State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) Amendment 2013 (2013-581) LW 4 October 2013 (NSW)
2013 No 581
| New South Wales |
State Environmental Planning Policy
(Mining, Petroleum Production and
Extractive Industries) Amendment
2013
under the
Environmental Planning and Assessment Act 1979
His Excellency the Lieutenant-Governor, with the advice of the Executive Council, has made the following State environmental planning policy under the Environmental Planning and Assessment Act 1979.
BRAD HAZZARD, MP
Minister for Planning and Infrastructure
| Published LW 4 October 2013 | Page 1 |
| 2013 No 581 | State Environmental Planning Policy (Mining, Petroleum Production and |
| Clause 1 | Extractive Industries) Amendment 2013 |
State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) Amendment 2013
under the
Environmental Planning and Assessment Act 1979
1 Name of Policy
This Policy is State Environmental Planning Policy (Mining, Petroleum
Production and Extractive Industries) Amendment 2013.
2 Commencement
This Policy commences on the day on which it is published on the NSW legislation website.
3 Repeal of Policy
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| State Environmental Planning Policy (Mining, Petroleum Production and | 2013 No 581 |
| Extractive Industries) Amendment 2013 |
| Amendment of State Environmental Planning Policy (Mining, Petroleum | Schedule 1 |
| Production and Extractive Industries) 2007 |
| Schedule 1 | Amendment of State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) |
| 2007 |
[1] Clause 2 Aims of Policy
Insert at the end of clause 2 (c):
, and
| (d) | to establish a gateway assessment process for certain mining and petroleum (oil and gas) development: | |||
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[2] Clause 3 Interpretation
Insert in alphabetical order in clause 3 (2):
Aquifer Interference Policy means the document entitled NSW Aquifer Interference Policy, published by the NSW Office of Water, Department of Primary Industries, dated September 2012. biophysical strategic agricultural land means:
| (a) | land identified on the Strategic Agricultural Land Map as “biophysical strategic agricultural land” (other than land certified by a site verification certificate as not being biophysical strategic agricultural land), and |
| (b) | any other land that is certified by a site verification certificate as being biophysical strategic agricultural land. |
coal seam gas means petroleum that:
| (a) | consists of naturally occurring hydrocarbons, or a naturally occurring mixture of hydrocarbons and non-hydrocarbons, the principal constituent of which is methane, and |
| (b) | is in a gaseous state at standard temperature and pressure, and |
| (c) | is extracted from coal beds. |
| 2013 No 581 | State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) Amendment 2013 |
| Schedule 1 | Amendment of State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 |
coal seam gas development means the following:
| (a) | development for the purposes of petroleum exploration, but only in relation to prospecting for coal seam gas, |
| (b) | development for the purposes of petroleum production, but only in relation to the recovery, obtaining or removal of coal seam gas, |
but does not include the following:
| (c) | the recovery, obtaining or removal of coal seam gas in the course of mining, |
| (d) | development to which clause 10 or 10A applies. |
critical industry cluster land means land identified on the Strategic Agricultural Land Map as “critical industry cluster land”.
future residential growth area land means land identified on the Future Residential Growth Areas Land Map as a “future residential growth area”.
Future Residential Growth Areas Land Map means the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 Future Residential Growth Areas Land Map.
Note. At the making of State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) Amendment 2013 the Future Residential Growth Areas Land Map identified only the North West Growth Centre and the South West Growth Centre under State Environmental Planning Policy (Sydney Region Growth Centres) 2006. Other future residential growth areas may be added to the Future Residential Growth Areas Land Map by further amendments to State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007.
gateway certificate
means a certificate issued by the Gateway Biodiversity Conservation Act 1999 of the Commonwealth. residential zone means any of the following land use zones or a land use zone that is equivalent to any of those zones:
Panel under Division 4 of Part 4AA.
Gateway Panel means the Mining and Petroleum Gateway Panel
constituted under Division 5 of Part 4AA.
IES Committee means the Independent Expert Scientific
Committee on Coal Seam Gas and Large Coal Mining
| (a) | Zone R1 General Residential, |
| (b) | Zone R2 Low Density Residential, |
| (c) | Zone R3 Medium Density Residential, |
| State Environmental Planning Policy (Mining, Petroleum Production and | 2013 No 581 |
| Extractive Industries) Amendment 2013 |
| Amendment of State Environmental Planning Policy (Mining, Petroleum | Schedule 1 |
| Production and Extractive Industries) 2007 |
| (d) | Zone R4 High Density Residential, |
| (e) | Zone RU5 Village. |
SA land means land that is:
| (a) | biophysical strategic agricultural land, or |
| (b) | critical industry cluster land, or |
| (c) | both. |
site verification certificate
means a certificate issued by the Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 Strategic Agricultural Land Map. unconditional certificate—see clause 17H (2) (a) (i).
Director-General under Division 3 of Part 4AA.
Site Verification Protocol means the document entitled Interim
Protocol for Site Verification and Mapping of Biophysical
Strategic Agricultural Land, published in the Gazette on
12 April 2013.
[3] Clause 3B
Insert after clause 3A:
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| (1) | A reference in this Policy to a named land use zone is a reference to a land use zone under an environmental planning instrument made as provided by section 33A (2) of the Act. | |||
| (2) | A reference in this Policy to a land use zone that is equivalent to a named land use zone is a reference to a land use zone under an environmental planning instrument that is not made as provided by section 33A (2) of the Act: | |||
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| 2013 No 581 | State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) Amendment 2013 |
| Schedule 1 | Amendment of State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 |
[4] Clause 5A
Insert after clause 5:
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| (1) | A reference in this Policy to a named map adopted by this Policy is a reference to a map by that name: | |||
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| (2) | Any 2 or more named maps may be combined into a single map. In that case, a reference in this Policy to any such named map is a reference to the relevant part or aspect of the single map. | |||
| (3) | Any such maps are to be kept and made available for public access in accordance with arrangements approved by the Minister. | |||
| (4) | For the purposes of this Policy, a map may be in, and may be kept and made available in, electronic or paper form, or both. | |||
| Note. The maps adopted by this Policy are to be made available on the official NSW legislation website in connection with this Policy. |
[5] Clause 9A
Insert after clause 9:
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(1) Despite any other provision of this Policy or any other environmental planning instrument, the carrying out of coal seam gas development is prohibited on or under the following land:
| (a) | land within a coal seam gas exclusion zone, |
| (b) | land within a buffer zone. |
| (2) | This clause does not apply to or in respect of coal seam gas development on or under an area of land listed in Schedule 2. |
| (3) | A local council may request that the Minister recommend to the Governor that this Policy be amended to list an area of land in Schedule 2. |
| Note. Subclauses (2) and (3) enable local councils to identify areas of land to be exempted from the coal seam gas development prohibition contained in this clause. This council-initiated exemption or “opt out” takes effect when this Policy is amended to include in Schedule 2 a description of the area of land concerned. |
| State Environmental Planning Policy (Mining, Petroleum Production and | 2013 No 581 |
| Extractive Industries) Amendment 2013 |
| Amendment of State Environmental Planning Policy (Mining, Petroleum | Schedule 1 |
| Production and Extractive Industries) 2007 |
| (4) | Nothing in this clause prevents the carrying out of development on land within a buffer zone for the purposes of a pipeline that is ancillary to coal seam gas development. | |||
| (5) | In this clause: buffer zone means land that is not within a coal seam gas exclusion zone, but is within 2 kilometres of any such zone. coal seam gas exclusion zone means any of the following areas of land: | |||
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[6] Part 4AA
Insert after Part 3:
Part 4AA Mining and petroleum development on
strategic agricultural land
| Division 1 | Preliminary |
| 17A | Meaning of “mining or petroleum development” | |
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| (a) | development specified in clause 5 (Mining) of Schedule 1 to State Environmental Planning Policy (State and Regional Development) 2011, but only if: | |
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| (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 |
| 2013 No 581 | State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) Amendment 2013 |
| Schedule 1 | Amendment of State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 |
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: | |||
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| 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 | |
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| (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: | |||
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| State Environmental Planning Policy (Mining, Petroleum Production and | 2013 No 581 |
| Extractive Industries) Amendment 2013 |
| Amendment of State Environmental Planning Policy (Mining, Petroleum | Schedule 1 |
| Production and Extractive Industries) 2007 |
(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: | |||
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| 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 | |||
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| (a) | any one or more of the following has occurred: | |
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| 2013 No 581 | State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) Amendment 2013 |
| Schedule 1 | Amendment of State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 |
(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: | |||
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| (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: | |||
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| 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 | |
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| (a) | be in writing and include the following information: | |
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| State Environmental Planning Policy (Mining, Petroleum Production and | 2013 No 581 |
| Extractive Industries) Amendment 2013 |
| Amendment of State Environmental Planning Policy (Mining, Petroleum | Schedule 1 |
| Production and Extractive Industries) 2007 |
(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 | |||
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| (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 | |||
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| 2013 No 581 | State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) Amendment 2013 |
| Schedule 1 | Amendment of State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 |
| (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: | |||
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| (4) | An application must: | |||
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(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 | |
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| (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: | |
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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)).
| State Environmental Planning Policy (Mining, Petroleum Production and | 2013 No 581 |
| Extractive Industries) Amendment 2013 |
| Amendment of State Environmental Planning Policy (Mining, Petroleum | Schedule 1 |
| Production and Extractive Industries) 2007 |
| (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: | |||
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| 17H | Determination of applications | |||
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| (a) | state that the Gateway Panel is of the opinion that: | |||
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| (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: | |||
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| (4) | The relevant criteria are as follows: | |||
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(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,
| 2013 No 581 | State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) Amendment 2013 |
| Schedule 1 | Amendment of State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 |
(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: | ||||||
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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: | |||
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| 17I | Time for determination of applications | |||||||
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| State Environmental Planning Policy (Mining, Petroleum Production and | 2013 No 581 |
| Extractive Industries) Amendment 2013 |
| Amendment of State Environmental Planning Policy (Mining, Petroleum | Schedule 1 |
| Production and Extractive Industries) 2007 |
| 17J | Gateway Panel may request further information before determining application | |
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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: | ||||
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| (4) | For the avoidance of doubt, the Gateway Panel: | |||
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| 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 | |||||
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| 2013 No 581 | State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) Amendment 2013 |
| Schedule 1 | Amendment of State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 |
| 17M | Notification of gateway certificates | |
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| (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): | |||||
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| Division 5 | Gateway Panel |
| 17N | Constitution of Gateway Panel | |||
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| 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. |
| State Environmental Planning Policy (Mining, Petroleum Production and | 2013 No 581 |
| Extractive Industries) Amendment 2013 |
| Amendment of State Environmental Planning Policy (Mining, Petroleum | Schedule 1 |
| Production and Extractive Industries) 2007 |
| 17P | Members of Gateway Panel | |||||||
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| 17Q | Constitution of Gateway Panel for particular matters | |||||||
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| 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
| 2013 No 581 | State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) Amendment 2013 |
| Schedule 1 | Amendment of State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 |
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.
[7] Clauses 20 and 21
Insert after clause 19:
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| (1) | Clause 9A extends to: | |||||
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(i) a request to modify an approved project,
(ii) an application to modify a development consent (including an application to modify a development consent referred to in clause 8J (8) of the Environmental Planning and Assessment Regulation 2000).
| (2) | Words and expressions used in this clause have the same meaning as they have in Schedule 6A (Transitional arrangements—repeal of Part 3A) to the Act. |
| State Environmental Planning Policy (Mining, Petroleum Production and | 2013 No 581 |
| Extractive Industries) Amendment 2013 |
| Amendment of State Environmental Planning Policy (Mining, Petroleum | Schedule 1 |
| Production and Extractive Industries) 2007 |
21 Savings and transitional—mining and petroleum development on strategic agricultural land
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[8] Schedule 2
Insert after Schedule 1:
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(Clause 9A (2))
Note. When this Plan was made this Schedule was blank.
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