Environmental Protection and Other Acts Amendment Act 2011 (Qld)

Queensland Environmental Protection and Other Acts Amendment Act 2011 Act No. 3 of 2011

Queensland Environmental Protection and Other Acts Amendment Act 2011 Contents Part 1 1 2 Part 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Part 3 16 17 Page Preliminary Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Amendment of Environmental Protection Act 1994 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Amendment of s 73G (When registration certificate takes effect) 4 Amendment of s 154 (General requirements for application). . . . 5 Amendment of s 210 (Conditions that may and must be included in draft environmental authority) . . . . . . . . . . . . . . . . . . 5 Amendment of s 305 (Conditions that may be made) . . . . . . . . . 6 Amendment of s 310O (Conditions that may and must be imposed) ....................................... 7 Amendment of s 363H (Administering authority may issue clean-up notice) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Amendment of s 363I (Offence not to comply with clean-up notice) ......................................... 9 Amendment of s 363N (Administering authority may issue cost recovery notice) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Amendment of s 478 (Failure to comply with authorised person’s direction in emergency) . . . . . . . . . . . . . . . . . . . . . . . . . 9 Amendment of s 480 (False, misleading or incomplete documents) ..................................... 10 Amendment of s 540 (Required registers) . . . . . . . . . . . . . . . . . . 10 Amendment of sch 4 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 10 Amendment of Fisheries Act 1994 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Insertion of new s 76IA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 76IA Environmental offset conditions . . . . . . . . . . . . . . . . . 11

Environmental Protection and Other Acts Amendment Act 2011 Contents 18 19 Part 4 20 21 Part 5 22 23 Amendment of s 117 (Fisheries Research Fund). . . . . . . . . . . . . Amendment of schedule (Dictionary) . . . . . . . . . . . . . . . . . . . . . . Amendment of Nature Conservation Act 1992 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Replacement of s 124 (Approval of amendment of plans) . . . . . . 124 Procedures applying to amending plans . . . . . . . . . . Amendment of Sustainable Planning Act 2009 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Insertion of new s 346A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 346A Environmental offset conditions . . . . . . . . . . . . . . . . . 12 12 13 13 13 14 14 14 Page 2 2011 Act No. 3

Queensland Environmental Protection and Other Acts Amendment Act 2011 Act No. 3 of 2011 An Act to amend the Environmental Protection Act 1994, Fisheries Act 1994, Nature Conservation Act 1992 and Sustainable Planning Act 2009 for particular purposes [Assented to 4 April 2011]

Environmental Protection and Other Acts Amendment Act 2011 Part 1 Preliminary [s 1] The Parliament of Queensland enacts— Part 1 Preliminary 1 Short title This Act may be cited as the Environmental Protection and Other Acts Amendment Act 2011 . 2 Commencement This Act commences on a day to be fixed by proclamation. Part 2 Amendment of Environmental Protection Act 1994 3 Act amended This part amends the Environmental Protection Act 1994. 4 Amendment of s 73G (When registration certificate takes effect) (1) Section 73G(1)(c), ‘section 73F(7)’— omit, insert— ‘section 73F(8)’. (2) Section 73G(2), ‘section 73F(4)’— omit, insert— ‘section 73F(5)’. Page 4 2011 Act No. 3

Environmental Protection and Other Acts Amendment Act 2011 Part 2 Amendment of Environmental Protection Act 1994 [s 5] 5 Amendment of s 154 (General requirements for application) Section 154(3), after ‘extent to’— insert— ‘which’. 6 Amendment of s 210 (Conditions that may and must be included in draft environmental authority) (1) Section 210(4), ‘subsection (3)’— omit, insert— ‘subsection (7)’. (2) Section 210(3) and (4)— renumber as section 210(7) and (8). (3) Section 210— insert— ‘(3) The administering authority may include in the draft a condition that requires or otherwise relates to an environmental offset (an environmental offset condition ) if the administering authority is satisfied that all cost-effective on-site mitigation measures for the relevant mining activities have been, or will be, undertaken. ‘(4) An environmental offset condition may require works or activities to be undertaken on land on which a relevant mining activity is carried out or on other land in the State. ‘(5) An environmental offset condition may require a monetary payment to an environmental offset trust. ‘(6) If the applicant has entered into an agreement about an environmental offset for this section, an environmental offset condition may require the authority holder to comply with the agreement.’. (4) Section 210— insert— 2011 Act No. 3 Page 5

Environmental Protection and Other Acts Amendment Act 2011 Part 2 Amendment of Environmental Protection Act 1994 [s 7] ‘(9) The applicant may enter into an agreement with the administering authority or another entity to establish the obligations, or secure the performance, of a party to the agreement about a condition. ‘(10) In this section— environmental offset means works or activities undertaken to counterbalance the impacts of a relevant mining activity on the natural environment. on-site mitigation measure , for a relevant mining activity, means a measure, undertaken on land to which the activity relates, to avoid or minimise negative impacts of the activity on the natural environment.’. 7 Amendment of s 305 (Conditions that may be made) (1) Section 305(2)(d)— renumber as section 305(2)(e). (2) Section 305(2)— insert— ‘(d) if the entity doing or making the relevant act is satisfied that all cost-effective on-site mitigation measures for an authorised activity have been, or will be, undertaken—include a condition requiring or otherwise relating to an environmental offset (an environmental offset condition ); or’. (3) Section 305— insert— ‘(5) An environmental offset condition may require works or activities to be undertaken on land on which an authorised activity is carried out or on other land in the State. ‘(6) An environmental offset condition may require a monetary payment to an environmental offset trust. ‘(7) If the environmental authority holder has entered into an agreement about an environmental offset for this section, an Page 6 2011 Act No. 3

Environmental Protection and Other Acts Amendment Act 2011 Part 2 Amendment of Environmental Protection Act 1994 [s 8] environmental offset condition may require the holder to comply with the agreement. ‘(8) The environmental authority holder may enter into an agreement with the entity doing or making the relevant act or another entity to establish the obligations, or secure the performance, of a party to the agreement about a condition. ‘(9) A reference in subsection (7) or (8) to the holder of an environmental authority entering into an agreement includes the holder entering into an agreement before the authority is granted. ‘(10) In this section— authorised activity means an activity carried out under the environmental authority to which the relevant act relates. environmental offset means works or activities undertaken to counterbalance the impacts of an authorised activity on the natural environment. on-site mitigation measure , for an authorised activity, means a measure, undertaken on land to which the activity relates, to avoid or minimise negative impacts of the activity on the natural environment.’. 8 Amendment of s 310O (Conditions that may and must be imposed) (1) Section 310O(3)(b) and (c)— renumber as section 310O(3)(c) and (d). (2) Section 310O(3)— insert— ‘(b) if the administering authority is satisfied that all cost-effective on-site mitigation measures for a relevant chapter 5A activity have been, or will be, undertaken—require or otherwise relate to an environmental offset (an environmental offset condition ); or’. 2011 Act No. 3 Page 7

Environmental Protection and Other Acts Amendment Act 2011 Part 2 Amendment of Environmental Protection Act 1994 [s 9] (3) Section 310O— insert— ‘(6) An environmental offset condition may require works or activities to be undertaken on land on which a relevant chapter 5A activity is carried out or on other land in the State. ‘(7) An environmental offset condition may require a monetary payment to an environmental offset trust. ‘(8) If the applicant has entered into an agreement about an environmental offset for this section, an environmental offset condition may require the environmental authority holder to comply with the agreement. ‘(9) The environmental authority holder may enter into an agreement with the administering authority or another entity to establish the obligations, or secure the performance, of a party to the agreement about a condition. ‘(10) In this section— environmental offset means works or activities undertaken to counterbalance the impacts of a relevant chapter 5A activity on the natural environment. on-site mitigation measure , for a relevant chapter 5A activity, means a measure, undertaken on land to which the activity relates, to avoid or minimise negative impacts of the activity on the natural environment.’. 9 Amendment of s 363H (Administering authority may issue clean-up notice) (1) Section 363H(1), after ‘stated action to’— insert— ‘do all or any of the following’. (2) Section 363H(1)(a) to (c), ‘; or’ omit, insert— ‘;’. Page 8 2011 Act No. 3

Environmental Protection and Other Acts Amendment Act 2011 Part 2 Amendment of Environmental Protection Act 1994 [s 10] 10 Amendment of s 363I (Offence not to comply with clean-up notice) Section 363I(3)(b)— omit, insert— ‘(b) that— (i) the relevant contamination incident was caused by a natural disaster; and (ii) the recipient had taken all measures it would be reasonable for the recipient to have taken to prevent the incident, having regard to all the circumstances including the inherent nature of the risk and the probability of the natural disaster; or’. 11 Amendment of s 363N (Administering authority may issue cost recovery notice) Section 363N(5)(b)— omit, insert— ‘(b) if— (i) the contamination incident was caused by a natural disaster; and (ii) the recipient had taken all measures it would be reasonable for the recipient to have taken to prevent the incident, having regard to all the circumstances including the inherent nature of the risk and the probability of the natural disaster; or’. 12 Amendment of s 478 (Failure to comply with authorised person’s direction in emergency) Section 478, penalty— omit, insert— ‘Maximum penalty—2000 penalty units.’. 2011 Act No. 3 Page 9

Environmental Protection and Other Acts Amendment Act 2011 Part 2 Amendment of Environmental Protection Act 1994 [s 13] 13 Amendment of s 480 (False, misleading or incomplete documents) Section 480(4)(a), ‘section 90(c) or 132(2)’— omit, insert— ‘section 309Q(c) or 311F(2)’. 14 Amendment of s 540 (Required registers) Section 540(1)(k), ‘paragraph (h)’— omit, insert— ‘paragraph (j)’. 15 Amendment of sch 4 (Dictionary) (1) Schedule 4, definition regulatory requirement — omit. (2) Schedule 4— insert— ‘ Balance the Earth Trust means the trust by that name established under a trust deed entered into by the State on 9 October 2009. environmental offset trust means the Balance the Earth Trust or another trust established to accept and manage amounts to fund the undertaking of works or activities to counterbalance the impacts of environmentally relevant activities or other activities on the natural environment. regulatory requirement means a requirement under an environmental protection policy or a regulation for— (a) the administering authority to— (i) grant or refuse to grant, or follow stated procedures for evaluating, any of the following applications— (A) a development application for which the administering authority is the assessment Page 10 2011 Act No. 3

Environmental Protection and Other Acts Amendment Act 2011 Part 3 Amendment of Fisheries Act 1994 [s 16] manager or a referral agency; (B) an environmental authority application; (C) an application for approval of a transitional environmental program; or (ii) impose, change or cancel a condition of a development approval for a chapter 4 activity, an environmental authority or an approval of a transitional environmental program; or (b) the Land Court to make an objections decision under section 223: or (c) the Minister to make a decision under section 247.’. Part 3 Amendment of Fisheries Act 1994 16 Act amended This part amends the Fisheries Act 1994. 17 Insertion of new s 76IA After section 76I— insert— ‘76IA Environmental offset conditions ‘(1) Under the PlanningAct, sections 346 and 346A, the conditions imposed on a fisheries development approval may include environmental offset conditions. ‘(2) An environmental offset condition may relate to works or activities undertaken to counterbalance the impacts of the development on fisheries resources or fish habitat including, for example— 2011 Act No. 3 Page 11

Environmental Protection and Other Acts Amendment Act 2011 Part 3 Amendment of Fisheries Act 1994 [s 18] (a) works or activities to enhance or rehabilitate a fish habitat; and (b) the exchange of another fish habitat for a fish habitat affected by the development; and (c) a contribution to fish habitat research. ‘(3) With the agreement of the applicant for the approval, an environmental offset condition may require a monetary payment to the Fisheries Research Fund under section 117.’. 18 Amendment of s 117 (Fisheries Research Fund) (1) Section 117(4)(c)— renumber as section 117(4)(d). (2) Section 117(4)— insert— ‘(c) amounts received for payment into the fund under environmental offset conditions mentioned in section 76IA; and’. (3) Section 117(5)(b)— renumber as section 117(5)(c). (4) Section 117(5)— insert— ‘(b) fish habitat enhancement, rehabilitation or exchange; or’. 19 Amendment of schedule (Dictionary) Schedule— insert— ‘ environmental offset condition see the Planning Act, section 346A(1).’. Page 12 2011 Act No. 3

Part 4 Environmental Protection and Other Acts Amendment Act 2011 Part 4 Amendment of Nature Conservation Act 1992 [s 20] Amendment of Nature Conservation Act 1992 20 Act amended This part amends the Nature Conservation Act 1992. 21 Replacement of s 124 (Approval of amendment of plans) Section 124— omit, insert— ‘124 Procedures applying to amending plans ‘(1) The procedures for the preparation and approval of management plans and conservation plans apply to amending plans subject to this section. ‘(2) Sections 113 and 114 do not apply to an amending plan. ‘(3) Also, sections 115 and 116 do not apply to an amending plan if its only amendments of another management or conservation plan are to— (a) correct an error in the other plan; or (b) make a change (other than a change of substance) in the other plan; or (c) if the other plan or a regulation provides that an amendment of a stated type may be made to the other plan by amendment under this subsection—make an amendment of that type. ‘(4) In this section— amending plan means a management or conservation plan made only to amend another management or conservation plan.’. 2011 Act No. 3 Page 13

Environmental Protection and Other Acts Amendment Act 2011 Part 5 Amendment of Sustainable Planning Act 2009 [s 22] Part 5 Amendment of Sustainable Planning Act 2009 22 Act amended This part amends the Sustainable Planning Act 2009. 23 Insertion of new s 346A After section 346— insert— ‘346A Environmental offset conditions ‘(1) This section applies to a condition that requires or otherwise relates to an environmental offset (an environmental offset condition ). ‘(2) An environmental offset condition may be imposed only if the concurrence agency or assessment manager is satisfied that all cost-effective on-site mitigation measures for the development have been, or will be, undertaken. ‘(3) If the applicant has entered into an agreement about an environmental offset for this section, a condition may require the applicant to comply with the agreement. ‘(4) A condition imposed under subsection (3)— (a) is taken to comply with section 345; and (b) is not invalid on the ground of being uncertain or lacking finality. ‘(5) If an entity other than the applicant agrees, under an agreement mentioned in subsection (3), to carry out works required for the development, section 347(1)(c) does not apply to a condition stating that those works must be undertaken by the entity. Note — Also, under section 348, the applicant may enter into an agreement to establish the obligations, or secure the performance, of a party to the agreement about an environmental offset condition. Page 14 2011 Act No. 3

Environmental Protection and Other Acts Amendment Act 2011 Part 5 Amendment of Sustainable Planning Act 2009 [s 23] ‘(6) An environmental offset condition may require works or activities to be undertaken on land on which the development is undertaken or on other land in the State. ‘(7) An environmental offset condition may require a monetary payment to an environmental offset trust. ‘(8) In this section— Balance the Earth Trust means the trust by that name established under a trust deed entered into by the State on 9 October 2009. environmental offset means works or activities undertaken to counterbalance the impacts of a development on the natural environment. environmental offset trust means the Balance the Earth Trust or another trust established to accept and manage amounts to fund the undertaking of works or activities to counterbalance the impacts of development or other activities on the natural environment. natural environment — (a) means living and non-living things that occur naturally at 1 or more places on Earth; and (b) does not include amenity or aesthetic, cultural, economic or social conditions. on-site mitigation measure , for a development, means a measure, undertaken on land to which the development relates, to avoid or minimise negative impacts of the development on the natural environment.’. © State of Queensland 2011 2011 Act No. 3 Page 15