initiative - Securing Australia's Water Future (Biennial Assessment, National Water Commission, 2011) p 43.
11. Australian Government, n 9, p 43.
12. NSW Farmers' Association, Submission to NSW Legislative Council General Purpose Standing Committee No 5: Inquiry into Coal Seam Gas (2011) p 28.
13. NSW Farmers' Association, n 11.
14. Landholders' Right to Refuse (Coal Seam Gas) Bill 2011 (Cth).
15. Current arrangements under the Petroleum (Onshore) Act 1991 (NSW) require CSG mining companies to have an access arrangement in place with the landholders. However if an agreement cannot be reached between the mining company and the landholder, an arbitrator will determine whether or not the mining company should have a right of access to the land concerned, and if a right of access is determined, the particular access arrangements in respect of the land: see Petroleum (Onshore) Act 1991 (NSW), Pt 4A.
16. New South Wales Government, Submission to NSW Legislative Council General Purpose Standing Committee No 5: Inquiry into Coal Seam Gas (2011) p 2.
17. New South Wales Government, n 14, p 1.
18. The Strategic Regional Land Use Policy was one of the Liberal/National pre-election commitments.
19. Hon Brad Hazzard (Minister for Planning and Infrastructure), NSW Government Adopts Rigorous Strategic Approach to Regional Land Use Planning (media release, 21 May 2011).
20. New South Wales Government, n 14, p 19.
21. An "aquifer interference activity" is any of the following: • the penetration of an aquifer; • the interference with water in an aquifer; • the obstruction of the flow of water in an aquifer; • the taking of water from an aquifer in the course of carrying out mining, or any other activity prescribed by the regulations; and • the disposal of water taken from an aquifer in the course of carrying out mining, or any other activity prescribed by the regulations.
22. See the Dictionary to the Water Management Act 2000 (NSW).
23. New South Wales Government, The NSW Aquifer Interference Policy - Protecting Our Groundwater Systems (Office of Water, 2011) p 2.
24. New South Wales Government, n 14, p 22.
25. New South Wales Government, n 19, p 1.
26. Now superceded by the Water Management (General) Regulation 2011 (NSW).
27. Water Management (General) Amendment (Aquifer Interference) Regulation 2011 (NSW)
28. which is now included in the Water Management (General) Regulation 2011 (NSW)
29. in particular cl 7 of Sch 5 of the Water Management (General) Regulation 2011 (NSW).
30. Australian Government, n 9.
31. New South Wales Government, n 14, p 22.
32. New South Wales Government, Strategic Regional Land Use: A New Approach to Planning for Resources in Our Regions: Frequently Asked Questions (Department of Planning, 2011) p 1.
33. New South Wales Government, n 26, p 2.
34. New South Wales Government, Strategic Regional Land Use: A New Approach to Planning for Resources in Our Regions: Fact Sheet (Department of Planning, 2011) p 1.
35. As at 19 October 2011.
36. NSW Farmers' Association, n 11, pp 31-32.
37. In New South Wales, two types of statutory plans are produced under the EPA Act - State Environmental Planning Policies and local environmental plans, which are known collectively as "environmental planning instruments" (EPIs). EPIs generally function as statutory instruments that are used as part of development control.
38. New South Wales Government, n 14, p 25.
39. Amendment VC82, see http://www.dpcd.vic.gov.au viewed 8 February 2012.
40. New South Wales Government, n 26
41. New South Wales Liberals and Nationals, Strategic Regional Land Use Policy: Triple Bottom Line Assessment to Protect Our Regions (2011) p 1.
42. Eco Logical Australia Pty Ltd, n 8, p 31.
43. Eco Logical Australia Pty Ltd, n 8, p 31.
44. Eco Logical Australia Pty Ltd, n 8, p 31.
45. Eco Logical Australia Pty Ltd, n 8, p 31.
46. Barrett D, Kunz N, Moran C and Vink S, Scoping Study: Groundwater Impacts of Coal Seam Gas Development - Assessment and Monitoring (Centre for Water in the Minerals Industry, 2008) p 9.
47. New South Wales Government, n 14, p 25.
48. Nicholls S, "Angry Farmers Threaten to Snub Land-use Conflicts Group", Sydney Morning Herald (13 October 2011)
49. which reports that a leaked briefing paper advising the government on how to give effect to the Strategic Land Use Policy has angered the NSW Farmers' Association in not living up to the government's election commitments; for example, the draft plans do not contain exclusion areas.
50. Geoscience Australia and Habermehl, n 7, p 83.
51. GA examined the environmental impacts statements provided by three companies: Australia Pacific, Queensland Gas Co/British Gas, and Santos Ltd.
52. Geoscience Australia and Habermehl, n 7, p 83.
53. GA concluded: "[I]t is acknowledged that whatever modelling is undertaken, there is a very high level of predictive uncertainty involved, so proponents should consider actions to minimise potential impacts on water balances."
54. Geoscience Australia and Habermehl, n 7, p 83.
55. Geoscience Australia and Habermehl, n 7, p 83.
56. Geoscience Australia and Habermehl, n 7, p 83.
57. Australian Government, n 9, pp 13-14.
58. Australian Government, n 5, p 13.
59. Australian Government, n 9, pp 13-14.
60. Australian Government, n 9, p 44.
61. New South Wales Minerals Council, Submission on NSW Coal and Gas Strategy (2011) p 18.
62. New South Wales Government, n 14, p 25.
63. Holder J and Lee M, Environmental Protection, Law and Policy (2nd ed, Cambridge University Press, 2007) pp 40-41.
64. Narrative descriptions of certain options.
65. Holder and Lee, n 51, p 37.
66. Ackerman F and Heinzerling L, Priceless: On Knowing the Price of Everything and the Value of Nothing (New Press, 2004) pp 8-9
67. Holder and Lee, n 51, p 39.
68. Cowell R, "Wind Power and 'the Planning Problem': The Experience of Wales" (2007) 17(5) European Environment 291 at 292.
69. Cowell, n 55 at 298.
70. Cowell, n 55 at 298.
71. Boswall J (Eversheds) in Chamberlain P, "Still Much to be Done on Planning" (2008) 12 Real Power 19 at 21.
72. Cowell, n 55 at 300.
73. Cowell, n 55 at 300.
74. The Welsh Government's Minister for the Environment and Sustainable Development felt compelled to record his continuing commitment to the SSAs set out in Technical Advice Note 8, after the release of the
75. Welsh Assembly Government's Energy Policy Statement, A Low Carbon Revolution: see Griffiths J, Commitment to Technical Advice Note 8 (July 2011), http://www.wales.gov.uk/docs/desh/publications/110706planningtan8letteren.pdf viewed 8 February 2012.
76. February 2010.
77. Scottish Government, Scottish Planning Policy (2010) s 189, http://www.scotland.gov.uk/Resource/Doc/300760/0093908.pdf viewed 8 February 2012.
78. Holder and Lee, n 51, p 46.
79. Trinick M (Chair), "The Impact of the Strategic Area Planning Approach" (The British Wind Energy Association's 30th Annual Conference, London, 21 October 2008), http://www.bwea30.com viewed 8 February 2012.
80. Holder and Lee, n 51, p 46.
81. Holder and Lee, n 51, p 58.
82. Royal Commission on Environmental Pollution, Setting Environmental Standards Cm 4053 (21st report, 1998) p 122
83. Holder and Lee, n 51, p 46.
84. Australian Government, Independent Review of the Environment Protection and Biodiversity Conservation Act 1999: Interim Report (Department of the Environment, Water, Heritage and the Arts, June 2009) p 173
85. citing Australian Network of Environmental Defenders Offices, Submission 189 (2009) p 35.
86. Nakicenovic N and Swart R (eds), Special Report: Emissions Scenarios (Cambridge University Press, 2000) p 3.
87. Nakicenovic and Swart, n 70.
88. Nakicenovic and Swart, n 70.
89. Nakicenovic and Swart, n 70, s 3.4.5.
90. Lind M, "Everything You've Heard About Fossil Fuels May Be Wrong: The Future of Energy is Not what You Think it is", Salon (31 May 2011).
91. Based on a calculation of consumption of 550 Petajoules per annum.
92. Lind, n 74.
93. Eg flywheels, compressed air, and heat pumps.
94. Australian Energy Market Operator (AEMO), 2011 Electricity Statement of Opportunities (30 August 2011) s 2-13.
95. AEMO, n 78, s 1.
96. AEMO, n 78, s 2-1.
97. New South Wales Government, n 14, p 7.
98. Farrier D, "Fragmented Law in Fragmented Landscapes: The Slow Evolution of Integrated Natural Resource Management Legislation in NSW" (2002) 19 EPLJ 89 at 90.
99. Farrier, n 82 at 107.
100. Farrier, n 82 at 107.
101. Environmental Planning and Assessment Act 1979 (NSW), s 24(1).
102. Environmental Planning and Assessment Act 1979 (NSW), s 5.
103. Planners and legislators would need to be mindful of one limiting factor, which is the protection that has been accorded to non-conforming uses and development consents under the Environmental Planning and Assessment Act 1979 (NSW).
104. This protection has been noted as a factor that is likely to reduce the effectiveness of environmental planning instruments in a resource management context, as natural resources often require adaptive management on an ongoing basis
105. Farrier, n 82 at 106.
106. There is some attempt under the Water Management Act 2000 (NSW) to ameliorate the effects of existing uses through management plans
107. Water Management Act 2000 (NSW), s 34(1)(g).
108. Holder and Lee, n 51, Ch 1.
109. Gleeson B, "The Contribution of Planning to Environment and Society" (2003) 40(3) Australian Planner 25 at 29
110. Beck U, The Reinvention of Politics: Rethinking Modernity in the Global Social Order (Polity Press, 1997) pp 45, 60, 62-63, 168-169
111. Glesson B, "Reflexive Modernisation: The Re-Enlightenment of Planning?" (2000) 5(1) International Planning Studies 117 at 123-124, 133.
112. Gleeson (2003), n 89 at 29
113. Beck, n 89
114. Glesson (2000), n 89 at 128.
115. Gleeson (2003), n 89 at 30.
116. Gleeson (2003), n 89 at 30.
117. Gleeson (2003), n 89 at 30.
118. Beck, n 89, pp 40, 111, 161, 168-169
119. Gleeson (2000), n 89 at 133.
120. Gleeson (2000), n 89 at 133.
121. Intergovernmental Agreement on the Environment (May 1992)
122. Protection of the Environment Administration Act 1991 (NSW), s 6(2)(a)
123. Telstra Corporation Ltd v Hornsby Shire Council (2006) 146 LGERA 10.
124. Kysar DA, Regulating from Nowhere: Environmental Law and the Search for Objectivity (Yale University Press, 2010) p 16.
125. Professor Allan Randall has considered how we might frame a precautionary approach to CSG development as a "novel intervention" and considers that there should be a moratorium on further development until certain cumulative impacts have been assessed: Randall A, "Novel Interventions, Risk, and Precaution: Toward a Risk" (ACCEL Conference 2011, Sydney Law School, 17 June 2011).
126. Norton C and Ridge K, Local Government, Planning and Environment NSW (LexisNexis, 1997) at [585,025].
127. Norton and Ridge, n 99 at [585,025]-[585,028].
128. Norton and Ridge, n 99 at [585,025]-[585,028].
129. Deville A and Harding R, Applying the Precautionary Principle (Federation Press, 1997) pp 36, 74-75.
130. However, commentators consider the process is an "afterthought... considering that the CSG project approvals were given last year", and that the CSG industry in Queensland is "racing ahead to establish a fait accompli, and governments have been negligent in not joining up the dots. Once the capital is sunk it will be impossible to stop the industry rolling over the country"
131. Manning P, "Energy Analyst Turns Up Heat on New Gas Projects", Sydney Morning Herald (28 October 2011).
132. Namoi Catchment Water Study, http://www.namoicatchmentwaterstudy.com.au viewed 8 February 2012.
133. In order to ensure the reversibility of decisions, eg suspending approval until enough information has been gathered to reduce uncertainties
134. Deville and Harding, n 102, p 75.
135. Deville and Harding, n 102, p 75.
136. Deville and Harding, n 102, pp 20, 75.
137. Deville and Harding, n 102, p 75.
138. Deville and Harding, n 102, p 75.
139. Deville and Harding, n 102, pp 45-47.
140. This would be consistent with the requirement under the precautionary principle that the onus of proof be shifted to the proponent on activation
141. Deville and Harding, n 102, p 14.
142. Deville and Harding, n 102, p 58.
143. Deville and Harding, n 102, p 58.
144. Kysar, n 97, p 97.
145. Kysar, n 97, pp 97-98.
146. This is consistent with an understanding of the precautionary principle that promotes open decision-making
147. Holder and Lee, n 51.