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Contents (2007 - 65)
State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007
Current version for 1 September 2017 to date (accessed 20 October 2017 at 07:11)
Part 4AA
Part 4AA Mining and petroleum development on strategic agricultural land
Division 1 Preliminary
17A   Meaning of “mining or petroleum development”
(1)  In this Part, mining or petroleum development means:
(a)  development specified in clause 5 (Mining) of Schedule 1 to State Environmental Planning Policy (State and Regional Development) 2011, but only if:
(i)  a mining lease under the Mining Act 1992 is required to be issued to enable the development to be carried out because:
(A)  the development is proposed to be carried out outside the mining area of an existing mining lease, or
(B)  there is no current mining lease in relation to the proposed development, or
(ii)  the development is for the purposes of extracting a bulk sample as part of resource appraisal or a trial mine comprising the extraction of more than 20,000 tonnes of coal or of any mineral ore, or
(b)  development specified in clause 6 (1), (3) or (4) (Petroleum (oil and gas)) of Schedule 1 to State Environmental Planning Policy (State and Regional Development) 2011, but only if a production lease under the Petroleum (Onshore) Act 1991 is required to be issued to enable the development to be carried out because:
(i)  the development is proposed to be carried out outside the area of an existing production lease, or
(ii)  there is no current production lease in relation to the proposed development, or
(c)  development specified in clause 6 (2) of Schedule 1 to State Environmental Planning Policy (State and Regional Development) 2011.
(2)  However, mining or petroleum development does not include development carried out on land that is outside:
(a)  the mining area of a proposed mining lease, or
(b)  the area of a proposed production lease.
Division 2 Development applications
Note.
 Clause 50A of the Environmental Planning and Assessment Regulation 2000 requires that a development application for consent to mining or petroleum development on certain identified land (including land shown on the Strategic Agricultural Land Map) must be accompanied by:
(a)  a gateway certificate, or
(b)  a site verification certificate that certifies that the land on which the proposed development is to be carried out is not biophysical strategic agricultural land.
17B   Assessment of development applications
(1)  Before determining an application for development consent for mining or petroleum development that is accompanied by a gateway certificate, the consent authority must:
(a)  refer the application to the Minister for Primary Industries for advice regarding the impact of the proposed development on water resources, and
(b)  consider:
(i)  any recommendations set out in the certificate, and
(ii)  any written advice provided by the Minister for Primary Industries in response to a referral under paragraph (a), and
(iii)  any written advice of the Gateway Panel in relation to the development given as part of the consultations undertaken by the Director-General under clause 3 (4A) (b) of Schedule 2 to the Environmental Planning and Assessment Regulation 2000, and
(iv)  any written advice of the IES Committee provided to the Gateway Panel as referred to in clause 17G (1) (whether that advice was received before or after the expiry of the 60-day period referred to in clause 17G (1) (b) (i)), and
(v)  any cost benefit analysis of the proposed development submitted with the application.
(2)  In determining an application for development consent for mining or petroleum development that is accompanied by a gateway certificate, the consent authority must consider whether any recommendations set out in the certificate have or have not been addressed and, if addressed, the manner in which those recommendations have been addressed.
(3)  The Minister for Primary Industries, when providing advice under this clause on the impact of the proposed development on water resources, must have regard to:
(a)  the minimal impact considerations set out in the Aquifer Interference Policy, and
(b)  the other provisions of that Policy.
Division 3 Site verification certificates
Note.
 Clause 50A of the Environmental Planning and Assessment Regulation 2000 requires that a development application for consent to mining or petroleum development on certain identified land (including land shown on the Strategic Agricultural Land Map) must be accompanied by:
(a)  a gateway certificate, or
(b)  a site verification certificate that certifies that the land on which the proposed development is to be carried out is not biophysical strategic agricultural land.
17C   Site verification certificates—biophysical strategic agricultural land
(1)  The Director-General may issue a site verification certificate in respect of specified land certifying, in the Director-General’s opinion, that the land is or is not biophysical strategic agricultural land.
(2)  The owner of land may apply to the Director-General for a site verification certificate in respect of the land if:
(a)  any one or more of the following has occurred:
(i)  written notice of an intention to obtain an access arrangement in relation to the land under section 142 of the Mining Act 1992 has been served,
(ii)  an access arrangement in relation to the land under Division 2 of Part 8 of the Mining Act 1992 has been agreed or determined,
(iii)  written notice of an intention to obtain an access arrangement in relation to the land under section 69E of the Petroleum (Onshore) Act 1991 has been served,
(iv)  an access arrangement in relation to the land under Part 4A of the Petroleum (Onshore) Act 1991 has been agreed or determined, and
(b)  the land is not subject to a pending development application (or modification application) for mining or petroleum development.
(3)  A person who proposes to carry out mining or petroleum development on land shown on the Strategic Agricultural Land Map may apply to the Director-General for a site verification certificate in respect of the land, but only if the person gives notice of the application:
(a)  by written notice to the owner of the land before the application is made, or
(b)  by advertisement published in a newspaper circulating in the area in which the development is to be carried out no later than 30 days before the application is made.
(4)  Only one certificate may be issued under this clause in respect of the same land.
(5)  In this clause:
modification application means an application to modify a development consent and includes:
(a)  a request to modify an approved project within the meaning of Schedule 6A to the Act, and
(b)  an application for the modification of a development consent referred to in clause 8J (8) of the Environmental Planning and Assessment Regulation 2000.
owner of land, in relation to land subject to a mining lease under the Mining Act 1992, does not include the holder of the lease.
17D   Applications for site verification certificates
(1)  An application for a site verification certificate must:
(a)  be in writing and include the following information:
(i)  the name and address of the applicant,
(ii)  the address, and particulars of title, of the subject land,
(iii)  whether the land is shown as biophysical strategic agricultural land on the Strategic Agricultural Land Map, and
(b)  be in the form (if any) approved by the Director-General from time to time, and
(c)  be accompanied by the relevant fee (if any) specified in the regulations.
(2)  The Director-General must have regard to the criteria set out in the Site Verification Protocol when determining an application for a site verification certificate.
(3)  The Director-General is to determine an application within 21 days of it being made.
17E   Notification of applications for and issue of site verification certificates
(1)  A copy of each application for a site verification certificate must be published on the Department’s website.
(2)  A copy of each site verification certificate issued by the Director-General must:
(a)  be published on the Department’s website, and
(b)  be given to the relevant local council.
Division 4 Gateway certificates
Note.
 Clause 50A of the Environmental Planning and Assessment Regulation 2000 requires that a development application for consent to mining or petroleum development on certain identified land (including land shown on the Strategic Agricultural Land Map) must be accompanied by:
(a)  a gateway certificate, or
(b)  a site verification certificate that certifies that the land on which the proposed development is to be carried out is not biophysical strategic agricultural land.
17F   Applications for gateway certificates
(1)  An application for a gateway certificate in respect of proposed mining or petroleum development on SA land is to be made to the Gateway Panel.
(2)  An application may be made only by the person who proposes to carry out the proposed mining or petroleum development.
(3)  If the applicant is not the owner of the land concerned, the application may be made only if notice of the application is given:
(a)  by written notice to the owner of the land before the application is made, or
(b)  by advertisement published in a newspaper circulating in the area in which the development is to be carried out no later than 30 days before the application is made.
(4)  An application must:
(a)  be in writing and include the following information:
(i)  the name and address of the applicant,
(ii)  the address, and particulars of title, of the subject land,
(iii)  a description of the proposed development,
(iv)  whether the land is biophysical strategic agricultural land or critical industry cluster land, or both, and
(b)  be in the form (if any) approved by the Gateway Panel from time to time.
17G   Referral of applications
(1)  Before determining an application for a gateway certificate relating to development on land that is biophysical strategic agricultural land, the Gateway Panel:
(a)  must refer the application to the IES Committee and the Minister for Primary Industries for advice regarding the impact of the proposed development on water resources, and
(b)  must take the following into consideration:
(i)  any written advice received by the Panel from the IES Committee within 60 days of the referral concerned,
Note.
 This 60-day period may be extended for a period of up to 30 days if the Gateway Panel requests that the applicant provide the Panel with further information (see clause 17J (2)).
(ii)  any written advice received by the Panel from the Minister for Primary Industries within 70 days of the referral concerned.
Note.
 This 70-day period may be extended for a period of up to 30 days if the Gateway Panel requests that the applicant provide the Panel with further information (see clause 17J (2)).
(2)  The Minister for Primary Industries, when providing advice under this clause on the impact of the proposed development on water resources, must have regard to:
(a)  the minimal impact considerations set out in the Aquifer Interference Policy, and
(b)  the other provisions of that Policy.
17H   Determination of applications
(1)  The Gateway Panel must determine an application by issuing a gateway certificate in accordance with this Division.
(2)  A gateway certificate must:
(a)  state that the Gateway Panel is of the opinion that:
(i)  the proposed development meets the relevant criteria (an unconditional certificate), or
(ii)  the proposed development does not meet the relevant criteria (a conditional certificate), and
(b)  include the Gateway Panel’s reasons for the formation of the opinion stated in the certificate (and the reasons for the making of any recommendations included in the certificate).
(3)  A conditional gateway certificate:
(a)  is to include recommendations of the Gateway Panel to address the proposed development’s failure to meet the relevant criteria, and
(b)  may also include a recommendation that specified studies or further studies be undertaken by the applicant regarding the proposed development.
(4)  The relevant criteria are as follows:
(a)  in relation to biophysical strategic agricultural land— that the proposed development will not significantly reduce the agricultural productivity of any biophysical strategic agricultural land, based on a consideration of the following:
(i)  any impacts on the land through surface area disturbance and subsidence,
(ii)  any impacts on soil fertility, effective rooting depth or soil drainage,
(iii)  increases in land surface micro-relief, soil salinity, rock outcrop, slope and surface rockiness or significant changes to soil pH,
(iv)  any impacts on highly productive groundwater (within the meaning of the Aquifer Interference Policy),
(v)  any fragmentation of agricultural land uses,
(vi)  any reduction in the area of biophysical strategic agricultural land,
(b)  in relation to critical industry cluster land—that the proposed development will not have a significant impact on the relevant critical industry based on a consideration of the following:
(i)  any impacts on the land through surface area disturbance and subsidence,
(ii)  reduced access to, or impacts on, water resources and agricultural resources,
(iii)  reduced access to support services and infrastructure,
(iv)  reduced access to transport routes,
(v)  the loss of scenic and landscape values.
(5)  In forming an opinion as to whether a proposed development meets the relevant criteria, the Gateway Panel is to have regard to:
(a)  the duration of any impact referred to in subclause (4), and
(b)  any proposed avoidance, mitigation, offset or rehabilitation measures in respect of any such impact.
17I   Time for determination of applications
(1)  The Gateway Panel must determine an application within 90 days of it being made.
(2)  If the Gateway Panel does not issue a gateway certificate before the expiry of the period required under this clause (and has not rejected the application), the Director-General is, by order in writing, to direct the Panel to issue a certificate in respect of the proposed development within 30 days of making the direction or such longer period as is specified in the direction.
(3)  If the Gateway Panel does not issue a gateway certificate within the period required by a direction under this clause, the Panel must, immediately after the expiry of that period, issue an unconditional certificate in respect of the proposed development.
(4)  For the avoidance of doubt, an application under this Division may be rejected only in accordance with clause 17J (3) (a).
17J   Gateway Panel may request further information before determining application
(1) One request for further information permitted The Gateway Panel may make one request that the applicant provide the Panel with further information. The applicant is to provide that information within 30 days of the request.
(2) “Clock stopped” while applicant responds to request During the period beginning on the making of the request and ending on the provision of the information or the expiry of the 30-day period (whichever occurs first), time ceases to run for the purpose of calculating the time periods referred to in clauses 17G (1) (b) and 17I (1).
(3) Effect of failure to respond to request If an applicant fails to provide the Gateway Panel with the requested information within the 30-day period, the Panel must:
(a)  reject and not determine the application, or
(b)  continue to determine the application within the period required under this Division, as extended by subclause (2).
(4)  For the avoidance of doubt, the Gateway Panel:
(a)  may not make a request under this clause after the expiry of the 90-day period referred to in clause 17I (1), and
(b)  may, in determining an application, have regard to any requested information provided after the expiry of the 30-day period referred to in subclause (1).
17K   Duration of gateway certificates
A gateway certificate remains current for a period of 5 years (or such shorter period as is specified in the certificate) after the date on which it is issued by the Gateway Panel.
17L   Amendment of gateway certificates
(1)  A gateway certificate may be amended on application to the Gateway Panel.
(2)  Clauses 17I and 17J apply to an application for an amendment of a gateway certificate with all necessary changes.
(3)  The Gateway Panel may determine, as it sees fit, whether any of the other provisions of this Division are to apply to such an application in a particular case.
17M   Notification of gateway certificates
(1)  The Gateway Panel must:
(a)  notify the applicant in writing of its determination of the application, and
(b)  if it issues a gateway certificate, give a copy of the gateway certificate to the applicant.
(2)  The Gateway Panel must give a copy of the following documents to the Director-General and must cause any such copy to be published on the Gateway Panel’s website (or, if there is no such website, the Department’s website):
(a)  each application for a gateway certificate,
(b)  any written advice received by the Gateway Panel under clause 17G,
(c)  each gateway certificate issued by the Gateway Panel.
Division 5 Gateway Panel
17N   Constitution of Gateway Panel
(1)  The Minister is to constitute the Mining and Petroleum Gateway Panel.
(2)  The Minister must consult with the Minister for Resources and Energy and the Minister for Primary Industries on the proposed membership of the Gateway Panel.
17O   Functions of Gateway Panel
The Gateway Panel has the following functions:
(a)  to determine applications for gateway certificates,
(b)  to provide advice to the consent authority under clause 17B (1) of this Policy in relation to applications for development consent,
(c)  to provide advice to the Minister or the Director-General under clause 21 (2) of this Policy in relation to applications for development consent,
(d)  to provide advice to the Director-General under clause 3 (4A) (b) of the Environmental Planning and Assessment Regulation 2000 in relation to the preparation of environmental assessment requirements,
(e)  such other functions as may be imposed or conferred on the Panel by this Policy or any other law.
17P   Members of Gateway Panel
(1)  The Gateway Panel is to consist of not less than 3 persons appointed by the Minister.
(2)  A person is qualified for appointment as a member of the Gateway Panel if the person has expertise in any one or more of the disciplines of agricultural science, hydrogeology or mining and petroleum development.
(3)  In appointing the members of the Gateway Panel, the Minister is to ensure, as far as practicable, that the members have expertise in a mix of the disciplines referred to in subclause (2).
(4)  One of the members of the Gateway Panel is, by the member’s instrument of appointment or a further instrument signed by the Minister, to be appointed as the chairperson of the Panel.
17Q   Constitution of Gateway Panel for particular matters
(1)  For the purpose of carrying out any of its functions, the Gateway Panel is to be constituted by 3 members.
(2)  The members for the purpose of exercising a function of the Gateway Panel are to be determined by the chairperson.
(3)  The Gateway Panel may, at any time, exercise by the same members or different members, one or more of its functions.
17R   Term and other conditions of office
A member of the Gateway Panel:
(a)  holds office for such term (not exceeding 3 years) as is determined by the Minister, and
(b)  ceases to hold office in such circumstances as are determined by the Minister, and
(c)  is entitled to such remuneration, if any, and to the payment of such expenses, if any, as are determined by the Minister, and
(d)  holds office subject to such conditions as are determined by the Minister.
17S   Pecuniary interests
A member of the Gateway Panel who has a pecuniary interest (within the meaning of sections 442 and 443 of the Local Government Act 1993) in any matter that is the subject of a decision or advice by the Panel and who is present at a meeting of the Panel at which the matter is being considered:
(a)  must disclose the interest to the meeting as soon as practicable, and
(b)  must not take part in the consideration or discussion of the matter, and
(c)  must not vote on any question relating to the matter.
17T   Procedure at meetings
Subject to clause 17U, the procedure at meetings of the Gateway Panel is to be determined by the Minister or, in the absence of any such determination, by the Panel.
17U   Quorum
The quorum at a meeting of the Gateway Panel is a majority of the members for the time being of the Panel.