PRE-PRODUCTION/DEVELOPMENT APPLICATION STAGE

 

The proponent of a mining or petroleum development will first require development consent and then be granted a production title (such as a Mining Lease) before it can proceed to the Production stage. To receive development consent, a proponent must lodge a Development Application (DA) and have the proposal assessed under state planning rules. The proponent will also be required to produce an environmental assessment as part of its Development Application.

 

Development consent

In order for a mining or petroleum development to proceed to the production stage, an explorer needs:

 

  • a mining lease or petroleum production lease; and

  • development consent.

 

There are a few different categories of development in the NSW planning system each of which attract different assessment and public comment requirements.

 

Generally, coal and petroleum developments will be classified as State Significant Development. Those coal or petroleum developments that aren’t State Significant Development will usually be classified as Designated Developments. There are other criteria for categorising other mineral mining developments.     

 

For more information on how you can have your say on a development proposal see the page:

How can I have my say?

 

Each production proposal must be assessed by the particular authority that can approve it. As each development proposal is different and will have different impacts, they each must be assessed individually. Also, depending on the type of development, the opportunities for you to comment on development proposals will differ.

 

State Significant Development
 

What developments are State Significant Developments?

Certain developments are declared State Significant Developments as defined in the State Environmental Planning Policy (State and Regional Development) 2011.

 

State Significant Developments include:

 

  • intensive livestock agriculture that has a capital investment value of more than $30 million;

  • agricultural processing facilities which have a capital investment value of more than $30 million;

  • mines which have a capital investment value of more than $30 million;

  • petroleum industry which is for the purposes of petroleum production, or for the purposes of exploration not including stratisgraphic boreholes, monitoring wells, or 5 or more wells more than 3 kilometres from any other petroleum well in the same petroleum title;

  • extractive industries which extract more than 50,000 tonnes per year; and

  • metal, mineral and extractive material processing facilities with a capital investment of more than $30 million.

 

The Minister for Planning and Environment may also declare a development to be a State Significant Development, but only if the Minister has obtained and made publicly available advice from the Planning Assessment Commission about the state or regional planning significance of the development.

 

Obtaining development consent for State Significant Developments

To seek development consent for a State Significant Development the proponent of the development must submit a Development Application.

 

The Minister for Planning and Environment is the consent authority for State Significant Development. However, delegations have been established to allow the Planning Assessment Commission or senior officers of the Department of Planning and Environment to

determine State Significant Development applications on the Minister’s behalf.

 

Where a State Significant Development proposal involves staged development applications, subsequent stages may be sent back to the relevant local government for determination.

 

The Environmental Planning and Assessment Regulation 2000 sets out procedures before a State Significant Development application can be lodged with the department, including:

 

  • specific requirements to obtain land owner consent

    or provide land owner notification before State Significant Developmentapplications are made for different types of development proposals

  • information requirements for State Significant Development applications and accompanying documents, including submission of an Environmental Impact Statement

  • the form and content of an Environmental Impact Statement, and procedures for obtaining environmental assessment requirements for Environmental Impact Statement preparation, the Environmental Planning and Assessment Regulation 2000 includes standard Environmental Impact Statement form and content requirements, as well as standard procedures for obtaining and consulting public authorities on environment assessment requirements for all Environmental Impact Statements.

 

Before preparing an Environmental Impact Statement, applicants must apply to the Secretary of the Department of Planning and Environment for environmental assessment requirements (which are also known as ‘Director-General’s Requirements’). The Department of Planning and Environment will consult with relevant public authorities, including local governments, to provide input into the preparation of the Secretary's Requirements.

 

The applicant must ensure the Environmental Impact Statement complies with any Secretary's Requirements, and that the form and content of the Environmental Impact Statement is consistent with the

requirements of the Environmental Planning and Assessment Regulation 2000.

 

A State Significant Development application may be rejected by the Department of Planning and Environment within 14 days of receipt if it is illegible, unclear or incomplete, including if it lacks the mandatory information and documents required to accompany a State Significant Development application under the Environmental Planning and Assessment Regulation 2000.

 

Public notification of State Significant Development Applications

State Significant Development proposals are subject to the following notification, public exhibition and post-exhibition requirements:

 

  • notification of all State Significant Development applications in a local newspaper, the Department’s website, to public authorities, and to adjoining land owners or occupiers;

  • a minimum public exhibition period of 30 days, with extended periods of consultation for up to 45 days where exhibition periods overlap with school holidays; and

  • applicants may be required by the Director-General to provide a written response to issues raised in submissions.

 

The Environmental Planning and Assessment Regulation 2000 also sets out what documents related to a State Significant Development application must be made available to the public on the department’s website and in such other  locations as the Secretary determines. These include:

 

  • State Significant Development applications, modification applications and accompanying documents or information, including the Environmental Impact Statement for the application,

  • Secretary’s Requirements issued for preparing the Environmental Impact Statement,

  • any submissions received and any response to submissions provided by the applicant,

  • any environmental assessment report prepared by the Secretary, and

  • any development consent or modification to a consent.

 

Any report by the Planning Assessment Commission will also be publicly available.

 

Assessing and determining State Significant Development applications

The Environmental Planning and Assessment Act 1979 (EP&A Act) requires the following be considered in the assessment of State Significant Developments:

 

  • environmental planning instruments (including local

    environmental plans and State Environmental Planning Policies);

  • planning agreements under s93F of the EP&A Act;

  • likely impacts of the development, including environmental impacts on both the natural and built environments, and social and economic impacts of the locality;

  • suitability of the site for the development

  • submissions received on the proposal; and

  • the public interest.

 

The Secretary of the Department of Planning and Environment will prepare an assessment report

that considers these matters and make a recommendation for either approval, with conditions to mitigate impacts, or for refusal.

 

In the assessment report the Department of Planning and Environment will consider all matters raised by other government agencies and recommend conditions and requirements as appropriate to satisfy agency concerns.

 

Assessment of State Significant Development applications differs from other development applications in that:

 

  • development control plans do not apply to State Significant Development but may be considered on a case-by-case basis;

  • State Significant Development proposals are not integrated development and do not require the concurrence of other state agencies – consultation with relevant public authorities occurs before the Secretary issues Secretary's Requirements for the preparation of the Environmental Impact Statement;

  • certain approvals from state agencies under other legislation are not required for State Significant Development proposals, and some other approvals must not be refused and must be substantially consistent with the State Significant Development consent (refer to sections 89J and 89K of the EP&A Act for details) – in its assessment, the Department will consider all agency issues and will impose conditions and requirements as appropriate to satisfy agency concerns;

  • for the purposes of applicant appeal rights, a State Significant Development application is taken to be refused if the Minister has not determined it within 90 days of the application being made (the deemed refusal period).

 

Post-determination, appeals and modifications

The following types of appeals are available post-determination of the Development Application decision:

 

  • applicant merit appeals (except where the Planning Assessment Commission determines an application after a formal public hearing)

  • third party merit appeals if (but for being declared

    State Significant Development) the proposal would otherwise have been a Designated Development (except where the Planning Assessment Commission has held a formal public hearing)

  • judicial review proceedings, provided they are commenced within 3 months of the notification of the decision.

 

State Significant Development approvals may be modified under section 96 of the Act.

 

Designated Development

Designated Developments include those that have a high potential to have adverse impacts on the environment because of their scale or nature or because of their location near sensitive environmental areas, such as wetlands.

 

Designated Developments are listed in Schedule 3 of the Environmental Planning and Assessment Regulation 2000 or in State Environmental Planning Policies.

 

Designated Developments include:

 

  • agricultural produce industries, where the industry crushes, juices, grinds, mills, gins, mixes or separates more than 30,000 tonnes of agricultural produce per year;

  • coal mines that produce more than 500 tonnes of coal per day;

  • coal works which handle more than 500 tonnes per day of coal;

  • extractive industries that process more than 30,000 cubic metres of extractive material per year;

  • limestone mines and works that process more than 150 tonnes per day or 30,000 tonnes per year;

  • livestock intensive industries, which are feedlots of more than 1000 head of cattle, 4000 sheep or 400 horses or are dairies that accommodate more than 800 head of cattle;

  • livestock processing industries that are intended to process more than 3000 kilograms live weight per day;

  • mineral processing or metallurgical works that process more than 150 tonnes of material per day;

  • mineral mines which disturb more than 4 hectares of land;

  • petroleum works that produce more than 5 Petajoules of gas or methane per year.

 

For a Designated Development the applicant needs to submit an Environmental Impact Statement (EIS) with the Development Application.

 

Prior to preparing an EIS, applicants must consult with the Director-General of the Department of Planning and Environment and, in completing the EIS must have regard to Secretary’s Requirements related to the form, content and public availability of the EIS.

 

A development application for a Designated Development will be advertised for 30 days so that the public can comment.

 

If an objection is made in writing and the application is subsequently approved, that person can appeal against the decision in the Land and Environment Court.

 

Application for a mining or petroleum production lease 
 

Before an explorer moves from the pre-production/development application stage to the production stage, the explorer must apply for and be granted a production lease.

 

Mining or production leases need to be applied for by the company to the Department of Industry.

 

The steps involved in applying for a mining or petroleum production lease are:

 

  • the explorer lodges an application for a mining or petroleum production lease

  • the explorer issues public notification of the application 

  • the explorer will undertake an environmental assessment

  • the Minister for Industry, Resources and Energy will decide whether to approve or reject the application.

 

The public is only given an opportunity to comment on the grant of a mining lease and not on the grant of a petroleum production lease. Anyone can object to the grant of a mining lease. If you wish to object to the grant of a petroleum production lease, you can still write to the Minister or decision-maker, even though there is no formal opportunity provided.

 

If a mining lease is granted over your property for an open-cut mine or a mining development that disturbs the surface of your land, you will have a special right to object if you believe your land is ‘agricultural land’.[iii] If you consent in writing to the grant of the mining lease over your land then it cannot be revoked. 

 

For more information on how you can have your say on a mining or petroleum lease application see the page:

How can I have my say on mineral and petroleum proposals?

 

If a mining development is approved over my property, do I have to sell my property?

No, you are not obliged to sell your property if there is a mining development approved over it. There is no law saying you must sell or that the explorer must purchase your property.

 

Conditions may be included as part of the development approval which require the miner to purchase your land if you ask them to if certain thresholds of noise or dust are exceeded.

 

If it is a condition of the development consent that the miner must purchase your property on request, you will want to think about whether you want to keep your property. If you do ask the miner to purchase your land, they must pay you the market value of your land.[iv]      

 

For more information on land acquisition and compensation see the chapter:

Land acquisition and compensation at the mining or production stage

 

[i]    NSW Government Assessment of State Significant Development and infrastructure (Department of Planning and Environment, September 2011).

[ii]    NSW Government Local and Regional Development (Department of Planning and Environment, Accessed August 2014)

[iii]   Mining Act 1992 (NSW) sch 1

[iv]   Mining Act 1992 (NSW) s 272

 

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