Posted on August 4, 2015 by Frances Tse

Have your say on draft Planning Agreement Guidelines for State significant mining

The Department of Planning and Environment has released the second stage of its draft Integrated Mining Policy (‘IMP‘) for public consultation. Among the documents that are available for review and comment is the ‘Planning Agreement Guidelines for State Significant Mining Projects‘ (‘VPA Guidelines‘) which aims to assist local councils and proponents of State significant mining projects in negotiating planning agreements under section 93F of the Environmental Planning and Assessment Act 1979 (‘EPA Act‘). 

The IMP is the NSW Government’s initiative to ‘clarify and improve existing government processes and policy around the assessment, determination and regulation of State significant mining projects‘. The NSW Government aims to implement the IMP through a raft of policies and guidelines to improve the transparency, consistency and accountability of assessment decisions.

For example, the policies and guidelines that were publicly exhibited between May and July 2015 in the ‘Stage 1 reforms’ under the IMP included:

• ‘Mine Application Guidelines’, which set out the expected requirements in preparing development applications for State significant mining developments, and
• standardised Secretary’s Environmental Assessment Requirements, which set out what an environmental impact statement for a State significant mine should contain.

Further policies and guidelines, including the VPA Guidelines are now on public exhibition as part of the ‘Stage 2 reforms’.

The VPA Guidelines set out the ‘best practice’ in negotiating planning agreements for mining projects and some guidance on appropriate benefits that may be provided by a  mining proponent under a planning agreement.

The VPA Guidelines provide a brief overview of what planning agreements are, how they can be used to deliver benefits for mining companies, local councils and the community, guidance on the type of appropriate contributions that may be provided by a mining developer and ‘best practice’ principles for how planning agreements should be negotiated.

The ‘best practice’ principles are as follows:

1. Negotiations are entered into early and in good faith by all parties to the agreement, with all parties focused on delivering a planning agreement that is timely and follows best practice process.
2. The value of any contributions under a proposed planning agreement must be fair and reasonable, considering the impacts of the mine on the local community.
3. Planning agreement negotiations reflect the priorities of the community, as outlined in the council community strategic plans, and address impacts on the community over the life of the project.
4. The implementation of a planning agreement is transparent and accountable and the final planning agreement is made available to the public.

While the majority of the content in the VPA Guidelines and the above principles appear to be broad enough to apply to any planning agreement, the VPA Guidelines do mention a particular characteristic of planning agreements that make them a particularly useful vehicle for addressing impacts of mining projects compared to other development contributions options (such as contribution imposed under sections 94 or 94A of the EPA Act).

That is, the EPA Act allows for multiple local councils to be party to a single planning agreement.  This means that where a State significant mine has region-wide impacts across several local government areas,  the proponent of the mine may be required to provide public benefits across the various local government areas to address those impacts. The flexibility of planning agreements in this manner means that region-wide impacts of a mining development may be considered and addressed together efficiently in a single document to enable transparency, consistency and accountability in public benefits being provided by the proponent.

While the VPA Guidelines are not guidelines under section 23A of the Local Government Act 1993 and are not intended to be legally binding on local councils and proponents of State significant mining projects it appears that it will be a useful document in informing and guiding negotiations.

The draft documents relating to Stage 2 of the proposed IMP, including the VPA Guidelines are on exhibition until the 7 September 2015 and can be found here.